-----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, Kzf9JZsJ9SIrnQtlTx/es1GwfYfj9ffsSCCGkcS1BpI6vKvqcChlqkGSyVEp/Ens PHvJgEFP22IeMRz4ms2acQ== 0000902595-96-000097.txt : 19960926 0000902595-96-000097.hdr.sgml : 19960926 ACCESSION NUMBER: 0000902595-96-000097 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19960925 EFFECTIVENESS DATE: 19960925 SROS: NYSE SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: GREAT WESTERN FINANCIAL CORP CENTRAL INDEX KEY: 0000043512 STANDARD INDUSTRIAL CLASSIFICATION: SAVINGS INSTITUTION, FEDERALLY CHARTERED [6035] IRS NUMBER: 951913457 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-12655 FILM NUMBER: 96634379 BUSINESS ADDRESS: STREET 1: 9200 OAKDALE AVENUE CITY: CHATSWORTH STATE: CA ZIP: 91311 BUSINESS PHONE: 8187753411 MAIL ADDRESS: STREET 1: 9200 OAKDALE AVENUE CITY: CHATSWORTH STATE: CA ZIP: 91311 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on September 25, 1996. Registration No. 333-______ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ___________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ___________________ GREAT WESTERN FINANCIAL CORPORATION (Exact name of registrant as specified in its charter) ___________________ Delaware 95-1913457 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 9200 Oakdale Avenue, Chatsworth, California 91311 (Address of principal executive offices) Great Western Employee Savings Incentive Plan (Full title of the plan) J. Lance Erikson Executive Vice President, General Counsel and Secretary 9200 Oakdale Avenue, Chatsworth, California 91311 (Name and address of agent for service) ___________________ Telephone number, including area code, of agent for service: (818) 775-3411 ___________________
CALCULATION OF REGISTRATION FEE Proposed Proposed maximum maximum Title of Amount offering aggregate securities to be price offering Amount of to be registered registered per unit price registration fee Common Stock, 4,000,000<1>,<2> $24.69<3> $98,760,000<3> $34,056<3> $1.00 par value shares Interests in <1> the Plan <1>This Registration Statement covers, in addition to the number of shares of Common Stock stated above, pursuant to Rule 416(c) under the Securities Act of 1933, an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein and an additional indeterminate number of shares which by reason of certain events specified in the Plan may become subject to the Plan. <2>Each share is accompanied by two-fifths of a preferred share purchase right pursuant to the Registrant's Rights Agreement, dated as of June 24, 1986, as amended on February 19, 1988 and June 27, 1995, with Morgan Guaranty Trust Company, as Agent. <3>Pursuant to Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the average of the high and low prices of the Common Stock on September 19, 1996, as reported on the New York Stock Exchange and published in The Western Edition of The Wall Street Journal.
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing the information specified in Part I of Form S-8 (plan information and registrant information) will be sent or given to participants as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Act"). Such documents need not be filed with the Securities and Exchange Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Act. These documents, which include the statement of availability required by Item 2 of Form S-8, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference The following documents filed with the Securities and Exchange Commission by Great Western Financial Corporation (the "Company") and the Great Western Financial Corporation Employee Savings Incentive Plan (the "Plan") are incorporated herein by reference: (a) Annual Report of the Company on Form 10-K for the Company's fiscal year ended December 31, 1995. (b) Quarterly Reports on Form 10-Q for the Company's quarterly periods ended March 31, 1996 and June 30, 1996. (c) The description of the Company's Common Stock and Preferred Stock contained in the Prospectus for the Plan and included as Exhibit 3.4 to this Registration Statement, and any amendment or report filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") for the purpose of updating such description. All documents subsequently filed by the Company or by the Plan pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act 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 the prospectus 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 Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which 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 amended, to constitute a part of this Registration Statement. Item 4. Description of Securities The Company's Common Stock, $1.00 par value (the "Common Stock") is registered pursuant to Section 12 of the Exchange Act, and, therefore, the description of securities is omitted. A description of the capital stock constitutes a part of the prospectus for the Plan. Item 5. Interests of Named Experts and Counsel The validity of the original issuance of the Common Stock registered hereby is passed on for the Company by J. Lance Erikson, Executive Vice President, General Counsel and Secretary of the Company. Mr. Erikson is compensated by the Company, is a Plan participant, and, as of September 15, 1996, held 24,399 shares of Common Stock (including 15,000 shares of Restricted Stock) and options to acquire 149,010 shares of Common Stock of the Company under the Company's Stock Option and Incentive Plans. Item 6. Indemnification of Directors and Officers Article TWELVE of the Restated Certificate of Incorporation of the Company eliminates, to the fullest extent permitted by Delaware law, director liability for monetary damages for breaches of the director's fiduciary duty of care. The Company's Bylaws as well as certain employment agreements and other indemnity agreements also provide that the Company shall indemnify directors and officers under certain circumstances for liabilities and expenses incurred by reason of their actions as agents of the Company. In addition, the Company maintains an insurance policy that indemnifies directors and officers against certain liabilities. The Plan provides generally that the Company shall indemnify (i) members of the Company's Board of Directors, the Company's Executive Management Committee and the Company's Qualified Plans Investment Committee, each of which Committees currently includes certain officers of the Company, and their delegates who are employees of the Company, against certain expenses, liabilities and claims incurred in connection with the discharge in good faith of their respective duties under the Plan. The Plan and the Trust Agreement, effective as of October 1, 1996 between the Company and the Plan's trustee, provide generally that the Company shall indemnify the Plan's trustee against all expenses, liabilities and claims, except those arising from its negligence, wilful misconduct or failure to act in good faith. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits See the attached Exhibit Index. 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 Securities Act of 1933, as amended (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the 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 the Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement; (2) That, for the purpose of determining any liability under the Securities 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 Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the 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 Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 6 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, 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 Chatsworth, State of California, on September 24, 1996. By:___/s/ J. Lance Erikson___ J. Lance Erikson Its: Executive Vice President, Secretary and General Counsel POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints J. Lance Erikson, Carl F. Geuther and Stephen F. Adams, and each of them, his or her true and lawful attorney- in-fact and agent, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. [CAPTION] Signature Title Date __/s/ John F. Maher__ President, Chief Executive September 24, 1996 John F. Maher Officer and Director (Principal Executive Officer) __/s/ Carl F. Geuther__ Executive Vice President September 24, 1996 Carl F. Geuther and Chief Financial Officer (Principal Financial Officer) __/s/ Barry R. Barkley__ Senior Vice President and September 24, 1996 Barry R. Barkley Controller (Chief Accounting Officer) ___________________________ Chairman of the Board September __, 1996 James F. Montgomery and Director __/s/ David Alexander__ Director September 24, 1996 David Alexander __/s/ H. Frederick Christie__ Director September 24, 1996 H. Frederick Christie __/s/ Stephen E. Frank__ Director September 24, 1996 Stephen E. Frank _________________________ Director September __, 1996 John V. Giovenco __/s/ Firmin A. Gryp__ Director September 24, 1996 Firmin A. Gryp __/s/ Enrique Hernandez, Jr.__ Director September 24, 1996 Enrique Hernandez, Jr. __/s/ Charles D. Miller__ Director September 24, 1996 Charles D. Miller __/s/ Alberta E. Siegel__ Director September 24, 1996 Alberta E. Siegel __/s/ Willis B. Wood, Jr.__ Director September 24, 1996 Willis B. Wood, Jr.
The Plan. Pursuant to the requirements of the Securities Act of 1933, the Company's Executive Management Committee has duly caused this Registration Statement to be signed on behalf of the Plan by the undersigned, thereunto duly authorized, in the City of Chatsworth, State of California, on September 24, 1996. GREAT WESTERN EMPLOYEE SAVINGS INCENTIVE PLAN By: EXECUTIVE MANAGEMENT COMMITTEE By: __/s/ J. Lance Erikson__ J. Lance Erikson, Member EXHIBIT INDEX Exhibit Number Description 3.1 Restated Certificate of Incorporation of GWFC, as in effect on the date hereof (filed as an exhibit to GWFC's Annual Report on Form 10-K for the year ended December 31, 1992 and incorporated herein by reference). 3.2 Certificate of Designations of GWFC's 8.30 percent Cumulative Preferred Stock (filed as an exhibit to GWFC's Current Report on Form 8-K dated September 9, 1992, event date September 2, 1992, and incorporated herein by reference). 3.3 By-Laws of GWFC, as in effect on the date hereof (filed as an exhibit to GWFC's Current Report on Form 8-K dated June 30, 1995, event date June 27, 1995, and incorporated herein by reference). 3.4 Summary Description of Capital Stock of Great Western Financial Corporation. 4.1 Great Western Employee Savings Incentive Plan. 4.2 Trust Agreement for Great Western Employee Savings Incentive Plan. 5.1 Opinion of Company Counsel as to the legality of the securities being registered (opinion re legality). 5.2 Opinion of O'Melveny & Myers LLP as to compliance under the Employee Retirement Income Security Act of 1974. 10.1 Rights Agreement dated as of June 27, 1995, between GWFC and First Chicago Trust Company of New York (filed as an exhibit to the Company's Current Report on Form 8-K dated June 30, 1995, event date June 27, 1995, and incorporated herein by reference). 23.1 Consent of Price Waterhouse LLP. 23.2 Consent of Company Counsel (included in Exhibit 5.1). 23.3 Consent of O'Melveny & Myers LLP (included in Exhibit 5.2). 24. Power of Attorney (included in this Registration Statement under "Signatures"). EX-3.4 2 EXHIBIT 3.4 EXHIBIT 3.4 DESCRIPTION OF GREAT WESTERN FINANCIAL CORPORATION CAPITAL STOCK DESCRIPTION OF COMMON STOCK General The holders of the outstanding shares of GW Common Stock have full voting rights, one vote for each share held of record. Subject to the rights of holders of preferred stock of the Company, holders of GW Common Stock are entitled to receive such dividends as may be declared by the Board of Directors of the Company out of funds legally available therefor. Upon liquidation, dissolution, or winding up of the Company (but subject to the rights of holders of preferred stock of the Company), the assets legally available for distribution to holders of GW Common Stock shall be distributed ratably among such holders. Holders of GW Common Stock have no preemptive or other subscription or conversion rights, and no liability for further calls upon shares. The GW Common Stock is not subject to assessment. The Transfer Agent and Registrar for the GW Common Stock is Harris Trust Company of California. Rights On June 27, 1995, the Board of Directors of the Company adopted a Rights Plan pursuant to which the Company distributed one Right (each a "Right") for each outstanding share of GW Common Stock to stockholders of record at the close of business July 14, 1996. Each Right initially entitles the holder to purchase from the Company a unit of one one-hundredth of a share of Series A Junior Participating Preferred Stock, par value $1.00 per share, at a purchase price of $80.00 per unit, subject to adjustment. The Rights also attach to shares of GW Common Stock issued after July 14, 1996. The Rights will expire on July 14, 2006. The Rights may not be exercised, and will not detach or trade separately from the GW Common Stock, except as described below. The Rights will detach from the GW Common Stock and may be exercised only if a person or group becomes the beneficial owner of 15% or more of the GW Common Stock (a 'Stock Acquisition"). If a Stock Acquisition occurs (except pursuant to an offer for all outstanding shares of the GW Common Stock which the Company"s independent directors determine is fair to and otherwise in the best interests of the Company and its stockholders), the Rights "flip-in" and each Right not owned by such person will entitle the holder to purchase, at the Right"s then current exercise price, GW Common Stock, or, if the number of shares of authorized GW Common Stock is insufficient to permit the full exercise of the Rights, cash, property or other securities of the Company having a formula value equal to twice the Right"s exercise price. In addition, if at any time following a Stock Acquisition, (i) the Company is acquired in a merger or other business combination transaction in which the Company is not the surviving corporation (other than a merger which follows an offer at the same price and for the same consideration as the offer approved by the Board of Directors of the Company as described in the immediately preceding sentence), or (ii) 50% or more of the Company"s assets or earnings power is sold or transferred, the Rights "flip-over" and each unexercised Right will entitle its holder to purchase, at the Right"s exercise price, common shares of the other person having a formula value equal to twice the Right"s exercise price. The Rights may be redeemed by the Company at any time prior to ten days following the date of a Stock Acquisition (which period may be extended by the Company"s Board of Directors at any time while the Rights are still redeemable). Upon the occurrence of a "flip-in" or "flip-over" event, if the Rights are not redeemed, the Rights would result in substantial dilution to any person who has acquired 15% or more of the outstanding GW Common Stock or who attempts to merge or consolidate with the Company. As a result, the Rights may deter potential attempts to acquire control of the Company without the approval of the Company's Board of Directors. The foregoing summary of the Rights and New Rights is qualified in its entirety by the complete text of the Rights Plan, as amended, incorporated herein by this reference. Other documents incorporated by reference in this Prospectus include the Certificate of Incorporation and Bylaws of the Company which include other provisions that might in certain circumstances delay a change in control. DESCRIPTION OF PREFERRED STOCK Shares of Preferred Stock have been and may continue to be issued from time to time in one or more series for proper purposes under terms and conditions approved by the Board without further stockholder action, unless otherwise required by the rules of the New York, Pacific or London Stock Exchanges. The Board is authorized to fix and determine the terms of each series, including the number of shares of such series, the title of such series, voting and other powers, preferences, dividends, rights on liquidation, conversion rights and terms, redemption rights and terms (including sinking fund provisions), and maturity dates. Holders of such preferred shares as are and may be issued will have certain preferences, powers and rights (including voting rights) that are or may be senior to the rights of the holders of the Common Stock. EX-4.1 3 EXHIBIT 4.1 EXHIBIT 4.1 GREAT WESTERN EMPLOYEE SAVINGS INCENTIVE PLAN GREAT WESTERN EMPLOYEE SAVINGS INCENTIVE PLAN INDEX Page ARTICLE I TITLE AND DEFINITIONS . . . . . . . 2 1.1 - Title.. . . . . . . . . . . . . . . . . . . . . 2 1.2 - Definitions.. . . . . . . . . . . . . . . . . . 2 ARTICLE II PARTICIPATION . . . . . . . . . . 12 2.1 - Eligibility Requirements. . . . . . . . . . . . . 12 2.2 - Participation.. . . . . . . . . . . . . . . . . . 12 2.3 - Reemployment. . . . . . . . . . . . . . . . . . . 12 2.4 - Designation of Beneficiary. . . . . . . . . . . . 13 2.5 - Investment Options. . . . . . . . . . . . . . . . 13 2.6 - Certain Acquired Companies. . . . . . . . . . . . 15 2.7 - Sales of Subsidiaries, Divisions and Branches.. . 16 2.8 - Requirements for Participant Elections. . . . . . 16 ARTICLE III CONTRIBUTIONS . . . . . . . . . . 19 3.1 - Required Contributions by Participants. . . . . . 19 3.2 - Compensation Deferrals. . . . . . . . . . . . . . 19 3.3 - Employee Contributions. . . . . . . . . . . . . . 20 3.4 - Employer Matching Contributions.. . . . . . . . . 21 3.5 - Employer Discretionary Contributions. . . . . . . 21 3.6 - Rollover Contributions. . . . . . . . . . . . . . 21 3.7 - Section 402(g) Limit on Compensation Deferrals. . 22 3.8 - Section 401(k) Limitations on Compensation Deferrals. . . . . . . . . . . . . . . . . . . . . 23 3.9 - Section 401(m) Limitations on Employee Contributions and Employer Contributions.. . . . . 25 3.10 - Limits on Employer Contributions and Compensation Deferrals. . . . . . . . . . . . . . . . . . . . . 27 3.11 - Allocation of Forfeitures. . . . . . . . . . . . 28 3.12 - Valuation of Accounts. . . . . . . . . . . . . . 28 3.13 - Notification of Participants.. . . . . . . . . . 30 ARTICLE IV LIMITATION ON ANNUAL ADDITIONS . . . . . . 31 4.1 - Section 415 Limitations.. . . . . . . . . . . . . 31 ARTICLE V VESTING. . . . . . . . . . . . 32 5.1 - Fully Vested Accounts.. . . . . . . . . . . . . . 32 5.2 - Participant Incentive Account.. . . . . . . . . . 32 ARTICLE VI DISTRIBUTIONS . . . . . . . . . . 35 6.1 - Distribution of Benefits. . . . . . . . . . . . . 35 6.2 - Withdrawals of Employee Contributions.. . . . . . 36 6.3 - Hardship Withdrawals. . . . . . . . . . . . . . . 37 6.4 - Withdrawals from Accounts Upon Attaining Age 59-1/2.. . . . . . . . . . . . . . . . . . . . . 38 6.5 - Qualified Domestic Relations Orders.. . . . . . . 39 6.6 - Inability to Locate Participant.. . . . . . . . . 39 6.7 - Limitations on Distributions. . . . . . . . . . . 39 6.8 - Special Rules for Paysop Accounts.. . . . . . . . 40 6.9 - Direct Rollovers. . . . . . . . . . . . . . . . . 41 ARTICLE VII ADMINISTRATION . . . . . . . . . . 43 7.1 - The Committee.. . . . . . . . . . . . . . . . . . 43 7.2 - Rights and Duties.. . . . . . . . . . . . . . . . 43 7.3 - Qualified Plans Investment Committee. . . . . . . 45 7.4 - Procedure for Establishing Funding Policy -- Transmittal of Information.. . . . . . . . . . . 46 7.5 - Other Information.. . . . . . . . . . . . . . . . 46 7.6 - Compensation, Bonding, Expenses and Indemnity.. . 46 7.7 - Manner of Administering.. . . . . . . . . . . . . 47 7.8 - Duty of Care. . . . . . . . . . . . . . . . . . . 47 7.9 - Committee Report. . . . . . . . . . . . . . . . . 48 7.10 - Section 404(c) Provisions. . . . . . . . . . . . 48 ARTICLE VIII AMENDMENT AND TERMINATION . . . . . . . 50 8.1 - Amendments. . . . . . . . . . . . . . . . . . . . 50 8.2 - Discontinuance of Plan. . . . . . . . . . . . . . 50 8.3 - Failure to Contribute.. . . . . . . . . . . . . . 51 8.4 - Plan Merger or Consolidation; Transfer of Plan Assets.. . . . . . . . . . . . . . . . . . . . . . 51 ARTICLE IX MISCELLANEOUS . . . . . . . . . . 52 9.1 - Contributions Not Recoverable.. . . . . . . . . . 52 9.2 - Limitation on Participant's Rights. . . . . . . . 52 9.3 - Receipt or Release. . . . . . . . . . . . . . . . 52 9.4 - Alienation. . . . . . . . . . . . . . . . . . . . 52 9.5 - Persons Under Incapacity. . . . . . . . . . . . . 53 9.6 - Governing Law.. . . . . . . . . . . . . . . . . . 53 9.7 - Headings, etc. Not Part of Agreement. . . . . . . 53 9.8 - Masculine Gender Includes Feminine and Neuter.. . 53 9.9 - Instruments in Counterparts.. . . . . . . . . . . 53 9.10 - Reorganization of Company. . . . . . . . . . . . 54 9.11 - Loans to Participants. . . . . . . . . . . . . . 54 9.12 - Top-Heavy Plan Requirements. . . . . . . . . . . 56 9.13 - Voting Rights. . . . . . . . . . . . . . . . . . 56 9.14 - Dividends. . . . . . . . . . . . . . . . . . . . 56 9.15 - Rule 16b-3 Provisions.. . . . . . . . . . . . . 57 EXHIBIT A-1 ACQUISITIONS IN WHICH ONLY ELIGIBILITY SERVICE IS COUNTED. . . . . . . . . . . . . . . . . . 59 EXHIBIT A-2 ACQUISITIONS IN WHICH ELIGIBILITY AND VESTING SERVICE IS COUNTED. . . . . . . . . . . . . . 62 EXHIBIT A-3 ARISTAR EMPLOYEES . . . . . . . . . . . . . . 63 EXHIBIT B-1 SPECIAL RULE FOR FORMER PARTICIPANTS WHO TRANSFER TO WASHINGTON TRUST BANK . . . . . . 64 EXHIBIT B-2 OTHER SALES OR CLOSURES . . . . . . . . . . . 65 EXHIBIT C COMPENSATION LIST . . . . . . . . . . . . . . 66 APPENDIX A ANNUAL ADDITION LIMITS. . . . . . . . . . . .A-1 APPENDIX B TOP-HEAVY PROVISIONS. . . . . . . . . . . . .B-1 GREAT WESTERN EMPLOYEE SAVINGS INCENTIVE PLAN WHEREAS, the Great Western Employee Savings-Stock Bonus Plan was adopted by Great Western Financial Corporation effective as of January 1, 1974; and WHEREAS, this Plan was restated, effective as of January 1, 1984, and constituted a continuation of the Great Western Employee Savings-Stock Bonus Plan established as of January 1, 1974, and was again restated effective as of January 1, 1987, January 1, 1989 and June 1, 1994; NOW, THEREFORE, this Plan has been restated, effective as of January 1, 1997, except as otherwise noted herein. The Company desires to encourage loyalty, efficiency, continuity of service and productivity of its Employees. In order to accomplish these purposes, the Company herein established this Plan to provide incentives and financial security for its Employees and their beneficiaries. The Trust created pursuant to this Plan (incorporated herein by this reference) and its assets shall not be used for, or diverted to, purposes other than the exclusive benefit of Participants or their beneficiaries, as prescribed in Section 401(a) of the Internal Revenue Code of 1986, as amended. It is also intended that this Plan constitute an accident and health plan so that amounts distributed on account of disability are excluded from income under Section 105(c) of the Internal Revenue Code. Except as otherwise provided herein or by law, the terms of the Plan in effect on December 31, 1996 will govern the determination of rights and liabilities under the Plan with respect to events on or before January 1, 1997 and Participants who are not employed after December 31, 1996 shall be entitled to receive only such benefits and rights to benefits as were provided under the terms of the Plan then in effect. Notwithstanding the foregoing, Sections 2.5, 2.8, 3.12 and 6.1 shall apply to former Participants. ARTICLE I TITLE AND DEFINITIONS 1.1 - Title. This Plan is intended to be a profit sharing plan and shall be known as the Great Western Employee Savings Incentive Plan. 1.2 - Definitions. Whenever the following terms are used in this Plan, with the first letter capitalized, they shall have the meanings specified below. "Account" or "Accounts" shall mean Participant Contribution Accounts, Cash or Deferred Accounts, Participant Incentive Accounts, Paysop Accounts, and Rollover Accounts. "Allocation Date" shall mean the last day of each payroll period of the Company. "Anniversary Date" shall mean the last day of each Plan Year. "Beneficiary" or "Beneficiaries" shall mean the person or persons, including a trustee, personal representative or other fiduciary, last designated in writing by a Participant in accordance with the provisions of Section 2.4 to receive the benefits specified hereunder in the event of the Participant's death. If there is no valid Beneficiary designation in effect that complies with the provisions of Section 2.4, or if there is no surviving designated Beneficiary, then the Participant's surviving spouse shall be the Beneficiary. If there is no surviving spouse to receive any benefits payable in accordance with the preceding sentence, the duly appointed and currently acting personal representative of the Participant's estate (which shall include either the Participant's probate estate or living trust) shall be the Beneficiary. In any case where there is no such personal representative of the Participant's estate duly appointed and acting in that capacity within 90 days after the Participant's death (or such extended period as the Committee determines is reasonably necessary to allow such personal representative to be appointed, but not to exceed 180 days after the Participant's death), then Beneficiary or Beneficiaries shall mean the person or persons who can verify by affidavit or court order to the satisfaction of the Committee that they are legally entitled to receive the benefits specified hereunder. In the event any amount is payable under the Plan to a minor, payment shall not be made to the minor, but instead shall be paid (i) to that person's then living parent(s) to act as custodian, (ii) if that person's parents are then divorced, and one parent is the sole custodial parent, to such custodial parent, or (iii) if no parent of that person is then living, to a custodian selected by the Committee to hold the funds for the minor under the Uniform Transfers or Gifts to Minors Act in effect in the jurisdiction in which the minor resides. If no parent is living and the Committee decides not to select another custodian to hold the funds for the minor, then payment shall be made to the duly ap- pointed and currently acting guardian of the estate for the minor or, if no guardian of the estate for the minor is duly appointed and currently acting within 60 days after the date the amount becomes payable, payment shall be deposited with the court having jurisdiction over the estate of the minor. "Board of Directors" and "Board" shall mean the Board of Directors of the Corporation. "Break in Employment" shall mean any termination of employment by reason of resignation, discharge, retirement, incurring a Disability Date, or death. "Business Day" shall generally mean any day on which the New York Stock Exchange is open, provided that a day shall not be a Business Day for a particular Fund if it cannot be traded on that day. "Cash or Deferred Account" shall mean the Account maintained by the Committee for each Participant that is to be credited with Company payments to the Plan attributable to the Participant's Compensation Deferrals that are credited to this Account in accordance with Section 3.2, together with the allocations thereto as required by the Plan. "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. "Committee" shall mean the Executive Management Committee of the Company (formerly the Salary and Benefits Committee), the members of which are appointed by the Board. "Company" shall mean the Corporation and, where the context so warrants, any Participating Affiliate. "Company Stock" shall mean the common stock of the Corporation. "Compensation" shall generally mean the Employee's base compensation, including overtime pay and Compensation Deferrals and amounts deferred under any cafeteria plan described in Section 125 of the Code, but excluding all bonuses, real estate personal production earnings, memo earnings, non-recurring compensation and any non-cash payments. Notwithstanding the foregoing, the specific items included within the definition of Compensation are set forth in Exhibit C. Notwithstanding Section 8.1 of the Plan to the contrary, the Committee may amend Exhibit C and the approval of the Board shall not be required for such an amendment. Notwithstanding the preceding paragraph, the maximum amount of an Employee's Compensation which shall be taken into account under the Plan for any Plan Year shall be $150,000, such amount adjusted at the same time and in the same manner as under Sections 401(a)(17) and 415(d) of the Code. For any Plan Year of fewer than twelve months, this limit shall be reduced to the amount obtained by multiplying the limit by a fraction having a numerator equal to the number of full months in the Plan Year and a denominator equal to twelve. "Compensation Deferrals" shall mean an amount contributed to this Plan by the Company in lieu of being paid to a Participant as salary or wages. Compensation Deferrals shall be made under salary reduction arrangements between each Participant and the Company with respect to salary or wages not yet paid or otherwise available to the Participant as of the date of the Participant's election under the arrangement. "Corporation" shall mean Great Western Financial Corporation, a Delaware corporation, any predecessor corporation, or any successor corporation resulting from merger, consolidation, or transfer of assets substantially as a whole which shall expressly agree in writing to continue this Plan. "Disability Date" shall be the date as of which the Participant commences to receive benefits from a long term disability plan sponsored by the Company (or would commence such benefits, as determined to the satisfaction of the Committee, if the Participant does not participate in a long term disability plan), but no earlier than the 180th day of absence resulting from the disability of the Participant. "Distribution Value Date" shall mean, subject to the rules below, the date as of which a Participant's Accounts are valued for purposes of making distributions and withdrawals and the date as of which the Corporation intends to process distributions, loans and withdrawals. The Distribution Value Date shall generally be the same Business Day of each week (as established by the benefits department of the Corporation), unless the Company is not open for business that Business Day, in which case it shall be the immediately preceding or following Business Day; provided that the benefits department may establish different Distribution Value Dates for loans, withdrawals and distributions. If the benefits department has received all completed election and other forms (and, if applicable, the Participant has terminated employment) sufficiently in advance of a Distribution Value Date for a week, the benefits department will use reasonable efforts to process the distribution, loan or withdrawal for that week. However, neither the Company, the Committee, the benefits department nor any other person guarantees that any distribution, loan or withdrawal will be processed on that Distribution Value Date. The benefits department may establish a cutoff date for this purpose and may change the applicable Distribution Value Date and the cutoff date from time to time. "Eligible Employee" shall mean any Employee of the Company; except that there shall be excluded (1) all leased employees described in Section 414(n) of the Code, (2) those Employees covered by a collective bargaining agreement between the Company and any collective bargaining representative if retirement benefits were the subject of good faith bargaining between such representative and the Company, unless the Employee is a member of a group of employees to whom this Plan has been extended by such a collective bargaining agreement, and (3) individuals engaged in soliciting insurance or real estate sales. "Eligibility Computation Period" shall mean (a) The 12-consecutive month period commencing with the first day that an Employee completes an Hour of Service for the Company or a Related Company; (b) The first 12-consecutive month period coinciding with the Plan Year which includes the first anniversary of the first day that an Employee completes an Hour of Service for the Company or a Related Company; and (c) Succeeding 12-consecutive month periods coinciding with the Plan Year. Notwithstanding the above, if an Employee completes more than 500 Hours of Service during any such Eligibility Computation Period and then fails to complete more than 500 Hours of Service during a subsequent Eligibility Computation Period, then future Eligibility Computation Periods shall be measured from the first day that the Employee completes an Hour of Service following the Eligibility Computation Period in which the Employee has been credited with not more than 500 Hours of Service. In addition, any reemployed individual described in the preceding sentence who terminates employment again shall measure Eligibility Computation Periods from the date of subsequent reemployment if no Hours of Service are performed during an Eligibility Computation Period ending subsequent to the termination. "Employee" shall mean every person employed by the Company, or a Related Company, including any leased employee described in Section 414(n) of the Code and any other individual required to be treated as employed by the Company or a Related Company under Section 414(o) of the Code. "Employee Contribution" shall mean an amount that a Participant elects to have deducted from his salary or wages and contributed to the Participant Contribution Account, after income taxes have been withheld on such amounts. Employee Contributions shall be made by payroll deduction in accordance with arrangements between each Participant and the Company. Section 3.3 contains the provisions under which Employee Contributions may be made. "Employer Contributions" shall mean the sum of the Employer Matching Contributions and Employer Discretionary Contributions. "Employer Discretionary Contribution" shall mean an amount contributed to the Plan by the Company or by a Participatory Affiliate in accordance with Section 3.5. "Employer Matching Contribution" shall mean an amount contributed to this Plan by the Company or by a Participating Affiliate in accordance with Section 3.4. "Entry Date" shall mean the first day of each payroll period of the Company. