Exhibit 4.4





Exhibit 4.4




U.S. BANCORP

401(k) SAVINGS PLAN

(2002 Restatement)




 


 









 








U.S. BANCORP

401(k) SAVINGS PLAN

(2002 Restatement)




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	PREAMBLE
	 	 	1	 
	 
	 	 	 	 
	SECTION 1. INTRODUCTION
	 	 	2	 
	 
	 	 	 	 
	1.1. History
	 	 	 	 
	1.1.1. Firstar Thrift Savings 401(k) Plan
	 	 	2	 
	1.1.2. U.S. Bancorp 401(k) Savings Plan
	 	 	2	 
	1.1.3. Merger of Plans
	 	 	2	 
	1.2. Relation to Horizon Investment and Savings Plan
	 	 	2	 
	1.3. No Effect on Former Employees
	 	 	2	 
	1.4. No Reduction of Protected Benefits
	 	 	2	 
	 
	 	 	 	 
	SECTION 2. DEFINITIONS
	 	 	3	 
	 
	 	 	 	 
	2.1. Definitions
	 	 	3	 
	2.1.1. Accounts
	 	 	3	 
	(a) Total Account
	 	 	3	 
	(b) Earnings Reduction Account
	 	 	3	 
	(c) Matching Contribution Account
	 	 	3	 
	(d) Rollover Account
	 	 	3	 
	(e) Transfer Account
	 	 	3	 
	(f) Voluntary Account
	 	 	3	 
	(g) Other Accounts and Subaccounts
	 	 	4	 
	2.1.2. Affiliate
	 	 	4	 
	2.1.3. Alternate Payee
	 	 	4	 
	2.1.4. Annual Valuation Date
	 	 	4	 
	2.1.5. Beneficiary or Beneficiaries
	 	 	4	 
	2.1.6. Benefits Administration Committee
	 	 	4	 
	2.1.7. Code
	 	 	4	 
	2.1.8. Company
	 	 	4	 
	2.1.9. Disability
	 	 	5	 
	2.1.10. Earnings Reduction Agreement
	 	 	5	 
	2.1.11. Effective Date
	 	 	5	 
	2.1.12. Eligibility Service
	 	 	5	 
	 
	 	 	 	 








 


-i-









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	2.1.13. Employer
	 	 	6	 
	2.1.14. Enrollment Date
	 	 	6	 
	2.1.15. ERISA
	 	 	6	 
	2.1.16. ESOP Portion
	 	 	6	 
	2.1.17. ESOP Subfund
	 	 	6	 
	2.1.18. Event of Maturity
	 	 	6	 
	2.1.19. Fund
	 	 	6	 
	2.1.20. Highly Compensated Employee
	 	 	6	 
	2.1.21. Hours of Service
	 	 	7	 
	2.1.22. Investment Manager
	 	 	10	 
	2.1.23. Leased Employee
	 	 	10	 
	2.1.24. Normal Retirement Age
	 	 	10	 
	2.1.25. Participant
	 	 	10	 
	2.1.26. Plan
	 	 	10	 
	2.1.27. Plan Statement
	 	 	10	 
	2.1.28. Plan Year
	 	 	10	 
	2.1.29. Predecessor Plans
	 	 	11	 
	2.1.30. Profit Sharing Portion
	 	 	11	 
	2.1.31. Qualifying Employer Securities
	 	 	11	 
	2.1.32. Recognized Compensation
	 	 	11	 
	2.1.33. Recognized Employment
	 	 	13	 
	2.1.34. Subfund
	 	 	14	 
	2.1.35. Trustee
	 	 	14	 
	2.1.36. Valuation Date
	 	 	14	 
	2.1.37. Vested
	 	 	14	 
	 
	 	 	 	 
	SECTION 3. ELIGIBILITY AND PARTICIPATION
	 	 	15	 
	 
	 	 	 	 
	3.1. General Eligibility Rule
	 	 	15	 
	3.2. Special Rule for Former Participants
	 	 	15	 
	3.3. Enrollment
	 	 	15	 
	 
	 	 	 	 
	SECTION 4. CONTRIBUTIONS AND ALLOCATION THEREOF
	 	 	16	 
	 
	 	 	 	 
	4.1. Employer Contributions
	 	 	16	 
	4.1.1. Source of Employer Contributions
	 	 	16	 
	4.1.2. Limitation
	 	 	16	 
	4.1.3. Form of Payment
	 	 	16	 
	4.2. Earnings Reduction Contributions
	 	 	16	 
	4.2.1. Earnings Reduction Agreements
	 	 	16	 
	4.2.2. Modification of Earnings Reduction Agreements
	 	 	16	 
	4.2.3. Amount
	 	 	17	 
	4.2.4. Allocation
	 	 	17	 
	4.2.5. Section 401(k) Compliance
	 	 	17	 
	 
	 	 	 	 






 


-ii-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	4.3. Matching Contributions
	 	 	18	 
	4.3.1. Amount
	 	 	18	 
	4.3.2. Eligibility
	 	 	18	 
	4.3.3. Allocation
	 	 	18	 
	4.3.4. Section 401(m) Compliance
	 	 	18	 
	4.4. Discretionary Contributions
	 	 	18	 
	4.4.1. General
	 	 	18	 
	4.4.2. Additional Allocation
	 	 	18	 
	4.4.3. Eligible Participants
	 	 	19	 
	4.5. Rollover Contributions
	 	 	19	 
	4.5.1. Eligible Contributions
	 	 	19	 
	4.5.2. Specific Review
	 	 	19	 
	4.5.3. Allocation
	 	 	19	 
	4.6. Voluntary Contributions
	 	 	19	 
	4.7. Adjustments
	 	 	20	 
	4.7.1. Make-Up Contributions for Omitted Participants
	 	 	20	 
	4.7.2. Mistaken Contributions
	 	 	20	 
	4.8. Limitation on Allocations
	 	 	20	 
	4.9. Effect of Disallowance of Deduction or Mistake of Fact
	 	 	20	 
	4.10. Vesting
	 	 	20	 
	 
	 	 	 	 
	SECTION 5. INVESTMENT AND ADJUSTMENT OF ACCOUNTS
	 	 	21	 
	 
	 	 	 	 
	5.1. Profit Sharing Portion
	 	 	21	 
	5.1.1. Establishing Commingled Subfunds
	 	 	21	 
	5.1.2. Individual Subfunds
	 	 	21	 
	5.1.3. Operational Rules
	 	 	21	 
	5.1.4. Revising Subfunds
	 	 	21	 
	5.2. ESOP Portion
	 	 	22	 
	5.2.1. Employer Stock Subfunds
	 	 	22	 
	5.2.2. Investment of ESOP Portion
	 	 	22	 
	5.2.3. Diversification
	 	 	22	 
	5.2.4. Dividends
	 	 	23	 
	5.2.5. Voting of Employer Securities
	 	 	23	 
	5.2.6. Tender Offer
	 	 	24	 
	5.2.7. Put Option
	 	 	25	 
	5.2.8. Valuation of Employer Securities
	 	 	27	 
	5.3. ERISA Section 404(c) Compliance
	 	 	27	 
	5.4. Valuation and Adjustment of Accounts
	 	 	28	 
	5.4.1. Valuation of Fund
	 	 	28	 
	5.4.2. Adjustment of Accounts
	 	 	28	 
	5.4.3. Rules
	 	 	28	 
	5.5. Management and Investment of Fund
	 	 	28	 
	 
	 	 	 	 







 


-iii-









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 6. MATURITY
	 	 	29	 
	 
	 	 	 	 
	SECTION 7. DISTRIBUTION
	 	 	30	 
	 
	 	 	 	 
	7.1. Distributions to Participants Upon Event of Maturity
	 	 	30	 
	7.1.1. Application Required
	 	 	30	 
	7.1.2. Spousal Consent Not Required
	 	 	30	 
	7.1.3. Form of Distribution
	 	 	30	 
	7.1.4. Time of Distribution
	 	 	30	 
	7.1.5. Required Beginning Date
	 	 	31	 
	7.1.6. Death Prior to Distribution
	 	 	31	 
	7.2. Distribution to Participants Prior to Severance of Employment
	 	 	31	 
	7.2.1. Withdrawals From Voluntary Accounts
	 	 	31	 
	7.2.2. In-Service Distributions
	 	 	32	 
	7.2.3. Age 59-1/2 Distributions
	 	 	33	 
	7.2.4. Hardship Distributions
	 	 	33	 
	7.3. Distribution to Beneficiary
	 	 	35	 
	7.3.1. Application For Distribution Required
	 	 	35	 
	7.3.2. Form of Distribution
	 	 	36	 
	7.3.3. Time of Distribution
	 	 	36	 
	7.3.4. Required Beginning Date
	 	 	36	 
	7.4. Designation of Beneficiaries
	 	 	36	 
	7.4.1. Right To Designate
	 	 	36	 
	7.4.2. Spousal Consent
	 	 	36	 
	7.4.3. Failure of Designation
	 	 	37	 
	7.4.4. Disclaimers by Beneficiaries
	 	 	37	 
	7.4.5. Definitions
	 	 	38	 
	7.4.6. Special Rules
	 	 	39	 
	7.5. General Distribution Rules
	 	 	40	 
	7.5.1. Notices
	 	 	40	 
	7.5.2. Direct Rollover
	 	 	40	 
	7.5.3. Compliance with Section 401(a)(9) of the Code
	 	 	41	 
	7.5.4. Distribution in Cash
	 	 	41	 
	7.5.5. Facility of Payment
	 	 	42	 
	7.6. Loans
	 	 	42	 
	7.6.1. Availability
	 	 	42	 
	7.6.2. Spousal Consent
	 	 	42	 
	7.6.3. Administration
	 	 	43	 
	7.6.4. Loan Terms
	 	 	43	 
	7.6.5. Collateral
	 	 	43	 
	7.6.6. Loan Rules
	 	 	44	 
	7.6.7. Tax Reporting
	 	 	47	 
	7.6.8. Truth in Lending
	 	 	47	 
	 
	 	 	 	 






 


-iv-









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	7.6.9. Effect of Participant in Bankruptcy
	 	 	47	 
	7.6.10. ERISA Compliance — Loans Available to Parties in Interest
	 	 	47	 
	7.7. U.S. Money
	 	 	47	 
	 
	 	 	 	 
	SECTION 8. SPENDTHRIFT PROVISIONS
	 	 	48	 
	 
	 	 	 	 
	SECTION 9. AMENDMENT AND TERMINATION
	 	 	49	 
	 
	 	 	 	 
	9.1. Amendment
	 	 	49	 
	9.2. Discontinuance of Contributions and Termination of Plan
	 	 	49	 
	9.3. Merger or Spinoff of Plans
	 	 	49	 
	9.3.1. In General
	 	 	49	 
	9.3.2. Limitations
	 	 	50	 
	9.3.3. Beneficiary Designations
	 	 	50	 
	9.3.4. Consolidation or Merger of Plans
	 	 	50	 
	9.4. Adoption by Affiliates
	 	 	50	 
	9.4.1. Adoption with Consent
	 	 	50	 
	9.4.2. Procedure for Adoption
	 	 	50	 
	9.4.3. Effect of Adoption
	 	 	51	 
	 
	 	 	 	 
	SECTION 10. CONCERNING THE TRUSTEE
	 	 	52	 
	 
	 	 	 	 
	10.1. Dealings with Trustee
	 	 	52	 
	10.2. Compensation of Trustee
	 	 	52	 
	10.3. Resignation and Removal of Trustee
	 	 	52	 
	10.4. Accountings by Trustee
	 	 	54	 
	10.5. Trustee’s Power to Protect Itself on Account of Taxes
	 	 	54	 
	10.6. Other Trust Powers
	 	 	55	 
	10.7. Investment Managers
	 	 	61	 
	10.8. Fiduciary Principles
	 	 	61	 
	10.9. Prohibited Transactions
	 	 	62	 
	10.10. Indemnity
	 	 	62	 
	 
	 	 	 	 
	SECTION 11. DETERMINATIONS — RULES AND REGULATIONS
	 	 	63	 
	 
	 	 	 	 
	11.1. Determinations
	 	 	63	 
	11.2. Claims and Review Procedure
	 	 	63	 
	11.2.1. Initial Claim
	 	 	63	 
	11.2.2. Notice of Initial Adverse Determination
	 	 	63	 
	11.2.3. Request for Review
	 	 	64	 
	11.2.4. Claim on Review
	 	 	64	 
	11.2.5. Notice of Adverse Determination for Claim on Review
	 	 	65	 
	 
	 	 	 	 





 


-v-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	11.3. Rules and Regulations
	 	 	65	 
	11.3.1. Adoption of Rules
	 	 	65	 
	11.3.2. Specific Rules
	 	 	65	 
	11.4. Deadline to File Claim
	 	 	66	 
	11.5. Exhaustion of Administration Remedies
	 	 	67	 
	11.6. Deadline to File Legal Action
	 	 	67	 
	11.7. Knowledge of Fact by Participant Imputed to Beneficiary
	 	 	67	 
	 
	 	 	 	 
	SECTION 12. OTHER ADMINISTRATIVE MATTERS
	 	 	68	 
	 
	 	 	 	 
	12.1. Company
	 	 	68	 
	12.1.1. Officers
	 	 	68	 
	12.1.2. Chief Executive Officer
	 	 	68	 
	12.2. Benefits Administration Committee
	 	 	68	 
	12.2.1. Appointment and Removal
	 	 	68	 
	12.2.2. Automatic Removal
	 	 	68	 
	12.2.3. Authority
	 	 	68	 
	12.2.4. Majority Decisions
	 	 	70	 
	12.3. Limitation on Authority
	 	 	70	 
	12.3.1. Fiduciaries Generally
	 	 	70	 
	12.3.2. Trustee
	 	 	70	 
	12.4. Conflict of Interest
	 	 	70	 
	12.5. Dual Capacity
	 	 	71	 
	12.6. Administrator
	 	 	71	 
	12.7. Named Fiduciaries
	 	 	71	 
	12.8. Service of Process
	 	 	71	 
	12.9. Administrative Expenses
	 	 	71	 
	12.10. IRS Qualification
	 	 	71	 
	12.11. Method of Executing Instruments
	 	 	71	 
	12.12. Receipt of Documents
	 	 	72	 
	12.13. Powers of Attorney
	 	 	72	 
	12.14. Guardians and Conservators
	 	 	72	 
	 
	 	 	 	 
	SECTION 13. IN GENERAL
	 	 	73	 
	 
	 	 	 	 
	13.1. Disclaimers
	 	 	73	 
	13.2. Reversion of Fund Prohibited
	 	 	74	 
	13.3. Continuity
	 	 	74	 
	13.4. Contingent Top Heavy Plan Rules
	 	 	75	 
	13.5.
Compliance with Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA)
	 	 	75	 
	13.6. Sunset Provision
	 	 	75	 
	13.7. Rules of Interpretation
	 	 	75	 
	 
	 	 	 	 







 


-vi-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SIGNATURES
	 	 	76	 
	 
	 	 	 	 
	SCHEDULE I — PARTICIPATING EMPLOYERS
	 	SI-1	 
	 
	 	 	 	 
	APPENDIX A — LIMITATION ON ANNUAL ADDITIONS
	 	 	A-1	 
	 
	 	 	 	 
	APPENDIX B — CONTINGENT TOP HEAVY PLAN RULES
	 	 	B-1	 
	 
	 	 	 	 
	APPENDIX C — QUALIFIED DOMESTIC RELATIONS ORDERS
	 	 	C-1	 
	 
	 	 	 	 
	APPENDIX D — 401(k), 401(m) & 402(g) COMPLIANCE
	 	 	D-1	 
	 
	 	 	 	 
	APPENDIX E — SPECIAL RULES
	 	 	E-1	 
	 
	 	 	 	 





 


-vii-









 







U.S. BANCORP

401(k) SAVINGS PLAN

(2002 Restatement)




THIS AGREEMENT, is made and entered into as of the 1st day of January, 2002, by and between
U.S. Bancorp, a Delaware corporation (hereinafter sometimes referred to as the “Company”), and
U.S. Bank National Association, a national banking association, as trustee (said trustee and its
successor or successors in trust from time to time being hereinafter collectively referred to as
the “Trustee”).



WHEREAS, the Company has heretofore established a profit sharing plan and trust which, in
its most recent amended and restated form, is embodied in an instrument entitled “U.S. Bancorp
401(k) Savings Plan”, which has been amended from time to time (said restatement, as heretofore
amended, being hereinafter sometimes referred to as the “Prior Plan Statement”); and




WHEREAS, the Company has reserved to itself the power to amend the Prior Plan
Statement; and



WHEREAS, it is desired to amend and restate the Prior Plan Statement to reflect changes
approved by the Board of Directors of the Company as part of a comprehensive revision of the
retirement benefits for employees of the Company and certain of its affiliates;



NOW, THEREFORE, the Prior Plan Statement is hereby amended and restated, effective as of
January 1, 2002, to read in full as follows:




 


 









 







SECTION 1




INTRODUCTION




1.1. History.




1.1.1. Firstar
Thrift Savings 401(k) Plan. The Firstar Corporation
Thrift Savings 401(k) Plan was originally adopted on December 4, 1968, and was amended on numerous occasions
after that date. Following the merger of Star Banc Corporation with Firstar Corporation in
November 1998, the Star Banc Thrift Savings 401(k) Plan was merged into the Firstar Corporation
Thrift Savings 401(k) Plan, and the combined plan (the “Firstar Plan”) was amended and restated
in its entirety effective September 1, 1999, the date of the merger.



1.1.2. U.S. Bancorp 401(k) Savings Plan. First Bank System, Inc. established a profit
sharing plan effective January 1, 1957 which was amended and restated on January 1, 1984 and was
amended on numerous occasions thereafter (the “Bancorp Plan”). By an amendment effective
January 1, 1999, the Bancorp Plan was named the “U.S. Bancorp 401(k) Savings Plan”. Prior to that
amendment the Bancorp Plan was known as the U.S. Bancorp Capital Accumulation Plan.




1.1.3. Merger of Plans. Effective January 1, 2002, the Firstar Plan and the Bancorp
Plan were merged. This restatement, known as the “U.S. Bancorp 401(k) Savings Plan (2002
Restatement)” and generally effective January 1, 2002, sets forth the terms of the merged plan
(the
“Plan”).



1.2. Relation to Horizon Investment and Savings Plan. Employees who are eligible to participate
in the Horizon Investment and Savings Plan maintained by U.S. Bancorp as successor to Mercantile
Bancorporation Inc. are not eligible to participate in the Plan.



1.3. No Effect on Former Employees. Except as may be otherwise specifically provided or required
by law, this amended and restated Plan Statement shall not affect the rights of or benefits
payable to, or with respect to, any Participant (or any person who was a participant in a plan
that merged with this Plan on or before the Effective Date), who died, retired or otherwise
terminated employment prior to the Effective Date. The rights of, and benefits payable to or with
respect to, any such person shall be governed (except as may be otherwise specifically provided
or required by law) by the applicable plan documents as in effect at the time of such person’s
death, retirement or other termination of employment.



1.4. No Reduction of Protected Benefits. Nothing in this amendment and restatement of the Plan,
or in any subsequent amendment of this Plan, shall cause any “section 411(d)(6) protected
benefits” (as defined by Treasury Regulations section 1.411(d)-4) of any Participant to be
reduced, eliminated or made subject to employer discretion in a way that violates Code section
411(d)(6), valid regulations thereunder, or any other provision of the Code or ERISA. If any such
amendment would appear to have the effect of reducing a protected accrued benefit, such amendment
shall not be
given effect to reduce the accrued benefit below the level immediately prior to the effective
date of the amendment (but such amendment may have the effect of temporarily or indefinitely
curtailing the accrual of additional benefits). If any such amendment would appear to have the
effect of reducing any other type of section 411(d)(6) protected benefit, such amendment shall
not be given effect with respect to the portion of the Participant’s benefit accrued prior to the
effective date of the amendment.




 


-2-









 







SECTION 2




DEFINITIONS




2.1. Definitions. When the following terms are used herein with initial capital letters, they
shall have the following meanings:




2.1.1. Accounts — the following Accounts will be maintained under the Plan for Participants:




	 	(a)	 	Total Account — for convenience of reference, a Participant’s entire
interest in the Fund, including the Participant’s Earnings Reduction Account,
Matching Contribution Account, Rollover Account, Transfer Account, Voluntary
Account, and any other accounts.







	 	(b)	 	Earnings Reduction Account — the account maintained for each Participant
to which is credited the Employer contributions made in consideration of such
Participant’s Earnings Reduction Agreement pursuant to Section 4.1 (or the
comparable provisions of the Predecessor Plans), together with any increase or
decrease thereon.







	 	(c)	 	Matching Contribution Account — the account maintained for each
Participant to which is credited the Participant’s allocable share of the Employer
contributions made pursuant to Section 4.3 (or the comparable provisions of the
Predecessor Plans), or made pursuant to Section 3.3 of Appendix D (or the
comparable provisions of the Predecessor Plans), together with any increase or
decrease thereon.







	 	(d)	 	Rollover Account — the account maintained for each Participant to which
is credited the Participant’s rollover contributions made pursuant to Section 4.5
hereof (or the comparable provisions of the Predecessor Plans), together with any
increase or decrease thereon.







	 	(e)	 	Transfer Account — the account maintained for each Participant to which
is credited the Participant’s interest, if any, transferred from another qualified
plan by the trustee of such other plan and not credited to any other Account,
together with any increase or decrease thereon.







	 	(f)	 	Voluntary Account — the account maintained for each Participant to which
is credited any voluntary after-tax contributions made by the Participant to a
Predecessor Plan, together with any increase or decrease thereon.





 


-3-









 











	 	(g)	 	Other Accounts and Subaccounts — The Benefits Administration Committee
shall have the authority to establish such other accounts and
subaccounts as it shall determine to be necessary from time to time to for
such purposes as the Benefits Administration Committee shall determine to
be appropriate, including, without limitation, the segregation of qualified
voluntary employee contributions made under a Predecessor Plan, together
with any increase or decrease thereon.






2.1.2. Affiliate — a business entity which is under “common control” with the Employer or
which is a member of an “affiliated service group” that includes the Employer, as those terms are
defined in section 414(b), (c) and (m) of the Code. A business entity which is a predecessor to
the Employer shall be treated as an Affiliate if the Employer maintains a plan of such
predecessor business entity or if, and to the extent that, such treatment is otherwise required
by regulations prescribed by the Secretary of the Treasury under section 414(a) of the Code. A
business entity shall also be treated as an Affiliate if, and to the extent that, such treatment
is required by regulations under section 414(o) of the Code. In addition to such required
treatment, the Benefits Administration Committee may, in its discretion, designate as an
Affiliate any business entity which is not such a “common control,” “affiliated service group” or
“predecessor” business entity but which is otherwise affiliated with the Company, subject to such
nondiscriminatory limitations as the Company may impose.



2.1.3. Alternate Payee — any spouse, former spouse, child or other dependent of a
Participant who is recognized by a qualified domestic relations order as having a right to
receive all or a portion of the Account of a Participant under the Plan.



2.1.4. Annual Valuation Date — each December 31 (or, if such date is not a Valuation Date,
then the Annual Valuation Date shall instead be the nearest preceding Valuation Date).



2.1.5. Beneficiary or Beneficiaries — the person or persons designated by a Participant (or
automatically by operation of this Plan Statement) to receive any benefit payable under the terms
of this Plan Statement to a Beneficiary. A person so designated shall not be considered a
Beneficiary until the Participant dies.




2.1.6. Benefits Administration Committee — the committee appointed pursuant to
Section 12.2.



2.1.7. Code — the Internal Revenue Code of 1986, including applicable regulations for the
specified section of the Code. Any reference in this Plan Statement to a section of the Code,
including the applicable regulation, shall be considered also to mean and refer to any subsequent
amendment or replacement of that section or regulation.



2.1.8. Company — U.S. Bancorp, a Delaware corporation, and any successor
thereto.




 


-4-









 







2.1.9. Disability — a physical or mental condition that (i) the person or entity responsible
for determining benefit eligibility under the Employer’s separate plan of long-term disability
benefits has determined renders the Participant eligible for long-term disability income loss
benefits under such plan, or (ii) solely in the case of a Participant who is not covered by such
plan (for example, because the Participant is not in employment covered by such plan or because
the Participant has opted out of coverage) at the time short-term disability benefits for the
condition end, the Social Security Administration has determined renders the Participant eligible
for Social Security disability benefits. A Participant shall cease to be treated as having a
Disability for purposes of this Plan when the relevant person or entity (or in the case of a
Participant whose Disability was established by the Social Security Administration, such
Administration) determines that the Participant is no longer eligible for the disability benefits
that originally established the Participant’s Disability.



2.1.10. Earnings Reduction Agreement — the agreement or agreements entered into (or deemed
under default rules of the Benefits Administration Committee to be entered into) by a Participant
as provided in Section 4.2 hereof.




2.1.11. Effective Date — January 1, 2002.



2.1.12. Eligibility Service — a measure of an employee’s service with the Employer and all
Affiliates which is equal to the number of computation periods in which the employee is credited
with at least one thousand (1,000) Hours of Service subject however to the following rules:




	 	(a)	 	Computation Periods. The computation periods for determining Eligibility
Service shall be the twelve (12) consecutive month period beginning with the date
the employee first performs an Hour of Service and all Plan Years beginning after
such date (regardless of any termination of employment and subsequent
reemployment); provided, however, that in addition to the computation periods
listed above, a Participant whose employment with the Employer terminates and who
subsequently is reemployed by the Employer shall also have a computation period
beginning with the date the employee first performs an Hour of Service on or after
the date of the employee’s reemployment.







	 	(b)	 	Completion. A year of Eligibility Service shall be deemed completed as
of the last day of the computation period (irrespective of the date during such
period that the employee completed one thousand Hours of Service). Fractional years
of Eligibility Service shall not be credited.







	 	(c)	 	Pre-Acquisition Service. If a person commences
employment with an Employer after January 1, 2002, such employment is
described in the limitation on Recognized Employment stated in Section
2.1.33(a)(v), and the Benefits Administration Committee declares such
employment to be Recognized Employment, the person’s
pre-acquisition service for the
acquired trade or business shall be recognized for the purpose of
determining such person’s Eligibility Service unless, in its declaration,
the Benefits Administration Committee specifically provides to the
contrary.





 


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2.1.13. Employer — the Company, each corporation listed in Schedule I to this Plan
Statement, and any business entity affiliated with the Company that adopts the Plan pursuant to
Section 9.4 and subject to such limitations (not inconsistent with federal law) as the Company
may impose with respect to the extent that service with such business entity prior to such
adoption will be recognized hereunder, and any successor thereof that adopts the Plan.




2.1.14. Enrollment Date — the first day of each month.



2.1.15. ERISA — the Employee Retirement Income Security Act of 1974, as amended, including
applicable regulations for the specified section of ERISA. Any reference in this Plan Statement
to a section of ERISA, including the applicable regulation, shall be considered also to mean and
refer to any subsequent amendment or replacement of that section or regulation.



2.1.16. ESOP Portion — the portion of the Plan that is a tax-qualified stock bonus plan
under section 401(a) of the Code and an employee stock ownership plan under section 4975(e) of
the Code. The ESOP Portion of the Plan at any time consists of all amounts invested in the ESOP
Subfund.



2.1.17. ESOP Subfund — the Subfund established pursuant to Section 5.2 to hold the ESOP
Portion of the Plan.



2.1.18. Event of Maturity — any of the occurrences described in Section 6 by reason of which
a Participant or Beneficiary may become entitled to a distribution from the Plan.



2.1.19. Fund — the assets of the Plan held by the Trustee from time to time, including all
contributions and the investments and reinvestments, earnings and profits thereon, whether
invested under the general investment authority of the Trustee or under the terms applicable to
any Subfund established pursuant to Section 5.



2.1.20. Highly Compensated Employee — any employee who (a) is a five percent (5%) owner (as
defined in Appendix B) at any time during the current Plan Year or the preceding Plan Year, or
(b) receives compensation from the Employer and all Affiliates during the preceding Plan Year in
excess of Eighty-Five Thousand Dollars ($85,000)(as adjusted under the Code for cost-of-living
increases after 2001). For this purpose, “compensation” means compensation as defined in
Appendix A for purposes of section 415 of the Code. Compensation for any employee who performed
services for only part of a year is not annualized for this purpose.


 


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2.1.21. Hours of Service — a measure of an employee’s service with the Employer and all
Affiliates, determined for a particular computation period and equal to the number of hours
credited to the employee under the following rules:




	 	(a)	 	Paid Duty. An Hour of Service shall be credited for each hour for which
the employee is paid, or entitled to payment, for the performance of duties
for the Employer or an Affiliate. These Hours of Service shall be credited
to the employee for the computation period or periods in which the duties
are performed.







	 	(b)	 	Paid Nonduty. An Hour of Service shall be credited for each hour for
which the employee is paid, or entitled to payment, by the Employer or an Affiliate
on account of a period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), layoff, jury duty, military duty or
leave of absence; provided, however, that:







	 	(i)	 	no more than five hundred one (501) Hours of
Service shall be credited on account of a single continuous period
during which the employee performs no duties (whether or not such
period occurs in a single computation period) unless such Hours in
Service in excess of five hundred one (501) hours are due to
Disability;







	 	(ii)	 	no Hours of Service shall be credited on
account of payments made under a plan maintained solely for the
purpose of complying with applicable worker’s compensation,
unemployment compensation or disability insurance laws;







	 	(iii)	 	no Hours of Service shall be credited on
account of payments which solely reimburse the employee for medical or
medically related expenses incurred by the employee; and







	 	(iv)	 	payments shall be deemed made by or due from
the Employer or an Affiliate whether made directly or indirectly from
a trust fund or an insurer to which the Employer or an Affiliate
contributes or pays premiums.







These Hours of Service shall be credited to the employee in accordance with
applicable regulations for the computation period for which payment is made
or, if the payment is not computed by reference to units of time, the Hours
of Service shall be credited to the first computation period in which the
event for which any part of the payment is made occurred.




	 	(c)	 	Back Pay. An Hour of Service shall be credited for each hour for which
back pay, irrespective of mitigation of damages, has been either awarded or agreed
to by the Employer or an Affiliate. The same Hours of Service credited under
paragraph (a) or (b) shall not be credited under this paragraph (c). The crediting
of Hours of Service under this paragraph (c) for
periods and payments described in paragraph (b) shall be subject to all the
limitations of that paragraph. These Hours of Service shall be credited to
the employee for the computation period or periods to which the award or
agreement pertains rather than the computation period in which the award,
agreement or payment is made.





 


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	 	(d)	 	Unpaid Absences.







	 	(i)	 	Military Leaves. During service in the Armed
Forces of the United States if the employee both entered such service
and returned to employment with an Employer or an Affiliate from such
service under circumstances entitling the employee to reemployment
rights granted veterans under federal law, the employee shall be
credited with the number of Hours of Service which otherwise would
normally have been credited but for such leave of absence; provided,
however, that if the employee does not return to employment for any
reason other than death, Disability or attainment of Normal Retirement
Age within the time prescribed by law for the retention of veteran’s
reemployment rights, such Hours of Service shall not be credited.







	 	(ii)	 	Parenting Leaves. To the extent not otherwise
credited and solely for the purpose of determining whether a One-Year
Break in Service has occurred, Hours of Service shall be credited to
an employee for any period of absence from work beginning in Plan
Years commencing after December 31, 1984, due to pregnancy of the
employee, the birth of a child of the employee, the placement of a
child with the employee in connection with the adoption of such child
by the employee or for the purpose of caring for such child for a
period beginning immediately following such birth or placement. The
employee shall be credited with the number of Hours of Service which
otherwise would normally have been credited to such employee but for
such absence. If it is impossible to determine the number of Hours of
Service which would otherwise normally have been so credited, the
employee shall be credited with eight (8) Hours of Service for each
day of such absence. In no event, however, shall the number of Hours
of Service credited for any such absence exceed five hundred one (501)
Hours of Service. Such Hours of Service shall be credited to the
computation period in which such absence from work begins if crediting
all or any portion of such Hours of Service is necessary to prevent
the employee from incurring a One-Year Break in Service in such
computation period. If the crediting of such Hours of Service is not
necessary to prevent the occurrence of a One-Year Break in Service in
that computation period, such Hours of Service shall be credited in
the immediately
following computation period (even though no part of such
absence
may have occurred in such subsequent computation period). These
Hours of Service shall not be credited until the employee furnishes
timely information which may be reasonably required by the Employer
to establish that the absence from work is for a reason for which
these Hours of Service may be credited.





 


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	 	(e)	 	Special Rules. An Employee will not receive credit for the same Hour of
Service under more than one subsection of this section. To the extent not
inconsistent with other provisions hereof, Department of Labor Regulations 29
C.F.R. § 2530.200b-2(b) and (c) are hereby incorporated by reference herein. To
the extent required under section 414 of the Code, services of leased employees,
leased owners, leased managers, shared employees, shared leased employees and other
similar classifications by the Employer or an Affiliate shall be taken into account
as if such services were performed as a common law employee of the Employer for the
purposes of determining Eligibility Service. (These classifications of persons are
not employees. They are, therefore, not eligible to participate in this Plan or
accrue benefits under this Plan for such services.) Application of the leased
employee rules under section 414(n) of the Code shall be subject to the following:
(i) “contingent services” shall mean services performed by a person for the
Employer or an Affiliate during the period the person has not performed the
services on a substantially full time basis for a period of at least twelve (12)
consecutive months, (ii) except as provided in (iii), contingent services shall not
be taken into account for purposes of determining Eligibility Service, (iii)
contingent services performed by a person who has become a Leased Employee shall be
taken into account for purposes of determining Eligibility Service, and (iv) all
service performed as a Leased Employee (i.e., all service following the date an
individual has satisfied all three requirements for becoming a Leased Employee)
shall be taken into account for purposes of determining Eligibility Service.







	 	(f)	 	Equivalency for Exempt Employees. Notwithstanding anything to the contrary in this
Section 2.1.21, with respect to any period during which an employee is engaged in service for
which the Employer is not required by state or federal “wage and hour” or other law to count hours
worked, and any other period during which it is not administratively feasible to count Hours of
Service as otherwise provided in this Section 2.1.21 (including certain periods during which no
duties were performed), Hours of Service shall be credited at the rate of ninety-five (95) Hours
of Service for each semi-monthly payroll period with respect to which, under the provisions of
this section (other than this paragraph), such employee would be entitled to credit for at least
one (1) Hour of Service.





 


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2.1.22. Investment Manager — that person other than the Trustee appointed pursuant to Section
10.7 to manage all or a portion of the Fund.



2.1.23. Leased Employee — any individual (other than an employee of the Employer or an
Affiliate) who performs services for the Employer or an Affiliate if (i) services are performed
under an agreement between the Employer or an Affiliate and any other individual or company, (ii)
the individual performs services for the Employer or an Affiliate on a substantially full time
basis for a period of at least twelve (12) consecutive months, and (iii) the individual’s
services are performed under the primary direction or control of the Employer or an Affiliate.
In determining whether an individual is a Leased Employee of the Employer or an Affiliate, all
prior service with the Employer or an Affiliate (including employment as a common law employee)
shall be used for purposes of satisfying (ii) above. No individual shall be considered a Leased
Employee unless and until all conditions have been satisfied.




2.1.24. Normal Retirement Age — the date a Participant attains age sixty-five (65) years.



2.1.25. Participant — an employee of the Employer who becomes a Participant in the Plan in
accordance with the provisions of Section 3. An employee who has become a Participant shall be
considered to continue as a Participant in the Plan until the earliest of the following: (i) the
date of the Participant’s death, or (ii) the date of the Participant’s termination of employment
if the Participant no longer has any account under the Plan (that is, the Participant has
received a distribution of all of the Participant’s Total Account, if any). An employee who has
not become a Participant in the Plan in accordance with the provisions of Section 3 and who makes
a rollover contribution to the Plan in accordance with the provisions of Section 4 shall be
considered a Participant solely for the purpose of making the rollover contribution and receiving
a distribution upon an Event of Maturity in accordance with the provisions of Section 7.



2.1.26. Plan — the tax-qualified profit sharing plan of the Employer established for the
benefit of employees eligible to participate therein that is amended and restated in this Plan
Statement. (As used herein, “Plan” refers to the legal entity established by the Employer and not
to the documents pursuant to which the Plan is maintained. Those documents are referred to herein
as the “Plan Statement.”) The Plan shall be referred to as the “U.S. BANCORP 401(K) SAVINGS
PLAN.” The ESOP Portion of the Plan is intended to be a tax-qualified stock bonus plan under Code
section 401(a) and an employee stock ownership plan under Code section 4975(e)(7). The remainder
of the Plan, the Profit Sharing Portion, is a tax-qualified profit sharing plan.



2.1.27. Plan Statement — the document entitled the “U.S. BANCORP 401(k) SAVINGS PLAN (2002
Restatement)“as adopted by the Company effective as of January 1, 2002, as the same may be
amended from time to time.




2.1.28. Plan Year — the twelve (12) consecutive month period ending on any
December 31.


 


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2.1.29. Predecessor Plans — the U.S. Bancorp 401(k) Savings Plan and Firstar Thrift
Savings 401(k) Plan, which merged to form this Plan on the Effective Date.



2.1.30. Profit Sharing Portion — the portion of the Plan that is a tax-qualified profit
sharing plan (and not a stock bonus plan or employee stock ownership plan). The Profit Sharing
Portion of the Plan at any time consists of all assets of the Plan other than those invested in
the ESOP Subfund.



2.1.31. Qualifying Employer Securities — common stock of U.S. Bancorp, or of a corporation
which is a member of a controlled group of corporations including U.S. Bancorp within the meaning
of section 407(d)(7) of ERISA, which is readily tradable on an established securities market. If
there is no such common stock, Qualifying Employer Securities shall mean only that class of
common stock having a combination of voting power and dividend rights equal to or in excess of:
(i) that class of common stock having the greatest voting power, and (ii) that class of common
stock having the greatest dividend rights. Notwithstanding the foregoing, noncallable preferred
stock shall be treated as Qualifying Employer Securities if such stock is convertible at any time
into stock which satisfies those requirements and if such conversion is at a conversion price
which (as of the date of the acquisition by the Plan) is reasonable. For the purposes of the
preceding sentence, to the extent permitted by applicable regulations, preferred stock shall be
treated as noncallable if after the call there will be reasonable opportunity for a conversion
which meets the requirements of the preceding sentence.



2.1.32. Recognized Compensation — wages within the meaning of section 3401(a) of the Code
for purposes of federal income tax withholding at the source but determined without regard to any
rules that limit the remuneration included in wages based on the nature or location of the
employment or the services performed (such as the exception for agricultural labor in
section 3401(a)(2) of the Code) and paid to the Participant by the Employer for the applicable
period; subject, however, to the following:




	 	(a)	 	Included Items. In determining a Participant’s Recognized Compensation
there shall be included all of the following: (i) elective contributions made by
the Employer on behalf of the Participant that are not includible in gross income
under sections 125, 132(f), 402(e)(3), 402(h), 403(b), 414(h)(2) and
457 of the Code (including elective contributions authorized by the
Participant under a cafeteria plan or any qualified cash or deferred
arrangement under section 401(k) of the Code), and (ii) amounts deferred by
the Participant under a nonqualified deferred compensation plan maintained
by the Employer.





 


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	 	(b)	 	Excluded Items. In determining a Participant’s Recognized Compensation
there shall be excluded all of the following: (i) expense reimbursements, car
allowances and other similar payments, including foreign service allowances,
station allowances, foreign tax equalization payments and other similar payments,
(ii) welfare and fringe benefits (cash and noncash), including
tuition reimbursements, payments under an adoption assistance program,
disability payments (but not continued payment of a Participant’s normal
compensation under the Employer’s policy regarding short-term absences for
medical reasons), payments for vacation or sick leave accrued but not
taken, and final payments on account of termination of employment (e.g.,
severance payments), (iii) all noncash remuneration including income
imputed from below-market loans and from insurance coverages
and premiums, (iv) employee discounts and other similar amounts, (v)
moving expenses, (vi) payments under a nonqualified deferred compensation
plan, (vii) the value of all stock options and stock appreciation rights
(whether or not exercised), restricted stock, and other similar amounts,
(viii) cash payments in lieu of retirement plan contributions that could
not be made due to the application of section 401(a)(17) of the Code, and
(ix) retention bonuses.







	 	(c)	 	Pre-Participation Employment. Enumeration paid by the Employer
attributable to periods prior to the date the Participant became a Participant in
the Plan shall not be taken into account in determining the Participant’s
Recognized Compensation.







	 	(d)	 	Non-Recognized Employment. Remuneration paid by the Employer for
employment that is not Recognized Employment shall not be taken into account in
determining a Participant’s Recognized Compensation.







	 	(e)	 	Attribution to Periods. A Participant’s Recognized Compensation shall be
considered attributable to the period in which it is actually paid and not when
earned or accrued.







	 	(f)	 	Excluded Periods. Amounts received more than 30 days after the
Participant’s termination of employment shall not be taken into account in
determining a Participant’s Recognized Compensation.







	 	(g)	 	Multiple Employers. If a Participant is employed by more than one
Employer in a Plan Year, a separate amount of Recognized Compensation shall be
determined for each Employer.







	 	(h)	 	Annual Maximum. A Participant’s Recognized Compensation for any
twelve-month period shall not exceed the annual compensation limit under section
401(a)(17) of the Code. For purposes of the foregoing, the annual compensation
limit under section 401(a)(17) of the Code shall be two hundred thousand dollars
($200,000) for the twelve-month period beginning January 1, 2002, and shall
thereafter be adjusted as provided under the Code for cost of living increases.





 


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2.1.33. Recognized Employment — all service with the Employer by persons classified by the
Employer as an employee on both payroll and personnel records; subject, however, to the
following:




	 	(a)	 	Exclusions. Service classified by the Employer as being performed in any
of the following categories of employment shall be excluded from Recognized
Employment:







	 	(i)	 	employment in a unit of employees whose terms
and conditions of employment are subject to a collective bargaining
agreement between the Employer and a union representing that unit of
employees, unless (and to the extent) such collective bargaining
agreement provides for the inclusion of those employees in the Plan;







	 	(ii)	 	employment of a nonresident alien who is not
receiving any earned income from the Employer which constitutes income
from sources within the United States;







	 	(iii)	 	employment of a United States citizen or a
United States resident alien outside the United States unless and to
the extent the Benefits Administration Committee shall declare such
employment to be Recognized Employment (if such a designation is made,
the Benefits Administration Committee also shall specify the extent to
which the compensation payable to such citizen by the Employer, the
foreign Affiliate, or both shall be recognized for purposes of the
Plan);







	 	(iv)	 	employment in a division or facility of the
Employer which is not in existence on January 1, 2002 (that is, was
acquired, established, founded or produced by the liquidation or
similar discontinuation of a separate subsidiary after January 1,
2002) unless and to the extent the Benefits Administration Committee
shall declare such employment to be Covered Employment;







	 	(v)	 	employment by an Employer that began as a
result of the Employer’s acquisition, by merger, asset purchase, or
otherwise, of all or a portion of a trade or business, unless and to
the extent the Benefits Administration Committee shall declare such
employment to be Recognized Employment;







	 	(vi)	 	employment of a Highly Compensated Employee to
the extent agreed to in writing by that individual; and











 


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	 	(vii)	 	employment for which the person accrues or accrued benefits
under any other tax-qualified defined contribution pension plan of
the Employer or an Affiliate.







	 	(b)	 	Non-Employees. Service performed for the Employer by an individual who
is not classified by the Employer as an employee on both payroll and personnel
records shall not be considered Recognized Employment. Without limiting the
generality of the foregoing, such service shall include service performed by an
individual classified by the Employer as a Leased Employee, leased owner, leased
manager, shared employee, shared leased employee, temporary worker, independent
contractor, contract worker, agency worker, freelance worker or other similar
classification.







	 	(c)	 	Effect of Classification. The Employer’s classification of an individual
at the time of inclusion in or exclusion from Recognized Employment shall be
conclusive for the purpose of the foregoing rules. No reclassification of an
individual’s status with the Employer, for any reason, without regard to whether it
is initiated by a court, governmental agency or otherwise and without regard to
whether or not the Employer agrees to such reclassification, shall result in the
individual being retroactively included in Recognized Employment. Notwithstanding
anything to the contrary in this provision, however, the Benefits Administration
Committee may declare that a reclassified individual will be included in Recognized
Employment prospectively. Any uncertainty concerning an individual’s classification
shall be resolved by excluding the individual from Recognized Employment.






2.1.34. Subfund — a separate pool of assets of the Fund set aside for investment purposes
under Section 5.



2.1.35. Trustee — U.S. Bank National Association, a national banking association, and its
successor or successors in trust. Where the context requires, Trustee shall also mean and refer
to any one or more co-trustees serving hereunder.



2.1.36. Valuation Date — each day on which trading is conducted on the New York Stock
Exchange.




2.1.37. Vested — nonforfeitable.




 


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SECTION 3




ELIGIBILITY AND PARTICIPATION




3.1. General Eligibility Rule. An employee who was a participant in a Predecessor Plan immediately
prior to the Effective Date and who is in Recognized Employment on the Effective Date shall be a
Participant on the Effective Date. On and after the Effective Date, if an employee is then
employed in Recognized Employment, the employee shall become a Participant on the first day of the
month following the month in which the employee will have completed one (1) year of Eligibility
Service; provided, however, that if the employee’s first Hour of Service occurred on the first day
of a month and the employee completed a year of Eligibility Service in his or her first
computation period, the employee shall become a Participant on the first day of the second month
following the month in which the employee completes one (1) year of Eligibility Service (subject
to being in Recognized Employment on that day). If the employee is not then employed in
Recognized Employment, the employee shall not become a Participant until the first day of the
month following the month in which the employee enters Recognized Employment.



3.2. Special Rule for Former Participants. A Participant whose employment with the Employer
terminates and who subsequently is reemployed by the Employer shall be eligible to resume Earnings
Reduction Contributions no later than the first day of the month following the month in which the
Participant returns to Recognized Employment.



3.3. Enrollment. Each employee who is or will become a Participant may authorize earnings
reductions by completing an Earnings Reduction Agreement and delivering it to the Benefits
Administration Committee prior to the Enrollment Date as of which the employee desires to make it
effective. If an employee does not enroll when first eligible to do so, the employee may enroll as
of any subsequent Enrollment Date by completing an Earnings Reduction Agreement and delivering it
to the Benefits Administration Committee prior to that Enrollment Date. The Benefits
Administration Committee may, but need not, permit such enrollment to be made by telephonic,
electronic or similar methods, in lieu of an enrollment in writing, and shall determine what
information shall be required to be furnished in connection with the Participant’s enrollment.




 


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SECTION 4




CONTRIBUTIONS AND ALLOCATION THEREOF




4.1. Employer Contributions.



4.1.1. Source of Employer Contributions. All Employer contributions to the Plan may be made
without regard to profits.



4.1.2. Limitation. The contribution of the Employer to the Plan for any year, when
considered in light of its contribution for that year to all other tax-qualified plans it
maintains, shall, in no event, exceed the maximum amount deductible by it for federal income tax
purposes as a contribution to a tax-qualified profit sharing plan under section 404 of the Code.
Each such contribution to the Plan is conditioned upon its deductibility for such purpose.



4.1.3. Form of Payment. The appropriate contribution of the Employer to the Plan, determined
as herein provided, shall be paid to the Trustee and may be paid either in cash or in common
 shares of the Employer or of any successor or in other assets of any character of a value equal
to the amount of the contribution or in any combination of the foregoing ways.



4.2. Earnings Reduction Contributions.



4.2.1. Earnings Reduction Agreements. Subject to the following rules, each Participant may
execute an Earnings Reduction Agreement which provides for a reduction of not less than one
percent (1%) nor more than fifty percent (50%) of the amount of Recognized Compensation which
otherwise would be paid to the Participant by the Employer each payday, and for equal amounts to
be contributed by the Employer to the Plan (“Earnings Reduction Contributions”). The Benefits
Administration Committee may from time to time establish rules changing the minimum and maximum
allowable reduction. The reduction agreed to by the Participant shall be made by the Employer
from the Participant’s Recognized Compensation each payday for so long as the Earnings Reduction
Agreement remains in effect. Such Earnings Reduction Contributions and any elective contributions
made under any other plans of the Employer and Affiliates for a taxable year of a Participant,
however, shall not exceed the limit in effect for such taxable year under Code section 402(g).




4.2.2. Modification of Earnings Reduction Agreements. Earnings Reduction
Agreements may be modified as follows:




	 	(a)	 	Increase or Decrease. A Participant may, upon giving prior notice in a
manner authorized by the Benefits Administration Committee, amend a Participant’s
Earnings Reduction Agreement to increase or decrease the amount of reduction
effective as of the first payday following the pay period in which the notice is
given.





 


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	 	(b)	 	Cancellation of Earnings Reductions. A Participant who has an Earnings
Reduction Agreement in effect may, upon giving prior notice in a manner
authorized by the Benefits Administration Committee, completely terminate
the Agreement effective as of the first payday following the pay period in
which the notice is given which is designated by the Participant.
Thereafter, such Participant may, upon giving prior notice in a manner
authorized by the Benefits Administration Committee, enter into a new
Earnings Reduction Agreement effective as of the first payday following the
pay period in which the notice is given if, on that first payday, the
Participant is employed in Recognized Employment.







	 	(c)	 	Termination of Recognized Employment. The Earnings Reduction Agreement
of a Participant who ceases to be employed in Recognized Employment shall be
terminated automatically as soon as administratively feasible after the date the
Participant ceases to be employed in Recognized Employment. If such Participant
returns to Recognized Employment, the Participant may, upon giving prior notice in
a manner authorized by the Benefits Administration Committee, enter into a new
Earnings Reduction Agreement effective as of the date of the Participant’s return
to Recognized Employment or effective as of the first payday following the month in
which the notice is given which is designated by the Participant.







	 	(d)	 	Form of Agreement. The Benefits Administration Committee shall specify
the form of all Earnings Reduction Agreements, the form of any notices regarding
such Agreements and all procedures for the delivery and acceptance of forms and
notices.






4.2.3. Amount. Within the time required by regulations of the United States Department of
Labor, the Employer shall contribute to the Trustee for deposit in the Fund the reduction in
Recognized Compensation which was agreed to by each Participant pursuant to an Earnings Reduction
Agreement.



4.2.4. Allocation. The Earnings Reduction Contribution made with respect to each Participant
shall be credited to that Participant’s Earnings Reduction Account as soon as practicable after
it is received by the Trustee.



4.2.5. Section 401(k) Compliance. Contributions made in accordance with Earnings Reduction
Agreements described in this Section 4.2 shall satisfy the nondiscrimination requirements of
section 401(k) of the Code by applying the applicable rules set forth in Appendix D.


 


-17-









 





4.3. Matching Contributions.



4.3.1. Amount. The Employer shall contribute to the Trustee for deposit in the Fund and for
crediting to the Participant’s Matching Contribution Account an amount (“Matching
Contribution”) equal to one hundred percent (100%) of the Participant’s reduction in Recognized
Compensation for the Plan Year which was agreed to by the Participant pursuant to a Earnings
Reduction Agreement, up to a maximum Matching Contribution of four percent (4%) of the
Participant’s Recognized Compensation. Such Employer Matching Contributions shall be made only
for Participants who are eligible Participants within the meaning of Section 4.3.2. Such Employer
Matching Contributions shall be delivered to the Trustee for deposit in the Fund not later than
the time prescribed by federal law (including extensions) for filing the federal income tax
return of the Employer for the taxable year in which the Plan Year ends.



4.3.2. Eligibility. For purposes of Section 4.3.1, a Participant shall be eligible to
receive a Matching Contribution for a Plan Year only if such Participant is employed in
Recognized Employment on the last business day of that Plan Year. Any Participant who is then on
a parental leave or who is in active service in the Armed Forces of the United States whose
benefit is protected under USERRA shall be deemed to meet this requirement. No other Participant
(including, without limitation, Participants who have severed or terminated employment, retired,
or died) shall be eligible to receive a Matching Contribution.



4.3.3. Allocation. The Employer Matching Contribution which is made with respect to a
Participant shall be allocated to that Participant’s Matching Contribution Account for the Plan
Year with respect to which it is made and, for the purposes of Section 5, shall be credited as
soon as practicable after it is received by the Trustee.



4.3.4. Section 401(m) Compliance. Matching Contributions made in accordance with this
Section 4.3 shall satisfy the nondiscrimination requirements of section 401(m) of the Code by
applying the applicable rules set forth in Appendix D.



4.4. Discretionary Contributions.



4.4.1. General. The Employer may (but shall not be required to) make additional
contributions (“Discretionary Contributions”) from year to year during the continuance of the
Plan in such amounts as the Employer shall from time to time determine. Such contributions shall
be delivered to the Trustee for deposit in the Fund not later than the time prescribed by federal
law (including extensions) for filing the federal income tax return of the Employer for the
taxable year in which the Plan Year ends.



4.4.2. Additional Allocation. Any portion of the Employer’s Discretionary Contribution not
allocated as provided in Appendix D shall be allocable to the Accounts of individuals who were
Participants during that Plan Year. No other Participant shall be eligible to share in the
allocation of this portion of the discretionary Employer contribution.



This allocation shall be made in the same ratio in which the amount of the Employer
contributions allocated to the Earnings Reduction Account of each such eligible Participant for
that Plan Year bears to the amount of the aggregate Employer contributions allocated to the
Earnings Reduction Accounts of all such eligible Participants for that Plan Year. The Employer
contribution
which is so allocated to a Participant shall be credited to that Participant’s Matching
Contribution
Account as soon as practicable after it is received by the Trustee.


 


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4.4.3. Eligible Participants. For purposes of Section 4.4.2, a Participant shall be an
eligible Participant for a Plan Year only if such Participant is employed in Recognized
Employment on the last day of such Plan Year. Any Participant who is then on parental leave and
any Participant called to active service in the Armed Forces of the United States whose benefit
is protected under USERRA shall be deemed to meet this requirement. No other Participant
(including, without limitation, Participants who have severed or terminated employment, retired,
or died) shall be eligible to receive a Discretionary Contribution.



