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Registration No. 333- As filed with the Securities and Exchange Commission on December 21, 2001
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
MARSHALL & ILSLEY CORPORATION
Wisconsin |
39-0968604 |
(State of Incorporation) |
(I.R.S. Employer Identification No.) |
770 North Water Street |
|
Milwaukee, Wisconsin |
53202 |
(Address of Principal Executive Offices) |
(Zip Code) |
_______________
M&I Retirement Program
M. A. Hatfield
Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53202
Copy to:
Larry D. Lieberman
Godfrey & Kahn, S.C.
780 North Water Street
Milwaukee, Wisconsin 53202
(414) 273-3500
_______________
CALCULATION OF REGISTRATION FEE
Title of Securities |
be Registered |
Offering Price Per Share |
Aggregate Offering Price |
Registration Fee |
Common Stock, |
|
|
|
|
(1) Pursuant to Rule 416(c), this registration statement also covers an indeterminate amount of interests in the employee benefit plan described herein.
(2) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c) and (h) based upon the average of the high and low price per share of Marshall & Ilsley Corporation common stock on December 14, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by reference in this Registration Statement:
(a) |
The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000. |
(b) |
The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2001, June 30, 2001 and September 30, 2001. |
(c) |
The Registrant's Current Reports on Form 8-K dated June 22, 2001, June 28, 2001 and August 23, 2001. |
(d) |
The description of the Registrant's Common Stock contained in the Registrant's Registration Statement filed pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any amendment or report filed for the purpose of updating such description. |
All documents subsequently filed by the Registrant or the M&I Retirement Program pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents.
Item 6. Indemnification of Directors and Officers
Section 180.0851 of the Wisconsin Business Corporation Law (the "WBCL") requires a corporation to indemnify a director or officer, to the extent such person is successful on the merits or otherwise in the defense of a proceeding, for all reasonable expenses incurred in the proceeding, if such person was a party to such proceeding because he or she was a director or officer of the corporation. In cases where a director or officer is not successful on the merits or otherwise in the defense of a proceeding, a corporation is required to indemnify a director or officer against liability incurred by the director or officer in a proceeding if such person was a party to such proceeding because he or she is a director or officer of the corporation unless it is determined that he or she breached or failed to perform a duty owed to the corporation and such breach or failure to perform constitutes: (i) a willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest; (ii) a violation of criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or no reasonable cause to believe his or her conduct was unlawful; (iii) a transaction from which the director or officer derived an improper personal profit; or (iv) willful misconduct.
Section 180.0858 of the WBCL provides that subject to certain limitations, the mandatory indemnification provisions do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under a corporation's articles of incorporation or by-laws, a written agreement between the director or officer and the corporation, or a resolution of the board of directors or the shareholders.
Unless otherwise provided in the articles of incorporation or by-laws, or by written agreement between the director or officer and the corporation, an officer or director seeking indemnification is entitled to indemnification if approved in any of the following manners as specified in Section 180.0855 of the WBCL: (i) by majority vote of a disinterested quorum of the board of directors, or if such disinterested quorum cannot be obtained, by a majority vote of a committee of two or more disinterested directors; (ii) by independent legal counsel chosen by a quorum of disinterested directors or its committee (or if unable to obtain such a quorum or committee, by a majority vote of the full board of directors); (iii) by a panel of three arbitrators (one of which is chosen by a quorum of disinterested directors); (iv) by the vote of the shareholders; (v) by a court; or (vi) by any other method permitted i n Section 180.0858 of the WBCL.
Reasonable expenses incurred by a director or officer who is a party to a proceeding may be reimbursed by a corporation, pursuant to Section 180.0853 of the WBCL, at such time as the director or officer furnishes to the corporation written affirmation of his good faith that he has not breached or failed to perform his duties; and written confirmation to repay any amounts advanced if it is determined that indemnification by the corporation is not required.
Section 180.0859 of the WBCL provides that it is the public policy of the State of Wisconsin to require or permit indemnification, allowance of expenses and insurance to the extent required or permitted under Sections 180.0850 to 180.0858 of the WBCL for any liability incurred in connection with any proceeding involving a federal or state statute, rule or regulation regulating the offer, sale or purchase of securities.
As permitted by Section 180.0858, the Registrant has adopted indemnification provisions in its by-laws which closely track the statutory indemnification provisions with certain exceptions. In particular, Section 7.1 of the Registrant's by-laws, among other items, provides that (i) an individual shall be indemnified unless it is proven by a final judicial adjudication that indemnification is prohibited and (ii) payment or reimbursement of expenses, subject to certain limitations, will be mandatory rather than permissive. The Registrant has purchased directors' and officers' liability insurance which insures the Registrant's officers and directors against certain liabilities which may arise under the Securities Act of 1933, as amended (the "Securities Act").
Item 8. Exhibits
4.1 |
M&I Retirement Program |
5.1 |
Opinion of counsel regarding legality of the Common Stock is omitted in accordance with Item 8(a) of Form S-8. No original issuance securities will be issued under the plan. |
5.2 |
Opinion of counsel regarding ERISA matters is omitted in accordance with Item 8(b) of Form S-8. The registrant will submit the plan and all amendments thereto to the Internal Revenue Service in a timely manner and will make all changes required by the IRS to qualify the plan. |
23.1 |
Consent of Arthur Andersen LLP |
24 |
Powers of Attorney for Directors of the Registrant. |
Item 9. Undertakings*
The Registrant hereby undertakes:
(a) |
(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; |
||||
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; |
||||
(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. |
||||
(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) |
That, for the 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, each filing of the 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. |
||||
(h) |
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 of this Registration Statement, 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 questi on 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. |
_________________
* Paragraphs correspond to Item 512 of Reg. S-K.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Milwaukee, State of Wisconsin, on December 20, 2001.
MARSHALL & ILSLEY CORPORATION |
|
(Registrant) |
|
By: /s/ J.B. Wigdale |
|
J.B. Wigdale, Chairman of the Board and |
|
Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities on the dates indicated.
/s/ J.B. Wigdale |
Date: December 20, 2001 |
J.B. Wigdale, |
|
Chairman of the Board and a Director |
|
(Chief Executive Officer) |
|
/s/ Mark F. Furlong |
Date: December 20, 2001 |
Mark F. Furlong |
|
Executive Vice President |
|
(Chief Financial Officer) |
|
/s/ P.R. Justiliano |
Date: December 20, 2001 |
P.R. Justiliano, |
|
Senior Vice President and Corporate Controller |
|
(Chief Accounting Officer) |
Directors: |
Richard A. Abdoo, David Andreas, Oscar C. Boldt, Wendell F. Bueche, Jon F. Chait, Timothy E. Hoeksema, Bruce E. Jacobs, Burleigh E. Jacobs, Donald R. Johnson, Ted D. Kellner, James F. Kress, D.J. Kuester, Katharine C. Lyall, Edward L. Meyer, Jr., San W. Orr, Jr., Peter M. Platten, III, Robert A. Schaefer, John S. Shiely, James A. Urdan, George E. Wardeberg and J.B. Wigdale. |
By /s/ M.A. Hatfield |
Date: December 20, 2001 |
M.A. Hatfield, As Attorney-in-Fact* |
* Pursuant to authority granted by powers of attorney, copies of which are filed herewith.
Pursuant to the requirements of the Securities Act of 1933, the M&I Retirement Program has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Milwaukee, State of Wisconsin on December 20, 2001.
M&I RETIREMENT PROGRAM |
(Plan) |
By: /s/ Dennis Salentine |
Dennis Salentine, Plan Administrator |
EXHIBIT INDEX
Exhibits
4.1 |
M&I Retirement Program |
5.1 |
Opinion of counsel regarding legality of the Common Stock is omitted in accordance with Item 8(a) of Form S-8. No original issuance securities will be issued under the plan. |
5.2 |
Opinion of counsel regarding ERISA matters is omitted in accordance with Item 8(b) of Form S-8. The registrant will submit the plan and all amendments thereto to the Internal Revenue Service in a timely manner and will make all changes required by the IRS to qualify the plan. |
23.1 |
Consent of Arthur Andersen LLP |
24 |
Powers of Attorney for Directors of the Registrant. |
Exhibit 4.1
M&I RETIREMENT PROGRAM
(As amended effective January 1, 1998)
M&I RETIREMENT PROGRAM
(As Amended Effective January 1, 1998)
Table of Contents
Page |
|||||
ARTICLE I |
DEFINITION OF TERMS |
1 |
|||
1.01 |
Account |
1 |
|||
1.02 |
Affiliated Employer |
4 |
|||
1.03 |
Anniversary Date |
4 |
|||
1.04 |
Annual Pay |
4 |
|||
1.05 |
Beneficiary |
4 |
|||
1.06 |
Break in Service |
5 |
|||
1.07 |
Code |
5 |
|||
1.08 |
Disability |
5 |
|||
1.09 |
Eligibility Service |
5 |
|||
1.10 |
Employee |
6 |
|||
1.11 |
Employer |
6 |
|||
1.12 |
ERISA |
6 |
|||
1.13 |
Fund |
6 |
|||
1.14 |
Gross Annual Pay |
6 |
|||
1.15 |
Hour of Service |
7 |
|||
1.16 |
Participant |
7 |
|||
1.17 |
Payroll Disbursement Date |
7 |
|||
1.18 |
Payroll Savings Contributions |
7 |
|||
1.19 |
Plan Administrator |
7 |
|||
1.20 |
Plan Year |
7 |
|||
1.21 |
Profits |
7 |
|||
1.22 |
Qualifying Employer Security or Employer Stock |
8 |
|||
1.23 |
Retirement Date |
8 |
|||
1.24 |
Return on Equity |
8 |
|||
1.25 |
Salary Redirection Contributions |
8 |
|||
1.26 |
Trust |
8 |
|||
1.27 |
Trustee |
8 |
|||
1.28 |
Valuation Date |
8 |
|||
1.29 |
Vesting Service |
8 |
|||
1.30 |
Voluntary Contributions |
9 |
|||
ARTICLE II |
PARTICIPATION |
10 |
|||
2.01 |
Eligibility to Participate |
10 |
|||
2.02 |
Cessation of Participation and Reinstatement |
10 |
|||
2.03 |
Acquisitions |
10 |
|||
ARTICLE III |
PROFIT-SHARING CONTRIBUTIONS AND ALLOCATIONS TO PARTICIPANTS' ACCOUNTS |
|
|||
3.01 |
Profit-Sharing Contributions |
11 |
|||
3.02 |
Make-Up Contribution of Participating Employer |
11 |
|||
3.03 |
Allocation of Profit-Sharing Contributions |
11 |
|||
3.04 |
Form of Contributions |
11 |
|||
ARTICLE IV |
AUTOMATIC CONTRIBUTIONS |
12 |
|||
4.01 |
Prior to 2002 |
12 |
|||
4.02 |
After 2001 |
12 |
|||
ARTICLE V |
PARTICIPANTS' SALARY REDIRECTION CONTRIBUTIONS |
14 |
|||
5.01 |
Salary Redirection Contributions |
14 |
|||
5.02 |
Changes in Amount of Contributions |
14 |
|||
5.03 |
Transfers to Trust |
15 |
|||
5.04 |
Allocation of Participants' Salary Redirection Contributions |
15 |
|||
5.05 |
Nonforfeitability |
15 |
|||
5.06 |
Limitations |
15 |
|||
ARTICLE VI |
EMPLOYER'S INCENTIVE CONTRIBUTIONS |
16 |
|||
6.01 |
Rate of Contributions |
16 |
|||
6.02 |
Reductions for Lack of Profits |
16 |
|||
6.03 |
Make-Up Contribution of Participating Employer |
16 |
|||
6.04 |
Determination of Amount |
17 |
|||
6.05 |
When Contributions Are Made |
17 |
|||
6.06 |
Allocation Requirement |
17 |
|||
6.07 |
Manner of Allocation of Employer's Incentive Contributions |
17 |
|||
6.08 |
Rollover Amounts |
18 |
|||
ARTICLE VII |
LIMITATIONS ON ANNUAL ADDITIONS |
19 |
|||
7.01 |
General Rule |
19 |
|||
7.02 |
Combined Plan Rule |
19 |
|||
7.03 |
Adjustment of Limitations |
19 |
|||
7.04 |
Definitions and Rules |
19 |
|||
7.05 |
Reallocation |
20 |
|||
7.06 |
Code Section 415 |
21 |
|||
ARTICLE VIII |
VESTING |
22 |
|||
8.01 |
Full Vesting Dates |
22 |
|||
8.02 |
Election of Former Vesting Schedule |
22 |
|||
8.03 |
Forfeitures |
23 |
|||
8.04 |
Resumption of Participation |
24 |
|||
ARTICLE IX |
DISTRIBUTIONS |
25 |
|||
9.01 |
Retirement |
25 |
|||
9.02 |
Death |
27 |
|||
9.03 |
Termination of Employment Before Retirement |
29 |
|||
9.04 |
Code Requirements |
30 |
|||
9.05 |
Benefits Only from Fund |
31 |
|||
9.06 |
Valuation for Distribution |
31 |
|||
9.07 |
Timing of Distribution |
31 |
|||
9.08 |
Partial Distributions |
31 |
|||
ARTICLE X |
WITHDRAWALS |
32 |
|||
10.01 |
Withdrawals by Participant |
32 |
|||
10.02 |
Financial Hardship Withdrawal of Voluntary Contributions, Payroll Savings Contributions, Matched and Unmatched Salary Redirection Contributions, Rollover Contributions, and Employer Incentive Contributions Accounts |
|
|||
10.03 |
Timing of Withdrawals |
33 |
|||
10.04 |
Effect on Current Year's Employer Incentive Contributions |
33 |
|||
10.05 |
Restriction on Withdrawals |
34 |
|||
ARTICLE XI |
ADMINISTRATION |
35 |
|||
11.01 |
Named Fiduciaries and Plan Administrators |
35 |
|||
11.02 |
Powers of Administration |
35 |
|||
11.03 |
Claim and Domestic Relations Order Review Procedure |
36 |
|||
ARTICLE XII |
RIGHTS OF PARTICIPANTS |
37 |
|||
12.01 |
No Contract of Employment |
37 |
|||
12.02 |
Restrictions as to Payees |
37 |
|||
12.03 |
Merger, Consolidation or Transfer |
37 |
|||
ARTICLE XIII |
AMENDMENT AND TERMINATION |
38 |
|||
13.01 |
Amendment |
38 |
|||
13.02 |
Termination |
38 |
|||
13.03 |
Non-Reversion |
38 |
|||
ARTICLE XIV |
MISCELLANEOUS |
40 |
|||
14.01 |
Legislation Governs |
40 |
|||
14.02 |
Indemnification |
40 |
|||
14.03 |
Construction |
40 |
|||
14.04 |
Headings |
40 |
|||
14.05 |
Non-Discrimination |
40 |
|||
14.06 |
Absence of Guaranty |
41 |
|||
14.07 |
Unclaimed Accounts |
41 |
|||
14.08 |
Corporate Dispositions |
41 |
|||
14.09 |
Reemployment Following Military Service |
41 |
|||
14.10 |
Expenses |
42 |
|||
14.11 |
Electronic Alternative to Writings |
42 |
|||
ARTICLE XV |
TOP-HEAVY PROVISIONS |
43 |
|||
15.01 |
Application |
43 |
|||
15.02 |
Determination of Top-Heavy Status |
43 |
|||
15.03 |
Special Vesting, Minimum Contribution and Compensation Rules |
|
|||
15.04 |
Impact on Maximum Defined Contribution and Defined Benefit Plan Limitations |
|
|||
15.05 |
Top-Heavy Provisions |
45 |
|||
ARTICLE XVI |
INVESTMENTS |
47 |
|||
16.01 |
Investment Committee |
47 |
|||
16.02 |
Investment Funds |
47 |
|||
16.03 |
Net Earnings |
48 |
|||
16.04 |
Responsibility of Participant |
48 |
|||
16.05 |
Statement to Participants |
48 |
|||
ARTICLE XVII |
VOTING EMPLOYER STOCK |
49 |
|||
ARTICLE XVIII |
DIRECT ROLLOVER |
50 |
|||
18.01 |
General Rule |
50 |
|||
18.02 |
Definitions |
50 |
|||
18.03 |
$1,000 Rule |
51 |
|||
ARTICLE XIX |
LIMITATIONS ON MATCHED AND UNMATCHED SALARY REDIRECTION CONTRIBUTIONS AND EMPLOYER INCENTIVE CONTRIBUTIONS |
|
|||
19.01 |
Deferral Percentage Test For Salary Redirection Contributions |
|
|||
19.02 |
Salary Redirection Contributions Shall be Limited to Certain Maximum Amounts |
|
|||
19.03 |
Restrictions on Salary Redirection Contributions to Satisfy Limitations |
|
|||
19.04 |
Application of Amounts Which Would Have Been Salary Redirection Contributions but for Restriction |
|
|||
19.05 |
Coordination of Salary Redirection Agreements |
54 |
|||
19.06 |
$7,000 Cap on Salary Redirection Contributions |
55 |
|||
19.07 |
Highly Compensated Participant |
56 |
|||
19.08 |
Deferral Percentage Test for Employer Incentive Contributions |
|
|||
19.09 |
Correction of Excess Employer Incentive Contributions |
57 |
|||
19.10 |
Alternative Limitation |
59 |
|||
19.11 |
Data Maintenance |
61 |
|||
19.12 |
Incorporation by Reference |
61 |
|||
19.13 |
Special Manner of Calculation of Tests |
62 |
|||
ARTICLE XX |
FORMER VALLEY ACCOUNTS |
63 |
|||
20.01 |
In General |
63 |
|||
ARTICLE XXI |
FORMER SECURITY EMPLOYEES |
64 |
|||
ARTICLE XXII |
FORMER MSI PLAN ACCOUNTS |
65 |
|||
22.01 |
In General |
65 |
|||
22.02 |
Special Rules |
65 |
|||
ARTICLE XXIII |
FORMER ADVANTAGE PLAN ACCOUNTS |
66 |
|||
23.01 |
In General |
66 |
|||
23.02 |
Special Rules |
66 |
|||
ARTICLE XXIV |
FORMER SECURITY PLAN ACCOUNTS |
68 |
|||
24.01 |
In General |
68 |
|||
24.02 |
Special Rules |
68 |
|||
ARTICLE XXV |
FORMER NATIONAL CITY PLAN ACCOUNTS |
70 |
|||
25.01 |
In General |
70 |
|||
25.02 |
Special Rules |
70 |
|||
ARTICLE XXVI |
FORMER DERIVION PLAN ACCOUNTS |
71 |
|||
26.01 |
In General |
71 |
|||
26.02 |
Special Rules |
71 |
|||
ARTICLE XXVII |
EGTRRA PLAN AMENDMENTS |
73 |
|||
27.01 |
Amendment of the Plan for EGTRRA |
73 |
|||
27.02 |
Limitations on Contributions |
73 |
|||
27.03 |
Increase in Compensation Limit |
73 |
|||
27.04 |
Modification of Top-Heavy Rules |
74 |
|||
27.05 |
Direct Rollovers of Plan Distributions |
75 |
|||
27.06 |
Elective Deferrals - Contribution Limitation |
75 |
|||
27.07 |
Catch-Up Contributions |
76 |
|||
27.08 |
Suspension Period Following Hardship Distribution |
76 |
|||
27.09 |
Repeal of Multiple Use Test |
76 |
|||
27.10 |
Distribution Upon Severance From Employment |
76 |
|||
ARTICLE XXVIII |
ESOP |
77 |
|||
28.01 |
In General |
77 |
|||
28.02 |
Ongoing Contributions to ESOP |
77 |
|||
28.03 |
Voting Employer Stock |
77 |
|||
28.04 |
Dividends |
77 |
|||
28.05 |
ESOP Account Investment |
78 |
|||
28.06 |
Diversification of Investments for Qualified Participants |
78 |
|||
28.07 |
Stock Bonus ESOP |
78 |
|||
28.08 |
Distributions from ESOP Account |
78 |
|||
ARTICLE XXIX |
GUST |
80 |
|||
29.01 |
GUST Amendments for Merged Plans |
80 |
|||
29.02 |
The Merged Plans |
80 |
M&I RETIREMENT PROGRAM
WHEREAS, Marshall & Ilsley Corporation has heretofore adopted and sponsored the M&I Retirement Growth Plan and M&I Incentive Savings Plan;
WHEREAS, Marshall & Ilsley Corporation has determined to merge the plans effective January 1, 1998 and to rename the combined plan as the M&I Retirement Program;
WHEREAS, Marshall & Ilsley Corporation has decided to convert the M&I money purchase pension portion of the plan into a profit sharing plan effective as of January 1, 2002; and
WHEREAS, Marshall & Ilsley Corporation has determined to convert a segment of the profit sharing portion of the plan into an ESOP effective as of January 1, 2002.