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. "Fiduciary" shall mean all persons defined in Section 3(21) of ERISA associated in any manner with the control, management, operation, and administration of the Plan or the assets of the Plan, and such term shall be construed as including the term "Named Fiduciary" with respect to those Fiduciaries named in the Plan or who are identified as Fiduciaries pursuant to procedures specified in the Plan. "Highly Compensated Employee" shall mean (a) Any Employee who performs services for the Company or any Related Company during the "current Plan Year" and who (1) was a 5% owner of the Company or any Related Company at any time during the current or prior Plan Year or (2) received compensation from the Company or any Related Company in excess of $80,000 (as adjusted pursuant to Section 415(d) of the Code) in the prior Plan Year. For purposes of this definition "compensation" means Section 415 Compensation (as defined in Appendix A), but including elective or salary reduction contributions to a cafeteria plan, cash or deferred arrangement or tax- sheltered annuity; or (b) Any Employee who separated from service (or was deemed to have separated) prior to the current Plan Year, performs no services for the Company or any Related Company during the Plan Year, and met the description in (a) above for either the separation year or any Plan Year ending on or after the Employee's 55th birthday. "Hour of Service" shall mean an hour (a) for which an Employee is paid, or entitled to payment, for the performance of duties for the Company or a Related Company; (b) for which the Employee is paid or entitled to payment by the Company or a Related Company on account of a period during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty, or leave of absence; or (c) for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by the Company or a Related Company. The following additional rules shall apply in calculating Hours of Service: (1) no more than 501 Hours of Service are required to be credited to an Employee on account of any single period during which the Employee performs no duties; (2) an hour for which an Employee is directly or indirectly paid, or entitled to payment, on account of a period during which no duties are performed is not required to be credited to the Employee if such payment is made or due under a plan maintained solely for the purpose of complying with applicable worker's compensation, unemployment compensation, or disability insurance laws; (3) Hours of Service are not required to be credited for a payment which solely reimburses an Employee for medical or medically related expenses incurred by the Employee; (4) a payment shall be deemed to be made by or due from a Company or a Related Company regardless of whether such payment is made by or due from the Company or a Related Company directly, or indirectly through, among others, a trust fund, or insurer, to which the Company or a Related Company contributes or pays premiums and regardless of whether contributions made or due to the trust fund, insurer, or other entity are for the benefit of particular Employees or on behalf of a group of Employees in the aggregate; (5) no more than one Hour of Service shall be credited with respect to any hour of time; (6) an "Hour of Service" shall include any hour for which an Employee is entitled to payment by a "leasing organization" (as described in Section 414(n)(2) of the Code) for the performance of duties for the Company or a Related Company. The definition of "Hour of Service" set forth herein shall also be construed in accordance with, and shall include any additional periods of service, that may be required by regulations promulgated by the United States Department of Labor. The hour of service rules stated in the Department of Labor Regulations Section 2530.200b-2(b) and -2(c) are herein incorporated by reference. "Investment Committee" shall mean the Qualified Plans Investment Committee of the Company, the members of which are appointed by the Committee. "Investment Funds" shall mean the funds set forth in Section 2.5(a). "Investment Manager" shall mean a Fiduciary designated by the Committee under this Plan to whom has been delegated the responsibility and authority to manage, acquire or dispose of Plan assets (a) who (1) is registered as an investment adviser under the Investment Advisers Act of 1940; (2) is a bank, as defined in that Act; or (3) is an insurance company qualified to perform investment advisory services under the laws of more than one state; and (b) who has acknowledged in writing that he is a Fiduciary with respect to the management, acquisition, and control of Plan assets. "Normal Retirement Age" shall mean a Participant's 65th birthday. "One-Year Break in Service Year" shall mean each twelve month period commencing on the Participant's Severance Date (and anniversaries thereof) if the Employee fails to complete an Hour of Service during the twelve month period. "Participant" shall mean any Eligible Employee who elects to participate in accordance with the provisions of this Plan. "Participant Contribution Account" shall mean the Account maintained for a Participant that is credited with Employee Contributions to the Plan in accordance with Section 3.3 on behalf of such Participant, together with the allocations thereto as required by the Plan. "Participant Incentive Account" shall mean the Account maintained for a Participant that is credited with payments to the Plan by the Company and any Participating Affiliate in accordance with Sections 3.4 and 3.5 on behalf of such Participant, together with the allocations thereto as required by the Plan. Prior to January 1, 1997, the Participant Incentive Account of each Participant who was a Participant on December 31, 1977 contained a Subaccount known as the Allocated Stock Account which was credited with the shares and partial shares of Company Stock, if any, allocated to the Participant's Company Contribution Account as of December 31, 1977 and any stock dividends on Company Stock. Effective January 1, 1997, such Subaccount shall no longer be maintained. "Participating Affiliate" shall mean any Related Company which, by resolution of its board of directors and with the approval of the Corporation, elects to participate in this Plan. Any such resolution of participation by a Participating Affiliate may modify the eligibility requirements for participation in the Plan by an Employee of the Participating Affiliate, so long as any such modification complies with the Code and ERISA and is acceptable to the Corporation. "Paysop Account" shall mean the Account maintained by the Committee for each Participant that was credited with Paysop contributions made before 1987 to the Plan by the Company and any Participating Affiliate, together with the allocations thereto as required by the Plan. The Paysop Accounts are intended to qualify as a tax credit employee stock ownership plan meeting the requirements of Section 409 of the Code. The Paysop Accounts shall be invested in Fund H and shall be primarily invested in Company Stock. See Section 6.8 for additional rules. "Plan" shall mean the Great Western Employee Savings Incentive Plan set forth herein, now in effect or hereafter amended. "Plan Year" shall mean the twelve-consecutive month period ending on December 31. The Plan Year shall be the limitation year for purposes of Section 415 of the Code. "Price Per Share of Company Stock" shall mean the closing price per share of Company Stock on the New York Stock Exchange Composite Transactions for the applicable day or, in the event the applicable day is not a trading day or if such stock was not traded on such day, the next preceding day on which such stock was traded. "Related Company" shall mean (a) each corporation which is a member of a controlled group of corporations (within the meaning of Section 1563(a) of the Code, determined without regard to Section 1563(a)(4) and (e)(3)(C) thereof) of which the Company is a component member, (b) each entity (whether or not incorporated) which is under common control with the Company, as such common control is defined in Section 414(c) of the Code and Regulations issued thereunder, (c) any organization which is a member of an affiliated service group (within the meaning of Section 414(m) of the Code) of which the Company or a Related Company is a member, and (d) any organization which is required by regulations issued under Section 414(o) of the Code to be treated as a Related Company. For the purposes of Article IV of this Plan the phrase "more than 50 percent" shall be substituted for the phrase "at least 80 percent" each place it appears in Section 1563(a)(1) of the Code. The term "Related Company" shall also include each predecessor employer to the extent required by Section 414(a) of the Code. Notwithstanding the foregoing, an organization shall not be considered a Related Company for any purpose under the Plan prior to the date it is considered affiliated under clauses (a) through (d) above. "Rollover Account" shall mean the Account maintained for a Participant that is credited with the amount, if any, received by the Plan in accordance with Section 3.6 as a rollover contribution, as defined in Section 402 of the Code, together with the allocations thereto as required by the Plan. "Section 415 Compensation" for any limitation year shall mean a Participant's wages and all other compensation reported on Form W-2, as adjusted as required by Treasury Regulation Section 1.415-2(d)(11)(i), for that year. Effective January 1, 1998, Section 415 Compensation shall also include any Compensation Deferrals under this Plan, and any amounts deferred under any cafeteria plan described in Section 125 of the Code. "Service" shall mean (a) all periods of employment or reemployment (commencing on the date the Employee completes an Hour of Service) and ending on the Employee's Severance Date; (b) if the Employee quits, is discharged or retires, the period of severance after such Severance Date if he becomes an Employee with twelve months of such Severance Date; (c) notwithstanding (b) above, if the Employee quits, is discharged or retires during the first twelve month of a leave of absence which is included in Service (pursuant to paragraph (a) above), the period of severance after the Employee quits, is discharged, or retires shall be counted as Service only if he becomes an Employee within twelve months after the leave of absence began; and (d) Service in the Armed Forces of the United States or the Public Health Service of the United States as a result of which such Employee is entitled to reemployment rights from the Company pursuant to the provisions of Section 2021 et seq. of Title 38 of the United States Code, provided that the Employee returns to work within the time period specified in such provisions. For this purpose, a period of severance is the period beginning on the Severance Date on which the Employee quits, is discharged or retires and ending on the date he again becomes an Employee. "Severance Date" shall mean the earlier of (i) the date the Employee quits, is discharged, retires or dies (including the occurrence of such an event during an absence described in (ii) below) and (ii) the first anniversary (or such later date provided the Company's leave of absence policy or with respect to military leave, by federal law) of the date the Employee is absent from employment for any other reason, including vacation, holiday, sickness, disability, pregnancy, or birth or adoption of the Employee's child (or child care for a period following such birth or adoption). "Trust" shall mean the Trust which is established to hold and invest contributions under this Plan. "Trustee" (or "Trustees," if more than one is appointed and acting) shall mean the Trustee or Trustees, whether original or successor, appointed under the Trust. "Year of Eligibility Service" means each Eligibility Computation Period during which the Employee is credited with at least 1,000 Hours of Service. "Year of Vesting Service" shall mean each 365 day period of Service completed by the Employee. Non-successive periods of Service shall be aggregated for this purpose. ARTICLE II PARTICIPATION 2.1 - Eligibility Requirements. Participation in the Plan is voluntary. Provided he is then an Eligible Employee, each Employee shall become a Participant in the Plan on the first day of the calendar month (or any Entry Date thereafter) following completion of the later of: (a) one Year of Eligibility Service, (b) the date he becomes an Eligible Employee, or (c) the date the Eligible Employee agrees to participate hereunder. Enrolling in the Plan pursuant to the Voice Response System pursuant to Section 2.8(c) shall signify the Employee's acceptance of the benefits and terms of this Plan and Trust and shall signify the Employee's agreement to make contributions to the Trust pursuant to Article III of this Plan. 2.2 - Participation. Participation of a Participant shall commence as of the date specified in Section 2.1 and shall continue during the Participant's employment with the Company and until the occurrence of a Break in Employment. 2.3 - Reemployment. (a) An Employee who has met the eligibility requirements described herein but who incurs a Break in Employment prior to becoming a Participant and is later reemployed as an Eligible Employee shall become eligible to participate as of the later of (1) the Entry Date following the date he met the eligibility requirements described herein or (2) the date of reemployment. (b) A Participant who incurs a Break in Employment and is later reemployed as an Eligible Employee shall resume participation immediately upon his reemployment. (c) Notwithstanding the foregoing, an Employee who incurs a Break in Employment prior to having a vested interest in an Account attributable to Employer Contributions or Compensation Deferrals under the Plan, shall forfeit all Years of Eligibility Service prior to the break, if during the Break in Employment the Employee incurred a number of One-Year Break in Service Years at least equal to the greater of six or the aggregate number of Years of Eligibility Service the Employee had in the Plan before the Break in Employment. For the purpose of this subsection only and notwithstanding anything to the contrary in the Plan, a One-Year Break in Service Year shall mean any Plan Year in which an Employee fails to complete more than 500 Hours of Service. Notwithstanding any other provision of this subsection, any Employee shall not be credited with more than 501 Hours of Service by reason of such absence. 2.4 - Designation of Beneficiary. Upon forms provided by the Committee, each Employee who becomes a Participant shall designate in writing the Beneficiary or Beneficiaries whom such Employee desires to receive any benefits payable under this Plan in the event of such Employee's death. A Participant may from time to time change his designated Beneficiary or Beneficiaries without the consent of such Beneficiary or Beneficiaries by filing a new designation in writing with the Committee. However, if a married Participant wishes to designate a person other than his spouse as Beneficiary, such designation shall be consented to in writing by the spouse, which consent shall acknowledge the effect of the designation and be witnessed by a Plan representative or a notary public. The Participant may change any election designating a Beneficiary or Beneficiaries without any requirement of further spousal consent if the spouse's consent so provides. Notwithstanding the foregoing, spousal consent shall be unnecessary if it is established (to the satisfaction of a Plan representative) that there is no spouse or that the required consent cannot be obtained because the spouse cannot be located, or because of other circumstances prescribed by Treasury Regulations. The Company, the Committee and the Trustee may rely upon his designation of Beneficiary or Beneficiaries last filed in accordance with the terms of this Plan. Upon the dissolution of marriage of a Participant, any designation of the Participant's former spouse as a Beneficiary, shall be treated as though the Participant's former spouse had predeceased the Participant, unless the Participant executes another Beneficiary designation that complies with this Section 2.4 and that clearly names such former spouse as a Beneficiary. In any case in which the Participant's former spouse is treated under the Participant's Beneficiary Designation as having predeceased the Participant, no heirs or other beneficiaries of the former spouse shall receive benefits from the Plan as a Beneficiary of the Participant except as provided otherwise in the Participant's Beneficiary designation. 2.5 - Investment Options. (a) The Investment Funds maintained in the Trust shall be: Fund A - a Money Market Fund, which shall be invested in fixed income investments, generally of 180 days duration or less. Prior to January 1, 1997, Fund A was a Fixed Income Fund, which was invested in interest bearing savings accounts of the Company and its Participating Affiliates and other investments that guarantee income, including all loans made to Participants pursuant to Section 9.11. Fund B - a Short Term Bond Fund, which shall be invested in short term (i.e., generally with a maturity of five years or less) bonds which are issued and guaranteed by the United States Treasury or another U.S. agency or are of investment grade quality. Fund C - a Bond Fund, which shall be invested in short intermediate and long term (i.e., generally with an emphasis on long term) bonds which are issued and guaranteed by the United States Treasury or another U.S. agency or are of investment grade quality. Fund D - a Balanced Fund, which shall be invested in equity securities, bonds and/or money market funds. Fund E - a S&P 500 Stock Index Fund, which shall be invested in equity securities of companies in the S&P 500. Fund F - a Small Company Stock Fund, which shall be invested in equity securities of companies with modest capitalization. Fund G - a fund invested wholly in Company Stock. There is no limit on the amount of Plan assets that may be invested in Fund G. Fund H - a fund utilized solely for Paysop Accounts. A Participant's Paysop Account (except as provided in the next sentence) will mandatorily be invested in Company Stock. Unless the Committee directs otherwise, cash dividends on Company Stock held in the Paysop Account will mandatorily be invested in short-term investments. Prior to January 1, 1997, the portion of the Paysop Account invested in such fund was referred to as the Paysop Subaccount; such Subaccount shall no longer be maintained after December 31, 1996. Notwithstanding the foregoing, cash being held in the Investment Funds for investment or to build up cash reserves may be invested in short-term or intermediate-term obligations issued or guaranteed by the Federal Government (and including any agency or instrumentality thereof) and in commercial paper other than obligations of the Company, certificates of deposit, or other investments of a short- term or intermediate-term nature. Monies in the Investment Funds may also be invested in mutual funds, common, group, or collective trust funds maintained by the Trustee or other bank or trust company, or similar investment vehicles provided such investment vehicles have investment objectives similar to those described above. Pursuant to Section 7.3, the Investment Committee shall select the specific investments for the Investment Funds, either by selecting a mutual fund, common, group or collective trust fund, or similar vehicle, or by designating an Investment Manager (or Trustee) who will be responsible for investment of monies. (b) Any contribution and loan repayment allocated to a Participant's account hereunder will be initially invested in the Investment Funds (other than Fund H) designated by the Participant in accordance with Section 2.8, provided that such election or designation shall be in increments of one percent (1%). If a Participant does not make an election, his contributions shall be invested in Fund A. (c) Any direction by a Participant for investment of contributions made to his Accounts under this Plan shall be deemed to be a continuing direction until changed. A Participant may change his investment direction for future contributions, but such a change may be made only as of any Entry Date in accordance with Section 2.8. (d) A Participant may direct that the investment of his Accounts (other than his Paysop Account) be redirected into any or all other Investment Fund or Funds (other than Fund H), in one percent (1%) increments, but such a shift may be made only as of any Business Day in accordance with Section 2.8. (e) A Participant's directions under Section 2.5 shall apply to all Accounts (except the Paysop Account). A Participant may not provide different directions for different Accounts. 2.6 - Certain Acquired Companies. There have been certain acquisitions and there are variations in benefits for those Participants affected by the acquisitions which are outlined in Exhibit A to the Plan. The details of such arrangements shall be agreed upon by the Corporation (or subsidiary) and the third party. Notwithstanding Section 8.1, the Committee may amend Exhibit A of the Plan to reflect the particulars of said arrangement (which may include the transfer of accounts to this Plan if in accordance with Sections 401(a)(12) and 414(l) of the Code) and the approval of the Board of Directors shall not be required for such an amendment. 2.7 - Sales of Subsidiaries, Divisions and Branches. In the event of a sale of any branches, divisions, subsidiaries or other operations of this Corporation (or a subsidiary thereof) to a third party, if the Corporation (or subsidiary) and the third party so agree, the Accounts of the Participants in this Plan who transfer employment to the third party may be transferred to a defined contribution plan maintained or to be established by the third party and the Account balances of the Participants may be 100% vested. The asset transfers shall be made in accordance with Sections 401(a)(12) and 414(1) of the Code. Notwithstanding any other provision of this Plan to the contrary, in the event of such a transfer of Account balances with respect to any such Participants, no benefits shall be paid from the Plan to any such Participants. The details of such arrangements shall be agreed upon by the Corporation (or subsidiary) and the third party. Notwithstanding Section 8.1, the Committee may amend Exhibit B of the Plan to reflect the particulars of said arrangement and the approval of the Board of Directors shall not be required for such an amendment. 2.8 - Requirements for Participant Elections. (a) This Section 2.8 sets forth the requirements for Participants (or Beneficiaries) to make elections regarding (1) initial and subsequent elections with respect to investment of contributions into Investment Funds as set forth in Sections 2.5(b) and (c); (2) initial elections, suspensions or changes in Compensation Deferrals pursuant to Section 3.2; (3) initial elections, suspensions or changes of Employee Contributions pursuant to Section 3.3; (4) elections with respect to redirection of Account balances into Investment Funds, pursuant to Section 2.5(d); and (5) loans pursuant to Section 9.11. (b)(1) No written forms are required to make the elections described in subsection (a) or in Section 2.1. In lieu thereof, such elections will be made through a Voice Response System, which is a toll-free telephone line which will permit each Participant to make elections described in this Section 2.8. To give directions, a Participant will be assigned a confidential personal identification number (which can be changed by the Participant) and must identify himself using this personal identification number and his social security number for all telephonic directions. (2) Elections described in Section 2.8(a)(1), (2) and (3) will generally be effective as of the first Entry Date after notice is given (or as soon as practicable thereafter). Notice must be given on the Voice Response System no later than such time and dates established by the Committee from time to time preceding such Entry Date. (3) Elections described in Section 2.8(a)(4) will generally be effective as of the Business Day on which notice is given, provided that notice must be given on the Voice Response System no later than such time established by the Committee from time to time on such Business Day. Otherwise, the election will be effective on the following Business Day. Notwithstanding the foregoing, the transfer into a Fund may be effected on the Business Day following the transfer out of the other Fund. (4) Elections described in Section 2.8(a)(5) will generally be processed on the applicable Distribution Value Date after notice is given and all appropriate elections are made (or as soon as practicable thereafter). Notice must be given on the Voice Response System no later than such time and dates established by the Committee from time to time preceding such date. Proceeds from such transactions will be delivered as soon as practicable thereafter. (5) As soon as practicable after an election is made pursuant to the Voice Response System, the Committee (or its delegate) shall send the Participant or Beneficiary a written confirmation containing the particulars of said election. If the Participant or Beneficiary fails to object, in writing, prior to the Entry Date after the election was effective that the written confirmation is incorrect, the particulars set forth in such written confirmation shall be deemed conclusive evidence of the election made by the Participant or Beneficiary. (6) Reasonable efforts will be used to process elections as set forth above. Notwithstanding the preceding sentence or the foregoing paragraphs (1) - (5), neither the Company, the Committee, the benefits department nor any other person guarantees that any election will be so processed. Each of the elections shall be made in conformance with such procedures as are established by the Committee in its sole and complete discretion. The Committee may adopt new rules or alter any of the foregoing rules as it deems appropriate in its sole and complete discretion including, without limitation, eliminating the Voice Response System, implementing a requirement of written forms, establishing the effective date and notice date for any type of election and limiting the number of elections that may be made by a Participant during any specified period. Any such rule shall be deemed adopted by the Committee if it distributed to Participants generally in a written communication. (c) Subject to applicable law, the Committee may also implement the Voice Response System for any other elections described in the Plan, including without limitation, elections to take a withdrawal or distribution pursuant to Section 6.1 through 6.4. Notwithstanding the preceding sentence, if (x) the Internal Revenue Service issues a favorable determination letter with respect to this Plan (as adopted January 1, 1997) and (y) the Committee implements the Voice Response System for one or more types of distributions or withdrawals, and (z) the Voice Response System informs the Participant of his right to delay any distribution until age 65 and that no distribution can be made prior to age 65 without his consent, then the Participant's application for a distribution or withdrawal on the Voice Response System, together with the cashing of any check subsequently issued by the Plan (whether or not endorsed), shall treated as constituting (1) written consent for purposes of Section 6.1(d), Code Section 411(a)(11) and ERISA Section 203(e) and (2) conclusive proof that any hardship withdrawal pursuant to Section 6.3 is for a financial hardship resulting from a reason described in Sections 6.3(a)(1)-(5) as long as the Participant indicates on the Voice Response System which reason is applicable. ARTICLE III CONTRIBUTIONS 3.1 - Required Contributions by Participants. Every Participant shall be required to make either Compensation Deferrals pursuant to Section 3.2 or Employee Contributions pursuant to Section 3.3. A Participant may make Compensation Deferrals and Employee Contributions during the same pay period provided that, subject to the limitations of Sections 3.7, 3.9, 3.10 and 4.1, the Participant's combined Employee Contributions and Compensation Deferrals for a pay period cannot exceed 14% of the Participant's Compensation for the month. 