4.5. Rollover Contributions.



4.5.1. Eligible Contributions. An employee in Recognized Employment may contribute to the
Plan, in such form and manner as may be prescribed by the Benefits Administration Committee in
accordance with those provisions of federal law relating to rollover contributions, cash (or the
cash proceeds from distributed property) received by the employee in an eligible rollover
distribution. The permitted sources for an eligible rollover distribution include: (i) an
eligible retirement plan that is a tax-qualified retirement plan under section 401(a), (ii) a
plan described in sections 403(a) or 403(b) of the Code, (iii) an eligible plan under section
457(b) of the Code which is maintained by a state, political subdivision of a state, or any
agency or instrumentality of a state or political subdivision of a state, and (iv) an individual
retirement account or annuity described in sections 408(a) or 408(b) of the Code. Such
contributions (“Rollover Contributions”) shall be subject to such conditions and limitations as
the Benefits Administration Committee may prescribe from time to time for administrative
convenience and to preserve the tax-qualified status of the Plan (including, without limitation,
delaying the acceptance of Rollover Contributions from sources that were not permitted sources
prior to the Effective Date until such acceptance becomes administratively feasible). The Plan
will not accept a rollover contribution of after-tax employee contributions.



4.5.2. Specific Review. The Benefits Administration Committee shall have the right to reject
or return any such Rollover Contribution if, in its opinion, the acceptance thereof might
jeopardize the tax-qualified status of the Plan or unduly complicate its administration, but the
acceptance of any such Rollover Contribution shall not be regarded as an opinion or guarantee on
the part of the Employer, the Trustee, the Benefits Administration Committee or the Plan as to
the tax consequences which may result to the contributing employee thereby.



4.5.3. Allocation. All Rollover Contributions made by an employee to the Plan shall be
allocated to a Rollover Account established for such employee. The amount so allocated to an
employee shall be credited to such employee’s Rollover Account as soon as practicable after it is
received by the Trustee.



4.6. Voluntary Contributions. Nondeductible voluntary contributions shall not be accepted by the
Plan on or after the Effective Date. Any nondeductible voluntary
contributions made in
accordance with one of the Predecessor Plans shall be held in the Voluntary Account and shall
continue to share in any trust earnings or losses, and be distributed in accordance with the
provisions of Section 7.


 


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4.7. Adjustments.



4.7.1. Make-Up Contributions for Omitted Participants. If, after the Employer’s annual
contribution for a Plan Year has been made and allocated, it should appear that, through
oversight or a mistake of fact or law, a Participant (or an employee who should have been
considered a Participant) who should have been entitled to share in such contribution received no
allocation or received an allocation which was less than the Participant should have received,
the Benefits Administration Committee may, at its election, and in lieu of reallocating such
contribution, direct the Employer to make a special make-up contribution for the Account of such
Participant in an amount adequate to provide for him the same addition to the Participant’s
Account for such Plan Year as the Participant should have received.



4.7.2. Mistaken Contributions. If, after the Employer’s annual contribution for a Plan Year
has been made and allocated, it should appear that, through oversight or a mistake of fact or
law, a Participant (or an individual who was not a Participant) received an allocation which was
more than the Participant should have received, the Benefits Administration Committee may direct
that the mistaken contribution, adjusted for its pro rata share of any net loss or net gain in
the value of the Fund which accrued while such mistaken contribution was held therein, shall be
withdrawn from the Account of such individual and retained in the Fund and used to reduce the
amount of the next succeeding contribution of the Employer to the Fund due after the
determination that such mistaken contribution had occurred.



4.8. Limitation on Allocations. In no event shall amounts be allocated to the Account of any
Participant if, or to the extent, such amounts would exceed the limitations set forth in Appendix
A to this Plan Statement.



4.9. Effect of Disallowance of Deduction or Mistake of Fact. All Employer contributions to the
Plan are conditioned on their qualification for deduction for federal income tax purposes under
section 404 of the Code should be disallowed, in whole or in part, for any Employer contribution
to the Plan for any year, or if any Employer contribution to the Plan is made by reason of a
mistake of fact, then there shall be calculated the excess of the amount contributed over the
amount that would have been contributed had there not occurred a mistake in determining the
deduction or a mistake of fact. The Benefits Administration Committee, at its election, may
direct the Trustee to return such excess, adjusted for its pro rata share of any net loss (but
not any net gain) in the value of the Fund which accrued while such excess was held therein, to
the Employer within one (1) year of the disallowance of the deduction or the mistaken payment of
the contribution, as the case may be. If the return of such amount would cause the balance of any
Account of any Participant to be reduced to less than the balance which would have been in such
Account had the mistaken amount not been contributed, however, the amount to be returned to the
Employer shall be limited so as to avoid such reduction.



4.10. Vesting. Each Participant’s Total Account shall be fully (100%) Vested at all times.




 


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SECTION 5




INVESTMENT AND ADJUSTMENT OF ACCOUNTS




5.1. Profit Sharing Portion.



5.1.1. Establishing Commingled Subfunds. At the direction of the Employer, the Trustee shall
divide the Fund into two (2) or more Subfunds, which shall serve as vehicles for the investment
of Participants’ Accounts and which shall be managed either by the Trustee or by one or more
Investment Managers, as the Employer shall determine. The Employer shall determine, with the
advice of the Trustee or such Investment Manager or Managers, the general investment
characteristics and objectives of each Subfund. The Trustee or Investment Manager, as the case
may be, shall have complete investment discretion over each Subfund assigned to it, subject only
to the general investment characteristics and objectives established for the particular Subfund.



5.1.2. Individual Subfunds. The Benefits Administration Committee also may (but is not
required to) establish additional Subfunds that consist solely of all or a part of the assets of
a single Participant’s Total Account, which assets the Participant controls by investment
directives to the Trustee and which may not be commingled with the assets of any other
Participant’s Accounts. In no event, however, shall the Participant be allowed to direct the
investment of assets in such individual Subfund in any work of art, rug or antique, metal or gem,
stamp or coin, alcoholic beverage or other similar tangible personal property if the investment
in such property shall have been prohibited by the Secretary of the Treasury.



Notwithstanding anything apparently to the contrary in Section 10, each Participant, each
Beneficiary and each Alternate Payee for whom an individually directed Subfund is maintained
shall be responsible for the exercise of any voting or similar rights which exist with respect to
assets in such individually directed Subfund. The Trustee shall cooperate with Participants,
Beneficiaries and Alternate Payees to permit them to exercise such rights. The Trustee shall
not independently exercise such rights. Any Beneficiary of a deceased Participant with an
individually directed Subfund shall have the responsibility to direct investments for such
Subfund until the Beneficiary directs the Trustee otherwise in writing.



5.1.3. Operational Rules. In accordance with uniform rules, the Benefits Administration
Committee shall determine the circumstances under which a particular Subfund may be elected, or
shall be automatically utilized, the minimum or maximum amount or percentage of an Account which
may be invested in a particular Subfund, the procedures for making or changing investment
elections and the effect of a Participant’s or Beneficiary’s failure to make an effective
election with respect to all or any portion of an Account.



5.1.4. Revising Subfunds. The Employer shall have the power, from time to time, to dissolve
Subfunds, to direct that additional Subfunds be established, to change Investment Managers for
any one or more of the Subfunds, and to establish uniform rules implementing Subfund changes,
limiting participation in a particular Subfund, or regulating withdrawals from Subfunds.


 


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5.2. ESOP Portion.



5.2.1. Employer Stock Subfunds. In addition to the Subfunds created pursuant to Section
5.1.1, the Trustee shall also maintain at least two (2) Subfunds which shall be invested in
Qualifying Employer Securities: the ESOP Subfund and the Non-ESOP Stock Subfund. The ESOP Subfund
shall be primarily invested in Qualifying Employer Securities and shall constitute the ESOP
Portion of the Plan. The balance of the ESOP Subfund on the Effective Date shall consist of all
amounts that were held in an employer stock subfund by one of the Predecessor Plans immediately
prior to the Effective Date. The ESOP Subfund and the Non-ESOP Stock Subfund shall be
collectively referred to herein as the Company Stock Fund. The following special rules shall
apply to the Subfunds in the Company Stock Fund:




	 	(a)	 	All Earnings Reduction Contributions credited to a Participant’s Account
after the Effective Date and all amounts transferred after the Effective Date from
another Subfund that are to be invested in the Company Stock Fund shall be
initially invested in the Non-ESOP Subfund. All Matching Contributions credited
to a Participant’s Account after the Effective Date shall be invested in the ESOP
Subfund.







	 	(b)	 	Once each calendar quarter, on or as soon as administratively feasible
after the date designated by the Benefits Administration Committee or, if no date
has been designated for a quarter, immediately prior to each dividend record date
occurring during such quarter (or, if no dividend record date occurs during the
quarter, on the last day of the quarter), all amounts held in the Non-ESOP Stock
Subfund shall be automatically transferred to the ESOP Subfund. For purposes of
this subsection (b), a dividend record date that occurs on the first day of a
calendar quarter shall be treated as if that day was the last day of the
immediately preceding quarter.






5.2.2. Investment of ESOP Portion. The ESOP Portion is designed to invest primarily in
Qualifying Employer Securities and shall be so invested to the extent Qualifying Employer
Securities are available and consistent with the reasonably anticipated liquidity needs of the
ESOP Subfund. In no event shall the Trustee pay more than adequate consideration for Qualifying
Employer Securities which it purchases for the Plan. In no event shall the Trustee receive less
than adequate consideration for Qualifying Employer Securities that it sells for the Plan. The
primary purpose of the ESOP Portion is to benefit Participants and Beneficiaries by obtaining and
retaining for them, individually and collectively, a position of equity ownership in U.S. Bancorp
and not by producing retirement income or investment gains.



5.2.3. Diversification. Any amounts in a Participant’s ESOP Account may be reinvested at any
time in other Subfunds. All diversification and reinvestment elections authorized by this Section
5.2.3 shall be made in accordance with such rules regarding the form of such elections, the
manner of their filing and the information required to be furnished as may be established from
time to time by the Benefits Administration Committee.


 


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5.2.4. Dividends. Dividends on Qualifying Employer Securities in the ESOP Subfund shall be
allocated to each person who has any portion of his or her Total Account invested in the ESOP
Portion of the Plan in proportion to their ESOP Subfund balances on the applicable dividend
record date. Dividends allocated to a Participant or Beneficiary shall be subject to the
following rules:




	 	(a)	 	Election on Dividend Investment or Payment. Participants and
Beneficiaries shall have the opportunity to elect whether any dividends allocated
to them shall be paid in cash or invested in the ESOP Subfund. Such elections shall
remain in force until changed by the Participant or Beneficiary. If the
Participant or Beneficiary does not make an initial election, then any dividend
allocated to that Participant or Beneficiary shall be invested in the ESOP Subfund.
The Benefits Administration Committee shall establish the form of the election, the
procedures for making the election, the frequency of the election (provided that
the frequency is not less than once a year), and the restrictions, if any, on the
period during which the election may be made.







	 	(b)	 	Payment of Dividends Directly to Participant or Beneficiary or to
Trustee. For those Participants and Beneficiaries who elect to receive their
dividends in cash, such dividends may, at the discretion of the Benefits
Administration Committee, be paid by U.S. Bancorp either directly to such
Participant or Beneficiary or to the Trustee. If such dividends are paid to the
Trustee, the Trustee shall pay the dividends to such Participant or Beneficiary not
later than ninety (90) days after the end of Plan Year during which such dividends
were paid to the Trustee. The Benefits Administration Committee may decide to use
either method or both methods in any Plan Year, so long as the methods are applied
to in a nondiscriminatory manner. Such payment shall not be considered a
distribution under Section 7 and shall not qualify as an eligible rollover
distribution.







	 	(c)	 	Reinvestment of Dividends. Any reinvestment of dividends in the ESOP
Subfund shall not be treated as an annual addition for the purposes of section 415
of the Code, as an elective contribution for purposes of section 401(k) of the
Code, or as an employee contribution for purposes of section 401(m) of the Code.






5.2.5. Voting of Employer Securities. The Trustee shall vote Qualifying Employer
Securities held in the Fund as specified below.




	 	(a)	 	Issuance of Proxies. As soon as practicable after notice of any
shareholders’ meeting is received by the Trustee from the issuer of such Qualifying
Employer Securities, the Trustee shall prepare and deliver to each Participant and
Beneficiary of a deceased Participant a form of proxy (and related
materials, all of which shall be the same in form and content as are issued
to shareholders in general) directing the Trustee as to how it shall vote
at such meeting, or any adjournment thereof, the Participant’s or
Beneficiary’s share of the Qualifying Employer Securities with voting
rights held in the ESOP Subfund as of the most recent Valuation Date for
which a valuation has been completed.





 


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	 	(b)	 	Voting of Securities. The Trustee shall vote all Qualifying Employer
Securities with voting rights for which it has received timely directions from
Participants and Beneficiaries, as they direct. The combined fractional shares of
Participants and Beneficiaries shall be voted to the extent possible to reflect the
directions of the Participants and Beneficiaries with fractional shares. The
Trustee shall not honor or recognize any proxy given by any Participant or
Beneficiary to any person other than the Trustee. The directions received by the
Trustee from Participants and Beneficiaries shall be held by the Trustee in
confidence and shall not be divulged or released to any person, including officers
or employees of an Employer or any Affiliate, except as necessary to administer the
Plan.







	 	(c)	 	Nonresponse. The Trustee shall vote any Qualifying Employer Securities
for which it has not received instructions at least five (5) days prior to the
shareholder meeting in the same proportions as the Qualifying Employer Securities
for which it did receive timely instructions.






5.2.6. Tender Offer. This Subsection shall be effective only if and when the Trustee
determines that a bona fide tender offer has been made for some or all of the Qualifying Employer
Securities held in the ESOP Subfund. A bona fide tender offer shall be deemed to have been made
if the maker of the offer has filed copies of the offer with the Securities and Exchange
Commission pursuant to section 14(d)(1) of the Securities Exchange Act of 1934.




	 	(a)	 	Receipt of Tender. Upon the receipt by the Trustee of such an offer for
some or all of the ESOP Subfund’s Qualifying Employer Securities, the Trustee shall
prepare and deliver to each Participant and Beneficiary of a deceased Participant a
notification (and related materials, all of which shall be the same in form and
content as are issued to shareholders in general) of the existence of such a tender
offer and shall solicit from each such Participant and Beneficiary binding
directions with respect to whether the Trustee should tender the shares held for
the benefit of such Participant or Beneficiary.







	 	(b)	 	Tender of Securities. The Trustee shall tender Qualifying Employer
Securities for which it has received timely directions from Participants and
Beneficiaries, as directed. The combined fractional shares of Participants and
Beneficiaries shall be tendered (or not) to the extent possible to reflect the
directions of Participants and Beneficiaries with fractional shares. The
Trustee shall not honor or recognize any proxy given by any Participant or
Beneficiary to any person other than the Trustee. The directions received
by the Trustee from Participants and Beneficiaries shall be held by the
Trustee in confidence and shall not be divulged or released to any person,
including officers or employees of an Employer or any Affiliate, except as
necessary to administer the Plan.





 


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	 	(c)	 	Nonresponse. The Trustee shall tender any Qualifying Employer Securities
for which it has not timely received instructions in the same proportions as the
Qualifying Employer Securities for which it did receive timely instructions.







	 	(d)	 	Fractional Tender. A Participant or Beneficiary may direct the Trustee
to tender some but less than all of the Participant’s shares.







	 	(e)	 	Proportional Tender. If, under the terms of the tender offer, the
Trustee is able to sell some but less than all of the Qualifying Employer
Securities for which it received timely directions to sell, the Trustee shall
tender a uniform percentage of each Participant’s or Beneficiary’s shares which
were under directions to be tendered.







	 	(f)	 	Securities Law Restrictions. In no case shall the Trustee honor the
direction of any Participant or Beneficiary to tender his or her Qualifying
Employer Securities if the Trustee has determined that it is prevented by
securities law from tendering such shares.







	 	(g)	 	Future Investments. If the Trustee shall sell any of a Participant’s or
Beneficiary’s Qualifying Employer Securities pursuant to the Participant’s or
Beneficiary’s directions, the proceeds from such sale shall be reinvested in the
manner elected by the Participant or, in the absence of such an election, in the
manner established by the Benefits Administration Committee, which shall not
provide for reinvestment in Qualifying Employer Securities.






5.2.7. Put Option. If they are not publicly traded when distributed or are subject to a
trading limitation when distributed, Qualifying Employer Securities in the ESOP Subfund
distributed hereunder shall be subject to a “put option” as follows:




	 	(a)	 	The put option shall be exercised by the Participant or a Beneficiary,
by any person to whom the Qualifying Employer Securities have passed by gift, and
by any person (including an estate or a recipient of the estate) to whom the
Qualifying Employer Securities passed upon the death of the Participant or
Beneficiary (hereinafter the “Holder”).





 


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	 	(b)	 	The put option must be exercised during the sixty (60) day period
beginning on the date the Qualifying Employer Securities are first
distributed by the Plan or during the sixty (60) day period that begins one
(1) year after such date. The period during which the put option is
exercisable shall not include any time when a Holder is unable to exercise
the put option because the Employer is prohibited from honoring the put
option by federal or state law.







	 	(c)	 	To exercise the put option, the Holder shall notify the Employer in
writing that the put option is being exercised.







	 	(d)	 	Upon receipt of such notice, the Employer shall tender to the Holder
within thirty (30) days of exercise the fair market value either in cash or in a
combination of cash equal to at least sixteen and two-thirds percent
(16-2/3%) of the fair market value and a promissory note providing payment of the
balance in not more than five (5) equal annual installments of principal (that is,
16-2/3% of total fair market value each), with the first installment due one (1)
year after exercise and the last annual installment due five (5) years after
exercise. The note shall provide for full right of prepayment without penalty. The
interest rate on such promissory note shall be equal to the annual rate of interest
on 30-year Treasury securities for the month prior to the month in which the
promissory note is issued. The note shall be secured by (and only by) a pledge of
the shares sold.







	 	(e)	 	The Benefits Administration Committee shall have the option to cause the
Plan to assume the Employer’s rights and obligations to acquire Qualifying Employer
Securities under the put option. If the Plan issues a promissory note for payment,
such note shall be guaranteed by the Employer and shall meet the requirements of an
exempt guaranteed loan.







	 	(f)	 	For the purposes of this Subsection, a “trading limitation” on a
security is a restriction under any federal or state securities law, any regulation
thereunder, or an agreement effecting the security which would make the security
not as freely tradable as one not subject to such restrictions.







	 	(g)	 	If the Qualifying Employer Securities were publicly traded and were not
subject to a trading limitation when distributed but cease to be so traded during
the period described in paragraph (b) above, the Employer must notify each Holder
in writing within ten (10) days after the Qualifying Employer Securities cease to
be so traded that for the remainder of such period the Qualifying Employer
Securities are subject to the put option described in this Subsection.





 


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5.2.8. Valuation of Employer Securities. The fair market value of any employer securities
(including Qualifying Employer Securities) that are not publicly traded shall be determined
by a qualified “independent appraiser” (within the meaning of Code section 401(a)(28)(C))
selected by the Benefits Administration Committee in good faith and on the basis of all relevant
factors for determining the fair market value of securities. In the case of a transaction between
the Plan and a disqualified person, fair market value must be determined as of the date of the
transaction. In all other cases, fair market value shall be determined as of the most recent
Annual Valuation Date.



5.3. ERISA Section 404(c) Compliance. The Benefits Administration Committee may establish
investment Subfunds and operational rules which are intended to satisfy section 404(c) of ERISA
and the regulations thereunder. Such investment Subfunds shall permit Participants and
Beneficiaries, Beneficiaries and Alternate Payees the opportunity to choose from at least three
investment alternatives, each of which is diversified, each of which presents materially
different risk and return characteristics, and which, in the aggregate, enable Participants,
Beneficiaries and Alternate Payees to achieve a portfolio with appropriate risk and return
characteristics consistent with minimizing risk through diversification. Such operational rules
shall provide the following, and shall otherwise comply with section 404(c) of ERISA and the
regulations and rules promulgated thereunder from time to time:




	 	(a)	 	Participants, Beneficiaries and Alternate Payees may give investment
instructions to the Trustee at least once every three months;







	 	(b)	 	The Trustee must follow the investment instructions of Participants,
Beneficiaries and Alternate Payees that comply with the Plan’s operational rules,
provided that the Trustee may in any event decline to follow any investment
instructions that:







	 	(i)	 	would result in a prohibited transaction described in section 406 of
ERISA or section 4975 of the Code;







	 	(ii)	 	would result in the acquisition of an asset
that might generate income which is taxable to the Plan;







	 	(iii)	 	would not be in accordance with the documents
and instruments governing the Plan insofar as they are consistent with
Title I of ERISA;







	 	(iv)	 	would cause a fiduciary to maintain indicia of
ownership of any assets of the Plan outside of the jurisdiction of the
district courts of the United States other than as permitted by
section 404(b) of ERISA and Department of Labor regulation section
2050.404b-1;







	 	(v)	 	would jeopardize the Plan’s tax status under the Code;







	 	(vi)	 	could result in a loss in excess of a Participant’s, Beneficiary’s or
Alternate Payee’s Account balance;





 


-27-









 






	 	(c)	 	Participants, Beneficiaries and Alternate Payees shall be periodically
informed of actual expenses to their Accounts which are imposed by the Plan
and which are related to their investment decisions.







	 	(d)	 	With respect to any Subfund consisting of Employer securities and
intended to satisfy the requirements of section 404(c) of ERISA, (i) Participants,
Beneficiaries and Alternate Payees shall be entitled to all voting, tender and
other rights appurtenant to the ownership of such securities, (ii) procedures shall
be established to ensure the confidential exercise of such rights, except to the
extent necessary to comply with federal and state laws not preempted by ERISA, and
(iii) the Trustee shall ensure the sufficiency of and compliance with such
confidentiality procedures.






5.4. Valuation and Adjustment of Accounts.



5.4.1. Valuation of Fund. The Trustee shall value each Subfund in the Profit Sharing Portion
and the ESOP Portion from time to time (but not less frequently than each Annual Valuation Date),
which valuation shall reflect, as nearly as possible, the then fair market value of the assets
comprising such Subfund in the Profit Sharing Portion and ESOP Portion (including income
accumulations therein). The ESOP Portion shall use so-called “unit accounting” with units holding
only U.S. Bancorp stock and cash or cash equivalents. In making such valuations, the Trustee may
rely upon information supplied by any Investment Manager having investment responsibility over
the particular Subfund.



5.4.2. Adjustment of Accounts. The Benefits Administration Committee shall cause the value
of each Account or portion of an Account invested in a particular Subfund in the Profit Sharing
portion or in the ESOP Portion (including undistributed Total Accounts of former employees) to be
increased (or decreased) from time to time for distributions, contributions, investment gains (or
losses) and expenses charged to the Account.



5.4.3. Rules. The Benefits Administration Committee may establish additional rules for the
adjustment of Accounts, including the times when contributions shall be credited for the purposes
of allocating gains or losses under this Section.



5.5. Management and Investment of Fund. The Fund in the hands of the Trustee, together with all
additional contributions made thereto and together with all net income thereof, shall be
controlled, managed, invested, reinvested and ultimately paid and distributed to Participants and
Beneficiaries by the Trustee (and Investment Manager, if appointed) with all the powers, rights
and discretions generally possessed by trustees, and with all the additional powers, rights and
discretions conferred upon the Trustee (and Investment Manager, if appointed) under this Plan
Statement. Except to the extent that the Trustee is subject to the authorized and properly given
investment directions of a Participant, Beneficiary or Investment Manager, and subject to the
directions of the Benefits Administration Committee with respect to the payment of benefits
hereunder, the Trustee shall have the exclusive authority to manage and control the assets of the
Fund in its custody and
shall not be subject to the direction of any person in the discharge of its duties, nor shall its
authority be subject to delegation or modification except by formal amendment of this Plan
Statement.




 


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SECTION 6




MATURITY




A Participant’s Total Account shall mature and become distributable in accordance with Section 7
upon the earliest occurrence of any of the following events while in the employment of the
Employer or an Affiliate:




	 	(a)	 	the Participant’s death;







	 	(b)	 	the Participant’s severance from employment, whether voluntary or
involuntary, including, without limitation, the disposition by the Employer to a
non-Affiliate of the Employer’s interest in a subsidiary (within the meaning of
section 409(d)(3) of the Code) which employs the Participant;







	 	(c)	 	the Participant’s Disability;







	 	(d)	 	the Participant’s attainment of age seventy and one-half (70-1/2) years; or







	 	(e)	 	the crediting of any amounts to the Participant’s Account after the
Participant’s attainment of age seventy and one-half (70-1/2) years.






provided, however, that a transfer from Recognized Employment to employment with the Employer
that is other than Recognized Employment or a transfer from the employment of one Employer
participating in the Plan to another such Employer or to any Affiliate shall not constitute an
Event of Maturity.




 


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SECTION 7




DISTRIBUTION




7.1. Distribution to Participants Upon Event of Maturity.



7.1.1. Application Required. No distribution shall be made from the Plan until the
Participant entitled to a distribution has made a request for distribution in the form and manner
established by the Benefits Administration Committee. The Benefits Administration Committee may,
but need not, permit such application to be made by telephonic, electronic or similar methods, in
lieu of an application in writing, and shall determine what additional information shall be
required to be furnished in connection with the Participant’s request.




	 	(a)	 	Exception for Small Amounts. If a Participant whose Total Account does
not exceed Five Thousand Dollars ($5,000) incurs an Event of Maturity, then the
Total Account shall be distributed automatically in a single lump sum as soon as
administratively practicable following such Event of Maturity without an
application for distribution.







	 	(b)	 	Exception for Required Distributions. Any Total Account for which no
application has been received on the required beginning date effective as to a
Participant under Section 7.1.5, shall be distributed automatically in a single
lump sum as of that date without an application for distribution.






7.1.2. Spousal Consent Not Required. The consent of a Participant’s spouse shall not be
required to make distributions from the Plan.



7.1.3. Form of Distribution. A Participant who was a participant in a Predecessor Plan shall
have available all of the forms of distribution that were available to the Participant under the
applicable Predecessor Plan for any distribution commencing on or after the Effective Date and
before April 1, 2002. Subject to the foregoing and except as otherwise provided in Section 7.5.4
below, the only form of distribution available under the Plan on or after the Effective Date is a
lump sum cash payment.



7.1.4. Time of Distribution. Upon receipt of a complete and properly submitted request from
the Participant for distribution after an Event of Maturity, and after the right of the
Participant to receive a distribution has been established, the Benefits Administration Committee
shall cause the Trustee to determine the value of the Participant’s Total Account and to commence
distribution of such Total Account as soon as administratively practicable thereafter. No
distribution, however, shall be made as of a Valuation Date preceding the date the Participant’s
completed request has been properly submitted.


 


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7.1.5. Required Beginning Date. Notwithstanding anything in Section 7.1.4 to the contrary,
distribution to a Participant shall be made not later than the Participant’s required beginning
date.




	 	(a)	 	Required Beginning Date for Five Percent (5%) Owners. If a Participant
is a five percent (5%) owner (as defined in Appendix B) at any time during the Plan
Year in which such Participant attains age seventy and one-half (70-1/2) years,
distribution shall not be made later than the April 1 following the calendar year
in which the Participant attains age seventy and one-half (70-1/2) years. If any
amounts are thereafter credited to such a Participant’s Accounts, then each
subsequent December 31 shall also be treated as a required beginning date.







	 	(b)	 	Required Beginning Date for All Other Participants. If a Participant is
not subject to (a) above, the Participant’s required beginning date shall be the
later of (i) the April 1 following the calendar year in which the Participant
attains age seventy and one-half (70-1/2) years, or (ii) the April 1 following the
calendar year in which the Participant terminates employment.






7.1.6. Death Prior to Distribution. If a Participant dies after the Participant’s Event of
Maturity but before distribution of the Participant’s Total Account has been completed, the
undistributed Total Account shall be distributed to the Participant’s Beneficiary as provided in
Section 7.5.



7.2. Distribution to Participants Prior to Severance of Employment.



7.2.1. Withdrawals From Voluntary Accounts. A Participant may make withdrawals while
employed from time to time from the Participant’s Voluntary Account. To receive such a
withdrawal, the Participant must complete and submit a request for the withdrawal in the form and
manner established by the Benefits Administration Committee. The Benefits Administration
Committee may, but need not, permit such application to be made by telephonic, electronic or
similar methods, in lieu of an application in writing, and shall determine what information shall
be required to be furnished in connection with the Participant’s request in addition to the
dollar amount to be withdrawn. Such withdrawal shall be made in a lump sum payment as soon as
administratively practicable following approval of the request.




	 	(a)	 	Accounting. The amount of such withdrawals by a Participant shall be
deemed to first come from the aggregate amount of nondeductible voluntary
contributions theretofore made by the Participant and only thereafter from the
earnings or gains in, or attributable to, the Voluntary Account.





 


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	 	(b)	 	Accounting. The amount of such withdrawals shall be deemed to have been
first taken from the Participant’s nondeductible voluntary contributions made prior
to January 1, 1987, to the extent of the aggregate amount not previously
withdrawn. Thereafter, withdrawals shall be deemed to have been taken from
a combination of (i) the Participant’s nondeductible voluntary
contributions made after December 31, 1986, to the extent of the aggregate
amount thereof not previously withdrawn, and (ii) a portion of the earnings
in the Voluntary Account. The portion of each such withdrawal that is
deemed to be earnings will be in the same ratio as the total earnings of
the Voluntary Account bear to the total Voluntary Account.







	 	(c)	 	Spousal Consent Not Required. Spousal consent shall not be required for
a withdrawal to a married Participant.







	 	(d)	 	Coordination with Section 5.1. If the Voluntary Account is invested in
more than one (1) Subfund authorized and established under Section 5.1, the amount
withdrawn shall be charged to each Subfund in the same proportions as the Voluntary
Account is invested in each Subfund.






7.2.2. In-Service Distributions. A Participant may receive in-service distributions while
employed from time to time from the following Accounts: Voluntary Account, Rollover Account,
Transfer Account, and the portion of the Participant’s Matching Contribution Account attributable
to contributions under the Firstar Plan classified as “Pre 2000 Employer” or to contributions
under the Bancorp Plan made prior to 1999. To receive such a distribution, the Participant must
complete and submit a request for the distribution in the form and manner established by the
Benefits Administration Committee. The Benefits Administration Committee may, but need not,
permit such application to be made by telephonic, electronic or similar methods, in lieu of an
application in writing, and shall determine what information shall be required to be furnished in
connection with the Participant’s request in addition to the dollar amount to be distributed.
Such distribution shall be made in a lump sum payment as soon as administratively practicable
following approval of the request.




	 	(a)	 	Spousal Consent. Spousal consent shall not be required to make an
in-service distribution to a married Participant.







	 	(b)	 	Sequence of Accounts. Each distribution made pursuant to this Section
7.2.2 shall first be taken from and charged to the Participant’s Accounts in a
sequence to be determined by the Benefits Administration Committee. Distributions
from the Participant’s Voluntary Account shall be distributed in the sequence
described in Section 7.2.1.







	 	(c)	 	Coordination with Section 5.1. If a distribution is made from an Account
which is invested in more than one (1) Subfund, the amount distributed shall be
charged to each Subfund in the same proportions as the Account is invested in each
Subfund.





 


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7.2.3. Age 59-1/2 Distributions. A Participant may receive a distribution while employed of
all or any portion of the Participant’s Accounts if the Participant has attained age fifty-nine
and one-half (59-1/2) years. To receive such a distribution, the Participant must complete and
submit a request for the distribution in the form and manner established by the Benefits
Administration Committee. The Benefits Administration Committee may, but need not, permit such
application to be made by telephonic, electronic or similar methods, in lieu of an application in
writing, and shall determine what information shall be required to be furnished in connection
with the Participant’s request in addition to the dollar amount to be distribution. Such
distribution shall be made in a lump sum payment as soon as administratively practicable
following approval of the request.




	 	(a)	 	Spousal Consent. Spousal consent shall not be required to make an age
59-1/2 distribution to a married Participant.







	 	(b)	 	Sequence of Accounts. Each distribution made pursuant to this
Section 7.2.3 shall first be taken from and charged to the Participant’s Accounts
in the following sequence:






Voluntary Account

Rollover
Account

Transfer
Account

Earnings Reduction Account

Matching Contribution Account

Other Accounts.





Distributions from the Participant’s Voluntary Account shall be distributed
in the sequence described in Section 7.2.1.




	 	(c)	 	Coordination with Section 5.1. If a distribution is made from an Account
which is invested in more than one (1) Subfund, the amount distributed shall be
charged to each Subfund in the same proportions as the Account is invested in each
Subfund.






7.2.4. Hardship Distributions. A Participant may receive a hardship distribution while
employed from the Accounts listed in (e) below if the Benefits Administration Committee
determines that such hardship distribution is for one of the purposes described in (a) below and
the conditions in (b) and (d) below have been fulfilled. To receive such a withdrawal, the
Participant must complete and submit a request for the withdrawal in the form and manner
established by the Benefits Administration Committee. The Benefits Administration Committee may,
but need not, permit such application to be made by telephonic, electronic or similar methods, in
lieu of an application in writing, and shall determine what information shall be required to be
furnished in connection with the Participant’s request in addition to the dollar amount to be
withdrawn. Such withdrawal shall be made in a lump sum payment as soon as administratively
practicable following approval of the request.








 


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	 	(a)	 	Purposes. Hardship distributions shall be allowed under this Section
7.2.4 only if the Participant establishes that the hardship distribution is
to be made for one of the following purposes:







	 	(i)	 	expenses for medical care described in section
213(d) of the Code previously incurred by the Participant, the
Participant’s spouse or any dependents of the Participant (as defined
in section 152 of the Code) or necessary for these persons to obtain
medical care described in section 213(d) of the Code,







	 	(ii)	 	costs directly related to the purchase of a principal residence for the
Participant (excluding mortgage payments),







	 	(iii)	 	payment of tuition, related educational fees
and room and board expenses for the next twelve (12) months of
post-secondary education for the Participant, or the Participant’s
spouse, children or dependents (as defined in section 152 of the
Code), or







	 	(iv)	 	payments necessary to prevent the eviction of
the Participant from the Participant’s principal residence or
foreclosure on the mortgage of that principal residence.







Such purposes shall be considered to be an immediate and heavy financial
need of the Participant.




	 	(b)	 	Limitations. In no event shall the cumulative amount of hardship
distributions withdrawn from a Participant’s Earnings Reduction Account exceed the
amount of contributions to that Account (i.e., hardship distributions from that
Account shall not include any earnings on such contributions or any curative
allocations or earnings on curative allocations made pursuant to Section 2.3 of
Appendix D). The amount of the hardship distribution shall not exceed the amount of
the Participant’s immediate and heavy financial need; provided, however, that the
amount of the immediate and heavy financial need may include amounts necessary to
pay any federal, state, or local income taxes or penalties reasonably anticipated
to result from the distribution. In addition, a hardship distribution shall not be
allowed unless the Participant has obtained all distributions, other than hardship
distributions, and all nontaxable loans (at the time of the loan) currently
available under all plans maintained by the Employer and Affiliates. Other funds
are not currently available unless the funds are available prior to or coincidently
with the date the hardship distribution is available.







	 	(c)	 	Spousal Consent Not Required. Spousal consent shall not be required to
make a hardship distribution to a married Participant.





 


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	 	(d)	 	Coordination with Other Plans. The rules described in this
Section 7.2.4(d) apply only if the hardship distribution includes a portion of the
Participant’s Earnings Reduction Account. The Participant’s Earnings Reduction
Agreement and elective contributions and employee contributions under all other
plans maintained by the Employer and Affiliates shall be canceled for twelve (12)
months after receipt of a hardship distribution and shall not be automatically
reinstated. Thereafter, the Participant may, upon giving prior notice to the
Committee, enter into a new Earnings Reduction Agreement effective as of any
subsequent Enrollment Date following such twelve (12) month period, provided the
Participant is in Recognized Employment on that date. Effective with respect to
hardship distributions processed on or after May 1, 2002, the twelve (12) month
cancellation period referred to in the preceding sentence shall be reduced to six
(6) months. For the purposes of this Section 7.2.4(d), all other plans maintained
by the Employer and Affiliates shall mean all qualified and nonqualified plans of
deferred compensation maintained by the Employer and Affiliates (including stock
option, stock purchase or similar plans).







	 	(e)	 	Sequence of Accounts. Each hardship distribution made pursuant to this
Section 7.2.4 shall first be taken from and charged to the Participant’s Accounts
in the following sequence:






Voluntary Account

Rollover
Account

Transfer
Account

Earnings Reduction Account.





	 	(f)	 	Coordination with Section 5.1. If the hardship distribution is made from
an Account which is invested in more than one (1) Subfund, the amount withdrawn
shall be charged to each Subfund in the same proportions as the Account is invested
in each Subfund.






7.3. Distribution to Beneficiary.



7.3.1. Application For Distribution Required. To receive a distribution, a Beneficiary must
complete and submit a request for the distribution in the form and manner established by the
Benefits Administration Committee. The Benefits Administration Committee may, but need not,
permit such application to be made by telephonic, electronic or similar methods, in lieu of an
application in writing, and shall determine what information shall be required to be furnished in
connection with the Beneficiary’s request.




	 	(a)	 	Exception for Small Amounts. Upon the death of a Participant whose Total
Account does not exceed Five Thousand Dollars ($5,000), such Participant’s Total
Account shall be distributed to the Beneficiary in a single lump sum as
soon as administratively practicable following such Participant’s death
without an application for distribution.





 


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	 	(b)	 	Exception for Required Distributions. Any Total Account for which no
application has been timely received on or before the required beginning date
effective as to a Beneficiary under Section 7.3.4, shall be distributed
automatically in a single lump sum without an application for distribution.






7.3.2. Form of Distribution. The only form of distribution available under the Plan is a
single lump sum payment.



7.3.3. Time of Distribution. Upon receipt of a complete and properly submitted request from
the Beneficiary for distribution after the Participant’s death, and after the right of the
Beneficiary to receive a distribution has been established, the Benefits Administration Committee
shall cause the Trustee to determine the value of the Participant’s Total Account and to commence
distribution of the portion of such Total Account that is distributable to the Beneficiary in a
single lump sum as soon as administratively practicable thereafter.



7.3.4. Required Beginning Date. Notwithstanding any other provision of the Plan Statement,
distribution to the Beneficiary of the entire interest of a Participant shall be made not later
than December 31 of the calendar year in which occurs the fifth (5th) anniversary of the
Participant’s death or, in the case of a Beneficiary who was the surviving spouse of the
Participant, not later than the later of (i) December 31 of the calendar year in which occurs the
first (1st) anniversary of the Participant’s death, or (ii) December 31 of the calendar year in
which the Participant would have attained age seventy and one-half (70-1/2) years.



7.4. Designation of Beneficiaries.



7.4.1. Right To Designate. Each Participant may designate, upon forms to be furnished by and
filed with the Benefits Administration Committee, one or more primary Beneficiaries or
alternative Beneficiaries to receive all or a specified part of the Participant’s Total Account
in the event of the Participant’s death. The Participant may change or revoke any such
designation from time to time without notice to or consent from any Beneficiary. No such
designation, change or revocation shall be effective unless signed by the Participant and
received by the Benefits Administration Committee during the Participant’s lifetime. The
Benefits Administration Committee may establish rules for the use of electronic signatures. Until
such rules are established, electronic signatures shall not be effective.



7.4.2 Spousal Consent. Notwithstanding anything in Section 7.4.1 to the contrary, a
designation will not be valid for the purpose of paying benefits from the Plan to anyone other
than a surviving spouse of the Participant (if there is a surviving spouse) unless that surviving
spouse consents in writing to the designation of another person as Beneficiary. To be valid, the
consent of such spouse must be in writing, must acknowledge the effect of the designation of the
Beneficiary and must be witnessed by a notary public. The consent of the spouse must be to the
designation of a
specific named Beneficiary which may not be changed without further spousal consent. The consent
of the surviving spouse need not be given at the time the designation is made. The consent of
the surviving spouse need not be given before the death of the Participant. The consent of the
surviving spouse will be required, however, before benefits can be paid to any person other than
the surviving spouse. The consent of a spouse shall be irrevocable and shall be effective only
with respect to that spouse.


 


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7.4.3. Failure of Designation. If a Participant:





	 	(a)	 	fails to designate a Beneficiary,






	 	(b)	 	designates a Beneficiary and thereafter such designation is revoked
without another Beneficiary being named, or







	 	(c)	 	designates one or more Beneficiaries and all such Beneficiaries so
designated fail to survive the Participant,






such Participant’s Total Account, or the part thereof as to which such Participant’s designation
fails, as the case may be, shall be payable to the first class of the following classes of
automatic Beneficiaries with a member surviving the Participant and (except in the case of the
Participant’s surviving issue) in equal shares if there is more than one member in such class
surviving the Participant:




Participant’s surviving spouse




Participant’s surviving issue per stirpes and not per capita




Participant’s surviving parents




Participant’s surviving brothers and
sisters




Representative of Participant’s
estate.



7.4.4. Disclaimers by Beneficiaries. A Beneficiary entitled to a distribution of all or a
portion of a deceased Participant’s Total Account may disclaim his or her interest therein
subject to the following requirements. To be eligible to disclaim, such Beneficiary must be a
natural person, must not have received a distribution of all or any portion of a Total Account at
the time such disclaimer is executed and delivered, and must have attained at least age
twenty-one (21) years as of the date of the Participant’s death. Any disclaimer must be in
writing and must be signed by the Beneficiary and acknowledged by a notary public. A disclaimer
shall state that the Beneficiary’s entire interest in the undistributed Total Account is
disclaimed or shall specify what portion thereof is disclaimed. To be effective, duplicate
original signed copies of the disclaimer must be both signed and actually delivered to both the
Benefits Administration Committee and to the Trustee after the date of the Participant’s death
but not later than nine (9) months after the date of the Participant’s death. A disclaimer
shall be irrevocable when delivered to both the Benefits Administration Committee and the
Trustee. A disclaimer shall be considered to be delivered to the Benefits Administration
Committee or the Trustee only when actually received by the Benefits Administration Committee or
the Trustee (and in the case of a corporate Trustee, shall be considered
to be delivered only when actually received by a trust officer familiar with the affairs of the
Plan). The Benefits Administration Committee (and not the Trustee) shall be the sole judge of the
content, interpretation and validity of a purported disclaimer. Upon the filing of a valid
disclaimer, the Beneficiary shall be considered not to have survived the Participant as to the
interest disclaimed. A disclaimer by a Beneficiary shall not be considered to be a transfer of an
interest in violation of the provisions of Section 8 and shall not be considered to be an
assignment or alienation of benefits in violation of federal law prohibiting the assignment or
alienation of benefits under the Plan. No other form of attempted disclaimer shall be recognized
by either the Benefits Administration Committee or the Trustee.


 


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7.4.5. Definitions. When the following terms are used herein and, unless the Participant has
otherwise specified in the Participant’s Beneficiary designation, they shall have the following
meaning:




	 	(a)	 	Issue — all persons who are lineal descendants of the person whose issue
are referred to, subject to the following:







	 	(i)	 	a legally adopted child and the adopted
child’s lineal descendants always shall be lineal descendants of each
adoptive parent (and of each adoptive parent’s lineal ancestors);







	 	(ii)	 	a legally adopted child and the adopted
child’s lineal descendants never shall be lineal descendants of any
former parent whose parental rights were terminated by the adoption
(or of that former parent’s lineal ancestors); except that if, after a
child’s parent has died, the child is legally adopted by a stepparent
who is the spouse of the child’s surviving parent, the child and the
child’s lineal descendants shall remain lineal descendants of the
deceased parent (and the deceased parent’s lineal ancestors);







	 	(iii)	 	if the person (or a lineal descendant of the
person) whose issue are referred to is the parent of a child (or is
treated as such under applicable law) but never received the child
into that parent’s home and never openly held out the child as that
parent’s child (unless doing so was precluded solely by death), then
neither the child nor the child’s lineal descendants shall be issue of
the person.







	 	(b)	 	Child — an issue of the first generation.







	 	(c)	 	Per stirpes — in equal shares among living children of the person whose
issue are referred to and the issue (taken collectively) of each deceased child of
such person, with such issue taking by right of representation of such deceased
child.





 


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(d) Survive and Surviving — living after the death of the Participant.



7.4.6. Special Rules. Unless the Participant has otherwise specified in the Participant’s
Beneficiary designation, the following rules shall apply:




	 	(a)	 	If there is not sufficient evidence that a Beneficiary was living at the
time of the death of the Participant, it shall be deemed that the Beneficiary was
not living at the time of the death of the Participant.







	 	(b)	 	The automatic Beneficiaries specified in Section 7.4.3 and the
Beneficiaries designated by the Participant shall become fixed at the time of the
Participant’s death so that, if a Beneficiary survives the Participant but dies
before the receipt of all payments due such Beneficiary hereunder, such remaining
payments shall be payable to the representative of such Beneficiary’s estate.







	 	(c)	 	If the Participant designates as a Beneficiary the person who is the
Participant’s spouse on the date of the designation, either by name or by
relationship, or both, the dissolution, annulment or other legal termination of the
marriage between the Participant and such person shall automatically revoke such
designation. (The foregoing shall not prevent the Participant from designating a
former spouse as a Beneficiary on a form signed by the Participant and received by
the Benefits Administration Committee after the date of the legal termination of
the marriage between the Participant and such former spouse, and during the
Participant’s lifetime.)







	 	(d)	 	Any designation of a nonspouse Beneficiary by name that is accompanied
by a description of relationship to the Participant shall be given effect without
regard to whether the relationship to the Participant exists either then or at the
Participant’s death.







	 	(e)	 	Any designation of a Beneficiary only by statement of relationship to
the Participant shall be effective only to designate the person or persons standing
in such relationship to the Participant at the Participant’s death.






A Beneficiary designation is permanently void if it either is signed or is filed by a Participant
who, at the time of such signing or filing, is then a minor under the law of the state of the
Participant’s legal residence. The Benefits Administration Committee (and not the Trustee) shall
be the sole judge of the content, interpretation and validity of a purported Beneficiary
designation.


 


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7.5. General Distribution Rules.



7.5.1. Notices. The Benefits Administration Committee will issue such notices as may be
required under sections 402(f), 411(a)(11), and other sections of the Code in connection with
distributions from the Plan, and no distribution will be made unless it is consistent with such
notice
requirements. Generally, distributions may not commence as of a date that is more than ninety
(90) days or less than thirty (30) days after such notices are given to the Participant.
Distribution may commence less than thirty (30) days after the notice required under section
1.411(a)-11(c) of the income tax regulations or the notice required under section 1.402(f)-2T of
the income tax regulations is given, provided however, that:




	 	(a)	 	the Benefits Administration Committee clearly informs the distributee
that the distributee has a right to a period of at least thirty (30) days after
receiving such notices to consider whether or not to elect distribution; and







	 	(b)	 	the distributee, after receiving the notice, affirmatively elects a distribution.






7.5.2. Direct Rollover. A distributee who is eligible to elect a direct rollover may elect,
at the time and in the manner prescribed by the Benefits Administration Committee, to have all or
any portion of an eligible rollover distribution paid directly to an eligible retirement plan
specified by the distributee in a direct rollover. A distributee who is eligible to elect a
direct rollover includes only a Participant, a Beneficiary who is the surviving spouse of a
Participant and a Participant’s spouse or former spouse who is the Alternate Payee under a
qualified domestic relations order, as defined in Appendix C.




	 	(a)	 	Eligible rollover distribution means any distribution of all or any
portion of a Total Account to a distributee who is eligible to elect a direct
rollover except (i) any distribution that is one of a series of substantially equal
installments payable not less frequently than annually over the life expectancy of
such distributee or the joint and last survivor life expectancy of such distributee
and such distributee’s “designated beneficiary” as determined under section
401(a)(9) of the Code, and (ii) any distribution that is one of a series of
substantially equal installments payable not less frequently than annually over a
specified period of ten (10) years or more, and (iii) any distribution to the
extent such distribution is required under section 401(a)(9) of the Code, and (iv)
any hardship distribution, and (v) the portion of any distribution that is not
includible in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).







To the extent an eligible rollover distribution consists of after-tax
employee contributions which are not includible in gross income, such
portion may be transferred only to an individual retirement account or
annuity described in section 408(a) or 408(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.








 


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	 	(b)	 	Eligible retirement plan means (i) an individual retirement account
described in section 408(a) of the Code, or (ii) an individual retirement
annuity described in section 408(b) of the Code, or (iii) a plan described
in section 403(a) or section 403(b) of the Code, or (iv) a qualified trust
described in section 401(a) of the Code that accepts the eligible rollover
distribution, or (v) eligible plan under section 457(b) of the Code which
is maintained by a state, political subdivision of a state, or any agency
or instrumentality of a state or political subdivision of a state and which
agrees to separately account for amounts transferred into such plan from
this 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 an Alternate Payee.







	 	(c)	 	Direct rollover means the payment of an eligible rollover distribution
by the Plan to the eligible retirement plan specified by the distributee who is
eligible to elect a direct rollover.






7.5.3. Compliance with Section 401(a)(9) of the Code. Notwithstanding the foregoing
provisions of this Section 7, all distributions under the Plan shall comply with the minimum
distribution requirements of section 401(a)(9) of the Code.



7.5.4. Distribution in Cash. Distribution of a Participant’s Total Account shall be made in
cash (or cash equivalents). If, however, the Total Account to be distributed consists in whole
or in part of a Participant’s unpaid promissory note, the notes shall be distributed in kind. If
the Total Account to be distributed is in whole or in part invested in a Subfund devoted
substantially to investment in Qualifying Employer Securities the Participant may elect
distribution of that portion of the Participant’s Total Account in one of the following ways:




	 	(a)	 	Qualifying Employer Securities and such cash as may be necessary to
represent fractional shares of such stock and other assets allocated to such
Subfund, or







	 	(b)	 	entirely in cash, to the extent cash is available in such Subfund.






In the absence of an election to receive Qualifying Employer Securities, the portion of the
Participant’s Total Account invested in such Subfund shall be distributed entirely in cash. In
the case of cash distributions in lieu of shares or fractional shares of Qualifying Employer
Securities, such shares or fractional shares shall be valued as of the Valuation Date as of which
distribution is made.


 


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7.5.5. Facility of Payment. In case of the legal disability, including minority, of any
person entitled to receive any distribution under the Plan, payment shall be made, if the
Benefits Administration Committee shall be advised of the existence of such condition:




	 	(a)	 	To the duly appointed guardian, conservator, attorney-in-fact or other
legal representative of such person, or







	 	(b)	 	To a individual or institution entrusted with the care or maintenance of
such person, provided, however, such individual or institution has satisfied the
Benefits Administration Committee that the payment will be used for the best
interest and to assist in the care of such person, and provided further, that no
prior claim for said payment has been made by a duly appointed guardian,
conservator, attorney-in-fact or other legal representative of such person.






Any payment made in accordance with the foregoing provisions of this Section shall constitute a
complete discharge of any liability or obligation of the Employer, the Benefits Administration
Committee, the Trustee and the Fund therefor.



7.6. Loans. The provisions of this Section shall be subject to the following rules, conditions
and limitations:



7.6.1. Availability. Loans shall be made available to all Participants who are actively
employed by the Employer or an Affiliate subject to limitations and conditions established under
this Section by the Benefits Administration Committee on a reasonably equivalent basis. Loans
shall not be made available to Highly Compensated Employees in an amount (expressed as a
percentage of their Total Account) greater than is made available to other employees.



7.6.2. Spousal Consent. Spousal consent shall not be required to make a loan to a married
Participant unless the Benefits Administration Committee establishes a rule to the contrary for
all similarly situated Participants, or both: (i) the Participant’s Account includes assets
attributable to a transfer or merger described in Section 9.3 that are subject to the survivor
annuity rules of Code Section 401(a)(11), and (ii) the amount to be loaned includes such assets.
In the event that spousal consent is required, no loan shall be made pursuant to this Section 7.6
unless the spouse of the Participant, consents to the loan. To be valid, the consent of such
spouse must be in writing, must acknowledge the effect of the loan and the use of the Account as
security for the loan and must be witnessed by a notary public. The consent of the spouse must be
given within ninety (90) days prior to the date the loan is made and must relate to that specific
loan. The consent given by the spouse to whom the Participant was married at the time the loan
was made shall be effective with respect to that spouse and each subsequent spouse of the
Participant. A new consent shall be required if the Account is used for renegotiation,
extension, renewal or other revision of the loan.


 


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7.6.3. Administration. Loan requests shall be granted or denied solely on the basis of this
Section. There shall be no discretion to grant or deny a loan request. Denials shall be
processed under the claims procedure rules of the Plan. Loans shall be approved (or denied) by
the Benefits Administration Committee. The Benefits Administration Committee shall be contacted
for this purpose at the address shown in the summary plan description. A copy of these rules,
loan application forms, specimen promissory notes and any other information that is available
concerning loans shall be made available at that address upon written request. Loans under the
Plan and any
other plan maintained by the Employer will be considered separate loans. Therefore, separate loan
applications and promissory notes will need to be completed for loans from the Plan or any other
plan. A loan will be made upon completion of a loan application, the execution of a promissory
note and the completing of such other forms and the furnishing of such other information as may
be required to comply with this Section. The promissory note will be a negotiable instrument.
The Trustee will not, however, sell any note. The Benefits Administration Committee may
prescribe rules regarding the form of such application, the method of filing such application
(including telephonic, electronic or similar methods) and the information required to be
furnished in connection with such application.



7.6.4. Loan Terms. The total amount of such loans to any Participant shall not exceed the
lesser of:




	 	(a)	 	Fifty percent (50%) (or such lower percentages as the Benefit
Administration Committee may establish from time to time) of the Vested amount of
that Participant’s Total Account, or







	 	(b)	 	Fifty Thousand Dollars ($50,000);






provided, however, that the Fifty Thousand Dollar ($50,000) limitation shall be reduced by the
excess (if any) of: (i) the highest outstanding balance of loans from the Plan (and all other
plans of the Employer and all Affiliates) to such Participant during the one-year period ending
on the day before the new loan is made, over (ii) the outstanding balance of all loans from the
Plan (and all other plans of the Employer and all Affiliates) to such Participant on the day the
new loan is made.