NOW, THEREFORE, Marshall & Ilsley Corporation hereby amends and restates the M&I Retirement Growth Plan and M&I Incentive Savings Plan in their entirety by replacing the same with the following M&I Retirement Program effective as of January 1, 1998 (except where a different effective date for a particular provision is specifically set forth):
ARTICLE I
DEFINITION OF TERMS
(a) |
"Profit-Sharing Employer Contribution Account" means the record of a Participant's interest in the Fund attributable to Profit Sharing Contributions, as described in Article III and, for years after 2001, attributable to contributions described in Article IV. |
(b) |
"Money Purchase Pension Employer Contribution Account" means the record of a Participant's interest in the Fund attributable to Money Purchase Pension Contributions made for years prior to 2002, as described in Article IV. |
(c) |
"Transfer Account" means the record of the Participant's interest in the Fund, if any, attributable to the transfer of the amount, if any, of the present value of his accrued benefits under the terminated defined benefit pension plan known as the M&I Retirement Plan. |
(d) |
"Payroll Savings Account" means the record of a Participant's interest in the Trust attributable to his Payroll Savings Contributions and Voluntary Contributions made prior to January 1, 1984. No new Payroll Savings Contributions have been permitted subsequent to December 31, 1983. |
(e) |
"Voluntary Contributions Account" means the record of a Participant's interest in the Trust attributable to his own Voluntary Contributions made subsequent to December 31, 1983 and prior to January 1, 1987 or to his voluntary contributions under a plan merged into this Plan. |
(f) |
"Incentive Contributions Account" means the record of a Participant's interest in the Trust attributable to Employer Incentive Contributions. All references to the Incentive Contributions Account shall apply also to the Post-1984 Incentive Contributions Account, unless in the context of such reference there is a separate reference to the Post-1984 Incentive Contributions Account specifying a different rule for the Post-1984 Incentive Contributions Account. |
(g) |
"Post-1984 Incentive Contributions Account" means a sub-account of the Incentive Contribution Account constituting the record of a Participant's interest in the Trust attributable to Employer Incentive Contributions made with respect to a Participant's Salary Redirection Contributions for the period subsequent to 1984. From and after January 1, 2002, this Account shall be a part of the ESOP portion of the Plan and shall be a part of a Participant's ESOP Account. |
(h) |
"Salary Redirection Contributions Account" means the record of a Participant's interest in the Trust attributable to Salary Redirection Contributions made by the Employer on his behalf pursuant to a salary redirection agreement. |
(i) |
"Rollover Account" means the record of a Participant's interest in the Fund attributable to rollover contributions pursuant to Section 6.08. |
(j) |
"Former Valley Plan Account means the record of a Participant's interest in the Plan attributable to his account in the former Valle Bancorporation Thrift and Sharing Plan which was merged into this Plan effective June 1, 1994. A Participant's Former Valley Plan Account consists of one or more of the following subaccounts: his Former Valley Employer March Account, Former Valley 401(k) Account, Former Valley Non-401(k) Account, Former Valley Pension Transfer Account and Former Valley ESOP Account (including his Former Valley PAYSOP Account, if any). This Account shall be a portion of the Merged Plan Account. |
(k) |
"Former MSI Plan Account" means the record of Participant's interest in the Plan attributable to his account in the former Mutual Services, Inc. Tax Deferred Retirement Plan which was merged into this Plan effective October 1, 1998. A Participant's Former MSI Plan Account consists of one or more of the following subaccounts: Former MSI Before Tax Savings Account (holding 401(k) contributions), Former MSI Profit Sharing Contribution Account (holding profit sharing contributions made by MSI), Former MSI Matching Contribution Account (holding matching contributions made by MSI), Former MSI Rollover Contribution Account (holding rollover contributions to the MSI Plan) and Former MSI Voluntary Contribution Account (holding after tax voluntary contributions made to the former MSI Plan or plans merged into the former MSI Plan). |
(l) |
"Former Advantage Plan Account" means the record of a Participant's interest in the Plan attributable to his account in the Former Advantage Bancorp, Inc. Employees' Profit-Sharing and Savings Retirement Plan (the "Former Advantage Plan") which was merged into this Plan on or about September 1, 1998. A Participant's Former Advantage Plan Account consists of one or more of the following subaccounts: Former Advantage Savings Account (holding 401(k) contributions), Former Advantage Profit-Sharing Contribution Account (holding profit sharing contributions made by Advantage), Former Advantage Matching Contribution Account (holding matching contributions made by Advantage) and Former Advantage Rollover Contribution Account (holding rollover contributions to the Former Advantage Plan). |
(m) |
"Former Security Plan Account" means the record of a Participant's interest in the Plan attributable to his account in the former Security 401(k) Plan (the "Former Security Plan") which was merged into this Plan on or about October 1, 1998. A Participant's Former Security Plan Account consists of one or more of the following subaccounts: Former Security Deferral Contribution Account (holding 401(k) contributions), Former Security Profit-Sharing Contribution Account (holding profit sharing contributions made by Security), Former Security Matching Contribution Account (holding matching contributions made by Security) and Former Security Rollover Contribution Account (holding rollover contributions to the Former Security Plan). |
(n) |
"Former National City Plan Account" means the record of a Participant's interest in the Plan attributable to his account in the Former National City Bancorporation Incentive Savings Plan (the "Former National City Plan") merged into this Plan effective December 31, 2001. A Participant's Former National City Plan Account consists of one or more of the following subaccounts: Former National City Deferral Contributions and Qualified Non-Elective Contributions Accounts (holding 401(k) contributions), Former National City Employer Contributions Account (holding profit sharing contributions made by National City), Former National City Matching Contribution Account (holding matching contributions made by National City) and Former National City Rollover Contributions Account (holding rollover contributions to the Former National City Plan). |
(o) |
"Former Derivion Plan Account" means the record of a Participant's interest in the Plan attributable to his account in the former Derivion Corporation 401(k) Plan (the "Former Derivion Plan") which was merged into this Plan effective December 31, 2001. A Participant's Former Derivion Plan Account consists of one or more of the following subaccounts: Former Derivion Deferral Contribution Account (holding 401(k) contributions), Former Derivion Profit-Sharing Contribution Account (holding profit-sharing contributions made by Derivion), Former Derivion Matching Contribution Account (holding matching contributions made by Derivion) and Former Derivion Rollover Contribution Account (holding rollover contributions to the Former Derivion Plan). |
(p) |
"Merged Plan Account" means the record of a Participant's interest in the Plan attributable to his account or accounts which have been merged into the Plan from other plans (including the Former Valley, Security, Advantage, MSI and Derivion Plan Accounts) originally sponsored by organizations unrelated to Marshall & Ilsley Corporation until acquired by Marshall & Ilsley Corporation. The Merged Plan Account shall consist of such subaccounts as are necessary to preserve separate records for the various types of contributions made to such merged plans, e. g., after-tax contributions of employees, pre-tax 401(k) contributions, matching contributions, etc. |
(q) |
"ESOP Account" means the record of a Participant's interest in the Fund held in the ESOP portion of the Plan. This Account is created effective January 1, 2002. A Participant's ESOP Account shall be comprised of two subaccounts as follows: |
(i) The Post-1984 Incentive Contribution Account |
|
(ii) The ESOP General Investment Account. |
1.03 "Anniversary Date" means the last day of each Plan Year.
(a) |
The total of all amounts paid or payable to an Employee during a specified Plan Year treated as "wages" for purposes of income tax withholding under Internal Revenue Code Section 3401 and all other payments of compensation by the Company to the Employee during the Plan Year for which the Company is required to furnish the Employee a written statement under Code Sections 6041(d), 6051(a)(3) and 6052; but determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment for the services performed (such as the exception for agricultural labor in Internal Revenue Code Section 3401(a)(2)) and reduced by all of the following items (even if includable in gross income): reimbursements or other expense allowances, fringe benefits (cash and non-cash), moving expenses, deferred compensation and welfare benefits. No more than $150,000 of Annual Pay shall be taken into account in any Plan Year. The dollar amount under the foregoing limit shall aut omatically adjust when permissible in accordance with regulations promulgated by the Secretary of the Treasury. |
(b) |
"Annual Pay" shall not include severance pay. |
1.06 "Break in Service" means:
(a) |
Any Plan Year ending after termination of employment during which the Employee does not complete an aggregate of more than 500 Hours of Service with any of the Employer and any Affiliated Employers. |
(b) |
No termination of employment shall be deemed to occur, and hence no Break in Service shall be deemed commenced, by reason of the commencement, after 1984 of any maternity or paternity absence, as such absences are defined in paragraph 202(b)(5) of ERISA, and, solely for the purpose of determining whether or not a Break in Service subsequently occurs under this Plan, up to 501 nonperformance Hours of Service shall be credited during the continuation of such absence, either in the Plan Year of its commencement if a One Year Break in Service otherwise would occur in that year, or, if not, then in the following Plan Year. Such Hours of Service shall be credited at the same rate as normally would occur but for such absence, or, in the case of uncertainty, at the rate of eight hours of service per day of absence. If the Participant does not return to the performance of duties for the Employer or for an Affiliated Employer by the first business day of the first Plan Year after such nonperformance hours are cred ited, then a termination of employment may be deemed to have occurred either on that date or on such later date as any authorized leave of absence given in connection with or during the maternity or paternity absence shall have ended without return of the Participant to such active duties. Nothing in this Section shall be understood to establish or alter any Employer policy with respect to maternity or paternity leaves for any purpose other than the determination of Breaks in Service under this Plan. |
1.07 "Code" means the Internal Revenue Code, as amended.
1.12 "ERISA" means the Employee Retirement Income Security Act of 1974; as amended.
1.16 "Participant" means each Employee who qualifies to participate in the Plan.
1.19 "Plan Administrator" means Marshall & Ilsley Corporation.
(a) |
The Employer's contribution to any other profit-sharing or pension plan of the Employer, |
(b) |
All operating loss carryovers, to the end that all such losses for prior years shall be made up out of succeeding years' earnings before the Employer's Incentive Contributions shall be resumed. |
Net earnings, losses and operating loss carryovers shall be determined in accordance with the Employer's usual tax accounting practices and policies. After net earnings have been determined for any taxable year, no effect shall be given for purposes of this Plan to any subsequent change therein due to subsequent tax refund.
(a) |
"Normal Retirement Date" means the date when a Participant attains age 65. |
(b) |
"Early Retirement Date" means the date upon which a Participant has both attained age 55 and completed 10 years of Vesting Service. |
(c) |
"Disability Retirement Date" means the first day of the month following or coincident with the date on which a Participant is determined by the Employer to have incurred a Disability. |
1.24 "Return on Equity" means for any Employer the percentage that either (i) consolidated income before securities gains or losses and extraordinary items of Marshall & Ilsley Corporation and its subsidiaries, or (ii) consolidated net income of Marshall & Ilsley Corporation and its subsidiaries, for a Year (before deduction for contributions to this Plan but after provision for state and Federal income taxes), whichever is larger, shall bear to the total consolidated stockholders equity in Marshall & Ilsley Corporation as of the beginning of such year.
1.26 "Trust" means the trust created by the agreement between the Employer and the Trustee.
(a) |
Pre-1985 Service. |
|
(i) |
Each Employee who was a Participant in the M&I Retirement Plan shall be credited with Pre-1985 Service equal to his Vesting Service under the M&I Retirement Plan through December 31, 1984. |
|
(ii) |
Each Employee who was not a Participant in the M&I Retirement Plan shall be credited with Pre-1985 Service equal to his years of employment with the Employer or an Affiliated Employer, commencing with his most recent employment date, calculated on the basis of one full year of Vesting Service for each Plan Year prior to 1985 in which the Employee has completed 1 Hour of Service. |
|
(b) |
Post-1985 Service. |
|
Post-1985 Service means an Employee's years of employment with the Employer or an Affiliated Employer, commencing with the later of January 1, 1985 or his employment date until the date on which he quits, is discharged, retires, dies while employed by the Employer or an Affiliated Employer, or incurs a Break in Service, calculated on the basis of one full year of Vesting Service for each Plan Year in which the Employee has completed 1000 Hours of Service. |
||
For any person who first becomes employed by the Employer or an Affiliated Employer as a result of a corporate acquisition (whether by asset purchase, stock purchase, merger or similar transaction), employment with the acquired business prior to such corporate acquisition shall be taken into account as Vesting Service. |
1.30 "Voluntary Contributions" means for years prior to 1984, "Voluntary Contributions" is the amount of a Participant's Annual Pay which he elected to contribute pursuant to Section 5.01 of the M&I Incentive Savings Plan as in effect prior to January 1, 1984 in excess of Payroll Savings Contributions. For years beginning on or after January 1, 1984 and prior to January 1, 1987 "Voluntary Contributions" means the amount of a Participant's Compensation which he elected to contribute to the Plan pursuant to Section 4.07 as then in effect.