3.2 - Compensation Deferrals. (a) Election to Defer. Subject to the limitations in Sections 3.7, 3.10 and 4.1, each Participant may elect Compensation Deferrals, in accordance with Section 2.8, in whole percentages from 1% to 14% of the Participant's Compensation for each pay period, plus any whole dollar amount deferred pursuant to the terms of the Great Western PlusPay Benefit Plan. Compensation Deferrals shall be credited to the Participant's Cash or Deferred Account, and shall be made in accordance with rules established by the Committee. (b) Change in Percentage or Suspension of Compensation Deferrals. A Participant's Compensation Deferral percentage will remain in effect, notwithstanding any change in Com- pensation, until the Participant elects to change the percentage. A Participant may elect at any time to suspend all Compensation Deferrals, provided he makes an election in accordance with Section 2.8; such election shall be effective as soon as administratively feasible. A Participant may elect to change or to resume his Compensation Deferrals as of any Entry Date in accordance with Section 2.8. (c) Status of Compensation Deferrals. To make Compensation Deferrals under this Section, the Company will reduce the Participant's Compensation in the amount authorized by the Participant and make a contribution to the Trustee equal to such reduction as of the earliest date on which such amount can reasonably be segregated from the Company's general assets, not to exceed 90 days from the date on which such amount would otherwise have been payable to the Participant in cash. Compensation Deferrals constitute Company contributions under the Plan and are intended to qualify as elective contributions under Code Section 401(k). (d) General Limitations on Compensation Deferrals. As of the last day of the Plan Year, the Committee shall determine the amount of Compensation Deferrals in excess of those permitted under Section 3.8 of the Plan, and any excess shall either be distributed to the Participant responsible for the excess Compensation Deferral or redesignated as an after-tax contribution and accounted for separately under the Plan in accordance with the Code, Treasury Regulations and Section 3.8(d). 3.3 - Employee Contributions. (a) Election to Make Employee Contributions. Subject to the limitations of Sections 3.9 and 4.1, each Participant may elect Employee Contributions on his own behalf, in accordance with Section 2.8, in whole percentages from 1% to 14% of the Participant's Compensation for each pay period plus any whole dollar contributions elected pursuant to the terms of the Great Western PlusPay Benefit Plan; provided that amounts may only be elected under the PlusPay Benefit Plan if the Participant has already deferred the maximum amount of Compensation Deferrals permitted under Section 3.7 for the Plan Year. Such contributions by Participants shall be credited to his Participant Contribution Account, and shall be made in accordance with rules established by the Committee. (b) Change in Percentage or Suspension of Employee Contributions. A Participant's Employee Contribution percentage will remain in effect, notwithstanding any change in Compensation, until the Participant elects to change the percentage. A Participant may elect at any time to suspend all Employee Contributions, provided he makes an election in accordance with Section 2.8; such election shall be effective as soon as administratively feasible. A Participant may elect to change or to resume his Employee Contributions as of any Entry Date in accordance with Section 2.8. (c) Status of Employee Contributions. To make Employee Contributions under this Section, the Company will deduct from the Participant's Compensation the amount authorized by the Participant, and shall withhold income taxes on such amount. The Company will then contribute the amount authorized by the Participant, reduced by withheld income taxes, to the Trustee as of the earliest date on which such amount can reasonably be segregated from the Company's general assets, not to exceed 90 days from the date on which such amount would otherwise have been payable to the Participant in cash. (d) General Limitations on Employee Contributions. As of the last day of the Plan Year, the Committee shall determine the amount of Employee Contributions in excess of those permitted under Section 3.9 of the Plan, and any excess shall be distributed to the Participant responsible for the excess Employee Contribution as provided in Section 3.9(d). 3.4 - Employer Matching Contributions. (a) Amount of Employer Matching Contribution. Subject to the limitations of Section 3.9, 3.10 and 4.1, for each pay period the Company shall make an Employer Matching Contribution to the Plan, which when added to the forfeitures in excess of Plan expenses described in Section 3.11(b), is equal to 50% of the Compensation Deferrals and Employee Contributions for the pay period of each Participant; provided that the maximum Employer Matching Contribution made on behalf of any Participant for a pay period shall not exceed 3% of such Participant's Compensation paid during such pay period. The Company shall pay to the Trustee the Employer Matching Contribution as soon as practicable after the applicable Allocation Date and in any event within the time prescribed by law, including extensions of time, for the filing of the Company's federal income tax return for the Company's taxable year ending with or within the Plan Year to which the contribution relates. (b) Allocation of Employer Matching Contributions. The Employer Matching Contributions for any pay period shall be allocated to the Participant Incentive Account maintained for the Participant on behalf of whom the contribution under Section 3.4(a) was made. 3.5 - Employer Discretionary Contributions. (a) Amount of Employer Discretionary Contribution. Subject to the limitations of Sections 3.9, 3.10 and 4.1, for each Plan Year the Company may make an Employer Discretionary Contribution in the amount determined by the Board of Directors, but not to exceed the amount of Employer Matching Contributions made by the Company for the Plan Year. The Company shall pay to the Trustee the Employer Discretionary Contribution by the last date permitted in Section 3.4(a) for payments of Employer Matching Contributions. (b) Allocation of Employer Discretionary Contributions. The Employer Discretionary Contribution, if any, made for a Plan Year shall be allocated, as of the Anniversary Date of such Plan Year, to the Participant Incentive Account of each Participant who is a Participant on such Anniversary Date on the basis of the ratio of such Participant's Employee Contributions or Compensation Deferrals which are matched by Employer Matching Contributions less any withdrawals and any distributions from any Account during such Plan Year to the total of all such amounts for all matched Employee Contributions and Compensation Deferrals net of all withdrawals for each Plan Year. 3.6 - Rollover Contributions. (a) An Eligible Employee, regardless of whether he has satisfied the participation requirements of Section 2.1 who has received a distribution from a plan which meets the requirements of Section 401(a) of the Code may, in accordance with procedures approved by the Committee, transfer the distribution received from the other plan to the Trust; provided that the distribution is eligible for rollover treatment and exclusion from the gross income of the Participant in accordance with the Code. (b) The Committee shall develop such procedures, and may require such information from an Employee desiring to make such a transfer, as it deems necessary or desirable to determine that the proposed transfer will meet the requirements of this Section. Upon approval by the Commit- tee, the amount transferred shall be deposited in the Trust and shall be credited to an account which shall be referred to as the "Rollover Account." Such account shall be 100% vested in the Employee and shall share in income allocations as provided in the Plan, but shall not share in Company contribution allocations. Upon termination of employment, the total amount of the Employee's Rollover Account shall be distributed in accordance with Article VI. (c) Upon such transfer by an Eligible Employee who has not yet completed the participation requirements of Section 2.1, his Rollover Account shall represent his sole interest in the Plan until he becomes a Participant. 3.7 - Section 402(g) Limit on Compensation Deferrals. (a) Compensation Deferrals made on behalf of any Participant under this Plan and all other plans (which are described in Section 3.7(c)) maintained by the Company or a Related Company shall not exceed the limitation under Code Section 402(g)(1) for the taxable year of the Participant, as adjusted annually under Section 402(g)(5) of the Code, and shall be effective as of January 1 of each calendar year. (b) In the event that the dollar limitation provided for in Section 3.7(a) is exceeded, the Participant is deemed to have requested a distribution of the excess amount by the first March 1 following the close of the Participant's taxable year, and the Committee shall distribute such excess amount, and any income allocable to such amount, to the Participant by April 15th. In determining the excess amount distributable with respect to a Participant's taxable year, excess Compensation Deferrals previously distributed for the Plan Year beginning in such taxable year shall reduce the amount otherwise distributable under this Paragraph (b). (c) In the event that a Participant is also a participant in (1) another qualified cash or deferred arrangement as defined in Section 401(k) of the Code, (2) a simplified employee pension, as defined in Section 408(k) of the Code, or (3) a salary reduction arrangement, within the meaning of Section 3121(a)(5)(D) of the Code, and the elective deferrals, as defined in Section 402(g)(3) of the Code, made under such other arrangement(s) and this Plan cumulatively exceed the dollar limit under Section 3.7(a) for such Participant's taxable year, the Participant may, not later than March 1 following the close of his taxable year, notify the Committee in writing of such excess and request that the Compensation Deferrals made on his behalf under this Plan be reduced by an amount specified by the Participant. The Committee may then determine to distribute such excess in the same manner as provided in Section 3.7(b). 3.8 - Section 401(k) Limitations on Compensation Deferrals. (a) The Committee will estimate, as soon as practical before the close of the Plan Year and at such other times as the Committee in its discretion determines, the extent, if any, to which Compensation Deferral treatment under Section 401(k) of the Code may not be available to any Participant or class of Participants. In accordance with any such estimate, the Committee may modify the limits in Section 3.2(a), or set initial or interim limits, for Compensation Deferrals relating to any Participant or class of Participants. These rules may include provisions authorizing the suspension or reduction of Compensation Deferrals above a specified dollar amount or percentage of Compensation. (b) For each Plan Year, an actual deferral percentage will be determined for each Participant equal to the ratio of the total amount of the Participant's Compensation Deferrals allocated under Section 3.2(a) for the Plan Year divided by the Participant's Section 415 Compensation (including Compensation Deferrals and amounts deferred under Code Section 125) in the Plan Year. For purposes of the preceding sentence, the Company, in its sole discretion, may treat all or any part of its Employer Contributions as Compensation Deferrals to the extent permitted by Treasury Regulations, provided that such Employer Contributions (together with any gains or losses attributable to such amounts) must be non-forfeitable and subject to the provisions of the Plan pertaining to distributions of amounts from Compensation Deferral Accounts, and must be accounted for separately to the extent required by Treasury Regulations. An Employee's Section 415 Compensation taken into account for this purpose shall be limited to Section 415 Compensation received during the Plan Year while the Employee is a Participant. Except as otherwise provided in this Section 3.8(b), (1) each Eligible Employee who would be a Participant except for the fact such Eligible Employee does not agree to participate shall be considered a Participant for purposes of Section 3.8 and (2) with respect to Participants who have made no Compensation Deferrals under this Plan, such actual deferral percentage will be zero. (c) The average of the actual deferral percentages for Highly Compensated Employees for the current Plan Year ("High Average") when compared with the average of the actual deferral percentages for non-Highly Compensated Employees for the prior Plan Year ("Low Average") must meet one of the following requirements: (1) The High Average is no greater than 1.25 times the Low Average; or (2) The High Average is no greater than two times the Low Average, and the High Average is no greater than the Low Average plus two percentage points. (d) At the end of a Plan Year, a Participant or class of Participants has excess Compensation Deferrals, then the Committee may elect, at its discretion, to pursue any of the following courses of action or any combination thereof: (1) Within 2-1/2 months after the end of the Plan Year, excess Compensation Deferrals for a Plan Year may be redesignated as after-tax contributions and accounted for separately pursuant to Section 3.2(d). Excess Compensation Deferrals, however, may not be redesignated as after-tax employee contributions with respect to a Highly Compensated Employee to any extent that such redesignated after-tax employee contributions would exceed the limits of Section 3.3 or 3.9 when combined with the Employee Contributions of that Employee for the Plan Year. Adjustments to withhold any federal, state, or local taxes due on such amounts may be made by the Company against Compensation yet to be paid to the Participant during that taxable year. (2) Excess Compensation Deferrals, and any earnings attributable thereto through the end of the Plan Year, may be returned to the Company employing the Participant, solely for the purpose of enabling the Company to withhold any federal, state, or local taxes due on such amounts. The Company will pay all remaining amounts to the Participant within the 2-1/2 month period following the close of the Plan Year to which the excess Compensation Deferrals relate to the extent feasible, but in all events no later than 12 months after the close of such Plan Year. (3) The Company, in its discretion, may make a contribution to the Plan, which will be allocated as a fixed dollar amount among the Accounts of non-Highly Compensated Employees who have met the requirements of Section 2.1. Any such excess Compensation Deferrals recharacterized as after-tax contributions or distributed from the Plan with respect to a Participant for a Plan Year shall be reduced by any amount previously distributed to such Participant under Section 3.7 for the Participant's taxable year ending with or within such Plan Year. (e) The amount of the excess Compensation Deferrals will be determined by the Committee by reducing the Compensation Deferrals of the Highly Compensated Employee(s) with the highest Compensation Deferrals to the extent required to enable the Plan to meet the limits in (c) above or to cause the Compensation Deferrals of such Employee(s) to equal the Compensation Deferrals of the Highly Compensated Employee(s) with the next-highest Compensation Deferrals. The process in the preceding sentence shall be repeated until the Plan satisfies the limits in (c) above. The earnings attributable to excess Compensation Deferrals will be determined in accordance with Treasury Regulations. The Committee will not be liable to any Participant (or his Beneficiary, if applicable) for any losses caused by in- accurately estimating or calculating the amount of any Participant's excess Compensation Deferrals and earnings attributable to the Compensation Deferrals. (f) If the Committee determines that an amount to be deferred pursuant to the election provided in Section 3.2 would cause Company contributions under this and any other tax-qualified retirement plan maintained by any Company to exceed the applicable deduction limitations contained in Section 404 of the Code, or to exceed the maximum Annual Addition determined in accordance with Section 4.1, the Committee may treat such amount in accordance with the rules in Section 3.8(a) hereof. (g) In the discretion of the Committee, the tests described in this section may be applied by aggregating the Plan with any other defined contribution plans permitted under the Code. 3.9 - Section 401(m) Limitations on Employee Contributions and Employer Contributions. (a) The Committee will estimate, as soon as practical, before the close of the Plan Year and at such other times as the Committee in its discretion determines, the extent, if any, to which Employee Contributions and/or Employer Contributions may not be available to any Participant or class of Participants under Code Section 401(m). In accordance with any such estimate, the Committee may modify the limits in Section 3.3 and/or percentages on Sections 3.4 and 3.5 or set initial or interim limits or percentages, for Employee Contributions and/or Employer Contributions relating to any Participant or class of Participants. After determining the amount of excess Compensation Deferrals, if any, under subsections 3.8(a) and (b), the Committee shall determine the aggregate contribution percentage under (b) below. (b) For each Plan Year, a contribution percentage will be determined for each Participant equal to the ratio of the total amount of the Participant's Employee Contributions, Employer Matching Contributions, Employer Discretionary Contributions and forfeitures allocated under Sections 3.3, 3.4, 3.5 and 3.11 for the Plan Year and any Compensation Deferrals of the Participant redesignated as after-tax contributions under Section 3.2(d) and 3.8(d) in the Plan Year in which such excess Compensation Deferrals would be included in the gross income of the Participant divided by the Participant's Section 415 Compensation (including Compensation Deferrals and amounts deferred under Code Section 125) in the Plan Year. For purposes of the preceding sentence, the Company, in its sole discretion, may treat all or any part of its Compensation Deferrals as Employer Matching Contributions to the extent permitted by Treasury Regulations. If Compensation Deferrals are treated as Employer Matching Contributions, the Plan must satisfy Section 3.8(b) both by counting such amounts as Compensation Deferrals and by excluding such amounts as Compensation Deferrals. Furthermore, any Employer Contributions treated as Compensation Deferrals under Section 3.8(b) shall not be used to satisfy the requirements of this Section 3.9(b), except as otherwise permitted by the Code or Treasury Regulations. An Employee's Section 415 Compensation taken into account for this purpose shall be limited to Section 415 Compensation received during the Plan Year while the Employee is a Participant. Except as otherwise provided in this Section 3.9(b), (1) each Eligible Employee who would be a Participant except for the fact such Eligible Employee does not agree to participate shall be considered a Participant for purposes of Sections 3.9 and (2) with respect to Participants who have made no Employee Contribu- tions and for whom there were no Employer Contributions under this Plan, such contribution percentage will be zero. (c) The average of the contribution percentages for Highly Compensated Employees for the current Plan Year ("High Average") when compared with the average of the contribution percentages for non-Highly Compensated Employees for the prior Plan Year ("Low Average") must meet one of the following requirements: (1) The High Average is no greater than 1.25 times the Low Average; or (2) The High Average is no greater than two times the Low Average, and the High Average is no greater than the Low Average plus two percentage points. (d) If, at the end of a Plan Year, a Participant or a class of Participants has excess contributions, then the Committee may elect, at its discretion, to pursue any of the following courses of action or any combination thereof: (1) Excess Employer Contributions (and any earnings attributable thereto through the end of the Plan Year) attributable to excess Compensation Deferrals under Section 3.7 or 3.8 or attributable to excess Employee Contributions, may be forfeited. (2) Employer Contributions (and any earnings attributable thereto through the end of the Plan Year) that are not vested may be forfeited. (3) Excess Employee Contributions and excess Employer Contributions (and any earnings attributable to such excess amounts through the end of the Plan Year) may be distributed to the Participant within the 2-1/2 month period following the close of the Plan Year to the extent feasible, and in all events no later than 12 months after the close of Plan Year. The Company may distribute unmatched Employee Contributions before distributing any matched Employee Contributions or may distribute (or forfeit pursuant to clause (2) above) Employer Contributions prior to distributing any Employee Contributions. (4) Notwithstanding the foregoing, the condition in the next sentence must be met if there are Employer Contributions allocated to a Participant which are attributable to excess Compensation Deferrals under Sections 3.7 or 3.8 or attributable to excess Employee Contributions. In such case, Employer Contributions remaining in the Plan allocated to the Participant after satisfying Section 3.9 cannot exceed the amount which may be allocated under Sections 3.4 or 3.5 when taking into account only those Compensation Deferrals and Employee Contributions remaining in the Plan after satisfying Sections 3.7, 3.8 and 3.9. Any such excess Employer Contributions (and earnings attributable thereto) must be forfeited or returned pursuant to clauses (1), (2) or (3) above. (e) The amount of excess Employee Contributions and Employer Contributions shall be determined by the Committee by reducing the contributions of the Highly Compensated Employee(s) with the highest contributions to the extent required to enable the Plan to meet the limits in (c) above or to cause the contributions of such Employee(s) to equal the contributions of the Highly Compensated Employee(s) with the next-highest contributions. The process in the preceding sentence shall be repeated until the Plan satisfies the limits in (c) above. The earnings attribut- able to excess contributions will be determined in accor- dance with Treasury Regulations. The Committee will not be liable to any Participant (or to his Beneficiary, if applicable) for any losses caused by inaccurately estimating or calculating the amount of any Participant's excess contributions and earnings attributable to the contributions. (f) The tests of Sections 3.8(c) and 3.9(c) shall be met in accordance with the prohibition against the multiple use of the alternative limitation under Code Section 401(m)(9). In the event such limitations are violated, corrections shall be made in accordance with Section 3.9(d). 3.10 - Limits on Employer Contributions and Compensation Deferrals. In no event shall the aggregate contribution for any Plan Year made by the Company and any Participating Affiliates under Sections 3.2, 3.4 and 3.5, and under any other profit sharing or stock bonus plan(s) maintained by the Company or a Participating Affiliate, exceed (1) 15% of the Compensation paid or accrued to all Participants, plus the amount of any "unused pre-87 limitation carryforwards" available under Section 404(a)(3)(A) of the Code or (2) the profits for such Plan Year or the accumulated profits of the Company or Participating Affiliates. The Compensation taken into account for purposes of clause (1) of the preceding sentence shall be Compensation paid or accrued during the Company's taxable year ending with or within the Plan Year to which the Company contribution relates. For purposes of clause (2) of the second preceding sentence, profits earned that year shall be determined in accordance with sound accounting practice as consistently applied by the Company before reduction by federal and state taxes based on or measured by income and before reduction by the contribution payable for the year during which such profits are being determined. In the event that the Company or any Participating Affiliate is prevented in any year from making the above contribution which it otherwise would have made by reason of not having the current or accumulated profits or because such profits are less than the contribution which it otherwise would have made, then so much of the contribution which it was so prevented from making may be made, for the benefit of the Participants of such Company or Participating Affiliate, by the Company or other Participating Affiliate (where each is not so limited) to the extent of the current or accumulated profits of the Company and such other Participating Affiliate, except that such contribution by the Company and each other Participating Affiliate shall be limited to that portion of its total current and accumulated profits remaining after adjustment for its contribution deductible without regard to the provision of this paragraph which the total prevented contribution bears to the total current and accumulated profits of the Company and all such Participating Affiliates remaining after adjustment for all contributions deductible without regard to this paragraph. 3.11 - Allocation of Forfeitures. Subject to Section 5.2(d) and 6.6, as of each Allocation Date, any amounts credited to a former Employee's Participant Incentive Account which have been forfeited (as set forth in Section 5.2) shall be applied in accordance with Section 3.12(b). Any excess Forfeitures shall be credited against the Employer Matching Contributions of the Company set forth in Section 3.4(a) and allocated in accordance with Section 3.4(b). 3.12 - Valuation of Accounts. (a) Allocation of Investment Income to All Accounts. As of each Business Day, investment income of each Investment Fund shall be allocated to each Account within such Investment Fund by crediting each such Account with an amount determined as follows: (1) The amount of any realized or unrealized gains or losses and income (net of expenses directly attributable to that Investment Fund) of such Investment Fund which has not previously been allocated, multiplied by (2) A fraction, the numerator of which is the value of such Account within the Investment Fund on the last preceding Business Day minus any amount distributed or withdrawn (including amounts transferred to a different Investment Fund) therefrom since the last preceding Business Day, and the denominator of which is the sum total of all such amounts for each Account within such Investment Fund. For this purpose, the value of the Account on any day shall not include amounts allocated as of that day if the amount has not yet been transferred to the Plan and credited to the Account for investment purposes. The Committee may implement the foregoing allocations by adopting a unit accounting methodology for one or more Investment Funds. (b) Allocation of Plan Expenses. (1) All expenses of the Plan (excluding expenses directly attributable to an Investment Fund) shall be paid, to the extent available, from Forfeitures available under the Plan. To the extent that such expenses exceed Forfeitures, the excess expenses shall be charged to Accounts on an equitable basis by the Committee, provided that they are generally allocated on the basis of Account balances. (2)(A) The Committee may elect to allocate Plan expenses in accordance with this subsection (b)(2), rather than subsection (b)(1). The Committee may adopt rules and regulations to implement this subsection (b)(2). (B) All expenses of the Plan (excluding expenses directly attributable to an Investment Fund) shall be apportioned between Participants who are Employees as of the applicable Allocation Date and Participants who are former employees as of the applicable Allocation Date based on the ratio of the sum of the Account balances of all Employees as to the sum of the Account balances of all former Employees. (C) The expenses apportioned to current Employees who are Participants shall be paid, to the extent available, from Forfeitures available under the Plan. To the extent that such expenses exceed Forfeitures, the excess expenses shall be charged to Accounts of Employees in proportion to the ratio that amount previously allocated and remaining credited to each such Employee's Account bears the total accumulated amounts previously allocated and remaining credited to all such Accounts of Employees. (D) The expenses apportioned to former Employees who are Participants shall be charged to Accounts of former Employees in proportion to the ratio that amount previously allocated and remaining credited to each such former Employee's Account bears the total accumulated amounts previously allocated and remaining credited to all such Accounts of former Employees. (c) The allocations required by this Section 3.12 shall be made before the allocations required by any other Section are made. (d) Notwithstanding anything to the contrary herein, if the Committee determines that an alternative method of allocating earnings and losses would better serve the interests of Participants and Beneficiaries or could be more readily implemented, the Committee may substitute such alternative; provided that any such alternative method must result in Plan earnings being allocated on the general basis of Account balances. 3.13 - Notification of Participants. At least annually, the Committee shall notify each Participant with respect to the status of such Participant's Accounts. Such notification shall in any event be made as soon as practicable after the end of each Plan Year. The total amounts so credited to each Participant's Accounts shall represent each Participant's contingent share of the Trust as of such date. Such allocation and notification shall not vest in any Participant any right, title or interest in the Trust, except to the extent, at the time or times, and upon the terms and conditions set forth herein. Neither the Company, the Trustee, the Investment Committee, nor the Committee to any extent warrants, guarantees or represents that the value of any Participant's Accounts at any time will equal or exceed the amount previously allo- cated or contributed thereto. ARTICLE IV LIMITATION ON ANNUAL ADDITIONS 4.1 - Section 415 Limitations. Notwithstanding anything else contained herein, the Annual Additions, to all the Accounts of a Participant shall not exceed the lesser of $30,000 (or, if greater, 1/4 of the defined benefit dollar limitation in effect under Section 415(b)(1) of the Code for the limitation year) or 25% of the Participant's Section 415 Compensation from the Company and all Related Companies during the Plan Year, in accordance with the provisions of Appendix A attached hereto. ARTICLE V VESTING 5.1 - Fully Vested Accounts. A Participant's Cash or Deferred Account, Participant Contribution Account, Paysop Account and Rollover Account shall be 100% vested and nonforfeitable. 