Except for any permitted suspension of payments during a leave of absence, any such loan
must be repaid at least monthly in substantially level amounts, including principal and interest,
over the term of the loan. Any such loan shall provide that it shall be repaid within a definite
period of time to be specified by the Participant in the loan application and the promissory
note. That period shall not exceed five (5) years unless such loan is to a Participant and is
used to acquire a principal residence (as defined in section 121 of the Code) for the Participant
and then it shall not exceed fifteen (15) years.



7.6.5. Collateral. Every loan made under these rules shall be secured by that portion of the
Participant’s Account which does not exceed fifty percent (50%) of the sum total of the
Participant’s Total Account. This dollar amount shall be determined immediately after the
origination of the loan (and shall be reduced by the amount of any unpaid principal and interest
on any earlier loan which is similarly secured). This security interest shall exist without
regard to whether it is or is not referenced in the loan documents. The Plan shall be permitted
to realize on this collateral (as hereinafter provided) by any means including (but not limited
to) foreclosure (i.e., offset). No other collateral shall be permitted or required.


 


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7.6.6. Loan Rules. The Benefits Administration Committee may adopt rules for the
administration of loans that are not inconsistent with any prior provisions of this Section.
Unless amended by the Benefits Administration Committee, the following rules shall apply:




	 	(a)	 	Loan Amount. Loans will not be made in a principal amount less than One
Thousand Dollars ($1,000) nor in increments of less than One Hundred Dollars
($100).







	 	(b)	 	Loan Interest Rate. The interest rate on any loan shall be equal to the
prime rate (the base rate on corporate loans at large United States money center
commercial banks) as published for the first business day of the calendar month in
which the loan is granted by The Wall Street Journal in its Money Rates column or
any comparable successor rate so published, plus one percent (1%). If the prime
rate is published as a range of rates, the highest prime rate in the range shall be
used.







	 	(c)	 	Accounting for Loan. For the purpose of determining the extent to which
a Total Account is entitled to share in income, gains or losses of the Fund under
Section 5, the same shall be deemed to be reduced by the unpaid balance of any
outstanding loans to the Participant, and the interest payments on such loans shall
be credited to the Participant’s Total Account. If a loan is made to a person who
has assets in more than one Account, such loan shall be deemed to have been made
from the Accounts in the following sequence:






Voluntary Account

Rollover Account Matching

Contribution Account Earnings

Reduction Account Transfer

Account.





Repayments of principal on loans and payments of interest shall be
apportioned among the Accounts from which the loan was made in proportion
to the amounts by which the Accounts were initially reduced in order to
make the loan. If a loan is made from an Account which is invested in more
than one Subfund authorized and established under Section 5.1, the amount
withdrawn in order to make the loan shall be charged to each Subfund in the
same proportions as the Account is invested in each Subfund. All repayments
of principal and interest shall be reinvested in the same manner as
contributions under the Participant’s investment elections in effect at the
time the repayment is received.




	 	(d)	 	Payments. All Participants shall make payment of loans by monthly or
more frequent payroll deduction to the extent of their available pay. The making of
the loan shall be considered an irrevocable authorization for payroll
deduction.





 


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	 	(e)	 	Prepayments. The loan may be prepaid in whole at any time.







	 	(f)	 	Termination of Employment. The entire outstanding principal and unpaid
interest shall be due and payable on the date ninety (90) days after the
Participant’s termination of employment with the Employer and all Affiliates,
unless the Participant’s termination of employment entitles him or her to receive
severance payments from the Employer. For the purposes of this Section 7.6.6(f),
“severance payments” means payments made at regular payroll intervals under any
severance plan of the Participant’s Employer. If the Participant receives severance
payments from the Employer, then the entire outstanding principal and unpaid
interest shall be due and payable on the date ninety (90) days after the date the
Employer pays the last regular severance payment to the Participant. If the entire
outstanding principal and unpaid interest is not paid within the ninety (90) day
period following the Participant’s termination of employment or, if applicable, the
date the Employer pays the last regular severance payment to the Participant, then
the unpaid principal and interest due and owing on that date shall be offset
against the Participant’s Total Account.







	 	(g)	 	Death of the Participant. The death of the Participant shall terminate
the loan. The unpaid principal and interest due and owing on the date of the
Participant’s death shall be offset against the Participant’s Total Account. No
payments shall be permitted after the Participant’s death. The tax consequences of
the offset shall be reported to the Participant or the Participant’s estate and not
to the Beneficiary.







	 	(h)	 	Event of Default. Subject to subsections (f) and (i) of this Section
7.6.6, nonpayment on or before the last day of the quarter following the quarter in
which the payment is due shall be an event of default. If a payment following an
event of default is not made by payroll deduction, then payment shall be considered
made for this purpose only when it is received in fact by the Trustee or the
Benefits Administration Committee as agent for the Trustee. Upon the occurrence of
an event of default, the Participant’s Accounts in the Plan given as security shall
be offset by the amount of the then outstanding balance of the loan in default
(including, to the extent required under the Code, interest on the amount in
default from the time of the default until the time of the offset). In the case of
a Participant who has not had an Event of Maturity, however, this offset shall be
deferred until an Event of Maturity as to such Participant, and, in the interim, it
shall be possible to cure the default. Such offset shall be automatic. No notice
shall be required prior to offset.











 


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	 	(i)	 	Suspension of Payments During Unpaid Leave of Absence. If the
Participant is on an authorized unpaid leave of absence as determined by
the Committee, then loan payments are automatically suspended for a period
of time beginning after the unpaid leave of absence commences and ending
not later than the earlier of (i) the duration of the authorized unpaid
leave of absence, or (ii) twelve (12) consecutive calendar months
following the calendar month that the Participant’s authorized unpaid
leave of absence began; provided, however, that the Participant’s death or
termination of employment even while payments are suspended shall
accelerate the loan as provided in subsection (g). Upon the expiration of
the suspension period, the then outstanding principal and interest on the
loan shall be reamortized into equal periodic payments which the
Participant shall resume paying over the remaining term of the loan;
provided, however, that the interest rate used in the reamortization is the
same as in the loan note and the final payment on the loan is due by the
original maturity date of the loan. Any such reamortization shall not be
considered a new loan or a rewriting or extension of the existing loan.







	 	(j)	 	Suspension of Payments Due to Military Service. If a Participant is
called upon or volunteers to perform service in the uniformed services (as defined
in chapter 43 of title 38, United States Code), the Plan shall suspend the
obligation to repay the loan during the period the Participant performs such
service until the Participant returns to employment with the Employer or terminates
employment with the Employer. The Participant may voluntarily elect to continue to
make loan payments during the period the Participant performs service in the
uniformed services.







	 	(k)	 	Miscellaneous. The Benefits Administration Committee may direct that
loans shall not be made by the Plan during any designated month or months and shall
determine the frequency with which loans shall be made. No Participant shall be
permitted to borrow if such Participant then has two loans outstanding. A loan in
default that has not yet been offset as provided in subsection (h) above shall be
considered an outstanding loan for purposes of the preceding sentence.







	 	(l)	 	Fees. The loan shall be subject to any origination and periodic
maintenance fees charged by the Trustee and approved by the Committee. No loan
application shall be approved unless it is accompanied by any required origination
fee.







	 	(m)	 	Form of Payment. Prepayments, payments following an event of default,
and payments following acceleration in accordance with subsection (f) above, must
be made by cashier’s check, certified check or money order (and not by personal
check) if they are not made by payroll deduction. The Benefits
Administration Committee may permit payment by personal check in any other
case.





 


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	 	(n)	 	Loans Outstanding on the Effective Date. Nothing in this Section 7.6.6
shall alter the terms and conditions of any loan to a Participant that was
outstanding immediately prior to the Effective Date.






7.6.7. Tax Reporting. To the extent required by section 72(p) of the Code, the Trustee shall
report, from time to time, distributions of income in connection with loans made under the Plan.
The operation of those tax rules is entirely independent of the rules of the Plan.



7.6.8. Truth in Lending. The Plan shall make all disclosures required under federal
truth-in-lending regulations (Regulation Z issued by the Board of Governors of the Federal
Reserve System).



7.6.9. Effect of Participant in Bankruptcy. To the extent required by bankruptcy laws, loans
shall be subject to stay, discharge, reinstatement and other matters.



7.6.10. ERISA Compliance — Loans Available to Parties in Interest. Notwithstanding anything
to the contrary in this Section 7.6, loans shall be available to Participants and Beneficiaries
who are parties in interest as defined in section 3(14) of ERISA. An Alternate Payee shall be
considered a Beneficiary for this purpose only after the domestic relations order has been
finally determined to be a qualified domestic relations order as defined in Appendix C to this
Plan Statement.



7.7. U.S. Money. All payments hereunder shall be in lawful money of the United States of
America.




 


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SECTION 8




SPENDTHRIFT PROVISIONS




No Participant or Beneficiary shall have any transmissible interest in any Total Account nor
shall any Participant or Beneficiary have any power to anticipate, alienate, dispose of, pledge
or encumber the same while in the possession or control of the Trustee, nor shall the Trustee,
the Benefits Administration Committee, or the Employer recognize any assignment thereof, either
in whole or in part, nor shall any Total Account be subject to attachment, garnishment, execution
following judgment or other legal process while in the possession or control of the Trustee.



The power to designate Beneficiaries to receive the Total Account of a Participant in the event
of the Participant’s death shall not permit or be construed to permit such power or right to be
exercised by the Participant so as thereby to anticipate, pledge, mortgage or encumber the
Participant’s Total Account or any part thereof, and any attempt of a Participant so to exercise
said power in violation of this provision shall be of no force and effect and shall be
disregarded by the Trustee, the Benefits Administration Committee, and the Employer.



This Section shall not prevent the Trustee, the Benefits Administration Committee, or the
Employer from exercising, in their discretion, any of the applicable powers and options granted
to them upon the occurrence of an Event of Maturity, as such powers may be conferred upon them by
any applicable provision hereof, nor prevent the Plan from offsetting a Participant’s Total
Account by the amount of the then outstanding balance of the loan in default. This Section shall
not prevent the Benefits Administration Committee or the Trustee from observing the terms of a
qualified domestic relations order as provided in the Appendix C to this Plan Statement.




 


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SECTION 9




AMENDMENT AND TERMINATION




9.1. Amendment. The Employer hereby reserves the power to amend this Plan Statement, either
prospectively or retroactively or both, as follows:




	 	(a)	 	in any respect by resolution of its Board of Directors of the Company
(including, without limitation, ratification of any action by a committee of the
Board), and







	 	(b)	 	to conform the Plan to the requirements of federal law or in any respect
that does not materially increase the cost of the Plan to the Employer, either by
written action of an officer of the Company or by action of the Benefits
Administration Committee,






provided that no amendment shall be effective to reduce or divest the Total Account of any
Participant unless the same (i) shall have been adopted with the consent of the Secretary of
Labor pursuant to the provisions of ERISA, or in order to comply with the provisions of the Code
and the regulations and rulings thereunder affecting the tax-qualified status of the Plan and the
deductibility of Employer contributions thereto, or (ii) is otherwise permitted by Code section
411(d)(6) and the regulations issued thereunder. Notwithstanding the foregoing, no amendment
shall be effective to increase the duties of the Trustee without its consent.



9.2. Discontinuance of Contributions and Termination of Plan. The Company reserves the right to
reduce, suspend or discontinue its contributions to the Plan and to terminate the Plan in its
entirety at any time.



9.3. Merger or Spinoff of Plans.



9.3.1. In General. The Benefits Administration Committee may cause all or a part of the Plan
to be merged with all or a part of any other plan and may cause all or a part of the assets and
liabilities to be transferred from the Plan to another plan. In the case of merger or
consolidation of the Plan with, or transfer of assets and liabilities of the Plan to, any other
plan, each Participant shall (if such other plan were then terminated) receive a benefit
immediately after the merger, consolidation or transfer which is not less than the benefit the
Participant would have been entitled to receive immediately before the merger, consolidation or
transfer (if the Plan had then terminated). If the Benefits Administration Committee agrees to a
transfer of assets and liabilities to or from another plan, the agreement under which such
transfer is concluded (or an amendment of or appendix to this Plan Statement) shall specify the
Accounts to which the transferred amounts are to be credited.


 


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9.3.2. Limitations. In the event the Benefits Administration Committee:




	 	(a)	 	causes assets to be transferred to the Plan from any plan that offers
one or more optional forms of benefit that must be preserved with respect to the
transferred assets in order to satisfy the optional form of benefit requirements of
Code Section 411(d)(6)(B)(ii) (or where applicable, the distribution rules of
section 401(k) of the Code), or







	 	(b)	 	causes the Plan to merge with such a plan,






the Plan shall be deemed amended, effective as of the time of the transfer or merger, to preserve
all such optional forms of benefit, but only with respect to all amounts attributable to such
transferred or merging assets. In no event shall assets be transferred from the Plan to any
other plan unless such other plan complies (or has been amended to comply) with the optional form
of benefit requirements of section 411(d)(6)(B)(ii) of the Code and the distribution rules of
section 401(k) of the Code with respect to such transferred assets.



9.3.3. Beneficiary Designations. If assets and liabilities are transferred from another plan
to the Plan, Beneficiary designations made under that plan shall become void on the date as of
which such transfer is made and the Beneficiary designation rules of this Plan Statement shall
apply beginning on such date.



9.3.4. Consolidation or Merger of Plans. If the Plan consolidates or merges with any other
plan or the assets of the Plan are transferred to any other Plan, each Participant will be
entitled to a benefit immediately after the merger, consolidation or transfer (if the Plan were
then terminated) equal to or greater than the benefit immediately before such merger,
consolidation or transfer (if the Plan had then terminated).



9.4. Adoption by Affiliates.



9.4.1. Adoption with Consent. In addition to the corporations listed in Schedule I, the
Benefits Administration Committee may consent to the adoption of the Plan by other corporations
affiliated in ownership with U.S. Bancorp subject to such conditions as the Benefits
Administration Committee may impose.



9.4.2. Procedure for Adoption. Any such adopting corporation shall initiate its adoption of
the Plan by delivery of a certified copy of the resolutions of its board of directors adopting
this Plan Statement to the Benefits Administration Committee. Upon the consent by the Benefits
Administration Committee of the adoption by the adopting corporation, and the delivery to the
Trustee of written evidence of the consent of the Benefits Administration Committee, the adoption
of the Plan by the adopting corporation shall be effective as of the date specified by the
Benefits Administration Committee. (These corporations listed in Schedule I shall not be required
to obtain approval for their continued participation in the Plan.)


 


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9.4.3. Effect of Adoption. Upon the adoption of the Plan by an adopting corporation as
heretofore provided, the adopting corporation shall be an Employer hereunder in all respects.
Each corporation listed in Schedule I and each other adopting corporation, as a condition of
continued participation in the Plan, delegates to the Company the sole power and authority:




	 	(a)	 	to terminate the Plan (except that each adopting corporation shall have
the power to terminate the Plan as applied to it); to amend this Plan Statement
(except that each adopting corporation shall have the power to amend this Plan
Statement as applied to it by establishing a successor plan to which assets and
liabilities may be transferred as provided in this Section);







	 	(b)	 	to appoint, remove and accept the resignation of a Trustee; to appoint
or remove members of the Benefits Administration Committee; to appoint or remove an
Investment Manager; to act as the plan administrator;







	 	(c)	 	to direct the Trustee to return an Employer contribution that was made
by mistake or which is not deductible;







	 	(d)	 	to designate Affiliates; to establish conditions and limitations upon
such adoption of the Plan by affiliated employers; and







	 	(e)	 	to cause the Plan to be merged with another plan and to transfer assets
and liabilities between the Plan and another.






Each reference herein to the Employer shall include the Company and all adopting corporations
unless the context clearly requires otherwise. Employment with the Company or any adopting
corporation shall be credited with the Employer for the purposes of determining Eligibility
Service and the minimum annual service requirement for allocation of contributions. Contributions
of the Company and each adopting corporation shall be allocated only among those persons who were
their employees during the Plan Year with respect to which the contribution is made.




 


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SECTION 10




CONCERNING THE TRUSTEE




10.1. Dealings with Trustee.




	 	(a)	 	No person, firm or corporation dealing with the Trustee shall be
required to take cognizance of the provisions of this Plan Statement or be required
to make inquiry as to the authority of the Trustee to do any act which the Trustee
shall do hereunder. Any such person, firm or corporation shall be entitled to
assume conclusively that the Trustee is properly authorized to do any act which it
shall do hereunder. Any such person, firm or corporation shall be under no
liability to anyone whomsoever for any act done hereunder pursuant to the written
direction of the Trustee.







	 	(b)	 	Any such person, firm or corporation may conclusively assume that the
Trustee has full power and authority to receive and receipt for any money or
property becoming due and payable to the Trustee. No such person shall be bound to
inquire as to the disposition or application of any money or property paid to the
Trustee or paid in accordance with the written directions of the Trustee.







	 	(c)	 	No person, firm or corporation dealing with the Trustee shall be
required to see either to the administration of the Plan or Fund or to the faithful
performance by the Trustee of its duties hereunder (except to the extent otherwise
provided by the ERISA).






10.2. Compensation of Trustee. If a corporate Trustee shall be acting hereunder, the corporate
Trustee shall be entitled to receive compensation for its services as Trustee hereunder. Any
individual Trustee who already receives full-time pay from the Employer shall receive no
compensation for the Participant’s services hereunder. Other individual Trustees shall likewise
serve without compensation unless they shall otherwise specifically agree with the Employer to
the contrary. In any event, however, the Trustee (whether corporate or individual Trustees be
acting) shall be entitled to receive reimbursement for reasonable expenses, fees, costs and other
charges incurred by it or payable by it on account of the administration of the Plan and the
Fund. Such items of expense and compensation shall be payable out of the Fund in a fair and
equitable manner as determined by the Trustee, except to the extent that the Employer, in its
discretion, directly pays the Trustee.



10.3. Resignation and Removal of Trustee.




	 	(a)	 	The Trustee (or in the event two or more co-trustees are acting, any
such co-trustee) may resign by giving thirty (30) days’ notice of intention so to
do to the Employer or such shorter notice as the Employer may approve.











 


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	 	(b)	 	The Employer may remove any Trustee or successor Trustee hereunder by
giving such Trustee (or any co-trustee) thirty (30) days’ written notice of
removal by certified mail.







	 	(c)	 	The Employer shall have the power to appoint one or more individual or
corporate Trustees, or both, as additional or successor Trustees.







	 	(d)	 	When any person or corporation appointed, qualified and serving as a
Trustee hereunder shall cease to be a Trustee of the Fund, the remaining Trustee or
Trustees then serving hereunder, or the successor Trustee or Trustees appointed
hereunder, as the case may be, shall thereupon be and become vested with full title
and right to possession of all assets and records of the Plan and Fund in the
possession or control of such prior Trustee, and the prior Trustee shall forthwith
account for and deliver the same to such remaining or successor Trustee or
Trustees.







	 	(e)	 	By designating a corporate Trustee, original or successor, hereunder,
there is included in such designation and as a part thereof any other corporation
possessing trust powers and authorized by law to accept the Plan and Fund into
which or with which the designated corporate Trustee, original or successor, shall
be converted, consolidated or merged, and the corporation into which or with which
any corporate Trustee hereunder shall be so converted, consolidated or merged shall
continue to be the corporate Trustee of the Plan and Fund.







	 	(f)	 	No Trustee shall be or become liable for any act or omission of a
co-trustee serving hereunder with him or it (except to the extent that liability is
imposed under ERISA) or of a prior Trustee hereunder, it being the purpose and
intent that each Trustee shall be liable only for the Trustee’s own acts or
omissions during the Trustee’s term of service as Trustee hereunder.







	 	(g)	 	If there shall at any time be two (2) or more co-trustees serving
hereunder, such Trustees, in addition to all other powers and authorities vested in
them by law or conferred upon them by any provision of this Plan Statement, shall
have power to allocate and reallocate from time to time to any one or more of their
number specific responsibilities, obligations or duties and may delegate and
redelegate from time to time to any one or more of their number the exercise of any
right, power or discretion vested in the Trustees by law or conferred upon them by
any provision of this Plan Statement, and any person, firm or corporation dealing
with the co-trustees with respect to the Plan or the Fund may assume conclusively
that any action taken or instrument executed by any one of such co-trustees is the
action of all the co-trustees serving hereunder, and that authority for the doing
of such act or the execution of such instrument has been conferred upon and
delegated to the Trustee doing
such act or executing such instrument. If any responsibility, obligation,
duty, right, power or discretion vested in the Trustee is allocated or
delegated to one or more co-trustees, the remaining co-trustees shall not
be or become liable for an act or omission by the co-trustees to whom a
right, power or discretion was delegated while such co-trustees were acting
pursuant to such delegation.





 


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	 	(h)	 	If there shall at any time be three (3) or more co-trustees serving
hereunder who are qualified to perform a particular act, the same may be performed,
on behalf of all, by a majority of those qualified, with or without the concurrence
of the minority. No person who failed to join or concur in such act shall be held
liable for the consequences thereof, except to the extent that liability is imposed
under ERISA.






10.4. Accountings by Trustee.




	 	(a)	 	The Trustee shall render to the Employer and to the Benefits
Administration Committee an account and report as soon as practicable after the
Annual Valuation Date in each year showing all transactions affecting the
administration of the Plan and the Fund, including, but not necessarily limited to,
such information concerning the Plan and the Fund and the administration thereof by
the Trustee as shall be requested in writing by the Employer or the Benefits
Administration Committee.







	 	(b)	 	The Trustee shall also render such further reports from time to time as
may be requested by the Employer or the Benefits Administration Committee and shall
submit its final report and account to the Employer and the Benefits Administration
Committee when it shall cease to be Trustee hereunder, whether by resignation or
other cause.






10.5. Trustee’s Power to Protect Itself on Account of Taxes. The Trustee, as a condition to the
making of distribution of a former Participant’s Total Account during the Participant’s lifetime,
may require the former Participant, or in the event of the Participant’s death may require the
person or persons entitled to receive the Participant’s Total Account in such event, to furnish
the Trustee with proof of payment of all income, inheritance, estate, transfer, legacy and/or
succession taxes and all other taxes of any different type or kind that may be imposed under or
by virtue of any state or federal statute or law upon the payment, transfer, descent or
distribution of such Matured Account and for the payment of which the Trustee may, in its
judgment, be directly or indirectly liable. In lieu of the foregoing, the Trustee may deduct,
withhold and transmit to the proper taxing authorities any such tax which it may be permitted or
required to deduct and withhold and the Matured Account to be distributed in such case shall be
correspondingly reduced.


 


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10.6. Other Trust Powers. Except to the extent that the Trustee is subject to the authorized and
properly given investment directions of a Participant, Beneficiary or Investment Manager (and in
extension, but not in limitation, of the rights, powers and discretions conferred upon the
Trustee herein), the Trustee shall have and may exercise from time to time in the administration
of the Plan and the Fund, for the purpose of distribution after the termination thereof, and for
the purpose of distribution of Total Accounts, without order or license of any court, any one or
more or all of the following rights, powers and discretions:




	 	(a)	 	To invest and reinvest any Subfunds established pursuant to Section 5 in
accordance with the investment characteristics and objectives determined therefor
and to invest and reinvest the assets of the Fund in any securities or properties
in which an individual could invest the individual’s own funds and which it deems
for the best interest of the Fund, without limitation by any statute, rule of law
or regulation of any governmental body prescribing or limiting the investment of
trust assets by corporate or individual trustees, in or to certain kinds, types or
classes of investments or prescribing or limiting the portion of the Fund which may
be invested in any one property or kind, type or class of investment. Specifically
and without limiting the generality of the foregoing, the Trustee may invest and
reinvest principal and accumulated income of the Fund in any real or personal
property; preferred or common stocks of any kind or class of any corporation,
including but not limited to investment and small business investment companies of
all types; voting trust certificates; interests in investment trusts; shares of
mutual funds (including shares of mutual funds for which the Trustee or any
affiliate of the Trustee serves as investment advisor, administrator, distributor,
custodian or other service provider as disclosed in the current prospectus for any
such mutual fund); interests in any limited or general partnership or other
business enterprise, however organized and for whatever purpose; group or
individual annuity contracts (which may involve investment in the issuer’s general
account or any of its separate accounts); interests in common or collective trusts,
variable interest notes or any other type of collective fund maintained by a bank
or similar institution (whether or not the Trustee hereunder); bonds, notes and
debentures, secured or unsecured; mortgages, leases or other interests in real or
personal property; interests in mineral, gas, oil or timber properties or other
wasting assets; options; commodity or financial futures contracts; foreign
currency; savings or certificate deposits in the commercial or savings department
of the Trustee or any bank or financial institution affiliated with the Trustee;
insurance contracts on the life of any “keyman” or shareholder of the Employer; or
conditional sales contracts; securities issued by the Employer or an Affiliate of
the Employer and real property leased to the Employer or an Affiliate of the
Employer; provided, however, that the Plan may not acquire or hold any Employer
security which is not a “qualifying employer security” (within the meaning of
section 407(d)(5) of ERISA) nor any Employer real property which is not “qualifying
employer real property” (within the meaning of section 407(d)(4) of ERISA).
Investment of the entire Fund in common stocks shall be deemed appropriate
at any phase of the economic business cycle, but it is not, however, the
purpose hereof to direct that the Fund shall be invested either entirely or
to any extent whatsoever in such common stocks. Prior to maturity and
distribution of the Total Accounts of Participants, the Trustee shall
commingle the Accounts of Participants and former Participants in each
subfund and invest, reinvest, control and manage each of the same as a
common trust fund.





 


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	 	(b)	 	To sell, exchange or otherwise dispose of any asset of whatsoever
character at any time held by the Trustee in trust hereunder.







	 	(c)	 	To segregate any part or portion of the Fund for the purpose of
administration or distribution thereof and, in its sole discretion, to hold the
Fund uninvested whenever and for so long as, in the Trustee’s discretion, the same
is likely to be required for the payment in cash of Total Accounts normally
expected to mature in the near future, or whenever, and for as long as, market
conditions are uncertain, or for any other reason which, in the Trustee’s
discretion, requires such action or makes such action advisable.







	 	(d)	 	In connection with the Trustee’s power to hold uninvested reasonable
amounts of cash whenever it is deemed advisable to do so, to deposit the same, with
or without interest, in the commercial or savings departments of any corporate
Trustee serving hereunder or of any other bank, trust company or other financial
institution including those affiliated with the Trustee.







	 	(e)	 	To register any investment held in the Fund in the name of the Trustee,
without trust designation, or in the name of a nominee or nominees, and to hold any
investment in bearer form, but the records of the Trustee shall at all times show
that all such investments are part of the Fund, and the Trustee shall be as
responsible for any act or default of any such nominee as for its own.







	 	(f)	 	Subject to the prior approval of the Benefits Administration Committee,
to retain and employ such attorneys, agents and servants as may be necessary or
desirable, in the opinion of the Trustee, in the administration of the Fund, and to
pay them such reasonable compensation for their services as may be agreed upon as
an expense of administration of the Fund, including power to employ and retain
counsel upon any matter of doubt as to the meaning of or interpretation to be
placed upon this Plan Statement or any provisions thereof with reference to any
question arising in the administration of the Fund or pertaining to the
distribution thereof or pertaining to the rights and liabilities of the Trustee
hereunder or to the rights and claims of Participants and Beneficiaries. The
Trustee, in any such event, may act in reliance upon the
advice, opinions, records, statements and computations of any attorneys and
agents and on the records, statements and computations of any servants so
selected by it in good faith and shall be released and exonerated of and
from all liability to anyone in so doing (except to the extent that
liability is imposed under ERISA).





 


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	 	(g)	 	Subject to the prior approval of the Benefits Administration Committee,
to institute, prosecute and maintain, or to defend, any proceeding at law or in
equity concerning the Plan or the Fund or the assets thereof or any claims thereto,
or the interests of Participants and Beneficiaries hereunder at the sole cost and
expense of the Fund or at the sole cost and expense of the Total Account of the
Participant who may be concerned therein or who may be affected thereby as, in the
Trustee’s opinion, shall be fair and equitable in each case, and to compromise,
settle and adjust all claims and liabilities asserted by or against the Plan or the
Fund or asserted by or against the Trustee, on such terms as the Trustee, in each
such case, shall deem reasonable and proper. The Trustee shall be under no duty or
obligation to institute, prosecute, maintain or defend any suit, action or other
legal proceeding unless it shall be indemnified to its satisfaction against all
expenses and liabilities which it may sustain or anticipate by reason thereof.







	 	(h)	 	To institute, participate and join in any plan of reorganization,
readjustment, merger or consolidation with respect to the issuer of any securities
held by the Trustee hereunder, and to use any other means of protecting and dealing
with any of the assets of the Fund which it believes reasonably necessary or proper
and, in general, to exercise each and every other power or right with respect to
each asset or investment held by it hereunder as individuals generally have and
enjoy with respect to their own assets and investment, including power to vote upon
any securities or other assets having voting power which it may hold from time to
time, and to give proxies with respect thereto, with or without power of
substitution or revocation, and to deposit assets or investments with any
protective committee, or with trustees or depositaries designated by any such
committee or by any such trustees or any court. Notwithstanding the foregoing, an
Investment Manager shall have any or all of such powers and rights with respect to
Plan assets for which it has investment responsibility but only if (and only to the
extent that) such powers and rights are expressly given to such Investment Manager
in a written agreement signed by it and acknowledged in writing by the Trustee. In
all other cases, such powers and rights shall be exercised solely by the Trustee.







	 	(i)	 	In any matter of doubt affecting the meaning, purpose or intent of any
provision of this Plan Statement which directly affects its duties, to determine
such meaning, purpose or intent; and the determination of the Trustee in any
such respect shall be binding and conclusive upon all persons interested or
who may become interested in the Plan or the Fund.





 


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	 	(j)	 	To require, as a condition to distribution of any Total Account, proof
of identity or of authority of the person entitled to receive the same, including
power to require reasonable indemnification on that account as a condition
precedent to its obligation to make distribution hereunder.







	 	(k)	 	To collect, receive, receipt and give quittance for all payments that
may be or become due and payable on account of any asset in trust hereunder which
has not, by act of the Trustee taken pursuant thereto, been made payable to others;
and payment thereof by the company issuing the same, or by the party obligated
thereon, as the case may be, when made to the Trustee hereunder or to any person or
persons designated by the Trustee, shall acquit, release and discharge such company
or obligated party from any and all liability on account thereof.







	 	(l)	 	To determine from time to time, as required for the purpose of
distribution or for the purpose of allocating trust income or for any other purpose
of the Plan, the then value of the Fund and the Accounts in the Fund, the Trustee,
in each such case, using and employing for that purpose the fair market value of
each of the assets constituting the Fund. Each such determination so made by the
Trustee in good faith shall be binding and conclusive upon all persons interested
or becoming interested in the Plan or the Fund.







	 	(m)	 	To receive and retain contributions made in a form other than cash in
the form in which the same are received until such time as the Trustee, in its sole
discretion, deems it advisable to sell or otherwise dispose of such assets.







	 	(n)	 	To commingle, for investment purposes, the assets of the Fund with the
assets of any other qualified retirement plan trust fund of the Employer, provided
that the records of the Trustee shall reflect the relative interests of the
separate trusts in such commingled fund.







	 	(o)	 	To grant an option or options for the purchase of a trust asset (“call
option”), including the granting of options for the purchase of common stock held
in the Fund (“covered call options”) in return for the receipt of a premium or
other consideration by the Fund from the optionee, it being expressly intended that
such options may be in such form and terms as to permit their being freely traded
on an option exchange (such as a “stock index call option”); to repurchase any such
option granted, or in lieu thereof, to repurchase an option identical in terms to
the one granted; to issue an option or options requiring the purchase into the Fund
of assets held by the optionee (“put option”), in return for the receipt of premium
or other consideration by
the Fund from the optionee, it being expressly intended that said options
may be in such form and terms as to permit their being freely traded on an
option exchange (such as a “stock index put option”); to repurchase any
such option issued, or in lieu thereof, to repurchase an option identical
in terms to the one issued; to pledge assets of the Fund in connection with
such option transactions.





 


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	 	(p)	 	To have and to exercise such other and additional powers as may be
advisable or proper in its opinion for the effective and economical administration
of the Fund.







	 	(q)	 	Incorporated by reference into this Agreement is the following bank
collective investment fund declaration of trust: PLAN AND DECLARATION OF TRUST -
U.S. BANK NATIONAL ASSOCIATION COLLECTIVE INVESTMENT FUNDS FOR EMPLOYEE RETIREMENT
BENEFIT TRUSTS, as amended from time to time(the “Declaration of Trust”).
Notwithstanding any other provision of this Plan Statement to the contrary, the
Trustee may cause any part or all of the Fund, without limitation as to amount, to
be commingled with the money of trusts created by others, by causing such money to
be invested as a part of any or all of the funds created by the aforementioned
Declaration of Trust and the Fund so added to any of said funds at any time shall
be subject to all of the provisions of said Declaration of Trust as it is amended
from time to time.







	 	(r)	 	To deposit any part or all of the assets in any collective trust fund
which is now or hereafter maintained by the Trustee as a medium for the collective
investment of funds of pension, profit sharing or other employee benefit plans, and
which is qualified under section 401(a) and exempt from taxation under section
501(a) of the Code, as amended, and to withdraw any part or all of the assets so
deposited and any assets deposited with the trustee of a collective trust fund
shall be held and invested by the trustee thereunder pursuant to all the terms and
conditions of the trust agreement or declaration of trust establishing the fund,
which are hereby incorporated herein by reference and shall prevail over any
contrary provisions of this Plan Statement.







	 	(s)	 	To deposit any part or all of the assets with the trustee of any master
investment trust maintained by U.S. Bancorp for the investment of assets of
qualified pension, profit sharing or stock bonus plans it or its subsidiaries
maintain and to withdraw any part or all of the assets so deposited, and any assets
deposited with the trustee of a master investment trust shall be held and invested
by that trustee pursuant to the terms and conditions of the master investment trust
document, which is hereby incorporated herein by reference and shall prevail over
any contrary provision of this Plan Statement.





 


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	 	(t)	 	The Trustee is expressly authorized to the fullest extent permitted by
law to (i) retain the services of U.S. Bancorp Piper Jaffray Inc. and/or
U.S. Bancorp Investments, Inc., each being affiliates of U.S. Bank National
Association, and/or any other registered broker-dealer organization
hereafter affiliated with U.S. Bank National Association, and any future
successors in interest thereto (collectively, including U.S. Bank National
Association and its other affiliates, for the purposes of this paragraph
referred to as the “Affiliated Entities”), to provide services to assist in
or facilitate the purchase or sale of investment securities in the Trust,
(ii) acquire as assets of the Trust shares of mutual funds to which
Affiliated Entities provides, for a fee, services in any capacity and (iii)
acquire in the Trust any other services or products of any kind or nature
from the Affiliated Entities regardless of whether the same or similar
services or products are available from other institutions. The Trust may
directly or indirectly (through mutual funds fees and charges for example)
pay management fees, transaction fees and other commissions to the
Affiliated Entities for the services or products provided to the Trust
and/or such mutual funds at such Affiliated Entities’ standard or published
rates without offset (unless required by law) from any fees charged by the
Trustee for its services as Trustee. The Trustee may also deal directly
with the Affiliated Entities regardless of the capacity in which it is then
acting, to purchase, sell, exchange or transfer assets of the Trust even
though the Affiliated Entities are receiving compensation or otherwise
profiting from such transaction or are acting as a principal in such
transaction. Each of the Affiliated Entities is authorized to (i) effect
transactions on national securities exchanges for the Trust as directed by
the Trustee, and (ii) retain any transactional fees related thereto,
consistent with Section 11(a)(1) of the Securities Exchange Act of 1934, as
amended, and related Rule 11a2-2(T). Included specifically, but not by way
of limitation, in the transactions authorized by this provision are
transactions in which any of the Affiliated Entities are serving as an
underwriter or member of an underwriting syndicate for a security being
purchased or are purchasing or selling a security for its own account. In
the event the Trustee is directed by the Named Fiduciary, any designated
investment manager, Participant and/or Beneficiary, as applicable hereunder
(collectively referred to for purposes of this paragraph as the “Directing
Party”), the Directing Party shall be authorized, and expressly retains the
right hereunder, to direct the Trustee to retain the services of, and
conduct transactions with, Affiliated Entities fully in the manner
described above.





 


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10.7. Investment Managers. The Employer shall have the power to appoint from time to time one or
more Investment Managers to direct the Trustee in the investment of, or to assume complete
investment responsibility over, all or any portion of the Fund. An Investment Manager may be any
person or firm (a) which is either (1) registered as an investment adviser under the Investment
Advisers Act of 1940, (2) a bank, or (3) an insurance company which is qualified to perform the
services of an Investment Manager under the laws of more than one state; and (b)
which acknowledges in writing that it is a fiduciary with respect to the Plan. The conditions
prescribed in the preceding sentence shall apply to the issuer of any group annuity contract
hereunder only if, and to the extent that, such issuer would otherwise be considered a
“fiduciary” with respect to the Plan, within the meaning of ERISA. The Employer may remove any
such Investment Manager and shall have the power to appoint a successor or successors from time
to time in succession to any Investment Manager who shall be removed, shall resign or shall
otherwise cease to serve hereunder. The Trustee shall comply with all investment directions given
to the Trustee with respect to the designated portion of the Fund, and the Trustee shall be
released and exonerated of and from all liability for or on account of any action taken or not
taken by it pursuant to the directions of such Investment Manager, except to the extent that
liability is imposed under ERISA. Neither the Employer, nor any officer, director or employee
thereof, nor any member of the Benefits Administration Committee or the Employer shall be liable
for the acts or omissions of the Trustee or of any Investment Manager appointed hereunder. The
fees and expenses of any Investment Manager, as agreed upon from time to time between the
Investment Manager and the Employer, shall be charged to and paid from the Fund in a fair and
equitable manner, except to the extent that the Employer, in its discretion, may pay such
directly to the Investment Manager.



10.8. Fiduciary Principles. The Trustee and each other fiduciary hereunder, in the exercise of
each and every power or discretion vested in them by the provisions of this Plan Statement, shall
(subject to the provisions of ERISA) discharge their duties with respect to the Plan solely in
the interest of the Participants and Beneficiaries and:




	 	(a)	 	for the exclusive purpose of:







	 	(i)	 	providing benefits to Participants and Beneficiaries, and







	 	(ii)	 	defraying reasonable expenses of administering the Plan;







	 	(b)	 	with the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character and with like
aims;







	 	(c)	 	by diversifying the investments of the Plan so as to minimize the risk
of large losses, unless under the circumstances it is clearly prudent not to do so;
and







	 	(d)	 	in accordance with the documents and instruments governing the Plan,
insofar as they are consistent with the provisions of ERISA.






Notwithstanding anything in this Plan Statement to the contrary, any provision hereof which
purports to relieve a fiduciary from responsibility or liability for any responsibility,
obligation or duty under
Part 4 of Subtitle B of Title I of ERISA shall, to the extent the same is inconsistent with said
Part 4, be deemed void.


 


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10.9. Prohibited Transactions. Except as may be permitted by law, no Trustee or other fiduciary
hereunder shall permit the Plan to engage, directly or indirectly, in any of the following
transactions with a person who is a “disqualified person” (as defined in section 4975 of the
Code) or a “party in interest” (as defined in section 3(14) of ERISA):




	 	(a)	 	sale, exchange or leasing of any property between the Plan and such person;

	 
	 	(b)	 	lending of money or other extension of credit between the Plan and such
person;







	 	(c)	 	furnishing of goods, services or facilities between the Plan and such person;







	 	(d)	 	transfer to, or use by or for the benefit of, such person of the income or assets
of the Plan;







	 	(e)	 	act by such person who is a fiduciary hereunder whereby the person deals
with the income or assets of the Plan in the person’s own interest or for the
person’s own account; or







	 	(f)	 	receipt of any consideration for the person’s own personal account by
such person who is a fiduciary from any party dealing with the Plan in connection
with a transaction involving the income or assets of the Plan.






10.10. Indemnity. Each individual (as distinguished from corporate) trustee of the Plan or
officer, director or employee of the Employer shall, except as prohibited by law, be indemnified
and held harmless by the Employer from any and all liabilities, costs and expenses (including
legal fees), to the extent not covered by liability insurance, arising out of any action taken by
such individual with respect to the Plan, whether imposed under ERISA or otherwise, unless such
liability arises from the individual’s claim for the individual’s own benefit, the proven gross
negligence, the bad faith or, if the individual had reasonable cause to believe the individual’s
own conduct was unlawful, the criminal misconduct of such individual. This indemnification shall
continue as to an individual who has ceased to be a trustee of the Plan or officer, director or
employee of the Employer and shall inure to the benefit of the heirs, executors and
administrators of such an individual.




 


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SECTION 11




DETERMINATIONS — RULES AND REGULATIONS




11.1. Determinations. The Benefits Administration Committee shall make such determinations as may
be required from time to time in the administration of the Plan. The Benefits Administration
Committee shall have the sole discretion, authority and responsibility to interpret and construe
this Plan Statement and all relevant documents and information, and to determine all factual and
legal questions under the Plan, including but not limited to the entitlement of all persons to
benefits and the amounts of their benefits. Its discretionary authority shall include all matters
arising under the Plan including, but not limited to, the determination of whether a domestic
relations order is a qualified domestic relations order and the interpretation and administration
of a qualified domestic relations order.



11.2. Claims and Review Procedure. Until modified by the Benefits Administration Committee, the
claims and review procedure set forth in this Section shall be the mandatory claims and review
procedure for the resolution of disputes and disposition of claims filed under the Plan. An
application for benefits shall be considered as a claim for the purposes of this Section.



11.2.1. Initial Claim. An individual may, subject to any applicable deadline, file with the
Benefits Administration Committee a written claim for benefits under the Plan in a form and
manner prescribed by the Benefits Administration Committee.




	 	(a)	 	If the claim is denied in whole or in part, the Benefits Administration
Committee shall notify the claimant of the adverse benefit determination within
ninety (90) days after receipt of the claim.







	 	(b)	 	The ninety (90) day period for making the claim determination may be
extended for ninety (90) days if the Benefits Administration Committee determines
that special circumstances require an extension of time for determination of the
claim, provided that the Benefits Administration Committee notifies the claimant,
prior to the expiration of the initial ninety (90) day period, of the special
circumstances requiring an extension and the date by which a claim determination is
expected to be made.






11.2.2. Notice of Initial Adverse Determination. A notice of an adverse determination shall
set forth in a manner calculated to be understood by the claimant:




	 	(a)	 	the specific reasons for the adverse determination;







	 	(b)	 	references to the specific provisions of the Plan Statement (or other
applicable Plan document) on which the adverse determination is based;





 


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	 	(c)	 	a description of any additional material or information necessary to
perfect the claim and an explanation of why such material or information is
necessary; and







	 	(d)	 	a description of the claims review procedure, including the time limits
applicable to such procedure, and a statement of the claimant’s right to bring a
civil action under ERISA section 502(a) following an adverse determination on
review.






11.2.3. Request for Review. Within sixty (60) days after receipt of an initial adverse
benefit determination notice, the claimant may file with the Benefits Administration Committee a
written request for a review of the adverse determination and may, in connection therewith submit
written comments, documents, records and other information relating to the claim benefits. Any
request for review of the initial adverse determination not filed within sixty (60) days after
receipt of the initial adverse determination notice shall be untimely.



11.2.4. Claim on Review. If the claim, upon review, is denied in whole or in part, the
Benefits Administration Committee shall notify the claimant of the adverse benefit determination
within sixty (60) days after receipt of such a request for review.




	 	(a)	 	The sixty (60) day period for deciding the claim on review may be
extended for sixty (60) days if the Benefits Administration Committee determines
that special circumstances require an extension of time for determination of the
claim, provided that the Benefits Administration Committee notifies the claimant,
prior to the expiration of the initial sixty (60) day period, of the special
circumstances requiring an extension and the date by which a claim determination is
expected to be made.







	 	(b)	 	In the event that the time period is extended due to a claimant’s
failure to submit information necessary to decide a claim on review, the claimant
shall have sixty (60) days within which to provide the necessary information and
the period for making the claim determination on review shall be tolled from the
date on which the notification of the extension is sent to the claimant until the
date on which the claimant responds to the request for additional information or,
if earlier, the expiration of sixty (60) days.







	 	(c)	 	The Benefits Administration Committee’s review of a denied claim shall
take into account all comments, documents, records, and other information submitted
by the claimant relating to the claim, without regard to whether such information
was submitted or considered in the initial benefit determination.





 


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11.2.5. Notice of Adverse Determination for Claim on Review. A notice of an adverse
determination for a claim on review shall set forth in a manner calculated to be understood by
the claimant:




	 	(a)	 	the specific reasons for the denial;







	 	(b)	 	references to the specific provisions of the Plan Statement (or other
applicable Plan document) on which the adverse determination is based;







	 	(c)	 	a statement that the claimant is entitled to receive, upon request and
free of charge, reasonable access to, and copies of, all documents, records, and
other information relevant to the claimant’s claim for benefits;







	 	(d)	 	a statement describing any voluntary appeal procedures offered by the
Plan and the claimant’s right to obtain information about such procedures; and







	 	(e)	 	a statement of the claimant’s right to bring an action under ERISA
section 502(a).






11.3. Rules and Regulations.



11.3.1. Adoption of Rules. Any rule not in conflict or at variance with the provisions
hereof may be adopted by the Benefits Administration Committee.




11.3.2. Specific Rules.




	 	(a)	 	No inquiry or question shall be deemed to be a claim or a request for a
review of a denied claim unless made in accordance with the established claim
procedures. The Benefits Administration Committee may require that any claim for
benefits and any request for a review of a denied claim be filed on forms to be
furnished by the Benefits Administration Committee upon request.







	 	(b)	 	All decisions on claims and on requests for a review of denied claims
shall be made by the Benefits Administration Committee unless delegated as provided
for in the Plan, in which case references in this Section 11 to the Benefits
Administration Committee shall be treated as references to the Benefits
Administration Committee’s delegate.







	 	(c)	 	Claimants may be represented by a lawyer or other representative at
their own expense, but the Benefits Administration Committee reserves the right to
require the claimant to furnish written authorization and establish reasonable
procedures for determining whether an individual has been authorized to act on
behalf of a claimant. A claimant’s representative shall be entitled to copies of
all notices given to the claimant.





 


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	 	(d)	 	The decision of the Benefits Administration Committee on a claim and on
a request for a review of a denied claim may be provided to the claimant in
electronic form instead of in writing at the discretion of the Benefits
Administration Committee.







	 	(e)	 	In connection with the review of a denied claim, the claimant or the
claimant’s representative shall be provided, upon request and free of charge,
reasonable access to, and copies of, all documents, records, and other information
relevant to the claimant’s claim for benefits.







	 	(f)	 	The time period within which a benefit determination will be made shall
begin to run at the time a claim or request for review is filed in accordance with
the claims procedures, without regard to whether all the information necessary to
make a benefit determination accompanies the filing.







	 	(g)	 	The claims and review procedures shall be administered with appropriate
safeguards so that benefit claim determinations are made in accordance with
governing plan documents and, where appropriate, the plan provisions have been
applied consistently with respect to similarly situated claimants.







	 	(h)	 	For the purpose of this Section, a document, record, or other
information shall be considered “relevant” if such document, record, or other
information: (i) was relied upon in making the benefit determination; (ii) was
submitted, considered, or generated in the course of making the benefit
determination, without regard to whether such document, record, or other
information was relied upon in making the benefit determination; (iii) demonstrates
compliance with the administration processes and safeguards designed to ensure that
the benefit claim determination was made in accordance with governing plan
documents and that, where appropriate, the Plan provisions have been applied
consistently with respect to similarly situated claimants; and (iv) constitutes a
statement of policy or guidance with respect to the Plan concerning the denied
treatment option or benefit for the claimant’s diagnosis, without regard to whether
such advice or statement was relied upon in making the benefit determination.







	 	(i)	 	The Benefits Administration Committee may, in its discretion, rely on
any applicable statute of limitation or deadline as a basis for denial of any
claim.






11.4. Deadline to File Claim. To be considered timely under the Plan’s claim and review
procedure, a claim must be filed with the Benefits Administration Committee within one (1) year
after the claimant knew or reasonably should have known of the principal facts upon which the
claim is based.


 


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11.5. Exhaustion of Administrative Remedies. The exhaustion of the claim and review procedure is
mandatory for resolving every claim and dispute arising under the Plan. As to such claims and
disputes:




	 	(a)	 	no claimant shall be permitted to commence any legal action to recover
Plan benefits or to enforce or clarify rights under the Plan under section 502 or
section 510 of ERISA or under any other provision of law, whether or not statutory,
until the claim and review procedure set forth herein have been exhausted in their
entirety; and







	 	(b)	 	in any such legal action all explicit and all implicit determinations by
the Benefits Administration Committee (including, but not limited to,
determinations as to whether the claim, or a request for a review of a denied
claim, was timely filed) shall be afforded the maximum deference permitted by law.






11.6. Deadline to File Legal Action. No legal action to recover Plan benefits or to enforce or
clarify rights under the Plan under section 502 or section 510 of ERISA or under any other
provision of law, whether or not statutory, may be brought by any claimant on any matter
pertaining to the Plan unless the legal action is commenced in the proper forum before the
earlier of:




	 	(a)	 	thirty (30) months after the claimant knew or reasonably should have
known of the principal facts on which the claim is based, or







	 	(b)	 	six (6) months after the claimant has exhausted the claim and review
procedure.






11.7. Knowledge of Fact by Participant Imputed to Beneficiary. Knowledge of all facts that a
Participant knew or reasonably should have known shall be imputed to every claimant who is or
claims to be a Beneficiary of the Participant or otherwise claims to derive an entitlement by
reference to the Participant for the purpose of applying the previously specified periods.




 


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SECTION 12




OTHER ADMINISTRATIVE MATTERS




12.1. Company.



12.1.1. Officers. Except as hereinafter provided, functions generally assigned to the
Employer shall be discharged by the officers of U.S. Bancorp or delegated and allocated as
provided herein.



12.1.2. Chief Executive Officer. Except as hereinafter provided, the Chief Executive Officer
of U.S. Bancorp may delegate or redelegate and allocate and reallocate to one or more persons or
to a committee of persons jointly or severally, and whether or not such persons are directors,
officers or employees, such functions assigned to the Chief Executive Officer or to the Employer
hereunder as the Chief Executive Officer may from time to time deem advisable.



12.2. Benefits Administration Committee.



12.2.1. Appointment and Removal. The general operation and administration of the Plan shall
be supervised by the Benefits Administration Committee, which shall consist of such members as
may be determined and appointed from time to time by the Chief Executive Officer of U.S. Bancorp
and who shall serve at the pleasure of the Chief Executive Officer of U.S. Bancorp. Members of
the Benefits Administration Committee shall serve without compensation, but their reasonable
expenses shall be an expense of the administration of the Fund and shall be paid by the Trustee
from and out of the Fund except to the extent U.S. Bancorp, in its discretion, directly pays such
expenses. The Benefits Administration Committee may elect such officers as the Benefits
Administration Committee may decide upon.



12.2.2. Automatic Removal. If any individual who is a member of the Benefits Administration
Committee is a director, officer or employee when appointed as a member of the Committee, then
such individual shall be automatically removed as a member of the Benefits Administration
Committee at the earliest time such individual ceases to be a director, officer or employee.
This removal shall occur automatically and without any requirement for action by the Chief
Executive Officer of the Company or any notice to the individual so removed.



12.2.3. Authority. The Benefits Administration Committee may elect such officers as the
Benefits Administration Committee may decide upon. The Benefits Administration Committee, in
accordance with written bylaws issued by the Executive Officer of the Company shall:




	 	(a)	 	establish rules for the functioning of the Benefits Administration
Committee, including the times and places for holding meetings, the notices to be
given in respect of such meetings and the number of members who shall constitute a
quorum for the transaction of business;





 


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	 	(b)	 	organize and delegate to such of its members as it shall select
authority to execute or authenticate rules, advisory opinions or
instructions, and other instruments adopted or authorized by the Benefits
Administration Committee; adopt such bylaws or regulations as it deems
desirable for the conduct of its affairs; appoint a secretary, who need not
be a member of the Benefits Administration Committee, to keep its records
and otherwise assist the Benefits Administration Committee in the
performance of its duties; keep a record of all its proceedings and acts
and keep all books of account, records and other data as may be necessary
for the proper administration of the Plan; notify the Employer and the
Trustee of any action taken by the Benefits Administration Committee and,
when required, notify any other interested person or persons;







	 	(c)	 	determine from the records of the Employer the compensation, service
records, status and other facts regarding Participants and other employees;







	 	(d)	 	cause to be compiled at least annually, from the records of the Benefits
Administration Committee and the reports and accountings of the Trustee, a report
and accounting of the status of the Plan and the benefits of the Participants and
make it available to each Participant who shall have the right to examine that part
or portion of such report and accounting (or a true and correct copy of such part)
which sets forth the Participant’s benefits and the Participant’s ratable interest
in the Fund;







	 	(e)	 	prescribe forms to be used for applications for participation, benefits,
notifications, etc., as may be required in the administration of the Plan;







	 	(f)	 	set up such rules, applicable to all Participants similarly situated, as
are deemed necessary to carry out the terms of this Plan Statement;







	 	(g)	 	perform all other acts reasonably necessary for administering the Plan
and carrying out the provisions of this Plan Statement and performing the duties
imposed on it;







	 	(h)	 	resolve all questions of administration of the Plan not specifically
referred to in this Section;







	 	(i)	 	in accordance with regulations of the Secretary of Labor:







	 	(i)	 	provide adequate notice in writing to any
Participant or Beneficiary whose claim for benefits under the Plan has
been denied, setting forth the specific reasons for such denial,
written in a manner calculated to be understood by the Participant,
and











 


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	 	(ii)	 	afford a reasonable opportunity to any Participant whose claim
for benefits has been denied for a full and fair review by the
Benefits Administration Committee of the decision denying the
claim; and







	 	(j)	 	delegate or redelegate to one or more persons, jointly or severally, and
whether or not such persons are members of the Benefits Administration Committee or
employees of the Employer, such functions assigned to the Benefits Administration
Committee hereunder as it may from time to time deem advisable.