ARTICLE II
PARTICIPATION
2.01 Eligibility to Participate.
(a) |
Each person who becomes an Employee shall be eligible to elect Salary Redirection Contributions pursuant to Article V immediately upon becoming a Employee. |
(b) |
Each Employee who is a Group I Participant in the M&I Retirement Growth Plan or a Participant in the M&I Incentive Savings Plan on December 31, 1997 shall be a Participant for purposes of Articles III, IV and VI hereunder. |
(c) |
Each other person who is or becomes an Employee shall become a Participant for purposes of Articles III, IV and VI on the later of (i) January 1, 1998,(ii) the date upon which he completes one (1) year of Eligibility Service or (iii) the date upon which he becomes an Employee as defined in Section 1.10. However, any Employee in the Employer's employ on January 1, 1998, whose employment with the Employer has commenced prior to January 1, 1998 and who was not a Group I Participant in the M&I Retirement Growth Plan on December 31, 1997, shall be eligible as a Participant for purposes of Article III on the date such person would become a Group I Participant under the terms of the M&I Retirement Growth Plan as in effect immediately prior to January 1, 1998. |
2.02 Cessation of Participation and Reinstatement. If a Participant terminates employment with the Affiliated Employers he shall cease to be a Participant; provided, if he is re-employed as an Employee, he shall be reinstated as a Participant as of his re-employment date.
ARTICLE III
PROFIT-SHARING CONTRIBUTIONS
AND ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
3.01 Profit-Sharing Contributions. Each Employer agrees to pay to the Trustee of the Trust with respect to each Plan Year such amounts, if any, from the Employer's current or accumulated Profits as may be determined by the Board of Directors of Marshall & Ilsley Corporation.
The Profit-Sharing Contribution shall be made by the Employer before or as soon as reasonably possible after the close of the Plan Year, without interest and within the time limit for deductibility thereof by the Employer as specified by the Internal Revenue Code.
ARTICLE IV
AUTOMATIC CONTRIBUTIONS
4.01 Prior to 2002. For each Plan Year the Employer agrees to pay to the Trustee an amount equal to 2% of the Participant's Gross Annual Pay for deposit in the Money Purchase Pension Employer Contribution Account of each Participant who has completed 1,000 Hours of Service during such Plan Year and who remains in the Employer's employ on the last day of the Plan Year or who has terminated in such year (i) due to death or (ii) after Retirement Date. The Employer's Money Purchase Pension Contribution for each Plan Year shall be made before or as soon as reasonably possible after the close of the Plan Year, without interest and within the time limit for deductibility thereof by the Employer as specified by the Internal Revenue Code.
(a) |
Prior to 2002 the contributions made pursuant to this Article IV and the provisions of the Plan regarding the administration of these contributions, the investment of these contributions and distribution of these contributions have comprised a money purchase pension plan while the remainder of the M&I Retirement Program has consisted of a profit sharing plan. Effective January 1, 2002, the money purchase pension portion of the M&I Retirement Program is converted into a profit sharing plan and is merged into the profit sharing portion of the M&I Retirement Program. Contributions shall continue to be made in the amounts and under the circumstances described in Section 4.01 above for each year beginning after 2002, however, such contributions shall be deposited in the Participant's Profit Sharing Employer Contribution Account. |
|
(b) |
Revenue Ruling 94-76 requires that any distribution options required in a money purchase pension plan must be continued even after that plan is converted to a profit sharing plan. This rule is met in this Plan because: |
|
(i) |
the distribution options for the profit sharing portion of the Plan and the money purchase pension portion of the Plan have always been the same, continue unchanged and include those options which are required for money purchase pension plans i.e., the Plan includes the joint survivor annuity rules required under Code Section 401(a)(11); and |
|
(ii) |
the Money Purchase Pension Employer Contribution Account and Former Valley Pension Transfer Account of each Participant shall continue as distinct accounts and shall be available for distribution only upon termination of employment at or after Normal Retirement Date or earlier termination of employment, notwithstanding any other provision of the Plan to the contrary. |
|
(c) |
Because neither Revenue Ruling 94-76 nor any other rule of law requires that the assets of a profit sharing plan created by conversion from a money purchase pension plan must be invested in any particular manner, the Money Purchase Pension Employer Contribution Accounts shall cease to be subject to the restriction set forth in the last sentence of Section 16.02 hereof from and after January 1, 2002. |
|
(d) |
The conversion from money purchase pension plan to profit sharing plan shall neither increase nor decrease the vested interest of Participants in their Money Purchase Pension Employer Contribution Accounts. |
ARTICLE V
PARTICIPANTS' SALARY REDIRECTION CONTRIBUTIONS
Each Participant's Gross Annual Pay shall be reduced in accordance with his salary redirection agreement as described herein by reducing each wage or salary payment he would otherwise have received on a Payroll Disbursement Date in the absence of salary redirection by the percentage elected by the Participant. Such salary redirection election shall apply from the effective date thereof through the last Payroll Disbursement Date of such Plan Year and through subsequent Plan Years, except as modified in Section 5.02 below.
Although part of a profit sharing plan, Salary Redirection Contributions shall be made hereunder regardless of the existence of Profits.
If for any reason permitted by law, the Salary Redirection Contributions for the Year by the Employer are not made until after the expiration of the Anniversary Date, such contributions shall nevertheless be deemed to have been made on the Anniversary Date and shall be allocated accordingly.
ARTICLE VI
EMPLOYER'S INCENTIVE CONTRIBUTIONS
6.01 Rate of Contributions. For each Participant for whom the Employer makes a Salary Redirection Contribution for a Plan Year, the Employer will also make an Employer Incentive Contribution for that year equal to a Designated Percentage of the portion of the Participant's Salary Redirection Contribution which does not exceed 6% of Gross Annual Pay. Such Designated Percentage shall be based upon the percent Return on Equity of the Employer, subject, however, to the limitations expressed in Section 6.02 below. Participants who fail to complete 1000 Hours of Service during the Plan Year or who do not remain in the Employer's employ on the last day of the Plan Year shall not share in the allocation of an Employer's Incentive Contributions for that Plan Year under Sections 6.06 and 6.07 and the amount of Employer Incentive Contributions due the Plan pursuant to this Section 6.01 shall be reduced accordingly; provided, however, that the foregoing rule shall not apply to individuals who die during the Plan Year or whose termination of employment during the Plan Year occurs after Retirement Date. (Employer Incentive Contributions are not intended to be and shall not be treated as "qualified matching contributions" or "qualified nonelective contributions" as those terms are defined in IRS Regulation Section 1.401(k)-1(g)(7). Further, such contributions are not intended to be and shall not be regarded as amounts "treated as elective contributions" as such phrase is used in IRS Regulation Section 1.401(k)-1(d)(1)(iii)(6).) In no event, however, shall this provision require the Employer to make such contributions in excess of the maximum amount deductible under Section 404 of the Internal Revenue Code or any successor statutes or any statutes of similar import. The Designated Percentage shall be a function of the percent Return on Equity as follows:
Percent Return on Equity |
Designated Percentage |
below 11.00 |
0 |
11.00 to 11.99 |
25 |
12.00 to 12.99 |
30 |
3.00 to 13.99 |
35 |
14.00 to 14.99 |
40 |
15.00 and above |
50 |
ARTICLE VII
LIMITATIONS ON ANNUAL ADDITIONS
7.01 General Rule. The Annual Addition to a Participant's Accounts under this Plan (and all other defined contribution plans) shall not exceed the lesser of $30,000 or 25% of the Participant's "Section 415 Compensation."
(a) |
The Projected Annual Benefit of the Participant under such defined benefit plans, divided by the lesser of (i) 1.25 multiplied by the maximum dollar limitation for such year for defined benefit plans pursuant to Code Section 415 or (ii) 1.4 multiplied by the Projected Annual Benefit of such Participant under such defined benefit plans determined as of the close of the Plan Year as if such defined benefit plans provided the maximum benefits allowable under Code Section 415 expressed as a percentage of compensation; plus |
(b) |
The sum of the Annual Addition to such Participant's Account under this Plan and all other defined contribution plans maintained by the Employer and Affiliated Employers for such Plan Year and for all prior Plan Years divided by the sum for such Plan Year and all prior Plan Years of the Participant's service with the Employer (including service prior to the effective date of the Plan) of the lesser for each such year of (i) 1.25 multiplied by the maximum dollar limitation under Code Section 415 for such year for defined contribution plans or (ii) 1.4 times the maximum amount of Annual Additions for such year to such Participant's Accounts under such defined contribution plans expressed as a percentage of compensation which could have been made under the maximum dollar limitation of Code Section 415 for defined contribution plans. For purposes of determining the defined contribution fraction, the Plan Administrator may elect to utilize the transition rule set forth in Code Section 415(e)(6). For purposes of this paragraph, the maximum Annual Additions to all Plans may not exceed the amount specified in Section 7.01. This paragraph (b) shall cease to be applicable from and after January 1, 2000. |
7.03 Adjustment of Limitations. The amounts under the foregoing limits shall automatically adjust annually in each Plan Year to the extent permitted by and in accordance with the Internal Revenue Code and regulations promulgated by the Secretary of the Treasury.
(a) |
The Annual Addition of a Participant means contributions made by the Employer and Affiliated Employers for a Plan Year and forfeitures allocable to him plus (a) for Plan Years ending prior to January 1, 1987 the lesser of (i) the portion of his own contributions, if any, during such Year in excess of 6% of his Section 415 Compensation or (ii) one-half of his own contributions, if any, during such Year and (b) for Plan Years beginning after December 31, 1986 his own contributions during such Year. "Annual Addition" shall exclude rollovers from an individual retirement account or qualified plan and shall exclude the amounts transferred from the M&I Retirement Plan. |
(b) |
Projected Annual Benefit means the annual benefit to which a Participant would be entitled under a defined benefit plan (after giving effect to any limitation on such benefit contained in such plan that may be applicable to the Participant) on the assumptions that he continues employment until his normal retirement date thereunder, that his compensation continues at the same rate as in effect for the Plan Year under consideration until such normal retirement date, and that all other relevant factors used to determine benefits under such plan remain constant for all future Plan Years. |
(c) |
For purposes of computing the maximum allocation under either Section 7.01 or Section 7.02, all defined benefit plans (whether or not terminated) of the Employer and Affiliated Employers shall be treated as one defined benefit plan, and all defined contribution plans as defined in Section 414(i) of the Code (whether or not terminated) of the Employer and Affiliated Employers shall be treated as one defined contribution plan. |
(d) |
"Section 415 Compensation" means for each Plan Year the Participant's earnings from his employment with the Employer and, unless otherwise required by regulation, includes bonuses and other taxable payments, but excludes deferred compensation, stock options and other distributions which receive special tax benefits. Salary Redirection Contributions and any other salary reduction contributions pursuant to Code Section 401(k), 125 and 132(f)(4) plans shall be included in years after 1997 only. |
(e) |
No more than $150,000 of Section 415 Compensation shall be taken into account in any year. The dollar amount under the foregoing limit shall automatically adjust when permissible in accordance with regulations promulgated by the Secretary of the Treasury. For purposes of this Article VII, Affiliated Employers shall be determined on the basis of more than 50% ownership rather than at least 80% ownership. |
ARTICLE VIII
VESTING
8.01 Full Vesting Dates. The Participant's interest in his Profit-Sharing and Money Purchase Pension Employer Contribution Accounts shall become fully vested in him and nonforfeitable at the earliest of the following dates:
(a) |
The date the Participant shall have completed at least five years of Vesting Service. |
(b) |
The date of the Participant's death while in the employ of the Employer or of an Affiliated Employer. |
(c) |
The date of Participant's attainment of age 65 or earlier Disability. |
(d) |
The date of termination of the Plan (or partial termination as to Participants affected thereby) or the date of complete discontinuance of contributions by the Employer at a time when the Participant is employed by the Employer or by an Affiliated Employer. |
A Participant's other Accounts in the Plan shall at all times be fully vested and nonforfeitable, except that merged Accounts shall vest in accordance with special rules set forth elsewhere in the Plan.
Notwithstanding the foregoing provisions of this Section 8.01, any Participant whose employment with the Employer is involuntarily terminated as a result of a reduction in force, e.g. due to corporate reorganization, consolidation, downsizing or office closings, shall be deemed to be 100% vested in his Profit-Sharing and Money Purchase Pension Employer Contribution Accounts. (The foregoing special rule shall not apply to any individual whose employment is voluntarily terminated. Similarly, the foregoing special rule shall not apply to any individual whose employment is terminated as a result of unsatisfactory job performance. Finally, the foregoing special rule shall not apply to any individual who is a highly compensated employee (within the meaning of Code Section 414(q)) for the year of termination if for that year the effect of applying such rule to all highly compensated employees who terminate during that year would be to violate IRS Reg. Section 1. 401(a)(4)-4.)
(a) |
The date which is 60 days after the date the amendment is adopted; |
(b) |
The date which is 60 days after the day the plan amendment becomes effective; or |
(c) |
The date which is 60 days after the day the Participant is issued written notice of the amendment by the Employer or Plan Administrator. Such election shall be available only to an individual who is a Participant at the time such election is made and such election shall be irrevocable. |
(a) |
If the Participant receives a distribution of the vested portion of his Accounts prior to incurring five consecutive Breaks in Service, that part of his Profit-Sharing and Money Purchase Pension Employer Contribution Accounts in which he is not vested shall immediately be forfeited. (Any person who terminates employment with no vested interest in his Accounts shall be deemed to have had an immediate distribution of the vested portion (zero) of his Accounts at the time of his termination of employment for purposes of this Section 8.03.) |
|
(b) |
If the Participant is rehired before incurring five consecutive Breaks in Service but after having received distribution of the vested portion of his Accounts, then such Participant's non-vested interest, determined as of the date of forfeiture, shall be restored to his original Profit-Sharing and Money Purchase Pension Employer Contribution Accounts and his vested interest in such Account shall be based on his total years of Vesting Service. Such restoration shall be by means of a special contribution by all Employers (with each Employer's share being the total amount of such contribution multiplied by a fraction of which the numerator is total contributions due from that Employer under Articles III and IV for the Year in which the contribution is made and the denominator is the aggregate contributions due from all Employers under Articles III and IV for such Year) which shall be allocated between his Profit-Sharing Employer Contribution Account and Money Purchase Pension Contribution Account in the sam e proportion as the amounts originally removed from those Accounts which existed at his date of termination and his vested interest in such Accounts shall be based on his total Vesting Service. |
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(c) |
If distribution from the Participant's Profit-Sharing and Money Purchase Pension Employer Contribution Accounts is not made to a Participant before he has incurred five consecutive Breaks in Service, then his unvested interest in his Profit-Sharing and Money Purchase Pension Employer Contribution Accounts, determined as of the end of the Plan Year in which occurs the fifth consecutive Break in Service, shall be forfeited as of the Anniversary Date for that Plan year. The Vesting Service of a terminated Participant who incurs five consecutive Breaks in Service shall not thereafter be increased as it is used to measure his vested interest in his original Profit-Sharing and Money Purchase Pension Employer Contribution Accounts and no further additions shall be made to his original Profit-Sharing and Money Purchase Pension Employer Contribution Accounts if he again becomes a Participant. |
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(d) |
(i) |
Forfeitures from a Participant's Profit-Sharing Employer Contribution Account shall be used to reduce Employer Contributions under Article III for the Plan Year in which such forfeiture occurs. (Each Employer's contributions shall be reduced by multiplying total forfeitures by a fraction of which the numerator is the contribution due from the Employer under Article III for the Year and the denominator is the aggregate contributions due from all Employers under Article III for the Year.) |
(ii) |
With respect to forfeitures from a Participant's Money Purchase Pension Contribution Account, the same shall be held by the Trustee and used to reduce the Employer's contributions under Article IV for the Plan Year in which such forfeiture occurs. (Each Employer's contributions shall be reduced by multiplying total forfeitures by a fraction of which the numerator is the contribution due from that Employer under Article IV for the Year and the denominator is the aggregate contributions due from all Employers under Article IV for the Year.) |
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(iii) |
Subparagraphs (i) and (ii) above shall cease to be applicable after 2001 and instead this subparagraph (iii) shall be applicable after 2001. Forfeitures from a Participant's Profit-Sharing Employer Contribution Account and Money Purchase Pension Contribution Account shall be used to reduce Employer Contributions under Articles III and IV for the Plan Year in which such forfeitures occur. (Each Employer's contributions under Article III and Article IV shall be reduced by multiplying total forfeitures by a fraction of which the numerator is the contribution due from the Employer under Articles III and IV for the year and the denominator is the aggregate contributions due from all Employers under Articles III and IV for the year. |
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(iv) |
Upon reemployment of a Participant a new Employer Contribution Account shall be created for him to which all allocations of contributions and forfeitures after he is reemployed shall be made. |
If a Participant incurs a Break in Service after termination of employment after he has acquired a vested interest in any portion of his Profit-Sharing and Money Purchase Pension Employer Contribution Accounts, then (regardless of the number of such Breaks in Service) all prior Vesting Service shall be aggregated with his subsequent Vesting Service to measure his vested interest in his new Profit-Sharing and Money Purchase Pension Employer Contribution Accounts established upon the Participant's reemployment.