5.2 - Participant Incentive Account. (a) The interest of each Participant in his Participant Incentive Account shall vest and become nonforfeitable up to a maximum of 100% as follows: (1) A Participant shall become 100% vested if, while an Employee, he attains age 55, incurs a Disability Date, or dies; or (2) A Participant shall become vested in accordance with the following schedule: Years of Vesting Service Percentage Vested less than 2 0% 2 30% 3 60% 4 or more 100% (b) If a Participant incurs a One-Year Break in Service Year before he has a vested interest in his Accounts (excluding his Participant Contribution Account and Rollover Account), in determining his Years of Vesting Service under this Section 5.2, all Years of Vesting Service earned before the One-Year Break in Service Year shall be forfeited if the consecutive number of One-Year Break in Service Years equals or exceeds six. (c) If a Participant incurs a Break in Employment which is followed by six consecutive One-Year Break in Service Years and is subsequently reemployed, no Year of Vesting Service after such six consecutive One-Year Break in Service Years shall be taken into account in determining the vested percentage in a Participant's Incentive Account accrued up to any such One-Year Break in Service Year. (d) When a Participant ceases to participate and receives a complete distribution of his Accounts, such portion of his Participant Incentive Account as of the coinciding or next following Allocation Date as is not vested shall be forfeited and allocated in the manner provided in Section 3.11. For purposes of the preceding sentence, a Participant who ceases to participate in the Plan and whose nonforfeitable percentage in his Participant Incentive Account is zero, shall be deemed to have received a complete distribution of the nonforfeitable portion of his Participant Incentive Account. If a former Participant who has suffered a forfeiture on account of his termination of participation in accordance with the preceding sentences is reemployed as an Employee by the Company before incurring six consecutive One-Year Break in Service Years and repays to the Plan the entire amount previously distributed to him prior to 60 months after such reemployment, any amounts so forfeited (unadjusted for any increase or decrease in the value of Trust assets subsequent to the Anniversary Date on which the forfeiture occurred) shall be reinstated to the Participant's Incentive Account within a reasonable time after such repayment. (Prior to July 1, 1994, to receive a reinstatement the Participant must meet all of the conditions of the preceding sentence except that he must repay all of his Employee Contributions and Compensation Deferrals paid with respect to Employer Contributions which were forfeited; the Participant shall not be entitled to repay any other amounts paid from the Plan.) Such reinstatement shall be made from forfeitures of Participants occurring during the Plan Year in which such reinstatement occurs to the extent such forfeitures are attributable to contributions by the same Company (or a Company that is a Related Company to that Company) and earnings on such contributions; provided, however, if such forfeitures are not sufficient to provide such reinstatement, the reinstatement shall be made from the current year's contribution by that Company to the Plan. If a Participant ceases to participate and does not receive a complete distribution of his Accounts, such portion of his non-vested Participant Incentive Account as of the Allocation Date which coincides with the end of the sixth consecutive One- Year Break in Service Year (without being previously reemployed) shall be forfeited and allocated in the manner provided in Section 3.11. (e) If before he was fully vested, a Participant has previously received any in-service withdrawal from his Participant Incentive Account, then his vested interest in his Participant Incentive Account shall be equal to the sum of (1) and (2), multiplied by (3), minus (1), where said (1), (2) and (3) are determined as follows: (1) the sum of all such amounts previously received from such account. (2) the latest balance of such account. (3) the most recent vested percentage applicable to the Participant in accordance with the above schedule. The foregoing rules shall also apply to a Participant if both of the following conditions are met: (i) before he was fully vested, he previously received any amount from his Participant Incentive Account due to a prior termination of employment and (ii) prior to July 1, 1994, he made the repayments described in subsection (d) above and thus received a restoration of an otherwise forfeitable amount pursuant to Section 5.2(d). (f) Notwithstanding the preceding subsections, in the case of a Participant who incurs a Break in Employment prior to the first Plan Year beginning after 1984, the word "one" shall be substituted for "six" in subsections (b), (c) and/or (d) if such substitution results in the following conditions being met: in the case of subsection (b), the described forfeiture would have occurred prior to the first Plan Year beginning after 1984; or, in the case of subsections (c) and (d), a One-Year Break in Service Year would have occurred before the first Plan Year beginning after 1984. ARTICLE VI DISTRIBUTIONS 6.1 - Distribution of Benefits. (a) Except as provided below, benefits shall become distributable to a Participant or his Beneficiary (in the case of death) upon a Break in Employment and shall be distributed as soon as practicable following the Participant's Break in Employment. (b) Subject to subsection (d), the amount of the benefits distributable to a Participant upon a Break in Employment shall be the amounts credited to his Participant Contribution Account, Cash or Deferred Account, Paysop Account, and Rollover Account as of the applicable Distribution Value Date plus the vested portion of the amount credited to his Participant Incentive Account as of the applicable Distribution Value Date. (c) (i) The normal form of distribution of a Participant's Paysop Account, if any, and the vested portion of any other Account invested in Fund G shall be a single distribution in full shares of Company Stock (plus cash representing any fractional shares). The Participant shall receive that number of shares of Company Stock equal to the balance in Paysop Account and vested portion of his Fund G Account divided by the Price Per Share of Company Stock, in each case as determined on the applicable Distribution Value Date. In lieu thereof, subject to clause (iii) below, a Participant may elect to receive a distribution of his Paysop Account and the vested portion of any other Account invested in Fund G as follows: (1) entirely in cash, in which case the Participant shall receive the Account balance on the applicable Distribution Value Date, or (2) in accordance with Section 6.1(c)(iii). (ii) Except for amounts paid under Section 6.1(c)(i), the normal form of distribution of a Participant's Participant Contribution Account, Cash or Deferred Account, Rollover Account and the vested interest in his Participant Incentive Account shall be a cash lump sum. (iii) If the nonforfeitable balance in the Participant's Accounts exceeds $3,500, the Participant may elect that all or a part of his Accounts be distributed in the form of approximately equal annual (or monthly or quarterly) installments (to be paid over a period not to exceed the lesser of the Participant's life expectancy or 15 years). No Beneficiary shall be allowed to elect installment payments. The amount distributed on each installment date during a Plan Year shall equal the entire balance as of the prior Plan Year end (excluding any portion of the Account paid as a lump sum) divided by the number of installments left in the payment period. Each installment shall be made, on a prorata basis, from each of the Investment Funds. Finally, a Participant who elects installments may elect a lump sum on the remaining balance at any time. (d) Notwithstanding the foregoing and subject to Section 2.8(c), if the nonforfeitable balance in the Participant's Accounts exceeds $3,500, distribution shall commence upon a Break in Employment only if the Participant (or Beneficiary if the Beneficiary was the Participant's spouse at the time the Participant's death) gives written consent to such a distribution; otherwise, distribution shall commence as soon as practicable after the applicable Distribution Value Date after the Participant gives written consent to a distribution of the nonforfeitable balance of his Accounts, but in no event later than the date prescribed by Section 6.7(b). A Beneficiary who was not the Participant's spouse at the time of the Participant's death shall not be permitted to defer benefits in accordance with the preceding sentence. An explanation of the Participant's right to defer distribution of the nonforfeitable balance of his Accounts shall be provided to the Participant no less than 30 and no more than 90 days before the date such distribution is to be made (consistent with such regulations as the Secretary of Treasury may prescribe). Such distribution may commence less than 30 days after the notice described in this subsection is given, provided that: (1) the Committee clearly informs the Participant that the Participant has the right to a period of at least 30 days after receiving the notice to consider the decision of whether or not to elect a distribution (and, if applicable, a particular distribution option), and (2) the Participant, after receiving the notice, affirmatively elects an immediate distribution. (e) If a terminating Participant consents to immediate distribution, the nonvested portion of his Accounts shall be forfeited in the year of distribution and his rights with respect to the forfeited portion shall be governed by Section 5.2(d). 6.2 - Withdrawals of Employee Contributions. A Participant may withdraw part or all of his Participant Contribution Account as of the applicable Distribution Value Date. Such a withdrawal may be made only once each Plan Year. Unless the Committee provides otherwise, such withdrawal shall be made by written notice filed with the Committee (as such time established by the Committee from time to time) prior to the intended Distribution Value Date. Withdrawals from a Participant's Contribution Account shall be made on all amounts of each classification below (listed in descending order) before amounts may be withdrawn from the next lower classification; (a) The Participant's Employee Contributions made before 1987 (and accounted for separately), less any prior withdrawals made from these amounts; and (b) The Participant's Employee Contributions made after 1986, and any earnings attributable to all Employee Contributions. Notwithstanding anything to the contrary in this Section 6.2, distributions pursuant to this Section 6.2 shall be made pro rata from the Investment Funds; distributions from Fund G shall be made in cash. 6.3 - Hardship Withdrawals. (a) Subject to the approval of the Committee and guidelines promulgated by the Committee, withdrawals from the vested portion of the Participant Accounts (other than the Paysop Account) may be permitted to meet a financial hardship resulting from: (1) Uninsured medical expenses previously incurred by the Participant, or the Participant's spouse or dependent or necessary to obtain such medical care; (2) The purchase (excluding mortgage payments) of a principal residence of the Participant; (3) The payment of tuition for the next 12 months of post-secondary education for the Participant, or the Participant's spouse, children or dependents; (4) The prevention of eviction of the Participant from his principal residence, or foreclosure on the mortgage of the Participant's principal residence; and (5) Any other event described in Treasury Regulations or rulings as an immediate and heavy financial need and approved by the Company as a reason for permitting distribution under this Section. The Committee shall determine, in a non-discriminatory manner, whether a Participant has a financial hardship. A distribution may be made under this Section only if such distribution does not exceed the amount required to meet the immediate financial need created by the hardship (including taxes or penalties reasonably anticipated from the distribution) and is not reasonably available from other resources of the Participant. (b) The withdrawal amount shall not in any event exceed the excess of (1) the vested portion of the Participant Accounts (excluding the Paysop Account) as of the applicable Distribution Value Date following the Committee's acceptance of the Participant's application for a hardship withdrawal over (2) the amount of any outstanding loan from the Plan as of such day. In addition, the withdrawal amount from the Cash or Deferred Account shall not exceed the value of the Participant's Compensation Deferrals to such Accounts, less previous withdrawals and excluding earnings. Notwithstanding the foregoing, any distribution under this Section may include earnings accrued to the Participant's Cash or Deferred Account prior to 1989. Payment of the withdrawal shall be in a single sum as soon as practicable following the applicable Distribution Value Date. Notwithstanding anything to the contrary in this Section 6.3, distributions pursuant to this Section 6.3 shall be made pro rata from the Investment Funds; distributions from Fund G shall be made in cash. Distributions shall be made first from the Participant Contribution Account, then the Participant Incentive Account, then the Rollover Account and finally the Cash or Deferred Account. (c) If a Participant withdraws any amount from his Cash or Deferred Account pursuant to this Section, he must agree in writing that he shall be unable to elect that any Compensation Deferrals, Employee Contributions or any other employee contributions (excluding mandatory employee contributions to a defined benefit plan) be made on his behalf under this Plan or under any other plan maintained by the Company or a Related Company until one year after receipt of the withdrawal. For purposes of the preceding sentence, a plan includes any qualified plan or nonqualified plan of deferred compensation and any stock purchase or stock option plan, but does not include cafeteria plans or any other health or welfare benefit plans. In addition, a Participant who withdraws any amount from his Cash or Deferred Account pursuant to this Section shall be unable to elect any Compensation Deferrals under this Plan or under any other plan maintained by the Company or a Related Company for the Participant's taxable year immediately following the taxable year of the withdrawal to any extent that such Compensation Deferral would exceed the applicable limit under Section 402(g) of the Code for such taxable year, reduced by the amount of such Participant's Compensation Deferrals for the taxable year of the withdrawal. (d) A Participant shall not be permitted to make any withdrawals from his Cash or Deferred Account pursuant to this section until he has obtained all distributions, other than hardship distributions, and all non-taxable loans currently available under all qualified profit sharing and retirement plans maintained by the Company or a Related Company. 6.4 - Withdrawals from Accounts Upon Attaining Age 59-1/2. After attaining age 59-1/2, a Participant may elect to withdraw vested amounts, in cash, from his any or all of his Accounts, other than his Paysop Account. No more than one withdrawal may be made in any Plan Year from an Account under this section. For purposes of withdrawals under this section, a Participant's Accounts shall be valued as of the applicable Distribution Value Date following the Committee's acceptance of the Participant's written application for a distribution under this section and shall be distributed as soon as practicable thereafter. Notwithstanding anything to the contrary in this Section 6.4, distributions pursuant to this Section 6.4 shall be made pro rata from the Investment Funds; distributions from Fund G shall be made in cash. Distributions shall be made first from the Participant Contribution Account, then the Participant Incentive Account, then the Rollover Account and finally the Cash or Deferred Account. 6.5 - Qualified Domestic Relations Orders. Subject to the procedures established by the Committee under Section 9.4(b), benefits may be paid from the nonforfeitable balance of a Participant's Accounts in accordance with a qualified domestic relations order as defined in Section 414(p) of the Code without regard to whether the Participant has attained the "earliest retirement age," as defined in Section 414(p) of the Code. 6.6 - Inability to Locate Participant. In the case of any distribution of an account under this Plan, if the Committee is unable to make such payment within three years after payment is due a Participant or Beneficiary because it cannot locate such Participant or Beneficiary, the Trustee shall direct that such amount shall be forfeited and shall be reallocated (as of the Allocation Date coincident with or next succeeding the expiration of the aforesaid time limit) in accordance with Section 3.11, as in the case of amounts forfeited for any other reason and the assets of this Plan shall be relieved of the liability for such payment. If, after such forfeiture, the Participant or Beneficiary later claims such benefit, such account shall be reinstated from forfeitures of Participants in this Plan occurring during the Plan Year in which such reinstatement occurs; provided, however, that if such forfeitures are not sufficient to provide such reinstatement, an additional Company contribution shall be made for the Plan Year in which reinstatement occurs to cover such reinstatement. Establishment of an account through such reinstatement shall not be deemed an "annual addition" under Section 415 of the Code or Article IV of the Plan. 6.7 - Limitations on Distributions. (a) When benefits become distributable, the Committee shall direct the Trustee to distribute the amount described above promptly, the payment of such benefits to commence, notwithstanding anything to the contrary contained herein, no later than 60 days following the close of the later of the Plan Year in which (1) a Participant reaches Normal Retirement Age, (2) the Participant incurs a Break in Employment, or (3) occurs the 10th anniversary of the year in which the Participant commenced participation in the Plan (unless the amount of the Participant's benefit has not been calculated by that date or the Participant cannot be located, in which case distribution shall begin no later than 60 days after the payment can be calculated or the Participant located). (b) Notwithstanding anything to the contrary contained herein, the distribution options under the Plan shall comply with Section 401(a)(9) of the Code and regulations promulgated thereunder, which are hereby incorporated by this reference as a part of the Plan. Accordingly, unless otherwise permitted by law, the entire interest of each Participant shall commence to be distributed, by April 1 of the calendar year following the later of (i) the calendar year in which the Participant reaches age 70-1/2, or (ii) except for a 5% owner of the Company, the calendar year the Participant retires. In the case of the Participant's death prior to the commencement of his benefits, distribution to a Beneficiary who was the Participant's spouse at the time of the Participant's death shall begin no later than the date on which the Participant would have attained age 70-1/2 and distribution to any other Beneficiary shall begin no later than one year after the Participant's death. Distribution shall be made over the life of such Participant (or over the lives of the Participant and his Beneficiary) or over a period not extending beyond the life expectancy of the Participant (or over a period not extending beyond the life expectancy of the Participant and his Beneficiary). In the case of the Participant's death after the commencement of his benefits, distribution of the Participant's remaining interest shall occur at least as rapidly as under the method of distribution in effect as of the date of the Participant's death. If a Participant continues employment past the required beginning date described above, distributions required to be made shall be appropriately adjusted to reflect additional accruals and to reflect to the minimum required payments in accordance with Treasury Regulations. 6.8 - Special Rules for Paysop Accounts. (a) No in-service withdrawals shall be allowed from Paysop Accounts. (b) Except as provided by Section 401(a)(9) of the Code, no Company Stock allocated to a Participant's Paysop Account may be distributed from such Account before the end of the 84th month beginning after the month in which the Company Stock is allocated to that Account, except that such Company Stock may, if other provisions of the Plan so permit, be distributed on an earlier date pursuant to the provisions of this Plan in the event of: (1) the Participant's death, disability or other termination of employment; (2) the Participant's transfer to the employment of an acquiring company in the case of a sale to the acquiring company of substantially all of the assets used by a company in a trade or business conducted by such company, or (3) with respect to the Company Stock of the Company, a disposition of such Company's interest in a subsidiary when the Participant continued employment with the subsidiary. (c) Unless a Participant elects otherwise, his Paysop Account shall be distributed by the end of the Plan Year following the Plan Year in which his Break in Employment occurred. (d) In the event the tax credit claimed by the Company with respect to the Paysop Accounts is recaptured or redetermined, all amounts transferred to the Paysop Accounts shall remain in the Plan allocated to such Accounts. 6.9 - Direct Rollovers. (a) This Section applies to distributions made on or after January 1, 1993. Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributee's election under this Section, if a Distributee will receive an Eligible Rollover Distribution of at least $200, the Distributee may elect, at the time and in the manner prescribed by the Committee, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover; provided, however, that a Distributee may not elect to have an Eligible Rollover Distribution of less than $500 paid directly to an Eligible Retirement Plan unless the Distributee elects to have his or her entire Eligible Rollover Distribution paid directly to the Eligible Retirement Plan. In addition, a Distributee may not elect to have an Eligible Rollover Distribution paid directly to more than one Eligible Retirement Plan. (b) Definitions. (1) For purposes of this Section 6.9, an 'Eligible Rollover Distribution' is 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: (i) 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 Distributee's designated Beneficiary, or for a specified period of ten years or more; (ii) any distribution to the extent such distribution is required under Section 401(a)(9) of the Code; (iii) 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); or (iv) any other type of distribution which the Internal Revenue Service announces (pursuant to regulation, notice or otherwise) is not an `eligible rollover distribution' under Section 402(c) of the Code. (2) For purposes of this Section 6.9, an 'Eligible Retirement Plan' is 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 the surviving spouse, an Eligible Retirement Plan is an individual retirement account or individual retirement annuity. (3) For purposes of this Section 6.9, a 'Distributee' includes 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. (4) For purposes of this Section 6.9, a 'Direct Rollover' is a payment by the Plan to the Eligible Retirement Plan specified by the Distributee. ARTICLE VII ADMINISTRATION 7.1 - The Committee. The Committee shall be responsible for the general administration of the Plan. The Chairman or any other member or members of the Committee designated by the Chairman may execute any certificate or other written direction on behalf of the Committee. The Trustee or any third person dealing with the Committee may conclusively rely upon any certificate or other written direction so signed. 7.2 - Rights and Duties. (a) The Company shall be the Plan Administrator (as defined in Section 3(16)(A) of ERISA.) The Company delegates its duties under the Plan to the Committee. The Committee shall act as the Fiduciary with respect to control and management of the Plan (except with respect to the investment, management and control of any Plan assets) for purposes of ERISA on behalf of the Participants and their Beneficiaries, shall enforce the Plan in accordance with its terms, shall be charged with the general administration of the Plan, and shall have all full, complete and discretionary powers necessary to accomplish its purposes, including (in addition to any other powers given to the Committee in the Plan), but not by way of limitation, the following: (1) To determine all questions relating to the eligibility of Employees to participate; (2) To construe and interpret the terms and provisions of this Plan; (3) To compute, certify to, and direct the Trustee with regard to the amount and kind of benefits payable to Participants and their Beneficiaries; (4) To authorize all disbursements by the Trustee from the Trust; (5) To maintain all records that may be necessary for the administration of the Plan other than those maintained by the Trustee; (6) To provide for the disclosure of all information and the filing or provision of all reports and statements to Participants, Beneficiaries or governmental agencies as shall be required by ERISA or other law, other than those prepared and filed by the Trustee; (7) To make and publish such rules for the regulation of the Plan as are not inconsistent with the terms hereof; (8) To appoint a plan administrator or, any other agent, and to delegate to them or to the Trustee such powers and duties in connection with the administration of the Plan as the Committee may from time to time prescribe, and to designate each such administrator or agent as Fiduciary with regard to matters delegated to him; (9) To implement different procedures for distributions, withdrawals and loans, including, without limitation, the choice of a Distribution Value Date and a cutoff date as of which distributions will be processed; and (10) To establish claims procedures consistent with regulations of the Secretary of Labor for presentation of claims by Participants and Beneficiaries for Plan benefits, consideration of such claims, review of claim denials and issuance of a decision on review. Such claims procedures shall at a minimum consist of the following: (A) The Committee shall notify Participants and, where appropriate, Beneficiaries of their right to claim benefits under the claims procedures, shall make forms available for filing of such claims, and shall provide the name of the person or persons with whom such claims should be filed. (B) The Committee shall establish procedures for action upon claims initially made and the communication of a decision to the claimant promptly and, in any event, not later than 90 days after the claim is received by the Committee, unless special circumstances require an extension of time for processing the claim. If an extension is required, notice of the extension shall be furnished the claimant prior to the end of the initial 90-day period, which notice shall indicate the reasons for the extension and the expected decision date. The extension shall not exceed 90 days. The claim may be deemed by the claimant to have been denied for purposes of further review described below in the event a decision is not furnished to the claimant within the period described in the three preceding sentences. Every claim for benefits which is denied shall be denied by written notice setting forth in a manner calculated to be understood by the claimant (i) the specific reason or reasons for the denial, (ii) specific reference to any provisions of this Plan on which denial is based, (iii) description of any additional material or information necessary for the claimant to perfect his claim with an explanation of why such material or information is necessary, and (iv) an explanation of the procedure for further reviewing the denial of the claim under the Plan. (C) The Committee shall establish a procedure for review of claim denials, such review to be undertaken by the Committee. The review given after denial of any claim shall be a full and fair review with the claimant or his duly authorized representative having 60 days after receipt of denial of his claim to request such review, the right to review all pertinent documents and the right to submit issues and comments in writing. (D) The Committee shall establish a procedure for issuance of a decision by the Committee not later than 60 days after receipt of a request for review from a claimant unless special circumstances, such as the need to hold a hearing, require a longer period of time, in which case a decision shall be rendered as soon as possible but not later than 120 days after receipt of the claimant's request for review. 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 reference to any provisions of this Plan on which the decision is based. 7.3 - Qualified Plans Investment Committee. With respect to management or control of Trust assets, the Qualified Plans Investment Committee ("Investment Committee") shall have the power to direct the Trustee in writing with respect to the investment of the Trust assets or any part thereof and shall be the Named Fiduciary with respect to the management and control of the Trust assets. Where investment authority, management and control of Trust assets have been delegated to the Trustee by the Investment Committee, the Trustee shall be the Fiduciary with respect to the investment, management and control of the Trust assets contributed by the Company and Participants with full discretion in the exercise of such investment, management and control. Except as otherwise provided by law, the Board of Directors or the Investment Committee may appoint one or more Investment Manager(s) as defined in Section 1.2 of the Plan, to invest the Trust assets or any part thereof. Where investment authority, management, and control of Trust assets is not specifically delegated to the Trustee, the Trustee shall be subject to the direction of the Investment Committee or the Investment Manager(s) appointed by the Investment Committee, if any, regarding the investment, management and control of such assets, and in such case the Investment Committee, or the Investment Manager(s), as the case may be, shall be the Fiduciary with respect to the investment, management and control of such assets. Notwithstanding the preceding paragraph or any other provision of this Plan, neither the Investment Committee, the Committee, the Board, the Company, the Trustee nor any Investment Manager shall be a Fiduciary with respect to the designation or direction by a Participant (or Beneficiary) of Investment Funds with respect to that Participant's Account. Each Participant (or Beneficiary) shall be the named Fiduciary (except as otherwise provided by Section 404(c) of ERISA) with respect to any designation, direction or other exercise of control of Investment Funds with respect to his Account. As a result, with respect to designations and directions described in this Plan and any other exercise of control by a Participant (or Beneficiary over assets in the Participant's Accounts, such Participant (or Beneficiary) shall be solely responsible for such actions and neither the Investment Committee, the Committee, the Trustee, the Company, the Board of Directors nor any other person or entity which is otherwise a Fiduciary shall be liable for any loss or liability which results from such Participant's or Beneficiary's exercise of control. The Chairman or any other member or members of the Investment Committee designated by the Chairman (or such other delegate designated by the Investment Committee) may execute any certificate or other written direction on behalf of the Investment Committee. The Trustee or any third person dealing with the Investment Committee may conclusively rely upon any certificate or other written direction so signed. 