12.2.4. Majority Decisions. If there shall at any time be three (3) or more members of the
Benefits Administration Committee serving hereunder who are qualified to perform a particular
act, the same may be performed, on behalf of all, by a majority of those qualified, with or
without the concurrence of the minority. No person who failed to join or concur in such act shall
be held liable for the consequences thereof, except to the extent that liability is imposed under
ERISA.



12.3. Limitation on Authority.



12.3.1. Fiduciaries Generally. No action taken by any fiduciary, if authority to take such
action has been delegated or redelegated to it hereunder, shall be the responsibility of any
other fiduciary except as may be required by the provisions of ERISA. Except to the extent
imposed by ERISA, no fiduciary shall have the duty to question whether any other fiduciary is
fulfilling all of the responsibility imposed upon such other fiduciary by this Plan Statement or
by ERISA or by any regulations or rulings issued thereunder.



12.3.2. Trustee. The Trustee shall have no authority or duty to determine or enforce payment
of any Employer contribution under the Plan or to determine the existence, nature or extent of
any individual’s rights in the Fund or under the Plan or question any determination made by the
Benefits Administration Committee or the Employer regarding the same. Nor shall the Trustee be
responsible in any way for the manner in which the Company, Benefits Administration Committee or
Employer carries out its responsibilities under this Plan Statement or, more generally, under the
Plan. The Trustee shall give the Company notice of (and tender to the Company) the prosecution or
defense of any litigation involving the Plan, the Fund or other fiduciaries of the Plan.



12.4. Conflict of Interest. If any Trustee, any member of the Benefits Administration Committee
or the Employer, any member of the Board of Directors or any officer or employee of the Employer
to whom authority has been delegated or redelegated hereunder shall also be a Participant in the
Plan, that individual shall have no authority as such Trustee, member, officer or employee with
respect to any matter specially affecting the Participant’s individual interest hereunder (as
distinguished from the interests of all Participants and Beneficiaries or a broad class of
Participants and Beneficiaries), all such authority being reserved exclusively to the other
Trustees, members, officers or employees, as the case may be, to the exclusion of such
Participant, and such Participant shall act only in the Participant’s individual capacity in
connection with any such matter.


 


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12.5. Dual Capacity. Individuals, firms, corporations or partnerships identified herein or
delegated or allocated authority or responsibility hereunder may serve in more than one fiduciary
capacity.



12.6. Administrator. The Company shall be the administrator for purposes of section 3(16)(A)
of ERISA.



12.7. Named Fiduciaries. The Company, the Trustee, and the Benefits Administration Committee
shall be named fiduciaries for the purpose of section 402(a) of ERISA.



12.8. Service of Process. In the absence of any designation to the contrary by the Benefits
Administration Committee, the Secretary and General Counsel of U.S. Bancorp is designated as the
appropriate and exclusive agent for the receipt of service of process directed to the Plan in any
legal proceeding, including arbitration, involving the Plan.



12.9. Administrative Expenses. The reasonable expenses of administering the Plan shall be payable
out of the Fund except to the extent that the Employer, in its discretion, directly pays the
expenses.



12.10. IRS Qualification. The Plan is intended to qualify under section 401(a) of the Code as a
defined contribution profit sharing plan that contains a qualified cash or deferred arrangement
under section 401(k) of the Code, a portion of which is a profit sharing plan (the Profit Sharing
portion) and a portion of which is an employee stock ownership plan under section 4975(e)(7) of
the Code (the ESOP Portion). The Plan is not as a defined contribution money purchase pension
plan or a defined benefit pension plan.



12.11. Method of Executing Instruments.




	 	(a)	 	Information to be supplied or written notices to be made or consents to
be given by an Employer or the Benefits Administration Committee pursuant to any
provision of this Plan Statement may be signed in the name of the Employer by any
officer thereof who has been authorized to make such certification or to give such
notices or consents or by any Benefits Administration Committee member.







	 	(b)	 	Any instrument or written notice required, necessary or advisable to be
made or given by the Trustee may be signed by any Trustee, if all Trustees serving
hereunder are individuals, or by any authorized officer or employee of the Trustee,
if a corporate Trustee shall be acting hereunder as sole Trustee, or by any such
officer or employee of the corporate Trustee or by an individual Trustee acting
hereunder, if corporate and individual Trustees shall be serving as co-trustees
hereunder.





 


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12.12. Receipt of Documents. If a form or document must be filed with or received by the Benefits
Administration Committee, Employer, or Trustee, it must be actually received by the
appropriate entity to be effective. The determination of whether or when a form or document has
been received by the appropriate entity shall be made by the Benefits Administration Committee on
the basis of what documents are acknowledged by the appropriate entity to be in its actual
possession without regard to the “mailbox rule” or similar rule of evidence. The absence of a
document in the appropriate entity’s records and files shall be conclusive and binding proof that
the document was not received by the appropriate entity.



12.13. Powers of Attorney. The Plan shall recognize as valid a document submitted to the Benefits
Administration Committee by which a Participant, Beneficiary, or Alternate Payee appoints another
person as his or her attorney in fact, under the following rules:




	 	(a)	 	that neither the Plan Sponsor or the Benefits Administration Committee
shall be required to determine whether the document complies with the applicable
state law regarding powers of attorneys or attorneys in fact;







	 	(b)	 	that if the document enumerates one or more specific powers in addition
to a general power to act, the enumeration of one or more specific powers shall not
be deemed to limit the generality of the general power to act; in other words, the
general power shall continue to be in force; and







	 	(c)	 	that the document is signed by the Participant and is notarized.






The Benefits Administration Committee may establish additional rules for the acceptance of powers
of attorneys for Plan purposes. The Benefits Administration Committee, in its sole discretion,
may review the document as to whether it complies with the Plan’s rules and the Benefits
Administration Committee’s rules. If there is a conflict between the action of a court
appointed guardian or conservator and an attorney in fact, then the authority of the court
appointed guardian or conservator shall be recognized as superior to that of an attorney in fact.



12.14. Guardians and Conservators. The Plan shall recognize the authority of a court appointed
guardian or conservator to act on behalf of a Participant, Beneficiary, or Alternate Payee to the
extent such action is within the authority granted to the court appointed guardian or
conservator.




 


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SECTION 13




IN GENERAL




13.1. Disclaimers.




	 	(a)	 	Neither the terms of this Plan Statement nor the benefits hereunder nor
the continuance thereof shall be a term of the employment of any employee, and the
Employer shall not be obliged to continue the Plan.







	 	(b)	 	The terms of this Plan Statement shall not give any employee the right
to be retained in the employment of any Employer.







	 	(c)	 	Neither the Employer nor any of its officers or members of its Board of
Directors nor the Trustee nor any member of the Benefits Administration Committee
in any way guarantee the Fund against loss or depreciation, nor do they guarantee
the payment of any benefit or amount which may become due and payable hereunder to
any Participant or Beneficiary. Each Participant, Beneficiary or other person
entitled at any time to payments hereunder shall look solely to the assets of the
Fund for such payments.







	 	(d)	 	Neither the Employer nor any of its officers or members of its Board of
Directors nor any members of the Benefits Administration Committee shall in any
manner be liable to any Participant, Beneficiary or other person for any act or
omission of the Trustee (except to the extent that liability is imposed under
ERISA).







	 	(e)	 	Neither the Employer nor any of its officers or members of its Board of
Directors nor the Trustee nor any members of the Benefits Administration Committee
shall be under any liability or responsibility (except to the extent that liability
is imposed under ERISA) for failure to effect any of the objectives or purposes of
the Plan by reason of loss or fluctuation in the value of Fund or for the form,
genuineness, validity, sufficiency or effect of any Fund asset at any time held
hereunder, or for the failure of any person, firm or corporation indebted to the
Fund to pay such indebtedness as and when the same shall become due or for any
delay occasioned by reason of any applicable law, order or regulation or by reason
of any restriction or provision contained in any security or other asset held by
the Fund.







	 	(f)	 	Except as is otherwise provided in ERISA, the Employer, its officers and
the members of its Board of Directors, the Trustee, the members of the Benefits
Administration Committee and other fiduciaries shall not be liable for an act or
omission of another person with regard to a fiduciary responsibility that has been
allocated to or delegated to such other person pursuant to the terms
of this Plan Statement or pursuant to procedures set forth in this Plan
Statement.





 


-73-









 











	 	(g)	 	Neither the Employer nor the Benefits Administration Committee nor the
Trustee guarantees that the benefits to be developed hereunder for each Participant
shall equal those which are assumed for the purpose of determining and measuring
the contributions of the Employer.







	 	(h)	 	Neither the Employer nor the Benefits Administration Committee nor the
Trustee shall be liable or responsible for any error in the computation of the
Account of a Participant resulting from any misstatement of fact made by the
Participant, directly or indirectly, to the Employer, the Benefits Administration
Committee or the Trustee and used by them in determining the Participant’s Account.
Neither the Employer nor the Benefits Administration Committee nor the Trustee
shall be obligated or required to increase the Account of such Participant which,
on discovery of the misstatement, is found to be understated as a result of such
misstatement of the Participant. However, the Account of any Participant which is
overstated by reason of any such misstatement shall be reduced to the amount
appropriate for the Participant in view of the truth. Any reduction of an Account
shall be retained in the Fund and used to reduce the next succeeding contribution
of the Employer to the Plan.






13.2. Reversion of Fund Prohibited. The Fund from time to time hereunder shall at all times be a
trust fund separate and apart from the assets of the Employer, and no part thereof shall be or
become available to the Employer or to creditors of the Employer under any circumstances other
than those specified in this Plan Statement. Prior to the termination of the Plan and except as
permitted by ERISA and the Code (e.g., for the transfer of assets permitted under section 420 of
the Code), it shall be impossible for any part of the corpus or income of the Fund to be used
for, or diverted to, purposes other than for the exclusive benefit of Participants and
Beneficiaries (except as herein provided). Notwithstanding the foregoing, if the Benefits
Administration Committee is unable to locate a Participant or Beneficiary after making reasonable
efforts to do so and if such Participant or Beneficiary shall have been unavailable for a period
of three (3) years or more, the Benefits Administration Committee shall be authorized to dispose
of the Account believed to belong to such Participant or Beneficiary under any unclaimed property
or escheat law of the state in which such Participant or Beneficiary was last known to reside.



13.3. Continuity. The tenure and membership of the Benefits Administration Committee previously
appointed, the rules of administration adopted and the Beneficiary designations in effect under
the Prior Plan Statement immediately before the Effective Date shall, to the extent not
inconsistent with this Plan Statement, continue in full force and effect until altered as
provided herein.


 


-74-









 





13.4. Contingent Top Heavy Plan Rules. The terms of Appendix B (concerning additional provisions
that apply if the Plan becomes top heavy under the terms of the Tax Equity and Fiscal
Responsibility Act of 1982) are incorporated herein.



13.5. Compliance with Uniformed Services Employment and Re-employment Rights Act of
1994 (USERRA). Effective for veterans rehired or re-hired on or after December 12, 1994, and
notwithstanding any provision of the Plan Statement to the contrary, contributions, benefits or
service credits, if any, will be provided in accordance with section 414(u) of the Code.



13.6. Sunset Provision. Unless Congress acts to extend the provisions enacted into law under
Economic Growth and Tax Reconciliation Relief Act of 2001 (“EGTRRA”) that sunset as of December
31, 2010, the amendments to the Plan based on EGTRRA shall also sunset as of that date.



13.7. Rules of Interpretation. An individual shall be considered to have attained a given age on
the individual’s birthday for that age (and not on the day before). The birthday of any
individual born on a February 29 shall be deemed to be February 28 in any year that is not a leap
year. Notwithstanding any other provision of this Plan Statement or any election or designation
made under the Plan, any individual who feloniously and intentionally kills a Participant or
Beneficiary shall be deemed for all purposes of the Plan and all elections and designations made
under the Plan to have died before such Participant or Beneficiary. A final judgment of
conviction of felonious and intentional killing is conclusive for the purposes of this section.
In the absence of a conviction of felonious and intentional killing, the Benefits Administration
Committee shall determine whether the killing was felonious and intentional for the purposes of
this section. Whenever appropriate, words used herein in the singular may be read in the plural,
or words used herein in the plural may be read in the singular; the masculine may include the
feminine; and the words “hereof,” “herein” or “hereunder” or other similar compounds of the word
“here” shall mean and refer to this entire Plan Statement and not to any particular paragraph or
section of this Plan Statement unless the context clearly indicates to the contrary. The titles
given to the various sections of this Plan Statement are inserted for convenience of reference
only and are not part of this Plan Statement, and they shall not be considered in determining the
purpose, meaning or intent of any provision hereof. Any reference in this Plan Statement to a
statute or regulation shall be considered also to mean and refer to any subsequent amendment or
replacement of that statute or regulation. This document has been executed and delivered in the
State of Minnesota and has been drawn in conformity to the laws of that State and shall, except
to the extent that federal law is controlling, be construed and enforced in accordance with the
laws of the State of Minnesota.


 


-75-









 





IN WITNESS WHEREOF, Each of the parties hereto has caused these presents to be executed, all
as of the day and year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	U.S. BANCORP	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	/s/ Jennie P. Carlson	 		 	 
	 	 	 	 	 	 	 
	 
	 	 	 
	 

	 	 	 	Its	 	  Executive Vice President	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	And	 	/s/ Ellen M. Peterson	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 
	 

	 	 	 	Its	 	  Senior Vice President	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	/s/ Kathleen T. Donnelly	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 
	 

	 	 	 	Its
	 	Vice
President

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	And	 	/s/ Michael J. Clark	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 
	 

	 	 	 	Its
	 	Vice
President

	 	 







 


-76-









 







SCHEDULE I




PARTICIPATING EMPLOYERS




(As of January 1, 2002)




	 	 	 	 	 
	CC Management Inc.
	 	 	36-4477930	 
	Firstar Finance Corp of Kentucky
	 	 	61-0902130	 
	Housing Capital Company
	 	 	94-3206669	 
	Key Merchant Services LLC
	 	 	58-2359974	 
	Lyon Financial Services Inc.
	 	 	41-1400571	 
	Nova Information Systems
	 	 	58-1916822	 
	Quasar Dist. LLC
	 	 	39-1982827	 
	Rocky Mountain Bankcard System Inc.
	 	 	84-1010148	 
	Universal Leasing Inc.
	 	 	84-0689279	 
	U.S. Bancorp Asset Management Inc.
	 	 	41-2003732	 
	U.S. Bancorp Card Services Inc.
	 	 	41-1558798	 
	U.S. Bancorp Equipment Finance Inc.
	 	 	93-0594454	 
	U.S. Bancorp Fund Services LLC
	 	 	39-1939072	 
	U.S. Bancorp Information Services Inc.
	 	 	41-0880291	 
	U.S. Bancorp Insurance Services LLC
	 	 	39-1914078	 
	U.S. Bancorp Investments Inc.
	 	 	84-1019337	 
	U.S. Bancorp Licensing
	 	 	41-1970658	 
	U.S. Bancorp Oliver Allen Technology Leasing
	 	 	94-2234252	 
	U.S. Bancorp Piper Jaffray Inc.
	 	 	41-0953246	 
	U.S. Bancorp Service Center Inc.
	 	 	45-0442309	 
	U.S. Bank National Association
	 	 	31-0841368	 
	U.S. Bank National Association ND
	 	 	41-1881896	 
	U.S. Bank National Association SD
	 	 	41-1899865	 
	U.S. Bank Trust National Association
	 	 	13-3781471	 
	U.S. Bank Trust National Association
	 	 	41-1973763	 
	Voyager Fleet Systems Inc.
	 	 	76-0476053	 







 


SI-1









 







APPENDIX A




LIMITATION ON ANNUAL ADDITIONS




SECTION 1




INTRODUCTION




Terms defined in the Plan Statement shall have the same meanings when used in this Appendix. In
addition, when used in this Appendix, the following terms shall have the following meanings:



1.1. Annual Addition. Annual addition means, with respect to any Participant for a limitation
year, the sum of:




	 	(i)	 	all employer contributions (including
employer contributions of the Participant’s earnings reductions under
section 401(k), section 403(b) and section 408(k) of the Code)
allocable as of a date during such limitation year to the Participant
under all defined contribution plans;







	 	(ii)	 	all forfeitures allocable as of a date during
such limitation year to the Participant under all defined contribution
plans; and







	 	(iii)	 	all Participant contributions made as of a
date during such limitation year to all defined contribution plans.






1.1.1. Specific Inclusions. With regard to a plan which contains a qualified cash or
deferred arrangement or matching contributions or employee contributions, excess contributions
and excess aggregate contributions (whether or not distributed during or after the limitation
year) shall be considered annual additions in the year contributed. Excess deferrals that are
not distributed in accordance with the regulations under section 402(g) of the Code are annual
additions.



1.1.2. Specific Exclusions. The annual addition shall not, however, include any portion of a
Participant’s rollover contributions or any additions to accounts attributable to a plan merger
or a transfer of plan assets or liabilities or any other amounts excludable under law. Excess
deferrals that are distributed in accordance with the regulations under section 402(g) of the
Code are not annual additions.


 


A-1









 





1.1.3. ESOP Rules. In the case of an employee stock ownership plan within the meaning of
section 4975(e)(7) of the Code, annual additions shall not include any dividends or gains on sale
of employer securities held by the employee stock ownership plan (regardless of whether such
dividends or gains are (i) on securities which are allocated to Participants’ accounts or (ii) on
securities which are not allocated to Participants’ accounts which, in the case of dividends used
to
pay principal on an employee stock ownership plan loan, result in employer securities being
allocated to Participants’ accounts or, in the case of a sale, result in sale proceeds being
allocated to Participants’ accounts). In the case of an employee stock ownership plan within the
meaning of section 4975(e)(7) of the Code under which no more than one-third (1/3rd) of the
employer contributions for a limitation year which are deductible under section 404(a)(9) of the
Code are allocated to highly compensated employees (as defined in section 414(q) of the Code),
annual additions shall not include forfeitures of employer securities under the employee stock
ownership plan if such securities were acquired with the proceeds of an exempt loan or, if the
Employer is not an S corporation as defined in section 1361(a)(1) of the Code, employer
contributions to the employee stock ownership plan which are deductible by the employer under
section 404(a)(9)(B) of the Code and charged against the Participant’s account (i.e., interest
payments).



1.2. Controlled Group Member. Controlled group member means the Employer and each member of a
controlled group of corporations (as defined in section 414(b) of the Code and as modified by
section 415(h) of the Code), all commonly controlled trades or businesses (as defined in section
414(c) of the Code and as modified by section 415(h) of the Code), affiliated service groups (as
defined in section 414(m) of the Code) of which the Employer is a part and other organizations
required to be aggregated for this purpose under section 414(o) of the Code.



1.3. Defined Contribution Plans. Defined contribution plan shall have the meaning assigned to
that term by section 415(k)(1) of the Code. Whenever reference is made to defined contribution
plans in this Appendix, it shall include all such plans maintained by the Employer and all
controlled group members.



1.4. Individual Medical Account. Individual medical account means an account, as defined in
section 415(1)(2) of the Code maintained by the Employer or a controlled group member which
provides an annual addition.



1.5. Limitation Year. Limitation year means the Plan Year.



1.6. Maximum Permissible Addition.



1.6.1. General Rule. Maximum permissible addition (a term that is relevant only with respect
to defined contribution plans) means, for any one (1) limitation year, the lesser of




	 	(i)	 	Forty Thousand Dollars ($40,000), as adjusted
automatically for increases in the cost of living by the Secretary of
the Treasury, or







	 	(ii)	 	one hundred percent (100%) of the
Participant’s § 415 compensation for such limitation year.






1.6.2. Medical Benefits. The dollar limitation in Section 1.6.1(i), but not the amount
determined in Section 1.6.1(ii), shall be reduced by the amount of employer contributions which
are allocated to a separate account established for the purpose of providing medical benefits or
life insurance benefits with respect to a key employee (as defined in section 416 of the Code)
under a welfare benefit fund or an individual medical account.


 


A-2









 





1.7. Section 415 Compensation. Section 415 compensation (sometimes, “§ 415 compensation”) shall
mean, with respect to any limitation year, the total wages, salaries, fees for professional
services and other amounts received for personal services actually rendered in the course of
employment with the Employer and all controlled group members to the extent that such amounts are
includible in gross income but determined without regard to any rules that limit the remuneration
included in wages based on the nature or location of the employment or the services performed
(such as the exception for agricultural labor in section 3401(a)(2) of the Code). Without regard
to whether it is or is not includible in gross income, subject to other limitations and rules of
this Section, (i) § 415 compensation shall include foreign earned income as defined in section
911(b) of the Code whether or not excludable from gross income under section 911 of the Code, and
(ii) § 415 compensation shall be determined without regard to the exclusions from gross income in
section 931 and section 933 of the Code. Section 415 compensation shall be determined on a cash
basis. Section 415 compensation shall also include any elective deferral as defined in
section 402(g)(3) of the Code and any amount which is contributed or deferred by an Employer at
the election of the employee and which is not includible in the gross income of the employee by
reason of section 125, section 132(f) or section 457 of the Code.



1.8. Welfare Benefit Fund. Welfare benefit fund means a fund as defined in section 419(e) of the
Code which provides post-retirement medical benefits allocated to separate accounts for key
employees as defined in section 419A(d)(3).



SECTION 2




DEFINED CONTRIBUTION LIMITATION




Notwithstanding anything to the contrary contained in the Plan Statement, there shall not be
allocated to the account of any Participant under a defined contribution plan for any limitation
year an amount which would cause the annual addition for such Participant to exceed the maximum
permissible addition.



SECTION 3




REMEDIAL ACTION




3.1. Abatement. If a Participant’s annual additions for a limitation year would exceed the
maximum permissible addition, to the extent necessary to eliminate the excess the following shall
occur in the following sequence.


 


A-3









 





3.2. Employee After Tax Contributions and Elective Deferrals. The defined contribution plan
shall:




	 	(i)	 	return any unmatched employee contributions
made by the Participant for the limitation year to the Participant
(adjusted for their proportionate share of gains but not losses while
held in the defined contribution plan), and







	 	(ii)	 	distribute unmatched elective deferrals
(within the meaning of section 402(g)(3) of the Code) made for the
limitation year to the Participant (adjusted for their proportionate
share of gains but not losses while held in the defined contribution
plan), and







	 	(iii)	 	return any matched employee contributions
made by the Participant for the limitation year to the Participant
(adjusted for their proportionate share of gains but not losses while
held in the defined contribution plan), and







	 	(iv)	 	distribute matched elective deferrals
(within the meaning of section 402(g)(3) of the Code) made for the
limitation year to the Participant (adjusted for their proportionate
share of gains but not losses while held in the defined contribution
plan).






To the extent matched employee contributions are returned or any matched elective deferrals are
distributed, any matching contribution made with respect thereto shall be forfeited and
reallocated to Participants as provided in the defined contribution plan.



3.3. Employer Contributions. If, after taking all the actions contemplated by Section 3.2, an
excess still exists, the defined contribution plan shall dispose of the excess as follows.




	 	(a)	 	Covered. If that Participant is covered by the defined contribution plan
at the end of the limitation year, the Employer shall cause such excess to be used
to reduce employer contributions for the next limitation year (“second limitation
year”) and succeeding limitation years, as necessary, for that Participant.







	 	(b)	 	Not Covered. If the Participant is not covered by the defined
contribution plan at the end of the limitation year, however, then the excess
amounts must be held unallocated in an “excess account” for the second limitation
year (or succeeding limitation years) and allocated and reallocated in the second
limitation year (or succeeding limitation year) to all the remaining Participants
in the defined contribution plan as if an employer contribution for the second
limitation year (or succeeding limitation year). However, if the allocation or
reallocation of the excess amounts pursuant to the provisions of the defined
contribution plan causes the limitations of this Appendix to be exceeded





 


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with respect to each Participant for the second limitation year
(or succeeding limitation years), then these amounts must be held
unallocated in an excess account. If an excess account is in existence at
any time during the second limitation year (or any succeeding limitation
year), all amounts in the excess account must be allocated and reallocated
to Participants’ accounts (subject to the limitations of this Appendix) as
if they were additional employer contributions before any employer
contribution and any Participant contributions which would constitute
annual additions may be made to the defined contribution plan for that
limitation year. Furthermore, the excess amounts must be used to reduce
employer contributions for the second limitation year (and succeeding
limitation years, as necessary) for all of the remaining Participants.




	 	(c)	 	No Distributions. Excess amounts may not be distributed from the defined
contribution plan to Participants or former Participants.






If an excess account is in existence at any time during a limitation year, the gains and
losses and other income attributable to the excess account shall be allocated to such excess
account. To the extent that investment gains or other income or investment losses are allocated
to the excess account, the entire amount allocated to Participants from the excess account,
including any such gains or other income or less any losses, shall be considered as an annual
addition. If the defined contribution plan should be terminated prior to the date any such
temporarily held, unallocated excess can be allocated to the Accounts of Participants, the date
of termination shall be deemed to be an Annual Valuation Date for the purpose of allocating such
excess and, if any portion of such excess cannot be allocated as of such deemed Annual Valuation
Date by reason of the limitations of this Appendix, such remaining excess shall be returned to
the Employer.



3.4. Sequence of Plans. Each step of remedial action under Section 3.2 and Section 3.3 as may be
necessary to correct an excess allocation shall be made in all defined contribution plans before
the next step of remedial action is made. Each such step shall be made in the defined
contribution plans in the following sequence:




	 	(i)	 	all profit sharing and stock bonus plans
containing cash or deferred arrangements,







	 	(ii)	 	all money purchase pension plans other than
money purchase pension plans that are part of employee stock
ownership plans,







	 	(iii)	 	all profit sharing and stock bonus plans
other than profit sharing and stock bonus plans containing cash or
deferred arrangements and employee stock ownership plans,







	 	(iv)	 	all employee stock ownership plans.






If an excess allocation occurs in two (2) or more plans in the same category, correction of the
excess allocation shall be made in chronological order as determined by the effective date of
each plan (using the original effective date of the plan) beginning with the most recently
established plan.




 


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APPENDIX B




CONTINGENT TOP HEAVY PLAN RULES




Notwithstanding any of the foregoing provisions of the Plan Statement, if, after applying the
special definitions set forth in Section 1 of this Appendix, this Plan is determined under
Section 2 of this Appendix to be a top heavy plan for a Plan Year, then the special rules set
forth in Section 3 of this Appendix shall apply. For so long as this Plan is not determined to be
a top heavy plan, the special rules in Section 3 of this Appendix shall be inapplicable to this
Plan.



SECTION 1




SPECIAL DEFINITIONS




Terms defined in the Plan Statement shall have the same meanings when used in this Appendix. In
addition, when used in this Appendix, the following terms shall have the following meanings:



1.1. Aggregated Employers. Aggregated employers means the Employer and each other corporation,
partnership or proprietorship which is a “predecessor” to the Employer, or is under “common
control” with the Employer, or is a member of an “affiliated service group” that includes the
Employer, as those terms are defined in section 414(b), (c), (m) or (o) of the Code.



1.2. Aggregation Group. Aggregation group means a grouping of this Plan and:




	 	(a)	 	if any Participant in the Plan is a key employee, each other qualified
pension, profit sharing or stock bonus plan of the aggregated employers in which a
key employee is a Participant (and for this purpose, a key employee shall be
considered a Participant only during periods when he is actually accruing benefits
and not during periods when he has preserved accrued benefits attributable to
periods of participation when he was not a key employee), and







	 	(b)	 	each other qualified pension, profit sharing or stock bonus plan of the
aggregated employers which is required to be taken into account for this Plan or
any plan described in paragraph (a) above to satisfy the qualification requirements
under section 410 or section 401(a)(4) of the Code, and







	 	(c)	 	each other qualified pension, profit sharing or stock bonus plan of the
aggregated employers which is not included in paragraph (a) or (b) above, but which
the Employer elects to include in the aggregation group and which, when included,
would not cause the aggregation group to fail to satisfy the
qualification requirements under section 410 or section 401(a)(4) of the
Code.





 


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1.3. Compensation. Unless the context clearly requires otherwise, compensation means the wages,
tips and other compensation paid to the Participant by the Employer and reportable in the box
designated “wages, tips, other compensation” on Treasury Form W-2 (or any comparable successor
box or form) for the applicable period but determined without regard to any rules that limit the
remuneration included in wages based on the nature or location of the employment or the services
performed (such as the exception for agricultural labor in section 3401(a)(2) of the Code).
Compensation for this purpose shall include elective contributions made by the Employer on behalf
of the Participant that are not includible in gross income under sections 125,
132(f), 402(e)(3),
402(h), 403(b), 414(h)(2) and 457 of the Code including elective contributions authorized by the
Participant under a cafeteria plan or any qualified cash or deferred arrangement under section
401(k) of the Code. For the purposes of this Appendix (excluding Section 1.6 of this Appendix),
compensation for a Plan Year shall not exceed the annual compensation limit under
section 401(a)(17) of the Code (which is Two Hundred Thousand Dollars ($200,000) for the Plan
Year ending December 31, 2002, and shall be adjusted thereafter as provided under the Code).



1.4. Determination Date. Determination date means, for the first (1st) Plan Year of a plan, the
last day of such first (1st) Plan Year, and for each subsequent Plan Year, the last day of the
immediately preceding Plan Year.



1.5. Five Percent Owner. Five percent owner means for each aggregated employer that is a
corporation, any person who owns (or is considered to own within the meaning of the shareholder
attribution rules) more than five percent (5%) of the value of the outstanding stock of the
corporation or stock possessing more than five percent (5%) of the total combined voting power of
the corporation, and, for each aggregated employer that is not a corporation, any person who owns
more than five percent (5%) of the capital interest or the profits interest in such aggregated
employer. For the purposes of determining ownership percentages, each corporation, partnership
and proprietorship otherwise required to be aggregated shall be viewed as a separate entity.



1.6. Key Employee. Key employee means each Participant (whether or not then an employee)
who at any time during the Plan Year is:




	 	(a)	 	an officer of any aggregated employer (excluding persons who have the
title of an officer but not the authority and including persons who have the
authority of an officer but not the title) having an annual compensation from all
aggregated employers for such Plan Year in excess of one hundred thirty thousand
dollars ($130,000) for such Plan Year (adjusted as provided in section 416(i)(1)(A)
of the Code), or







	 	(b)	 	a five percent owner, or







	 	(c)	 	a one percent owner having an annual compensation from the aggregated
employers of more than One Hundred Fifty Thousand Dollars ($150,000);






 


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provided, however, that no more than fifty (50) employees (or, if lesser, the greater of three of
all the aggregated employers’ employees or ten percent of all the aggregated employers’
employees) shall be treated as officers. For the purposes of determining ownership percentages,
each corporation, partnership and proprietorship otherwise required to be aggregated shall be
viewed as a separate entity. For the purpose of determining compensation, all compensation
received from all aggregated employers shall be taken into account. The term “key employee” shall
include the beneficiaries of a deceased key employee.



1.7. One Percent Owner. One percent owner means, for each aggregated employer that is a
corporation, any person who owns (or is considered to own within the meaning of the shareholder
attribution rules) more than one percent (1%) of the value of the outstanding stock of the
corporation or stock possessing more than one percent (1%) of the total combined voting power of
the corporation, and, for each aggregated employer that is not a corporation, any person who owns
more than one percent (1%) of the capital or the profits interest in such aggregated employer.
For the purposes of determining ownership percentages, each corporation, partnership and
proprietorship otherwise required to be aggregated shall be viewed as a separate entity.



1.8. Shareholder Attribution Rules. Shareholder attribution rules means the rules of section 318
of the Code, (except that subparagraph (C) of section 318(a)(2) of the Code shall be applied by
substituting “5 percent” for “50 percent”) or, if the Employer is not a corporation, the rules
determining ownership in such Employer which shall be set forth in regulations prescribed by the
Secretary of the Treasury.



1.9. Top Heavy Aggregation Group. Top heavy aggregation group means any aggregation group for
which, as of the determination date, the sum of:




	 	(i)	 	the present value of the cumulative accrued
benefits for key employees under all defined benefit plans included in
such aggregation group, and







	 	(ii)	 	the aggregate of the accounts of key employees
under all defined contribution plans included in such aggregation
group,






exceed sixty percent (60%) of a similar sum determined for all employees. In applying the
foregoing, the following rules shall be observed:




	 	(a)	 	For the purpose of determining the present value of the cumulative
accrued benefit for any employee under a defined benefit plan, or the amount of the
account of any employee under a defined contribution plan, such present value or
amount shall be increased by the aggregate distributions made with respect to such
employee under the plan on account of separation from
service, death or disability during the one (1) year period ending on the
determination date and the aggregate distributions made with respect to
such employee under the plan for any other reason during the five (5) year
period ending on the determination date.





 


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	 	(b)	 	Any rollover contribution (or similar transfer) initiated by the
employee, made from a plan maintained by one employer to a plan maintained by
another employer and made after December 31, 1983, to a plan shall not be taken
into account with respect to the transferee plan for the purpose of determining
whether such transferee plan is a top heavy plan (or whether any aggregation group
which includes such plan is a top heavy aggregation group). Any rollover
contribution (or similar transfer) not described in the preceding sentence shall be
taken into account with respect to the transferee plan for the purpose of
determining whether such transferee plan is a top heavy plan (or whether any
aggregation group which includes such plan is a top heavy aggregation group).







	 	(c)	 	If any individual is not a key employee with respect to a plan for any
Plan Year, but such individual was a key employee with respect to a plan for any
prior Plan Year, the cumulative accrued benefit of such employee and the account of
such employee shall not be taken into account.







	 	(d)	 	The determination of whether a plan is a top heavy plan shall be made
once for each Plan Year of the plan as of the determination date for that Plan
Year.







	 	(e)	 	In determining the present value of the cumulative accrued benefits of
employees under a defined benefit plan, the determination shall be made as of the
actuarial valuation date last occurring during the twelve (12) months preceding the
determination date and shall be determined on the assumption that the employees
terminated employment on the valuation date except as provided in section 416 of
the Code and the regulations thereunder for the first and second Plan Years of a
defined benefit plan. The accrued benefit of any employee (other than a key
employee) shall be determined under the method which is used for accrual purposes
for all plans of the employer or if there is no method which is used for accrual
purposes under all plans of the employer, as if such benefit accrued not more
rapidly than the slowest accrual rate permitted under section 411(b)(1)(C) of the
Code. In determining this present value, the mortality and interest assumptions
shall be those which would be used by the Pension Benefit Guaranty Corporation in
valuing the defined benefit plan if it terminated on such valuation date. The
accrued benefit to be valued shall be the benefit expressed as a single life
annuity.





 


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	 	(f)	 	In determining the accounts of employees under a defined contribution
plan, the account values determined as of the most recent asset valuation occurring
within the twelve (12) month period ending on the determination date shall
be used. In addition, amounts required to be contributed under either the
minimum funding standards or the plan’s contribution formula shall be
included in determining the account. In the first year of the plan,
contributions made or to be made as of the determination date shall be
included even if such contributions are not required.







	 	(g)	 	If any individual has not performed any services for any employer
maintaining the plan at any time during the one (1) year period ending on the
determination date, any accrued benefit of the individual under a defined benefit
plan and the account of the individual under a defined contribution plan shall not
be taken into account.







	 	(h)	 	For this purpose, a terminated plan shall be treated like any other plan
and must be aggregated with other plans of the employer if it was maintained within
the last five (5) years ending on the determination date for the Plan Year in
question and would, but for the fact that it terminated, be part of the aggregation
group for such Plan Year.






1.10. Top Heavy Plan. Top heavy plan means a qualified plan under which (as of the determination
date):




	 	(i)	 	if the plan is a defined benefit plan, the
present value of the cumulative accrued benefits for key employees
exceeds sixty percent (60%) of the present value of the cumulative
accrued benefits for all employees, and







	 	(ii)	 	if the plan is a defined contribution plan,
the aggregate of the accounts of key employees exceeds sixty percent
(60%) of the aggregate of all of the accounts of all employees.






In applying the foregoing, the following rules shall be observed:




	 	(a)	 	Each plan of an Employer required to be included in an aggregation group
shall be a top heavy plan if such aggregation group is a top heavy aggregation
group.







	 	(b)	 	For the purpose of determining the present value of the cumulative
accrued benefit for any employee under a defined benefit plan, or the amount of the
account of any employee under a defined contribution plan, such present value or
amount shall be increased by the aggregate distributions made with respect to such
employee under the plan during the five (5) year period ending on the determination
date.











 


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	 	(c)	 	Any rollover contribution (or similar transfer) initiated by the
employee, made from a plan maintained by one employer to a plan maintained
by another employer and made after December 31, 1983, to a plan shall not
be taken into account with respect to the transferee plan for the purpose
of determining whether such transferee plan is a top heavy plan (or whether
any aggregation group which includes such plan is a top heavy aggregation
group). Any rollover contribution (or similar transfer) not described in
the preceding sentence shall be taken into account with respect to the
transferee plan for the purpose of determining whether such transferee plan
is a top heavy plan (or whether any aggregation group which includes such
plan is a top heavy aggregation group).







	 	(d)	 	If any individual is not a key employee with respect to a plan for any
Plan Year, but such individual was a key employee with respect to the plan for any
prior Plan Year, the cumulative accrued benefit of such employee and the account of
such employee shall not be taken into account.







	 	(e)	 	The determination of whether a plan is a top heavy plan shall be made
once for each Plan Year of the plan as of the determination date for that Plan
Year.







	 	(f)	 	In determining the present value of the cumulative accrued benefits of
employees under a defined benefit plan, the determination shall be made as of the
actuarial valuation date last occurring during the twelve (12) months preceding the
determination date and shall be determined on the assumption that the employees
terminated employment on the valuation date except as provided in section 416 of
the Code and the regulations thereunder for the first and second Plan Years of a
defined benefit plan. The accrued benefit of any employee (other than a key
employee) shall be determined under the method which is used for accrual purposes
for all plans of the employer or if there is no method which is used for accrual
purposes under all plans of the employer, as if such benefit accrued not more
rapidly than the slowest accrual rate permitted under section 411(b)(1)(C) of the
Code. In determining this present value, the mortality and interest assumptions
shall be those which would be used by the Pension Benefit Guaranty Corporation in
valuing the defined benefit plan if it terminated on such valuation date. The
accrued benefit to be valued shall be the benefit expressed as a single life
annuity.







	 	(g)	 	In determining the accounts of employees under a defined contribution
plan, the account values determined as of the most recent asset valuation occurring
within the twelve (12) month period ending on the determination date shall be used.
In addition, amounts required to be contributed under either the minimum funding
standards or the plan’s contribution formula shall be included in determining
the account. In the first year of the plan,
contributions made or to be made as of the determination date shall be
included even if such contributions are not required.





 


B-6









 






	 	(h)	 	If any individual has not performed any services for any
employer maintaining the plan at any time during the five (5) year period ending on
the determination date, any accrued benefit of the individual under a defined
benefit plan and the account of the individual under a defined contribution plan
shall not be taken into account.







	 	(i)	 	For this purpose, a terminated plan shall be treated like any other plan
and must be aggregated with other plans of the employer if it was maintained within
the last five (5) years ending on the determination date for the Plan Year in
question and would, but for the fact that it terminated, be part of the aggregation
group for such Plan Year.







	 	(j)	 	A plan shall not be a top heavy plan if it consists solely of (i) a cash
or deferred arrangement which meets the requirements of section 401(k)(12) of the
Code, and (ii) matching contributions with respect to which the requirements of
section 401(m)(11) are met. If, but for the preceding sentence, a plan would be
treated as a top heavy plan because it is a member of an aggregation group which is
a top heavy group, contributions under the Plan may be taken into account in
determining whether any other plan in the group meets the requirements of Section
3.3.






SECTION 2




DETERMINATION OF TOP HEAVINESS




Once each Plan Year, as of the determination date for that Plan Year, the administrator of this
Plan shall determine if this Plan is a top heavy plan.



SECTION 3




CONTINGENT PROVISIONS




3.1. When Applicable. If this Plan is determined to be a top heavy plan for any Plan Year, the
following provisions shall apply for that Plan Year (and, to the extent hereinafter specified,
for subsequent Plan Years), notwithstanding any provisions to the contrary in the Plan.


 


B-7









 





3.2. Vesting Requirement.



3.2.1. General Rule. During any Plan Year that the Plan is determined to be a Top Heavy
Plan, then all accounts of all Participants in a defined contribution plan that is a top heavy
plan and the accrued benefits of all Participants in a defined benefit plan that is a top heavy
plan shall be vested and nonforfeitable in accordance with the following schedule if, and to the
extent, that it is more favorable than other provisions of the Plan:



	 	 	 	 	 
	If the Participant Has	 	His Vested	 
	Completed the Following	 	Percentage	 
	Years of Vesting Service:	 	Shall Be:	 
	 
	 	 	 	 
	Less than 2 years
	 	 	0	%
	2 years but less than 3 years
	 	 	20	%
	3 years but less than 4 years
	 	 	40	%
	4 years but less than 5 years
	 	 	60	%
	5 years but less than 6 years
	 	 	80	%
	6 years or more
	 	 	100	%






3.2.2. Subsequent Year. In each subsequent Plan Year that the Plan is determined not to be a
top heavy plan, the other nonforfeitability provisions of the Plan Statement (and not this
section) shall apply in determining the vested and nonforfeitable rights of Participants who do
not have five (5) or more years of Vesting Service (three or more years of Vesting Service for
Participants who have one or more Hours of Service in any Plan Year beginning after December 31,
1988) as of the beginning of such subsequent Plan Year; provided, however, that they shall not be
applied in a manner which would reduce the vested and nonforfeitable percentage of any
Participant.



3.2.3. Cancellation of Benefit Service. If this Plan is a defined benefit plan and if the
Participant’s vested percentage is determined under this Appendix and if a Participant receives a
lump sum distribution of the present value of the vested portion of his accrued benefit, the Plan
shall:




	 	(a)	 	thereafter disregard the Participant’s service with respect to
which he received such distribution in determining his accrued benefit, and







	 	(b)	 	permit the Participant who receives a distribution of less than the
present value of his entire accrued benefit to restore this service by repaying
(after returning to employment covered under the Plan) to the trustee the amount of
such distribution together with interest at the interest rate of five percent (5%)
per annum compounded annually (or such other interest rate as is provided by law
for such repayment). If the distribution was on account of separation from service
such repayment must be made before the earlier of,







	 	(i)	 	five (5) years after the first date on which
the Participant is subsequently reemployed by the employer, or











 


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	 	(ii)	 	the close of the first period of five (5) consecutive one-year
breaks in service commencing after the distribution.






If the distribution was on account of any other reason, such repayment must be made within five
(5)
years after the date of the distribution.



3.3. Defined Contribution Plan Minimum Benefit Requirement.



3.3.1. General Rule. If this Plan is a defined contribution plan, then for any Plan Year
that this Plan is determined to be a top heavy plan, the Employer shall make a contribution for
allocation to the account of each employee who is a Participant for that Plan Year and who is not
a key employee in an amount (when combined with other Employer contributions and forfeited
accounts allocated to his account) which is at least equal to three percent (3%) of such
Participant’s compensation. (This minimum contribution amount shall be further reduced by all
other Employer contributions to this Plan or any other defined contribution plans.) This
contribution shall be made for each Participant who has not separated from service with the
Employer at the end of the Plan Year (including for this purpose any Participant who is then on
temporary layoff or authorized leave of absence or who, during such Plan Year, was inducted into
the Armed Forces of the United States from employment with the Employer) including, for this
purpose, each employee of the Employer who would have been a Participant if he had: (i) completed
one thousand (1,000) Hours of Service (or the equivalent) during the Plan Year, and (ii) made any
mandatory contributions to the Plan, and (iii) earned compensation in excess of the stated amount
required for participation in the Plan.



3.3.2. Special Rule. Subject to the following rules, the percentage referred to in Section
3.3.1 of this Appendix shall not exceed the percentage at which contributions are made (or
required to be made) under this Plan for the Plan Year for that key employee for whom that
percentage is the highest for the Plan Year.




	 	(a)	 	The percentage referred to above shall be determined by dividing the
Employer contributions for such key employee for such Plan Year by his compensation
for such Plan Year.







	 	(b)	 	For the purposes of this Section 3.3, all defined contribution plans
required to be included in an aggregation group shall be treated as one (1) plan.







	 	(c)	 	The exception contained in this Section 3.3.2 shall not apply to (be
available to) this Plan if this Plan is required to be included in an aggregation
group if including this Plan in an aggregation group enables a defined benefit plan
to satisfy the qualification requirements of section 410 or section 401(a)(4) of
the Code.






3.3.3. Salary Reduction and Matching Contributions. For the purpose of this Section 3.3, all
Employer contributions attributable to a salary reduction or similar arrangement shall be taken
into account for the purpose of determining the minimum percentage contribution required
to be made for a particular Plan Year for a Participant who is not a key employee but not for the
purpose of determining whether that minimum contribution requirement has been satisfied.


 


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3.4. Defined Benefit Plan Minimum Benefit Requirement.



3.4.1. General Rule. If this Plan is a defined benefit plan, then for any Plan Year that the
Plan is determined to be a top heavy plan, the accrued benefit for each Participant who is not a
key employee shall not be less than one-twelfth (l/12th) of the applicable percentage of the
Participant’s average compensation for years in the testing period.



3.4.2. Special Rules and Definitions. In applying the general rule of Section 3.4.1 of this
Appendix, the following special rules and definitions shall apply:




	 	(a)	 	The term “applicable percentage” means the lesser of:







	 	(i)	 	two percent (2%) multiplied by the number of
years of service with the Employer, or







	 	(ii)	 	twenty percent (20%).







	 	(b)	 	For the purpose of this Section 3.4, a Participant’s years of service
with the Employer shall be equal to the Participant’s Vesting Service except that a
year of Vesting Service shall not be taken into account if:







	 	(i)	 	the Plan was not a top heavy plan for any Plan
Year ending during such year of Vesting Service, or







	 	(ii)	 	such year of Vesting Service was completed in
a Plan Year beginning before January l, 1984, or







	 	(iii)	 	the service occurs during a Plan Year when
the Plan benefits (within the meaning of section 410(b) of the Code)
no key employee or former key employee.







	 	(c)	 	A Participant’s “testing period” shall be the period of five (5)
consecutive years during which the Participant had the greatest compensation from
the Employer; provided, however, that:







	 	(i)	 	the years taken into account shall be properly
adjusted for years not included in a year of service, and







	 	(ii)	 	a year shall not be taken into account if such
year ends in a Plan Year beginning before January l, 1984, or such
year begins after the close of the last year in which the Plan was a
top heavy plan.





 


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	 	(d)	 	An individual shall be considered a Participant for the purpose of
accruing the minimum benefit only if such individual has at least one
thousand (1,000) Hours of Service during a benefit accrual computation
period (or equivalent service determined under Department of Labor
regulations). Furthermore, such individual shall accrue a minimum benefit
only for a benefit accrual computation period in which such individual has
one thousand (1,000) Hours of Service (or equivalent service). An
individual shall not fail to accrue the minimum benefit merely because the
individual: (i) was not employed on a specified date, or (ii) was excluded
from participation (or otherwise failed to accrue a benefit) because the
individual’s compensation was less than a stated amount, or (iii) because
the individual failed to make any mandatory contributions.






3.4.3. Accruals Preserved. In years subsequent to the last Plan Year in which this Plan is a
top heavy plan, the other benefit accrual rules of the Plan Statement shall be applied to
determine the accrued benefit of each Participant, except that the application of such other
rules shall not serve to reduce a Participant’s accrued benefit as determined under this Section
3.4.



3.5. Priorities Among Plans. In applying the minimum benefit provisions of this Appendix in any
Plan Year that this Plan is determined to be a top heavy plan, the following rules shall apply:




	 	(a)	 	If an employee participates only in this Plan, the employee shall
receive the minimum benefit applicable to this Plan.







	 	(b)	 	If an employee participates in both a defined benefit plan and a defined
contribution plan and only one (1) of such plans is a top heavy plan for the Plan
Year, the employee shall receive the minimum benefit applicable to the plan which
is a top heavy plan.







	 	(c)	 	If an employee participates in both a defined contribution plan and a
defined benefit plan and both are top heavy plans, then the employee, for that Plan
Year, shall receive the defined benefit plan minimum benefit unless for that Plan
Year the employee has received employer contributions and forfeitures allocated to
his account in the defined contribution plan in an amount which is at least equal
to five percent (5%) of his compensation.







	 	(d)	 	If an employee participates in two (2) or more defined contribution
plans which are top heavy plans, then the employee, for that Plan Year, shall
receive the defined contribution plan minimum benefit in that defined contribution
plan which has the earliest original effective date.






3.6. Bargaining Units. The requirements of Section 3.2 through Section 3.5 of this Appendix shall
not apply with respect to any employee included in a unit of employees covered by an agreement
which the Secretary of Labor finds to be a collective bargaining agreement between
employee representatives and one (1) or more employers if there is evidence that retirement
benefits are the subject of good faith bargaining between such employee representatives and such
employer or employers.




 


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APPENDIX C




QUALIFIED DOMESTIC RELATIONS ORDERS




SECTION 1




GENERAL MATTERS




Terms defined in the Plan Statement shall have the same meanings when used in this Appendix.



1.1. General Rule. The Plan shall not honor the creation, assignment or recognition of any right
to any benefit payable with respect to a Participant pursuant to a domestic relations order
unless that domestic relations order is a qualified domestic relations order.



1.2. Alternate Payee Defined. The only persons eligible to be considered alternate payees with
respect to a Participant shall be that Participant’s spouse, former spouse, child or other
dependent.



1.3. DRO Defined. A domestic relations order is any judgment, decree or order (including an
approval of a property settlement agreement) which relates to the provision of child support,
alimony payments, or marital property rights to a spouse, former spouse, child or other dependent
of a Participant and which is made pursuant to a state domestic relations law (including a
community property law).



1.4. QDRO Defined. A qualified domestic relations order is a domestic relations order which
creates or recognizes the existence of an alternate payee’s right to (or assigns to an alternate
payee the right to) receive all or a portion of the Account of a Participant under the Plan and
which satisfies all of the following requirements.



1.4.1. Names and Addresses. The order must clearly specify the name and the last known
mailing address, if any, of the Participant and the name and mailing address of each alternate
payee covered by the order.



1.4.2. Amount. The order must clearly specify the amount or percentage of the Participant’s
Account to be paid by the Plan to each such alternate payee or the manner in which such amount or
percentage is to be determined.



1.4.3. Payment Method. The order must clearly specify the number of payments or period to
which the order applies.




1.4.4. Plan Identity. The order must clearly specify that it applies to this Plan.


 


C-1









 





1.4.5. Settlement Options. Except as provided in Section 1.4.8 of this Appendix, the order may
not require the Plan to provide any type or form of benefits or any option not otherwise provided
under the Plan.




1.4.6. Increased Benefits. The order may not require the Plan to provide increased benefits.



1.4.7. Prior Awards. The order may not require the payment of benefits to an alternate payee
which are required to be paid to another alternate payee under another order previously
determined to be a qualified domestic relations order.



1.4.8. Exceptions. The order will not fail to meet the requirements of Section 1.4.5 of this
Appendix if:




	 	(a)	 	The order requires payment of benefits be made to an alternate payee
before the Participant has separated from service but as of a date that is on or
after the date on which the Participant attains (or would have attained) the
earliest payment date described in Section 1.4.10 of this Appendix; and







	 	(b)	 	The order requires that payment of benefits be made to an alternate
payee as if the Participant had retired on the date on which payment is to begin
under such order (but taking into account only the present value of benefits
actually accrued); and







	 	(c)	 	The order requires payment of benefits to be made to an alternate payee
in any form in which benefits may be paid under the Plan to the Participant (other
than in the form of a joint and survivor annuity with respect to the alternate
payee and his or her subsequent spouse).






In lieu of the foregoing, the order will not fail to meet the requirements of Section 1.4.5 of
this Appendix if the order: (1) requires that payment of benefits be made to an alternate payee
in a single lump sum as soon as is administratively feasible after the order is determined to be
a qualified domestic relations order, and (2) does not contain any of the provisions described in
Section 1.4.9 of this Appendix, and (3) provides that the payment of such single lump sum fully
and permanently discharges all obligations of the Plan to the alternate payee.




1.4.9. Deemed Spouse. Notwithstanding the foregoing:




	 	(a)	 	The order may provide that the former spouse of a Participant shall be
treated as a surviving spouse of such Participant for the purposes of Section 7 of
the Plan Statement (and that any subsequent or prior spouse of the Participant
shall not be treated as a spouse of the Participant for such purposes), and







	 	(b)	 	The order may provide that, if the former spouse has been married to the
Participant for at least one (1) year at any time, the surviving former
spouse
shall be deemed to have been married to the Participant for the one (1)
year period ending on the date of the Participant’s death.





 


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1.4.10. Payment Date Defined. For the purpose of Section 1.4.8 of this Appendix, the
earliest payment date means the earlier of:




	 	(a)	 	The date on which the Participant is entitled to a distribution under the Plan;
or







	 	(b)	 	The later of (i) the date the Participant attains age fifty (50) years,
or (ii) the earliest date on which the Participant could begin receiving benefits
under the Plan if the Participant separated from service.






SECTION 2




PROCEDURES




2.1. Actions Pending Review. During any period when the issue of whether a domestic relations
order is a qualified domestic relations order is being determined by the Committee, the Committee
shall cause the Plan to separately account for the amounts which would be payable to the
alternate payee during such period if the order were determined to be a qualified domestic
relations order.



2.2. Reviewing DROs. Upon the receipt of a domestic relations order, the Committee shall
determine whether such order is a qualified domestic relations order.



2.2.1. Receipt. A domestic relations order shall be considered to have been received only
when the Committee shall have received a copy of a domestic relations order which is complete in
all respects and is originally signed, certified or otherwise officially authenticated.



2.2.2. Notice to Parties. Upon receipt of a domestic relations order, the Committee shall
notify the Participant and all persons claiming to be alternate payees and all prior alternate
payees with respect to the Participant that such domestic relations order has been received. The
Committee shall include with such notice a copy of this Appendix.