ARTICLE IX
DISTRIBUTIONS
9.01 Retirement. Upon termination of employment with the Affiliated Employers by a Participant on or after his Normal Retirement Date, the Participant shall become entitled to a distribution of his Accounts. Distribution shall commence as soon as practicable after his termination of employment and in any event no later than 60 days after the close of the Plan Year in which such Participant terminates employment, except that an individual may elect in writing to defer commencement of his distribution to a date which is not later than April 1 of the calendar year following the calendar year in which he attains age 70 and 1/2. The amount distributed shall be based on the value of the Participant's Account determined as of the Valuation Date preceding the date of distribution.
At any time after having attained age 59 and 1/2 a Participant who has not terminated employment with the Affiliated Employers may nevertheless elect to receive a distribution of his Accounts (other than his Money Purchase Pension Employer Contribution Account, Profit-Sharing Employer Contribution Account and Former Valley Pension Transfer Account and any other account consisting of monies originally attributable to a money purchase pension plan merged into this Plan or a predecessor to this Plan). Distribution shall commence as soon as practicable after the Participant makes the election to receive a distribution.
Distribution shall commence to a Participant no later than April 1 of the Plan Year following the Plan Year in which he attains age 70 and 1/2 even if he remains in the employ of the Employer. The preceding sentence shall cease to be applicable in the case of individuals who turn age 70 and 1/2 in the year 1999 or later, unless the individual is a not more than 5% owner of the Employer as defined in Internal Revenue Code Section 416(i)(1)(B).
The Participant shall elect which of the following settlement methods shall be used (the provisions of the Plan shall control in the event of conflict between the Plan and any policy or contract issued hereunder):
(a) |
A single lump sum distribution in cash, except that the portion of a Participant's Account invested in the M&I Fund described in Section 16.02 may at the Participant's election be distributed in the form of Qualifying Employer Securities. |
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(b) |
Installment payments in such amounts and over such period of years as elected by the Participant, provided that such period shall not exceed the remaining joint and survivor life expectancy of the Participant and his designated Beneficiary as of the date such payments commence. Installment payments shall be removed from the various investment Funds in which the Participant's Account is invested pro rata from each Fund. |
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Notwithstanding any other provision of this Plan to the contrary, installment distributions which commence after January 1, 2002 shall be available only in annual installments. If any other provision of this Plan would have permitted more frequent installments, e.g., monthly or quarterly installments, such other provision shall only cease to be applicable for benefits which commence on or after the earlier of: |
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(i) |
The 90th day after the date the Participant has been furnished a summary that reflects the amendment and that satisfies the requirements of 29 CFR 2520.104b-3 (relating to a summary of material modifications) for pension plans, or |
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(ii) |
The first day of the second Plan Year following the Plan Year in which the amendment is adopted. |
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(c) |
Entirely in the form of a single-premium nontransferable annuity contract, the single premium for which shall equal the Participant's Account values, which will provide an immediate annuity in the form of monthly payments to the Participant during his lifetime, or during his lifetime with payments guaranteed for a period certain, or monthly payments to the Participant for his lifetime and continuing thereafter for the life of a joint annuitant, as elected by the Participant. |
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(d) |
Entirely in the form of a single-premium nontransferable annuity contract, the single premium for which shall equal the Participant's Account values, which shall provide a "Qualified Joint and Survivor Annuity". A "Qualified Joint and Survivor Annuity" shall mean a life annuity in the case of an unmarried Participant and as to a Participant who is married at the time benefits commence means an annuity for the life of the Participant and continuing thereafter to the Participant's surviving spouse for such spouse's lifetime in an amount which shall be 50% of the joint life annuity. |
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(e) |
Any combination of the foregoing. |
Unless he elects otherwise (and unless his spouse consents to such other election in a writing signed by the spouse and witnessed by a Plan representative or notary public), a married Participant shall have his Account balances applied to buy a Qualified Joint and Survivor Annuity pursuant to (d) above. Such election of an alternative form of payment will not be valid unless (1) the election designates a form of payment (or Beneficiary) which may not be changed without spousal consent or (2) the consent of the spouse permits further designations as to the form of payment (or Beneficiary) by the Participant without any requirement of further consent of the spouse; provided, however, that no general consent of the spouse is valid unless it acknowledges that the spouse has the right to limit consent to a specific Beneficiary and a specific optional form of benefit and that the spouse voluntarily elects to relinquish both of such rights.
At least thirty but no more than ninety days prior to the Participant's benefit commencement date (or within such other reasonable period prior to the Participant's benefit commencement date as shall be determined by the Plan Administrator consistent with applicable governmental regulations), the Plan Administrator shall furnish to the Participant a written notification of the terms and conditions of the Qualified Joint and Survivor Annuity, the availability and general financial effect of any election under this Section to waive the Qualified Joint and Survivor Annuity, the availability of additional information about the specific financial effect of making such election, the rights of the Participant and the Participant's spouse with regard to electing an optional form of benefit and the Participant's right to revoke any such election along with the effect of such revocation. If a Participant makes a request for additional information during the applicabl e election period, the Plan Administrator shall furnish such information, in terms of dollars per benefit payment, to the Participant within 30 days of such request.
Notwithstanding the preceding paragraph, although a Participant is ordinarily required to have at least 30 days to consider whether to elect to receive a distribution and the form of distribution, a Participant shall be permitted to elect (with any applicable spousal consent) to waive such 30 day period and to waive the requirement that the written explanation described in the preceding paragraph precede the Benefit Commencement Date by 30 days so long as that written explanation is provided more than 7 days in advance of the date benefits actually commence (and the Participant may revoke such waiver any time prior to the benefit commencement date or, if later, the eighth day after the explanation described in the preceding paragraph is provided).
For purposes of this Section, "benefit commencement date" means "annuity starting date" as that term is used in Internal Revenue Code Section 417(f), i.e., the first day of the first period for which an amount is payable to the Participant as an annuity or, in the case of a benefit not payable in the form of an annuity, the first day on which all events have occurred which entitle the Participant to payment of such benefit.
A Participant may elect to receive his benefit in the form of any of the settlement methods described herein with the consent of his spouse, if any, during the election period which shall be the 90-day period ending on his benefit commencement date (or such other period specified by the Plan Administrator pursuant to governmental regulations). An election made prior to such election period shall be invalid.
A Participant may revoke any election and make a new election under this Section in writing during the election period. The new election must be consented to by the spouse in the same manner as described above, unless the prior consent of the spouse expressly permits elections by the Participant of a new form of benefit (or Beneficiary) without any further consent by the spouse; provided, however, that no general consent of the spouse is valid, unless the general consent acknowledges that the spouse has the right to limit consent to a specific Beneficiary and a specific optional form of benefit and that the spouse voluntarily elects to relinquish both of such rights.
(a) |
If a Participant or former Participant dies with any Account in the Fund, his Beneficiary shall be entitled to his Account values. |
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(b) |
Such Account values shall be paid to the Participant's Beneficiary under any settlement method available under Section 9.01 which the Beneficiary shall elect. Distribution shall be made as soon as reasonably practicable and, in any event, must commence no later than one year after the Participant's death, except that if or to the extent the Participant's Beneficiary is his surviving spouse distribution must commence no later than the earlier of (i) the date on which the Participant would have attained age 70 and 1/2, or (ii) one year after the death of his surviving spouse. If any Beneficiary is other than an individual the last payment to such Beneficiary must be completed within 5 years after the Participant's death. If distribution commenced prior to the Participant's death, then the balances of the Account(s) must be distributed at least as rapidly as under the method being used on the date of death. |
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(c) |
(i) |
Notwithstanding paragraphs (a) and (b) above, if a married Participant or married former Participant dies, his Account values shall be paid to his spouse in a Pre-Retirement Survivor Annuity; i.e., by purchase of an annuity contract providing an immediate lifetime annuity to his spouse rather than to any other Beneficiary or under any other settlement method which the Participant has designated, unless as part of such designation the Participant has expressly elected against the Pre-Retirement Survivor Annuity during the applicable election period after having been provided with the explanation and information described in subparagraph (ii) below and unless the Participant's spouse consents in writing to such election in a written instrument acknowledging the effect of such election witnessed by a plan representative or notary public. Such spousal consent shall not be valid unless (1) the Beneficiary designation provides that the Beneficiary cannot be changed without spousal consent or (2) the consent of the spouse permits designations of Beneficiaries by the Participant without any requirement of further consent of the spouse; provided, however, that no general consent of the spouse is valid, unless the general consent acknowledges that the spouse has the right to limit consent to a specific Beneficiary and a specific optional form of benefit and that the spouse voluntarily elects to relinquish both of such rights. |
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The "applicable election period" for purposes of this Section 9.02(c)(i) shall be the period which begins on the first day of the Plan Year in which the Participant attains age 35, or during which he terminates employment, if earlier, and ends on the date of the Participant's death (or such other period as may be required by applicable governmental regulations). A Participant may revoke any waiver of the Pre-Retirement Survivor Annuity and make a new waiver at any time during the applicable election period as specified above. The new waiver must be consented to by the spouse in the same manner as described above, unless the prior consent of the spouse expressly permits designations by the Participant of a new Beneficiary without any requirement of further consent by the spouse; provided, however, that no general consent of the spouse is valid, unless the general consent acknowledges that the spouse has the right to limit consent to a specific Beneficiary and a specific optional form of benefit and that the spouse voluntarily elects to relinquish both of such rights. |
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After the Participant's death, a surviving spouse entitled to distribution of the Pre-Retirement Survivor Annuity may in lieu thereof elect in writing any other settlement method available under Section 9.01. Distribution to the spouse shall be made as soon as practicable following death, however, it shall not be made prior to which would have been the Participant's Normal Retirement Date except with the express written consent of the surviving spouse. |
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(ii) |
During the "applicable period," the Plan Administrator shall furnish to the Participant a written notification of the terms and conditions of the Pre-Retirement Survivor Annuity, the necessity of the Participant's spouse's consent to such a waiver for it to be valid, and the Participant's right to revoke any such election along with the effect of such revocation. |
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The "applicable period" means, with respect to a Participant, whichever of the following period ends last: |
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(1) |
The period beginning with the first day of the Plan Year in which the Participant attains age 32 and ending with the close of the Plan Year in which the Participant attains age 34; |
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(2) |
A reasonable period of time after the individual becomes a Participant; |
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(3) |
A reasonable period of time after the survivor benefit provisions of Internal Revenue Code Section 401(a)(11) become applicable to the Participant; or |
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(4) |
A reasonable period of time after separation from service in the case of a Participant who separates from service before age 35. |
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(d) |
Notwithstanding the foregoing, so long as the Participant's benefit commencement date as defined in Section 9.01 has not occurred, the Plan Administrator shall, without regard to whether or not such Beneficiary has so requested, make, as soon as administratively practicable following the Participant's death, distribution to the Beneficiary of the Participant's entire interest in all of his Account(s) valued as of the Valuation Date coincident with or immediately preceding the distribution date if such interest does not exceed $5,000 or such other sum as may be permitted from time to time by applicable governmental regulations. |
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(e) |
The amount distributed shall be based on the value of the Participant's Account determined as of the Valuation Date preceding the date of distribution. |
(a) |
Prior to August 23, 2001, all distributions will be made in accordance with the rules of Internal Revenue Code Section 401(a)(9) and regulations thereunder, including rules of IRS Regulation Section 1.401(a)(9)-2. The rules of Internal Revenue Code Section 401(a)(9) and regulations thereunder shall override any distribution options described in this Plan to the extent that those options could be considered to be inconsistent with the requirements of Code Section 401(a)(9) and regulations thereunder. The rules set forth in the Plan regarding time of commencement of distribution and method of distribution shall be in lieu of the default provisions in IRS Regulation Sections 1.401(a)-1, 1.401(a)(9)-1 and 1.401(a)(9)-2. For purposes of determining compliance with Code Section 401(a)(9), life expectancies shall not be recalculated. |
(b) |
With respect to distributions under the Plan made on or after August 23, 2001 for calendar years beginning on or after January 1, 2001, the Plan will apply the minimum distribution requirements of Section 401(a)(9) of the Internal Revenue Code in accordance with the regulations under Section 401(a)(9) that were proposed on January 17, 2001, notwithstanding any provision of the Plan to the contrary. If the total amount of required minimum distributions made to a Participant for 2001 prior to August 23, 2001 are equal to or greater than the amount of required minimum distributions determined under the 2001 Proposed Regulations, then no additional distributions are required for such Participant for 2001 on or after such date. If the total amount of required minimum distributions made to a Participant for 2001 prior to August 23, 2001 are less than the amount determined under the 2001 Proposed Regulations, then the amount of required minimum distributions for 2001 on or after such date will be determined so that the total amount of required minimum distributions for 2001 is the amount determined under the 2001 Proposed Regulations. This paragraph (b) shall continue in effect until the end of the last calendar year beginning before the effective date of final regulations under Section 401(a)(9) or such other date as may be specified in guidance published by the Internal Revenue Service. |
ARTICLE X
WITHDRAWALS
10.01 Withdrawals by Participant. A Participant may, upon written notice to the Employer at least 30 days in advance, withdraw any amount in the Participant's Payroll Savings Account and/or Voluntary Contributions Account. The Trustee shall, to the extent necessary, convert the appropriate Account Values to cash and distribute the requested amount to the Participant.
Financial hardship is deemed to exist under this Plan if the purpose of the distribution is for:
(a) |
expenses for medical care described in Section 213(d) of the Internal Revenue Code previously incurred by the Participant, the Participant's spouse or any dependent of the Participant (as dependent is defined in Section 152 of the Internal Revenue Code) or necessary for these persons to obtain such medical care; |
(b) |
costs directly related to the purchase (excluding mortgage payments) of a principal residence for the Participant; |
(c) |
payment of tuition, related educational fees and room and board expenses for not more than the next 12 months, of post-secondary education for the Participant, his or her spouse, children or dependents (as defined in Section 152 of the Internal Revenue Code); |
(d) |
payments necessary to prevent the eviction of the Participant from his principal residence or foreclosure on the mortgage of the Participant's principal residence; |
(e) |
payment of funeral expenses of the Participant's spouse or dependents (as defined in Section 152 of the Internal Revenue Code); or |
In the event of a financial hardship, distribution shall first be made from the Participant's Voluntary Contributions Account and second, to the extent necessary, from the Participant's Payroll Savings Contributions Account and third, to the extent necessary, from the Rollover Contribution Account and fourth, to the extent necessary, from the Participant's Employer Incentive Contributions Account and fifth, to the extent necessary, from the Participant's Salary Redirection Contributions Account. Notwithstanding any other provision hereof, no withdrawal of earnings which accrue in Salary Redirection Contribution Accounts after December 31, 1988 shall be permitted.
Before a distribution can be made from this Plan by reason of financial hardship, it will be necessary that the Participant have obtained all distributions, other than hardship distributions, and all non-taxable loans currently available under any and all other tax qualified plans and nonqualified retirement or deferred compensation plans maintained by the Employer of any of its Affiliated Employers.
If any Participant receives a financial hardship distribution, his salary redirection and Salary Redirection Contributions will be suspended until 12 months after receipt of the financial hardship distribution. Following such suspension he must file a new salary redirection agreement before salary redirection and Salary Redirection Contributions may resume. Such suspension shall also apply to employee elective contributions under all other qualified and non-qualified retirement or deferred compensation plan maintained by the Employer.