7.4 - Procedure for Establishing Funding Policy -- Transmittal of Information. In order to enable the Investment Committee to establish a funding policy and perform its other functions under the Plan, the Company shall supply full and timely information to the Investment Committee on all matters relating to the Compensation, employment, retirement, death, or the cause for termination of employment of each Participant and such other pertinent facts as may be required. The Investment Committee shall advise the Trustee and the Investment Manager, as appropriate, of such of the foregoing facts as may be pertinent to the duties of the Trustee and Investment Manager under the Plan. 7.5 - Other Information. To enable the Committee and Investment Committee to perform its functions, the Company shall supply full and timely information to the Committee and Investment Committee on all matters relating to the compensation of all Participants, their employment, retirement, death or other cause for termination of employment, and such other pertinent facts as the Committee and Investment Committee may require; and the Committee and Investment Committee shall advise the Trustee of such of the foregoing facts as may be pertinent to the Trustee's duties under the Plan. 7.6 - Compensation, Bonding, Expenses and Indemnity. (a) The members of the Committee and Investment Committee shall serve without compensation for their services hereunder. (b) Members of the Committee and Investment Committee and any delegates shall be bonded to the extent required by Section 412(a) of ERISA and the regulations thereunder. Bond premiums and all expenses of the Committee and Investment Committee or of any delegate who is an employee of the Company shall be paid by the Company and the Company shall furnish the Committee and Investment Committee and any such delegate with such clerical and other assistance as is necessary in the performance of their duties. (c) The Committee and Investment Committee are authorized at the expense of the Company to employ such legal counsel as it may deem advisable to assist in the performance of its duties hereunder. Expenses and fees in connection with the administration of the Plan and the Trust shall be paid from the Trust assets to the fullest extent permitted by law, unless the Company determines otherwise. (d) To the extent permitted by applicable state law, the Company shall indemnify and save harmless the Board of Directors, the Committee (and each member thereof), the Investment Committee (and each member thereof), and any delegate of the Committee or the Investment Committee who is an employee of the Company against any and all expenses, liabilities and claims, including legal fees to defend against such liabilities and claims arising out of their discharge in good faith of responsibilities under or incident to the Plan, other than expenses and liabilities arising out of willful misconduct. This indemnity shall not preclude such further indemnities as may be available under insurance purchased by the Company or provided by the Company under any by-law, agreement or otherwise, as such indemnities are permitted under state law. Payments with respect to any indemnity and payment of any expenses and fees under this Section shall be made only from assets of the Company and shall not be made directly or indirectly from Trust assets. 7.7 - Manner of Administering. The Committee shall have full discretion to construe and interpret the terms and provisions of this Plan, which interpretation or construction shall be final and binding on all parties, including but not limited to the Company and any Participant or Beneficiary, except as otherwise provided by law. The Committee shall administer such terms and provisions in full accordance with any and all laws applicable to the Plan. 7.8 - Duty of Care. (a) In the exercise of the powers and duties of the Committee and Investment Committee, each member of the Committee and Investment Committee shall use the care, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. (b) Each Fiduciary under the Plan and Trust shall be solely responsible for its own acts or omissions. Except to the extent required by ERISA or the Code, no Fiduciary shall have the duty to question whether any other Fiduciary is fulfilling any or all of the responsibilities imposed upon such other Fiduciary by ERISA or by any regulations or rulings issued thereunder. No Fiduciary shall have any liability for a breach of fiduciary responsibility of another Fiduciary with respect to the Plan or Trust unless he knowingly participates in such breach, knowingly undertakes to conceal such breach, has actual knowledge of such breach and fails to take reasonable remedial action to remedy said breach or, through his negligence in performing his own specific fiduciary responsibilities, has enabled such other Fiduciary to commit a breach of the latter's fiduciary responsibilities. 7.9 - Committee Report. The Committee and Investment Committee shall keep the Board of Directors apprised of the investment results of the Plan and shall report any other information necessary to fully inform the Board of Directors of the status and operation of the Plan and Trust. 7.10 - Section 404(c) Provisions. (a) This Plan is intended to constitute a plan described in Section 404(c) of ERISA, and the regulations thereunder. Accordingly, the Committee intends to provide to each Participant or his or her Beneficiary the information described in Section 2530.404c-1(b)(2)(i)(B)(1) of the Department of Labor Regulations. In addition, upon request by a Participant or his or her Beneficiary, the Committee shall provide the information described in Sections 2530.404c-1(b)(2)(i)(B)(2) of the Department of Labor Regulations. (b) The Committee shall take such actions and establish such procedures as it deems necessary to ensure the confidentiality of information relating to the purchase, sale, and holding of Common Stock, and the exercise of voting, tender and similar rights with respect to such stock by a Participant or his or her Beneficiary. Notwithstanding the foregoing, such information may be disclosed to the extent necessary to comply with applicable state and federal laws. (c) In the event of a tender or exchange offer with respect to the Company, or in the event of a contested election with respect to the Board of Directors, the Company shall, at its own expense, appoint an independent Fiduciary to carry out the Committee's administrative functions with respect to the Common Stock Fund. Such independent Fiduciary shall not be an "affiliate" of the Company as such term is defined in Section 2530.404c-1(e)(3) of the Department of Labor Regulations. (d) The Committee may take such other actions or implement such other procedures as it deems necessary or desirable in order that the Plan comply with Section 404(c) of ERISA. ARTICLE VIII AMENDMENT AND TERMINATION 8.1 - Amendments. The Company shall have the right to amend or modify the Plan by resolution of the Board of Directors and to amend or cancel any amendments. In addition, any person or persons duly authorized by the Board of Directors shall have the authority to execute any amendment to the Plan which is necessary to maintain the qualification and tax exempt status of the Plan under the Code, and any other amendments to the Plan which (1) do not have the effect of increasing the liability of the Company in a manner which would cause a significant detriment to the Company or (2) do not significantly increase the benefits payable to such officer, except in his capacity as a member of a broad class of employees for whom benefits are being increased. To the extent otherwise provided in the Plan, the Committee may also amend the Plan. Except for a Board resolution which indicates it amends the Plan, any amendment shall be stated in an instrument in writing, executed in the same manner as the Plan. Except as may be required to permit the Plan and Trust to meet the requirements for qualification and tax exemption under the Code, or the corresponding provisions of other or subsequent revenue laws or of ERISA, no amendment may be made which may: (a) Cause any of the assets of the Trust, at any time prior to the satisfaction of all liabilities with respect to Participants and their Beneficiaries, to be used for or diverted to purposes other than for the exclusive benefit of Participants or their Beneficiaries; (b) Decrease the accrued benefit of any Participant or Beneficiary within the meaning of Section 411(d)(6) of the Code; (c) Create or effect any discrimination in favor of Participants who are Highly Compensated Employees; and (d) Increase the duties or liabilities of the Trustee without its written consent. 8.2 - Discontinuance of Plan. (a) It is the Company's expectation that this Plan and the payment of contributions hereunder will be continued indefinitely, but continuance of the Plan by the Company is not assumed as a contractual obligation, and the Company reserves the right to permanently discontinue contributions hereunder. In the event of the complete discontinuance of contributions by the Company, the entire interest of each Participant affected thereby shall immediately become 100% vested. The Company shall not be liable for the payment of any benefits under this Plan and all benefits hereunder shall be payable solely from the assets of the Trust. (b) The Company may terminate this Plan at any time. Upon complete termination or partial termination of the Plan, the entire interest of each of the affected Participants shall become 100% vested. The Trustee shall thereafter, upon direction of the Committee, distribute to the Participants the amounts in such Participant's Company and Voluntary Contribution Accounts in the same manner as set forth in Article VI, subject, where appropriate, to Section 403(d)(1) of ERISA and regulations of the Secretary of Labor thereunder as may affect allocation of assets upon termination of such Plan. 8.3 - Failure to Contribute. Any failure by the Company to contribute to the Trust in any year when no contribution is required under this Plan shall not of itself be a discontinuance of contributions under this Plan. 8.4 - Plan Merger or Consolidation; Transfer of Plan Assets. (a) This Plan shall not be merged or consolidated with, nor shall its assets or liabilities be transferred to, any other plan unless each Participant in this Plan (if the Plan then terminated) would receive a benefit immediately after the merger, consolidation or transfer which is equal to or greater than the benefit such Participant would have been entitled to receive immediately before the merger, consolidation or transfer (if this Plan had been terminated). Where the foregoing requirement is satisfied, this Plan and its related Trust may be merged or consolidated with another qualified plan and trust. (b) The Committee may, in its discretion, authorize a plan to plan transfer, provided such a transfer will meet the requirements of Section 414(l) of the Code and that all other actions legally required are taken. In the event of a transfer of assets from the Plan pursuant to this subsection, any corresponding benefit liabilities shall also be transferred. (c) Notwithstanding Section 8.1, the Committee may amend the Exhibits of the Plan to reflect the particulars of any plan to plan transfer and the approval of the Board of Directors shall not be required for such an amendment. ARTICLE IX MISCELLANEOUS 9.1 - Contributions Not Recoverable. Except where contributions are required to be returned to the Company by the provisions of this Plan as permitted or required by ERISA or the Code, it shall be impossible for any part of the contributions made under this Plan to be used for, or diverted to, purposes other than the exclusive benefit of Participants or their Beneficiaries. Notwithstanding this or any other provision of this Plan, the Company shall be entitled to recover, and the Participants under this Plan shall have no interest in (a) any contributions made under this Plan by mistake of fact, so long as the contribution is returned within one year after payment or (b) any contributions for which deduction is disallowed under Section 404 of the Code, so long as the contributions are returned to the Company within one year following such disallowance or as permitted or required by the Code or ERISA. In the event of such mistake of fact or disallowance of deductions, contributions shall be returned to the Company, subject to the limitations, if any, of Section 403(c) of ERISA. 9.2 - Limitation on Participant's Rights. Participation in this Plan shall not give any Employee the right to be retained as an Employee of the Company or any right or interest under the Plan other than as herein provided. The Company reserves the right to dismiss any Employee without any liability for any claim either against the Trustee, the Trust except to the extent provided in the Trust, or against the Company. All benefits under the Plan shall be provided solely from the assets of the Trust. 9.3 - Receipt or Release. Any payment to any Participant or Beneficiary in accordance with the provisions of the Plan shall, to the extent thereof, be in full satisfaction of all claims against the Trustee, the Committee, the Investment Committee and the Company. The Trustee may require such Participant or Beneficiary, as a condition precedent to such payment, to execute a receipt and release to such effect. 9.4 - Alienation. (a) None of the benefits, payments, proceeds or claims of any Participant or Beneficiary shall be subject to any claim of any creditors and, in particular, the same shall not be subject to attachment or garnishment or other legal process by any creditor, nor shall any such Participant or Beneficiary have the right to alienate, anticipate, commute, pledge, encumber or assign any of the benefits or payments or proceeds which such Participant or Beneficiary may expect to receive, contingently or otherwise, under this Plan. (b) The provisions of this Section 9.4 shall also apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a Participant pursuant to a domestic relations order, unless (1) such order is determined to be a qualified domestic relations order, as defined in Section 414(p) of the Code, or (2) the Committee determines in its discretion to treat any domestic relations order entered before January 1, 1985 as a qualified domestic relations order. The Committee shall establish reasonable procedures to determine the qualified status of domestic relations orders and to administer distributions under such qualified orders. In the event a qualified domestic relations order exists with respect to a benefit payable under the Plan, the benefits otherwise payable to a Participant or Beneficiary shall be payable to the alternate payee specified in the qualified domestic relations order. (c) Notwithstanding subsection (a), a loan described in Section 9.11 of the Plan shall not be considered a violation of this Section. 9.5 - Persons Under Incapacity. In the event any amount is payable under the Plan to a person for whom a conservator has been legally appointed, the payment shall be distributed to the duly appointed and currently acting conservator, without any duty on the part of the Committee to supervise or inquire into the application of any funds so paid. 9.6 - Governing Law. This Plan shall be construed, administered, and governed in all respects under applicable federal law, and to the extent that federal law is inapplicable, under the laws of the State of California; provided, however, that if any provision is susceptible to more than one interpre- tation, such interpretation shall be given thereto as is consistent with this Plan's remaining qualified within the meaning of Section 401(a) of the Code. If any provisions of this instrument shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions hereof shall continue to be fully effective. 9.7 - Headings, etc. Not Part of Agreement. Headings and subheadings in this Plan are inserted for convenience of reference only and are not to be considered in the construction of the provisions hereof. 9.8 - Masculine Gender Includes Feminine and Neuter. As used in this Plan, the masculine gender shall include the feminine gender. 9.9 - Instruments in Counterparts. This Plan may be executed in several counterparts, each of which shall be deemed an original, and said counterparts shall constitute but one and the same instrument, which may be sufficiently evidenced by any one counterpart. 9.10 - Reorganization of Company. This Plan shall inure to the benefit of, and be binding upon the parties hereto and their successors and assigns. If the Company merges or consolidates with or into a successor, this Plan shall continue in effect unless the successor terminates this Plan. 9.11 - Loans to Participants. (a) Each Participant shall have the right, subject to prior approval by the Committee, to borrow from his Accounts. Application for a loan must be made by a Participant pursuant to the Voice Response System described in Section 2.8, unless the Committee provides otherwise. Approval shall be granted or denied as specified in subsection (b), on the terms specified in subsection (c). For purposes of this Section 9.11, but only to the extent required by Department of Labor Regulations Section 2550.408b-1, the term "Participant" shall only include Employees and those parties in interest as defined in Section 3(14) of ERISA) who are former Employees, Beneficiaries or alternate payees under a qualified domestic relations order, as defined in Section 414(p) of the Code, who have an interest in the Plan that is not contingent. For purposes of this Section 9.11, Paysop Accounts shall be ignored. (b) The Committee shall grant any loan which meets each of the requirements of paragraphs (1), (2) and (3) below: (1) The amount of the loan (when added to the outstanding balance of all other loan from the Plan) shall not exceed the lesser of: (A) $50,000, reduced by the excess, if any, of a Participant's highest outstanding balance of all loans from the Plan during the preceding 12 months over the outstanding balance of such loans on the loan date, or (B) 50% of the value of the vested balance of the Participant's Accounts established as of the date upon which the loan is approved on the Voice Response System. (2) The Loan shall be for at least $500; (3) No Loan shall have been granted within the last six months; and (4) No more than three loans to a Participant may be outstanding at any time. (c) Each loan granted shall, by its terms, satisfy each of the following additional requirements: (1) Each loan, by its terms, must be repaid within five years (except that if Participant represents (on the Voice Response System and by cashing the check) that the loan proceeds are being used to purchase the principal residence of a Participant, the Committee may, in its discretion, establish a term of up to 10 years for repayment); (2) Each loan must require substantially level amortization over the term of the loan, with payments not less frequently than quarterly; and (3) Each loan must be adequately secured, with the security to consist of the balance of the Participant's Accounts. In addition, in the case of any Participant who is an active Employee, automatic payroll deductions shall be required as additional security. (4) Each loan shall bear a reasonable fixed or variable rate of interest, which rate shall be established by the Committee from time to time and shall provide the Plan with a return commensurate with the interest rates charged by persons in the business of lending money for loans which would be made under similar circumstances. (d) All loan payments shall be transmitted by the Company to the Trustee as soon as practicable but not later than the end of the month during which such amounts were received or withheld. Such amounts shall be invested in the Funds designated by the Participant pursuant to Section 2.5(b) unless Committee provides otherwise. Each loan may be prepaid in full at any time. Any prepayment shall be paid directly to the Trustee in accordance with procedures adopted by the Committee. (e) Each loan shall be evidenced by a promissory note of the Participant and payable in full to the Trustee, not later than the earliest of (1) a fixed maturity date meeting the requirements of subsection (c)(1) above, (2) the Participant's death, (3) the termination of the Plan or (4) except for parties in interest as defined in Section 3(14) of ERISA, the Participant's Break in Employment (other than a Break in Employment due to incurring a Disability Date). Such promissory note shall evidence such terms as are required by this section. By applying for a loan and cashing the check evidencing the loan proceeds (whether or not the check is endorsed), the Participant shall be deemed to agree to the terms of any note, payroll withholding agreement, security agreement and other documents sent to the Participant with the check. (f) Effective January 1, 1997, the amount of the loan (including preexisting loans) shall reduce the amount of the Participant's accounts invested in Investment Funds; loan proceeds shall be taken pro rate from the Investment Fund(s). The investment gain or loss attributable to the loan shall not be included in the calculation or allocation of the increase or decrease in fair market value of the Funds of the Plan. Instead, the entire gain or loss (including any gain or loss attributable to interest payments or default) shall be allocated to the accounts of the Participant. If the Participant fails (for whatever reason, including a discharge under bankruptcy law) to repay the full amount of the Loan, including interest, by the time set forth in subsection (e) above, the Committee may (1) immediately reduce the value of the Participant's vested Accounts (other than the Paysop Account and Cash or Deferred Account) by the amount of the unpaid principal and interest and/or (2) at such time a distribution is to be made to the Participant, may reduce such distribution by the amount of any remaining unpaid principal and interest. (g) The Committee shall have the power to modify the above rules or establish any additional rules with respect to loans extended pursuant to this section. Such rules may be included in a separate document or documents and shall be considered a part of this Plan; provided, each rule and each loan shall be made only in accordance with the regulations and rulings of the Internal Revenue Service and Department of Labor and other applicable state or federal law. The Committee shall act in its sole discretion to ascertain whether the requirements of such regulations and rulings and this section have been met. 9.12 - Top-Heavy Plan Requirements. For any Plan Year for which this Plan is a Top-Heavy Plan, as defined in Section B.3 of Appendix B, attached hereto, and despite any other provisions of this Plan to the contrary, this Plan will be subject to the provisions of Appendix B. 9.13 - Voting Rights. Participants who have a Paysop Account or other Accounts invested in Fund G shall be entitled to vote the Company Stock credited to such Account by providing the Trustee with confidential voting instructions on a form to be provided. All such voting rights with respect to the Paysop Account shall be in accordance with Code Section 409(e). 9.14 - Dividends. Cash dividends on shares of stock of the Corporation allocated to Accounts may be paid, if the Committee determines in its sole discretion, directly in cash by the Company to such Participants, or distributed by the Trustee within ninety (90) days after the end of the Plan Year in which received. 9.15 - Rule 16b-3 Provisions. (a) This Section 14.8 shall only apply to Participants who are officers or directors subject to the prohibitions of Section 16 of the Securities and Exchange Act of 1934 ('SEC Section 16"). The provisions of this Section 9.15 relate to 17 C.F.R. 240.16b-3 (hereinafter known as Rule 16b-3), promulgated under SEC Section 16. (b) Notwithstanding any other provision on the Plan to the contrary, the Committee, may (but need not) provide that, except as provided in Rule 16b-3, (1) no election of a Stock Fund Sale shall be made unless the election is made at least six months following the election of the most recent Stock Fund Purchase; (2) no election of a Stock Fund Purchase shall be made unless the election is made at least six months following the election of the most recent Stock Fund Sale. For this purpose, a Stock Fund Sale is either (1) the reallocation of the investment of a Participant's existing Account balances so that amounts in Fund G are transferred to one or more other Funds or (2) reduction in Fund G balances due to a distribution, withdrawal or loan to a Participant pursuant to Sections 6.1, 6.2, 6.3, 6.4 or 9.11. A Stock Fund Purchase is the reallocation of the investment of a Participant's existing Account balances so that there is a transfer from one or more Funds to Fund G. However, a transaction shall not be a Stock Fund Sale or a Stock Fund Purchase unless it is at the volition of the Participant, is not required to be made available to the Participant pursuant to the Code and is not made in connection with the Participant's death, disability, retirement or termination of employment. (c) The Committee may (but need not) adopt such rules and/or take such actions or implement such measures and/or limitations as it deems desirable in order to comply with Rule 16b-3, including without limitation, rules that (1) exclude Participants subject to this Section 9.15 from using the Voice Response System and (2) provide that loans and in-service withdrawals may be made from all Funds (excluding Funds G and H), on a pro rata basis if the election of the in-service withdrawal or loan is made within six months of an election of a Stock Fund Purchase. Neither the Company, the Board, the Committee, the Investment Committee, the Trustee nor the Plan shall have any liability to any Participant in the event any Participant has any liability under SEC Section 16 due to any rule so adopted, the failure to adopt any rule, any Plan provision (or lack thereof), or any transaction under the Plan. IN WITNESS WHEREOF, the undersigned has caused this document to be executed by its duly authorized officers on this 24th day of September, 1996. By ___/s/ Stephen F. Adams___ By ___/s/ Carl F. Geuther___ EXHIBIT A-1 ACQUISITIONS IN WHICH ONLY ELIGIBILITY SERVICE IS COUNTED Notwithstanding anything provided elsewhere in the Plan, in the case of any acquisition by the Corporation (or any subsidiary thereof) which is listed below, any employee who was employed by such acquired company or branch immediately prior to the acquisition by the Corporation (or subsidiary thereof) and who became an Employee immediately upon such acquisition shall be subject to the following special rules: (a) For purposes of determining eligibility in this Plan, employment with such acquired company or branch prior to the acquisition shall be deemed service with the Company (except as indicated below). (b) For purposes of determining Years of Vesting Service, employment with such acquired company or branch prior to the acquisition shall not be deemed service with the Company (except as indicated below). The following companies or branches shall be considered acquired companies or branches for purposes of this Exhibit A-1: (1) Financial Federation, Inc. and corporations affiliated therewith; (2) the Chinatown branch of the San Francisco Federal Savings, a Federal Savings & Loan Association; (3) Northern California Savings, a Federal Savings & Loan Association and any corporation affiliated therewith; (4) the branch acquired from Investment Savings and Loan Association on October 27, 1986; (5) the four branches acquired from Chase Federal Savings and Loan Association on January 5, 1987; (6) the eight branches acquired from City Federal Savings Bank on January 16, 1987; (7) the branch acquired from Goldome Savings Bank on June 26, 1987; (8) the two branches acquired from Chase Federal Savings and Loan Association on July 27, 1987; (9) Southern Home Savings Bank; (10) First Commercial Savings and Loan Association acquired on January 22, 1988; (11) City Finance Company, unless the employee was a participant in the City Finance Company More At Retirement Savings Plan; (12) Sunpoint Savings Bank, FSB; (13) Various Centrust Savings Bank branches and other offices acquired on June 29, 1990, provided that no employee thereof shall become a Participant prior to January 1, 1991; (14) Various Gibraltar Savings Bank branches and other offices acquired on June 29, 1990, provided that no employee thereof shall become a Participant prior to January 1, 1991; (15) Various City Savings Bank branches and other offices acquired on September 21, 1990, provided that no employee thereof shall become a Participant prior to January 1, 1991; (16) Various Carteret Savings Bank branches and other offices acquired on October 9, 1990, provided that no employee thereof shall become a Participant prior to January 1, 1991; (17) Various Lincoln Savings branches acquired on March 2, 1991, provided that no employee thereof shall become a Participant prior to July 1, 1991; (18) Various Pioneer Savings branches acquired on March 8, 1991, provided that no employee thereof shall become a Participant prior to July 1, 1991. (19) Various Capitol Finance branches acquired on January 1, 1992, provided that no employee thereof shall become a Participant prior to April 1, 1992. (20) Various Republic branches acquired on March 23, 1992, provided that no employee thereof shall become a Participant prior to July 1, 1992. (21) Various AmeriFirst branches acquired on March 21, 1992, provided that no employee thereof shall become a Participant prior to January 1, 1993. (22) Various Pacific First branches acquired on February 27, 1993, provided that no employee thereof shall become a Participant before July 1, 1993. (23) Various HomeFed Bank branches and other offices acquired on December 3, 1993, provided that no employees thereof shall become a Participant prior to July 1, 1994. EXHIBIT A-2 ACQUISITIONS IN WHICH ELIGIBILITY AND VESTING SERVICE IS COUNTED Notwithstanding anything provided elsewhere in this Plan, in the case of any acquisition by the Corporation (or any subsidiary thereof) which is listed below, any employee who was employed by such acquired company or branch immediately prior to the acquisition by the Corporation (or subsidiary thereof) and who became an Employee immediately upon the acquisition shall be subject to the following special rules: (a) For purposes of determining eligibility in this Plan, employment with such acquired company or branch prior to the acquisition shall be deemed service with the Company (except as indicated below). (b) For purposes of determining Years of Vesting Service, years of employment with such acquired company or branch prior to the acquisition shall be counted as Years of Vesting Service (except as indicated below). The following companies or branches shall be considered acquired companies or branches for purposes of this Exhibit A-2: (1) Great Western Savings Bank, a Washington corporation, (for vesting purposes, only years of employment commencing on the first quarter following the employee's performance of one year of participation with Great Western Savings Bank and ending with the date of acquisition of Great Western Savings Bank shall be counted); (2) City Finance Company employees, but only if they were participants in the City Finance Company More At Retirement Savings Plan, in which case they shall be 100% vested in all their Accounts under the Plan. EXHIBIT A-3 ARISTAR EMPLOYEES Notwithstanding anything provided elsewhere in the Plan, the entire Account balance of each participant in the Aristar Employee Savings Incentive Plan ("Aristar Plan") who is a "Transferred Employee" (as defined in the Employee Benefits Agreement dated October 30, 1987 by and between the Corporation, Great Western Bank, a Federal Savings Bank, GW Capital Corporation, JAF Co. I (formerly Aristar, Inc.) and John Alden Financial Corporation) shall be transferred to this Plan and held in the appropriate accounts. Each Transferred Employee shall automatically become a Participant hereunder on the date he became an Employee. Each Transferred Employee and each other person who was eligible to participate in the Aristar Plan and who becomes a Participant in the Plan on January 1, 1987 shall be 100% vested in all of his Accounts. EXHIBIT B-1 SPECIAL RULE FOR FORMER PARTICIPANTS WHO TRANSFER TO WASHINGTON TRUST BANK A Participant in this Plan who transfers employment to Washington Trust Bank ("WTB") pursuant to the sale (on October 30, 1989) of certain branches by Great Western Bank, A Savings Bank to WTB will become 100% vested in all of his Accounts as of October 30, 1989. As soon as practicable on or after October 30, 1989, the entire Account balances of each such former Participant will be transferred to a defined contribution plan maintained or to be established by the WTB. The amount transferred for each Participant shall be his Account balance on the Allocation Date coinciding with or immediately preceding October 30, 1989. EXHIBIT B-2 OTHER SALES OR CLOSURES Notwithstanding anything to the contrary in this Plan, any Participant who is employed by the Corporation (or any subsidiary thereof) on the date of a sale or closure of a subsidiary, division or branch of the Corporation (or subsidiary thereof) shall be 100% vested in his Accounts as of the date of such sale or closure if the subsidiary, division or branch is listed below: (1) Nevada National Leasing; (2) the respective sales of the Atascadero, Paso Robles or El Centro branches of Great Western Savings Bank; and (3) The closure of the Eureka branch of Great Western Savings Bank. (4) the sale of the Pensacola branches to Sunshine Bank on November 8, 1991. (5) the sale of several branches to Pacific First in 1993. (6) the closure of the Consumer Finance office located in Cordova, Tennessee due to relocation. EXHIBIT C COMPENSATION LIST