2.2.3. Comment Period. The Participant and all persons claiming to be alternate payees and
all prior alternate payees with respect to the Participant shall be afforded a comment period of
thirty (30) days from the date such notice is mailed by the Committee in which to make comments
or objections to the Committee concerning whether the domestic relations order is a qualified
domestic relations order. By the unanimous written consent of the Participant and all persons
claiming to be alternate payees and all prior alternate payees with respect to the Participant,
the thirty (30) day comment period may be shortened.


 


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2.2.4. Initial Determination. Within a reasonable period of time after the termination of
the comment period, the Committee shall give written notice to the Participant and all persons
claiming to be alternate payees and all prior alternate payees with respect to the Participant of
its decision that the domestic relations order is or is not a qualified domestic relations order.
If the Committee determines that the order is not a qualified domestic relations order or if the
Committee determines that the written objections of any party to the order being found a
qualified domestic relations order are not valid, the Committee shall include in its written
notice:




	 	(i)	 	the specific reasons for its decision;







	 	(ii)	 	the specific reference to the pertinent
provisions of this Plan Statement upon which its decision is based;







	 	(iii)	 	a description of additional material or
information, if any, which would cause the Committee to reach a
different conclusion; and







	 	(iv)	 	an explanation of the procedures for reviewing
the initial determination of the Committee.






2.2.5. Appeal Period. The Participant and all persons claiming to be alternate payees and
all prior alternate payees with respect to the Participant shall be afforded an appeal period of
sixty (60) days from the date such an initial determination and explanation is mailed in which to
make comments or objections concerning whether the original determination of the Committee is
correct. By the unanimous written consent of the Participant and all persons claiming to be
alternate payees and all prior alternate payees with respect to the Participant, the sixty (60)
day appeal period may be shortened.



2.2.6. Final Determination. In all events, the final determination of the Committee shall be
made not later than eighteen (18) months after the date on which first payment would be required
to be made under the domestic relations order if it were a qualified domestic relations order.
The final determination shall be communicated in writing to the Participant and all persons
claiming to be alternate payees and all prior alternate payees with respect to the Participant.



2.3. Final Disposition. If the domestic relations order is finally determined to be a qualified
domestic relations order and all comment and appeal periods have expired, the Plan shall pay all
amounts required to be paid pursuant to the domestic relations order to the alternate payee
entitled thereto. If the domestic relations order is finally determined not to be a qualified
domestic relations order and all comment and appeal periods have expired, benefits under the Plan
shall be paid to the person or persons who would have been entitled to such amounts if there had
been no domestic relations order.


 


C-4









 





2.4. Orders Being Sought. If the Committee has notice that a domestic relations order is being or
may be sought but has not received the order, the Committee shall not (in the absence of a
written request from the Participant) delay payment of benefits to a Participant or Beneficiary
which
otherwise would be due. If the Committee has determined that a domestic relations order is not a
qualified domestic relations order and all comment and appeal periods have expired, the Committee
shall not (in the absence of a written request from the Participant) delay payment of benefits to
a Participant or Beneficiary which otherwise would be due even if the Committee has notice that
the party claiming to be an alternate payee or the Participant or both are attempting to rectify
any deficiencies in the domestic relations order. Notwithstanding the above, after the
commencement of a divorce action, the Committee shall comply with a restraining order, duly
issued by the court handling the divorce, reasonably prohibiting the disposition of a
Participant’s benefits pending the submission to the Committee of a domestic relations order or
prohibiting the disposition of a Participant’s benefits pending resolution of a dispute with
respect to a domestic relations order.



SECTION 3




PROCESSING OF AWARD




3.1. General Rules. If a benefit is awarded to an alternate payee pursuant to an order which has
been finally determined to be a qualified domestic relations order, the following rules shall
apply.



3.1.1. Source of Award. If a Participant shall have a Vested interest in more than one
Account under the Plan, the benefit awarded to an alternate payee shall be withdrawn from the
Participant’s Accounts in proportion to his Vested interest in each of them.



3.1.2. Effect on Account. For all purposes of the Plan, the Participant’s Account (and all
benefits payable under the Plan which are derived in whole or in part by reference to the
Participant’s Account) shall be permanently diminished by the portion of the Participant’s
Account which is awarded to the alternate payee. The benefit awarded to an alternate payee
shall be considered to have been a distribution from the Participant’s Account for the limited
purpose of applying any rules of the Plan Statement relating to distributions from an Account
that is only partially Vested.



 


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3.1.3. After Death. After the death of an alternate payee, all amounts awarded to the
alternate payee which have not been distributed to the alternate payee and which continue to be
payable shall be paid in a single lump sum distribution to the personal representative of the
alternate payee’s estate as soon as administratively feasible, unless the qualified domestic
relations order clearly provides otherwise. The Participant’s Beneficiary designation shall not
be effective to dispose of any portion of the benefit awarded to an alternate payee, unless the
qualified domestic relations order clearly provides otherwise.



3.1.4. In-Service Benefits. Any in-service distribution provisions of the Plan Statement shall
not be applicable to the benefit awarded to an alternate payee.



3.2. Segregated Account. If the Committee determines that it would facilitate the administration
or the distribution of the benefit awarded to the alternate payee or if the qualified
domestic relations order so requires, the benefit awarded to the alternate payee shall be
established on the books and records of the Plan as a separate account belonging to the alternate
payee.



3.3. Former Alternate Payees. If an alternate payee has received all benefits to which the
alternate payee is entitled under a qualified domestic relations order, the alternate payee will
not at any time thereafter be deemed to be an alternate payee or prior alternate payee for any
substantive or procedural purpose of this Plan.




 


C-6









 







APPENDIX D




401(k), 401(m) & 402(g) COMPLIANCE




Introduction. This Appendix D contains rules for complying with the nondiscrimination
provisions of sections 401(k) and 401(m) of the Code and the limitations imposed
under section 402(g) of the Code.



Priority. Determinations under this Appendix shall be made in the following order:




	 	(1)	 	Excess deferrals under Section 1,







	 	(2)	 	If required to satisfy Code section 401(k) because the requirements of
Code section 401(k)(12) have not been met, excess contributions under Section 2,







	 	(3)	 	If required to satisfy Code section 401(m) because the requirements of
Code section 401(m)(11) have not been met, excess aggregate contributions under
Section 3.






The amount of excess contributions shall be reduced by excess deferrals previously distributed to
such Participant for the Participant’s taxable year ending with or within such Plan Year.



SECTION 1




SECTION 402(g) COMPLIANCE




1.1 Excess Deferrals.



1.1.1. In General. A Participant may attribute to this Plan any excess deferrals made during
a taxable year of the Participant by notifying the Committee in writing not later than the March
1 following such taxable year of the amount of the excess deferral to be assigned to the Plan. A
Participant shall be deemed to have notified the Plan of excess deferrals to the extent the
Participant has excess deferrals for the taxable year calculated by taking into account only the
amount of elective contributions allocated to the Participant’s Earnings Reduction Account and to
any other plan of the Employer and Affiliates. Notwithstanding any other provision of the Plan
Statement, a Participant’s excess deferrals, plus any income and minus any loss allocable
thereto, shall be distributed to the Participant no later than the first April 15 following the
close of the Participant’s taxable year.



1.1.2. Definitions. For purposes of this Appendix, excess deferrals shall mean the amount of
elective contributions allocated to the Participant’s Earnings Reduction Account for a
Participant’s taxable year and which the Participant or the Employer, where applicable, allocates
to this Plan pursuant to the claim procedure described below.


 


D-1









 





1.1.3. Claims. The Participant’s claim shall be in writing; shall be submitted to the
Committee not later than March 1 with respect to the immediately preceding taxable year; shall
specify the amount of the Participant’s excess deferrals for the preceding taxable year; and
shall be accompanied by the Participant’s written statement that if such amounts are not
distributed, such excess deferrals, when added to amounts deferred under other plans or
arrangements described in sections 401(k), 408(k) or 403(b) of the Code, will exceed the limit
imposed on the Participant by section 402(g) of the Code for the taxable year in which the
deferral occurred. The Employer shall notify the Plan on behalf of the Participant where the
excess deferrals occur in the Plan or the combined plans of the Employer and Affiliates.



1.1.4. Determination of Income or Loss. The excess deferrals shall be adjusted for income or
loss. Unless the Committee and the Trustee agree otherwise in writing, the income or loss
allocable to excess deferrals shall be determined by multiplying the income or loss allocable to
the Participant’s elective contributions for the Plan Year ending within such preceding taxable
year by a fraction, the numerator of which is the excess deferrals on behalf of the Participant
for such preceding taxable year and the denominator of which is the Participant’s Earnings
Reduction Account balance attributable to elective contributions on the Valuation Date coincident
with or immediately before the last day of such preceding taxable year without regard to any
income or loss occurring during such taxable year.



1.1.5. Accounting for Excess Deferrals. Excess deferrals shall be distributed from the
Participant’s Earnings Reduction Account.



1.1.6. Orphaned Matching Contributions. If excess deferrals are distributed pursuant to this
Section 1.1, applicable Matching Contributions under Section 3.3 of the Plan Statement shall be
treated as forfeitures and reallocated as if such forfeitures were Employer Matching
Contributions under Section 3.3 of the Plan Statement made for those Participants who were
entitled to receive an Employer Matching Contribution for that Plan Year.



SECTION 2




SECTION 401(k) COMPLIANCE




2.1. Section 401(k) Compliance.



2.1.1. Safe Harbor Compliance. If the Plan satisfies the requirements of section 401(k)(12)
of the Code for any Plan Year beginning after December 31, 1998, the provisions of this Section
2.1 of Appendix D shall not apply to the Plan for such Plan Year.


 


D-2









 





2.1.2. Special Definitions. For purposes of this Section 2, the following special
definitions shall apply:




	 	(a)	 	An eligible employee means an individual who is entitled to provide an
Earnings Reduction Agreement for all or a part of the Plan Year (whether or not the
individual does so).







	 	(b)	 	An eligible Highly Compensated Employee means an eligible employee who
is a Highly Compensated Employee.







	 	(c)	 	Deferral percentage means the ratio (calculated separately for each
eligible employee) of:







	 	(i)	 	the total amount, for the Plan Year, of
Employer contributions credited to the eligible employee’s Earnings
Reduction Account excluding any Employer contributions to the Earnings
Reduction Account used in determining the contribution
percentage in Section 3.1.2(c)(i) and including, if the Committee
elects, all or a portion of the amount of Employer contributions
credited to the eligible employee’s Employer Matching Account that are
not used in determining the contribution percentage in Section
3.1.2(c)(i), provided such Employer matching contributions are fully
(100%) vested and not available for in-service distribution prior to
the Participant’s attainment of age 59-1/2, whether for hardship or
otherwise, to







	 	(ii)	 	the eligible employee’s compensation, as
defined below for the portion of such Plan Year that the employee is
an eligible employee.







For this purpose, Employer contributions will be considered made in the
Plan Year if they are allocated as of a date during such Plan Year and are
delivered to the Trustee within twelve (12) months after the end of such
Plan Year.




	 	(d)	 	Compensation means compensation for services performed for the Employer
defined as “§ 415 compensation” in Appendix A to this Plan Statement.
Notwithstanding the definition of “§ 415 compensation” in Appendix A to this Plan
Statement compensation shall always be determined on a cash (and not on an accrual)
basis and compensation shall be determined on a Plan Year basis (which is not
necessarily the same as the limitation year). An eligible employee’s compensation
for a Plan Year shall not exceed the annual compensation limit under section
401(a)(17) of the Code (which is Two Hundred Thousand Dollars ($200,000) for the
Plan Year ending December 31, 2002, and shall be adjusted thereafter as provided
under the Code).





 


D-3









 






	 	(e)	 	Average deferral percentage means, for a specified group of eligible
employees for the Plan Year, the average of the deferral percentages for
all eligible employees in such group.






2.1.3. Special Rules. For purposes of this Section 2.1, the following special rules
apply:




	 	(a)	 	Rounding. The deferral percentage of each eligible employee and the
average deferral percentage for each group of eligible employees shall be
calculated to the nearest one-hundredth of one percent.







	 	(b)	 	Multiple Plans. In the case of an eligible Highly Compensated Employee
who participates in any other plan of the Employer and Affiliates (other than an
employee stock ownership plan described in sections 409(a) and 4975(e)(7) of the
Code) to which Employer contributions are made on behalf of the eligible Highly
Compensated Employee pursuant to a salary reduction agreement, all such Employer
contributions, and if used to determine the deferral percentage of eligible
employees, matching contributions (as defined in section 401(m)(4)(A) of the
Code) which meet the requirements of sections 401(k)(2)(B) and 401(k)(2)(C) of
the Code, shall be aggregated for purposes of determining the eligible Highly
Compensated Employee’s deferral percentage; provided, however, that such Employer
contributions made under an employee stock ownership plan shall not be aggregated.







	 	(c)	 	Permissive Aggregation. If this Plan satisfies the requirements of
sections 401(k), 401(a)(4) or 410(b) of the Code only if aggregated with one or
more other plans, or if one or more other plans satisfy the requirements of such
sections of the Code only if aggregated with this Plan, then this Section 2.1 shall
be applied by determining the average deferral percentage of eligible employees as
if all such plans were a single plan. Plans may be aggregated in order to satisfy
section 401(k) of the Code only if they have the same Plan Year and use the same
401(k) testing method.







2.1.4. The 401(k) Tests. Notwithstanding the foregoing provisions, at least one of the
following two (2) tests must be satisfied for each Plan Year:




	 	Test 1:	 	The average deferral percentage for the group of eligible Highly
Compensated Employees for the current Plan Year is not more than the average
deferral percentage of all other eligible employees for the current Plan Year
multiplied by one and twenty-five hundredths (1.25).







	 	Test 2:	 	The excess of the average deferral percentage for the group of
eligible Highly Compensated Employees for the current Plan Year over the average
deferral percentage of all other eligible employees for the current Plan Year is
not
more than two (2) percentage points, and the average deferral percentage
for the group of eligible Highly Compensated Employees for the current Plan
Year is not more than the average deferral percentage of all other eligible
employees for the current Plan Year multiplied by two (2).





 


D-4









 




The Committee may, however, elect in accordance with further guidance issued by the Secretary of
the Treasury to substitute the average deferral percentage of all other eligible employees for
the preceding Plan Year for the average deferral percentage of all other eligible employees for
the current Plan Year in Tests 1 and 2 above. Any election made by the Committee to use the
average deferral percentage of all other eligible employees for the preceding Plan Year in Tests
1 and 2 above, may only be changed in the manner prescribed by the Secretary of the Treasury.



2.1.5. Preventative Action Prior to Plan Year End. If the Committee determines that neither
of the tests described in Section 2.1.4 will be satisfied (or may not be satisfied) for a Plan
Year, then during such Plan Year, the Committee may from time to time establish (and modify) a
maximum amount of contributions that can be made pursuant to an Earnings Reduction Agreement by
eligible Highly Compensated Employees that is less than the amount that would otherwise be
permitted. No contributions shall be permitted to be made in excess of that maximum after the
date such maximum is effective. The Committee shall prescribe rules concerning such
modifications, including the frequency of applying the tests described in Section 2.1.4 and the
commencement and termination dates for any modifications.



2.2. Distribution of Excess Contributions.



2.2.1. In General. Notwithstanding any other provision of the Plan Statement, excess
contributions for a Plan Year, plus any income and minus any loss allocable thereto, shall be
distributed no later than the last day of the following Plan Year, to eligible Highly Compensated
Employees as determined in this Section.



2.2.2. Determining Excess Contributions. For purposes of this Section 2.2, excess
contributions shall mean, with respect to any Plan Year, the excess of:




	 	(a)	 	the aggregate amount of Employer contributions taken into account in
computing the average deferral percentage of eligible Highly Compensated Employees
for such Plan Year, over







	 	(b)	 	the maximum amount of such contributions permitted by the section 401(k)
test described in Section 2.1 of this Appendix. Such maximum amount of
contributions shall be determined by reducing (not distributing) eligible Highly
Compensated Employees’ contributions as follows:







	 	(i)	 	The contributions made pursuant to an Earnings
Reduction Agreement of the eligible Highly Compensated Employee who
has the highest deferral percentage (as defined in Section 2.1 of this
Appendix) shall be reduced by the amount required to cause such
eligible Highly Compensated Employee’s deferral percentage to equal
the next highest deferral percentage of an eligible Highly
Compensated Employee.





 


D-5









 











	 	(ii)	 	If neither the tests is satisfied after such
reduction, the contributions made pursuant to an Earnings Reduction
Agreement of the eligible Highly Compensated Employees who then have
the highest deferral percentage (including those eligible Highly
Compensated Employees whose contributions were reduced under (i)
above) shall be reduced by the amount required to cause such eligible
Highly Compensated Employees’ deferral percentage to equal the next
highest deferral percentage of an eligible Highly Compensated
Employee.







	 	(iii)	 	If neither of the tests is satisfied after
such reduction, this method of reduction shall be repeated one or more
additional times until one of the tests is satisfied.






2.2.3. Method of Distributing Excess Contributions. Excess contributions, plus any income
and minus any loss allocable thereto, shall be distributed from the Earnings Reduction Account
and Employer Matching Account, if applicable, in proportion to the Participant’s elective
contributions and matching contributions, if applicable, (as defined in section 401(m)(4)(A) of
the Code which meet the requirements of sections 401(k)(2)(B) and 401(k)(2)(C) of the Code) for
the Plan Year. The amount of excess contributions to be distributed on behalf of each eligible
Highly Compensated Employee for the Plan Year shall be equal to the amount of reduction
determined as follows:




	 	(a)	 	The contributions made pursuant to an Earnings Reduction Agreement of
the eligible Highly Compensated Employee who has the highest dollar amount of such
contributions shall be reduced by the amount required to cause such eligible
Highly Compensated Employee’s contributions to equal the next highest dollar amount
contributed by eligible Highly Compensated Employees (and the amount credited
pursuant to Section 3.2 of the Plan Statement, and the applicable amount of
Employer matching contributions, if any, credited pursuant to Sections 3.3 and 3.4
of the Plan Statement, shall be reduced accordingly).







	 	(b)	 	If any excess contributions remain after performing (a), then the
eligible Highly Compensated Employees who have the next highest dollar amount of
contributions made pursuant to an Earnings Reduction Agreement (including those
eligible Highly Compensated Employees reduced under (a) above) shall be reduced by
the amount required to cause such eligible Highly Compensated Employees’
contributions to equal the next highest dollar amount contributed by eligible
Highly Compensated Employees (and the
amount credited pursuant to Section 3.2 of the Plan Statement, and the
applicable amount of Employer matching contributions, if any, credited
pursuant to Sections 3.3 and 3.4 of the Plan Statement, shall be reduced
accordingly).





 


D-6









 











	 	(c)	 	If any excess contributions remain after performing (a) and (b), this
method of reduction shall be repeated one or more additional times until no excess
contributions remain.






Provided, however, if the total amount of reduction determined in (a), (b) and (c) would be
greater than the amount of excess contributions, then the final reduction amount shall be
decreased so that the total amount of reductions equals the amount of excess contributions.



2.2.4. Determination of Income or Loss. The excess contributions to be distributed to any
eligible Highly Compensated Employee shall be adjusted for income or loss. Unless the Committee
and the Trustee agree otherwise in writing, the income or loss allocable to excess contributions
to be distributed shall be determined by multiplying the income or loss allocable to the eligible
Highly Compensated Employee’s elective contributions, and if used to determine an eligible Highly
Compensated Employee’s deferral percentage under Section 2.1 of this Appendix, matching
contributions (as defined in section 401(a)(4) of the Code which meet the requirements of
sections 401(k)(2)(B) and 401(k)(2)(C) of the Code) for the Plan Year by a fraction, the
numerator of which is the excess contributions to be distributed to the eligible Highly
Compensated Employee for the Plan Year and the denominator of which is the sum of the eligible
Highly Compensated Employee’s account balances attributable to elective contributions and such
matching contributions on the last day of the Plan Year, without regard to any income or loss
occurring during such Plan Year.



2.2.5. Orphaned Matching Contributions. If excess contributions are distributed pursuant to
this Section 2.2, applicable matching contributions under Section 3.3 of the Plan Statement shall
be treated as forfeitures and reallocated as if such forfeitures were Employer matching
contributions under Section 3.3 of the Plan Statement made for those Participants who were
entitled to receive an Employer matching contribution for that Plan Year.



2.3. Section 401(k) Curative Allocation.



2.3.1. Amount and Eligibility. If neither of the section 401(k) tests set forth in Section
2.1 of this Appendix has been satisfied and a distribution of “excess contributions” has not been
made pursuant to Section 2.2 of this Appendix, then the Employer shall make a discretionary
contribution for that Plan Year. Only those Participants who were not eligible Highly Compensated
Employees for that Plan Year and for whom some contribution was made pursuant to Section 3.2 of
the Plan Statement for such Plan Year shall share in such allocation. This allocation shall be
made first to the Participant with the least amount of compensation and then, in ascending order
of compensation, to other Participants. The amount of the Employer discretionary contribution to
be so allocated shall be that amount required to cause the Plan to satisfy either of the section
401(k) tests
set forth in Section 2.1 of this Appendix for the Plan Year; provided, however, that in no case
shall amounts be so allocated to cause a Participant’s deferral percentage to exceed twenty
percent (20%). Such Employer discretionary contribution shall be treated as elective
contributions subject to section 1.401(k)-1(b)(5) of the Income Tax Regulations, which is
incorporated herein.


 


D-7









 





2.3.2. Crediting to Account. The Employer discretionary contribution which is so allocated
to a Participant shall be allocated to that Participant’s Earnings Reduction Account for the Plan
Year with respect to which it is made and, for the purposes of Section 4, shall be credited as
soon as practicable after it is received by the Trustee.



SECTION 3




SECTION 401(m) COMPLIANCE




3.1. Section 401(m) Compliance.



3.1.1. Safe Harbor Compliance. If the Plan satisfies the requirements of section 401(m)(11)
of the Code for any Plan Year beginning after December 31, 1998, the provisions of this Section
3.1 of Appendix D shall not apply to the Plan for such Plan Year.



3.1.2. Special Definitions. For purposes of this Section 3, the following special
definitions shall apply:




	 	(a)	 	An eligible employee means an individual who is eligible to receive an
Employer matching contribution for any portion of the Plan Year (whether or not the
individual does so).







	 	(b)	 	An eligible Highly Compensated Employee means an eligible employee who
is a Highly Compensated Employee.







	 	(c)	 	Contribution percentage means the ratio (calculated separately for each
eligible employee) of:







	 	(i)	 	the total amount, for the Plan Year, of
Employer contributions credited to the eligible employee’s Employer
Matching Account excluding any Employer matching contributions used in
determining the deferral percentage under Section 2.1.2(c)(i) of this
Appendix, and including, if the Committee elects, all or a portion of
the amount of Employer contributions credited to the eligible
employee’s Earnings Reduction Account, provided that the 401(k)
compliance testing under Section 2.1 of this Appendix is satisfied
both with and without exclusion of such Employer contributions, to





 


D-8









 






	 	(ii)	 	the eligible employee’s compensation, as defined below for the
portion of such Plan Year that the employee is an eligible
employee.







For this purpose, Employer contributions will be considered made in the
Plan Year if they are allocated as of a date during such Plan Year and are
delivered to the Trustee within twelve (12) months after the end of such
Plan Year.




	 	(d)	 	Compensation means compensation for services performed for the Employer
defined as “§ 415 compensation” in Appendix A to this Plan Statement.
Notwithstanding the definition of “§ 415 compensation” in Appendix A to this Plan
Statement, compensation shall always be determined on a cash (and not on an
accrual) basis and compensation shall be determined on a Plan Year basis (which is
not necessarily the same as the limitation year). An eligible employee’s
compensation for a Plan Year shall not exceed the limit on annual compensation
under section 401(a)(17) of the Code (which is Two Hundred Thousand Dollars
($200,000) for the Plan Year ending December 31, 2002, and shall be adjusted
thereafter as provided under the Code).







	 	(e)	 	Average contribution percentage means, for a specified group of eligible
employees for the Plan Year, the average of the contribution percentages for all
eligible employees in such group.







3.1.3. Special Rules. For purposes of this Section 3.1, the following special rules
apply:




	 	(a)	 	Rounding. The contribution percentage of each eligible employee and the
average contribution percentage for each group of eligible employees shall be
calculated to the nearest one-hundredth of one percent.







	 	(b)	 	Multiple Plans. In the case of an eligible Highly Compensated Employee
who participates in any other plan of the Employer and Affiliates (other than an
employee stock ownership plan described in sections 409(a) and 4975(e)(7) of the
Code) to which Employer matching contributions are made on behalf of the eligible
Highly Compensated Employee, all such Employer matching contributions, and if used
to determine the contribution percentage of eligible employees, Employer
contributions made pursuant to a salary reduction agreement shall be aggregated for
purposes of determining the eligible Highly Compensated Employee’s contribution
percentage; provided, however, that such Employer contributions made under an
employee stock ownership plan shall not be aggregated.





 


D-9









 











	 	(c)	 	Permissive Aggregation. If this Plan satisfies the requirements of
sections 401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one or
more other plans, or if one or more other plans satisfy the requirements of
such sections of the Code only if aggregated with this Plan, then this
Section 3.1 shall be applied by determining the average contribution
percentage of eligible employees as if all such plans were a single plan.
Plans may be aggregated in order to satisfy section 401(m) of the Code only
if they have the same Plan Year and they use the same 401(m) testing
method.






3.1.4. The 401(m) Tests. Notwithstanding the foregoing provisions, at least one of the
following two tests must be satisfied for each Plan Year:




	 	Test 1:	 	The average contribution percentage for the group of eligible Highly
Compensated Employees for the current Plan Year is not more than the average
contribution percentage of all other eligible employees for the current Plan Year
multiplied by one and twenty-five hundredths (1.25).







	 	Test 2:	 	The excess of the average contribution percentage for the group of
eligible Highly Compensated Employees for the current Plan Year over the average
contribution percentage of all other eligible employees for the current Plan Year
is not more than two (2) percentage points, and the average contribution percentage
for the group of eligible Highly Compensated Employees for the current Plan Year is
not more than the average contribution percentage of all other eligible employees
for the current Plan Year multiplied by two (2).






The Committee may, however, elect in accordance with further guidance issued by the Secretary of
the Treasury to substitute the average contribution percentage of all other eligible employees
for the preceding Plan Year for the average contribution percentage of all other eligible
employees for the current Plan Year in Tests 1 and 2 above. Any election made by the Committee to
use the average contribution percentage of all other eligible employees for the preceding Plan
Year in Tests 1 and 2 above may only be changed in the manner prescribed by the Secretary of the
Treasury.



3.1.5. Preventative Action Prior to Plan Year End. If the Committee determines that neither
of the tests described in Section 3.1.4 will be satisfied (or may not be satisfied) for a Plan
Year, then during such Plan Year, the Committee may from time to time establish (and modify)
maximums for Employer matching contributions of eligible Highly Compensated Employees that are
less than the contributions which would otherwise be permitted or provided. No Employer matching
contributions shall be made in excess of such maximums after the date such maximums are
effective. The Committee shall prescribe rules concerning such modifications, including the
frequency of applying the tests designed in Section 3.1.4 and the commencement and termination
dates for any modifications.



 


D-10









 




3.2. Distribution of Excess Aggregate Contributions.



3.2.1. In General. Notwithstanding any other provision of the Plan Statement, excess
aggregate contributions, plus any income and minus any loss allocable thereto, shall be
distributed no later than the last day of the following Plan Year to eligible Highly Compensated
Employees as determined in this Section.



3.2.2. Determining Excess Aggregate Contributions. For purposes of this Section, excess
aggregate contributions shall mean, with respect to any Plan Year, the excess of:




	 	(a)	 	the aggregate amount of contributions taken into account in computing
the average contribution percentage of eligible Highly Compensated Employees for
such Plan Year, over







	 	(b)	 	the maximum amount of such contributions permitted by the section 401(m)
tests described in Section 3.1 of this Appendix. Such maximum amount of
contributions shall be determined by reducing (not distributing) eligible Highly
Compensated Employees’ contributions as follows:







	 	(i)	 	The Employer matching contributions for the
eligible Highly Compensated Employee who has the highest contribution
percentage shall be reduced by the amount required to cause such
eligible Highly Compensated Employee’s contribution percentage to
equal the next highest contribution percentage of an eligible Highly
Compensated Employee.







	 	(ii)	 	If neither of the tests is satisfied after
such reduction, the Employer matching contributions for eligible
Highly Compensated Employees who then have the highest contribution
percentage (including those reduced under (i) above) shall be reduced
by the amount required to cause such eligible Highly Compensated
Employees’ contribution percentage to equal the next highest
contribution percentage of an eligible Highly Compensated Employee.







	 	(iii)	 	If neither of the tests is satisfied after
such reductions, this method of reduction shall be repeated one or
more additional times until one of the tests is satisfied.






 


D-11









 




3.2.3. Distribution of Excess Aggregate Contributions. Excess aggregate contributions, plus
any income and minus any loss allocable thereto, shall be distributed from the Participant’s
Employer Matching Account (and, if applicable, the Participant’s Earnings Reduction Account in
proportion to the Participant’s Employer matching contributions, and if used to determine the
contribution percentage under Section 3.1 of this Appendix, elective contributions for the Plan
Year. The amount of excess aggregate contributions to be distributed on behalf of each eligible
Highly Compensated Employee for the Plan Year shall be equal to the amount of reduction
determined as follows:




	 	(a)	 	The Employer matching contributions of the eligible Highly Compensated
Employee who has the highest dollar amount of such contributions shall be
reduced by the amount required to cause such eligible Highly Compensated
Employee’s contributions to equal the next highest dollar amount received
by eligible Highly Compensated Employees.







	 	(b)	 	If any excess aggregate contributions remain after performing (a), then
the eligible Highly Compensated Employees who have the next highest dollar amount
of Employer matching contributions (including those reduced under (a) above) shall
be reduced by the amount required to cause such eligible Highly Compensated
Employees’ contributions to equal the next highest dollar amount received by
eligible Highly Compensated Employees.







	 	(c)	 	If any excess aggregate contributions remain after performing (a) and
(c), this method of reduction shall be repeated one or more additional times until
no excess aggregate contributions remain.






Provided, however, if the total amount of reduction determined in (a) through (c) would be
greater than the amount of excess aggregate contributions, then the final reduction amount shall
be decreased so that the total amount of reductions equals the amount of excess aggregate
contributions.



3.2.4. Determination of Income or Loss. The excess aggregate contributions to be distributed
to any eligible Highly Compensated Employee shall be adjusted for income or loss. Unless the
Committee and the Trustee agree otherwise in writing, the income or loss allocable to excess
aggregate contributions to be distributed shall be determined by multiplying the income or loss
allocable to the eligible Highly Compensated Employee’s Employer matching contributions (to the
extent used to determine the eligible Highly Compensated Employee’s contribution percentage under
Section 3.1 of this Appendix), and if used to determine an eligible Highly Compensated Employee’s
contribution percentage under Section 3.1 of this Appendix, elective contributions for the Plan
Year by a fraction, the numerator of which is the excess aggregate contributions to be
distributed to the eligible Highly Compensated Employee for the Plan Year and the denominator of
which is the sum of the eligible Highly Compensated Employee’s account balances attributable to
Employer matching contributions and such elective contributions or qualified nonelective
contributions, or both, on the last day of the Plan Year, without regard to any income or loss
occurring during such Plan Year.



 


D-12









 





3.2.5. Orphaned Matching Contributions. If elective contributions treated as excess
aggregate contributions are distributed pursuant to this Section 3.2, applicable matching
contributions under Section 3.3 of the Plan Statement shall be treated as forfeitures and
reallocated as if such forfeitures were an Employer matching contribution under Section 3.3 of
the Plan Statement made for those Participants who were entitled to receive an Employer matching
contribution for that Plan Year.



3.3. Section 401(m) Curative Allocation.



3.3.1. Amount and Eligibility. If neither of the section 401(m) tests set forth in Section
3.1 of this Appendix has been satisfied and a distribution of “excess aggregate contributions”
has not been made pursuant to Section 3.2 of this Appendix, then the Employer shall make an
additional matching contribution for that Plan Year. Only those Participants who were not
eligible Highly Compensated Employees for that Plan Year and who were entitled to receive an
Employer matching contribution shall share in such allocation. This allocation shall be made
first to the Participant with the least amount of compensation and then, in ascending order of
compensation, to other Participants. The amount of the Employer matching contribution to be so
allocated shall be that amount required to cause the Plan to satisfy either of the section 401(m)
tests set forth in Section 3.1 of this Appendix for the Plan Year.



3.3.2. Crediting to Account. The Employer matching contribution which is so allocated to a
Participant shall be allocated to that Participant’s Employer Matching Account for the Plan Year
with respect to which it is made and, for the purposes of Section 4, shall be credited as soon as
practicable after it is received by the Trustee.




 


D-13









 







APPENDIX
E

SPECIAL RULES




1.1. Eligibility Service (Related to Section 2.1.12). Employment prior to the Effective Date that
was required to be taken into account for the purpose of determining Eligibility Service under
the Predecessor Plans shall be recognized to the same extent under this Plan for the purpose of
determining Eligibility Service.



1.2. Predecessor Plan Participants (Related to Section 2.1.25). Any person who was a participant
in one of the Predecessor Plans immediately prior to the Effective Date shall be a Participant on
the Effective Date if the person is then in Recognized Employment; provided, however, that any
person who was a participant in the Piper Jaffray Companies 401(k) Plan or the Piper Jaffray
Companies ESOP (collectively the “Piper Plans”) and who is a non-U.S. citizen working in a
foreign country shall be considered a Participant in this Plan solely for the purpose of
receiving a distribution. Any other person who participated in one of the Predecessor Plans shall
be eligible to begin Earnings Reduction Contributions no later than the first day of the month
following the month in which the person returns to Recognized Employment.



1.3. Restoration of Accounts of Participants in Certain Merged Plans (Related to Section 4.10).
The non-vested accounts in the Dakota Bankshares, Inc. 401(k) Plan (“DBI 401(k)”) of all
participants who were not actively employed on June 30, 1992, shall be restored and fully vested
only if the participant returns to active employment with the Employer or an Affiliate prior to
five (5) consecutive one-year breaks in service (as determined under the DBI 401(k) Plan
documents) and satisfies any requirements for restoration of such accounts imposed under the
terms of the DBI
401(k) Plan documents as they existed immediately prior to July 1, 1992. The non-vested
accounts in the Colorado National Bankshares, Inc. Employee Savings Incentive Plan (“CNB 401(k) Plan”) of
all participants who were not previously fully vested shall be restored and fully vested only if
the participant returns to active employment with the Employer or an Affiliate prior to a break
in service (as that term is defined in the CNB 401(k) Plan documents) and satisfies any
requirements for restoration of such accounts imposed under the terms of the CNB 401(k) Plan
documents as they existed immediately prior to May 29, 1993. The non-vested accounts in the
American Bank Mankato Profit Sharing and Savings Plan (“ABM 401(k) Plan”) of all participants who
were not previously fully vested shall be restored and fully vested only if the participant
returns to active employment with the Employer or an Affiliate prior to a break in service (as
that term is defined in the ABM 401(k) Plan documents) and satisfies any requirements for
restoration of such accounts imposed under the terms of the ABM 401(k) Plan documents as they
existed immediately prior to February 28, 1994.



1.4. Diversification of Firstar Plan Stock (Relating to Section 5.2.3). Notwithstanding anything
in Section 5.2.3 of the Plan Statement to the contrary, the portion of a Participant’s Matching
Contribution Account that is attributable to the Participant’s “Employer Contributions
Account” under the Firstar Thrift Savings 401(k) Plan may not be diversified prior to the earlier
of the date the Participant attains age 55 or March 1, 2002.


 


E-1









 





1.5. In Service Withdrawal — Firstar Thrift Savings 401(k) Plan Participants (Related to Section
7.2). In addition to the opportunities for distribution prior to a Participant’s severance from
employment stated in Section 7.2 of the Plan Statement, the portion of a Participant’s Total
Account that is attributable to the balance to the credit of the Participant in the Firstar
Thrift Savings 401(k) Plan (“Firstar Plan”) immediately prior to the Effective Date shall be
distributable prior to the Participant’s severance from employment as follows:




	 	(a)	 	all or any portion of such amounts that are attributable to amounts that
were, immediately prior to the Effective Date, held in the Participant’s Deductible
Deposits Account may be distributed at any time prior to the Participant’s
severance from employment;







	 	(b)	 	all or any portion of such amounts that are attributable to “Employer
Contributions” within the meaning of the Firstar Plan, that were made under the
Firstar Corporation Thrift and Sharing Plan prior to September 1, 1999 may be
distributed at any time prior to the Participant’s severance from employment; and







	 	(c)	 	all or any portion of such amount may be distributed at any time prior
to the Participant’s severance from employment by a Participant who has incurred a
“Total Disability” within the meaning of the Firstar Plan.






Amounts distributed pursuant to subsections (a) through (c) above that come from more than one
Account shall be withdrawn from the portions of the Participant’s Total Account that correspond
to the following Accounts under the Firstar Plan in the following order of priority: After-Tax
Contributions Account, Deductible Deposits Account, Rollover Contributions Account, Employer
Contributions Account and Tax Deferred Contributions Account. Notwithstanding the preceding
sentence, a former participant in the Firstar Plan shall be permitted to specify a different
order of priority for withdrawals authorized by this Section 1.4 of Appendix F, and shall be
permitted to specify a different order of priority for withdrawals pursuant to Section 7.2.3 of
the Plan Statement to the extent such withdrawals include the portion of a Participant’s Total
Account that is attributable to the balance to the credit of the Participant in the Firstar
Thrift Savings 401(k) Plan (“Firstar Plan”) immediately prior to the Effective Date.



1.6. In Service Withdrawal — U.S. Bancorp 401(k) Savings Plan Participants (Relating to Section
7.2). In addition to the opportunities for distribution prior to a Participant’s severance from
employment stated in Section 7.2 of the Plan Statement, all or any portion of the Participant’s
Total Account that is attributable to amounts credited to the Participant’s “Account A” or
“Account B” within the meaning of the U.S. Bancorp 401(k) Savings Plan (“Bancorp Plan”)
immediately prior to the Effective Date, may be distributed at any time prior to the
Participant’s severance from employment, provided, however, that unless and until the Participant
has been a Participant in the
Plan and the Bancorp Plan for five (5) full years, the Participant shall not be entitled to a
withdraw from either of those accounts any contributions that were contributed during the two
consecutive Plan Years ending coincident with or immediately before the Valuation Date as of
which the withdrawal is being made.


 


E-2









 





1.7. In Service Withdrawal — Merged Plans Generally. To the extent that its distribution prior to
severance from employment is not authorized elsewhere in this Appendix E or by the other
provisions of this Plan Statement, any portion of a Participant’s Total Account that:




	 	(a)	 	is attributable to amounts that were held by a Predecessor Plan or by a
plan that merged into this Plan after the Effective Date and







	 	(b)	 	immediately prior to the Effective Date, in the case of Predecessor Plan
amounts, or immediately prior to the merger date, in the case of other amounts, was
available for distribution prior to severance from employment,






shall continue to be available for such distribution to the same extent such distribution was
permitted immediately prior to the Effective Date (in the case of Predecessor Plan amounts) or
the merger date (in the case of other amounts).



1.8. Accounting for Loans (Relating to Section 7.6.6(c)). Notwithstanding anything in Section
7.6.6(c) of the Plan Statement to the contrary, the amount for a loan shall be withdrawn from the
Transfer Account only to the extent that they are available for loans at the time they are merged
into the Plan. There shall also be excluded from the amounts available for loans any amounts that
are attributable to amounts that were, immediately prior to the Effective Date, held in the
Participant’s Deductible Deposits Account under the Firstar Thrift Savings 401(k) Plan.



1.9. Beneficiary Designations (Relating to Section 9.3.3). Notwithstanding anything in Section
9.3.3 of the Plan Statement to the contrary, the beneficiary designation forms in effect under
the Firstar Thrift Savings 401(k) Plan before the merger of that plan into the Plan, whether
filed under the Firstar Thrift Savings 401(k) Plan or of a predecessor plan merged into that
plan, shall continue to be in effect.



1.10. Leader Mortgage Participants (Relating to Sections 2.1.12 and 3.1). Notwithstanding
anything in Sections 2.1.12 and 3.1 of the Plan Statement to the contrary, any person who became
an Employee of the Employer as of April 1, 2002, as a result of the acquisition of The Leader
Mortgage Company LLC (“Leader”) from First Federal Bank of the Midwest shall be credited with
Eligibility Service under this Plan Statement for his or her service with Leader and its
affiliates from his or her most recent date of hire prior to such acquisition to the extent not
otherwise credited under this Plan Statement, and any such person who immediately prior to such
acquisition was enrolled in the tax-qualified defined contribution retirement plan for Leader
employees shall become a participant in this Plan on April 1, 2002.




 


E-3











 




WRITTEN ACTION OF

OFFICER OF

U.S. BANCORP




(Adoption of First Amendment to the

U.S. Bancorp 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President of U.S. Bancorp, a Delaware
corporation, and that, pursuant to authority granted by Section 9.1(a) of the U.S. Bancorp 401(k)
Savings Plan, the document entitled “FIRST AMENDMENT OF U.S. BANCORP 401(k) SAVINGS PLAN (2002
Restatement)” is approved and adopted. I certify that the document attached is a true and correct
copy of the amendment.



	 	 	 	 	 
	 	 	 
	Dated:  December 26, 2002 	
/s/ Jennie Carlson
 	 



 


 









 





FIRST AMENDMENT OF

U.S. BANCORP 401(K) SAVINGS PLAN 
(2002 Restatement)




The U.S. Bancorp 401(k) Savings Plan (2002 Restatement) (hereinafter referred to as the “Plan
Statement”) is hereby amended in the following respects:



1. ELIGIBILITY SERVICE. Effective January 1, 2002, Section 2.1.12(a) of the Plan
Statement is modified by substituting the term “employee” for the term “Participant”.



2. SHORT-TERM DISABILITY HOURS OF SERVICE. Effective January 1, 2002, item (i) of subsection (b)
of Section 2.1.21 of the Plan Statement is modified to read in full as follows:




	 	(i)	 	no more than five hundred one (501) Hours of
Service shall be credited on account of a single continuous period
during which the employee performs no duties (whether or not such
period occurs in a single computation period) unless such Hours of
Service in excess of five hundred one (501) Hours are due to
Disability or to a period for which the employee is entitled to
short-term disability pay continuation benefits;






3. RECOGNIZED EMPLOYMENT. Effective January 1, 2002, Section 2.1.33(a)(iv) of the Plan Statement
is modified by substituting the term “Recognized Employment” for the term “Covered Employment”.



4. ROLLOVER OF LOANS. Effective January 1, 2002, the first sentence of Section 4.5.1 of the Plan
Statement is modified to read in full as follows:



An employee in Recognized Employment may contribute to the Plan, in such form and manner as
may be prescribed by the Benefits Administration Committee in accordance with those provisions of
federal law relating to rollover contributions, cash (or the cash proceeds from distributed
property) and, solely in the case of employees whose Recognized Employment began as a result of
the Employer’s acquisition by merger, asset purchase or otherwise of all or a portion of a trade
or business, promissory notes for loans made to the employee under the tax-qualified plan of the
employee’s previous employer, that in either case are received by the employee in an eligible
rollover distribution.



 


 









 




5. CATCH-UP CONTRIBUTIONS. Effective July 1, 2002, Section 4 of the Plan Statement is modified so
that Section 4.6 is renumbered as Section 4.7, subsequent sections are renumbered as appropriate,
references are renumbered as appropriate, and a new Section 4.6 is added that reads in whole as
follows:



4.6. Catch-up Contributions.



4.6.1. Enrollment. A Participant who attains age fifty (50) or more during a calendar year
and whose Earnings Reduction Contributions for that calendar year reach the dollar limit under
Code section 402(g) (the “402(g) limit”) before the last day of that calendar year will be deemed
to have elected to make additional contributions from his or her Recognized Compensation. Such
additional contributions shall be in the same percent of Recognized Compensation as the percent
in effect for the Participant’s Earnings Reduction Contributions when the 402(g) limit was
reached and shall continue for the remainder of the calendar year, subject to the Participant’s
election to discontinue contributions or to contribute a different percent of Recognized
Compensation. If a Participant is not expected to reach the 402(g) limit but has elected to defer
the maximum percent of Recognized Compensation permitted under Section 4.2 for the entire
calendar year, the Participant may elect to contribute an additional amount of his or her
Recognized Compensation. Contributions authorized by this Section 4.6.1 shall be referred to as
“Catch-up Contributions”. No Catch- up Contributions shall be permitted prior to July 1, 2002.



4.6.2. Separate Subaccount. Catch-up Contributions deducted by an Employer from the
Participant’s Recognized Compensation shall be credited to a separate subaccount in that
Participant’s Earnings Reduction Account.



4.6.3. Limitations and Testing. Except as hereinafter provided for re-characterized Catch-up
Contributions and notwithstanding any other provision of this Plan Statement to the contrary, the
following rules shall apply to Catch-up Contributions.




	 	(a)	 	Section 402(g) Annual Limit. Catch-up Contributions shall not be subject
to the annual contribution limit under section 402(g) of the Code, but shall be
subject to the applicable annual contribution limit specified in section 414(v) of
the Code (e.g., $1,000 in 2002).







	 	(b)	 	ADP Testing. Catch- up Contributions shall not be subject to the average
deferral percentage test under section 401(k) of the Code and Appendix D of this
Plan Statement.







	 	(c)	 	§ 415(c) Annual Addition Limit. Catch- up Contributions shall not be
subject to the limitation on annual additions to the Participant’s Account under
section 415(c) of the Code and Appendix A of this Plan Statement.







	 	(d)	 	Matching Contributions. Catch-up Contributions, whether initially
designated under Section 4.6.1 or re-characterized as Catch-up Contributions under
Section 4.6.5, shall not be eligible for any Employer matching contributions.





 


-2-









 










4.6.4. Re-characterization of Catch-up Contributions as Elective Contributions. To the
extent that, apart from Catch-up Contributions, a Participant has failed to make the maximum
allowable elective contributions for the Participant’s taxable year (e.g., the Participant could
have made additional elective contributions (i) without exceeding the 402(g)
limit, (ii) without exceeding the maximum allowed after the application of the average deferral
percentage test specified in section 401(k) of the Code and Appendix D of this Plan Statement,
(iii) without exceeding the limitations on annual additions under section 415(c) of the Code and
Appendix A of this Plan Statement, and (iv) without exceeding any other limit imposed under the
Plan), any amounts initially characterized as Catch- up Contributions shall be, as of the last
day of the calendar year, re-characterized as Earnings Reduction Contributions (and not Catch-up
Contributions). Any amounts re-characterized shall be treated as Earnings Reduction Contributions
(and not Catch-up Contributions) for all purposes of the Plan, except such contributions shall
not be eligible for employer matching contributions.



4.6.5. Re-characterization of Elective Contributions as Catch-up Contributions. To the
extent that (i) a Participant is eligible to make Catch-up Contributions as provided under
Section 4.6.1, (ii) the Participant has excess elective deferrals (either in excess of the annual
contribution limit under section 402(g) of the Code, in excess of the percent limit in Section
4.2.1 of this Plan Statement, or in excess of the average deferral percentage test specified in
section 401(k) of the Code and Appendix D of this Plan Statement), and (iii) the Participant has
not exceeded the applicable annual contribution limit specified in section 414(v) of the Code,
any amount initially characterized as Earnings Reduction Contributions (and not as Catch-up
Contributions) shall be re-characterized as Catch-up Contributions to the extent permitted under
section 414(v) of the Code. Any amounts re-characterized shall be treated as Catch-up
Contributions (and not Earnings Reduction Contributions) for all purposes of the Plan.



6. RETURN OF CONTRIBUTIONS. Effective January 1, 2002, the first sentence of Section 4.9 of the
Plan Statement is modified to be two sentences which shall read in full as follows:



All Employer contributions to the Plan are conditioned on their qualification for deduction for
federal income tax purposes under section 404 of the Code. If such deduction should be
disallowed, in whole or in part, for any Employer contribution to the Plan for any year, or if
any Employer contribution to the Plan is made by reason of a mistake of fact, then there shall be
calculated the excess of the amount contributed over the amount that would have been contributed
had there not occurred a mistake in determining the deduction or a mistake of fact.



7. TRANSFERS INTO STOCK FUND. Effective May 1, 2002, subsection (a) of Section 5.2.1 of the Plan
Statement is modified to read in full as follows:




	 	(a)	 	All Earnings Reduction Contributions credited to a Participant’s Account
after the Effective Date that are to be invested in the Company Stock Fund shall be
initially invested in the Non-ESOP Subfund. All Matching Contributions credited to
a Participant’s Account after the Effective Date and all amounts transferred after
the Effective Date from another Subfund to the Company Stock Fund shall be invested
in the ESOP Subfund.





 


-3-









 










8. SMALL AMOUNT CASH OUTS (Inclusion or Exclusion of Rollover Contributions). Effective January
1, 2002, Section 7.1.1(a) of the Plan Statement is modified to add a final sentence that reads in
full as follows:



The value of a Participant’s Vested Total Account shall be determined by including that portion
of the Account that is attributable to rollover contributions (and earnings allocable thereto)
within the meaning of sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16) of
the Code.



9. MINIMUM REQUIRED DISTRIBUTIONS. Effective January 1, 2003, in accordance with the final and
temporary regulations under section 401(a)(9) of the Code governing minimum required
distributions published on April 17, 2002, Section 7.1.1(b) of the Plan Statement is modified to
read in full as follows:




	 	(b)	 	Exception for Required Distributions. If no application has been timely
received within a reasonable period of time before the date by which distributions
are required to be made pursuant to section 401(a)(9) of the Code or, if earlier,
pursuant to the Plan, then the Total Account shall be distributed automatically in
a lump sum without an application for distribution.






10. WITHDRAWALS FROM ROLLOVER ACCOUNTS. Effective July 1, 2002, Section 7 of the Plan Statement
is modified so that Section 7.2.2 is renumbered as Section 7.2.3, subsequent sections are
renumbered as appropriate, references are renumbered as appropriate, and a new Section 7.2.2 is
added that reads in full as follows:



7.2.2. Withdrawals From Rollover Accounts. A Participant may make withdrawals while employed
from time to time from the Participant’s Rollover Account. To receive such a withdrawal, the
Participant must complete and submit a request for the withdrawal in the form and manner
established by the Benefits Administration Committee. The Benefits Administration Committee may,
but need not, permit such application to be made by telephonic, electronic or similar methods, in
lieu of an application in writing, and shall determine what information shall be required to be
furnished in connection with the Participant’s request in addition to the dollar amount to be
withdrawn. Such withdrawal shall be made in a lump sum payment as soon as administratively
practicable following approval of the request.




	 	(a)	 	Spousal Consent Not Required. Spousal consent shall not be required for
a withdrawal to a married Participant.







	 	(b)	 	Coordination with Section 5.1. If the Rollover Account is invested in
more than one (1) Subfund authorized and established under Section 5.1, the amount
withdrawn shall be charged to each Subfund in the same proportions as the Rollover
Account is invested in each Subfund.





 


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11. SMALL AMOUNT CASH OUTS (Inclusion or Exclusion of Rollover Contributions). Effective January
1, 2002, Section 7.3.1(a) of the Plan Statement is modified to add a final sentence that reads in
full as follows:



The value of a Participant’s Vested Total Account shall be determined by including that portion
of the Account that is attributable to rollover contributions (and earnings allocable thereto)
within the meaning of sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16) of
the Code.



12. MINIMUM REQUIRED DISTRIBUTIONS. Effective January 1, 2003, in accordance with the final and
temporary regulations under section 401(a)(9) of the Code governing minimum required
distributions published on April 17, 2002, Section 7.3.1(b) of the Plan Statement is modified to
read in full as follows:




	 	(b)	 	Exception for Required Distributions. If no application has been timely
received within a reasonable period of time before the date by which distributions
are required to be made pursuant to section 401(a)(9) of the Code or, if earlier,
pursuant to the Plan, then the Total Account shall be distributed automatically in
a lump sum without an application for distribution.






13. MINIMUM REQUIRED DISTRIBUTIONS (Eligible Rollover Distributions). Effective January 1, 2003,
in accordance with the final and temporary regulations under section 401(a)(9) of the Code
governing minimum required distributions published on April 17, 2002, Section 7.5.2(a)(i) of the
Plan Statement is modified to read as follows: “(i) any distribution that is one of a series of
substantially equal installments payable monthly, quarterly or annually over a period of time not
extending beyond the remaining life expectancy of such distributee or pursuant to the applicable
table under section 1.401(a)(9)-9 of the income tax regulations”.



14. LOAN ROLLOVERS. Effective January 1, 2002, the Plan Statement is modified by adding the
following new Section 7.6.11 which shall read in full as follows:



7.6.11 Loan Rollovers. Notwithstanding any of the foregoing provisions of this Section 7.6,
the terms and conditions of any plan loan that was made to a Participant under the tax-qualified
plan of the Participant’s prior employer and that was acquired by the Plan as a result of a
direct rollover following the Employer’s acquisition by merger, asset purchase or otherwise of
all or a portion of a trade or business maintained by the Participant’s prior employer (an
“acquired loan”), shall continue in effect after such rollover, subject to the following
modifications:




	 	(a)	 	any provision requiring accelerated payment of the acquired loan upon
termination of the Participant ’s employment with the prior employer shall be
deemed modified to the extent necessary to prevent such acceleration
from occurring prior to termination of the Participant’s employment with
the Employer and the Affiliates;





 


-5-









 











	 	(b)	 	any payroll deduction authorization for the making of payments on the
acquired loan shall be deemed to apply to the Participant’s pay from the Employer
and any Affiliate; and







	 	(c)	 	the loan rules contained in Section 7.6 will apply to the acquired loan
to the extent that they are not inconsistent with the terms and conditions
otherwise applicable to such loan (as modified by subsections (a) and (b) above).