A Participant who receives a hardship withdrawal and who is suspended from making Salary Redirection Contributions shall continue to be considered an eligible Participant with no contributions during the suspension period for purposes of the deferral percentage test described in Section 19.01.
For purposes of this Section 10.02 any subaccount in the Merged Plan Account which is attributable to the same type of contribution as made to the Accounts available for withdrawal hereunder shall be available for withdrawal on the same terms and conditions as the comparable Account described in this Section 10.02.
ARTICLE XI
ADMINISTRATION
(a) |
to construe and interpret the Plan and to make equitable adjustments for any mistake or errors made in the administration thereof; |
(b) |
to establish and administer the claims procedure provided for in Section 11.05; |
(c) |
to prescribe such procedures, rules and regulations as it shall deem necessary or proper for the efficient administration of the Plan or any of its duties hereunder; |
(d) |
to decide questions of eligibility for participation, determine allocations and determine the right of any person to a benefit and to determine the amount, manner and time of payment of any benefits; |
(e) |
to prescribe the form and manner of application for any benefits hereunder or forms to be used in the general administration hereof; |
(f) |
to receive from Employers and from Participants or their Beneficiaries such information as shall be necessary for the proper administration of the Plan; and |
(g) |
to establish a written procedure for determining the qualified status of any "domestic relations order" and complying with requirements of paragraph 206(d)(3) of ERISA relating to such "domestic relations orders". |
(h) |
to take voluntary corrective action the Plan Administrator considers necessary and appropriate to remedy any inequity that results from incorrect information received or communicated in good faith, or as a consequence of administrative or operational error. Such corrective action may include, but shall not be limited to, taking any action required under the employee plans compliance resolution system of the Internal Revenue Service, any asset management or fiduciary conduct error correction program available through the Department of Labor (DOL) or any similar correction program instituted by the IRS, DOL or other administrative agency, reallocating Plan assets, adjusting amounts of future payments to Participants, Beneficiaries or alternate payees, and instituting and prosecuting any action to recover benefit payments made in error or on the basis of incorrect or incomplete information. |
All determinations of the Plan Administrator shall be conclusive and binding for all purposes hereunder to the fullest extent permitted by law.
The Plan Administrator shall have full and complete discretionary authority to determine eligibility for benefits, to construe the terms of the Plan and to decide any matter presented through the claims review procedure. Any final determination by the Plan Administrator shall be binding on all parties. If challenged in court, such determination shall not be subject to de novo review and shall not be overturned unless proven to be arbitrary and capricious upon the evidence considered by the Plan Administrator at the time of such determination.
Effective January 1, 2001 and notwithstanding an other provision hereof to the contrary, in the event that a qualified domestic relations order permits or requires distribution from a Participant's Account at a time earlier than otherwise permitted under the Plan and if such payment can be made from the currently vested portion of the Participant's Account Values, then such payment shall be made notwithstanding the fact that it is being made prior to the time that the Participant himself or herself could receive distribution of the monies under the rules of the Plan. The Participant's Account balances in the Plan shall be permanently reduced by the amount of such payment from the Plan; the reduction shall, to the extent possible given his vested interest in each of his Accounts in the Plan and unless the qualified domestic relations order specifically orders to the contrary, be made pro rata among each of the Accounts which the Participant has in the Plan. In the event the Participant is not fully vested in his Profit-Sharing and Employer Money Purchase Pension Employer Contribution Accounts at the time such distribution to an alternate payee is made, his vested interest in that Account at any relevant time shall equal P(AB+D)-D. For purposes of applying this formula: P is the vested percentage at the relevant time; AB is the Profit-Sharing and Employer Money Purchase Pension Employer Contribution Account balances at the relevant time; D is the amount of the distribution from his Profit-Sharing and Employer Money Purchase Pension Employer Contribution Accounts to the alternate payee.
ARTICLE XII
RIGHTS OF PARTICIPANTS
ARTICLE XIII
AMENDMENT AND TERMINATION
Unless otherwise specifically stated in the amendment to the contrary, no amendment to this Plan shall have any applicability to persons who retired or otherwise terminated employment prior to the effective date of such amendment. The rights of such persons shall be governed by the provisions of the Plan as in effect at the time of their retirement or earlier termination of employment, except that the rules for investment of Accounts shall apply equally to active and retired or terminated Participants.
Unless the amendment is necessary to permit the Plan to meet the requirements for Treasury approval under the Internal Revenue Code or under any subsequent revenue law, to meet the requirements of the Department of Labor under ERISA or, of any other governmental authority under any other applicable law, no amendment shall adversely affect the benefits to which an Employee became entitled prior to the effective date of such amendment.
(a) |
In the event that the Internal Revenue Service initially determines that the Plan does not constitute a qualified employee pension plan meeting the requirements of Section 401(a) of the Internal Revenue Code with respect to the Employer's initial adoption of the Plan, then the Plan shall be null and void from the effective date with respect to the Employer, and any funds in the Trust at the time of such unfavorable determination which have been contributed by the Employer shall be returned within one year of the adverse Internal Revenue Service determination. In order for this paragraph (a) to be applicable, it is necessary that the application for the determination with respect to the Plan's initial qualification have been made by the time prescribed by law for filing the Employer's return for the taxable year in which such Plan was adopted or such later date as the Internal Revenue Service may prescribe. |
(b) |
All contributions hereunder are hereby expressly made conditional on their deductibility. If a contribution is made to the Trust by the Employer by a mistake of fact, then such contribution shall be returned to the Employer within one year after the payment of the contribution; and if any part or all of a contribution is disallowed as a deduction under Section 404 of the Internal Revenue Code with respect to the Employer, then to the extent a contribution is disallowed as a deduction it shall be returned to the Employer within one year after the disallowance. |
ARTICLE XIV
MISCELLANEOUS
14.01 Legislation Governs. This Plan is intended to meet the requirements of Section 401 and related provisions of the Internal Revenue Code and all applicable provisions of ERISA and regulations thereunder and any amendments thereto or replacements thereof (hereinafter, the "Applicable Employee Benefits Law") and this Plan shall be construed and operated accordingly. In the event of any conflict between any part, clause or provision hereof and the Applicable Employee Benefits Law, the provisions of such law shall be deemed controlling and the conflicting part, clause or provision hereof shall be deemed superseded to the extent of the conflict.
The law of the State of Wisconsin shall govern this Plan in all matters which are to be determined by reference to state law as distinguished from federal law.
(a) |
For purposes of this Plan, an Employee shall be deemed to have terminated his employment in the circumstance where the Employer has sold assets or a subsidiary to an unrelated third party and such person commences working for the purchaser of the assets or continues working for the subsidiary after such sale with the result that the employer of such person is no longer a member of a group of Affiliated Employers that includes Marshall & Ilsley Corporation so long as no assets or liabilities attributable to such person are transferred from this Plan to a plan of the purchaser (or an affiliate of the purchaser under Code Section 414(b), (c) or (m)) and so long as the new employer is not substituted as a sponsor of this Plan (or, in the case of a stock sale, the subsidiary in the hands of the new owner does not continue this Plan). |
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(b) |
So long as required by IRS rules, the foregoing paragraph (a) shall not apply to any Salary Redirection Account of the Participant in the Plan. However, so long as this Plan continues to be maintained after such disposition such Salary Redirection Account may be distributed to a Participant in a lump sum upon: |
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(i) |
The disposition by the Employer of substantially all of the assets (within the meaning of Code Section 409(d)(2) used by the Employer in a trade or business of the Employer but only with respect to an individual who continues employment with the corporation acquiring such assets. |
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(ii) |
The disposition by the Employer of the Employer's interest in a subsidiary (within the meaning of Section 409(d)(3), but only with respect to an individual who continues employment with such subsidiary. |
14.11 Electronic Alternative to Writings. Any election, designation, waiver or other action to be taken in writing pursuant to the provisions of this Plan may instead be made electronically to the extent permitted under IRS and Department of Labor regulations governing retirement plans and to the extent permitted under applicable procedures established by the Plan Administrator.
ARTICLE XV
TOP-HEAVY PROVISIONS
(a) |
the aggregate of the value of all the Accounts (excluding any amount representing a rollover from an IRA or qualified plan and excluding transferred amounts from the M&I Retirement Plan and excluding any amount attributable to deductible voluntary contributions, and, only for the first Plan Year of the Plan, excluding any Employer contributions due to be allocated as of such date) of Key Employees exceeds 60% of the value of such Accounts of all Employees under the Plan (the "60% Test"); or |
(b) |
the Plan is part of a Required Aggregation Group and the Required Aggregation Group is a Top-Heavy Group. |
Notwithstanding the results of the 60% Test, the Plan shall not be considered a top-heavy plan for any Plan Year in which the Plan is part of a Required or a Permissive Aggregation Group which is not a Top-Heavy Group.
(a) |
Notwithstanding the provisions of the regular vesting schedule of this Plan set out in Article VIII hereof, a Participant's interest in his Profit-Sharing and Money Purchase Pension Employer Contribution Accounts shall become fully vested and nonforfeitable as determined in accordance with the following: |
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Portion of Participant's |
Less than 2 |
0 |
At least 2 but less than 3 |
20% |
At least 3 but less than 4 |
40% |
At least 4 but less than 5 |
60% |
At least 5 but less than 6 |
80% |
6 or more |
100% |
If the Plan was a top-heavy plan and subsequently ceases to be such, the vesting schedule in this Section 15.03(a) shall continue to apply in determining the vesting percentage of any Participant who had at least five years of Vesting Service as of the last day of the last Plan Year that the Plan was top-heavy. For all other Participants, two Profit-Sharing and Money Purchase Pension Employer Contribution Accounts shall be maintained--the old Profit-Sharing and Money Purchase Pension Employer Contribution Accounts and the new Profit-Sharing and Money Purchase Pension Employer Contribution Account. The starting balance of the old Profit-Sharing and Money Purchase Pension Employer Contribution Account; shall be the balance as of such last day. All contributions and forfeitures allocated as of a date subsequent to such last day shall be allocated to the new Profit-Sharing and Money Purchase Pension Employer Contribution Accounts. The Participant's vesting percentage with respect to his new Profit-Sharing and Money Purchase Pension Employer Contribution Accounts shall be determined in accordance with the regular vesting schedule provided in Article VIII hereof. The Participant's vesting percentage in his old Profit-Sharing and Money Purchase Pension Employer Contribution Account at any time shall be the greater of (i) the vesting percentage determined under the regular vesting schedule provided in Article VIII hereof or (ii) the vesting percentage determined on such last day under the vesting schedule in this subsection. |
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(b) |
If contributions, including Salary Redirection Contributions or Employer Incentive Contributions, or forfeitures or both are allocated to the Account of any Key Employee, then the total amount thereof, expressed as a percentage of the Key Employee's Code Section 415 compensation (limited to the first $150,000 thereof) subject to annual adjustment automatically in accordance with Code Section 416(d)(2) for the Key Employee receiving the largest such percentage shall be determined. All Participants who remain in the Employer's employ at the end of the Plan Year and who are Non-Key Employees shall then be entitled to receive certain minimum allocations to their Profit-Sharing and Money Purchase Employer Contribution Accounts as follows: |
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(i) |
if the percentage so determined for the Key Employee equals or exceeds 3%, then otherwise eligible non-Key Employees must receive allocations to the combination of their Profit-Sharing and Money Purchase Employer Contribution Accounts of at least 3% of their Code Section 415 compensation; and |
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(ii) |
if the percentage so determined for the Key Employee is less than 3%, then otherwise eligible non-Key Employees must receive allocations at least equal to such percentage. |
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For purposes of satisfaction of the minimum contribution requirements for Non-Key Employees herein imposed, no contributions or benefits under the Social Security Act shall be taken into account nor may contributions under Articles V or VI for Non-Key Employees be taken into account. |
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(c) |
Notwithstanding paragraph (b) above, the amount which must be allocated to Non-Key Employees under paragraph (b) above shall be reduced by the amounts otherwise allocated under Articles III and IV, but not amounts allocated under Article V and VI. |
15.05 Top-Heavy Provisions. For purposes of this Article XV, the following definitions shall apply:
(a) |
"Key Employee" shall mean any employee, former employee or Beneficiary who at any time during the Plan Year or during any of the four preceding Plan Years is |
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(i) |
an officer of the Employer or an Affiliated Employer with an annual compensation from the Employer and Affiliated Employers greater than 50% of the amount in effect in Code Section 415(b)(i)(A) (but not more than 50 officers or, if lesser, the greater of 3 or 10% of the employees of the Employer together with all Affiliated Employers), |
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(ii) |
one of the ten employees having annual compensation from the Employer and Affiliated Employers greater than 100% of the amount in effect in Code Section 415(c)(1)(A) and owning the largest equity interests in the Employer together with all Affiliated Employers, |
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(iii) |
an employee with more than 5% equity interest in the Employer together with all Affiliated Employers, or |
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(iv) |
an employee with a 1% equity interest in the Employer together with all Affiliated Employers and an annual compensation from the Employer and Affiliated Employers of $150,000 or more. |
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(b) |
"Required Aggregation Group" shall mean those plans of the Employer and of all Affiliated Employers in which a Key Employee participates or which must be aggregated in order to satisfy the participation and coverage requirements of Code Sections 401(a)(4) and Code Section 410 |
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(c) |
"Permissive Aggregation Group" shall mean the Required Aggregation Group, plus any other plans maintained by the Employer or an Affiliated Employer, which the Employer may choose to aggregate, provided all plans so aggregated satisfy the participation and coverage requirements of Code Sections 401(a)(4) and Code Section 410. |
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(d) |
"Top-Heavy Group" means any aggregation group in which the present value of all accrued benefits (excluding amounts attributable to deductible voluntary contributions) of Key Employees exceeds 60% of the present value of all accrued benefits for all participants in plans within the aggregation group. |
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(e) |
"Non-Key Employee" means any employee of the Employer or an Affiliated Employer who is not a Key Employee. |
ARTICLE XVI
INVESTMENTS
16.01 Investment Committee. The Chairman of Marshall & Ilsley Corporation shall appoint the M&I Retirement Investment Committee (the "Investment Committee) consisting of a Chairman and two additional members to direct the Trustee with respect to the investment of the Fund. The Chairman and each such additional member of the Investment Committee shall serve at the pleasure of the Chairman of Marshall & Ilsley Corporation until their successors are appointed in like manner. Such Committee shall be a named fiduciary of the Plan.
Any such Investment Committee may in its regulations or by action delegate the authority to any one or more of its members to take any action on behalf of the Investment Committee and as to such actions, no meetings or unanimous consent shall be required. The Investment Committee may also act at a meeting or by its unanimous written consent. A majority of the members of the Investment Committee shall constitute a quorum for the transaction of business and shall have full power to act hereunder. All decisions shall be made by vote of the majority present at any meeting at which a quorum is present, except for actions in writing without a meeting which must be unanimous. The Investment Committee may appoint a Secretary who may, but need not be, a member of the Investment Committee. The Investment Committee may adopt such bylaws and regulations as it deems desirable for the conduct of its affairs.
The Investment Committee shall have full power to exercise the Employer's power under the Trust to direct investments or to appoint Investment Managers unless and until such authority is superceded by action of the Board of Directors of Marshall Ilsley Corporation (or its successor).
16.05 Statement to Participants. The Plan Administrator shall cause to be furnished to each Participant, no less frequently than once in each Plan Year, a statement showing the value of each of his Accounts.
ARTICLE XVII
VOTING EMPLOYER STOCK
To the extent that any shares of the Employer Stock held as part of the Fund have voting rights attendant thereto, the Trustee shall exercise such voting rights as provided herein.
At the time notice is given to any holder of such Employer Stock with respect to the holding of a shareholders meeting, Marshall & Ilsley Corporation shall cause to be prepared and delivered to each Participant who has Employer Stock allocated to his Account, a notice and form of proxy directing how the Trustee shall vote at such a meeting or any adjournment thereof. Such notice shall instruct each individual to return in accordance with reasonable time deadlines and procedures his proxy to a fiduciary appointed by the Investment Committee (or an independent fiduciary in turn appointed by the original fiduciary pursuant to Section 404(c) compliance procedures established by the Committee).
The fiduciary (or an independent fiduciary in turn appointed by the original fiduciary pursuant to Section 404(c) compliance procedures established by the Committee) appointed by the Investment Committee shall direct the Trustee to vote all shares of Employer Stock held in a Participant's Account for which it has received instructions, in accordance with those instructions. With respect to Employer Stock held in an Account for which no instructions have been timely received from individuals pursuant to the preceding paragraph prior to the time for voting, such Employer Stock shall not be voted unless the Trustee is otherwise directed by the Investment Committee.