SYS ELIGIBLE ERN LVL CK STUB FOR ID EID DESCRIPTION NAME ESIP RET 1 REG REGULAR REGULAR Y Y 2 OVT OVERTIME - 1-1/2 OVERTIME Y Y 3 OVT DOUBLETIME DBLETIME Y Y 4 OVT HOLIDAY WORKED HOL WKD Y Y 5 DEF DEFERRED SALARY DEF COMP N N 6 BON STAY-ON BONUS % BONUS N N 7 FRB DEF COMP-CASH OUT DEFC-C/O N N 8 INT INT/ESIP-CO MATCH INT/ESIP N N 9 DCE DEFC-C/O PRIOR YEARS DC-C/O N N 10 RET REG PAY ADJ/RETRO REG ADJ Y Y 12 EIC ADVANCED EIC PAYMNT ADV EIC N N 13 OVT ACQUISION CHARGE/BK ACQ C/B Y Y 100 SHF SHIFT PAY SHIFT Y Y 101 UNP UNPAID HOURS UNPAID N N 105 SKW SICK PAY-USED SICK PAY Y Y 110 VAC VACATION PAY-USED VACATION Y Y 115 OHP OTHER PAY (BACK-OUT) OTHER Y Y 120 SKW SUPPLEMENTAL SICK SICK PAY Y Y 125 VAC SUPPLEMENTAL VAC. VACATION Y Y 130 OHP SUPPLEMENTAL OTHER OTHER Y Y 131 STD STD CARRYOVER STD-C/O Y Y 135 PPC PLUSPAY CREDITS PLUSPAY N N 138 DCE DCP-EARLY DISTRIB DC-EDIST N N 139 DCE DEFERD COMP MAKE-UP DC-MAKUP N N 140 GRB GRATUITOUS RET BEN G.R.B. N N 141 GRB EXEC GRAT RET BENE EXEC-GRB N N 142 BSR RET-BRIDGED SERVICE RET-B.S. N N 143 SRP SUPPL EXEC RET PLAN SERP N N 144 DCE DF CMP/ROLL-IN UNIT DFCP-RIU N N 180 COM LOAN AGENT COMMISSN COMMISSN Y N 182 COM LOAN AGENT DRAW L/A DRAW Y N 185 COM COMMISSION OVERRIDE COMM O/R Y Y 190 SKO ACCRUD SICK-TAXABLE ACC SICK N N 205 FRB DED/NON-TXBL MOV EX DED-MOVX N N 206 FRB NON-DED/TXBL MOV EX TXB-MOVX N N 215 APR APPRAISAL FEE APPRAISL Y Y 216 APR NEW APPRAISER INCNT APPRAISL Y Y 217 INC WKEND PROP INSPECT SFR-REO Y Y 220 BON BONUS BONUS N Y 221 BON ANNUAL BONUSES ONLY EXEC BNS N Y 222 BON EQUITY BONUS EQ-BONUS N Y 226 INC BONUS BUCK-CASH INC BONUS $ N Y 227 BON LOAN AGNT DEF BONUS DEF BON N N 228 BON CFG ANNUAL BONUS CFG BNS N Y 229 BON TEMP SAL INC-AUTOPY SAL ADJ N N 230 OCM ON-CALL MAINTENANCE ON-CALL Y Y 235 BON RELOCATION BONUS RELOCTN N N 240 MOV MOVING EXP-GROSS UP MOV EXP N N 241 TGU CFG CO CAR GROSS-UP CAR-TGU N N 242 TGU MISC TAX GROSS-UP MISC TGU N N 245 FRB STOCK OPT/B.E.-MEMO S/O-MEMO N N 250 COM SALES MNGR COMMISSN S/M-COMM Y Y 251 COM RLO COMMISSION RLO COMM Y Y 252 INC E2000-PBO/RBD PBO-RBD N N 253 INC E2000-INC/PIP PIP-INC N N 254 INC E2000-COMM/PIP PIP-COMM N N 255 COM RBD MGR COMMISSION RBD COMM Y Y 256 BON D/L-PACKAGER BONUS PACK BNS Y Y 257 COM CONS R/E LOAN COMM CREL COM Y Y 258 INC RBD CREDIT CARD INC CCSPRNT N Y 259 BON O/T OFFSET-ERN 256 O/T OFF Y Y 261 TGU GWIM-MISC AWARD TGU GWIM-TGU N N 263 INC RBD-CNTRL SITE INC RBD-CSIP N Y 264 CSR LEADSHRE REF BNS-FL LSREFBNF N N 265 CSR LEADSHRE REF BNS-CA LSREFBNC N N 266 INC SUPERMKT BRANCH INC SMKT BNS N Y 268 INC LOAN AWARD LN AWARD N Y 269 INC GWFSC REFERRAL FEES GWFS REF N Y 270 INC RBD-INCENTIVE RBD INCT N Y 271 INC LOAN BONUS LN BONUS N Y 272 INC RBD-SPECIALIZE SALE SPEC/INC N Y 273 INC RSK MGT-LOSS PREVENTN SBREWARD N Y 274 TGU NSD-FREQ FUND TGU NSD-TGU N N 275 INC TSR REFER-FASTFAX FASTFAX N Y 276 INC RLO CROSS SELL INC RLOXSELL N Y 277 INC E-2000 OUTBOUND TEL E2OUTTEL N Y 278 AWD MLC-GROSS UP MLC-TGU N N 279 INC CORP-COMM/QTR-AWD COM-QAA N Y 280 VAC ACCRD VAC PAYOFF ACC VAC N N 281 OHP FLT HOLIDAY PAYOFF FLT HOL N N 290 SAR STOCK APPREC RIGHTS S.A.R. N N 295 SEV SEVERNCE/PAY IN LIEU SEVERNCE N N 305 INC RBD-MVP INCNTV MVP INCT N Y 308 AWD EMPLOYEE REFERRAL-CA EMPREFCA N N 309 AWD EMPLOYEE REFERRAL-FL EMPREFFL N N 310 AWD REFERRAL AWARD REFERRAL N N 311 INC CONTEST AWARD-GWFS CONT AWD N Y 315 FRB RESTR STOCK AWARD PR STOCK N N 319 INC LSO-EMPL OF THE MO LSO-EOM N Y 320 INC DIST LOAN INCENTIVE D/L INCT N N 325 SPE SPECIAL EARNINGS SPEC EAR Y Y 326 CAR CAR ALLOWANCE CAR ALLW N N 327 INC RIDESHARE INCNTV RD/SHARE N N 330 FRB COMPANY CAR CO. CAR N N 332 FRB CO CAR-PERS USE-BLZR CO CAR-B N N 335 FRB EXECUTIVE DINING EXEC DIN N N 345 FRB COUNTRY CLUB CNTRY CL N N 350 FRB EXEC FINANCIAL PLAN FIN/PLAN N N 351 FRB EDUCATIONAL ASSISTANCE EDUC AST N N 355 FRB COMPANY PLANE CO-PLANE N N 356 FRB UNSUBSTANTIATED B/E MISC EXP N N 357 FRB MISC NON-CASH-FRB N/C-FRB N N 358 INC MISC CASH AWARDS CASH AWD N Y 359 FRB SPLIT DOLLAR POLICY SPLIT$ N N 360 FRB MLC-AWARDS/PRIZES MLC-AWD N N 361 FRB NSD AWRDS-FREQ FUND NSD-AWD N N 362 FRB TXBL VESTED ESIP $-DCP DCP-ESIP N N 363 FRB S.E.R.P.-TAXABLE SERP-TXB N N
APPENDIX A ANNUAL ADDITION LIMITS Section 4.01 of the Plan shall be construed in accordance with this Appendix A. Unless the context clearly requires otherwise, words and phrases used in this Appendix A shall have the same meanings that are assigned to them under the Plan. A.1 - Definitions. As used in this Appendix A, the following terms shall have the meanings specified below. "Annual Additions" shall mean the sum credited to a Participant's Accounts for any Plan Year of (a) Company contributions, (b) voluntary contributions, (c) forfeitures, (d) amounts credited after March 31, 1984 to an individual medical account, as defined in Section 415(l)(2) of the Code which is part of a Defined Benefit Plan maintained by the Company, and (e) amounts derived from contributions paid or accrued after December 31, 1985, in taxable years ending after such date, which are attributable to post-retirement medical benefits allocated to the separate account required with respect to a key employee (as defined in Section B.2(e) of Appendix B to the Plan) under a welfare benefit plan (as defined in Section 419(e) of the Code) maintained by the Company. "Defined Benefit Plan" means a plan described in Section 414(j) of the Code. "Defined Contribution Plan" means a plan described in Section 414(i) of the Code. "Defined Benefit Plan Fraction" shall mean a fraction, the numerator of which is the projected annual benefit (determined as of the close of the relevant Plan Year) of the Participant under all Defined Benefit Plans maintained by one or more Related Companies, and the denominator of which is the lesser of (a) the product of 1.25 multiplied by the dollar limitation in effect under Section 415(b)(1)(A) of the Code for the Plan Year, or (b) the product of 1.4 multiplied by the amount which may be taken into account under Section 415(b)(1)(B) of the Code with respect to the Participant for the Plan Year. "Defined Contribution Plan Fraction" shall mean a fraction, the numerator of which is the sum of the annual additions to a Participant's accounts under all Defined Contribution Plans maintained by one or more Related Companies, and the denominator of which is the sum of the lesser of (a) or (b) for such Plan Year and for each prior Plan Year of service with one or more Related Companies, where (a) is the product of 1.25 multiplied by the dollar limitation in effect under Section 415(c)(1)(A) of the Code for the Plan Year (determined without regard to Section 415(c)(6) of the Code), and (b) is the product of 1.4 multi- plied by the amount which may be taken into account under Section 415(c)(1)(B) of the Code (or Section 415(c)(7) of the Code, if applicable) with respect to the Participant for the Plan Year. Solely for purposes of this definition, contributions made directly by an Employee to a Defined Benefit Plan which maintains a qualified cost-of-living arrangement as such term is defined in Section 415(k)(2) shall be treated as Annual Additions. Notwithstanding the foregoing, the numerator of the Defined Contribution Plan Fraction shall be adjusted pursuant to Treasury Regulations 1.415-7(d)(1), Questions T-6 and T-7 of Internal Revenue Service Notice 83-10, and Questions Q-3 and Q-14 of Internal Revenue Service Notice 87-21. A.2 - Annual Addition Limitations. (a) The compensation limitation of Section 4.1 of the Plan shall not apply to any contribution for medical benefits (within the meaning of Section 419A(f)(2)) after separation from service which is treated as an Annual Addition. In the event that Annual Additions to all the accounts of a Participant would exceed the limitations of Section 4.1 of the Plan, they shall be reduced in the following priority: (1) return of voluntary contributions to the Participant; (2) reduction of Company contributions. (b) If any Company or any Related Company contributes amounts, on behalf of Participants covered by the Plan, to other Defined Contribution Plans, the limitation on Annual Additions provided in Article IV of the Plan shall be applied to Annual Additions in the aggregate to the Plan and such other plans. Reduction of Annual Additions, where required, shall be accomplished by first refunding any voluntary contributions to Participants, then by reducing contributions under such other plans pursuant to the directions of the fiduciary for administration of such other plans or under priorities, if any, established by the terms of such other plans, and then, if necessary, by reducing contributions under the Plan. (c) In any case where a Participant under the Plan is also a participant under a Defined Benefit Plan or a Defined Benefit Plan and other Defined Contribution Plans maintained by the Company or a Related Company, the sum of the Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction shall not exceed 1.0. Reduction of contributions to or benefits from all plans, where required, shall be accomplished by first reducing benefits under such other Defined Benefit Plan or plans, then by allocating any excess in the manner set out above with respect to the Plan, and finally by reducing contributions or allocating any excess contributions with respect to other Defined Contribution Plans, if any; provided, however, that adjustments necessary under this or the next preceding paragraph may be made in a different manner and priority pursuant to the agreement of the Committee and the administrators of all other plans covering such Participant, provided such adjustments are consistent with procedures and priorities prescribed by Treasury Regulations under Section 415 of the Code. (d) In the event the limitations of Section 4.1 of the Plan or subsections (a) or (b) of this Appendix A are exceeded and the conditions specified in Treasury Regulations Section 1.415-6(b)(6) are met, the Committee may elect to apply the procedures set forth in Treasury Regulations Section 1.415-6(b)(6). APPENDIX B TOP-HEAVY PROVISIONS Section 9.12 of the Plan shall be construed in accordance with this Appendix B. Definitions in this Appendix B shall govern for the purposes of this Appendix B. Any other words and phrases used in this Appendix B, however, shall have the same meanings that are assigned to them under the Plan, unless the context clearly requires otherwise. B.1 - General. This Appendix B shall be effective for Plan Years beginning on or after January 1, 1984. This Appendix B shall be interpreted in accordance with Section 416 of the Code and the regulations thereunder. B.2 - Definitions. (a) The "Benefit Amount" for any Employee means (1) in the case of any defined benefit plan, the present value of his normal retirement benefit, determined on the Valuation Date as if the Employee terminated on such Valuation Date, plus the aggregate amount of distributions made to such Employee within the five-year period ending on the Determination Date (except to the extent already included on the Valuation Date) and (2) in the case of any defined contribution plan, the sum of the amounts credited, on the Determination Date, to each of the accounts maintained on behalf of such Employee (including accounts reflecting any nondeductible employee contributions) under such plan plus the aggregate amount of distributions made to such Employee within the five-year period ending on the Determination Date. For purposes of this Section, the present value shall be computed using a 5% interest assumption and the mortality assumptions contained in the defined benefit plan for benefit equivalence purposes, provided that, if more than one defined benefit plan is being aggregated for top-heavy purposes, the actuarial assumptions which shall be used for testing top-heaviness are those of the plan with the lowest interest assumption, provided further that if the lowest interest assumption is the same for two or more plans, the actuarial assumptions used shall be that of the plan with the greatest value of assets on the applicable date. (b) "Company" means any company (including unincorporated organizations) participating in the Plan or plans included in the "aggregation group" as defined in this Appendix B. (c) "Determination Date" means the last day of the preceding Plan Year or, in the case of the first Plan Year of the Plan, the last day of the Plan Year. (d) "Employees" means employees, former employees, beneficiaries, and former beneficiaries who have a Benefit Amount greater than zero on the Determination Date. (e) "Key Employee" means any Employee who, during the Plan Year containing the Determination Date or during the four preceding Plan Years, is: (1) one of the ten Employees of a Company having annual compensation from such Company of more than the limitation in effect under Section 415(c)(1)(A) of the Code and owning (or considered as owning within the meaning of Section 318 of the Code) both more than a 1/2% interest and the largest interest in such Company (if two Employees have the same interest the Employee having the greater annual compensation from the Company shall be treated as having a larger interest); (2) a 5% owner of a Company; (3) a 1% owner of a Company who has an annual compensation above $150,000; or (4) an officer of a Company having an annual compensation greater than 50% of the amount in effect under Section 415(b)(1)(A) of the Code for any such Plan Year (however, no more than the lesser of (A) 50 employees or (B) the greater of 3 employees or 10% of the Company's employees shall be treated as officers). For purposes of determining the number of employees taken into account under this Section B.2(e)(4), employees described in Section 414(q)(8) of the Code shall be excluded. (f) A "Non-Key Employee" means an Employee who is not a Key Employee. (g) "Valuation Date" means the first day (or such other date which is used for computing plan costs for minimum funding purposes) of the 12-month period ending on the Determination Date. (h) A "Year of Service" shall be calculated using the Plan rules that normally apply for determining vesting service. These definitions shall be interpreted in accordance with Section 416(i) of the Code and the regulations thereunder and such rules are hereby incorporated by reference. The term "Key Employee" shall not include any officer or employee of an entity referred to in Section 414(d) of the Code. For the purpose of this subsection, "compensation" shall mean compensation as defined in Section 414(q)(7) of the Code and shall be determined without regard to Sections 125, 402(a)(8), 402(h)(1)(B) or, in the case of employer contributions made pursuant to a salary reduction agreement, Section 403(b). B.3 - Top-Heavy Definition. The Plan shall be top-heavy for any Plan Year if, as of the Determination Date, the "top-heavy ratio" exceeds 60%. The top-heavy ratio is the sum of the Benefit Amounts for all employees who are Key Employees divided by the sum of the Benefit Amounts for all Employees. For purposes of this calculation only, the following rules shall apply: (a) The Benefit Amounts of all Non-Key Employees who were Key Employees during any prior Plan Year shall be disregarded. (b) The Benefit Amounts of all employees who have not performed any services for any Company at any time during the five-year period ending on the Determination Date shall be disregarded; provided, however, if an Employee performs no services for five years and then again performs services, such Employee's Benefit Amount shall be taken into account. (c)(1) Required Aggregation. This calculation shall be made by aggregating any plans, of the Company or a Related Company, qualified under Section 401(a) of the Code in which a Key Employee participates or which enables this Plan to meet the requirements of Section 401(a)(4) or 410 of the Code; all plans so aggregated constitute the "aggregation group." (2) Permissive Aggregation. The Company may also aggregate any such plan to the extent that such plan, when aggregated with this aggregation group, continues to meet the requirements of Section 401(a)(4) and Section 410 of the Code. If an aggregation group includes two or more defined benefit plans, the actuarial assumptions used in determining an Employee's Benefit Amount shall be the same under each defined benefit plan and shall be specified in such plans. The aggregation group shall also include any terminated plan which covered a Key-Employee and which was maintained within the five-year period ending on the Determination Date. (d) This calculation shall be made in accordance with Section 416 of the Code (including 416(g)(3)(B) and (g)(4)(A)) and the regulations thereunder and such rules are hereby incorporated by reference. For purposes of determining the accrued benefit of a Non-Key Employee who is a Participant in a defined benefit plan, this calculation shall be made using the method which is used for accrual purposes for all defined benefit plans of the Company, or if there is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under Section 411(b)(1)(C) of the Code. B.4 - Minimum Benefits or Contributions, Compensation Limitations and Section 415 Limitations. If the Plan is top-heavy for any Plan Year, the following provisions shall apply to such Plan Year: (a)(1) Except to the extent not required by Section 416 of the Code or any other provision of law, notwithstanding any other provision of this Plan, if the Plan and all other plans which are part of the aggregation group are defined contribution plans, each Participant (and any other Employee required by Section 416 of the Code) other than Key employees shall receive an allocation of employer contributions and forfeitures from a plan which is part of the aggregation group at least equal to 3% (or, if lesser, the largest percentage allocated to any Key Employee for the Plan Year) of such Participant's compensation for such Plan Year (the "defined contribution minimum"). For purposes of this subsection, salary reduction contributions on behalf of a Key Employee must be taken into account. For purposes of this subsection, a non-Key Employee shall be entitled to a contribution if he is employed on the last day of the Plan Year (1) regardless of his level of compensation, (2) without regard to whether he has made any mandatory contributions required under the Plan, and (3) regardless of whether he has less than 1,000 Hours of Service (or the equivalent) for the accrual computation period. (2) Except to the extent not required by Section 416 of the Code or any other provision of law, notwithstanding any other provisions of the Plan, if the Plan or any other plan which is part of the aggregation group is a defined benefit plan each Participant who is a participant in any such defined benefit plan (who is not a Key Employee) who accrues a full Year of Service during such Plan Year shall be entitled to an annual normal retirement benefit from a defined benefit plan which is part of the aggregation group which shall not be less than the product of (1) the employee's average compensation for the five consecutive years when the employee had the highest aggregate compensation and (2) the lesser of 2% per Year of Service or 20% (the "defined benefit minimum"). A Non-Key Employee shall not fail to accrue a benefit merely because he is not employed on a specified date or is excluded from participation because (1) his compensation is less than a stated minimum or (2) he fails to make mandatory employee contributions. For purposes of calculating the defined benefit minimum, (1) compensation shall not include compensation in Plan Years after the last Plan Year in which the Plan is top-heavy and (2) a Participant shall not receive a Year of Service in any Plan Year before January 1, 1984 or in any Plan Year in which the Plan is not top-heavy. This defined benefit minimum shall be expressed as a life annuity (with no ancillary benefits) commencing at normal retirement age. Benefits paid in any other form or time shall be the actuarial equivalent (as provided in the plan for retirement benefit equivalence purposes) of such life annuity. Except to the extent not required by Section 416 of the Code or any other provisions of law, each Participant (other than Key Employees) who is not a participant in any such defined benefit plan shall receive the defined contribution minimum (as defined in paragraph (a)(1) above). (3) If a non-Key Employee is covered by plans described in both paragraphs (1) and (2) above, he shall be entitled only to the minimum described in paragraph (1), except that for the purpose of paragraph (1) "3% (or, if lesser, the largest percentage allocated to any key employee for the Plan Year)" shall be replaced by "5%". Notwithstanding the preceding sentence, if the accrual rate under the plan described in (2) would comply with this Section B.4 absent the modifications required by this Section, the minimum described in paragraph (1) above shall not be applicable. (b) For purposes of this Section, "compensation" shall mean all earnings included in the Employee's Form W- 2 for the calendar year that ends within the Plan Year, not in excess of $200,000, adjusted at the same time and in the same manner as under Section 415(d) of the Code. (c) (1) Unless the Plan qualifies for an exception under Section B.4(c)(2), "1.0" shall be substituted for "1.25" in the definitions of Defined Benefit Plan Fraction and Defined Contribution Plan Fraction used in Appendix A to the Plan. (2) A Plan qualifies for an exception from the rule of Section B.4(c)(1) if the Benefit Amount of all Employees who are Key Employees does not exceed 90% of the sum of the Benefit Amounts for all Employees and one of the following requirements is met: (A) A defined benefit minimum of 3% per Year of Service (up to 30%) is provided; (B) For Participants covered only by a defined contribution plan, a defined contribution minimum of 4% is provided; (C) For Participants covered by both types of plans, benefits from the defined contribution minimum are comparable to the 3% defined benefit minimum; (D) The plan provides a floor offset where the floor is a 3% defined benefit minimum; or (E) A defined contribution minimum of 7-1/2% of compensation is provided for any non-Key Employee who is covered under both a defined benefit plan and a defined contribution plan (each of which is top- heavy) of a Company. EX-4.2 4 EXHIBIT 4.2 EXHIBIT 4.2 GREAT WESTERN EMPLOYEE SAVINGS INCENTIVE PLAN TRUST AGREEMENT TABLE OF CONTENTS Page Section 1. Trust . . . . . . . . . . . . . . . 1 Section 2. Exclusive Benefit; Nonalienation. . 2 Section 3. Disbursements . . . . . . . . . . . 2 (a) Directions from Administrator. . . . . . 2 (b) Limitations. . . . . . . . . . . . . . . 3 Section 4. Investment of Trust . . . . . . . . 3 (a) Selection of Investment Options. . . . . 3 (b) Available Investment Options . . . . . . 3 (c) Designation of Investment Options. . . . 4 (d) Participant Direction. . . . . . . . . . 4 (e) Mutual Funds . . . . . . . . . . . . . . 4 (i) Execution of Purchases and Sales. . 4 (ii) Voting. . . . . . . . . . . . . . . 5 (f) Sponsor Stock. . . . . . . . . . . . . . 5 (i) Acquisition Limit . . . . . . . . . 5 (ii) Fiduciary Duty of Named Fiduciary . 5 (iii) Execution of Purchases and Sales . . 6 (iv) Securities Law Reports. . . . . . . 8 (v) Voting and Tender Offers. . . . . . 8 (A) Voting . . . . . . . . . . . . 8 (B) Tender Offers. . . . . . . . . 9 (vi) Shares Credited . . . . . . . . . . 10 (vii) General. . . . . . . . . . . . 11 (viii) Conversion. . . . . . . . 11 (g) Notes. . . . . . . . . . . . . . . . . . 11 (h) Reliance of Trustee on Directions. . . . 12 (i) Investment Powers of Trustee . . . . . . 12 (j) Administrative Powers of the Trustee . . 16 (k) Investment Manager Appointment . . . . . 16 Section 5. Accounts of the Trustee . . . . . . 17 Section 6. Compensation and Expenses . . . . . 17 Section 7. Directions and Indemnification. . . 18 (a) Directions . . . . . . . . . . . . . . . 18 (b) Indemnification. . . . . . . . . . . . . 19 (c) Survival . . . . . . . . . . . . . . . . 19 Section 8. Resignation or Removal of Trustee . 19 (a) Resignation. . . . . . . . . . . . . . . 19 (b) Removal. . . . . . . . . . . . . . . . . 19 Section 9. Successor Trustee . . . . . . . . . 19 (a) Appointment. . . . . . . . . . . . . . . 19 (b) Acceptance . . . . . . . . . . . . . . . 19 (c) Corporate Action . . . . . . . . . . . . 19 Section 10. Termination. . . . . . . . . . . . 20 Section 11. Resignation, Removal and Termination Notices . . . . . . . . . . . . . 20 Section 12. Single Fund. . . . . . . . . . . . 20 Section 13. Transfer of Assets . . . . . . . . 21 Section 14. Adoption of Trust by Separate Plan . 21 Section 15. Agreement Incorporated in Separate Plans . . . . . . . . . . . . . . . 22 Section 16. Duration . . . . . . . . . . . . . . 23 Section 17. Amendment or Modification. . . . . . 23 Section 18. No Guarantees. . . . . . . . . . . . 23 Section 19. Duty to Furnish Information. . . . . 23 Section 20. Withholding. . . . . . . . . . . . . 23 Section 21. General. . . . . . . . . . . . . . . 23 (a) Entire Agreement . . . . . . . . . . . . . 23 (b) Waiver . . . . . . . . . . . . . . . . . . 23 (c) Successors and Assigns . . . . . . . . . . 24 (d) Partial Invalidity . . . . . . . . . . . . 24 (e) Section Headings . . . . . . . . . . . . . 24 Section 22. Governing Law. . . . . . . . . . . . 24 (a) New York Law Controls. . . . . . . . . . . 24 (b) Trust Agreement Controls . . . . . . . . . 