Participants whose plan loans are to be rolled over to the Plan shall be notified of the
foregoing modifications. If a Participant rolls over a plan loan after receiving such notice, the
Participant shall be deemed to have consented to these modifications. If a payment with respect
to an employee’s acquired loan is received prior to the date on which the employee first executes
an Earnings Reduction Agreement, such payment shall be reinvested in the same manner as the non-
loan portion of the employee’s rollover contribution. (Payments received on or after the date on
which the employee first executes an Earnings Reduction Agreement shall be reinvested in the same
manner as contributions under the Participant’s investment election in effect at the time the
payment is received.)



15. LIMITATION ON ANNUAL ADDITIONS. Effective January 1, 2002, Appendix A to the Plan Statement
is modified by substituting therefore the Appendix A attached to this amendment.



16. CONTINGENT TOP HEAVY APPENDIX. Effective January 1, 2002, Appendix B to the Plan Statement is
modified by substituting therefore the Appendix B attached to this amendment.



17. PIPER EMPLOYEE PARTICIPATION. Effective January 1, 2002, Appendix E
 to the Plan Statement is modified by adding the following new Section 1.11:



1.11 Piper Employee Participation. Notwithstanding anything in Section 2.1.33(a)(vii) to the
contrary, service shall not be excluded from Recognized Employment solely on account of a right to
accrue benefits under the U.S. Bancorp Piper Jaffray Companies Profit Sharing Plan.



18. SAVINGS CLAUSE. Save and except as hereinabove expressly amended, the Plan Statement shall
continue in full force and effect.


 


-6-









 





APPENDIX A




LIMITATION ON ANNUAL ADDITIONS





Incorporating amendments of Code §415(c) enacted by §611(b) and §632(a) of the
Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA; P.L. 107-16;
June 4, 2001) effective for limitation years beginning after December 31, 2001.



SECTION 1




INTRODUCTION




Terms defined in the Plan Statement shall have the same meanings when used in this Appendix. In
 addition, when used in this Appendix, the following terms shall have the following meanings:




1.1. Annual Addition. Annual addition means, with respect to any Participant for a limitation
year, the sum of:




	 	(i)	 	all employer contributions (including
employer contributions of the Participant’s earnings reductions
under section 401(k), section 403(b) and section 408(k) of the Code)
allocable as of a date during such limitation year to the Participant
under all defined contribution plans;







	 	(ii)	 	all forfeitures allocable as of a date
during such limitation year to the Participant under all defined
contribution plans; and







	 	(iii)	 	all Participant contributions made as of a
date during such limitation year to all defined contribution plans.






1.1.1. Specific Inclusions. With regard to a plan which contains a qualified cash or
deferred arrangement or matching contributions or employee contributions, excess contributions
and excess aggregate contributions (whether or not distributed during or after the limitation
year) shall be considered annual additions in the year contributed. Excess deferrals that are not
distributed in accordance with the regulations under section 402(g) of the Code are annual
additions.



1.1.2. Specific Exclusions. The annual addition shall not, however, include any portion of
a Participant’s rollover contributions or any additions to accounts attributable to a plan merger
or a transfer of plan assets or liabilities or any other amounts excludable under law. Excess
deferrals that are distributed in accordance with the regulations under section 402(g) of the
Code are not annual additions.


 


A-1









 





1.1.3. ESOP Rules. In the case of an employee stock ownership plan within the meaning of
section 4975(e)(7) of the Code, annual additions shall not include any dividends or
gains on sale of employer securities held by the employee stock ownership plan (regardless of
whether such dividends or gains are (i) on securities which are allocated to Participants’
accounts or (ii) on securities which are not allocated to Participants’ accounts which, in the
case of dividends used to pay principal on an employee stock ownership plan loan, result in
employer securities being allocated to Participants’ accounts or, in the case of a sale, result
in sale proceeds being allocated to Participants’ accounts). In the case of an employee stock
ownership plan within the meaning of section 4975(e)(7) of the Code under which no more than
one-third (1/3rd) of the employer contributions for a limitation year which are deductible under
section 404(a)(9) of the Code are allocated to highly compensated employees (as defined in
section 414(q) of the Code), annual additions shall not include forfeitures of employer
securities under the employee stock ownership plan if such securities were acquired with the
proceeds of an exempt loan or, if the Employer is not an S corporation as defined in section
1361(a)(1) of the Code, employer contributions to the employee stock ownership plan which are
deductible by the employer under section 404(a)(9)(B) of the Code and charged against the
Participant’s account (i.e., interest payments).



1.2.
Controlled Group Member. Controlled group member means the Employer and each member of a
controlled group of corporations (as defined in section 414(b) of the Code and as modified by
section 415(h) of the Code), all commonly controlled trades or businesses (as defined in section
414(c) of the Code and as modified by section 415(h) of the Code), affiliated service groups (as
defined in section 414(m) of the Code) of which the Employer is a part and other organizations
required to be aggregated for this purpose under section 414(o) of the Code.



1.3. Defined Contribution Plans. Defined contribution plan shall have the meaning assigned to
that term by section 415(k)(1) of the Code. Whenever reference is made to defined contribution
plans in this Appendix, it shall include all such plans maintained by the Employer and all
controlled group members.



1.4. Individual Medical Account. Individual medical account means an account, as defined in
section 415(1)(2) of the Code maintained by the Employer or a controlled group member which
provides an annual addition.



1.5. Limitation Year. Limitation year means the Plan Year.



1.6. Maximum Permissible Addition.



1.6.1. General Rule. Maximum permissible addition (a term that is relevant only with
respect to defined contribution plans) means, for any one (1) limitation year, the lesser of




	 	(i)	 	Forty Thousand Dollars ($40,000), as adjusted
automatically for increases in the cost of living by the Secretary of
the Treasury pursuant to section 415(d) of the Code, or







	 	(ii)	 	one hundred percent (100%) of the
Participant’s § 415 compensation for such limitation year.





 


A-2









 










1.6.2. Medical Benefits. The dollar limitation in Section 1.6.1(i), but not the amount
determined in Section 1.6.1(ii), shall be reduced by the amount of employer
contributions which are allocated to a separate account established for the purpose of providing
medical benefits or life insurance benefits with respect to a key employee (as defined in section
416 of the Code) under a welfare benefit fund or an individual medical account.



1.7.Section 415
Compensation. Section415 compensation (sometimes, “§ 415 compensation”) shall
mean, with respect to any limitation year, the total wages, salaries, fees for professional
services and other amounts received for personal services actually rendered in the course of
employment with the Employer and all controlled group members to the extent that such amounts are
includible in gross income but determined without regard to any rules that limit the remuneration
included in wages based on the nature or location of the employment or the services performed
(such as the exception for agricultural labor in section 3401(a)(2) of the Code). Without regard
to whether it is or is not includible in gross income, subject to other limitations and rules of
this Section, (i) § 415 compensation shall include foreign earned income as defined in section
911(b) of the Code whether or not excludable from gross income under section 911 of the Code, and
(ii) § 415 compensation shall be determined without regard to the exclusions from gross income in
section931 and section933 of the Code. Section415 compensation shall be determined on a cash
basis. Section 415 compensation shall also include any elective deferral as defined in section
402(g)(3) of the Code and any amount which is contributed or deferred by an Employer at the
election of the employee and which is not includible in the gross income of the employee by
reason of section 125, section 132(f) or section 457 of the Code.



1.8. Welfare Benefit Fund. Welfare benefit fund means a fund as defined in section 419(e) of
the Code which provides post-retirement medical benefits allocated to separate accounts for key
employees as defined in section 419A(d)(3).



SECTION 2




DEFINED CONTRIBUTION LIMITATION




Notwithstanding anything to the contrary contained in the Plan Statement, there shall not be
allocated to the account of any Participant under a defined contribution plan for any limitation
year an amount which would cause the annual addition for such Participant to exceed the maximum
permissible addition.


 


A-3









 





SECTION 3




REMEDIAL ACTION




3.1. Abatement. If a Participant’s annual additions for a limitation year would exceed the
maximum permissible addition due to the allocation of forfeitures, a reasonable error in
estimating a Participant’s annual compensation, a reasonable error in determining the amount of
elective deferrals (within the meaning of section 402(g)(3) of the Code) that may be made with
respect to any individual under the limits of section 415 of the Code or under other limited
facts and circumstances that the Commissioner finds justify the availability of the rules in
Treas. Regulation § 1.415-6(b)(6), to the extent necessary to eliminate the excess the following
shall occur in the following sequence.



3.2. Employee After Tax Contributions and Elective Deferrals. The defined contribution plan
shall:




	 	(i)	 	return any unmatched employee contributions
made by the Participant for the limitation year to the Participant
(adjusted for their proportionate share of gains but not losses while
held in the defined contribution plan), and







	 	(ii)	 	distribute unmatched elective deferrals
(within the meaning of section 402(g)(3) of the Code) made for the
limitation year to the Participant (adjusted for their proportionate
share of gains but not losses while held in the defined contribution
plan), and







	 	(iii)	 	return any matched employee contributions
made by the Participant for the limitation year to the Participant
(adjusted for their proportionate share of gains but not losses while
held in the defined contribution plan), and







	 	(iv)	 	distribute matched elective deferrals
(within the meaning of section 402(g)(3) of the Code) made for the
limitation year to the Participant (adjusted for their proportionate
share of gains but not losses while held in the defined contribution
plan).






To the extent matched employee contributions are returned or any matched elective deferrals are
distributed, any matching contribution made with respect thereto shall be forfeited and
reallocated to Participants as provided in the defined contribution plan.


 


A-4









 





3.3. Employer Contributions. If, after taking all the actions contemplated by Section 3.2, an
excess still exists, the defined contribution plan shall dispose of the excess as follows.




	 	(a)	 	Covered. If that Participant is covered by the defined contribution
plan at the end of the limitation year, the Employer shall cause such
excess to be used to reduce employer contributions for the next limitation
year (“second limitation year”) and succeeding limitation years, as
necessary, for that Participant.







	 	(b)	 	Not Covered. If the Participant is not covered by the defined
contribution plan at the end of the limitation year, however, then the excess
amounts must be held unallocated in an “excess account” for the second limitation
year (or succeeding limitation years) and allocated and reallocated in the second
limitation year (or succeeding limitation year) to all the remaining Participants
in the defined contribution plan as if an employer contribution for the second
limitation year (or succeeding limitation year). However, if the allocation or
reallocation of the excess amounts pursuant to the provisions of the defined
contribution plan causes the limitations of this Appendix to be exceeded with
respect to each Participant for the second limitation year (or succeeding
limitation years), then these amounts must be held unallocated in an excess
account. If an excess account is in existence at any time during the second
limitation year (or any succeeding limitation year), all amounts in the excess
account must be allocated and reallocated to Participants’ accounts (subject to the
limitations of this Appendix) as if they were additional employer contributions
before any employer contribution and any Participant contributions which would
constitute annual additions may be made to the defined contribution plan for that
limitation year. Furthermore, the excess amounts must be used to reduce employer
contributions for the second limitation year (and succeeding limitation years, as
necessary) for all of the remaining Participants.







	 	(c)	 	No Distributions. Excess amounts may not be distributed from the
defined contribution plan to Participants or former Participants.






If an excess account is in existence at any time during a limitation year, the gains and losses
and other income attributable to the excess account shall be allocated to such excess account. To
the extent that investment gains or other income or investment losses are allocated to the excess
account, the entire amount allocated to Participants from the excess account, including any such
gains or other income or less any losses, shall be considered as an annual addition. If the
defined contribution plan should be terminated prior to the date any such temporarily held,
unallocated excess would otherwise be allocated to the Accounts of Participants, such excess
shall be allocated as of the date of termination and, if any portion of such excess cannot be
allocated as of the date of termination by reason of the limitations of this Appendix, such
remaining excess shall be returned to the Employer.

 


A-5









 





3.4. Sequence of Plans. Each step of remedial action under Section 3.2 and Section 3.3 as may be
necessary to correct an excess allocation shall be made in all defined contribution plans before
the next step of remedial action is made. Each such step shall be made in the defined
contribution plans in the following sequence:




	 	(i)	 	all profit sharing and stock bonus plans
containing cash or deferred arrangements,







	 	(ii)	 	all money purchase pension plans other than
money purchase pension plans that are part of employee stock
ownership plans,







	 	(iii)	 	all profit sharing and stock bonus plans
other than profit sharing and stock bonus plans containing cash or
deferred arrangements and employee stock ownership plans,

	 
	 	(iv)	 	all employee stock ownership plans.






If an excess allocation occurs in two (2) or more plans in the same category, correction of the
excess allocation shall be made in chronological order as determined by the effective date of
each plan (using the original effective date of the plan) beginning with the most recently
established plan.


 


A-6









 





APPENDIX B




CONTINGENT TOP HEAVY PLAN RULES





Incorporating amendments of Code §416 enacted by §613 of the Economic Growth and
Tax Relief Reconciliation Act of 2001 (EGTRRA; P.L. 107 -16; June 4, 2001)
effective for years beginning after December 31, 2001.



Notwithstanding any of the foregoing provisions of the Plan Statement, if, after applying the
special definitions set forth in Section 1 of this Appendix, this Plan is determined under
Section 2 of this Appendix to be a top heavy plan for a Plan Year, then the special rules set
forth in Section 3 of this Appendix shall apply. For so long as this Plan is not determined to be
a top heavy plan, the special rules in Section 3 of this Appendix shall be inapplicable to this
Plan.



SECTION 1




SPECIAL DEFINITIONS




Terms defined in the Plan Statement shall have the same meanings when used in this Appendix. In
addition, when used in this Appendix, the following terms shall have the following meanings:



1.1. Aggregated Employers. Aggregated employers means the Employer and each other corporation,
partnership or proprietorship which is a “predecessor” to the Employer, or is under “common
control” with the Employer, or is a member of an “affiliated service group” that includes the
Employer, as those terms are defined in section 414(b), (c), (m) or (o) of the Code.



1.2. Aggregation Group. Aggregation group means a grouping of this Plan and:




	 	(a)	 	if any Participant in the Plan is a key employee, each other qualified
pension, profit sharing or stock bonus plan of the aggregated employers in which a
key employee is a Participant (and for this purpose, a key employee shall be
considered a Participant only during periods when he is actually accruing benefits
and not during periods when he has preserved accrued benefits attributable to
periods of participation when he was not a key employee), and







	 	(b)	 	each other qualified pension, profit sharing or stock bonus plan of
the aggregated employers which is required to be taken into account for this Plan
or any plan described in paragraph (a) above to satisfy the qualification
requirements under section 410 or section 401(a)(4) of the Code, and







	 	(c)	 	each other qualified pension, profit sharing or stock bonus plan of
the aggregated employers which is not included in paragraph (a) or (b) above,
but which the Employer elects to include in the aggregation group and
which, when included, would not cause the aggregation group to fail to
satisfy the qualification requirements under section 410 or section
401(a)(4) of the Code.





 


B-1









 










1.3. Compensation. Unless the context clearly requires otherwise, compensation means the wages,
tips and other compensation paid to the Participant by the Employer and reportable in the box
designated “wages, tips, other compensation” on Treasury Form W-2 (or any comparable successor
box or form) for the applicable period but determined without regard to any rules that limit the
remuneration included in wages based on the nature or location of the employment or the services
performed (such as the exception for agricultural labor in section 3401(a)(2) of the Code).
Compensation for this purpose shall include elective contributions made by the Employer on behalf
of the Participant that are not includible in gross income under
sections 125, 132(f), 402(e)(3),
402(h), 403(b), 414(h)(2) and 457 of the Code including elective contributions authorized by the
Participant under a cafeteria plan or any qualified cash or deferred arrangement under section
401(k) of the Code. For the purposes of this Appendix (excluding Section 1.6 of this Appendix),
compensation for a Plan Year shall not exceed the annual compensation limit under section
401(a)(17) of the Code (which is Two Hundred Thousand Dollars ($200,000) for the Plan Year ending
December 31, 2002, as adjusted under the Code for cost-of-living increases).



1.4. Determination Date. Determination date means, for the first (1st) Plan Year of a plan, the
last day of such first (1st) Plan Year, and for each subsequent Plan Year, the last day of the
immediately preceding Plan Year.



1.5. Five Percent Owner. Five percent owner means for each aggregated employer that is a
corporation, any person who owns (or is considered to own within the meaning of the shareholder
attribution rules) more than five percent (5%) of the value of the outstanding stock of the
corporation or stock possessing more than five percent (5%) of the total combined voting power of
the corporation, and, for each aggregated employer that is not a corporation, any person who owns
more than five percent (5%) of the capital interest or the profits interest in such aggregated
employer. For the purposes of determining ownership percentages, each corporation, partnership
and proprietorship otherwise required to be aggregated shall be viewed as a separate entity.



1.6. Key Employee. Key employee means each Participant (whether or not then an employee) who at
any time during the Plan Year is:




	 	(a)	 	an officer of any aggregated employer (excluding persons who have the
title of an officer but not the authority and including persons who have the
authority of an officer but not the title) having an annual compensation from all
aggregated employers for such Plan Year in excess of one hundred thirty thousand
dollars ($130,000) for such Plan Year (adjusted as provided in section
416(i)(1)(A) of the Code), or





 


B-2









 











	 	(b)	 	a five percent owner, or







	 	(c)	 	a one percent owner having an annual compensation from the aggregated
employers of more than One Hundred Fifty Thousand Dollars ($150,000);






provided, however, that no more than fifty (50) employees (or, if lesser, the greater of three of
all the aggregated employers’ employees or ten percent of all the aggregated employers’
employees) shall be treated as officers. For the purposes of determining ownership percentages,
each corporation, partnership and proprietorship otherwise required to be aggregated shall be
viewed as a separate entity. For the purpose of determining compensation, all compensation
received from all aggregated employers shall be taken into account. The term “key employee”
shall include the beneficiaries of a deceased key employee.



1.7. One Percent Owner. One percent owner means, for each aggregated employer that is a
corporation, any person who owns (or is considered to own within the meaning of the shareholder
attribution rules) more than one percent (1%) of the value of the outstanding stock of the
corporation or stock possessing more than one percent (1%) of the total combined voting power of
the corporation, and, for each aggregated employer that is not a corporation, any person who owns
more than one percent (1%) of the capital or the profits interest in such aggregated employer.
For the purposes of determining ownership percentages, each corporation, partnership and
proprietorship otherwise required to be aggregated shall be viewed as a separate entity.



1.8. Shareholder Attribution Rules. Shareholder attribution rules means the rules of section 318
of the Code, (except that subparagraph (C) of section 318(a)(2) of the Code shall be applied by
substituting “5 percent” for “50 percent”) or, if the Employer is not a corporation, the rules
determining ownership in such Employer which shall be set forth in regulations prescribed by the
Secretary of the Treasury.



1.9. Top Heavy Aggregation Group. Top heavy aggregation group means any aggregation group for
which, as of the determination date, the sum of:




	 	(i)	 	the present value of the cumulative accrued
benefits for key employees under all defined benefit plans included in
such aggregation group, and







	 	(ii)	 	the aggregate of the accounts of key employees
under all defined contribution plans included in such aggregation
group,






exceed sixty percent (60%) of a similar sum determined for all employees. In applying the
foregoing, the following rules shall be observed:




	 	(a)	 	For the purpose of determining the present value of the cumulative
accrued benefit for any employee under a defined benefit plan, or the amount of
the account of any employee under a defined contribution plan, such present value
or amount shall be increased by the aggregate
distributions made with respect to such employee under the plan on account
of separation from service, death or disability during the one (1) year
period ending on the determination date and the aggregate distributions
made with respect to such employee under the plan for any other reason
during the five (5) year period ending on the determination date.





 


B-3









 











	 	(b)	 	Any rollover contribution (or similar transfer) initiated by the
employee, made from a plan maintained by one employer to a plan maintained by
another employer and made after December 31, 1983, to a plan shall not be taken
into account with respect to the transferee plan for the purpose of determining
whether such transferee plan is a top heavy plan (or whether any aggregation group
which includes such plan is a top heavy aggregation group). Any rollover
contribution (or similar transfer) not described in the preceding sentence shall
be taken into account with respect to the transferee plan for the purpose of
determining whether such transferee plan is a top heavy plan (or whether any
aggregation group which includes such plan is a top heavy aggregation group).







	 	(c)	 	If any individual is not a key employee with respect to a plan for any
Plan Year, but such individual was a key employee with respect to a plan for any
prior Plan Year, the cumulative accrued benefit of such employee and the account
of such employee shall not be taken into account.







	 	(d)	 	The determination of whether a plan is a top heavy plan shall be made
once for each Plan Year of the plan as of the determination date for that Plan
Year.







	 	(e)	 	In determining the present value of the cumulative accrued benefits of
employees under a defined benefit plan, the determination shall be made as of the
actuarial valuation date last occurring during the twelve (12) months preceding
the determination date and shall be determined on the assumption that the
employees terminated employment on the valuation date except as provided in
section 416 of the Code and the regulations thereunder for the first and second
Plan Years of a defined benefit plan. The accrued benefit of any employee (other
than a key employee) shall be determined under the method which is used for
accrual purposes for all plans of the employer or if there is no method which is
used for accrual purposes under all plans of the employer, as if such benefit
accrued not more rapidly than the slowest accrual rate permitted under section
411(b)(1)(C) of the Code. In determining this present value, the mortality and
interest assumptions shall be those which would be used by the Pension Benefit
Guaranty Corporation in valuing the defined benefit
plan if it terminated on such valuation date. The accrued benefit to be
valued shall be the benefit expressed as a single life annuity.





 


B-4









 











	 	(f)	 	In determining the accounts of employees under a defined contribution
plan, the account values determined as of the most recent asset valuation
occurring within the twelve (12) month period ending on the determination date
shall be used. In addition, amounts required to be contributed under either the
minimum funding standards or the plan’s contribution formula shall be included in
determining the account. In the first year of the plan, contributions made or to
be made as of the determination date shall be included even if such contributions
are not required.







	 	(g)	 	If any individual has not performed any services for any employer
maintaining the plan at any time during the one (1) year period ending on the
determination date, any accrued benefit of the individual under a defined benefit
plan and the account of the individual under a defined contribution plan shall not
be taken into account.







	 	(h)	 	For this purpose, a terminated plan shall be treated like any other
plan and must be aggregated with other plans of the employer if it was maintained
within the last five (5) years ending on the determination date for the Plan Year
in question and would, but for the fact that it terminated, be part of the
aggregation group for such Plan Year.






1.10. Top Heavy Plan. Top heavy plan means a qualified plan under which (as of the
determination date):




	 	(i)	 	if the plan is a defined benefit plan, the
present value of the cumulative accrued benefits for key employees
exceeds sixty percent (60%) of the present value of the cumulative
accrued benefits for all employees, and







	 	(ii)	 	if the plan is a defined contribution plan,
the aggregate of the accounts of key employees exceeds sixty percent
(60%) of the aggregate of all of the accounts of all employees.






In applying the foregoing, the following rules shall be observed:




	 	(a)	 	Each plan of an Employer required to be included in an aggregation
group shall be a top heavy plan if such aggregation group is a top heavy
aggregation group.





 


B-5









 











	 	(b)	 	For the purpose of determining the present value of the cumulative
accrued benefit for any employee under a defined benefit plan, or the
amount of the account of any employee under a defined contribution plan,
such present value or amount shall be increased by the aggregate
distributions made with respect to such employee under the plan on account
of separation from service, death or disability during the one (1) year
period ending on the determination date and the aggregate distributions
made with respect to such employee under the plan for any other reason
during the five (5) year period ending on the determination date.







	 	(c)	 	Any rollover contribution (or similar transfer) initiated by the
employee, made from a plan maintained by one employer to a plan maintained by
another employer and made after December 31, 1983, to a plan shall not be taken
into account with respect to the transferee plan for the purpose of determining
whether such transferee plan is a top heavy plan (or whether any aggregation group
which includes such plan is a top heavy aggregation group). Any rollover
contribution (or similar transfer) not described in the preceding sentence shall
be taken into account with respect to the transferee plan for the purpose of
determining whether such transferee plan is a top heavy plan (or whether any
aggregation group which includes such plan is a top heavy aggregation group).







	 	(d)	 	If any individual is not a key employee with respect to a plan for any
Plan Year, but such individual was a key employee with respect to the plan for any
prior Plan Year, the cumulative accrued benefit of such employee and the account
of such employee shall not be taken into account.







	 	(e)	 	The determination of whether a plan is a top heavy plan shall be made
once for each Plan Year of the plan as of the determination date for that Plan
Year.







	 	(f)	 	In determining the present value of the cumulative accrued benefits of
employees under a defined benefit plan, the determination shall be made as of the
actuarial valuation date last occurring during the twelve (12) months preceding
the determination date and shall be determined on the assumption that the
employees terminated employment on the valuation date except as provided in
section 416 of the Code and the regulations thereunder for the first and second
Plan Years of a defined benefit plan. The accrued benefit of any employee (other
than a key employee) shall be determined under the method which is used for
accrual purposes for all plans of the employer or if there is no method which is
used for accrual purposes under all plans of the employer, as if such benefit
accrued not more rapidly than the slowest accrual rate permitted under section
411(b)(1)(C) of the Code. In determining this present value, the
mortality and interest assumptions shall be those which would be used by
the Pension Benefit Guaranty Corporation in valuing the defined benefit
plan if it terminated on such valuation date. The accrued benefit to be
valued shall be the benefit expressed as a single life annuity.





 


B-6









 











	 	(g)	 	In determining the accounts of employees under a defined contribution
plan, the account values determined as of the most recent asset valuation
occurring within the twelve (12) month period ending on the determination date
shall be used. In addition, amounts required to be contributed under either the
minimum funding standards or the plan’s contribution formula shall be included in
determining the account. In the first year of the plan, contributions made or to
be made as of the determination date shall be included even if such contributions
are not required.







	 	(h)	 	If any individual has not performed any services for any employer
maintaining the plan at any time during the one (1) year period ending on the
determination date, any accrued benefit of the individual under a defined benefit
plan and the account of the individual under a defined contribution plan shall not
be taken into account.







	 	(i)	 	For this purpose, a terminated plan shall be treated like any other
plan and must be aggregated with other plans of the employer if it was maintained
within the last five (5) years ending on the determination date for the Plan Year
in question and would, but for the fact that it terminated, be part of the
aggregation group for such Plan Year.







	 	(j)	 	A plan shall not be a top heavy plan if it consists solely of (i) a cash
or deferred arrangement which meets the requirements of section 401(k)(12) of the
Code, and (ii) matching contributions with respect to which the requirements of
section 401(m)(11) are met. If, but for the preceding sentence, a plan would be
treated as a top heavy plan because it is a member of an aggregation group which is
a top heavy group, contributions under the Plan may be taken into account in
determining whether any other plan in the group meets the requirements of Section
3.3.






SECTION 2




DETERMINATION OF TOP HEAVINESS




Once each Plan Year, as of the determination date for that Plan Year, the administrator of this
Plan shall determine if this Plan is a top heavy plan.


 


B-7









 





SECTION 3




CONTINGENT PROVISIONS




3.1. When Applicable. If this Plan is determined to be a top heavy plan for any Plan Year, the
following provisions shall apply for that Plan Year (and, to the extent hereinafter specified,
for subsequent Plan Years), notwithstanding any provisions to the contrary in the Plan.



3.2. Vesting Requirement.



3.2.1. General Rule. During any Plan Year that the Plan is determined to be a Top Heavy
Plan, then all accounts of all Participants in a defined contribution plan that is a top heavy
plan and the accrued benefits of all Participants in a defined benefit plan that is a top heavy
plan shall be vested and nonforfeitable in accordance with the following schedule if, and to the
extent, that it is more favorable than other provisions of the Plan:



	 	 	 	 	 
	If the Participant Has	 	His Vested	 
	Completed the Following	 	Percentage	 
	Years of Vesting Service:	 	Shall Be:	 
	 
	 	 	 	 
	Less than 2 years
	 	 	0	%
	2 years but less than 3 years
	 	 	20	%
	3 years but less than 4 years
	 	 	40	%
	4 years but less than 5 years
	 	 	60	%
	5 years but less than 6 years
	 	 	80	%
	6 years or more
	 	 	100	%






3.2.2. Subsequent Year. In each subsequent Plan Year that the Plan is determined not to be
a top heavy plan, the other nonforfeitability provisions of the Plan Statement (and not this
section) shall apply in determining the vested and nonforfeitable rights of Participants who do
not have five (5) or more years of Vesting Service (three or more years of Vesting Service for
Participants who have one or more Hours of Service in any Plan Year beginning after December 31,
1988) as of the beginning of such subsequent Plan Year; provided, however, that they shall not be
applied in a manner which would reduce the vested and nonforfeitable percentage of any
Participant.



3.2.3. Cancellation of Benefit Service. If this Plan is a defined benefit plan and if the
Participant’s vested percentage is determined under this Appendix and if a Participant receives a
lump sum distribution of the present value of the vested portion of his accrued benefit, the Plan
shall:




	 	(a)	 	thereafter disregard the Participant’s service with respect to which
he received such distribution in determining his accrued benefit, and





 


B-8









 





	 	(b)	 	permit the Participant who receives a distribution of less than the
present value of his entire accrued benefit to restore this service by
repaying (after returning to employment covered under the Plan) to the
trustee the amount of such distribution together with interest at the
interest rate of five percent (5%) per annum compounded annually (or such
other interest rate as is provided by law for such repayment). If the
distribution was on account of severance from employment such repayment
must be made before the earlier of,







	 	(i)	 	five (5) years after the first date on which
the Participant is subsequently reemployed by the employer, or







	 	(ii)	 	the close of the first period of five (5)
consecutive one-year breaks in service commencing after the
distribution.






If the distribution was on account of any other reason, such repayment must be made within five
(5) years after the date of the distribution.



3.3. Defined Contribution Plan Minimum Benefit Requirement.



3.3.1. General Rule. If this Plan is a defined contribution plan, then for any Plan Year
that this Plan is determined to be a top heavy plan, the Employer shall make a contribution for
allocation to the account of each employee who is a Participant for that Plan Year and who is not
a key employee in an amount (when combined with other Employer contributions and forfeited
accounts allocated to his account, including matching contributions as defined in section
401(m)(4)(A) of the Code) which is at least equal to three percent (3%) of such Participant’s
compensation. (This minimum contribution amount shall be further reduced by all other Employer
contributions to this Plan or any other defined contribution plans.) This contribution shall be
made for each Participant who has not separated from service with the Employer at the end of the
Plan Year (including for this purpose any Participant who is then on temporary layoff or
authorized leave of absence or who, during such Plan Year, was inducted into the Armed Forces of
the United States from employment with the Employer) including, for this purpose, each employee
of the Employer who would have been a Participant if he had: (i) completed one thousand (1,000)
Hours of Service (or the equivalent) during the Plan Year, and (ii) made any mandatory
contributions to the Plan, and (iii) earned compensation in excess of the stated amount required
for participation in the Plan.


 


B-9









 





3.3.2. Special Rule. Subject to the following rules, the percentage referred to in Section
3.3.1 of this Appendix shall not exceed the percentage at which contributions are made (or
required to be made) under this Plan for the Plan Year for that key employee for whom that
percentage is the highest for the Plan Year.




	 	(a)	 	The percentage referred to above shall be determined by dividing the
Employer contributions for such key employee for such Plan Year by his
compensation for such Plan Year.







	 	(b)	 	For the purposes of this Section 3.3, all defined contribution plans
required to be included in an aggregation group shall be treated as one (1) plan.







	 	(c)	 	The exception contained in this Section 3.3.2 shall not apply to (be
available to) this Plan if this Plan is required to be included in an aggregation
group if including this Plan in an aggregation group enables a defined benefit
plan to satisfy the qualification requirements of section 410 or section 401(a)(4)
of the Code.






3.4. Defined Benefit Plan Minimum Benefit Requirement.



3.4.1. General Rule. If this Plan is a defined benefit plan, then for any Plan Year that
the Plan is determined to be a top heavy plan, the accrued benefit for each Participant who is
not a key employee shall not be less than one-twelfth (l/12th) of the applicable percentage of
the Participant’s average compensation for years in the testing period.



3.4.2. Special Rules and Definitions. In applying the general rule of Section 3.4.1 of this
Appendix, the following special rules and definitions shall apply:




	 	(a)	 	The term “applicable percentage” means the lesser of:







	 	(i)	 	two percent (2%) multiplied by the number of
years of service with the Employer, or

	 
	 	(ii)	 	twenty percent (20%).







	 	(b)	 	For the purpose of this Section 3.4, a Participant’s years of service
with the Employer shall be equal to the Participant’s Vesting Service except that
a year of Vesting Service shall not be taken into account if:







	 	(i)	 	the Plan was not a top heavy plan for any Plan
Year ending during such year of Vesting Service, or







	 	(ii)	 	such year of Vesting Service was completed in a
Plan Year beginning before January l, 1984, or







	 	(iii)	 	the service occurs during a Plan Year when the
Plan benefits (within the meaning of section 410(b) of the Code) no key
employee or former key employee.





 


B-10









 











	 	(c)	 	A Participant’s “testing period” shall be the period of five (5)
consecutive years during which the Participant had the greatest compensation from
the Employer; provided, however, that:







	 	(i)	 	the years taken into account shall be properly
adjusted for years not included in a year of service, and







	 	(ii)	 	a year shall not be taken into account if such
year ends in a Plan Year beginning before January l, 1984, or such year
begins after the close of the last year in which the Plan was a top
heavy plan.







	 	(d)	 	An individual shall be considered a Participant for the purpose of
accruing the minimum benefit only if such individual has at least one thousand
(1,000) Hours of Service during a benefit accrual computation period (or
equivalent service determined under Department of Labor regulations). Furthermore,
such individual shall accrue a minimum benefit only for a benefit accrual
computation period in which such individual has one thousand (1,000) Hours of
Service (or equivalent service). An individual shall not fail to accrue the
minimum benefit merely because the individual: (i) was not employed on a specified
date, or (ii) was excluded from participation (or otherwise failed to accrue a
benefit) because the individual’s compensation was less than a stated amount, or
(iii) because the individual failed to make any mandatory contributions.






3.4.3. Accruals Preserved. In years subsequent to the last Plan Year in which this Plan is a
top heavy plan, the other benefit accrual rules of the Plan Statement shall be applied to
determine the accrued benefit of each Participant, except that the application of such other
rules shall not serve to reduce a Participant’s accrued benefit as determined under this Section
3.4.



3.5. Priorities Among Plans. In applying the minimum benefit provisions of this Appendix in any
Plan Year that this Plan is determined to be a top heavy plan, the following rules shall apply:




	 	(a)	 	If an employee participates only in this Plan, the employee shall
receive the minimum benefit applicable to this Plan.







	 	(b)	 	If an employee participates in both a defined benefit plan and a
defined contribution plan and only one (1) of such plans is a top heavy plan for
the Plan Year, the employee shall receive the minimum benefit applicable to the
plan which is a top heavy plan.





 


B-11









 











	 	(c)	 	If an employee participates in both a defined contribution plan and a
defined benefit plan and both are top heavy plans, then the employee, for that
Plan Year, shall receive the defined benefit plan minimum benefit
unless for that Plan Year the employee has received employer contributions
and forfeitures allocated to his account in the defined contribution plan in
an amount which is at least equal to five percent (5%) of his compensation.







	 	(d)	 	If an employee participates in two (2) or more defined contribution
plans which are top heavy plans, then the employee, for that Plan Year, shall
receive the defined contribution plan minimum benefit in that defined contribution
plan which has the earliest original effective date.






3.6. Bargaining Units. The requirements of Section 3.2 through Section 3.5 of this Appendix
shall not apply with respect to any employee included in a unit of employees covered by an
agreement which the Secretary of Labor finds to be a collective bargaining agreement between
employee representatives and one (1) or more employers if there is evidence that retirement
benefits are the subject of good faith bargaining between such employee representatives and such
employer or employers.




 


B-12











 





CERTIFICATION BY

OFFICER OF

U.S. BANCORP




(Adoption of Second Amendment to the

U.S. Bancorp 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President, Human Resources of U.S.
Bancorp, a Delaware corporation, and that, pursuant to authority granted by Section 9.1(a) of the
U.S. Bancorp 401(k) Savings Plan, the Compensation Committee of the Board of Directors approved and
adopted the document entitled “SECOND AMENDMENT OF U.S. BANCORP 401(k) SAVINGS PLAN (2002
Restatement)” on November 18, 2003.




I certify that the document attached is a true and correct copy of the amendment.



	 	 	 	 	 
	Dated:  November 18, 2003 	/s/ Jennie Carlson
 	 
	 	Jennie Carlson 	 
	 	Executive Vice President, Human Resources 	 



 


 









 





	 	 	 	 	 



SECOND AMENDMENT

OF

U.S. BANCORP 401(k) SAVINGS PLAN

(2002 Restatement)





The U.S. Bancorp 401(k) Savings Plan (2002 Restatement) (hereinafter referred to as the “Plan
Statement”) is hereby amended in the following respects:



1. RECOGNIZED COMPENSATION (Excluded Items). Effective October 1, 2003, Section 2.1.32(b) of the
Plan Statement is amended to delete the word “and” before “(ix)”, and to add the following after
the phrase “retention bonuses”: “, and (x) amounts paid under the U. S. Bancorp Incentive Cash
Bonus and Retention Plan.”.



2. SPECIAL RULES (Piper Jaffray). Effective as of December 1, 2003, Appendix E of the Plan
Statement is amended by adding a new Section 1.12 that reads in whole as follows:



1.12. Piper Jaffray Companies (Relating to Sections 4, 4.1.3, 4.3.2, and 7.1.4). Notwithstanding
anything in the Plan Statement to the contrary, the following special rules shall apply with
respect to the spin-off of U.S. Bancorp Piper Jaffray Inc., as provided for in the Separation and
Distribution Agreement between U. S. Bancorp and Piper Jaffray Companies (“Separation Agreement”).
Such spin off is referred to herein as the “Piper Jaffray Spin-off”.




	 	(a)	 	Piper Jaffray Companies Stock Subfund. There shall be created
under the Plan a Piper Jaffray Companies Stock Subfund to receive the shares of
Piper Jaffray Companies common stock issued in connection with the Piper
Jaffray Spin-off. The Piper Jaffray Companies Stock Subfund shall be a frozen
fund. Except for Matching Contributions as authorized under paragraph (c)
below, and the reinvestment of dividends under paragraph (b)(iv) below, no
other contributions to the Plan will be allowed into the Piper Jaffray
Companies Stock Subfund, and Participants may not direct that other assets in
their Total Account be invested in such Subfund.







	 	(b)	 	Voting of Shares in the Piper Jaffray Companies Stock Fund.
The Trustee shall vote shares held in the Piper Jaffray Companies Stock Subfund
as specified below.







	 	(i)	 	Issuance of Proxies. As soon as practicable after notice of any
shareholders’ meeting is received by the Trustee from Piper Jaffray
Companies, the Trustee shall prepare and deliver to each Participant
and Beneficiary of a deceased Participant a form of proxy (and
related materials, all of which shall be the same in form and content
as are issued to shareholders in general) directing the Trustee as to
how it shall vote at such meeting, or any adjournment thereof, the
Participant’s or Beneficiary’s Piper Jaffray Companies
common stock with voting rights held in the Piper Jaffray Stock
Subfund as of the most recent Valuation Date for which a valuation
has been completed.





 


1









 











	 	(ii)	 	Voting of Securities. The Trustee shall vote
all Piper Jaffray Companies common stock with voting rights for which
it has received timely directions from Participants and Beneficiaries,
as they direct. The combined fractional shares of Participants and
Beneficiaries shall be voted to the extent possible to reflect the
directions of the Participants and Beneficiaries with fractional
 shares. The Trustee shall not honor or recognize any proxy given by any
Participant or Beneficiary to any person other than the Trustee. The
directions received by the Trustee from Participants and Beneficiaries
shall be held by the Trustee in confidence and shall not be divulged or
released to any person, including officers or employees of an Employer
or any Affiliate, except as necessary to administer the Plan.







	 	(iii)	 	Nonresponse. The Trustee shall vote any Piper
Jaffray Companies common stock for which it has not received
instructions at least five (5) days prior to the shareholder meeting in
the same proportions as the Piper Jaffray Companies common stock for
which it did receive timely instructions.







	 	(iv)	 	Dividends Reinvested. Dividends (if any) on
Piper Jaffray Companies common stock held in the Piper Jaffray
Companies Stock Subfund shall be allocated to each Participant who has
a portion of his Total Account invested in such Subfund in proportion
to his Piper Jaffray Companies Stock Subfund balance on the applicable
dividend record date, and any such dividends so allocated will be
invested in the Piper Jaffray Companies Stock Subfund.







	 	(c)	 	Last Day Rule With Respect to Matching Contributions for
Employees of Piper Jaffray Companies. Notwithstanding Section 4.3.2 of the Plan
Statement to the contrary, any Participant who, immediately prior to the Piper
Jaffray Spin-off is actively employed by, or is then on an approved leave of
absence from, Piper Jaffray Companies or its subsidiaries shall not be required
to be employed on the last business day of the Plan Year to receive a Matching
Contribution.





 


2









 











	 	(d)	 	Form of Matching Contribution for Employees of Piper Jaffray Companies.
Section 4.1.3 permits Matching Contributions to be paid either in cash or in
common shares of the Employer or of any successor or
in other assets of any character of a value equal to the amount of the
contribution or in any combination of the foregoing ways.







	 	(e)	 	Time of Distribution. Notwithstanding Section 7.1.4 of the
Plan Statement to the contrary, a distribution to employees of the Employer who
become employees of Piper Jaffray Companies at the time of and in connection
with the Piper Jaffray Spin-off shall be delayed until the Employer has
contributed the applicable Matching Contributions for such employees to the
Plan and such contributions have been credited to their Total Accounts.






3. SAVINGS CLAUSE. Except as amended above, the Plan Statement shall continue in full force and
effect.


 


3









 





SUGGESTED RESOLUTIONS

FOR MEETING OF

COMPENSATION COMMITTEE

OF

BOARD OF DIRECTORS

OF

U.S. BANCORP




RESOLVED, That the document entitled “SECOND AMENDMENT OF U.S. BANCORP 401(k) SAVINGS PLAN” is
approved and adopted effective as of the dates provided in the amendment.



RESOLVED FURTHER, That the officers of U.S. Bancorp are authorized and directed to take all
actions necessary or desirable to carry said document into full force and effect.




 














 





WRITTEN ACTION OF OFFICER OF

U.S. BANCORP




(Adoption of Third Amendment to the

U.S. Bank 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President, Human Resources of U.S.
Bancorp, a Delaware corporation, and that, pursuant to authority granted by Section 9.1(a) of the
U.S. Bancorp 401(k) Savings Plan (the U.S. Bank 401(k) Savings Plan as of January 1, 2004), I take the following
actions:



1. Adoption of Third Amendment.



The document entitled “THIRD AMENDMENT OF U.S. BANK 401(k) SAVINGS PLAN (2002 Restatement)” is
approved and adopted.



2. Eligibility Service.



If a person commences employment with an Employer after January 1, 2000 and before January 1,
2002, such employment is described in the limitation on Recognized Employment stated in Section
2.1.33(a)(v) and the Benefits Administration Committee declares such employment to be Recognized
Employment, the person’s pre-acquisition service for the acquired trade or business from the
person’s most recent date of hire prior to such acquisition to the extent not otherwise credited
under this Plan Statement shall be recognized for the purpose of determining such person’s
Eligibility Service unless, in its declaration, the Benefits Administration Committee
specifically provides to the contrary.



3. Non-Qualified Plan Names.



If the name of a U.S. Bancorp sponsored non-qualified plan is changed, effective upon the date of
the name change all references to that non-qualified plan in this plan shall be amended to
reflect the name change.



I certify that the document attached is a true and correct copy of the
amendment.



	 	 	 	 	 
	Dated:  December 31, 2003 	/s/ Jennie Carlson
 	 
	 	Jennie Carlson 	 
	 	Executive Vice President, Human Resources 	 



 


 









 





	 	 	 	 	 



THIRD AMENDMENT

OF

U.S. BANK 401(K) SAVINGS PLAN

(2002 Restatement)





The U.S. Bank 401(k) Savings Plan (2002 Restatement) (hereinafter referred to as the “Plan
Statement”) is hereby amended in the following respects:



1. HISTORY (Horizon Investment and Savings Plan). Effective January 1, 2003, the Plan Statement
is amended by adding a new Section 1.1.3 (with Section 1.1.3 renumbered as Section 1.1.4) that
reads as follows:



1.1.3. Horizon Investment and Savings Plan. Mercantile Bancorporation Inc. established a
profit sharing plan, which was amended and restated effective as of July 1, 1990, and was amended
on numerous occasions thereafter in a plan entitled Mercantile Bancorporation Inc. Profit-Sharing
Plan and Trust. Effective January 1, 1995, the plan was renamed the “Horizon Investment and
Savings Plan” (the “Horizon Plan”). The Horizon Plan was amended and restated effective as of
January 1, 1998. Since then, the Horizon Plan has been amended by a First Amendment (adopted June
28, 2000, but effective June 29, 2000), a Second Amendment (adopted February 26, 2002, but
effective January 1, 1998, January 1, 2000, June 29, 2000, August 1, 2000, January 1, 2002 and
March 1, 2002), and a Third Amendment (adopted December 26, 2002, but effective July 1, 2001,
January 1, 2002, July 1, 2002 and December 31, 2002).



2. HISTORY (Merger). Effective January 1, 2003, the Plan Statement is amended by adding two new
sentences to the end of Section 1.1.4 (formerly Section 1.1.3) that read as follows:



Effective January 1, 2003, the Horizon Plan was merged into the U.S. Bancorp 401(k) Savings Plan,
and the terms of the “U.S. Bancorp 401(k) Savings Plan (2002 Restatement)” apply with respect to
the former participants in the Horizon Plan. Effective January 1, 2004, the Plan’s name was
changed to “U.S. Bank 401(k) Savings Plan” and the name of the Plan Statement was changed to “U.S.
Bank 401(k) Savings Plan (2002 Restatement).”



3. HORIZON INVESTMENT AND SAVINGS PLAN. Effective January 1, 2003, Section 1.2 of the Plan
Statement is amended to read in whole as follows:



Section 1.2. Relation to the Horizon Investment and Savings Plan. Prior to January 1, 2003,
Employees who were eligible to participate in the Horizon Plan maintained by U.S. Bancorp as
successor to Mercantile Bancorporation Inc. were not eligible to participate in the Plan. The
Horizon Plan was merged into the Plan as of January 1, 2003, and those employees who were eligible
to participate in the Horizon Plan became participants in the U.S. Bancorp 401(k) Savings Plan as
of January 1, 2003.


 


1









 





4. PLAN. Effective January 1, 2004, Section 2.1.26 of the Plan Statement is amended by changing
the name of the plan to be “U.S. BANK 401(k) SAVINGS PLAN”. Other references to the plan name
(except those in Section 1) shall also be changed to reflect the change in the name.



5. PLAN STATEMENT. Effective January 1, 2004, Section 2.1.27 of the Plan Statement is amended by
changing the name of the plan statement to be “U.S. BANK 401(k) SAVINGS PLAN (2002 Restatement)”.
Other references to the plan statement (except those in Section 1) shall also be changed to
reflect the change in the name.



6. RECOGNIZED COMPENSATION. Effective January 1, 2004, Sub-Section 2.1.32(h) of the Plan
Statement is amended to re ad in whole as follow:




	 	(h)	 	Annual Maximum. A Participant’s Recognized Compensation shall be limited as
required by applicable law.






7. ELIGIBILITY (General Eligibility Rule). Effective January 1, 2004, Section 3.1 of the Plan
Statement is amended to reads in whole as follows:



3.1. General Eligibility Rule.



3.1.1. Participation and Eligibility Continued After Effective Date. An employee who was a
participant in a Predecessor Plan immediately prior to the Effective Date and who is in Recognized
Employment on the Effective Date shall be a Participant on the Effective Date, and eligible to
make Earnings Reduction Contributions and to receive Employer Matching Contributions.



3.1.2. Participation and Eligibility to Make Earning Reduction Contributions.




	 	(a)	 	Eligibility for Employees Regularly Scheduled 20 Hours a Week or More. If an
employee is then employed in Recognized Employment and is regularly scheduled to work
at least 20 hours per week, the employee shall become a Participant on the first day
of the month following the month in which the employee will have completed three (3)
months of continuous service; provided, however, that if the employee’s first Hour of
Service occurred on the first day of a month and the employee completed three (3)
months of continuous service, the employee shall become a Participant on the first day
of the second month following the month in which the employee completes three (3)
months of continuous service (subject to being in Recognized Employment on that day).
If the employee is not then employed in Recognized Employment, the employee shall not
become a Participant until the first day of the month following the month in which the
employee enters Recognized Employment.





 


2









 











	 	(b)	 	Default Eligibility Rule. Except as provided in Section 3.1.2(a), if an
employee is employed in Recognized Employment, the employee shall
become a Participant on the first day of the month following the month in
which the employee will have completed one (1) year of Eligibility Service;
provided, however, that if the employee’s first Hour of Service occurred on
the first day of a month and the employee completed a year of Eligibility
Service in his or her first computation period, the employee shall become a
Participant on the first day of the second month following the month in
which the employee completes one (1) year of Eligibility Service (subject to
being in Recognized Employment on that day). If the employee is not then
employed in Recognized Employment, the employee shall not become a
Participant until the first day of the month following the month in which
the employee enters Recognized Employment.






3.1.3. Eligibility to Receive Employer Matching Contributions. On and after the Effective
Date, if an employee is then a Participant and is making Earnings Reduction Contributions, the
employee shall become eligible to receive Employer Matching Contributions on the first day of the
month following the month in which the employee will have completed one (1) year of Eligibility
Service; provided, however, that if the employee’s first Hour of Service occurred on the first day
of a month and the employee completed a year of Eligibility Service in his or her first
computation period, the employee shall become eligible to receive Employer Matching Contributions
on the first day of the second month following the month in which the employee completes one (1)
year of Eligibility Service (subject to being in Recognized Employment on that day). If the
employee is not then employed in Recognized Employment, the employee shall not become a
Participant until the first day of the month following the month in which the employee enters
Recognized Employment.



8. ELIGIBILITY (Former Participants). Effective January 1, 2004, Section 3.2 of the Plan
Statement is amended to reads in whole as follows:



3.2. Special Rule for Former Participants.



3.2.1. Participation and Eligibility to Make Earning Reduction Contributions. A Participant
whose employment with the Employer terminates and who subsequently is reemployed by the Employer
shall be eligible to resume Earnings Reduction Contributions no later than the first day of the
month following the month in which the Participant returns to Recognized Employment.



3.2.2. Eligibility to Receive Employer Matching Contributions. If a Participant whose
employment with the Employer terminates and who subsequently is reemployed by the Employer
previously was eligible to receive Employer Matching Contributions such Participant shall be
eligible to receive Employer Matching Contributions when the Participant is eligible to resume
Earnings Reduction Contributions. If a Participant whose employment with the Employer terminates
and who subsequently is reemployed by the Employer previously was not eligible to receive Employer
Matching Contributions, then the Participant must satisfy the eligibility requirements in order to
receive Employer Matching Contributions.


 


3









 





9. ESTABLISHING COMMINGLED SUBFUNDS. Effective January 1, 2002, Section 5.1.1 the Plan Statement
is amended to read in whole as follows:



5.1.1. Establishing Commingled Subfunds. The Company may direct the Trustee to divide the
Fund into two (2) or more Subfunds, which shall serve as vehicles for the investment of
Participants’ Accounts. The Company shall select the Subfunds and shall determine whether the
Subfunds shall be managed by the Trustee or by one or more Investment Managers. The Company
shall determine, with the advice of the Trustee or such Investment Manager or Managers, the
general investment characteristics and objectives of each Subfund. The Trustee or Investment
Manager, as the case may be, shall have complete investment discretion over each Subfund assigned
to it, subject only to the general investment characteristics and objectives established for the
particular Subfund. The Company may delegate its authority with respect to the Subfunds to the
Compensation Committee.



10. ROLLOVERS (Loans). Effective December 1, 2003, Sub -Section 7.5.2(a) of the Plan Statement is
amended by adding a new paragraph to the end of the Sub-Section that reads as follows:



In the case of employees whose Recognized Employment ended as a result of the Employer’s
disposition or spin-off of all or a portion of a trade or business, an eligible rollover
distribution may include promissory notes for loans made to the employee under the Plan that are
to be rolled over to another tax-qualified plan, provided that the Benefits
Administration Committee approves of the rollover and that the tax-qualified plan to which the
promissory note or loan is being rolled over accepts the promissory note or loan.



11. LOANS (Sarbanes-Oxley). Effective August 1, 2002, Section 7.6 of the Plan Statement is
clarified by adding a new Section 7.6.6(o) that reads as follows:




	 	(o)	 	Prohibition on Loans to Executive Officers and Directors. Until such date as
the Securities and Exchange Commission issues guidance permitting loans to executive
officers and directors, if a Participant is an executive officer or director, then as
permitted under Department of Labor’s Field Assistance Bulletin 2003-1, the
Participant shall not be eligible for a loan.






12. LOAN ROLLOVERS (Into the Plan). Effective January 1, 2002, the Plan Statement is amended by
changing the title of Section 7.6.11 to “Loan Rollovers Into The Plan”.


 


4









 





13. LOANS ROLLOVERS (Out of the Plan). Effective December 1, 2003, the Plan Statement is amended
by adding a new Section 7.6.12 that reads as follows:



7.6.12. Loan Rollovers Out of The Plan. Notwithstanding any of the foregoing provisions of
this Section 7.6, the terms and conditions of any plan loan that was made under the Plan to
employees whose Recognized Employment ended as a result of the Employer’s disposition or
spin-off of all or a portion of a trade or business, and for whom the Benefits Administration
Committee has permitted the plan loan to be rolled over to another tax-qualified plan, shall not
be subject to the foregoing provisions:




	 	(a)	 	Section 7.6.6(d), except that employees shall be responsible for making
monthly payments on the loan on an after-tax basis until the loan is rolled over into
another tax-qualified retirement plan;







	 	(b)	 	Section 7.6.6(f), except to the extent either (i) the tax-qualified retirement
plan which is to receive the plan loan declines to take the plan loan, (ii) an
employee fails to authorize the roll over, or (iii) the roll over does not occur
within six months of an employee’s termination of employment; and






An employee that elects to roll over a loan must roll over the entire amount of all outstanding
loans.