The rules set forth above shall also apply in the context of a tender offer or solicitation of proxies, consents or other authorizations.
ARTICLE XVIII
DIRECT ROLLOVER
(a) |
Eligible rollover distribution: an eligible rollover distribution is any distribution otherwise authorized by the Plan of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include: 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; any distribution to the extent such distribution is required under Section 401(a) of the Code; and the portion of any distribution that is not includable in gross income determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). Effective January 1, 1999, a hardship withdrawal described in Code Section 401(k)(2)(B)(i)(iv) (and effective January 1, 2002 any hardship with drawal) shall not be treated as an eligible rollover distribution. |
(b) |
Eligible retirement plan: 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. |
(c) |
Distributee: 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. |
(d) |
Direct rollover: A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee. |
18.03 $1,000 Rule. If the recipient should fail to make a direct rollover election with respect to a distribution which is an eligible rollover distribution and if the amount of that distribution is in excess of $1,000, then the Plan Administrator shall cause the recipient's distribution to be rolled to an individual retirement account selected by the Plan Administrator. (Of course, once such distribution is made the recipient may elect to receive a distribution from the individual retirement account or to roll the assets of that individual retirement account to some other individual retirement account or employer sponsored retirement plan authorized under the Code to accept rollovers.) The rules of this paragraph (e) are effective after December 31, 2001 or such later date as established under applicable regulations.
ARTICLE XIX
LIMITATIONS ON MATCHED AND UNMATCHED
SALARY REDIRECTION CONTRIBUTIONS
AND EMPLOYER INCENTIVE CONTRIBUTIONS
(a) |
The deferral percentage for the group of Highly Compensated Participants for the Plan Year shall not exceed the deferral percentage for all other Participants for the prior Plan Year multiplied by 1.25; or |
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(b) |
(i) |
The excess of the deferral percentage for the group of Highly Compensated Participants for the Plan Year over that of all other Participants for the prior Plan Year shall not exceed two percentage points, and |
(ii) |
The deferral percentage for the group of Highly Compensated Participants for the Plan Year shall not exceed the deferral percentage for all other Participants for the prior Plan Year multiplied by 2.0. |
For purposes of determining whether the Plan satisfies the actual deferral percentage test in this Section 19.01, all Salary Redirection Contributions made under this Plan will be aggregated with deferral contributions made under any other qualified plan(s) of the Company or an Affiliated Employer if this Plan and such other plan(s) are aggregated for purposes of Code Section 410(b) (other than Code Section 410(b)(2)(A)(ii)). The Plan Administrator may elect to apply the above test on the basis of current Plan Year data, rather than prior Plan Year data for the group of Participants who are not Highly Compensated Employees; provided, however that if the Plan Administrator elects to use current year data for any Plan Year, it may only elect to return to the use of prior year data for a succeeding Plan Year after 2001 if such election change is consistent with applicable Treasury rules.
For purposes of this Section 19.01:
(a) |
A "Highly Compensated Participant" has the meaning set forth in Section 19.07. |
(b) |
"Deferral Percentage" for each Participant means the amount of the Participant's Salary Redirection Contributions for the relevant Plan Year divided by the Participant's Gross Annual Pay for the relevant Plan Year. The deferral percentage for both the group of Highly Compensated Participants and the group of all other Participants shall be the average of the individual deferral percentages calculated for each of the individual Participants in the group. In calculating the Deferral Percentage of each individual Participant, the Deferral Percentage shall be rounded to the nearest one hundredth of one percent. Similarly, in calculating the average Deferral Percentage for a group, such average Deferral Percentage shall be rounded to the nearest one hundredth of one percent. For purposes of this calculation, all employees of the Employers who sponsor this Plan shall be treated as though they were employed by a single Employer. |
The percentage of salary redirection and Salary Redirection Contributions on behalf of the Highly Compensated Participant(s) for whom the Deferral Percentage under Section 19.01 is the highest (the "First Highest Participant(s)") shall be reduced pro rata to the extent necessary to satisfy Section 19.01, but not below the Deferral Percentage for the Highly Compensated Participant(s) for whom such Deferral Percentage is the next highest (the "Second Highest Participant(s)"); and then, if further reduction is needed, the percentage of the salary redirection and Salary Redirection Contributions on behalf of the First Highest Participant(s) and Second Highest Participant(s) shall be reduced pro rata, to the extent necessary to satisfy Section 19.01, but not below the Deferral Percentage for the Highly Compensated Participant(s) for whom such Deferral Percentage is the next highest; and so on to the extent necessary until the test of Section 19.01 is satisfied. For purposes of this Section 19.03, all Deferral Percentages shall be rounded to the nearest one hundredth of one percent as provided in Section 19.01 |
.
To the extent that Marshall & Ilsley Corporation in its sole discretion determines that the Salary Redirection Contributions of a Participant for any period during a Year are to be restricted in order to comply with the limitations specified in this Article XIX of the Plan, Marshall & Ilsley Corporation will notify the Participant of such fact.
When excess contributions are distributed, the amount to be distributed shall be increased by earnings thereon or reduced by losses thereon for the Plan Year and for the period between the end of the Plan Year to which such excess contributions relate (but not for the period between the end of that Plan Year and the date of distribution). Earnings and losses shall be determined without regard to whether there has been realized appreciation or loss.
The earnings or losses allocable to the excess contributions for the Plan Year are determined by multiplying net earnings or losses for the Plan Year in the Participant's Salary Redirection Contributions Accounts by a fraction. The numerator of the fraction is the amount of the excess contributions on behalf of the Participant for the Plan Year. The denominator of the fraction is the total balance of the Participant's Salary Redirection Contributions Accounts as of the first day of the Plan Year plus the Participant's Salary Redirection Contributions for the Plan Year.
Even though such excess contributions are distributed, they shall nevertheless be taken into account for purposes of the limitation on Annual Additions described in Article VII.
If the distribution of any excess contributions under this Section 19.04, or the distribution of any excess deferrals under Section 19.06, results in any Employer Incentive Contributions attributable to such excess contributions or excess deferrals violating the discrimination rules of Code Section 401(a)(4), such Employer Incentive Contributions (and income thereon, if required by applicable rules) shall be distributed as described in Section 19.08.
In the unanticipated event that more than such amount of Salary Redirection Contributions has been made by the Employer on behalf of the Participant to this Plan in any calendar year (and/or in the event that the Participant has had more than such amount of such contributions made on his behalf under this Plan and any other qualified plans of any employer or any other plans subject to Code Section 402(g) in which he is covered and, with respect to a plan not sponsored by the Employer or an Affiliated Employer, has by writing communicated to the Plan Administrator prior to March 1st of the year following the year for which such contributions were made the amount of such excess contributions which are to be attributed to this Plan) any such excess contributions (plus earnings or reduced by losses thereon) shall be distributed to him prior to April 15th of the year following the calendar year to which the excess contributions relate.
Excess contributions (plus earnings or reduced by losses thereon) which are distributed prior to April 15th of the calendar year following the calendar year with respect to which they were made shall not be taken into account for purposes of the limitation on Annual Additions described in Article VII. Such distributed excess contributions (plus earnings or reduced by losses thereon) shall be taken into account as Salary Redirection Contributions for purposes of Section 19.01 above for the Plan Year to which they relate for Highly Compensated Participants but not for non-Highly Compensated Participants.
When excess contributions are distributed, the amount to be distributed shall be increased by earnings thereon or reduced by losses thereon for the calendar year to which such excess contributions relate (but not for the period between the end of that calendar year and the date of distribution). Earnings and losses shall be determined without regard to whether there has been realized appreciation or loss.
The earnings or losses allocable to the excess contributions for the calendar year are determined by multiplying net earnings or losses for the calendar year in the Participant's Salary Redirection Contributions Account by a fraction. The numerator of the fraction is the amount of the excess contributions on behalf of the Participant for the calendar year. The denominator of the fraction is the total balance of the Participant's Salary Redirection Contributions Account as of the first day of the calendar year, plus the Participant's Salary Redirection Contributions for the calendar year.
Contributions treated as Salary Redirection Contributions for purposes of tests in this Article XIX which are not in fact Salary Redirection Contributions (e.g., Employer Incentive Contributions tested as Salary Redirection Contributions under Section 19.10(c)) are not subject to the limitations of this Section 19.06.
In the event that amounts are to be distributed to Participants as a result of excess contributions under this Section 19.06 and in the event that amounts are to be distributed to Participants as a result of excess contributions under Section 19.04 and/or excess aggregate contributions under Section 19.09, the excess contributions (plus earnings or reduced by losses thereon) for purposes of this Section 19.06 shall be calculated and distributed first and, then, the excess contributions (plus earnings or reduced by losses thereon) for purposes of Section 19.04 shall be calculated and distributed second, and then the excess aggregate contributions (plus earnings or reduced by losses thereon) for purposes of Section 19.09 shall be calculated and distributed third, consistent with rules prescribed by the Secretary of the Treasury.
(a) |
was more than a 5% owner, as defined in Code Section 416(i)(1)(B), of the Employer or any Affiliated Employer during the Plan Year or immediately preceding Plan Year; or |
(b) |
during the immediately preceding Plan Year received annual compensation from the group consisting of the Employer and any Affiliated Employers of more than $80,000 (or such greater amount as may be established by the Internal Revenue Service) and was in the top 20% of employees in the group consisting of the Employer and any Affiliated Employers during that immediately preceding year. |
For purposes of this Section 19.07 "compensation" shall have the same meaning as Section 415 Compensation as defined in Section 7.04(d) plus for years prior to 1998 the amounts described in the last sentence of Section 7.04(d).
In addition, for any Plan Year following reemployment after a termination of employment, an employee shall be treated as a Highly Compensated Employee if, either at the time he originally terminated employment or at any time after attaining age 55, he was a Highly Compensated Employee.
The determination of who is a Highly Compensated Employee shall be made in accordance with Code Section 414(q) and regulations thereunder (including the use of any transition rules and/or available alternatives, as elected by the Employer).
19.08 Deferral Percentage Test for Employer Incentive Contributions.
(a) |
For each Plan Year the deferral percentage for the group of Highly Compensated Participants shall meet one of the following tests: |
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(i) |
The deferral percentage for the group of Highly Compensated Participants for the Plan Year shall not exceed the deferral percentage for all other Participants for the prior Plan Year multiplied by 1.25; or |
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(ii) |
(1) |
The excess of the deferral percentage for the group of Highly Compensated Participants for the Plan Year over that of all other Participants for the prior Plan Year shall not exceed two percentage points, and |
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(2) |
The deferral percentage for the group of Highly Compensated Participants for the Plan Year shall not exceed the deferral percentage for all other Participants for the prior Plan Year multiplied by 2.0. |
For purposes of determining whether the Plan satisfies the percentage test in this Section 19.08, all Employer Incentive Contributions made under this Plan will be aggregated with any after-tax contributions and/or matched contributions under any other plan(s) of the Employer or an Affiliated Employer if this Plan and such other plan(s) are aggregated for purposes of Code Section 410(b) (other than Code Section 410(b)(2)(A)(ii)). The Plan Administrator may elect to apply the above test on the basis of current Plan Year data, rather than prior Plan Year data for the group of Participants who are not Highly Compensated Employees; provided, however that if the Plan Administrator elects to use current year data for any Plan Year, it may only elect to return to the use of prior year data for a succeeding Plan Year after 2001 if such election change is consistent with applicable Treasury rules.
(b) |
For purposes of this Section 19.08: |
|
(i) |
"Highly Compensated Participant" has the same meaning as set forth in Section 19.07. |
|
(ii) |
"Deferral percentage" for each Participant means the amount of the Employer Incentive Contributions allocated to the Participant for the relevant Plan Year divided by the Participant's Gross Annual Pay for the relevant Plan Year. The deferral percentage for both the group of Highly Compensated Participants and the group of all other Participants shall be the average of the individual deferral percentages calculated for each of the individual Participants in the group. In calculating the Deferral Percentage of each individual Participant, the Deferral Percentage shall be rounded to the nearest one hundredth of one percent. Similarly, in calculating the average Deferral Percentage for a group, such average Deferral Percentage shall be rounded to the nearest one hundredth of one percent. For purposes of this calculation, all employees of all the Employers who sponsor this Plan shall be treated as though they were employed by a single Employer. A Participant who is ineligible to share in an allocation of Employer Incentive Contributions shall be ignored for purposes of the tests in this Section 19.08. |