24 TRUST AGREEMENT, effective as of October 1, 1996 between Great Western Financial Corporation, a Delaware corporation (the 'Sponsor"), and The Chase Manhattan Bank incorporated under the laws of the State of New York (the "Trustee"). WITNESSETH: WHEREAS, the Sponsor and certain of its subsidiaries and affiliated organizations (collectively, the "Company") have adopted the Great Western Employee Savings Incentive Plan and may hereafter adopt other defined contribution benefit plans ('Separate Plans") for the benefit of certain employees of the Company (each such plan being herein sometimes referred to as a 'Separate Plan" and the Separate Plans being herein collectively referred to as the "Plan"); and WHEREAS, the Sponsor has established a trust for the collective investment of the assets of the Plan in a trust fund which may be divided into separate investment accounts; and WHEREAS, the Trustee has been named the Trustee of such trust; and WHEREAS, the Qualified Plans Investment Committee (the "Named Fiduciary") is the named fiduciary (for purposes of investment, control and management of Plan assets) of the Plan (within the meaning of Section 402(a) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")); and WHEREAS, the Trustee is willing to hold and invest the aforesaid plan assets, in accordance with the terms of this Agreement, in trust among several investment options selected by the Named Fiduciary and as directed by Plan participants; and WHEREAS, the Sponsor is the administrator of the Plan (within the meaning of Section 3(16)(A) of ERISA) and has delegated its duties to the Committee (as defined in the Plan) (the "Administrator"); NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth below, the Sponsor and the Trustee agree as follows: Section 1. Trust. The Sponsor hereby establishes the Great Western Employee Savings Incentive Plan Master Trust (the "Trust") with the Trustee. The Trust shall consist of an initial contribution of money or other property acceptable to the Trustee in its sole discretion, made by the Sponsor or transferred from the previous trustee under the Plan, such additional sums of money and Sponsor Stock (hereinafter defined) as shall from time to time be delivered to the Trustee under the Plan, all investments made therewith and proceeds thereof, and all earnings and profits thereon, less the payments that are made by the Trustee as provided herein, without distinction between principal and income. The Trustee hereby accepts the Trust on the terms and conditions set forth in this Agreement. In accepting this Trust, the Trustee shall be accountable for the assets received by it, subject to the terms and conditions of this Agreement. The Trustee shall not be responsible for the collection of any contributions to the Plan or for the determination of the amount or frequency of any contributions required by the Plan or for interpreting, construing or enforcing the Plan or the Plan's compliance with ERISA. Section 2. Exclusive Benefit; Nonalienation. (a) Except as provided below or under applicable law, no part of the Trust may be used for, or diverted to, purposes other than the exclusive benefit of the participants in the Plan or their beneficiaries prior to the satisfaction of all liabilities with respect to the participants and their beneficiaries. Notwithstanding this or any other provision of the Trust or Plan, the Company shall be entitled to recover, and the participants shall have no interest in (i) any contributions made by mistake of fact, so long as the contribution is returned within one year after payment or (ii) any contributions for which deduction is disallowed under Section 404 of the Code, so long as the contributions are returned to the Company within one year following such disallowance or as permitted or required by the Code or ERISA. In the event of such mistake of fact or disallowance of deductions, contributions shall be returned to the Company, subject to the limitations, if any, of Section 403(c) of ERISA. (b) Except as provided in the Plan, the benefits, proceeds, payments or claims of any participant payable from the Trust assets shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution or levy of any kind, either voluntary or involuntary. Any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, garnish, levy or otherwise dispose of or execute upon any right or benefit payable hereunder shall be void. The Trust assets shall not in any manner be liable for or subject to the debts, contracts, liabilities, engagements or torts of any participant entitled to benefits hereunder and such benefits shall not be considered an asset of the participant in the event of his insolvency or bankruptcy. Section 3. Disbursements. (a) Directions from Administrator. The Trustee shall make disbursements (which shall not include the transfer of funds for investment) in the amounts and in the manner that the Administrator or Subtransfer Agent (as hereinafter defined) directs from time to time. The Trustee shall have no responsibility to ascertain any direction's compliance with the terms of the Plan, any applicable law, the direction's effect for tax purposes or otherwise; nor shall the Trustee have any responsibility to determine that any disbursement is pursuant to the Plan. (b) Limitations. The Trustee shall not be required to make any disbursement in excess of the net realizable value of the assets of the Trust at the time of the disbursement. All disbursements shall be made in cash unless the Administrator or Subtransfer Agent has provided a direction otherwise; the Administrator shall provide directions as to the assets to be converted to cash for the purpose of making the disbursement. Section 4. Investment of Trust. (a) Selection of Investment Options. The Trustee shall have no responsibility for the selection of investment options under the Trust and shall not render investment advice to any person in connection with the selection of such options. (b) Available Investment Options. The Named Fiduciary shall direct the Trustee as to the investment options which shall be maintained or used for Plan participant investments. The Named Fiduciary may determine to offer investment options which may include, but shall not be limited to, (i) securities issued by any investment company registered under the Investment Company Act of 1940 ("Mutual Funds"), (ii) equity securities issued by the Sponsor or an affiliate which are publicly-traded and which are "qualifying employer securities" within the meaning of Section 407(d)(5) of ERISA ('Sponsor Stock"), (iii) notes evidencing loans to Plan participants in accordance with the terms of the Plan, (iv) securities and obligations which produce a fixed rate of investment return, including but not limited to United States government securities, corporate bonds, notes, debentures, convertible securities, preferred stocks, or an investment fund or funds maintained by the Trustee or other banks or other financial institutions, guaranteed investment contracts ("GICs") and other similar investments, in each case as chosen by the Sponsor or in investment manager (as defined in ERISA) selected by the Sponsor (collectively, the "Fixed Income Fund"), (v) securities of any type held in funds managed by an investment manager (as defined in Section 3(38) of ERISA) selected by the Named Fiduciary (provided the same can be valued on a daily basis), (vi) collective investment funds maintained by the Trustee for qualified plans, and (vii) deposits of all types bearing a reasonable rate of interest in the Sponsor (or an affiliate of Sponsor). The Trustee shall be considered a fiduciary with investment discretion only with respect to Plan assets that are invested in collective investment funds maintained by the Trustee for qualified plans. (c) Designation of Investment Options. Specific investment options shall be designated in writing from time to time by the Named Fiduciary giving sufficient notice thereof for the Trustee to implement any necessary operating procedures. Effective January 2, 1997, all investment options offered must be able to be valued on a daily basis by the Trustee. The Trustee will provide daily valuations to the Administrator. (d) Participant Direction. Effective January 2, 1997, each Plan participant shall direct the subtransfer agent appointed by the Administrator (the 'Subtransfer Agent") in which investment option(s) to invest the assets in the participant's individual accounts (except for PAYSOP Accounts). Notwithstanding any other provision of this Agreement, neither the Named Fiduciary, the Administrator, the Sponsor (or any affiliate) nor the Trustee shall be a fiduciary with respect to any designation or direction by a participant or beneficiary with respect to his accounts, including any decisions with respect to voting or tender of Sponsor Stock. Accordingly, none of the foregoing entities shall be liable for any loss or liability which results from such participant's (or beneficiary's) designations. The Trustee shall invest the assets allocated to Plan participant accounts only when, if and in the manner, directed by the Administrator or Subtransfer Agent and shall not be under any obligation to invest or otherwise manage any of such assets. It shall be the duty of the Trustee to act strictly in accordance with the Administrator's or Subtransfer Agent's directions and the Trustee shall be under no liability for any loss of any kind which may result by it taking or refraining from taking any action in accordance with any such direction. The Subtransfer Agent shall certify to the Trustee the identity of the person or persons authorized to give instructions or directions on its behalf. The Trustee may continue to rely on all certifications under this paragraph unless otherwise notified in writing by the Administrator or the Subtransfer Agent, as the case may be. In the event that the Trustee fails to receive directions with respect to any assets held in the Trust outside of its own collective funds, such assets shall be invested in the Plan's Money Market Fund until the Trustee receives further direction. (e) Mutual Funds. Trust investments in Mutual Funds shall be subject to the following limitations: (i) Execution of Purchases and Sales. Purchases, sales and exchanges of Mutual Funds shall be made on the date on which the Trustee receives from the Subtransfer Agent in good order all information and documentation necessary in time to effect such purchases, sales and exchanges, and in the case of a purchase, has or receives funds necessary to make such purchase. For this purpose, the Named Fiduciary may designate certain funds between which an exchange shall not be deemed a purchase. The Trustee shall not be obligated to make exchanges between other funds unless sufficient balances are available for the purchase of such Mutual Fund shares. (ii) Voting. The Named Fiduciary shall have the right to direct the Trustee as to the manner in which the Trustee is to vote the shares of Mutual Funds credited to the participant's accounts (both vested and unvested). The Trustee shall not vote shares for which it has received no directions. With respect to all rights other than the right to vote, the Trustee shall follow the directions of the Named Fiduciary. The Trustee shall have no duty to solicit directions. (f) Sponsor Stock. Trust investments in Sponsor Stock shall be made via the Great Western Stock Fund and the PAYSOP Fund, each of which shall consist of shares of Sponsor Stock and short-term liquid investments, including a commingled money market fund maintained by the Trustee, necessary to satisfy the Fund's cash needs for transfers and payments. Effective January 2, 1997 the Great Western Stock Fund and the PAYSOP Fund shall be valued on a daily unitized basis which valuation shall be provided by the Trustee to the Subtransfer Agent. All funds transmitted by the Sponsor (or its affiliates) to the Trustee for investment in Sponsor Stock shall be invested in the Great Western Stock Fund. Similarly, unless the Sponsor provides otherwise, all directions to transfer money into or out of Sponsor Stock shall apply with respect to the Great Western Stock Fund. The Trustee acknowledges that the PAYSOP Funds are frozen accounts, which are not subject to participant direction. Accordingly, unless the Sponsor gives specific written instructions with respect to the PAYSOP Fund or the provisions of subsection (f)(v) below apply, no sales or purchases of Sponsor Stock shall be made with respect to the PAYSOP Fund. All dividends or other cash proceeds with respect to Sponsor Stock held in the Great Western Stock Fund shall be reinvested in Sponsor Stock. All dividends or other cash proceeds from Sponsor Stock held in the PAYSOP Fund shall not be invested in Sponsor Stock and shall instead be invested in short-term liquid investments. (i) Acquisition Limit. Pursuant to the Plan, the Trust may be invested in Sponsor Stock to the extent necessary to comply with investment directions from the Sponsor or under Section 4(d) of this Agreement. There is no limit on the amount of Sponsor Stock that may be held under the Plan. (ii) Fiduciary Duty of Named Fiduciary. The Named Fiduciary shall be responsible for monitoring the suitability under the fiduciary duty rules of Section 404(a)(1) of ERISA (as modified by Section 404(a)(2) of ERISA) of acquiring and holding Sponsor Stock. The Trustee shall not be liable for any loss, or by reason of any breach, which arises from the directions of the Named Fiduciary with respect to the acquisition and holding of Sponsor Stock, unless it is clear on their face that the actions to be taken under such directions are contrary to the terms of this Agreement. (iii)Execution of Purchases and Sales. (A) Purchases and sales of Sponsor Stock shall be made on the open market on the date which the Trustee receives from the Sponsor or the Subtransfer Agent in good order all information and documentation reasonably necessary to accurately effect such purchases and sales and, in the case of purchases, receives a wire transfer of the funds if necessary to make such purchases. Prior to engaging in any transaction in Sponsor Stock, the Trustee shall offset purchase and sale directions so that only the net number of shares shall be purchased or sold. Such general rules shall not apply in the following circumstances: (1) If the Trustee is unable to determine the number of shares required to be purchased or sold on such date; or (2) If the Trustee determines that it is imprudent to purchase or sell the total number of shares required to be purchased or sold on such day as a result of market conditions; or (3) If the Trustee is prohibited by the Securities and Exchange Commission, the New York Stock Exchange, or any other regulatory body from purchasing or selling any or all of the shares required to be purchased or sold on such day. In the event of the occurrence of the circumstances described in (1) or (3) above, the Trustee shall promptly notify the Named Fiduciary and the Trustee shall purchase or sell such shares as soon as possible thereafter and shall determine the price of such purchases or sales according to normal operating procedures. In the event of the occurrence of the circumstances described in (2) above, the Trustee shall consult with the Named Fiduciary before taking any action. (B) Purchases and Sales from or to Sponsor. The Trustee may purchase or sell Sponsor Stock from or to the Sponsor or an affiliate thereof if the purchase or sale is for adequate consideration (within the meaning of Section 3(18) of ERISA) and no commission is charged to the Plan. If Plan participant or Sponsor contributions under the Plan are to be invested in Sponsor Stock, the Sponsor may transfer Sponsor Stock in lieu of cash to the Trust. In this case the number of shares transferred shall be determined by dividing the amount of the contribution by the closing price of the Sponsor Stock on the composite tape on the trading day immediately preceding the date as of which the contribution is made. Purchases and sales to or from third parties may also be made subject to similar arrangements, such arrangements as approved in writing by the Sponsor. (C) Use of an Affiliated Broker. The Named Fiduciary hereby authorizes the Trustee to use Chase Securities, Inc. ("CSI") to provide brokerage services in connection with any purchase or sale of Sponsor Stock in accordance with directions from Plan participants or the Named Fiduciary. The provision of brokerage services shall be subject to the following: (1) The quality of execution of trades shall be at best execution and shall not be adversely affected by the use of CSI. (2) As consideration for such brokerage services, the Named Fiduciary agrees that CSI shall be entitled to reasonable remuneration under this authorization provision pursuant to a written agreement between the Named Fiduciary and CSI. (3) Following the procedures set forth in Department of Labor Prohibited Transaction Class Exemption 86-128, the Trustee will provide the Named Fiduciary with the following documents: (1) a description of CSI's brokerage placement practices; (2) a copy of PTCE 86-128; and (3) a form by which the Named Fiduciary may terminate this authorization to use a broker affiliated with the Trustee. The Trustee will provide the Named Fiduciary with this termination form annually, as well as quarterly and annual reports which summarize all securities transaction-related charges incurred by the Plan, and the Plan's annualized turnover rate, as required by PTE 86-128. (4) Any successor organization of CSI, through reorganization, consolidation, merger or similar transactions, shall, upon consummation of such transaction and written notice to the Named Fiduciary, become the successor broker in accordance with the terms of this authorization provision. (5) The Trustee and CSI shall continue to rely on this authorization provision until notified to the contrary. The Named Fiduciary reserves the right to terminate this authorization at any time upon written notice to CSI (or its successor) and the Trustee, in accordance with Section 11 of this Agreement. (iv) Securities Law Reports. The Sponsor shall be responsible for filing all reports required under Federal or state securities laws with respect to the Trust's ownership of Sponsor Stock, including, without limitation, any reports required under Section 13 or 16 of the Securities Exchange Act of 1934, and shall immediately notify the Trustee in writing of any requirement to stop purchases or sales of Sponsor Stock pending the filing of any report. The Trustee shall provide to the Sponsor such information on the Trust's ownership of Sponsor Stock as the Sponsor may reasonably request in order to comply with Federal or state securities laws. The Trustee shall notify Sponsor if Trustee becomes aware that a securities report need to be filed with respect to the Trust. (v) Voting and Tender Offers. Notwithstanding any other provision of this Agreement, the provisions of this Section shall govern the voting and tendering of Sponsor Stock. The Sponsor, after consultation with the Trustee, shall pay for all printing, mailing and other out-of-pocket costs associated with the voting and tendering of Sponsor Stock. (A) Voting. (1) When the issuer of the Sponsor Stock files definitive proxy solicitation materials with the Securities and Exchange Commission, the Sponsor shall cause a copy of all materials to be simultaneously sent to the Trustee. Based on these materials the Trustee shall prepare a voting instruction form or approve a form prepared by the Sponsor. At the time of mailing of notice of each annual or special stockholders' meeting of the issuer of the Sponsor Stock, the Sponsor shall cause, or instruct the Trustee to cause, a copy of the notice and all proxy solicitation materials to be sent to each Plan participant with an interest in Sponsor Stock held in the Trust, together with the foregoing voting instruction form to be returned to the Trustee or its designee. The Sponsor shall provide the Trustee with a copy of any materials provided to the participants and, unless the Sponsor has requested the Trustee to distribute such material to the participants, shall certify to the Trustee that the materials have been mailed or otherwise sent to participants. (2) Each participant with an interest in the Great Western Stock Fund shall have the right, acting in the capacity of a named fiduciary within the meaning of Section 402 of ERISA, to direct the Trustee as to the manner in which the Trustee is to vote (including not to vote) that number of shares of Sponsor Stock reflecting such participant's proportional interest in the Great Western Stock Fund (both vested and unvested). Except as required by law, directions from a participant to the Trustee concerning the voting of Sponsor Stock shall be held in confidence by the Trustee and shall not be divulged to the Sponsor, or any officer or employee thereof, or any other person. Upon its receipt of the directions, the Trustee shall vote the shares of Sponsor Stock reflecting the participant's proportional interest in the Great Western Stock Fund as directed by the participant. Except as otherwise required by ERISA, the Trustee shall vote shares of Sponsor Stock reflecting a participant's proportional interest in the Great Western Stock Fund for which it has received no directions from the participant proportionally in accordance with the votes of shares for which it has received instructions. (3) Each participant with an interest in the PAYSOP Fund shall have the right, acting in the capacity of a named fiduciary within the meaning of Section 402 of ERISA, to direct the Trustee as to the manner in which the Trustee is to vote (including not to vote) that number of shares of Sponsor Stock reflecting such participant's proportional interest in the PAYSOP Fund. The rule set forth in the preceding paragraphs (1) and (2) shall apply in all respects except that the Trustee need not send separate copies of proxy solicitation materials to each participant with an interest in both the Great Western Stock Fund and PAYSOP Fund. (B) Tender Offers. (1) Upon commencement of a tender offer for any securities held in the Trust that are Sponsor Stock, the Sponsor shall notify, or request the Subtransfer Agent to notify, each Plan participant with an interest in such Sponsor Stock of the tender offer and utilize reasonable efforts to timely distribute or cause to be distributed to the participants the same information that is distributed to shareholders of the issuer of Sponsor Stock in connection with the tender offer, and, after consulting with the Trustee and the Subtransfer Agent, shall provide and pay for a means by which the participant may direct the Trustee (including directions via the Subtransfer Agent) whether or not to tender the Sponsor Stock reflecting such participant's proportional interest in the Great Western Stock Fund (both vested and unvested). The Sponsor shall provide the Trustee with a copy of any material provided to the participants and, unless the Sponsor has requested the Trustee to distribute such material to the participants, shall certify to the Trustee that the materials have been mailed or otherwise sent to participants. (2) Each participant with an interest in the Great Western Stock Fund shall have the right, acting in the capacity of a named fiduciary within the meaning of Section 402 of ERISA, to direct the Trustee (directly or through the Subtransfer Agent) to tender or not to tender some or all of the shares of Sponsor Stock reflecting such participant's proportional interest in the Great Western Stock Fund (both vested and unvested). Directions from a participant (or from the Subtransfer Agent) to the Trustee concerning the tender of Sponsor Stock shall be communicated in writing, by facsimile transmission or such similar means as is agreed upon by the Trustee, the Subtransfer Agent and the Sponsor under the preceding paragraph. Except as required by law, these directions shall be held in confidence by the Trustee and shall not be divulged to the Sponsor, or any officer or employee thereof, or any other person except to the extent that the consequences of such directions are reflected in reports regularly communicated to any such persons in the ordinary course of the performance of the Trustee's services hereunder. The Trustee shall tender or not tender shares of Sponsor Stock as directed by the participant (or the Subtransfer Agent if directions are provided to it by the participants). The Trustee shall decide whether to tender shares of Sponsor Stock reflecting a participant's proportional interest in the Great Western Stock Fund for which it has received no directions from the participant or the Subtransfer Agent. (3) A participant who has directed the Trustee or the Subtransfer Agent to tender some or all of the shares of Sponsor Stock reflecting the participant's proportional interest in the Great Western Stock Fund may, at any time prior to the tender offer withdrawal date, direct the Trustee or the Subtransfer Agent to withdraw some or all of the tendered shares reflecting the participant's proportional interest, and the Trustee upon receipt of such directions from the participant or the Subtransfer Agent, as the case may be, shall withdraw the directed number of shares from the tender offer prior to the tender offer withdrawal deadline. A participant shall not be limited as to the number of directions to tender or withdraw that the participant may give to the Trustee or the Subtransfer Agent, as the case may be. (4) Pending receipt of directions (through the Administrator) from the Subtransfer Agent or the Named Fiduciary, as provided in the Plan, as to which of the remaining investment options the proceeds should be invested in, the Trustee shall invest the proceeds in the Plan's Money Market Fund or as may otherwise be directed by the Named Fiduciary. (5) Each participant with an interest in the PAYSOP Fund shall have the right, acting in the capacity of a named fiduciary within the meaning of Section 402 of ERISA, to direct the Trustee (directly or through the Subtransfer Agent) to tender or not to tender some or all of the shares of Sponsor Stock reflecting such participant's proportional interest in the PAYSOP Fund. All of the rules set forth in the preceding paragraphs (1) through (4) shall apply in all respects except the Trustee need not send separate copies of proxy solicitation materials to each participant with an interest in both the Great Western Stock Fund and PAYSOP Fund. (vi) Shares Credited. For all purposes of this Section, the number of shares of Sponsor Stock deemed "credited" or "reflected" to a participant's proportional interest shall be determined as of the last preceding valuation date. (vii)General. With respect to all rights other than the right to vote, the right to tender, and the right to withdraw shares previously tendered, in the case of Sponsor Stock credited to a participant's proportional interest in the Great Western Stock Fund, the Trustee shall follow the directions of the Subtransfer Agent and if no such directions are received, the directions of the Named Fiduciary. The Trustee shall have no duty to solicit directions from any party. (viii)Conversion. Unless the Named Fiduciary provides otherwise, all provisions in this Section 4(e) shall also apply to any securities received as a result of a conversion of Sponsor Stock as long as they are qualifying employer securities. (g) Notes. Unless other arrangements are made, the Administrator shall act as the Trustee's agent for the purpose of holding all trust investments in participant loan notes ("Notes") and related documentation and as such shall (i) hold physical custody of and keep safe the Notes and other loan documents, (ii) collect and remit all principal and interest payments to the Trustee, (iii) keep the proceeds of such loans separate from the other assets of the Administrator and clearly identify such assets as Plan assets, (iv) advise the Trustee of the date, amount and payee of the checks to be drawn representing loans, and (v) cancel the Notes and other loan documentation when a loan as been paid in full. Notwithstanding anything contained in this Agreement to the contrary, the Trustee shall have no right, authority or duty to determine the amount of or enforce in its discretion any payment of principal or interest or the amount or application of any security under any Note, to allocate to any Note or Notes any payments received by the Administrator or any disbursements or transfers made therefrom, or to maintain any security under the Notes, and the Administrator shall be solely responsible for the terms and enforcement of any Notes or security interests thereunder, for the maintenance of appropriate records reflecting the individual interests of Plan participants in any Notes or payments or security relating thereto and for compliance with the requirements of the Internal Revenue Code of 1986, as amended (the "Code") and any applicable truth in lending or other consumer protection laws relating to loans under the Plan. The Administrator shall report to the Trustee in writing periodically as reasonably required by the Trustee as to the Notes in the Company's possession and/or their disposition. The Trustee and its independent auditors shall be granted reasonable access to the records of the Administrator for audit purposes in determining compliance with this provision. (h) Reliance of Trustee on Directions. (i) Except to the extent otherwise required by ERISA, the Trustee shall not be liable for any loss, or by reason of any breach, which arises from any Subtransfer Agent's direction or lack of direction or participant's exercise or non-exercise of rights under this Section 4 over the assets in the participant's accounts. (ii) Except to the extent otherwise required by ERISA, the Trustee shall not be liable for any loss or by reason of any breach, which arises from the Named Fiduciary's exercise or non-exercise of rights under this Section 4 unless it is clear on their face that the actions to be taken under the Named Fiduciary's directions were contrary to the terms of this Agreement. (i) Investment Powers of Trustee. Subject to the foregoing provisions of this Section 4, the Trustee shall have and exercise the following powers and authority (i) over investment accounts where it has express investment management discretion as provided in Section 4(b), or (ii) upon direction of the Investment Manager with respect to its Investment Accounts, or (iii) upon direction of the Administrator or Named Fiduciary for a Company directed account: (i) Subject to paragraphs (b), (c), (d), (e), (f) and (g) of this Section 4, to sell, exchange, convey, transfer, or otherwise dispose of any property held in the Trust, by private contract or at public auction. No person dealing on behalf of the Sponsor with the Trustee shall be bound to see to the application of the purchase money or other property delivered to the Trustee or to inquire into the validity, expediency, or propriety of any such sale or other disposition. (ii) Subject to paragraphs (b) and (c) of this Section 4, to invest in the investment media described in Section 4 and short term investments (including interest bearing accounts with the Trustee or money market mutual funds managed by affiliates of the Trustee) and in collective investment funds maintained by the Trustee for qualified plans, in which case the provisions of each collective investment fund in which the Trust is invested shall be deemed adopted by the Sponsor and the provisions thereof incorporated as a part of this Trust as long as the fund remains exempt from taxation under Sections 401(a) and 501(a) of the Code. (iii)To register any securities held by it hereunder in its own name or in the name of a nominee with or without the addition of words indicating that such securities are held in a fiduciary capacity and to hold any securities in bearer form and to deposit any securities or other property in a depository or clearing corporation, but the books and records of the Trustee shall at all times show that all such investments are part of the Trust. (iv) To sell for cash or on credit, to grant options, convert, redeem, exchange for other securities or other property, to enter into standby agreements for future investment, either with or without a standby fee, or otherwise to dispose of any securities or other property at any time held by it. (v) To settle, compromise or submit to arbitration any claims, debts, or damages, due or owing to or from the trust, to commence or defend suits or legal proceedings and to represent the trust in all suits or legal proceedings in any court of law or before any other body or tribunal. (vi) To trade in financial options and futures, including index options and options on futures and to execute in connection therewith such account agreements and other agreements in such form and upon such terms as the Investment Manager or the Administrator shall direct. (vii)To exercise all voting rights, tender or exchange rights, any conversion privileges, subscription rights and other rights and powers available in connection with any securities or other property at anytime held by it; to oppose or to consent to the reorganization, consolidation, merger or readjustment of the finances of any corporation, company or association, or to the sale, mortgage, pledge or lease of the property of any corporation, company or association any of the securities which may at any time be held by it and to do any act with reference thereto, including the exercise of options, the making of agreements or subscriptions and the payment of expenses, assessments or subscriptions, which may be deemed necessary or advisable by the Investment Manager or Administrator in connection therewith, and to hold and retain any securities or other property which it may so acquire; and to deposit any property with any protective, reorganization or similar committee, and to pay and agree to pay part of the expenses and compensation of any such committee and any assessments levied with respect to property so deposited. (viii)To invest all or a portion of the Trust Fund in contracts issued by insurance companies, including contracts under which the insurance company holds Plan assets in a separate account or commingled separate account managed by the insurance company. The Trustee shall be entitled to rely upon any written directions of the Administrator or the Investment Manager, and the Trustee shall not be responsible for the terms of any insurance contract that it is directed to purchase and hold or for the selection of the issuer thereof or for performing any functions under such contract (other than the execution of any documents incidental thereto on the instructions of the Administrator or the Investment Manager). (ix) To manage, administer, operate, lease for any number of years, develop, improve, repair, alter, demolish, mortgage, pledge, grant options with respect to, or otherwise deal with any real property or interest therein at any time held by it, and to hold any such real property in its own name or in the name of a nominee, with or without the addition of words indicating that such property is held in a fiduciary capacity, all upon such terms and conditions as may be deemed advisable by the Investment Manager or Administrator. (x) To