14. FIDUCIARY MATTERS. Effective January 1, 2002, as the language in Sections 10.8 and 10.9
covering fiduciary duties and prohibited transactions is merely a restatement of the language
found in the Employee Retirement Income Security Act of 1974, those Sections are deleted (with
Section 10.10 renumbered as Section 10.8).



15. BENEFITS ADMINISTRATION COMMITTEE (Appointment and Removal). Effective January 1, 2002,
Section 12.2.1 of the Plan Statement is amended to add two sentences to the end of the Section
that read as follows:



The Benefits Administration Committee may consist of one or more members. If the Chief Executive
Officer does not appoint a Benefits Administration Committee or the Benefits Administration
Committee has no members, the Benefits Administration Committee shall consist of the Executive
Vice President of Human Resources and such individuals as designated by the Executive Vice
President of Human Resources (or similar officer).



16. ADMINISTRATIVE EXPENSES (Paying Expenses With Plan Assets). Effective January 1, 2003,
Section 12.9 of the Plan Statement is clarified to read in whole as follows:



12.9 Administrative Expenses. The reasonable expenses of administering the Plan shall be payable
out of the Fund except to the extent that the Employer, in its discretion, directly pays the
expenses. The Benefits Administration Committee, acting in its fiduciary capacity, shall
determine the appropriate allocation of such expenses among the Accounts in the Plan. The Fund
may reimburse the Employer for a reasonable expense incurred in administering the Plan paid by the
Employer if, at the time the Employer paid the expense, the Employer intended to
have the Fund reimburse the Employer for the expense. The Fund may pay the Employer for the
reasonable expenses of administering the Plan that the Employer incurs.


 


5









 





17. REVERSION OF FUND. Effective January 1, 2003, Section 13.2 of the Plan Statement is clarified
to read in whole as follows:



13.2. Reversion of Fund Prohibited. The Fund from time to time hereunder shall at all times be a
trust fund separate and apart from the assets of the Employer, and no part thereof shall be or
become available to the Employer or to creditors of the Employer under any circumstances other
than those specified in this Plan Statement. It shall be impossible for any part of the corpus or
income of the Fund to be used for, or diverted to, purposes other than for the exclusive benefit
of Participants and Beneficiaries (except as herein provided).



18. PARTICIPATING EMPLOYERS. Effective as of December 31, 2003, Schedule I of the Plan Statement
shall be amended to delete U.S. Bancorp Piper Jaffray Inc. as a participating employer. Effective
as of January 1, 2004, Schedule I of the Plan Statement is replaced with the attached Schedule I.



19. SPECIAL RULES (Participation Due to Acquisition). Effective January 1, 2002, Appendix E of
the Plan Statement is amended by deleting Section 1.10 (with subsequent sections and cross
references renumbered as appropriate). This deletion shall not affect Eligibility Service of the
Leader Mortgage participants.



20. SAVINGS CLAUSE. Except as amended above, the Plan Statement shall continue in full force and
effect.


 


6









 





SCHEDULE I




PARTICIPATING EMPLOYERS

(As of January 1, 2004)




	 	 	 	 	 
	CC Management Inc.
	 	 	36-4477930	 
	First Security Investor Reporting
	 	 	36-3900357	 
	Housing Capital Company
	 	 	94-3206669	 
	LADCO Financial Group
	 	 	95-3433174	 
	Lyon Financial Services Inc.
	 	 	41-1400571	 
	Nova Information Systems
	 	 	58-1916822	 
	Quasar Dist. LLC
	 	 	39-1982827	 
	U.S. Bancorp Asset Management Inc.
	 	 	41-2003732	 
	U.S. Bancorp Card Services Inc.
	 	 	41-1558798	 
	U.S. Bancorp Consumer Finance of Kentucky
	 	 	61-0902130	 
	U.S. Bancorp Equipment Finance Inc.
	 	 	93-0594454	 
	U.S. Bancorp Fund Services LLC
	 	 	39-1939072	 
	U.S. Bancorp Insurance Services LLC
	 	 	39-1914078	 
	U.S. Bancorp Investments Inc.
	 	 	41-1233380	 
	U.S. Bancorp Licensing
	 	 	41-1970658	 
	U.S. Bancorp Oliver Allen Technology Leasing
	 	 	94-2234252	 
	U.S. Bancorp Service Providers, LLC
	 	 	39-2019998	 
	U.S. Bank National Association
	 	 	31-0841368	 
	U.S. Bank National Association ND
	 	 	41-1881896	 
	U.S. Bank National Association SD
	 	 	41-1899865	 
	U.S. Bank Trust National Association
	 	 	41-1973763	 
	Voyager Fleet Systems Inc.
	 	 	76-0476053	 







 


SI-1











 





WRITTEN ACTION OF

OFFICER OF

U.S. BANCORP




(Adoption of Fourth Amendment to the

U.S. Bank 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President, Human Resources of U.S.
Bancorp, a Delaware corporation, and that, pursuant to authority granted by Section 9.1(a) of the
U.S. Bank 401(k) Savings Plan, I take the following actions:



The document entitled “FOURTH AMENDMENT OF U.S. BANK 401(k) SAVINGS PLAN
(2002 Restatement)” is approved and adopted.



I certify that the document attached is a true and correct copy of the amendment.



	 	 	 	 	 
	Dated:  November 8, 2004 	/s/ Jennie Carlson
 	 
	 	Jennie Carlson 	 
	 	Executive Vice President, Human Resources 	 



 


 









 






FOURTH AMENDMENT

OF

U.S. BANK 401(K) SAVINGS PLAN

(2002 Restatement)





The U.S. Bank 401(k) Savings Plan (2002 Restatement) (hereinafter referred to as the
“Plan Statement”) is hereby amended in the following respects:



1. TRADING RESTRICTIONS. Effective July 1, 2004, the Plan Statement is amended by adding a new
Section 5.6 that read as follows:



5.6. Trading Restrictions.



5.6.1. Subfund Restrictions. To the extent a Subfund imposes a trading restriction on
investors in the Subfund that temporarily restricts for a period of more than three (3) business
days the ability of a Participant, Beneficiary, or Alternate Payee to direct or diversify
assets in an Account, to obtain a loan from the Plan, or to obtain a distribution from the Plan,
such a trading restriction shall be incorporated into the Plan. Such a trading restriction shall
apply to each Participant, Beneficiary, and Alternate Payee invested in the Subfund.



5.6.2. Committee Restrictions. In addition to those trading restrictions that apply and may
be considered imposed by a Subfund or by applicable law, the Benefits Administration Committee
shall have the power and authority to impose trading restrictions whether generally or
individually with respect to each Subfund, Participant, Beneficiary, and Alternate Payee.



2. DISTRIBUTION OF SMALL AMOUNTS. Effective January 1, 2005, Sub- section 7.1.1(c) of the Plan
Statement is amended to read as follows:




	 	(c)	 	Rollover of Small Amounts. If a distribution of a Participant’s Total
Account exceeds one thousand dollars ($1,000) but does not exceed five thousand
dollars ($5,000) and the Participant does not elect to roll over the distribution
or receive the distribution directly, the Benefits Administration Committee shall
cause the Trustee to transfer the distribution to an individual retirement account
or annuity described in section 408(a) or 408(b) of the Code. If a distribution of
a Participant’s Total Account does not exceed one thousand dollars ($1,000) and the
Participant does not elect to roll over the distribution or receive the
distribution directly, the Benefits Ad ministration Committee may cause the Trustee
to transfer the distribution to an individual retirement account or annuity
described in section 408(a) or 408(b) of the Code or may distribute the amount in
another manner determined by the Benefits Administration Committee.





 


1









 










3. DISTRIBUTION OF SMALL AMOUNTS. Effective January 1, 2003, Sub-section 7.6.6(a) of the Plan
Statement is amended to read as follows:




	 	(a)	 	Loan Amount. Loans will not be made in a principal amount less than one
thousand dollars ($1,000) nor in increments of less than one dollar ($1).






4. SCHEDULE II (Recognized Employment of United States Citizens Outside the United States).
Effective October 1, 2004, the Plan Statement is amended by adding the attached Schedule II.



5. SAVINGS CLAUSE. Except as amended above, the Plan Statement shall continue in full force and
effect.


 


2









 





SCHEDULE II




RECOGNIZED EMPLOYMENT OF

UNITED STATES CITIZENS OUTSIDE THE UNITED STATES

(As of October 1, 2004)




Nova Information Systems



For United States citizens and United States resident aliens who are (i) employees of Nova
Information Systems, (ii) paid through Nova Information Systems on U.S. Bancorp’s United States
payroll, and (iii) temporarily assigned to work outside the United States (generally for a period
not to exceed five (5) years or as otherwise determined by the Benefits Administration
Committee), service outside the United States on and after October 1, 2004 shall constitute
Recognized Employment. To the extent Nova Information Systems provides compensation to such
employees through U.S. Bancorp’s United States payroll, the compensation shall be considered to
be Recognized Compensation, subject to the rules and restrictions of that definition. The
compensation received by such employees under a foreign (non-U.S.) payroll or from a foreign
affiliate of Nova Information Systems or an Employer shall not constitute compensation under the
definition of Recognized Compensation.


 


SII-1









 





WRITTEN ACTION OF

OFFICER OF

U.S. BANCORP




(Adoption of Fifth Amendment to the

U.S. Bank 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President, Human Resources of U.S.
Bancorp, a Delaware corporation, and that, pursuant to authority granted by Section 9.1(a) of the
U.S. Bank 401(k) Savings Plan, I take the following actions:



1. Adoption of Fifth Amendment.



The document entitled “FIFTH AMENDMENT OF U.S. BANK 401(k) SAVINGS PLAN (2002
Restatement)” is approved and adopted.



2. Enrollment Transition Rules.



The following employees employed in Recognized Employment on June 30, 2005 shall be eligible to
make Earnings Reduction Contributions effective as of July 1, 2005:



(i) employees hired on or after April 1, 2005 through June 30, 2005, and



(ii) employees regularly scheduled to work less than 20 hours per week hired on or before
June 30, 2005.



If such employees enter into an Earnings Reduction Agreement, as provided in Section 3.3 of the
Plan Statement, then such employees shall become Participants.



I certify that the document attached is a true and correct copy of the amendment.



	 	 	 	 	 
	Dated: June 29, 2005 	/s/ Jennie Carlson
 	 
	 	Jennie Carlson 	 
	 	Executive Vice President, Human Resources 	 



 


 









 





	 	 	 	 	 



FIFTH AMENDMENT

OF

U.S. BANK 401(k) SAVINGS PLAN

(2002 Restatement)





The U.S. Bank 401(k) Savings Plan (2002 Restatement) (hereinafter referred to as the “Plan
Statement”) is hereby amended in the following respects:



1. ENROLLMENT DATE. Effective as of July 1, 2005, Section 2.1.14 of the Plan Statement is amended
to read as follows:



2.1.14. Enrollment Date — the first day of the full payroll period occurring as soon as
administratively practicable following an employee’s date of hire (generally, the first day of
the first full payroll period following an employee’s date of hire).



2. PARTICIPATION AND ELIGIBILITY TO MAKE EARNING REDUCTION CONTRIBUTIONS. Effective for employees
hired on or after July 1, 2005, Section 3.1.2 of the Plan Statement is amended to read as
follows:



3.1.2. Participation and Eligibility to Make Earning Reduction Contributions. Each employee
who is hired or re-hired into Recognized Employment shall become a Participant automatically
enrolled as of the next Enrollment Date. If the employee is not initially hired or re-hired into
Recognized Employment, the employee shall not become a Participant until the first Enrollment
Date following the date on which the employee enters Recognized Employment.



3. PARTICIPATION AND ELIGIBILITY TO MAKE EARNING REDUCTION CONTRIBUTIONS. Effective for
employees hired on or after July 1, 2005, Section 3.2 of the Plan Statement is amended to read as
follows:



3.2. Special Rule for Former Participants — Eligibility to Receive Employer Matching
Contributions. If a Participant eligible to receive Employer Matching Contributions terminates
employment with the Employer and is subsequently reemployed by the Employer, then such employee
shall be eligible to receive Employer Matching Contributions as of that Enrollment Date. If a
Participant not eligible to receive Employer Matching Contributions terminates employment with
the Employer and is subsequently reemployed by the Employer, then such employee must satisfy the
eligibility requirements of Section 3.1.3 in order to receive Employer Matching Contributions.

 


 









 





4. ENROLLMENT. Effective for employees hired on or after July 1, 2005, Section 3.3 of the Plan
Statement is amended to read as follows:



3.3. Enrollment. An employee who is employed in Recognized Employment shall be automatically
enrolled to become a Participant unless the employee (i) elects not to be automatically enrolled,
and (ii) does not enter into an Earnings Reduction Agreement. If an employee declines to enroll
when first eligible to do so, the employee may enroll as of any subsequent Enrollment Date by
completing an Earnings Reduction Agreement and delivering it to the Benefits Administration
Committee prior to that Enrollment Date. The Benefits Administration Committee may, but need not,
permit such enrollment to be made by telephonic, electronic or similar methods, in lieu of an
enrollment in writing, and shall determine what information shall be required to be furnished in
connection with the Participant’s enrollment.



5. EARNINGS REDUCTION — AUTOMATIC ENROLLMENT. Effective July 1, 2005, Section 4.2.1 of the Plan
Statement is amended so that Section 4.2.1 is renumbered as Section 4.2.2, subsequent sections
are renumbered as appropriate, references are renumbered as appropriate, and a new Section 4.2.1
is added that reads as follows:



4.2.1. Earnings Reduction — Automatic Enrollment. Each employee who becomes a Participant
shall be automatically enrolled in the Plan with an Earnings Reduction Agreement of two percent
(2%) of the amount of Recognized Compensation which otherwise would be paid to the Participant by
the Employer each payday, and for equal amounts to be contributed by the Employer to the Plan
(“Earnings Reduction Contributions”). An employee may terminate, increase or decrease this
Earnings Reduction Agreement as provided in this Section prior to and after this automatic
enrollment becoming effective. The Benefits Administration Committee may from time to time
establish rules amending the automatic enrollment features of the Plan. The automatic reduction
shall be made by the Employer from the Participant’s Recognized Compensation each payday until
terminated, increased or decreased by the Participant. Such Earnings Reduction Contributions and
any elective contributions made under any other plans of the Employer and Affiliates for a
taxable year of a Participant, however, shall not exceed the limit in effect for such taxable
year under Code section 402(g).



6. EARNINGS REDUCTION AGREEMENTS. Effective January 1, 2005, Section 4.2.1 (Section 4.2.2 as of
July 1, 2005) of the Plan Statement is amended by adding a sentence to the end of the Section
that reads as follows:



The Benefits Administration Committee may impose at any time restrictions on the percent of the
amount of Recognized Compensation that a Highly Compensated Employee may contribute, including
but not limited to reducing the percent of the amount elected by a Highly Compensated Employee
under an Earnings Reduction Agreement.



7. MATCHING CONTRIBUTIONS. Effective January 1, 2004, Section 4.6.3(d) of the Plan Statement
shall be amended so that the term “matching contributions” is amended to read as “Matching
Contributions”, and Section 4.6.4 of the Plan Statement
shall be amended so that the term “employer matching contributions” is amended to read as
“Employer Matching Contributions”.


 


-2-









 





8. AMOUNT AND ELIGIBILITY. Effective January 1, 2004, Section 2.3.1 of Appendix D of the Plan
Statement is amended such that (i) the phrase “for whom some contribution was made” is amended to
read “who were eligible to make a contribution”, and (ii) the phrase “twenty percent (20%)” in
the second to last sentence is amended to read as the phrase “one hundred percent (100%)”.



9. AMOUNT AND ELIGIBILITY. Effective January 1, 2004, Section 3.3.1 of Appendix D of the Plan
Statement is amended such that (i) the word “matching” in the first sentence is deleted, (ii) the
word “entitled” is amended to read “eligible”, (iii) the second sentence is amended to insert
“(without regard as to whether the Participant is making Earnings Reduction Contributions or
employed on the last day of the Plan Year)” after the phrase “Employer matching contribution”,
and (iv) the word “matching” in the final sentence is deleted.



10. CREDITING TO ACCOUNT. Effective January 1, 2004, Section 3.3.2 of Appendix D of the Plan
Statement is amended such that the first use of the word “matching” is deleted.



11. 401(k), 401(m) & 402(g) COMPLIANCE. Effective January 1, 2006, Appendix D to the Plan
Statement is amended by substituting the Appendix D attached to this amendment.



12. SAVINGS CLAUSE. Except as amended above, the Plan Statement shall continue in full force and
effect.


 


-3-









 





APPENDIX D




401(k), 401(m) & 402(g) COMPLIANCE




Introduction. This Appendix D contains rules for complying with the nondiscrimination
provisions of sections 401(k) and 401(m) of the Code and the limitations imposed under section
402(g) of the Code.



Priority. Determinations under this Appendix shall be made in the following order:




	 	(1)	 	Excess deferrals under Section 1,

	 
	 	(2)	 	Excess contributions under Section 2,

	 
	 	(3)	 	Excess aggregate contributions under Section 3.






The amount of excess contributions shall be reduced by excess deferrals previously distributed to
such Participant for the Participant’s taxable year ending with or within such Plan Year.



SECTION 1




SECTION 402(g) COMPLIANCE




1.1. Excess Deferrals.



1.1.1. In General. A Participant may attribute to this Plan any excess deferrals made
during a taxable year of the Participant by notifying the Committee in writing not later than the
March 1 following such taxable year of the amount of the excess deferral to be assigned to the
Plan. A Participant shall be deemed to have notified the Plan of excess deferrals to the extent
the Participant has excess deferrals for the taxable year calculated by taking into account only
the amount of elective contributions allocated to the Participant’s Earnings Reduction Account
and to any other plan of the Employer and Affiliates. Notwithstanding any other provision of the
Plan Statement, a Participant’s excess deferrals, plus any income and minus any loss allocable
thereto, shall be distributed to the Participant no later than the first April 15 following the
close of the Participant’s taxable year.



1.1.2. Definitions. For purposes of this Appendix, excess deferrals shall mean the amount
of elective contributions allocated to the Participant’s Earnings Reduction Account for a
Participant’s taxable year and which the Participant or the Employer, where applicable, allocates
to this Plan pursuant to the claim procedure described below.


 


D-1









 





1.1.3. Claims. The Participant’s claim shall be in writing; shall be submitted to the
Committee not later than March 1 with respect to the immediately preceding taxable year; shall
specify the amount of the Participant’s excess deferrals for the preceding taxable year; and
shall be accompanied by the Participant’s written statement that if such amounts are not
distributed, such excess deferrals, when added to amounts deferred under other plans or
arrangements described in sections 401(k), 408(k) or 403(b) of the Code, will exceed the limit
imposed on the Participant by section 402(g) of the Code for the taxable year in which the
deferral occurred. The Employer shall notify the Plan on behalf of the Participant where the
excess deferrals occur in the Plan or the combined plans of the Employer and Affiliates.



1.1.4. Determination of Income or Loss. The excess deferrals shall be adjusted for income
or loss. Unless the Committee and the Trustee agree otherwise in writing, the income or loss
allocable to excess deferrals shall be equal to the sum of:




	 	(a)	 	Income or Loss for Year of Deferral. The income or loss allocable to
the Participant’s elective contributions for the Plan Year ending within such
preceding taxable year by a fraction, the numerator of which is the excess
deferrals on behalf of the Participant for such preceding taxable year and the
denominator of which is the Participant’s Earnings Reduction Account balance
attributable to elective contributions on the Valuation Date coincident with or
immediately before the last day of such preceding taxable year.







	 	(b)	 	Income or Loss for Gap Period. Ten percent (10%) of the income or loss
allocable to the distributable excess deferrals for the applicable taxable year (as
determined in (a) above) multiplied by the number of whole calendar months that
have elapsed since the end of such taxable year including the month of distribution
if distribution occurs after the fifteenth (15th) of such month.






1.1.5. Accounting for Excess Deferrals. Excess deferrals shall be distributed from the
Participant’s Earnings Reduction Account.



1.1.6. Orphaned Matching Contributions. If excess deferrals are distributed pursuant to
this Section 1.1, applicable Matching Contributions under Sections 4.3 and 4.4 of the Plan
Statement shall be treated as forfeitures and reallocated as if such forfeitures were Employer
Matching Contributions under Section 4.3 of the Plan Statement made for those Participants who
were entitled to receive an Employer Matching Contribution for that Plan Year.


 


D-2









 





SECTION 2




SECTION 401(k) COMPLIANCE




2.1. Section 401(k) Compliance.



2.1.1. Special Definitions. For purposes of this Section 2, the following special
definitions shall apply:




	 	(a)	 	An eligible employee means an individual who is entitled to provide an
Earnings Reduction Agreement for all or a part of the Plan Year (whether or not the
individual does so). If, for any Plan Year, the individuals who have not satisfied
the minimum age and service requirements specified in section 410(a)(1) of the Code
(i.e., have not completed one (1) year of service and attained age twenty-one (21)
years), would satisfy the requirements of section 410(b)(1) (i.e., the “ratio
percentage” or “average benefit percentage” coverage test) if tested separately
from other eligible employees, then for that Plan Year, the individuals who have
not satisfied the minimum age and service requirements with respect to that Plan
Year may, at the election of the Committee, be entirely excluded from consideration
in determining who is an eligible employee. Alternatively, the Committee may, if it
so elects, exclude from consideration in determining who is an eligible employee
only those individuals who have not satisfied the minimum age and service
requirements specified in section 410(a)(1) of the Code and are not Highly
Compensated Employees with respect to that Plan Year.







	 	(b)	 	An eligible Highly Compensated Employee means an eligible employee who
is a Highly Compensated Employee.







	 	(c)	 	An eligible Nonhighly Compensated Employee means an eligible employee
who is not a Highly Compensated Employee.







	 	(d)	 	Deferral percentage means the ratio (calculated separately for each
eligible employee) of:







	 	(i)	 	the total amount, for the Plan Year, of
Employer contributions credited to the eligible employee’s Earnings
Reduction Account excluding:







	 	(A)	 	any catch-up contributions,





 


D-3









 





	 	(B)	 	the excess deferrals, as
defined in Section 1 of this Appendix, of any eligible
Nonhighly Compensated Employee, and

	 
	 	(C)	 	any Employer contributions to
the Earnings Reduction Account used in determining the
contribution percentage in Section 3.1.1(d)(i),







and including:




	 	(A)	 	the excess deferrals, as
defined in Section 1 of this Appendix, of any eligible Highly
Compensated Employee but only to the extent such excess
deferrals are attributable to this Plan (or any other plan of
the Employer and all Affiliates), and







	 	(B)	 	if the Committee elects, all
or a portion of the amount of Employer contributions credited
to the eligible employee’s Matching Contribution Account that
are not used in determining the contribution percentage in
Section 3.1.1(d)(i), provided such Employer matching
contributions are fully (100%) vested and not available for
in-service distribution prior to the Participant’s attainment
of age 59-1/2, whether for hardship or otherwise, to







	 	(ii)	 	the eligible employee’s compensation, as
defined below, for the portion of such Plan Year that the employee is
an eligible employee.







For this purpose, Employer contributions will be considered made in the
Plan Year if they are allocated as of a date during such Plan Year and are
delivered to the Trustee within twelve (12) months after the end of such
Plan Year.




	 	(e)	 	Compensation means compensation for services performed for the Employer
defined as “§ 415 compensation” in Appendix A to this Plan Statement.
Notwithstanding the definition of “§ 415 compensation” in Appendix A to this Plan
Statement compensation shall always be determined on a cash (and not on an accrual)
basis and compensation shall be determined on a Plan Year basis (which is not
necessarily the same as the limitation year). An eligible employee’s compensation
for a Plan Year shall not exceed the annual compensation limit under section
401(a)(17) of the Code, which is Two Hundred Ten Thousand Dollars ($210,000) for
2005 (as adjusted under the Code for cost-of-living increases).





 


D-4









 











	 	(f)	 	Average deferral percentage means, for a specified group of eligible
employees for the Plan Year, the average of the deferral percentages for
all eligible employees in such group.

	 
	 	(g)	 	Plan’s 401(k) representative contribution rate means the greater of:







	 	(i)	 	the lowest applicable contribution rate of any
eligible Nonhighly Compensated Employee among a group of eligible
Nonhighly Compensated Employees that consists of at least one-half
(1/2) of all eligible Nonhighly Compensated Employees for the Plan
Year; or







	 	(ii)	 	the lowest applicable contribution rate of any
eligible Nonhighly Compensated Employee in the group of all eligible
Nonhighly Compensated Employees who are employed on the last day of
the Plan Year.







	 	(h)	 	Applicable contribution rate means, for an eligible Nonhighly Compensated
Employee for the Plan Year, the ratio of:







	 	(i)	 	the total amount, for the Plan Year, of
Employer contributions credited to the eligible Nonhighly Compensated
Employee’s Matching Contribution Account that are used in determining
the deferral percentage in Section 2.1.1(d)(i) of this Appendix and of
Employer qualified nonelective contributions credited to the eligible
Nonhighly Compensated Employee’s Earnings Reduction Account that are
used in determining the deferral percentage in Section 2.1.1(d)(i) of
this Appendix, to







	 	(ii)	 	the eligible employee’s compensation, as
defined above, for the portion of such Plan Year that the employee is
an eligible employee.






2.1.2. Special Rules. For purposes of this Section 2.1, the following special rules apply:




	 	(a)	 	Rounding. The deferral percentage of each eligible employee and the
average deferral percentage for each group of eligible employees shall be
calculated to the nearest one-hundredth of one percent.





 


D-5









 











	 	(b)	 	Highly Compensated Employees Eligible to Participate in Multiple Plans.
The deferral percentage of any eligible Highly Compensated Employee who is eligible
to participate in any other plan of the Employer and Affiliates to which Employer
contributions are made on behalf of the
eligible Highly Compensated Employee pursuant to a deferral election
(whether direct or indirect), shall be equal to the ratio of:







	 	(i)	 	the sum of all Employer contributions, and if
used to determine the deferral percentage of eligible employees,
matching contributions (as defined in section 401(m)(4)(A) of the Code
which meet the requirements of sections 401(k)(2)(B) and 401(k)(2)(C)
of the Code) or qualified nonelective contributions (within the
meaning of section 401(m)(4)(C) of the Code), or both, under all such
plans for the Plan Year, to







	 	(ii)	 	the eligible Highly Compensated Employee’s
compensation (as defined in Section 2.1.1 above) for the entire Plan
Year.







	 	(c)	 	Permissive Aggregation. If this Plan satisfies the requirements of
sections 401(k), 401(a)(4) or 410(b) of the Code only if aggregated with one or
more other plans, or if one or more other plans satisfy the requirements of such
sections of the Code only if aggregated with this Plan, then this Section 2.1 shall
be applied by determining the average deferral percentage of eligible employees as
if all such plans were a single plan. Plans may be aggregated in order to satisfy
section 401(k) of the Code only if they have the same Plan Year and use the same
401(k) testing method.






2.1.3. The 401(k) Tests — Current Year Testing Method. Notwithstanding the foregoing
provisions, at least one of the following two (2) tests must be satisfied for each Plan Year:




	 	Test 1:	 	The average deferral percentage for the group of eligible Highly
Compensated Employees for the current Plan Year is not more than the average
deferral percentage for the group of all eligible Nonhighly Compensated Employees
for the current Plan Year multiplied by one and twenty-five hundredths (1.25).







	 	Test 2:	 	The excess of the average deferral percentage for the group of
eligible Highly Compensated Employees for the current Plan Year over the average
deferral percentage for the group of eligible Nonhighly Compensated Employees for
the current Plan Year is not more than two (2) percentage points, and the average
deferral percentage for the group of eligible Highly Compensated Employees for the
current Plan Year is not more than the average deferral percentage for the group of
eligible Nonhighly Compensated Employees for the current Plan Year multiplied by
two (2).





 


D-6









 










The Committee may, however, elect to substitute the average deferral percentage for the group of
eligible Nonhighly Compensated Employees for the preceding Plan Year for the average deferral
percentage for the group of eligible Nonhighly Compensated Employees for the current Plan Year in
Tests 1 and 2 above (i.e., elect the prior year testing method) only if:




	 	(a)	 	the Plan has used the current year testing method for each of the five
(5) preceding Plan Years (or if lesser, the number of Plan Years the Plan has been
in existence, including years in which the Plan was a portion of another plan); or







	 	(b)	 	as a result of a merger or acquisition described in section
410(b)(6)(C)(i) of the Code, the Employer maintains this Plan, which uses the
current year testing method, and another plan, which uses the prior year testing,
and the Committee changes this Plan’s testing method to the prior year testing
method within the transition period described in section 410(b)(6)(C)(ii) of the
Code.






2.1.4. Preventative Action Prior to Plan Year End. If the Committee determines that neither
of the tests described in Section 2.1.3 will be satisfied (or may not be satisfied) for a Plan
Year, then during such Plan Year, the Committee may from time to time establish (and modify) a
maximum amount of contributions that can be made pursuant to an Earnings Reduction Agreement by
eligible Highly Compensated Employees that is less than the amount that would otherwise be
permitted. No contributions shall be permitted to be made in excess of that maximum after the
date such maximum is effective. The Committee shall prescribe rules concerning such
modifications, including the frequency of applying the tests described in Section 2.1.3 and the
commencement and termination dates for any modifications.



2.2. Distribution of Excess Contributions.



2.2.1. In General. Notwithstanding any other provision of the Plan Statement, excess
contributions for a Plan Year, plus any income and minus any loss allocable thereto, shall be
distributed no later than the last day of the following Plan Year, to eligible Highly Compensated
Employees as determined in this Section.



2.2.2. Determining Excess Contributions. For purposes of this Section 2.2, excess
contributions shall mean, with respect to any Plan Year, the excess of:




	 	(a)	 	the aggregate amount of Employer contributions taken into account in
computing the average deferral percentage of eligible Highly Compensated Employees
for such Plan Year, over





 


D-7









 











	 	(b)	 	the maximum amount of such contributions permitted by the section 401(k)
test described in Section 2.1 of this Appendix. Such maximum amount of
contributions shall be determined by reducing (not
distributing) eligible Highly Compensated Employees’ contributions as
follows:







	 	(i)	 	The contributions made pursuant to an Earnings
Reduction Agreement of the eligible Highly Compensated Employee who
has the highest deferral percentage (as defined in Section 2.1 of this
Appendix) shall be reduced by the amount required to cause such
eligible Highly Compensated Employee’s deferral percentage to equal
the next highest deferral percentage of an eligible Highly Compensated
Employee.







	 	(ii)	 	If neither the tests is satisfied after such
reduction, the contributions made pursuant to an Earnings Reduction
Agreement of the eligible Highly Compensated Employees who then have
the highest deferral percentage (including those eligible Highly
Compensated Employees whose contributions were reduced under (i)
above) shall be reduced by the amount required to cause such eligible
Highly Compensated Employees’ deferral percentage to equal the next
highest deferral percentage of an eligible Highly Compensated
Employee.







	 	(iii)	 	If neither of the tests is satisfied after
such reduction, this method of reduction shall be repeated one or more
additional times until one of the tests is satisfied.






2.2.3. Method of Distributing Excess Contributions. Excess contributions, plus any income
and minus any loss allocable thereto, shall be distributed from the Earnings Reduction Account
and Matching Contribution Account, if applicable, in proportion to the Participant’s elective
contributions and matching contributions, if applicable, (as defined in section 401(m)(4)(A) of
the Code which meet the requirements of sections 401(k)(2)(B) and 401(k)(2)(C) of the Code) for
the Plan Year. The amount of excess contributions to be distributed on behalf of each eligible
Highly Compensated Employee for the Plan Year shall be equal to the amount of reduction
determined as follows:




	 	(a)	 	The contributions made pursuant to an Earnings Reduction Agreement of
the eligible Highly Compensated Employee who has the highest dollar amount of such
contributions shall be reduced by the amount required to cause such eligible Highly
Compensated Employee’s contributions to equal the next highest dollar amount
contributed by eligible Highly Compensated Employees (and the amount credited
pursuant to Section 4.2 of the Plan Statement, and the applicable amount of
Employer matching contributions, if any, credited pursuant to Sections 4.3 and 4.4
of the Plan Statement shall be reduced accordingly).





 


D-8









 











	 	(b)	 	If any excess contributions remain after performing (a), then the
eligible Highly Compensated Employees who have the next highest dollar
amount of contributions made pursuant to an Earnings Reduction Agreement
(including those eligible Highly Compensated Employees reduced under (a)
above) shall be reduced by the amount required to cause such eligible
Highly Compensated Employees’ contributions to equal the next highest
dollar amount contributed by eligible Highly Compensated Employees (and the
amount credited pursuant to Section 4.2 of the Plan Statement, and the
applicable amount of Employer matching contributions, if any, credited
pursuant to Sections 4.3 and 4.4 of the Plan Statement shall be reduced
accordingly).







	 	(c)	 	If any excess contributions remain after performing (a) and (b), this
method of reduction shall be repeated one or more additional times until no excess
contributions remain.






Provided, however, if the total amount of reduction determined in (a), (b) and (c) would be
greater than the amount of excess contributions, then the final reduction amount shall be
decreased so that the total amount of reductions equals the amount of excess contributions.



2.2.4. Determination of Income or Loss. The excess contributions to be distributed to any
eligible Highly Compensated Employee shall be adjusted for income or loss. Unless the Committee
and the Trustee agree otherwise in writing, the income or loss allocable to excess contributions
to be distributed shall be equal to the sum of:




	 	(a)	 	Income or Loss for Plan Year. The income or loss allocable to the
eligible Highly Compensated Employee’s elective contributions, and if used to
determine an eligible Highly Compensated Employee’s deferral percentage under
Section 2.1 of this Appendix, matching contributions (as defined in section
401(m)(4) of the Code which meet the requirements of sections 401(k)(2)(B) and
401(k)(2)(C) of the Code for the Plan Year multiplied by a fraction, the numerator
of which is the excess contributions to be distributed to the eligible Highly
Compensated Employee for the Plan Year and the denominator of which is the sum of
the eligible Highly Compensated Employee’s account balances attributable to
elective contributions and such matching contributions on the last day of the Plan
Year.







	 	(b)	 	Income or Loss for Gap Period. The income or loss allocable for the gap
period shall be equal to ten percent (10%) of the income or loss allocable to the
distributable excess contributions for the applicable Plan Year (as determined in
(a) above) multiplied by the number of whole calendar months that have
elapsed since the end of such Plan Year
including the month of distribution if distribution occurs after the
fifteenth (15th) of such month.





 


D-9









 










2.2.5. Orphaned Matching Contributions. If excess contributions are distributed pursuant to
this Section 2.2, applicable matching contributions under Sections 4.3 and
4.4 of the Plan Statement shall be treated as forfeitures and reallocated as if such forfeitures
were Employer matching contributions under Section 4.3 of the Plan Statement made for those
Participants who were entitled to receive an Employer matching contribution for that Plan Year.



2.3. Section 401(k) Curative Allocation.



2.3.1. Amount and Eligibility. If neither of the section 401(k) tests set forth in Section
2.1 of this Appendix has been satisfied and a distribution of “excess contributions” has not been
made pursuant to Section 2.2 of this Appendix, then the Employer shall make a discretionary
contribution for that Plan Year. Only those Participants who were eligible Nonhighly Compensated
Employees for that Plan Year and for whom some contribution was made pursuant to Section 4.2 of
the Plan Statement for such Plan Year shall share in such allocation. This allocation shall be
made first to the Participant with the least amount of compensation and then, in ascending order
of compensation, to other Participants. The amount of the Employer discretionary contribution to
be so allocated shall be that amount required to cause the Plan to satisfy either of the section
401(k) tests set forth in Section 2.1 of this Appendix for the Plan Year; provided, however, that
in no case shall any amounts be allocated to a Participant in excess of an amount equal to the
Participant’s Recognized Compensation for such Plan Year multiplied by the greater of:




	 	(a)	 	five percent (5%); or







	 	(b)	 	the Plan’s 401(k) representative contribution rate (as defined in Section
2.1 above) for such Plan Year multiplied by two (2).






Such Employer discretionary contribution shall be treated as a qualified nonelective contribution
as defined in section 1.401(k)-6 of the Income Tax Regulations and shall be subject to the
requirements of section 1.401(k)-2(a)(6) of the Income Tax Regulations, which is incorporated
herein.



2.3.2. Crediting to Account. The Employer discretionary contribution which is so allocated
to a Participant shall be allocated to that Participant’s Earnings Reduction Account for the Plan
Year with respect to which it is made and, for the purposes of Section 4, shall be credited as
soon as practicable after it is received by the Trustee.


 


D-10









 





SECTION 3




SECTION 401(m) COMPLIANCE




3.1. Section 401(m) Compliance.



3.1.1. Special Definitions. For purposes of this Section 3, the following special
definitions shall apply:




	 	(a)	 	An eligible employee means an individual who is eligible to receive an
Employer matching contribution for any portion of the Plan Year (whether or not the
individual does so). If, for any Plan Year, the individuals who have not satisfied
the minimum age and service requirements specified in section 410(a)(1) of the Code
(i.e., have not completed one (1) year of service and attained age twenty-one (21)
years), would satisfy the requirements of section 410(b)(1) (i.e., the “ratio
percentage” or “average benefit percentage” coverage test) if tested separately
from other eligible employees, then for that Plan Year, the individuals who have
not satisfied the minimum age and service requirements with respect to that Plan
Year may, at the election of the Committee, be entirely excluded from consideration
in determining who is an eligible employee. Alternatively, the Committee may, if it
so elects, exclude from consideration in determining who is an eligible employee
only those individuals who have not satisfied the minimum age and service
requirements specified in section 410(a)(1) of the Code and are not Highly
Compensated Employees with respect to that Plan Year.







	 	(b)	 	An eligible Highly Compensated Employee means an eligible employee who
is a Highly Compensated Employee.







	 	(c)	 	An eligible Nonhighly Compensated Employee means an eligible employee
who is not a Highly Compensated Employee.







	 	(d)	 	Contribution percentage means the ratio (calculated separately for each
eligible employee) of:







	 	(i)	 	the total amount, for the Plan Year, of
Employer contributions credited to the eligible employee’s Matching
Contribution Account excluding:







	 	(A)	 	any Employer matching
contributions used in determining the deferral percentage
under Section 2.1.1(d)(i) of this Appendix, and





 


D-11









 











	 	(B)	 	any Employer matching contributions of eligible Highly
Compensated Employees that are forfeited pursuant to
Sections 1.1.6 or 2.2.5 of this Appendix,







and including, if the Committee elects, all or a portion of the
Employer contributions credited to the eligible employee’s Earnings
Reduction Account, provided that the 401(k) compliance testing
under Section 2.1 of this Appendix is satisfied both with and
without exclusion of such Employer contributions, to




	 	(ii)	 	the eligible employee’s compensation, as
defined below for the portion of such Plan Year that the employee is
an eligible employee.







For this purpose, Employer contributions will be considered made in the
Plan Year if they are allocated as of a date during such Plan Year and are
delivered to the Trustee within twelve (12) months after the end of such
Plan Year.




	 	(e)	 	Compensation means compensation for services performed for the Employer
defined as “§ 415 compensation” in Appendix A to this Plan Statement.
Notwithstanding the definition of “§ 415 compensation” in Appendix A to this Plan
Statement, compensation shall always be determined on a cash (and not on an
accrual) basis and compensation shall be determined on a Plan Year basis (which is
not necessarily the same as the limitation year). An eligible employee’s
compensation for a Plan Year shall not exceed the limit on annual compensation
under section 401(a)(17) of the Code, which is Two Hundred Ten Thousand Dollars
($210,000) for 2005 (as adjusted under the Code for cost-of-living expenses).







	 	(f)	 	Average contribution percentage means, for a specified group of eligible
employees for the Plan Year, the average of the contribution percentages for all
eligible employees in such group.







	 	(g)	 	Plan’s 401(m) representative contribution rate means the greater of:







	 	(i)	 	the lowest applicable 401(m) contribution rate
of any eligible Nonhighly Compensated Employee among a group of
eligible Nonhighly Compensated Employees that consists of at least one
half (1/2) of all eligible Nonhighly Compensated Employees for the
Plan Year; or





 


D-12









 











	 	(ii)	 	the lowest applicable 401(m) contribution rate of any eligible
Nonhighly Compensated Employee in the group of all eligible
Nonhighly Compensated Employees who are employed by the Employer on
the last day of the Plan Year.







	 	(h)	 	Applicable 401(m) contribution rate means, for an eligible Nonhighly
Compensated Employee for the Plan Year, the ratio of:







	 	(i)	 	the total amount, for the Plan Year, of
Employer matching contributions credited to the eligible Nonhighly
Compensated Employee’s Matching Contribution Account that are used in
determining the contribution percentage in Section 3.1.1(d)(i) of this
Appendix and of the Employer qualified nonelective contributions (if
any) credited to the eligible Nonhighly Compensated Employee’s
Matching Contribution Account that are used in determining the
contribution percentage in Section 3.1.1(d)(i) of this Appendix, to







	 	(ii)	 	the eligible employee’s compensation, as
defined above, for the portion of such Plan Year that the employee is
an eligible employee.






3.1.2. Special Rules. For purposes of this Section 3.1, the following special rules apply:




	 	(a)	 	Rounding. The contribution percentage of each eligible employee and the
average contribution percentage for each group of eligible employees shall be
calculated to the nearest one-hundredth of one percent.







	 	(b)	 	Highly Compensated Employees Eligible to Participate in Multiple Plans.
The contribution percentage of any eligible Highly Compensated Employee who is
eligible to participate in any other plan of the Employer and Affiliates to which
nondeductible voluntary contributions and Employer matching contributions are made
on behalf of the eligible Highly Compensated Employee shall be equal to the ratio
of:







	 	(i)	 	the sum of all such nondeductible voluntary
contributions and Employer matching contributions, and if used to
determine the contribution percentage of eligible employees, Employer
contributions made pursuant to a deferral election or qualified
nonelective contributions (within the meaning of section 401(m)(4)(C)
of the Code), or both, under all such plans for the Plan Year, to

	 
	 	(ii)	 	the eligible Highly Compensated Employee’s compensation (as
defined in Section 3.1.1 above) for the entire Plan Year.





 


D-13









 











	 	(c)	 	Disproportionate Contributions for Nonhighly Compensated Employees
Not Taken into Account. Employer matching contributions shall not be taken into
account in determining the contribution percentage of any eligible Nonhighly
Compensated Employee to the extent such matching contributions exceed the greater
of:







	 	(i)	 	Five percent (5%) of the eligible Nonhighly
Compensated Employee’s Recognized Compensation for such Plan Year;







	 	(ii)	 	the eligible Nonhighly Compensated Employee’s
elective contributions for such Plan Year; or







	 	(iii)	 	the product of (A) multiplied by (B),
where (A) and (B) are:







	 	(A)	 	two (2); and







	 	(B)	 	the Plan’s representative
matching rate (as defined below) multiplied by the eligible
Nonhighly Compensated Employee’s elective contributions for
the Plan Year.







For purposes of Section 3 of this Appendix, the “Plan’s representative
matching rate” means, for any eligible Nonhighly Compensated Employee for
the Plan Year, the greater of:




	 	(i)	 	the lowest matching rate (as defined below)
for any eligible Nonhighly Compensated Employee among a group of
eligible Nonhighly Compensated Employees that consists of one-half
(1/2) of all eligible Nonhighly Compensated Employees in the Plan for
the Plan Year who made elective contributions for the Plan Year; or







	 	(ii)	 	the lowest matching rate (as defined below)
for all eligible Nonhighly Compensated Employees in the Plan who are
employed by the Employer on the last day of the Plan Year and who made
elective contributions for the Plan Year.





 


D-14









 











For purposes of Section 3 of this Appendix, the “matching rate” means the
ratio (calculated separately for each eligible Nonhighly Compensated
Employee) of:




	 	(i)	 	the total amount, for the Plan Year, of Employer matching
contributions credited to the eligible Nonhighly Compensated
Employee’s Matching Contribution Account, to







	 	(ii)	 	the total amount, for the Plan Year, of
elective contributions credited to the eligible Nonhighly Compensated
Employee’s Earnings Reduction Account.







If, however, the matching contribution is not the same for all levels of
elective contributions for an eligible Nonhighly Compensated Employee, such
employee’s matching rate shall be determined assuming that the employee’s
elective contributions for the Plan Year are equal to six percent (6%) of
the employee’s Recognized Compensation for the Plan Year.




	 	(d)	 	Permissive Aggregation. If this Plan satisfies the requirements of
sections 401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one or
more other plans, or if one or more other plans satisfy the requirements of such
sections of the Code only if aggregated with this Plan, then this Section 3.1 shall
be applied by determining the average contribution percentage of eligible employees
as if all such plans were a single plan. Plans may be aggregated in order to
satisfy section 401(m) of the Code only if they have the same Plan Year and they
use the same 401(m) testing method.






3.1.3. The 401(m) Tests — Current Year Testing Method. Notwithstanding the foregoing
provisions, at least one of the following two tests must be satisfied for each Plan Year:




	 	Test 1:	 	The average contribution percentage for the group of eligible Highly
Compensated Employees for the current Plan Year is not more than the average
contribution percentage for the group of eligible Nonhighly Compensated Employees
for the current Plan Year multiplied by one and twenty-five hundredths (1.25).







	 	Test 2:	 	The excess of the average contribution percentage for the group of
eligible Highly Compensated Employees for the current Plan Year over the average
contribution percentage for the group of eligible Nonhighly Compensated Employees
for the current Plan Year is not more than two (2) percentage points, and the
average contribution percentage for the group of eligible Highly Compensated
Employees for the current Plan Year is not more than the average contribution
percentage for the group of eligible Nonhighly Compensated Employees for the
current Plan Year multiplied by two (2).





 


D-15









 










The Committee may, however, elect to substitute the average contribution percentage for the group
of eligible Nonhighly Compensated Employees for the preceding Plan Year for the average
contribution percentage for the group of eligible Nonhighly Compensated Employees for the current
Plan Year in Tests 1 and 2 above (i.e., elect the prior year testing method) only if:




	 	(a)	 	the Plan has used the current year testing method for each of the five
(5) preceding Plan Years (or if lesser, the number of Plan Years the Plan has been
in existence, including years in which the Plan was a portion of another plan); or







	 	(b)	 	as a result of a merger or acquisition described in section
410(b)(6)(C)(i) of the Code, the Employer maintains this Plan, which uses the
current year testing method, and another plan, which uses the prior year testing,
and the Committee changes this Plan’s testing method to the prior year testing
method within the transition period described in section 410(b)(6)(C)(ii) of the
Code.






3.1.4. Preventative Action Prior to Plan Year End. If the Committee determines that neither
of the tests described in Section 3.1.3 will be satisfied (or may not be satisfied) for a Plan
Year, then during such Plan Year, the Committee may from time to time establish (and modify)
maximums for Employer matching contributions of eligible Highly Compensated Employees that are
less than the contributions which would otherwise be permitted or provided. No Employer matching
contributions shall be made in excess of such maximums after the date such maximums are
effective. The Committee shall prescribe rules concerning such modifications, including the
frequency of applying the tests designed in Section 3.1.3 and the commencement and termination
dates for any modifications.



3.2. Distribution of Excess Aggregate Contributions.



3.2.1. In General. Notwithstanding any other provision of the Plan Statement, excess
aggregate contributions, plus any income and minus any loss allocable thereto, shall be
distributed no later than the last day of the following Plan Year to eligible Highly Compensated
Employees as determined in this Section.



3.2.2. Determining Excess Aggregate Contributions. For purposes of this Section, excess
aggregate contributions shall mean, with respect to any Plan Year, the excess of:




	 	(a)	 	the aggregate amount of contributions taken into account in computing
the average contribution percentage of eligible Highly Compensated Employees for
such Plan Year, over





 


D-16









 











	 	(b)	 	the maximum amount of such contributions permitted by the section 401(m)
tests described in Section 3.1 of this Appendix. Such maximum amount of
contributions shall be determined by reducing (not
distributing) eligible Highly Compensated Employees’ contributions as
follows:







	 	(i)	 	The Employer matching contributions for the
eligible Highly Compensated Employee who has the highest contribution
percentage shall be reduced by the amount required to cause such
eligible Highly Compensated Employee’s contribution percentage to
equal the next highest contribution percentage of an eligible Highly
Compensated Employee.







	 	(ii)	 	If neither of the tests is satisfied after
such reduction, the Employer matching contributions for eligible
Highly Compensated Employees who then have the highest contribution
percentage (including those reduced under (i) above) shall be reduced
by the amount required to cause such eligible Highly Compensated
Employees’ contribution percentage to equal the next highest
contribution percentage of an eligible Highly Compensated Employee.







	 	(iii)	 	If neither of the tests is satisfied after
such reductions, this method of reduction shall be repeated one or
more additional times until one of the tests is satisfied.






3.2.3. Method of Distributing Excess Aggregate Contributions. Excess aggregate
contributions, plus any income and minus any loss allocable thereto, shall be distributed from
the Participant’s Matching Contribution Account (and, if applicable, the Participant’s Earnings
Reduction Account in proportion to the Participant’s Employer matching contributions, and if used
to determine the contribution percentage under Section 3.1 of this Appendix, elective
contributions for the Plan Year. The amount of excess aggregate contributions to be distributed
on behalf of each eligible Highly Compensated Employee for the Plan Year shall be equal to the
amount of reduction determined as follows:




	 	(a)	 	The Employer matching contributions of the eligible Highly Compensated
Employee who has the highest dollar amount of such contributions shall be reduced
by the amount required to cause such eligible Highly Compensated Employee’s
contributions to equal the next highest dollar amount received by eligible Highly
Compensated Employees.







	 	(b)	 	If any excess aggregate contributions remain after performing (a), then
the eligible Highly Compensated Employees who have the next highest dollar amount
of Employer matching contributions (including those reduced under (a) above) shall
be reduced by the amount required to cause such eligible Highly Compensated
Employees’ contributions to equal the next
Highest dollar amount received by eligible Highly Compensated Employees.





 


D-17









 











	 	(c)	 	If any excess aggregate contributions remain after performing (a) and
(b), this method of reduction shall be repeated one or more additional times until
no excess aggregate contributions remain.






Provided, however, if the total amount of reduction determined in (a) through (c) would be
greater than the amount of excess aggregate contributions, then the final reduction amount shall
be decreased so that the total amount of reductions equals the amount of excess aggregate
contributions.



3.2.4. Determination of Income or Loss. The excess aggregate contributions to be
distributed to any eligible Highly Compensated Employee shall be adjusted for income or loss.
Unless the Committee and the Trustee agree otherwise in writing, the income or loss allocable to
excess aggregate contributions to be distributed shall be equal to the sum of:




	 	(a)	 	Income or Loss for Plan Year. The income or loss allocable to the
eligible Highly Compensated Employee’s Employer matching contributions (to the
extent used to determine the eligible Highly Compensated Employee’s contribution
percentage under Section 3.1 of this Appendix), and if used to determine an
eligible Highly Compensated Employee’s contribution percentage under Section 3.1 of
this Appendix, elective contributions for the Plan Year multiplied by a fraction,
the numerator of which is the excess aggregate contributions to be distributed to
the eligible Highly Compensated Employee for the Plan Year and the denominator of
which is the sum of the eligible Highly Compensated Employee’s account balances
attributable to Employer matching contributions and such elective contributions on
the last day of the Plan Year.







	 	(b)	 	Income or Loss for Gap Period. The income or loss allocable for the gap
period shall be equal to ten percent (10%) of the income or loss allocable to the
distributable excess aggregate contribution for the applicable Plan Year (as
determined in (a) above) multiplied by the number of whole calendar months that
have elapsed since the end of such Plan Year including the month of distribution if
distribution occurs after the fifteenth (15th) of such month.






3.2.5. Orphaned Matching Contributions. If elective contributions treated as excess
aggregate contributions are distributed pursuant to this Section 3.2, applicable matching
contributions under Sections 4.3 and 4.4 of the Plan Statement shall be treated as forfeitures
and reallocated as if such forfeitures were an Employer matching contribution under Section 4.3
of the Plan Statement made for those Participants who were entitled to receive an Employer matching
contribution for that Plan Year.


 


D-18









 





3.3. Section 401(m) Curative Allocation.



3.3.1. Amount and Eligibility. If neither of the section 401(m) tests set forth in Section
3.1 of this Appendix has been satisfied and a distribution of “excess aggregate contributions”
has not been made pursuant to Section 3.2 of this Appendix, then the Employer shall make a
discretionary contribution for that Plan Year. Only those Participants who were eligible
Nonhighly Compensated Employees for that Plan Year and who were entitled to receive an Employer
matching contribution shall share in such allocation. This allocation shall be made first to the
Participant with the least amount of compensation and then, in ascending order of compensation,
to other Participants. The amount of the Employer discretionary contribution to be so allocated
shall be that amount required to cause the Plan to satisfy either of the section 401(m) tests set
forth in Section 3.1 of this Appendix for the Plan Year; provided, however, that in no case shall
any amounts be allocated to a Participant in excess of an amount equal to the Participant’s
Recognized Compensation for such Plan Year multiplied by the greater of:




	 	(a)	 	five percent (5%); or







	 	(b)	 	the Plan’s 401(m) representative contribution rate (as defined in Section
3.1 above) for such Plan Year multiplied by two (2).






Such Employer discretionary contribution shall be treated as a qualified nonelective contribution
as defined in section 1.401(k)-6 of the Income Tax Regulations and shall be subject to the
requirements of section 1.401(m)-2(a)(6) of the Income Tax Regulations, which is incorporated
herein.



3.3.2. Crediting to Account. The Employer matching contribution which is so allocated to a
Participant shall be allocated to that Participant’s Matching Contribution Account for the Plan
Year with respect to which it is made and, for the purposes of Section 4, shall be credited as
soon as practicable after it is received by the Trustee.