19.09 Correction of Excess Employer Incentive Contributions.
(a) |
Notwithstanding any other provision of the Plan to the contrary, the Employer Incentive Contributions due under Article VI may, in the discretion of Marshall & Ilsley Corporation, be reduced to the amount which, in the judgment of Marshall & Ilsley Corporation, in its sole discretion, equals the sum of (1) the Employer Incentive Contributions which would ordinarily be made and allocated under Article VI for non-Highly Compensated Participants plus (ii) the maximum amount of Employer Incentive Contributions which can be made and allocated under Article VI for Highly Compensated Participants (restricted as provided in the paragraph (b) below) and still remain in compliance with the limitations of Section 19.08 without having to return excess contributions. |
(b) |
Notwithstanding any other provision of the Plan to the contrary, in the event the Marshall & Ilsley Corporation determines that it is necessary to reduce the allocation of Employer Incentive Contributions to Highly Compensated Participants to satisfy the test of Section 19.08, such reduction shall be in accordance with the following procedure: |
The allocation of Employer Incentive Contributions on behalf of the Participant(s) on behalf of whom allocations were to be the highest (the "First Highest Participant(s)") shall be reduced pro rata to the extent necessary to satisfy Section 19.08 but not below the amount of allocation of Company Matching Contributions for the Participant(s) from whom such allocations were to be the next highest (the "Second Highest Participant(s)"); and, then, if further reduction is needed, the allocation of Employer Incentive Contributions on behalf of the First Highest Participant(s) and Second Highest Participant(s) shall be reduced pro rata, to the extent necessary to satisfy Section 19.08, but not below the level of the allocations for the Participant(s) for whom such allocations were to be the next highest; and so on to the extent necessary. |
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(c) |
Any amounts which were allocated to a Highly Compensated Participant's Account for a Plan Year as Employer Incentive Contributions under Article VI which would cause violation of the test of Section 19.08 above for that Plan Year shall be deemed to be excess aggregate contributions. Such excess aggregate contributions (and income) of a Participant shall be designated by the Employer as a distribution of excess aggregate contributions (and income) under Code Section 401(m) and shall be distributed to him by the end of the Plan Year following the Plan Year with respect to which such excess aggregate contributions were made. (The Employer recognizes that if the Plan Administrator does not make such distribution by March 15th following the Plan Year with respect to which such excess aggregate contributions were made, the Employer will be subject to an excise tax under Code Section 4979.) |
For purposes of determining the amount of excess aggregate contributions of each Highly Compensated Participant, it is first necessary to determine the dollar amount by which each such Participant's Matching Contributions would have been restricted under paragraph (b) above in order to achieve compliance with the tests of Section 19.08. Then, the aggregate dollar amount of such contributions for all such Participants is to be calculated. Then, the total of those excess aggregate contributions for any Plan Year shall be distributed to Highly Compensated Participants on the basis of the amount of contributions (rather than the percentage of Gross Annual Pay which those contributions represent) on behalf of, or by, each such person in accordance with the requirements of Code Section 401(m). |
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When excess aggregate contributions are distributed, the amount to be distributed shall be increased by earnings thereon or reduced by losses thereon for the Plan Year and for the period between the end of the Plan Year (but not for the period between the end of the Plan Year and the date of distribution). Earnings and losses shall be determined without regard to whether there has been realized appreciation or loss. |
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The earnings or losses allocable to the excess aggregate contributions for the Plan Year are determined by multiplying net earnings or losses for the Plan Year in the Participant's Post-1984 Incentive Contributions Account by a fraction. The numerator of the fraction is the amount of the excess contributions on behalf of the Participant for the Plan Year. The denomination of the fraction is the total balance of such Employer Incentive Account as of the first day of the Plan Year, plus the Employer Incentive Contributions for the Participant for the Plan Year. |
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Even though such excess aggregate contributions are distributed, they shall nevertheless be taken into account for purposes of the limitation on Annual Additions described in Article VII. |
(a) |
Notwithstanding any other provision of the Plan to the contrary, for each Plan Year prior to 2002 it is necessary that the sum of (i) the average Deferral Percentage for the group of Highly Compensated Participants determined under Section 19.01 plus (ii) the average Deferral Percentage for the group of Highly Compensated Participants determined under Section 19.08 may not exceed the Aggregate Percentage for non-Highly Compensated Participants. |
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The "Aggregate Percentage" for non-Highly Compensated Participants is the greater of (i) or (ii) below: |
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(i) |
The sum of (1) plus (2) where: |
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(1) |
is One Hundred twenty-five percent of the greater of: |
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a. |
The average Deferral Percentage for the group of non-Highly Compensated Participants determined under Section 19.01, or |
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b. |
The average Deferral Percentage of the group of non-Highly Compensated Participants determined under Section 19.08; and |
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(2) |
is the lesser of: |
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a. |
Two times the lesser of: |
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i. |
The average Deferral Percentage of the group of non-Highly Compensated Participants calculated under Section 19.01; or |
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ii. |
The average Deferral Percentage of the group of non-Highly Compensated Participants determined under Section 19.08. |
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b. |
Two percentage points plus the lesser of: |
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i. |
The average Deferral Percentage of the group of non-Highly Compensated Participants calculated under Section 19.01 or |
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ii. |
The average Deferral Percentage of the group of non-Highly Compensated Participants determined under Section 19.08. |
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(ii) |
the sum of (1) plus (2) where: |
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(1) |
is One Hundred Twenty-Five percent of the lesser of: |
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a. |
The average Deferral Percentage of the group of non-Highly Compensated Participants determined under Section 19.01, or |
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b. |
The average Deferral Percentage of the group of non-Highly Compensated Participants determined under Section 19.08; and |
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(2) |
is the lesser of: |
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a. |
Two times the greater of: |
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i. |
The average Deferral Percentage of the group of non-Highly Compensated Participants calculated under Section 19.01; or |
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ii. |
The average Deferral Percentage of the group of non-Highly Compensated Participants determined under Section 19.08. |
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b. |
Two percentage points plus the greater of: |
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i. |
The average Deferral Percentage of the group of non-Highly Compensated Participants calculated under Section 19.01 or |
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ii. |
The average Deferral Percentage of the group of non-Highly Compensated Participants determined under Section 19.08. |
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(b) |
In the event that the contributions made for and allocated to Highly Compensated Participants for a Plan Year cause the limitation of paragraph (a) to be exceeded, the violation shall at the election of Employer be deemed attributable to Salary Redirection Contributions or Employer Incentive Contributions or both and any excess shall be distributed under Sections 19.05 and 19.09 as applicable so that after such distributions are complete the tests of Sections 19.01, 19.08, this Section 19.10 are all met. |
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(c) |
At the election of the Employer for any Plan Year, all or part of the Salary Redirection Contributions which would ordinarily be tested under the provisions of Section 19.01 through 19.04 may be tested as though they were Employer Incentive Contributions along with any other Salary Redirection Contributions under Section 19.08 through 19.09 (and for purposes of the alternative limitation of this Section 19.10.) (If Salary Redirection Contributions are so tested as though they were Employer Incentive Contributions, they must first be tested along with other Salary Redirection Contributions under the provisions of Sections 19.01 through 19.04 before they are then tested along with Employer Incentive Contributions under the provisions of Sections 19.08 and 19.09 and the alternative limitation of this Section 19.10.) Conversely, Employer Incentive Contributions which would ordinarily be tested under the provisions of Sections 19.08 and 19.09 may, at the election of the Employer, be tested along with any oth er Salary Redirection Contributions under the provisions of Section 19.01 through 19.05 (and for purposes of the alternative limitation under this Section 19.10). If such election is made with respect to any Plan Year, such reallocation for testing purposes shall also comply with any and all other applicable requirements under IRS Regulations under Code Sections 401(k) and 401(m) for purposes of such reallocated testing. |
19.13 Special Manner of Calculation of Tests. For the 1998 Plan Year, the Employer may elect for purposes of this Article XIX to treat the Plan as two separate plans and to perform the tests of Article XIX separately for the employees covered by each of the two separate plans. The two separate plans would consist of one plan covering those Employees who have both attained age 21 and completed one year of Eligibility Service by December 31, 1998 and a separate plan consisting of those who how have not both attained age 21 and completed one year of Eligibility Service by December 31, 1998. The Employer shall be permitted to make this election only if each of the deemed separate plans satisfy the requirements of Internal Revenue Code Section 410(b)(1) separately. For the 1999 Plan Year and future plan years, in applying the tests of this Article XIX, the Employer may elect to exclude those individuals who are
not Highly Compensated Employees for that Plan Year and who have not both attained age 21 and completed one year of Eligibility Service by the last day of that Plan Year; provided, however, that the Employer shall be permitted to make the election only if the requirements of Code Section 410(b)(1) could be met separately by each of two deemed separate plans. For this purpose the two deemed separate plans would consist of the plan covering all Employees who have both attained age 21 and completed one year of Eligibility Service by the last day of the Plan Year and the other separate plan shall consist of those persons who are plan participants who have not both attained age 21 and completed one year of Eligibility Service by the last day of the Plan Year.
ARTICLE XX
FORMER VALLEY ACCOUNTS
A Participant's Former Valley 401(k) Accounts shall be treated in all respects as Salary Redirection Contribution Accounts for all purposes under this Plan and shall be subject to all the same rules as applicable to Salary Redirection Accounts under this Plan.
A Participant's Former Valley Employer Match Account, Former Valley Non-401(k) Account and Former Valley ESOP Account may be withdrawn by the Participant at any time in accordance with the provisions of Section 10.01 hereof.
It is recognized that the investments made by the Former Valley Plan were different from the investments made under this Plan. The Investment Committee is authorized to make such different investment options available with respect to Former Valley Accounts as it deems desirable in recognition of the different investment options which have been available to such Accounts prior to the date of the merger of the Former Valley plan into this Plan.
As provided in Section 6.03 of the Former Valley Bancorporation Thrift and Sharing Plan, individuals who had terminated employment prior to 1994 were subject to forfeiture rules and were not awarded full vesting. Specifically, the non-vested benefits of pre-1994 terminees from the Former Valley plan which would have continued to become forfeited as described in Section 6.03 of the Former Valley plan shall become forfeitures under this Plan at the same time as described in Section 6.03 of the Former Valley plan and shall be applied to reduce Employer Incentive Contributions hereunder at the same time as such forfeitures would have been applied to reduce Employer Matching Contributions under the terms of the Former Valley Bancorporation Thrift and Sharing Plan Trust.
ARTICLE XXI
FORMER SECURITY EMPLOYEES
Marshall & Ilsley Corporation acquired Security Capital Corporation and affiliates thereof by merger on or about October 1, 1997. No individual who had been in the employ of Security or one of its affiliates shall participate in this Plan for any purpose prior to January 1, 1998. Any individual who is or becomes an Employee of the Employer on or after January 1, 1998 who had been in the employ of Security or one of its affiliates shall have such employment treated as employment hereunder for purposes of Section 2.01 and for purposes of Vesting Service under Section 1.29.
ARTICLE XXII
FORMER MSI PLAN ACCOUNTS
Except as set forth in Section 22.02 below a Participant's Former MSI Plan Account shall be subject to the same rules as applicable to a Participant's Accounts generally under the rules of this Plan, e. g., a Participant's Former MSI Before Tax Savings Account and Former MSI Profit Sharing Contribution Account shall be subject to the same rules as applicable to Salary Redirection Accounts under this Plan, a Participant's Former MSI Matching Contribution Account shall be subject to the same rules as Incentive Contributions Accounts under this Plan, a Participant's Former MSI Rollover Contribution Account shall be subject to the same rules as applicable to Rollover Accounts under this Plan and a Participant's Former MSI Voluntary Contribution Account shall be subject to the same rules as applicable to Voluntary Contribution Accounts under this Plan.
Notwithstanding Section 22.01 above, the following special rules shall apply to a Participant's Former MSI Plan Account:
(a) |
Loans were available under the former Mutual Services Inc. Tax Deferred Retirement Plan but are not available under this Plan. However, loans which were outstanding under the former MSI plan at the time of the merger of that plan into this Plan may continue to be held outstanding in accordance with their terms. The portion of a Participant's Account which serves as security for a loan is not capable of being withdrawn under the hardship withdrawal provisions of Article X or under the age 59 and 1/2 withdrawal rules of Section 9.01. In the event a Participant has terminated employment and elects to receive a distribution of his Account balance following such termination of employment, any unpaid loan amounts shall be offset against the amount of the distribution to which the Participant would otherwise be entitled. |
(b) |
In connection with a hardship withdrawal under Section 10.02, the portion of the Participant's Former MSI Profit Sharing Contribution Account which may be withdrawn shall not exceed the value of such account determined as of December 31, 1988. |
ARTICLE XXIII
FORMER ADVANTAGE PLAN ACCOUNTS
Except as set forth in Section 23.02 below a Participant's Former Advantage Plan Account shall be subject to the same rules as applicable to a Participant's Accounts generally under the rules of this Plan, e. g., a Participant's Former Advantage Savings Account shall be subject to the same rules as applicable to Salary Redirection Accounts under this Plan, a Participant's Former Advantage Matching Contribution Account shall be subject to the same rules as Incentive Contributions Accounts under this Plan, a Participant's Former Advantage Rollover Contribution Account shall be subject to the same rules as applicable to Rollover Accounts under this Plan and a Participant's Former Advantage Profit-Sharing Contribution Account shall be subject to the same rules as applicable to Incentive Contribution Accounts under this Plan.
Notwithstanding Section 23.01 above, the following special rules shall apply to a Participant's Former Advantage Plan Account:
(a) |
Loans were available under the Former Advantage Plan but are not available under this Plan. However, loans which were outstanding under the Former Advantage Plan at the time of the merger of that plan into this Plan shall continue to be held outstanding in accordance with their terms. The portion of a Participant's Account which serves as security for a loan is not capable of being withdrawn under the hardship withdrawal provisions of Article X or under the age 59 and 1/2 withdrawal rules of Section 9.01. In the event a Participant has terminated employment and elects to receive a distribution of his Account balance following such termination of employment, any unpaid loan amounts shall be offset against the amount of the distribution to which the Participant would otherwise be entitled. |
(b) |
In addition to the installment distributions generally available under Section 9.01(b) hereof, a Participant may elect to receive installment distributions from his Former Advantage Plan Account in substantially equal annual, quarterly or monthly installments. |
(c) |
To the extent that a Participant's Former Advantage Plan Account is invested in Qualifying Employer Securities, the Participant shall be entitled to receive distribution, including hardship distributions, of any full shares of such Qualifying Employer Securities in kind or in cash at the Participant's election. This paragraph (c) is eliminated from the Plan for distributions which commence on or after the effective date specified in the last two sentences of clause (b) in Section 9.01 applicable to installment payments. |
(d) |
Individuals who terminated employment with Advantage Bancorp, Inc. and its affiliates prior to its acquisition by Marshall & Ilsley Corporation who continued to have unvested account balances in the Former Advantage Plan which were transferred to this Plan and as a result are held as Former Advantage Plan Accounts in this Plan shall continue to be subject to the Year of Service, Break in Service and forfeiture rules described in the Former Advantage Plan (which rules are set forth at Sections 1.01(g)(x)(ff)(ll) and (mm), Section 5.04 and Section 5.05 of the Former Advantage Plan.) To the extent that such an individual incurs a Break in Service as described in the Former Advantage Plan, then, such individual's unvested accounts shall be forfeited and used as an offset against employer contributions otherwise due hereunder. Also, to the extent that a former participant in the Advantage Plan becomes employed with Marshall & Ilsley Corporation or its Affiliated Employers before incurring a Break in Service, then such individual shall have the same ability to restore any prior forfeitures in accordance with the rules described at Section 5.05(b) of the Former Advantage Plan. If an individual is re-employed before incurring a Break in Service so that such individual does not suffer a forfeiture under the rules of Section 5.05 of the Former Advantage Plan or if such individual has already suffered a forfeiture and repays the distribution he has received, as provided in Section 5.05 of the Former Advantage Plan, then at that point such individual shall become fully vested in his entire Former Advantage Plan Account held under the Plan. |
ARTICLE XXIV
FORMER SECURITY PLAN ACCOUNTS
Except as set forth in Section 24.02 below a Participant's Former Security Plan Account shall be subject to the same rules as applicable to a Participant's Accounts generally under the rules of this Plan, e. g., a Participant's Former Security Deferral Contribution Account shall be subject to the same rules as applicable to Salary Redirection Accounts under this Plan, a Participant's Former Security Matching Contribution Account shall be subject to the same rules as Incentive Contributions Accounts under this Plan, a Participant's Former Security Rollover Contribution Account shall be subject to the same rules as applicable to Rollover Accounts under this Plan and a Participant's Former Security Profit-Sharing Contribution Account shall be subject to the same rules as applicable to Incentive Contribution Accounts under this Plan.
Notwithstanding Section 24.01 above, the following special rules shall apply to a Participant's Former Security Plan Account:
(a) |
Loans were available under the Former Security Plan but are not available under this Plan. However, loans which were outstanding under the Former Security Plan at the time of the merger of that plan into this Plan shall continue to be held outstanding in accordance with their terms. The portion of a Participant's Account which serves as security for a loan is not capable of being withdrawn under the hardship withdrawal provisions of Article X or under the age 59 and 1/2 withdrawal rules of Section 9.01. In the event a Participant has terminated employment and elects to receive a distribution of his Account balance following such termination of employment, any unpaid loan amounts shall be offset against the amount of the distribution to which the Participant would otherwise be entitled. |
(b) |
In addition to the installment distributions generally available under Section 9.01(b) hereof, a Participant may elect to receive installment distributions from his Former Security Plan Account in substantially equal annual, quarterly or monthly installments. |
(c) |
To the extent that a Participant's Former Security Plan account is invested in Qualifying Employer Securities, the Participant shall be entitled to receive distribution, including hardship distributions, of any full shares of such Qualifying Employer Securities in kind or in cash at the Participant's election. This paragraph (c) is eliminated from the Plan for distributions which commence on or after the effective date specified in the last two sentences of clause (b) in Section 9.01 applicable to installment payments. |
(d) |
Individuals who terminated employment with Security Bank, S.S.B. and its affiliates prior to its acquisition by Marshall & Ilsley Corporation who continued to have unvested account balances in the Former Security Plan which were transferred to this Plan and as a result are held as Former Security Plan Accounts in this Plan shall continue to be subject to the Year of Service, Break in Service and forfeiture rules described in the Former Security Plan (which rules are set forth at Article V of the Adoption Agreement for and Article V of the Former Security Plan.) To the extent that such an individual incurs 5 consecutive Breaks in Service as described in the Former Security Plan, then, such individual's unvested accounts shall be forfeited and used as an offset against employer contributions otherwise due hereunder. Also, to the extent that a former participant in the Security Plan becomes employed with Marshall & Ilsley Corporation or its Affiliated Employers before incurring 5 consecutive Breaks in Service, then such individual shall have the same ability to restore any prior forfeitures in accordance with the rules described at Article V of the Adoption Agreement for and Article V of the Former Security Plan. If an individual is re-employed before incurring 5 consecutive Breaks in Service so that such individual does not suffer a forfeiture under the rules of Article V of the Former Security Plan or if such individual has already suffered a forfeiture and repays the distribution he has received, as provided in Article V of the Former Security Plan, then at that point such individual shall become fully vested in his entire Former Security Plan Account held under the Plan. |
ARTICLE XXV
FORMER NATIONAL CITY PLAN ACCOUNTS
Except as set forth in Section 25.02 below a Participant's Former National City Plan Account shall be subject to the same rules as applicable to a Participant's Accounts generally under the rules of this Plan, e. g., a Participant's Former National City Deferral Contributions and Qualified Non-Elective Contributions Accounts shall be subject to the same rules as applicable to Salary Redirection Accounts under this Plan, a Participant's Former National City Matching Contributions Account shall be subject to the same rules as Incentive Contributions Accounts under this Plan, a Participant's Former National City Rollover Contribution Account shall be subject to the same rules as applicable to Rollover Accounts under this Plan and a Participant's Former National City Employer Contributions Account shall be subject to the same rules as applicable to Profit-Sharing Employer Contribution Accounts under this Plan.