renew, extend or participate in the renewal or extension of any mortgage, upon such terms as may be deemed advisable by the Investment Manager or Administrator, and to agree to a reduction in a rate of interest on any mortgage or of any guarantee pertaining thereto in any manner and to any extent that may be deemed advisable by the Investment Manager or Administrator for the protection of the Trust Fund or the preservation of the value of the investment; to waive any default, whether in the performance of any covenant or condition of any mortgage or in the performance of any guarantee, or to enforce any such default in such manner and to such extent as may be deemed advisable by the Investment Manager or Administrator; to exercise and enforce any and all rights of foreclosure, to bid on property on foreclosure, to take a deed in lieu of foreclosure with or without paying consideration therefor, and in connection therewith to release the obligation on the bond secured by such mortgage, and to exercise and enforce in any action, suit or proceeding at law or in equity any rights or remedies in respect to any such mortgage or guarantee. (xi) To hold part or all of the Trust Fund invested in money market accounts to the extent that the directing party ascertains as reasonable and necessary for limited periods of time. (xii)To loan pursuant to separate agreement as may be agreed upon any securities to brokers or dealers and to secure the same in any manner, and during the term of any such loan to permit the loaned securities to be transferred into the name of and voted by the borrower or others subject to the limitations of Section 406 of ERISA; to purchase, enter, sell, hold, and generally deal in any manner in and with contracts for the immediate or future delivery of financial instruments of any issuer or of any other property; to grant, purchase, sell, exercise, permit to expire, permit to be held in escrow, and otherwise to acquire, dispose of, hold and generally deal in any manner with and in all forms of options in any combination; and, in connection with its exercise of the powers granted in this Trust Agreement, to deposit any securities or other property as collateral with any broker-dealer or other person, to permit securities or other property to be held by or in the name of others or in transferable form, to retain any form of securities or other property received as a result of the exercise of any of the foregoing powers whether or not investment in such securities or other property is otherwise authorized under this Trust Agreement and to hold and administer and securities or other property with respect to which the foregoing powers have or may be exercised, including any securities or collateral acquired by it or in any property received as a result of its exercise of such powers, as a part of the account subject to the foregoing powers, or in any sub-account, which property may be invested in securities or other property of different types than the securities or other property otherwise held in the account. (xiii)To employ suitable agents and counsel and to pay their reasonable and proper expenses and compensation. (xiv)To purchase and sell foreign exchange and contracts for foreign exchange, including transactions entered into with the Trustee, its agents or subcustodians. (xv) To form corporations and to create trusts to hold title to any securities or other property, all upon such terms and conditions as may be deemed advisable by the Investment Manager or Administrator. (xvi)To make, execute and deliver, as Trustee, any and all deeds, leases, mortgages, conveyances, waivers, releases, or other instruments in writing necessary or desirable for the accomplishment of any of the foregoing powers. (xvii)To invest at the Trustee or the Company (or their affiliates) (i) in any type of interest bearing investments (including, but not limited to savings accounts, money market accounts, certificates of deposit and repurchase agreements) and (ii) if specifically authorized in writing by the Administrator, in non-interest bearing accounts (including, but not limited to, checking accounts). (xviii)To invest in collective investment accounts maintained by the Trustee or by others for the investment of assets of employee benefit plans qualified under Section 401 of the Code, whereupon the instruments establishing such funds, as amended, shall be deemed a part of this Trust Agreement and incorporated by reference herein. (xix)To do all other acts although not specifically mentioned herein, as the Trustee may deem necessary to carry out any of the foregoing powers and the purposes of the Trust. (j) Administrative Powers of the Trustee. Notwithstanding the appointment of an Investment Manager, the Trustee shall have the following powers and authority, to be exercised in its sole discretion, with respect to the Trust Fund: (i) To employ suitable agents, custodians and counsel and to pay their reasonable expenses and compensation. (ii) To appoint ancillary trustees to hold any portion of the assets of the trust and to pay their reasonable expenses and compensation. (iii)To register any securities held by its hereunder in its own name or in the name of a nominee with or without the addition of words indicating that such securities are held in a fiduciary capacity and to hold any securities in bearer form and to deposit any securities or other property in a depository or clearing corporation. (iv) To make, execute and deliver, as Trustee, any and all deeds, leases, mortgages, conveyances, waivers, releases or other instruments in writing necessary or desirable for the accomplishment of any of the foregoing powers. (v) Generally to do all ministerial acts, whether or not expressly authorized, which the Trustee may deem necessary or desirable in carrying out its duties under this Trust Agreement. (k) Investment Manager Appointment. The Named Fiduciary, from time to time and in accordance with the provisions of the Plans, may appoint one or more independent investment manager ("Investment Managers"), pursuant to a written investment management agreement describing the powers and duties of the Investment Manager, to direct the investment and reinvestment of all or a portion of the Trust Fund held in a separate account (an "Investment Account"). The Named Fiduciary shall be responsible for ascertaining that while each Investment Manager is acting in that capacity hereunder, the following requirements are satisfied: (a) The Investment Manager is either (i) registered as an investment adviser under the Investment Adviser Act of 1940, as amended, (ii) a bank is defined in that Act, or (iii) an insurance company qualified to perform the services described in (b) below under the laws of more than one state. (b) The Investment Manager has the power to manage, acquire or dispose of any assets of the Plans for which it is responsible hereunder. (c) The Investment Manager has acknowledged in writing to the Administrator and the Trustee that he or it is fiduciary with respect to the Plans within the meaning of Section 3(21)(A) of ERISA. The Administrator or Named Fiduciary shall furnish the Trustee with written notice of the appointment of each Investment Manager hereunder, and of the termination of any such appointment. Such notice shall specify the assets which shall constitute the Investment Account. The Trustee shall be fully protected in relying upon the effectiveness of such appointment and the Investment Manager's continuing satisfaction of the requirements set forth above until it receives written notice from the Administrator or Named Fiduciary to the contrary. The Trustee shall conclusively presume that each Investment Manager, under its investment management agreement, is entitled to act, in directing the investment and reinvestment of the investment account for which it is responsible, in its sole and independent discretion and without limitation, except for any limitations which from time to time the Administrator or Named Fiduciary shall modify the scope of such authority. Section 5. Accounts of the Trustee. The Trustee shall render from time to time (but at least annually and upon removal or resignation) accounts of its transactions to the Administrator and the Administrator may approve such accounts by an instrument in writing delivered to the Trustee. The Administrator shall review such accounts and notify the Trustee of any exceptions or objections to any such account within sixty (60) days. No persons other than the Company or the Administrator may require an accounting or bring any action against the Trustee with respect to the trust or its actions as Trustee. Nothing contained in this Agreement or in the Plan shall deprive the Trustee of the right to have a judicial settlement of its accounts. In any proceeding for a judicial settlement of the Trustee's accounts, or for instructions in connection with the trust, the only necessary parties thereto in addition to the Trustee shall be the Company and the Administrator. If the Trustee so elects, it may bring in as a party or parties defendant any other person or persons. Section 6. Compensation and Expenses. Within thirty (30) days of receipt of the Trustee's bill, which shall be computed and billed in accordance with Schedule "A" attached hereto and made a part hereof, as amended from time to time, the Sponsor shall send to the Trustee a payment in such amount. All brokerage commissions incurred by the Trustee relating directly to the acquisition and disposition of investments constituting part of the Trust, and all taxes of any kind whatsoever that may be levied or assessed under existing or future laws upon or in respect of the Trust or the income thereof, shall be a charge against and paid from the appropriate Plan participants' accounts. Section 7. Directions and Indemnification. (a) Directions. The Trustee shall be fully protected in relying upon a certification of any person authorized to act on behalf of the Administrator or the Named Fiduciary with respect to any instruction, direction or approval of the Administrator or Named Fiduciary, and protected also in relying upon a certification of the Company as to the persons authorized to act on behalf of the Administrator and Named Fiduciary, and in continuing to rely upon such certification until a subsequent certification is filed with the Trustee. The Trustee shall be further protected in relying upon a certification from the Subtransfer Agent appointed by the Company as to the person or persons authorized to give instructions or directions on behalf of such Subtransfer Agent and may continue to rely upon such certification until a subsequent certification is filed with the Trustee. Unless otherwise provided herein or agreed to by the Trustee and Sponsor, any directions to be given to the Trustee under this Agreement by the Administrator, Named Fiduciary or Subtransfer Agent shall be given in writing or by electronic means mutually satisfactory to the Trustee and the person giving the direction. The Trustee shall be fully protected in acting upon any instrument, certificate, or paper believed by it to be genuine and to be signed or presented by the proper person or persons, and the Trustee shall be under no duty to make any investigation or inquiry as to any statement contained in any such writing but may accept the same as conclusive evidence of the truth and accuracy of the statements therein contained. The Trustee shall not be liable for the proper application of any part of the Trust Fund if payments are made in accordance with the directions of the Administrator, Named Fiduciary or Subtransfer Agent as herein provided, nor shall the Trustee be responsible for the adequacy of the Trust Fund to meet and discharge any and all payments and liabilities under the Plan. All persons dealing with the Trustee are released from inquiry into the decision or authority of the Trustee and from seeing to the application of any moneys, securities or other property paid or delivered to the Trustee. Except as provided by ERISA, in no event shall the Trustee have any liability for special, indirect or consequential damages of any form whatsoever (including, without limitation, lost profits) with respect to any claim arising out of or relating to this Agreement whether or not notice has been given as to the possibility of such damages and regardless of the form of action in which any such claim may be brought. (b) Indemnification. The Sponsor shall indemnify the Trustee against, and hold the Trustee harmless from, any and all loss, damage, penalty, liability, reasonable cost, and reasonable expense, including without limitation, reasonable attorneys' fees and disbursements, that may be incurred by, imposed upon, or asserted against the Trustee by reason of any claim, regulatory proceeding, or litigation arising from any act done or omitted to be done by any individual or person with respect to the Plan or Trust, including without limitation the selection of GICs and similar investments by the Sponsor, excepting only any and all loss, etc., arising solely from the Trustee's (or its agents) negligence, willful misconduct, or bad faith. (c) Survival. The provisions of this Section 7 shall survive the termination of this Agreement. Section 8. Resignation or Removal of Trustee. (a) Resignation. The Trustee may resign at any time upon thirty (30) days' notice in writing to the Sponsor, unless a shorter period of notice is agreed upon by the Sponsor. (b) Removal. The Sponsor may remove the Trustee at any time upon thirty (30) days' notice in writing to the Trustee, unless a shorter period of notice is agreed upon by the Trustee. Section 9. Successor Trustee. (a) Appointment. If the office of Trustee becomes vacant for any reason, the Sponsor may in writing appoint a successor trustee under this Agreement. The successor trustee shall have all of the rights, powers, privileges, obligations, duties, liabilities, and immunities granted to the Trustee under this Agreement. The successor trustee and predecessor trustee shall not be liable for the acts or omissions of the other with respect to the Trust. (b) Acceptance. When the successor trustee accepts its appointment under this Agreement, title to and possession of the Trustee assets shall immediately vest in the successor trustee without any further action on the part of the predecessor trustee. The predecessor trustee shall execute all instruments and do all acts that reasonably may be necessary or reasonably may be requested in writing by the Sponsor or the successor trustee to vest title to all Trust assets in the successor trustee or to deliver all Trust assets to the successor trustee. (c) Corporate Action. Any successor of the Trustee or successor trustee, through sale or transfer of the business or trust department of the Trustee or successor trustee, or through reorganization, consolidation, or merger, or any similar transaction, shall, upon consummation of the transaction, become the successor trustee under this Agreement. Section 10. Termination. This Agreement may be terminated at any time by the Sponsor upon thirty (30) days' notice in writing to the Trustee. On the date of the termination of this Agreement, the Trustee shall forthwith transfer and deliver to such individual or entity as the Sponsor shall designate, all cash and assets then constituting the Trust. Notwithstanding the foregoing, in the event of a Plan termination, the Trustee shall not be required to pay out any assets of the Trust fund until it shall have received such rulings or determinations of the Internal Revenue Service, the Labor Department, or any other administrative agency as it may reasonably deem necessary or appropriate in order to assure itself that any such payment is made in accordance with the provisions of law or that it will not subject the Trust fund or the Trustee, individually or as such Trustee, to liabilities for which it is not adequately indemnified. If, by the termination date, the Sponsor has not notified the Trustee in writing as to whom the assets and cash are to be transferred and delivered, the Trustee may bring an appropriate action or proceeding for leave to deposit the assets and cash in a court of competent jurisdiction. The Trustee shall be reimbursed by the Sponsor for all costs and expenses of the action or proceeding including, without limitation, reasonable attorneys' fees and disbursements. Section 11. Resignation, Removal and Termination Notices. All notices of resignation, removal, or termination under this Agreement must be in writing and mailed to the party to which the notice is being given by certified or registered mail, return receipt requested, to the Sponsor c/o Senior Vice President and Treasurer, Bruce F. Antenberg, and to the Trustee c/o Great Western Relationship Manager, The Chase Manhattan Bank, Global Securities Services, 770 Broadway, New York, NY 10003, or to such other addresses as the parties have notified each other of in the foregoing manner. Section 12. Single Fund. The assets of the Trust shall be held, administered, invested and managed in all respects as a single trust even though portions of such assets may be attributable to different employers and the employees of each, or to separate plans maintained by the same employer or different employers. The Subtransfer Agent shall be responsible to maintain and determine the appropriate share of the Trust fund held in respect of any particular Plan or any such group of employees in the event that such maintenance or determination shall be required by the Plan, this Agreement or the operation of law. The determination by the Subtransfer Agent of the shares of the Trust fund held in respect of any such employee group or plan shall be final and conclusive upon all persons. Section 13. Transfer of Assets. Upon written direction of the Named Fiduciary the Trustee shall (i) transfer and deliver such part of the assets or the Trust fund as may be specified in such direction to any trustee or insurance carrier maintaining any other investment medium of the Plan or to any trustee or insurance carrier maintaining any investment medium of a plan, other than the Plan, which qualifies under Section 401(a) of the Code into which plan the Plan (or any portion thereof) shall be merged or consolidated, or (ii) accept the transfer to the Trust fund of assets acceptable to it from any trustee or insurance carrier maintaining any other investment medium of the Plan or from any trustee or insurance carrier maintaining any investment medium of a plan, other than the Plan which qualifies under Section 401(a) of the Code and which (or any portion of which) shall be merged or consolidated with the Plan. Any such transfer shall be subject to the provisions of Section 12 hereof and the Trustee shall have no liability or responsibility (i) to determine whether such transfer shall be in conformity with the provisions of any plan or of ERISA, or (ii) with regard to the effect of such transfer upon any shares of the Trust fund held in respect of participants or beneficiaries in the Plan whose interests (or any portion thereof) in the Trust fund are being so transferred to other funding media, whose interests in other funding media are being so transferred to the Trust fund, or in respect of participants or beneficiaries in the Plan whose shares in the Trust fund are not directly subject to any such transfer. Any such direction by the Named Fiduciary shall constitute a certification that the transfer so directed is one which the Named Fiduciary is authorized to direct and which is in conformity with the provisions of the Plan or any other plan, this Agreement and ERISA. Section 14. Adoption of Trust by Separate Plan. A Separate Plan may be funded in whole or in part through this trust and become a participating Separate Plan hereunder only if all of the following conditions have been met: (a) The Sponsor, subsidiary or an affiliate has established the Separate Plan; (b) The Separate Plan is intended to meet the requirements for qualification under Section 401(a) of the Code; (c) This trust is exempt from taxation under Section 501(a) of the Code; (d) This trust (as then in effect and as the same may be amended from time to time) has been duly adopted as the trust for purposes of funding such Separate Plan; (e) This trust is maintained at all times as a domestic trust in the United States; (f) The Sponsor or the Named Fiduciary is duly authorized to exercise on behalf of such Separate Plan all of the authority vested in it by the terms of this trust; (g) This Agreement is constituted as a part of the Separate Plan to the extent of the beneficial interest of each such Separate Plan in the Trust Fund; and (h) Each Separate Plan is prohibited from making any assignment, either in whole or part, of its beneficial interest in the Trust Fund. When the trust is adopted as a trust under the Separate Plan of any subsidiary or affiliate of the Sponsor, such subsidiary or affiliate shall be bound by the decisions, instructions, actions and directions of the Sponsor, the Named Fiduciary or the Administrator under this Agreement and the Trustee shall be fully protected by the Sponsor and such subsidiary or affiliate in relying upon such decisions, instructions, actions and directions of the Sponsor, the Named Fiduciary or the Administrator. The Trustee shall not be required to give notice to or obtain the consent of any such subsidiary or affiliate with respect to any action which is taken by the Trustee pursuant to this Agreement, and the Sponsor shall have the sole authority to enforce this Agreement on behalf of any such subsidiary or affiliate. Any Separate Plan may at any time segregate from further participation in the trust under this Trust Agreement. The company establishing such Separate Plan and the Sponsor shall file with the Trustee a document evidencing its segregation from the Trust Fund and its continuance as a trust in accordance with the provisions of this Trust Agreement as though such company were the sole creator thereof. In such event, the Trustee shall deliver to itself, as Trustee of such trust, the beneficial interest of such Separate Plan as determined under the provisions of Section 12 hereof. Such company may thereafter exercise in respect of this Trust Agreement all the rights and powers reserved to the Named Fiduciary or the Administrator under the provisions of this Trust Agreement. In lieu of the establishment of a separate trust with respect to the participants and beneficiaries under a segregating Separate Plan in accordance with the foregoing provisions of this Article, such beneficial interest may be segregated as provided above and transferred directly to the trustee or insurance company maintaining the funding medium of a plan other than the Separate Plan in accordance with the provisions of Section 13 hereof. Section 15. Agreement Incorporated in Separate Plans. This Agreement constitutes a part of each Separate Plan and of any separate trust created in connection therewith and is part thereof to the extent of the beneficial interest of each Separate Plan or separate trust in the Trust Fund. Trust assets will be accepted or retained for investment hereunder only from or on account of Separate Plans or separate trusts which are qualified as tax exempt employee benefit trusts under the provisions of the Internal Revenue Code as in effect from time to time. Any separate trust shall be prohibited from making any assignment, either in whole or in part, of its beneficial interest in the Trust Fund. Section 16. Duration. This Trust shall continue in effect without limit as to time, subject, however, to the provisions of this Agreement relating to amendment, modification, and termination thereof. Section 17. Amendment or Modification. This Agreement may be amended or modified at any time and from time to time only by an instrument executed by both the Sponsor and the Trustee. Notwithstanding the foregoing, to reflect increased operating costs the Trustee may once each calendar year amend Schedule "A" without the Sponsor's consent upon one-hundred and eighty (180) days written notice to the Sponsor, provided, however, that no fees shall be increased prior to the third anniversary of the date hereof. Section 18. No Guarantees. Neither the Company, the Employer, the Administrator, the Named Fiduciary nor the Trustee guarantees the Trust Fund from loss or depreciation, nor the payment of any amount which may become due to any person under the Plans or this Trust Agreement. Section 19. Duty to Furnish Information. Both the Company and the Trustee shall furnish to the other any documents, reports, returns, statements, or other information that the other reasonably deems necessary to perform its duties imposed under the Plans or this Trust Agreement or otherwise imposed by law. Section 20. Withholding. The Trustee shall withhold any tax which by any present or future law is required to be withheld from any payment under the Plans. The Administrator shall provide all information reasonably requested by the Trustee to enable the Trustee to so withhold. Section 21. General. (a) Entire Agreement. This Agreement contains all of the terms agreed upon between the parties with respect to the subject matter hereof. (b) Waiver. No waiver by either party of any failure or refusal to comply with an obligation hereunder shall be deemed a waiver of any other or subsequent failure or refusal to so comply. (c) Successors and Assigns. The stipulations in this Agreement shall inure to the benefit of, and shall bind, the successors and assigns of the respective parties. (d) Partial Invalidity. If any term or provision of this Agreement or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (e) Section Headings. The headings of the various sections and subsections of this Agreement have been inserted only for the purposes of convenience and are not part of this Agreement and shall not be deemed in any manner to modify, explain, expand or restrict any of the provisions of this Agreement. Section 22. Governing Law. (a) New York Law Controls. This Agreement and the trust created hereby shall be construed, regulated and administered under the laws of the United States and, to the extent United States law is not applicable, the State of New York and, except where otherwise specifically required by the provisions of ERISA, the Trustee shall be liable to account only in the courts of the State of New York. (b) Trust Agreement Controls. The Trustee is not a party to the Plan, and in the event of any conflict involving the Trustee, between the provisions of the Plan and the provisions of this Agreement, the provisions of this Agreement shall control. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on September 25, 1996, by their duly authorized officers as of the day and year first above written. GREAT WESTERN FINANCIAL CORPORATION By: __/s/ Brue F. Attenberg___ Bruce F. Attenberg, Senior Vice President and Treasurer Attest: ___/s/ Tina D. McKnight___ Assistant Secretary THE CHASE MANHATTAN BANK By: ___/s/ Otis A. Sinnott, Jr.___ Vice President Attest: __/s/ Colleen Cahill___ Vice President EX-5.1 5 EXHIBIT 5.1 EXHIBIT 5.1 [LETTERHEAD OF GREAT WESTERN FINANCIAL CORPORATION] September 25th 1 9 9 6 Great Western Financial Corporation 9200 Oakdale Avenue Chatsworth, California 91311 Re: Great Western Employee Savings Incentive Plan Ladies and Gentlemen: I have examined the Great Western Employee Savings Incentive Plan, as amended and restated effective January 1, 1997 (the "Plan"), and the form of Registration Statement to be filed by Great Western Financial Corporation (the "Company") with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933 of 4,000,000 shares of Company common stock, par value $1.00 per share, together with the two-fifths of a preferred share purchase right attached to each share pursuant to the Company's Rights Agreement, dated as of June 24, 1986, as amended on February 19, 1988 and June 27, 1995, with Morgan Guaranty Trust Company, as Agent (the 'Shares") and of interests in the Plan (together with the Shares, the "Securities"). I have examined the proceedings heretofore taken and proposed to be taken by the Company in connection with the authorization of the Plan and the authorization of the Company common stock that may be issued and sold to the Plan. The shares may include treasury shares or other previously issued shares acquired by the Trustee of the Plan in open market transactions. Based upon such examination and upon such matters of fact and law as we have deemed relevant, and subject to (i) the requisite additional proceedings being duly taken by the Company as are contemplated by us prior to any new issuance and sale of the Securities, and (ii) any required notices to or approval by other regulatory authorities of the issuance and sale of the Securities in the manner proposed by the Company, we are of the opinion that the Securities have been duly authorized by all necessary corporate action on the part of the Company and, when issued in accordance with such authorization and appropriate action as contemplated thereby and by the Plan and related agreements, the Securities will be validly issued and the Shares will be fully paid and nonassessable. I consent to the use of this opinion as an exhibit to the Registration Statement on Form S-8 for the Plan. Respectfully submitted, __/s/ J. Lance Erikson__ J. Lance Erikson Executive Vice President, Secretary and General Counsel EX-5.2 6 EXHIBIT 5.2 EXHIBIT 5.2 [LETTERHEAD OF O'MELVENY & MYERS LLP] September 25th 1 9 9 6 (213) 669-6000 330,955-50 Great Western Financial Corporation 9200 Oakdale Avenue Chatsworth, California 91311 Re: Great Western Employee Savings Incentive Plan Ladies and Gentlemen: In connection with the preparation of the Form S-8 to be submitted by Great Western Financial Corporation (the "Company") to the Securities and Exchange Commission with respect to the Great Western Employee Savings Incentive Plan, as amended and restated effective January 1, 1997 (the "Plan"), you have requested our opinion as to whether the provisions of the written documents constituting the Plan comply with the requirements of the Employee Retirement Income Security Act of 1974 ("ERISA"). The Internal Revenue Service has determined that the Plan, prior to the restatement effective January 1, 1997, constitutes a qualified plan under Sections 401(a) and 401(k) of the Internal Revenue Code of 1986 (the "Code") and satisfies the requirements of the Tax Reform Act of 1986. The Company's most recent determination letter is dated November 10, 1995 and is available on request. We have been advised by you that the Plan will be submitted to the Internal Revenue Service in a timely fashion so that any amendments required by the Internal Revenue Service may be made within the applicable remedial amendment period. Based on the foregoing, and our examination of the Plan and accompanying Trust, it is our opinion that, the form of the Plan satisfies the essential substantive requirements of ERISA and the Code. Our opinion and any determination letter issued by the Internal Revenue Service covers only the form of the Plan and leaves open the question of whether in operation the Plan is qualified. We consent to the use of this opinion as an exhibit to the Registration Statement on Form S-8 for the Plan. Respectfully submitted, /s/ O'Melveny & Myers LLP EX-23.1 7 EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 18, 1996, appearing on page 88 of Great Western Financial Corporation's Annual Report on Form 10-K for the year ended December 31, 1995. /s/ Price Waterhouse LLP Los Angeles, California September 23, 1996 -----END PRIVACY-ENHANCED MESSAGE-----