Notwithstanding Section 25.01 above, the following special rules shall apply to a Participant's Former National City Plan Account:
(a) |
Loans were available under the Former National City Plan but are not available under this Plan. However, loans which were outstanding under the Former National City Plan at the time of the merger of that plan into this Plan shall continue to be held outstanding in accordance with their terms. The portion of a Participant's Account which serves as security for a loan is not capable of being withdrawn under the hardship withdrawal provisions of Article X or under the age 59 and 1/2 withdrawal rules of Section 9.01. In the event a Participant has terminated employment and elects to receive a distribution of his Account balance following such termination of employment, any unpaid loan amounts shall be offset against the amount of the distribution to which the Participant would otherwise be entitled. |
(b) |
In addition to the installment distributions generally available under Section 9.01(b) hereof, a Participant may elect to receive installment distributions from his Former National City Plan Account in substantially equal annual, quarterly or monthly installments. |
(c) |
To the extent that a Participant's Former National City Plan Account is invested in Qualifying Employer Securities, the Participant shall be entitled to receive distribution, including hardship distributions, of any full shares of such Qualifying Employer Securities in kind or in cash at the Participant's election. This paragraph (c) is eliminated from the Plan for distributions which commence on or after the effective date specified in the last sentence of clause (b) in Section 9.01 applicable to installment payments. |
(d) |
The Participant's Former National City Plan Account shall at all times be fully vested. |
ARTICLE XXVI
FORMER DERIVION PLAN ACCOUNTS
Except as set forth in Section 26.02 below, a Participant's Former Derivion Plan Account shall be subject to the same rules as applicable to a Participant's Accounts generally under the rules of this Plan, e. g., a Participant's Former Derivion Deferral Contribution Account shall be subject to the same rules as applicable to Salary Redirection Accounts under this Plan, a Participant's Former Derivion Matching Contribution Account shall be subject to the same rules as Incentive Contributions Accounts under this Plan, a Participant's Former Derivion Rollover Contribution Account shall be subject to the same rules as applicable to Rollover Accounts under this Plan and a Participant's Former Derivion Profit-Sharing Contribution Account shall be subject to the same rules as applicable to Incentive Contribution Accounts under this Plan.
Notwithstanding Section 26.01 above, the following special rules shall apply to a Participant's Former Derivion Plan Account:
(a) |
Loans were available under the Former Derivion Plan but are not available under this Plan. However, loans which were outstanding under the Former Derivion Plan at the time of the merger of that plan into this Plan shall continue to be held outstanding in accordance with their terms. The portion of a Participant's Account which serves as security for a loan is not capable of being withdrawn under the hardship withdrawal provisions of Article X or under the age 59 and 1/2 withdrawal rules of Section 9.01. In the event a Participant has terminated employment and elects to receive a distribution of his Account balance following such termination of employment, any unpaid loan amounts shall be offset against the amount of the distribution to which the Participant would otherwise be entitled. |
(b) |
Individuals who terminated employment with Derivion Corporation and its affiliates prior to its acquisition by Marshall & Ilsley Corporation who continued to have unvested account balances in the Former Derivion Plan which were transferred to this Plan and as a result are held as Former Derivion Plan Accounts in this Plan shall continue to be subject to the Year of Service, Break in Service and forfeiture rules described in the Former Derivion Plan (which rules are set forth at Section 1.15 of the Adoption Agreement for and Section 5.11 of the Former Derivion Plan.) To the extent that such an individual incurs 5 consecutive Breaks in Service as described in the Former Derivion Plan, then, such individual's unvested accounts shall be forfeited and used as an offset against employer contributions otherwise due hereunder. Also, to the extent that a former participant in the Derivion Plan becomes employed with Marshall & Ilsley Corporation or its Affiliated Employers before incurring five consecutiv e Breaks in Service, then such individual shall have the same ability to restore any prior forfeitures in accordance with the rules described at Section 1.15 of the Adoption Agreement for and Section 5.11 of the Former Derivion Plan. If an individual is re-employed before incurring 5 consecutive Breaks in Service so that such individual does not suffer a forfeiture under the rules of Section 5.11 of the Former Derivion Plan or if such individual has already suffered a forfeiture and repays the distribution he has received, as provided in Section 5.11 of the Former Derivion Plan, then at that point such individual shall become fully vested in his entire Former Derivion Plan Account held under the Plan. |
(c) |
All Former Derivion Accounts are fully vested and distributable at age 59 and 1/2, even if the Participant is still in the employ of the Employer. |
ARTICLE XXVII
EGTRRA PLAN AMENDMENTS
27.01 Amendment of the Plan for EGTRRA.
(a) |
Adoption and Effective Date of EGTRRA Amendments. This amendment of the Plan is adopted to reflect certain provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA"). This amendment is intended as good faith compliance with the requirements of EGTRRA and is to be construed in accordance with EGTRRA and guidance issued thereunder. Except as otherwise provided, the amendments in this Article XXVII shall be effective as of the first day of the first Plan Year beginning after December 31, 2001. |
(b) |
Supersession of Inconsistent Provisions. This Article XXVII shall supersede the provisions of the Plan to the extent those provisions are inconsistent with the provisions of this Article. |
27.02 Limitations on Contributions.
(a) |
Effective Date. This Section 27.02 shall be effective for limitation years beginning after December 31, 2001. |
|
(b) |
Maximum Annual Addition. Except to the extent permitted under Plan Section 27.08 and Section 414(v) of the Code, if applicable, the Annual Additions under Section 7.01 that may be contributed or allocated to a Participant's Account under the Plan for any limitation year shall not exceed the lesser of: |
|
(i) |
$40,000, as adjusted for increases in the cost-of-living under Section 415(d) of the Code, or |
|
(ii) |
100 percent of the Participant's compensation, within the meaning of Section 415(c)(3) of the Code, for the limitation year. |
|
The compensation limit referred to in (ii) shall not apply to any contribution for medical benefits after separation from service (within the meaning of Section 401(h) or Section 419A(f)(2) of the Code) which is otherwise treated as an Annual Addition. |
27.04 Modification of Top-Heavy Rules.
(a) |
Effective Date. This Section 27.04 shall apply for purposes of determining whether the Plan is a top-heavy plan under Section 416(g) of the Code for Plan Years beginning after December 31, 2001, and whether the Plan satisfies the minimum benefits requirements of Section 416(c) of the Code for such years. This Section amends Article XV of the Plan. |
||
(b) |
Determination of Top-Heavy Status. |
||
(i) |
Key Employee. Key employee means any employee or former employee (including any deceased employee) who at any time during the Plan Year that includes the determination date was an officer of the Company having annual compensation greater than $130,000 (as adjusted under Section 416(i)(1) of the Code for Plan Years beginning after December 31, 2002), a 5-percent owner of the employer, or a 1-percent owner of the Company having "annual compensation" of more than $150,000. For this purpose, annual compensation means compensation within the meaning of Section 415(c)(3) of the Code. The determination of who is a key employee will be made in accordance with Section 416(i)(1) of the Code and the applicable regulations and other guidance of general applicability issued thereunder. |
||
(ii) |
Determination of present values and amounts. This Section 27.04(b)(ii) shall apply for purposes of determining the present values of accrued benefits and the amounts of account balances of Employees as of the determination date. |
||
(1) |
Distributions during year ending on the determination date. The present values of accrued benefits and the amounts of account balances of a Participant as of the determination date shall be increased by the distributions made with respect to the Participant under the Plan and any plan aggregated with the Plan under Section 416(g)(2) of the Code during the 1-year period ending on the determination date. The preceding sentence shall also apply to distributions under a terminated plan which, had it not been terminated, would have been aggregated with the Plan under Section 416(g)(2)(A)(i) of the Code. In the case of a distribution made for a reason other than separation from service, death, or disability, this provision shall be applied by substituting "5-year period" for "1-year period." |
||
(2) |
Employees not performing services during year ending on the determination date. The accrued benefits and accounts of any individual who has not performed services for the Employer during the 1-year period ending on the determination date shall not be taken into account. |
||
(iii) |
Minimum benefits. |
||
(1) |
Matching contributions. Employer Incentive Contributions shall be taken into account for purposes of satisfying the minimum contribution requirements of Section 416(c)(2) of the Code and the Plan. The preceding sentence shall apply with respect to Employer Incentive Contributions under the Plan or, if the Plan provides that the minimum contribution requirement shall be met in another plan, matching contributions to such other plan. Employer Incentive Contributions that are used to satisfy the minimum contribution requirements shall be treated as matching contributions for purposes of the actual contribution percentage test and other requirements of Section 401(m) of the Code. |
||
(2) |
Contributions under other plans. The Employer may provide that the minimum benefit requirement shall be met in another plan (including another plan that consists solely of a cash or deferred arrangement which meets the requirements of Section 401(k)(12) of the Code and matching contributions with respect to which the requirements of Section 401(m)(11) of the Code are met). |
27.05 Direct Rollovers of Plan Distributions.
(a) |
Effective date. This Section shall apply to distributions made after December 31, 2001. |
(b) |
Modification of definition of eligible retirement plan. For purposes of the direct rollover provisions in Section 6.08 of the Plan, the definition of eligible retirement plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relation order, as defined in Section 414(p) of the Code. |
(c) |
Modification of definition of eligible rollover distribution to include after-tax employee contributions. For purposes of the direct rollover provision in Article XVIII of the Plan, a portion of distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in Section 408(a) or (b) of the Code, or to a qualified defined contribution plan described in Section 401(a) or 403(a) of the Code that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible. |
27.10 Distribution Upon Severance From Employment.
(a) |
Effective date. This section shall apply instead of Section 14.08(b) for distributions occurring after December 31, 2001 and severances from employment occurring after December 31, 1989. |
(b) |
New distributable event. A Participant's Salary Redirection Contributions Accounts and other Accounts hereunder shall be distributed upon the Participant's severance from employment. However, such a distribution shall be subject to the other provisions of the Plan regarding distributions, other than provisions that require a separation from service before such amounts may be distributed. |
ARTICLE XXVIII
ESOP
(a) |
The Participant's Post-1984 Incentive Contributions Account on December 31, 2001; |
(b) |
The portion of the Participant's Incentive Contributions Account invested in the M&I Fund on December 31, 2001; and |
(c) |
The portion of the Participant's Merged Plan Account invested in the M&I Fund on December 31, 2001 |
.
(a) |
The Employer may direct that any cash dividends paid with respect to shares of Employer Stock may be allocated among and credited to Participants' Accounts. |
(b) |
Any cash dividend paid with respect to shares of Employer Stock allocated to Participants' Accounts may, as determined by the Employer, be paid to the Plan and distributed by the Plan to the Participant (or in the case of a deceased Participant the beneficiary of the deceased Participant) no later than 90 days after the end of the Plan Year in which paid to the Plan. |
(c) |
The Employer may direct that each Participant (or the in case of a deceased Participant the beneficiary of the deceased Participant) shall have the right to elect to have the dividends, which would otherwise be payable pursuant to paragraph (b) above, paid instead to the Participant's Account in the Plan and invested in Employer Stock by investment in the M&I Fund. The election available to the Participant (or beneficiary) pursuant to this paragraph (c) shall be administered in accordance with such rules and regulations as may be issued by the Internal Revenue Service pursuant to Code Section 404(k)(2)(A)(iii). |
28.05 ESOP Account Investment.
(a) |
As required by Internal Revenue Code Section 4975(e)(7), the assets of the ESOP portion of the Plan (i.e., all ESOP Accounts) are intended to be invested primarily in Employer Stock by means of investment in the M&I Fund described in Section 16.02. |
(b) |
On the date of the ESOP's initial January 1, 2002 creation, all ESOP Accounts will be invested in the M&I Fund. However, from and after the time of its initial creation, all Participants shall have the ability to direct the investment of their ESOP General Investment Accounts in any of the investment funds available under the Plan pursuant to Section 16.02 in accordance with such rules and procedures established by the Investment Committee pursuant to Section 16.02. |
28.08 Distributions from ESOP Account.
(a) |
The distribution of a Participant's ESOP Account shall be made in the form of the qualified joint and survivor annuity described in Section 9.01(d) unless the Participant elects otherwise with the consent of his spouse pursuant to the rules described in Section 9.01. If the Participant so elects against the qualified joint and survivor annuity under Section 9.01(d), then: |
||
(i) |
if the Participant elects, distribution of the ESOP Account balance shall commence not later than one year after the close of the Plan Year: |
||
(1) |
in which the Participant separates from service by reason of the attainment of Normal Retirement Date, Disability Retirement Date or death; or |
||
(2) |
which is the fifth Plan Year following the Plan Year in which the Participant otherwise separates from service, except that this clause (2) shall not apply if the Participant is re-employed by the Employer before distribution is required to begin under this clause (2). |
||
(ii) |
distribution of the Participant's ESOP Account balance shall be made in substantially equal periodic payments (not less frequently than annually) over a period not longer than the greater of: |
||
(1) |
five years, or |
||
(2) |
in the case of a Participant with an ESOP Account balance in excess of $500,000, five years plus one additional year (but not more than five additional years) for each $100,000 or fraction thereof by which such balance exceeds $500,000. |
||
(b) |
A Participant who has elected against the qualified joint and survivor annuity described in Section 9.01(d) pursuant to the procedures described in Section 9.01 and who would therefore be subject to the distribution rules with respect to the ESOP Account described in the preceding paragraph (a), may nevertheless elect, pursuant to the rules of Section 9.01 including the spousal consent rules, to receive distribution of the ESOP Account at a time applicable under Article IX or in a distribution option available under Section 9.01 of the Plan, including, without limitation, lump sum payment or payment in installments over a period longer than the periods described in paragraph (a)(2). Similarly, a Participant's beneficiary in the case of death may elect to delay distribution beyond the date specified in the preceding paragraphs to dates consistent with the rules generally applicable under Article IX and may elect forms of distribution generally available to beneficiaries under Section 9.02. If a deceased Participant has a surviving spouse, Section 9.02(c) shall apply, rather than paragraph (a) above, unless the spouse elects against the Pre-Retirement Survivor Annuity pursuant to the procedures described in Section 9.02. |
||
(c) |
Any distribution of a Participant's ESOP Account which would otherwise be made in cash, shall, if the Participant so elects, be made in Employer Stock instead; provided, however, that fractional shares shall not be distributed and, instead, the cash value of any fractional share shall be distributed. |
||
(d) |
The rules of this Section 28.08 shall be interpreted in a manner consistent with requirements of Code Section 409(o). |
||
(e) |
The distribution rules of this Article XXVIII shall not be applicable to any Participant whose ESOP account is created effective January 1, 2002 and who was already in pay status prior to that date, e.g., already receiving installment distributions. |
ARTICLE XXIX
GUST
EXHIBIT 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated January 12, 2001 included in the Marshall & Ilsley Corporation's Form 10-K for the year ended December 31, 2000 and to all references to our firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
December 19, 2001
EXHIBIT 24
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Richard A. Abdoo |
|
Richard A. Abdoo |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ David Andreas |
|
David Andreas |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Oscar C. Boldt |
|
Oscar C. Boldt |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Wendell F. Bueche |
|
Wendell F. Bueche |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Jon F. Chait |
|
Jon F. Chait |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Timothy E. Hoeksema |
|
Timothy E. Hoeksema |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Bruce E. Jacobs |
|
Bruce E. Jacobs |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Burleigh E. Jacobs |
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Burleigh E. Jacobs |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Donald R. Johnson |
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Donald R. Johnson |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Ted D. Kellner |
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Ted D. Kellner |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ James F. Kress |
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James F. Kress |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ D.J. Kuester |
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D.J. Kuester |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Katharine C. Lyall |
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Katharine C. Lyall |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Edward L. Meyer, Jr. |
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Edward L. Meyer, Jr. |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ San W. Orr, Jr. |
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San W. Orr, Jr. |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Peter M. Platten, III |
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Peter M. Platten, III |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ Robert A. Schaefer |
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Robert A. Schaefer |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ John S. Shiely |
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John S. Shiely |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ James A. Urdan |
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James A. Urdan |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ George E. Wardeberg |
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George E. Wardeberg |
DIRECTOR'S POWER OF ATTORNEY
(Form S-8 for the M&I Retirement Program)
The undersigned director of Marshall & Ilsley Corporation designates each of J.B. Wigdale, M.F. Furlong, and M.A. Hatfield, with the power of substitution, as his true and lawful attorney-in-fact for the purpose of: (i) executing in his name and on his behalf M&I's Registration Statement on Form S-8 relating to the M&I Retirement Program and any related amendments (including post-effective amendments) and/or supplements to said Form S-8; (ii) generally doing all things in his name and on his behalf in his capacity as a director to enable Marshall & Ilsley Corporation to comply with the provisions of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission; and (iii) ratifying and confirming his signature as it may be signed by the attorney-in-fact to the Form S-8 and any related amendments (including post-effective amendments) and/or supplements
thereto.
Dated this 20th day of December, 2001.
/s/ J.B. Wigdale |
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J.B. Wigdale |