 


D-19











 




WRITTEN ACTION OF

OFFICER OF

U.S. BANCORP




(Adoption of Sixth Amendment to the

U.S. Bank 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President, Human Resources of
U.S. Bancorp, a Delaware corporation, and that, pursuant to authority granted by Section
9.1(a) of the U.S. Bank 401(k) Savings Plan, I take the following actions:



1. Adoption of Sixth Amendment.



The document entitled “SIXTH AMENDMENT OF U.S. BANK 401(k) SAVINGS PLAN (2002 Restatement)” is approved and adopted.



2. Clarification.



Items 10 and 11 from 5th Amendment of U.S. Bank 401(k) Savings Plan (2002 Restatement) are
amended to clarify the effective date as being the plan years beginning on and after January
1, 2006.



I certify that the document attached is a true and correct copy of the amendment.



	 	 	 	 	 
	 	 	 
	Dated: 12/31/2005 	/s/ Jennie Carlson
 	 
	 	Jennie Carlson 	 
	 	Executive Vice President, Human Resources 	 



 


 









 





	 	 	 	 	 



SIXTH AMENDMENT

OF

U.S. BANK 401(k) SAVINGS PLAN

(2002 Restatement)





The U.S. Bank 401(k) Savings Plan (2002 Restatement) (hereinafter referred to as the
“Plan Statement”) is hereby amended in the following respects:



1. EARNINGS REDUCTION AGREEMENTS. Effective for plan years beginning on and after January 1,
2006, Section 4.2.2 of the Plan Statement is amended so that the phrase “fifty percent (50%) of
the amount of Recognized Compensation” is amended to read “seventy-five percent (75%) of the
amount of Recognized Compensation (after other deductions been taken and taxes withheld from
Recognized Compensation)”.



2. EMPLOYER STOCK SUBFUND. Effective for plan years beginning on and after January 1, 2006,
Section 5.2.1 of the Plan Statement is amended to read as follows:



5.2.1. ESOP Subfund. In addition to the Subfunds created pursuant to Section 5.1.1, the
Trustee shall also maintain a ESOP Subfund that shall be invested in Qualifying Employer
Securities. The ESOP Subfund shall be primarily invested in Qualifying Employer Securities and
shall constitute the ESOP Portion of the Plan. All Earnings Reduction Contributions credited to a
Participant’s Account that are to be invested in Qualifying Employer Securities shall be invested
in the ESOP Subfund. All Matching Contributions credited to a Participant’s Account and all
amounts transferred from another Subfund to be invested in Qualifying Employer Securities shall
be invested in the ESOP Subfund.



3. FORM OF DISTRIBUTION. Effective for plan years beginning on or after January 1, 2006, Section
7.1.3 of the Plan Statement is amended to add a new sentence after the first sentence that reads
as follows:



A Participant who (i) elected a form of distribution other than a lump sum cash payment under the
Plan or a Predecessor Plan, and (ii) is currently receiving payment may elect to receive the
remainder of the Participant’s Account in a lump sum cash payment (unless the Account contains an
amount subject to the qualified joint and survivor annuity rules under section 401(a)(11) of the
Code).


 


 









 





4. HARDSHIP DISTRIBUTIONS. Effective January 1, 2006, Section 7.2.5(a) of the Plan Statement is
amended (i) to remove the word “or” at the end of sub-paragraph (iii), (ii) to remove the “.” at
the end of sub-paragraph (iv) and to replace it with a “,”, and (iii) to add the following
sub-paragraphs (v) and (vi):




	 	(v)	 	payments for burial or funeral expenses for
the employee’s deceased parent, spouse, children, or dependents (as
defined in
section 152, and, for taxable years beginning on or after January 1,
2006, without regard to section 152(d)(1)(B)), or







	 	(vi)	 	expenses for the repair of damage to the
employee’s principal residence that would qualify for the casualty
deduction under section 165 (determined without regard to whether the
loss exceeds
10% of adjusted gross income).






5. LOAN RULES. Effective for loans made for plan years beginning on or after January 1, 2006,
Section 7.6.6(k) of the Plan Statement is amended to add a new sentence after the second sentence
that reads as follows:



If a Participant has more than one loan outstanding, the Participant’s request for a new loan
shall not be processed until the pay off of one of the outstanding loans has been completely
processed.



6. SCHEDULE I (Participating Employers). Effective for plan years beginning on or after January
1, 2006, Schedule I of the Plan Statement is replaced with the attached Schedule I.



7. SAVINGS CLAUSE. Except as amended above, the Plan Statement shall continue in full force and
effect.


 


-2-









 





SCHEDULE I




PARTICIPATING EMPLOYERS




(As of January 1, 2006)




	 	 	 	 	 
	CC Management Inc.
	 	 	36-4477930	 
	First Security Investor Reporting
	 	 	36-3900357	 
	Genpass Technologies LLC
	 	 	75-2879017	 
	Genpass Service Solutions LLC
	 	 	75-2882615	 
	Housing Capital Company
	 	 	94-3206669	 
	LADCO Financial Group
	 	 	95-3433174	 
	Lyon Financial Services Inc.
	 	 	41-1400571	 
	Nova Information Systems
	 	 	58-1916822	 
	Quasar Dist. LLC
	 	 	39-1982827	 
	U.S. Bancorp Asset Management Inc.
	 	 	41-2003732	 
	U.S. Bancorp Card Services Inc.
	 	 	41-1558798	 
	U.S. Bancorp Equipment Finance Inc.
	 	 	93-0594454	 
	U.S. Bancorp Fund Services LLC
	 	 	39-1939072	 
	U.S. Bancorp Insurance Services LLC
	 	 	39-1914078	 
	U.S. Bancorp Investments Inc.
	 	 	41-1233380	 
	U.S. Bancorp Licensing
	 	 	41-1970658	 
	U.S. Bancorp Oliver Allen Technology Leasing
	 	 	94-2234252	 
	U.S. Bancorp Service Providers, LLC
	 	 	39-2019998	 
	U.S. Bank National Association
	 	 	31-0841368	 
	U.S. Bank National Association ND
	 	 	41-1881896	 
	U.S. Bank National Association SD
	 	 	41-1899865	 
	U.S. Bank Trust National Association
	 	 	41-1973763	 
	Ultron, Inc.
	 	 	36-4311745	 
	Voyager Fleet Systems Inc.
	 	 	76-0476053	 







 


SI-1











 




CERTIFICATION




(Adoption of Seventh Amendment to the

U.S. Bank 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President, Human Resources of
U.S. Bancorp, a Delaware corporation, and that the Compensation Committee of U.S. Bancorp on July
17, 2006, pursuant to authority granted by Section 9.1(a) of the U.S. Bank 401(k) Savings Plan,
approved and adopted the document entitled “SEVENTH AMENDMENT OF U.S. BANK 401(k) SAVINGS PLAN
(2002 Restatement)”. I certify that the document attached is a true and correct copy of the
amendment.



	 	 	 	 	 
	 	 	 
	Dated: 4-30-2007 	/s/ Jennie Carlson
 	 
	 	Jennie Carlson 	 
	 	Executive Vice President, Human Resources 	 



 


 









 





	 	 	 	 	 



SEVENTH AMENDMENT

OF

U.S. BANK 401(k) SAVINGS PLAN

(2002 Restatement)





The U.S. Bank 401(k) Savings Plan (2002 Restatement) (hereinafter referred to as the “Plan
Statement”) is hereby amended in the following respects:



1. NO REDUCTION OF PROTECTED BENEFITS. Effective for plan years beginning on and after August 1,
2006, the first sentence of Section 1.4 of the Plan Statement is amended to delete the word
“employer”.



2. BENEFITS ADMINISTRATION COMMITTEE. Effective for plan years beginning on and after August 1,
2006, Section 2.1.6 of the Plan Statement is amended to read as follows:



2.1.6. Benefits Administration Committee — a committee of the Company which, in general, is
responsible for the administration of the Plan as outlined in this Plan Statement and its bylaws
(this responsibility does not include selecting, monitoring and terminating investments and
Subfunds of the Plan).



3. COMPENSATION COMMITTEE. Effective for plan years beginning on and after August 1, 2006, a new
Section 2.1.9 is added to the Plan Statement (with current Section 2.1.9, subsequent Sections, and
cross-references renumbered as appropriate) to read as follows:



2.1.9. Compensation Committee — the Compensation Committee of the Board of Directors of the
Company which, in general, is responsible for (i) determining the types of investments in which the
Fund is to be invested, (ii) setting the number of Proprietary Subfunds and Non-Proprietary
Subfunds, (iii) selecting, monitoring and terminating Proprietary Subfunds, (iv) selecting,
monitoring and terminating investment advisors, and (v) selecting, monitoring and terminating the
Trustee.



4. INVESTMENT COMMITTEE. Effective for plan years beginning on and after August 1, 2006, a new
Section 2.1.23 is added to the Plan Statement (with current Section 2.1.23, subsequent Sections,
and cross-references renumbered as appropriate) to read as follows:



2.1.23. Investment Committee — a committee of the Company which, in general, is responsible
for the selection, monitoring and termination of Non-Proprietary Subfunds offered under the Plan
(to the extent the Compensation Committee authorizes the offering of Non-Proprietary Subfunds). The
Investment Committee may hire an investment advisor to monitor the performance of investments and
report to the Investment Committee. The
Investment Committee shall have no responsibility or authority with respect to Plan
investment in the securities of the Company or its Affiliates (employer securities).


 


1









 





5. COMPANY. Effective for plan years beginning on and after August 1, 2006, Sections 2.1.2, 2.1.9,
2.1.12 (flush language), 2.1.20, 2.1.21, 2.1.23, 2.1.26, 2.1.32(a), 2.1.32(b), 4.4.1, 4.5.1, 4.8.1,
4.8.2, 4.10, 5.2.7(b), 5.2.7(c), 5.2.7(e), 5.2.7(g), 6, 7.2.5(b), 7.2.5(d), 7.5.2(a), 7.5.5, 7.6.1,
7.6.3, 7.6.4, 7.6.11, 7.6.12, 10.6(n), and 13.2, Appendix A Sections 1.1.3, 1.2, 1.3, and 1.7, and
Appendix B Section 1.8, and Appendix D Section 1.1.1, and Appendix E Section 1.3, 1.11(d), and
1.11(e) of the Plan Statement are amended to replace the phrase “the Employer” with the phrase “the
Company” (with the possessive “the Employer’s” amended to read “the Company’s” and excluding
occurrences of the phrase “the employer”). In addition, effective for plan years beginning on and
after August 1, 2006, Sections 5.2.5(b), and 5.2.6(b) of the Plan Statement are amended to
replace the phrase “an Employer” with the term “the Company”. In addition, effective for plan years
beginning on and after August 1, 2006, Sections 2.1.12(a), 2.1.32 (flush language), 2.1.32(c),
2.1.32(d), 2.1.33, 7.6.6(j), and 10.2, and Appendix D Section 2.1.1(e) of the Plan Statement are
amended to replace the term “Employer” with the phrase “Company and its Affiliates”.



6. EMPLOYER. Effective for plan years beginning on and after August 1, 2006, Section 2.1.25,
4.1.2, 4.1.3, 4.2.1, 4.2.2, and 4.3.1, and Appendix B Section 1.3 is amended to replace the phrase
“the Employer” with the phrase “an Employer”.



7. NON-PROPRIETARY SUBFUNDS. Effective for plan years beginning on and after August 1, 2006, a new
Section 2.1.26 is added to the Plan Statement (with current Section 2.1.26, subsequent Sections,
and cross-references renumbered as appropriate) to read as follows:



2.1.26. Non-Proprietary Subfunds — a separate pool of assets of the Fund set aside for
investment purposes under Section 5 managed by an entity other than the Company or an Affiliate of
the Company.



8. PROPRIETARY SUBFUNDS. Effective for plan years beginning on and after August 1, 2006, a new
Section 2.1.34 is added to the Plan Statement (with current Section 2.1.34, subsequent Sections,
and cross-references renumbered as appropriate) to read as follows:



2.1.34. Proprietary Subfunds — a separate pool of assets of the Fund set aside for investment
purposes under Section 5 managed by the Company or an Affiliate of the Company.



9. TRUSTEE. Effective for plan years beginning on and after August 1, 2006, Section 2.1.35 of the
Plan Statement is amended to add a new final sentence that read as follows:



The Trustee shall be selected, monitored and terminated by the Compensation Committee.


 


2









 





10. AMOUNT. Effective for plan years beginning on and after August 1, 2006, Section 4.2.4 of the
Plan Statement is amended to read as follows:



4.2.4. Amount. An Employer shall contribute to the Trustee for deposit in the Fund the
reduction in Recognized Compensation which was agreed to by each Participant pursuant to an
Earnings Reduction Agreement.



11. ADDITIONAL ALLOCATION. Effective for plan years beginning on and after August 1, 2006, Section
4.4.2 of the Plan Statement is amended (i) to delete the term “Employer” from the second paragraph,
and (ii) to amend the first paragraph to read as follows:



4.4.2. Additional Allocation. Any portion of the Company’s Discretionary Contribution not
allocated as provided in Appendix D shall be allocable to the Accounts of individuals who were
Participants during that Plan Year. No other Participant shall be eligible to share in the
allocation of the Company’s Discretionary Contribution.



12. SPECIFIC REVIEW. Effective for plan years beginning on and after August 1, 2006, Section 4.5.2
of the Plan Statement is amended to delete the clause “on the part of the Employer, the Trustee,
the Benefits Administration Committee or the Plan”.



13. ESTABLISHING COMMINGLED SUBFUNDS. Effective for plan years beginning on and after August 1,
2006, Section 5.1.1 of the Plan Statement is amended (i) to replace each occurrence of the term
“Company” with the term “Compensation Committee”, and (ii) to delete the final sentence.



14. INDIVIDUAL SUBFUNDS. Effective for plan years beginning on and after August 1, 2006, Section
5.1.2 of the Plan Statement is amended to read as follows:



5.1.2 Individual Subfunds. The Compensation Committee may (but is not required to) establish
additional Subfunds that consist solely of all or a part of the assets of a single Participant’s
Total Account, which assets the Participant controls by investment directives to the Trustee and
which may not be commingled with the assets of any other Participant’s Accounts.




	 	(a)	 	Number of Subfunds. The Compensation Committee shall determine the number (if
any) of Proprietary Subfunds and Non-Proprietary Subfunds offered as investment options
to Participants. The Compensation Committee may, from time to time, increase or
decrease the number of Subfunds offered as investments.







	 	(b)	 	Proprietary Subfunds. The Compensation Committee shall set the types
of Proprietary Subfunds offered as investments. The Compensation Committee shall
select, monitor and terminate Proprietary Subfunds.

	 
	 	(c)	 	Non-Proprietary Subfunds. The Compensation Committee shall set the types
of Non-Proprietary Subfunds offered as investments.
The
Investment Committee shall select, monitor and terminate Non-Proprietary
Subfunds.





 


3









 











	 	(d)	 	Investment Advice. The Compensation Committee may select one or more entities
to provide investment advice to the Compensation Committee and the Investment Committee
and to assist the Compensation Committee and Investment Committee with monitoring
Subfunds.







	 	(e)	 	Limitations. In no event shall a Participant be allowed to direct the
investment of assets in an individual Subfund in any work of art, rug or antique, metal
or gem, stamp or coin, alcoholic beverage or other similar tangible personal property
if the investment in such property shall have been prohibited by the Secretary of the
Treasury. Notwithstanding anything to the contrary in Section 10, each Participant,
each Beneficiary and each Alternate Payee for whom an individually directed Subfund is
maintained shall be responsible for the exercise of any voting or similar rights which
exist with respect to assets in such individually directed Subfund. The Trustee shall
cooperate with Participants, Beneficiaries and Alternate Payees to permit them to
exercise such rights. The Trustee shall not independently exercise such rights. Any
Beneficiary of a deceased Participant with an individually directed Subfund shall have
the responsibility to direct investments for such Subfund until the Beneficiary directs
the Trustee otherwise in writing.






15. OPERATIONAL RULES. Effective for plan years beginning on and after August 1, 2006, Section
5.1.3 of the Plan Statement is amended to read as follows:



5.1.3. Operational Rules. The Compensation Committee may (but is not required to) establish
additional Subfunds that consist solely of all or a part of the assets of a single Participant’s
Total Account, which assets the Participant controls by investment directives to the Trustee and
which may not be commingled with the assets of any other Participant’s Accounts.




	 	(a)	 	Automatic Investment. The Investment Committee shall determine the Subfund or
Subfunds that shall be used to invest the Participant’s Account if the Participant
fails to make an investment election in an investment or Subfund.







	 	(b)	 	Maximum and Minimum Percentage Investments. There is no maximum or minimum
amount or percentage of an Account that may be invested in a particular investment or
Subfund. In its sole discretion, the Compensation Committee may establish a maximum, a
minimum or both as to the amount or percentage of an Account which may be invested in a
particular investment or Subfund.





 


4









 





	 	(c)	 	Limits. The Compensation Committee may limit participation in a
particular Subfund. The Compensation Committee may also limit the ability of
Participants to direct investments, request distributions or request loans
from one or more investments or Subfunds.







	 	(d)	 	Investment Procedures. The Benefits Administration Committee shall determine
the procedures for making or changing investment elections and the effect of a
Participant’s or Beneficiary’s failure to make an effective investment election with
respect to all or any portion of an Account.






16. REVISING SUBFUNDS. Effective for plan years beginning on and after August 1, 2006, Section
5.1.4 of the Plan Statement is deleted.



17. FUTURE INVESTMENTS. Effective for plan years beginning on and after August 1, 2006, Section
5.2.6(g) of the Plan Statement is amended to replace the term “Benefits Administration Committee”
with the term “Compensation Committee”.



18. VALUATION OF SECURITIES. Effective for plan years beginning on and after August 1, 2006,
Section 5.2.8 of the Plan Statement is amended to replace the term “Benefits Administration
Committee” with the term “Compensation Committee”.



19. ERISA SECTION 404(c) COMPLIANCE. Effective for plan years beginning on and after August 1,
2006, Section 5.3 of the Plan Statement is amended (i) to replace the term “Benefits Administration
Committee” with the term “Compensation Committee”, (ii) to replace the phrase “Employer securities”
with the term “Qualifying Employer Securities”, and (iii) to remove the phrase “and Beneficiaries”.



20. HARDSHIP DISTRIBUTIONS. Effective for plan years beginning on and after August 1, 2006, the
last sentence of Section 7.2.5(d) of the Plan Statement is amended to read as follows:



For the purposes of this Section 7.2.5(d), all other plans maintained by the Company and
Affiliates shall mean all qualified plans of deferred compensation maintained by the Company
and Affiliates.



21. ROLLOVER DISTRIBUTIONS. Effective for plan years beginning on and after August 1, 2006, Section
7.5.2(a) of the Plan Statement is amended to replace the phrase “employer securities” with the term
“Qualifying Employer Securities”.



22. LOANS – TERMINATION OF EMPLOYMENT. Effective for plan years beginning on and after August 1,
2006, Section 7.6.6(f) of the Plan Statement is amended (i) to replace the term “the Employer” in
the first sentence with the term “the Company”, (ii) to replace the phrase “Participant’s Employer”
in the second sentence with the phrase “Company or its Affiliates”, and (iii) to replace the term
“the Employer” in the third and fourth sentences with the phrase “the Company or its Affiliates”.


 


5









 





23. SPENDTHRIFT. Effective for plan years beginning on and after August 1, 2006, Section 8 of the
Plan Statement is amended (i) to replace the clause “nor shall the Trustee, the Benefits
Administration Committee, or the Employer” in the first paragraph with the clause “nor shall the
Trustee or the Benefits Administration Committee”, (ii) to replace the clause “by the Trustee, the
Benefits Administration Committee, and the Employer” in the second paragraph with the clause “by
the Trustee and the Benefits Administration Committee”, and (iii) to replace the clause “the
Trustee, the Benefits Administration Committee, or the Employer” in the third sentence with the
clause “the Trustee or the Benefits Administration Committee”.



24. AMENDMENT. Effective for plan years beginning on and after August 1, 2006, Section 9.1 of the
Plan Statement is amended to read as follows:



9.1. Amendment. The Company hereby reserves the power to amend this Plan Statement,
either prospectively or retroactively or both, as follows:




	 	(a)	 	in any respect by resolution of the Compensation Committee, and







	 	(b)	 	to conform the Plan to the requirements of federal law or in any respect
that does not materially increase the cost of the Plan to the Company,
either by written action of an officer of the Company or by action of the
Benefits Administration Committee,






provided that no amendment shall be effective to reduce or divest the Total Account of any
Participant unless the same (i) shall have been adopted with the consent of the Secretary of Labor
pursuant to the provisions of ERISA or in order to comply with the provisions of the Code and
the regulations and rulings thereunder affecting the tax-qualified status of the Plan and the
deductibility of contributions thereto, or (ii) is otherwise permitted by Code section 411(d)(6)
and the regulations issued thereunder. Notwithstanding the foregoing, no amendment shall be
effective to increase the duties of the Trustee without its consent.



25. EFFECT
OF ADOPTION. Effective for plan years beginning on and after August 
1, 2006, Section 9.4.3 of the Plan Statement is amended to read as follows:



9.4.3. Effect of Adoption. Upon the adoption of the Plan by an adopting corporation as
heretofore provided, the adopting corporation shall be an Employer hereunder in all respects. Each
corporation listed in Schedule I and each other adopting corporation, as a condition of continued
participation in the Plan, agrees to the Plan’s terms and delegates all fiduciary responsibility as
provided under the Plan. In addition, the Employer shall have the authority to terminate the Plan
(except that each adopting corporation shall have the power to terminate the Plan as applied to
it), to amend this Plan Statement (except that each adopting corporation shall have the power to
amend this Plan Statement as applied to it by establishing a successor plan to which assets and
liabilities may be transferred as provided in this Section) or take any other action with respect
to the Plan unless specifically provided for by the Plan or directed by the Benefits Administration
Committee or the Compensation Committee. Employment with the Company or any adopting corporation
shall be credited with the Employer
for the purposes of determining Eligibility Service and the minimum annual service requirement for
allocation of contributions. Contributions of the Company and each adopting corporation shall be
allocated only among those persons who were their employees during the Plan Year with respect to
which the contribution is made.


 


6









 





26. BENEFITS ADMINISTRATION COMMITTEE. Effective for plan years beginning on and after August 1,
2006, the last sentence of Section 10.2 and Appendix A Section 3.3, and Appendix B Section 1.1 and
Section 1.2(c), and Appendix D Section 1.1.2 of the Plan Statement is amended to replace the phrase
“the Employer” with the phrase “the Benefits Administration Committee”.



27. COMPENSATION COMMITTEE. Effective for plan years beginning on and after August 1, 2006,
Sections 10.3(a), 10.3(b), 10.3(c), and 10.7 of the Plan Statement are amended to replace the term
“Employer” with the term “Compensation Committee”.



28. ACCOUNTINGS BY TRUSTEE. Effective for plan years beginning on and after August 1, 2006, Section
10.4 of the Plan Statement is amended to delete the clause “to the Employer and” and “the Employer
or”.



29. OTHER TRUSTEE DUTIES. Effective for plan years beginning on or after August 1, 2006, Section
10.6(a) of the Plan Statement is amended to replace the clause “securities issued by the Employer
or an Affiliate of the Employer and real property leased to the Employer or an Affiliate of the
Employer; provided, however, that the Plan may not acquire or hold any Employer security which is
not a ‘qualifying employer security’ (within the meaning of section 407(d)(5) of ERISA) nor any
Employer real property” with the clause “securities issued by the Company or an Affiliate and real
property leased to the Company or an Affiliate; provided, however, that the Plan may not acquire or
hold any Company or Affiliate security which is not a Qualifying Employer Security nor any
Company or Affiliate owned real property”.



30. INDEMNIFICATION. Effective for plan years beginning on or after August 1, 2006, Section 10.8 of
the Plan Statement is amended to read as follows:



10.8. Indemnity. Except as prohibited by applicable law, the Company shall defend, indemnify and
hold harmless from any and all liabilities, costs and expenses (including legal fees), to the
extent not covered by insurance, each individual (as distinguished from corporate) trustee of the
Plan, and each officer, director or employee of the Company and its Affiliates, who is a party to
or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding with respect to the Plan, whether imposed under ERISA or otherwise, wherever brought,
whether civil, criminal, administrative or investigative by reason of the fact that the individual
is or was a fiduciary or administrator of the Plan (as defined in ERISA), or by reason of acting in
any other capacity in connection with such plans. No such indemnification, however, shall be
required or provided if such liability arises (i) from the individual’s claim for the individual’s
own benefit, (ii) from the proven willful misconduct, fraud or the bad faith of the individual, or
(iii) from the criminal misconduct of such individual if the individual had reason to
believe the conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the person did not act in good faith, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that the individual’s conduct
was unlawful. This indemnification shall continue as to an individual who has ceased to be a
trustee of the Plan or officer, director or employee of the Company and its Affiliates and shall
inure to the benefit of the heirs, executors and administrators of such an individual.


 


7









 





31. COMPANY. Effective for plan years beginning on and after August 1, 2006, Section 12.1 of the
Plan Statement is amended to read as follows:



12.1. Company. Except as otherwise provided in the Plan Statement, functions generally assigned to
the Company shall be discharged by the Benefits Administration Committee except to the extent the
Benefits Administration Committee delegates such functions.



32. COMMITTEES. Effective for plan years beginning on and after August 1, 2006, Section 12.2.1 of
the Plan Statement is amended to read as follows:



12.2.1. Committees. Three committees have responsibility with respect to the Plan: The
Benefits Administration Committee, the Compensation Committee and the Investment Committee.



33. MEMBERSHIP. Effective for plan years beginning on and after August 1, 2006, Section 12.2.2 of
the Plan Statement is amended to read as follows:



12.2.2. Membership and Authority. The membership of each committee shall be that specified in
the bylaws for the committee. The authority of each committee shall be the authority specified in
this Plan Statement and the bylaws for that committee.



34. AUTHORITY. Effective for plan years beginning on and after August 1, 2006, Section 12.2.3 of
the Plan Statement is deleted.



35. MAJORITY DECISIONS. Effective for plan years beginning on and after August 1, 2006, Section
12.2.4 of the Plan Statement is deleted.



36. TRUSTEE. Effective for plan years beginning on or after August 1, 2006, Section 12.3.2 of the
Plan Statement is amended to read as follows:



12.3.2. Trustee. The Trustee shall have no authority or duty to determine or enforce payment
of any contribution under the Plan or to determine the existence, nature or extent of any
individual’s rights in the Fund or under the Plan or question any determination made by the
Benefits Administration Committee regarding the same. Nor shall the Trustee be responsible in any
way for the manner in which the Benefits Administration Committee, Compensation Committee or
Investment Committee carries out its responsibilities under this Plan Statement or, more generally,
under the Plan. The Trustee shall give the Benefits Administration Committee notice of and tender
to the Benefits Administration Committee) the
prosecution or defense of any litigation involving the Plan, the Fund or other fiduciaries of the
Plan.


 


8









 





37. CONFLICT OF INTEREST. Effective for plan years beginning on and after August 1, 2006, Section
12.4 of the Plan Statement is amended to read as follows:



12.4. Conflict of Interest. If any Trustee, any member of the Benefits Administration Committee,
the Compensation Committee or the Investment Committee, or any officer or employee of the Company
to whom authority has been delegated or redelegated hereunder shall also be a Participant in the
Plan, that individual shall have no authority as such Trustee, member, officer or employee with
respect to any matter specially affecting the Participant’s individual interest hereunder (as
distinguished from the interests of all Participants and Beneficiaries or a broad class of
Participants and Beneficiaries), all such authority being reserved exclusively to the other
Trustees, members, officers or employees, as the case may be, to the exclusion of such Participant,
and such Participant shall act only in the Participant’s individual capacity in connection with any
such matter.



38. ADMINISTRATOR. Effective for plan years beginning on and after August 1, 2006, Section 12.6 of
the Plan Statement is amended to delete the term “Company” and replace it with the term “Benefits
Administration Committee”.



39. NAMED FIDUCIARIES. Effective for plan years beginning on and after August 1, 2006, Section 12.7
of the Plan Statement is amended to read as follows:



12.7. Named Fiduciaries. The Trustee, the Benefits Administration Committee, the Compensation
Committee and the Investment Committee shall be named fiduciaries for the purpose of section 402(a)
of ERISA.



40. ADMINISTRATIVE EXPENSES. Effective for plan years beginning on and after August 1, 2006,
Section 12.9 of the Plan Statement is amended to read as follows:



12.9. Administrative Expenses. The reasonable expenses of administering the Plan shall be payable
out of the Fund except to the extent that the Benefits Administration Committee, directs the
Company to directly pay the expenses. The Benefits Administration Committee, acting in its
fiduciary capacity, shall determine the appropriate allocation of such expenses among the
Accounts in the Plan. The Fund may reimburse the Company for a reasonable expense incurred
in administering the Plan paid by the Company if, at the time the Company paid the expense, the
Benefits Administration Committee intended to have the Fund reimburse the Company for the expense.
The Fund may pay the Company for the reasonable expenses of administering the Plan that the Company
incurs.



41. METHOD OF EXECUTING INSTRUMENTS. Effective for plan years beginning on and after August 1,
2006, Section 12.11 of the Plan Statement is amended to read as follows:



12.11. Method of Executing Instruments.


 


9









 





12.11.1. Company. Information to be supplied or written notices to be made or consents to be
given by the Company pursuant to any provision of this Plan Statement may be signed in the name of
the Company by any officer thereof who has been authorized to make such certification or to give
such notices or consents.



12.11.2. Committees. Information to be supplied or written notices to be made or consents to
be given by the Benefits Administration Committee, the Compensation Committee or the Investment
Committee pursuant to any provision of this Plan Statement may be signed in the name of the
committee by any member thereof who has been authorized to make such certification or to give such
notices or consents.



12.11.3. Trustee. Any instrument or written notice required, necessary or advisable, to be
made or given by the Trustee may be signed by any Trustee, if all Trustees serving hereunder are
individuals, or by any authorized officer or employee of the Trustee, if a corporate Trustee shall
be acting hereunder as sole Trustee, or by any such officer or employee of the corporate Trustee or
by an individual Trustee acting hereunder, if corporate and individual Trustees shall be serving as
co-trustees hereunder.



42. RECEIPT OF DOCUMENTS. Effective for plan years beginning on and after August 1, 2006, Section
12.12 of the Plan Statement is amended to read as follows:



12.12. Receipt of Documents. If a form or document must be filed with or received by the Company,
the Benefits Administration Committee, the Compensation Committee, the Investment Committee, or
Trustee, it must be actually received by the appropriate entity to be effective. The determination
of whether or when a form or document has been received by the appropriate entity shall be made by
the Benefits Administration Committee on the basis of what documents are acknowledged by the
appropriate entity to be in its actual possession without regard to the “mailbox rule” or similar
rule of evidence. The absence of a document in the appropriate entity’s records and files shall be
conclusive and binding proof that the document was not received by the appropriate entity



43. POWERS OF ATTORNEY. Effective for plan years beginning on and after August 1, 2006, Section
12.13 of the Plan Statement is amended to replace the term “Plan Sponsor” with the term “Company”.



44. DISCLAIMERS. Effective for plan years beginning on and after August 1, 2006, Section 13.1 of
the Plan Statement is amended to read as follows:



13.1. Disclaimers.




	 	(a)	 	Neither the terms of this Plan Statement nor the benefits hereunder nor the
continuance thereof shall be a term of the employment of any employee, and the Company
shall not be obliged to continue the Plan.







	 	(b)	 	The terms of this Plan Statement shall not give any employee the right to be
retained in the employment by the Company or an Affiliate.





 


10









 











	 	(c)	 	Neither the Company, its Affiliates, their officers, their employees or
members of their Boards of Directors, nor the Trustee nor the Benefits
Administration Committee, Compensation Committee or Investment Committee, nor
any member of those committees in any way guarantee the Fund against loss or
depreciation, nor do they guarantee the payment of any benefit or amount
which may become due and payable hereunder to any Participant or Beneficiary.
Each Participant, Beneficiary or other person entitled at any time to
payments hereunder shall look solely to the assets of the Fund for such
payments.







	 	(d)	 	Neither the Company, its Affiliates, their officers, their employees or members
of their Boards of Directors, nor the Trustee nor the Benefits Administration
Committee, Compensation Committee or Investment Committee, nor any member of those
committees shall in any manner be liable to any Participant, Beneficiary or other
person for any act or omission of the Trustee (except to the extent one of the
foregoing is a fiduciary and liability is imposed under ERISA).







	 	(e)	 	Neither the Company, its Affiliates, their officers, their employees or members
of their Boards of Directors, nor the Trustee nor the Benefits Administration
Committee, Compensation Committee or Investment Committee, nor any member of those
committees shall be under any liability or responsibility (except to the extent that
one of the foregoing is a fiduciary and liability is imposed under ERISA) for failure
to effect any of the objectives or purposes of the Plan by reason of loss or
fluctuation in the value of Fund or for the form, genuineness, validity, sufficiency or
effect of any Fund asset at any time held hereunder, or for the failure of any person,
firm or corporation indebted to the Fund to pay such indebtedness as and when the same
shall become due or for any delay occasioned by reason of any applicable law, order or
regulation or by reason of any restriction or provision contained in any security or
other asset held by the Fund.







	 	(f)	 	Except as is otherwise provided in ERISA, a fiduciary shall not be liable
for an act or omission of another person with regard to a fiduciary responsibility that
has been allocated to or delegated to such other person pursuant to the terms of this
Plan Statement or pursuant to procedures set forth in this Plan Statement.







	 	(g)	 	Neither the Company, its Affiliates, their officers, their employees or members
of their Boards of Directors, nor the Trustee nor the Benefits Administration
Committee, Compensation Committee or Investment Committee, nor any member of those
committees guarantees that the benefits to be developed hereunder for each
Participant shall equal those
which are assumed for the purpose of determining and measuring the
contributions of the Employer.





 


11









 











	 	(h)	 	Neither the Company, its Affiliates, their officers, their employees or members
of their Boards of Directors, nor the Trustee nor the Benefits Administration
Committee, Compensation Committee or Investment Committee, nor any member of those
committees shall be liable or responsible for any error in the computation of the
Account of a Participant resulting from any misstatement of fact made by the
Participant, directly or indirectly, to the Benefits Administration Committee or the
Trustee and used by them in determining the Participant’s Account. There shall be no
obligation to increase the Account of such Participant which, on discovery of the
misstatement, is found to be understated as a result of such misstatement of the
Participant. However, the Account of any Participant which is overstated by reason of
any such misstatement shall be reduced to the amount appropriate for the Participant in
view of the truth. Any reduction of an Account shall be retained in the Fund and used
to reduce the next succeeding contribution of the Company to the Plan.






45. ANNUAL ADDITIONS. Effective for plan years beginning on and after August 1, 2006, Appendix A,
Section 1.1(i) of the Plan Statement is amended to replace the phrase “all employer contributions”
with the phrase “all contributions”.



46. ESOP RULES. Effective for plan years beginning on and after August 1, 2006, Appendix A, Section
1.1.3 of the Plan Statement is amended to replace the phrase “employer securities” with the phrase
“Qualifying Employer Securities”.



47. ACTIONS PENDING REVIEW. Effective for plan years beginning on and after August 1, 2006,
Appendix C, Section 2.2.3 of the Plan Statement is amended to replace the phrase “by the Committee”
with the phrase “by the Committee (which for these QDRO Procedures shall be the Benefits
Administration Committee)”.



48. DETERMINATION OF INCOME OR LOSS. Effective for plan years beginning on and after August 1,
2006, Appendix D, Section 1.1.4 of the Plan Statement is amended to replace the phrase “Unless the
Committee” with the phrase “Unless the Committee (which for this Appendix shall be the Benefits
Administration Committee)”.



49. DEFERRAL PERCENTAGE. Effective for plan years beginning on and after August 1, 2006, Appendix
D, Section 2.1.1(d) of the Plan Statement is amended to replace the phrase “the Employer and all
Affiliates” with the phrase “the Company and its Affiliates”.



50. SAVINGS CLAUSE. Except as amended above, the Plan Statement shall continue in full force and
effect.




 


12












 




WRITTEN ACTION OF

OFFICER OF

U.S. BANCORP




(Adoption of Eighth Amendment to

U.S. Bank 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President, Human Resources of U.S.
Bancorp, a Delaware corporation, and that, pursuant to authority granted by Section 9.1(a) of the
U.S. Bank 401(k) Savings Plan, I take the following actions:



The document entitled “EIGHTH AMENDMENT OF U.S. BANK 401(k) SAVINGS PLAN (2002 Restatement)” is
approved and adopted.



I certify that the document attached is a true and correct copy of the amendment.



	 	 	 	 	 
	 	 	 
	Dated: 12-29-2006 	/s/ Jennie Carlson
 	 
	 	Jennie Carlson 	 
	 	Executive Vice President, Human Resources 	 



 


 









 





	 	 	 	 	 



EIGHTH AMENDMENT

OF

U.S. BANK 401(k) SAVINGS PLAN

(2002 Restatement)





The U.S. Bank 401(k) Savings Plan (2002 Restatement) (hereinafter referred to as the “Plan
Statement”) is hereby amended in the following respects:




	1.	 	HARDSHIP DISTRIBUTIONS. Effective for all hardship distributions made on or after January 1,
2006, Section 7.2.5(a) of the Plan Statement shall be amended to read in full as follows:







	 	(a)	 	Purposes. In-service hardship distributions shall be allowed only if the
Participant establishes that the in-service hardship distribution is to be made for one
of the following purposes:







	 	(i)	 	expenses for (or necessary to obtain) medical care for the
Participant, the Participant’s spouse or any dependents of the Participant (as
defined in section 152 of the Code and without regard to sections 152(b)(1),
152(b)(2) and 152(d)(1)(B) of the Code) that would be deductible under section
213 of the Code (determined without regard to whether the expenses exceed seven
and one-half percent (7.5%) of adjusted gross income),







	 	(ii)	 	costs directly related to the purchase of a principal residence
for the Participant (excluding mortgage payments),







	 	(iii)	 	payment of tuition, room and board and related educational
fees for the next twelve (12) months of post-secondary education for the
Participant or the Participant’s spouse, children or dependents (as defined in
section 152 of the Code and without regard to sections 152(b)(1), 152(b)(2) and
152(d)(1)(B) of the Code),







	 	(iv)	 	payments necessary to prevent the eviction of the Participant
from the Participant’s principal residence or foreclosure on the mortgage of
that principal residence,







	 	(v)	 	(v) payments for burial or funeral expenses of the
Participant’s deceased parent, spouse, children or dependents (as defined in
section 152 of the Code and without regard to section 152(d)(1)(B) of the
Code), or







	 	(vi)	 	expenses for the repair of damage to the Participant’s
principal residence that would qualify for the casualty deduction under section
165 of the Code (determined without regard to whether the loss exceeds ten
percent (10%) of adjusted gross income).
Such purposes shall be considered to be an immediate and heavy financial need of the
Participant.





 


 









 










2. HARDSHIP DISTRIBUTIONS. Effective for all hardship distributions made on or after January 1,
2006, the last sentence of Section 7.2.5(b) of the Plan Statement shall be amended to read in full
as follows:



In addition, a hardship distribution shall not be allowed unless the Participant has obtained all
distributions, including distribution of ESOP dividends under section 404(k) of the Code but not
including other hardship distributions, and all nontaxable loans (at the time of the loan)
currently available under all plans maintained by the Employer and Affiliates. Other funds are not
currently available unless the funds are available prior to or coincident with the date the
hardship distribution is available.



3. BENEFICIARY’S REQUIRED BEGINNING DATE. Effective for Plan Years beginning on or after January 1,
2005, Section 7.3.4 of the Plan Statement is amended to read in full as follows:



7.3.4. Beneficiary’s Required Beginning Date. Notwithstanding any other provision of this Plan
Statement, distribution to the Beneficiary of a Participant shall be made by the December 31 of the
calendar year in which occurs the fifth (5th) anniversary of the Participant’s death. If the
Participant’s sole Beneficiary is the Participant’s spouse, then distribution to the Beneficiary
shall be made by the later of (1) the December 31 of the calendar year in which occurs the fifth
(5th) anniversary of the Participant’s death, and (2) the December 31 of the calendar year in which
the Participant would have reached the Participant’s required beginning date.



4. DIRECT ROLLOVER TO NON-SPOUSE BENEFICIARY. Effective for direct rollovers made on or after
January 1, 2007, the first paragraph of Section 7.5.2 of the Plan Statement is amended to read in
full as follows:



7.5.2. Direct Rollover. A distributee who is eligible to elect a direct rollover may elect, at
the time and in the manner prescribed by the Benefits Administration Committee, to have all or any
portion of an eligible rollover distribution paid directly to an eligible retirement plan specified
by the distributee in a direct rollover. A distributee who is eligible to elect a direct rollover
includes only a Participant, a Beneficiary and a Participant’s spouse or former spouse who is the
Alternate Payee under a qualified domestic relations order, as defined in Appendix C.


 


 









 





5. DIRECT ROLLOVER TO NON-SPOUSE BENEFICIARY. Effective for direct rollovers made on or after
January 1, 2007, Section 7.5.2(b) of the Plan Statement is amended to read in full as follows:




	 	(b)	 	Eligible retirement plan means (i) an individual retirement account described
in section 408(a) of the Code, or (ii) an individual retirement annuity described in
section 408(b) of the Code, or (iii) a plan described in section 403(a) of the Code or
an annuity contract described under section 403(b) of the Code, or (iv)
a qualified defined contribution plan described in section 401(a) of the Code that
accepts the eligible rollover distribution, or (v) an eligible plan under section
457(b) of the Code which is maintained by a state, political subdivision of a
state or any agency or instrumentality of a state or political subdivision of a
state and which agrees to separately account for amounts transferred into such
plan from this 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 an Alternate Payee. In the case of a Beneficiary who is not the
surviving spouse of a Participant, the definition of an eligible retirement plan
shall include only an individual retirement account or annuity described in
sections 408(a) or (b) of the Code.






6. LOANS (Suspension of Payments During a Leave of Absence). Effective for Plan Years beginning on
or after January 1, 2006, Section 7.6.6(i) shall be amended so that the clause “subsection (g)” is
changed to read “subsections (g) and (f) (respectively)”.



7. SCHEDULE I (Participating Employers). Effective for Plan Years beginning on or after January 1,
2007, Schedule I of the Plan Statement is replaced with the attached Schedule I.



8. SAVINGS CLAUSE. Save and except as hereinabove expressly amended, the Plan Statement shall
continue in full force and effect.


 


 









 





SCHEDULE I




PARTICIPATING EMPLOYERS




(As of January 1, 2006)




	 	 	 	 	 
	CC Management Inc.
	 	 	36-4477930	 
	First Security Investor Reporting
	 	 	36-3900357	 
	Genpass Technologies LLC
	 	 	75-2879017	 
	Genpass Service Solutions LLC
	 	 	75-2882615	 
	Housing Capital Company
	 	 	94-3206669	 
	LADCO Financial Group
	 	 	95-3433174	 
	Lyon Financial Services Inc.
	 	 	41-1400571	 
	Nova Information Systems
	 	 	58-1916822	 
	Quasar Dist. LLC
	 	 	39-1982827	 
	U.S. Bancorp Asset Management Inc.
	 	 	41-2003732	 
	U.S. Bancorp Card Services Inc.
	 	 	41-1558798	 
	U.S. Bancorp Equipment Finance Inc.
	 	 	93-0594454	 
	U.S. Bancorp Fund Services LLC
	 	 	39-1939072	 
	U.S. Bancorp Insurance Services LLC
	 	 	39-1914078	 
	U.S. Bancorp Investments Inc.
	 	 	41-1233380	 
	U.S. Bancorp Licensing
	 	 	41-1970658	 
	U.S. Bancorp Oliver Allen Technology Leasing
	 	 	94-2234252	 
	U.S. Bancorp Service Providers, LLC
	 	 	39-2019998	 
	U.S. Bank National Association
	 	 	31-0841368	 
	U.S. Bank National Association ND
	 	 	41-1881896	 
	U.S. Bank National Association SD
	 	 	41-1899865	 
	U.S. Bank Trust National Association
	 	 	41-1973763	 
	Ultron, Inc.
	 	 	36-4311745	 
	Voyager Fleet Systems Inc.
	 	 	76-0476053	 







 


 












 




WRITTEN ACTION OF

OFFICER OF

U.S. BANCORP




(Adoption of Ninth Amendment to

U.S. Bank 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President, Human Resources of U.S.
Bancorp, a Delaware corporation, and that, pursuant to authority granted by Section 9.1(a) of the
U.S. Bank 401(k) Savings Plan, I take the following actions:




The document entitled “NINTH AMENDMENT OF U.S. BANK 401(k)

SAVINGS PLAN (2002 Restatement)” is approved and adopted.



I certify that the document attached is a true and correct copy of the amendment.



	 	 	 	 	 
	 	 	 
	Dated: 9-25-2007 	/s/ Jennie Carlson
 	 
	 	Jennie Carlson 	 
	 	Executive Vice President, Human Resources 	 



 


 









 





	 	 	 	 	 



NINTH AMENDMENT OF

U.S. BANK 401(k) SAVINGS PLAN

(2002 Restatement)





The U.S. Bank 401(k) Savings Plan (2002 Restatement) (hereinafter referred to as the “Plan
Statement”) is hereby amended in the following respects:



1. OTHER TRUST POWERS. Effective October 5, 2005, Subsection 106(r) of the Plan Statement is
amended to read as follows:




	 	(r)	 	To deposit any part or all of the assets in any collective trust fund which is
now or hereafter maintained by the Trustee, an agent of the Trustee, an Investment
Manager or other financial services firm as a medium for the collective investment of
funds of pension, profit sharing or other employee benefit plans, and which is
qualified under section 40 1(a) of the Code and exempt from taxation. under section
501(a) of the Code, and to withdraw any part or all of the assets so deposited, and any
assets deposited with the trustee of a collective trust fund shall be held and invested
by the trustee thereunder pursuant to all the terms and conditions of the trust
agreement or declaration of trust establishing the fund, which are hereby incorporated
herein by reference and shall prevail over any contrary provisions of this Plan
Statement.






2. OTHER TRUST POWERS. Effective October 5, 2005, the Plan Statement is amended by adding a new
Subsection 10.6(u) to read as follows:




	 	(u)	 	Incorporated by reference into this Plan Statement is the following bank
collective investment fund declaration of trust: PLAN AND DECLARATION OF TRUST — STATE
STREET BANK AND TRUST COMPANY INVESTMENT FUNDS FOR TAX EXEMPT RETIREMENT PLANS, as
amended from time to time (the “Declaration of Trust”). Notwithstanding any provision
of this Plan Statement to the contrary, the Trustee may cause all or any part of the
Fund, without limitation as to amount, to be commingled with the money of trusts
created by others by causing such money to be invested in any or all funds created by
the Declaration of Trust, and the part of the Fund so added to any said fund shall be
subject to all the provisions of the Declaration of Trust as it is amended from time to
time.”






3. SAVINGS CLAUSE. Save and except as hereinabove expressly amended, the Plan
Statement shall continue in full force and effect.




 


 












 




WRITTEN ACTION OF

OFFICER OF

U.S. BANCORP




(Adoption of Tenth Amendment to

U.S. Bank 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President, Human Resources of U.S.
Bancorp, a Delaware corporation, and that, pursuant to authority granted by section 9.1(b) of the
U.S. Bank 401(k) Savings Plan, I take the following actions:



The document entitled “TENTH AMENDMENT OF U.S. BANK 401(k) SAVINGS PLAN (2002 Restatement)” is
approved and adopted.



I certify that the document attached is a true and correct copy of the amendment.



	 	 	 	 	 
	 	 	 
	Dated: 12-31-2007 	/s/ Jennie Carlson
 	 
	 	Jennie Carlson 	 
	 	Executive Vice President, Human Resources 	 



 


 









 





	 	 	 	 	 



TENTH AMENDMENT

OF

U.S. BANK 401(k) SAVINGS PLAN

(2002 Restatement)





The U.S. Bank 401(K) Savings Plan (2002 Restatement) (hereinafter referred to as the “Plan
statement”) is hereby amended in the following respects:



1. ELIGIBILITY TO RECEIVE EMPLOYER MATCHING CONTRIBUTION. Effective as of January 1, 2008, Section
3.1.3 of the Plan Statement is deleted (with subsequent Section and cross references renumbered).



2. SPECIAL RULE. Effective as of January 1, 2008, Section 3.2 of the Plan Statement is deleted
(with subsequent Section and cross references renumbered).



3. SECTION 401(m) COMPLIANCE. The Plan Statement is being amended so that the Plan is a safe
harbor plan under section 401(k)(12) and section 401(k)(11) of the Internal Revenue Code effective
as of January 1, 2008 with respect to Participants who have completed one (1) year of Eligibility
Service (as specified in the amendment). Therefore, effective for all matching contributions made
on or after January 1, 2008, Section 4.3.2 of the Plan Statement is amended to read in full as
follows:



4.3.2. Eligibility. A Participant shall be eligible to receive Employer Matching
Contributions as of the first of the month following the month in which the employee will have
completed one (1) year of Eligibility Service; provided, however, that if the employee’s first Hour
of Service occurred on the first day of a month and the employee completed one (1) year of
eligibility Service in his or her first computation period, the employee shall become eligible to
receive Employer Matching Contributions on the first day of the second month following the month in
which the employee completes (1) year of Eligibility Service (subject to being in Recognized
Employment on that day). If a Participant eligible to receive Employer Matching Contributions
terminates employment with the Company and is Affiliates and is subsequently reemployed by the
Company and its Affiliates, then such employee shall be eligible to receive Employer Matching
Contributions as of the subsequent Enrollment Date. If a Participant not eligible to receive
Employer Matching Contributions terminates employment with the Company and Affiliates and is
subsequently reemployed by the Company and its Affiliates, then such employee must complete one (1)
year of Eligibility Service in order to receive Employer Matching Contributions.



4. SECTIONS 401(m) COMPLIANCE. Effective for all matching contributions made on or after January
1, 2008, Section 4.3.4 of the Plan Statement is deleted.



5. CATCH UP CONTRIBUTIONS. Effective for all catch-up contributions made on or after January 1,
2008, the last sentence of Section 4.6.3(d) of the Plan Statement shall be amended to delete the
word “not”.


 


 









 





6. CATCH UP CONTRIBUTIONS. Effective for all catch-up contributions made on or after January 1,
2008, the last sentence of Section 4.6.4 of the Plan Statement shall be amended to read as follows:



Any amounts re-characterized shall be treated as Earnings Reduction Contributions (and not Catch-up
Contributions) for all purposes of the Plan.



7. BENEFICIARY – FAILURE OF DESIGNATION. Effective for distributions made on or after January 1,
2008, Section 7.4.3 of the Plan Statement is amended to add a final paragraph that reads in full as
follows:



If the Participant (i) does not have an Estate of has not appointed a Representative, and (ii) the
present value of the Participant’s Total Account (or the part thereof as to which such
Participant’s designation fails) is Thirty Thousand Dollars ($30,000) or less, the Participant’s
Total Account shall be payable to the Participant’s surviving niece(s) and nephew(s) (the issue of
the Participant’s brother and sisters) that are known to the Plan on a per capita bases. The Plan
and the plan administrator shall have no duty to determine all of the Participant’s nieces and
nephews and shall have no duty to conduct a search for the Participant’s niece(s) and nephew(s).
In addition, if the Participant does not have an Estate of has not appointed a Representative, the
Participant’s Total Account may be escheated by the Plan to the state that represents the
Participant’s last known residence or work location.



8. APPENDIX D. Effective for Plan Years beginning on or after January 1, 2008, Section 2 of
Appendix D of the Plan Statement are to add a Preamble below the heading that reads in full as
follows:



SECTION 2




SECTION 401(k) COMPLINANCE




Effective as of January 1, 2008, the Plan is intended to be disaggregated into two (2) parts for
the purposes of testing under section 401(k) of the Code. With respect to Participants who are
eligible for the Employer Matching Contribution, the Plan is intended to satisfy the requirements
of section 401(k)(12) of the Code for the Plan Years beginning on or after January 1, 2008. With
respect to all other Participants, the provisions of this Section 2 shall apply.


 


 









 





8. APPENDIX D. Effective for Plan Years beginning on or after January 1, 2008, Section 3 of
Appendix D of the Plan Statement are to add a Preamble below the heading that reads in full as
follows:



SECTION 3




SECTION 401(m) COMPLIANCE




Effective as of January 1, 2008, the Plan is intended to be disaggregated into two (2) parts for
purposes of testing under section 401(m) of the Code. With respect to Participants who are
eligible for the Employer Matching Contribution, the Plan is intended to satisfy the requirements
of section 401(m)(11) of the Code for the Plan Years beginning on or after January 1, 2008. With
respect to all other participants, the provisions of this Section 3 shall apply.



10. SAVINGS CLAUSE. Save and except as hereinabove expressly amended, the Plan Statement shall
continue in full force and effect.




 


 












 




WRITTEN ACTION OF

OFFICER OF

U.S. BANCORP




(Adoption of Eleventh Amendment to

U.S. Bank 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President, Human Resources of U.S.
Bancorp, a Delaware corporation, and that, pursuant to authority granted by Section 9.1(b) of the
U.S. Bank 401(k) Savings Plan, I take the following actions:




The document entitled “ELEVENTH AMENDMENT OF U.S. BANK 401(k) SAVINGS PLAN (2002
Restatement)” is approved and adopted.



I certify that the document attached is a true and correct copy of the amendment.



	 	 	 	 	 
	 	 	 
	Dated: December 31, 2008 	/s/ Jennie Carlson
 	 
	 	Jennie Carlson 	 
	 	Executive Vice President, Human Resources 	 



 


 









 





	 	 	 	 	 



ELEVENTH AMENDMENT

OF

U.S. BANK 401(k) SAVINGS PLAN

(2002 Restatement)





The U.S. Bank 401(k) Savings Plan (2002 Restatement) (hereinafter referred to as the
“Plan Statement”) is hereby amended in the following respects:



1. ROLLOVER OF SMALL AMOUNTS. Effective January 1, 2008, Section 7.1.1(c) of the Plan Statement (i)
is amended to capitalize the stated dollar amounts, and (ii) is amended to add a new sentence after
the first sentence that reads as follows:



If a financial institution refuses to accept the rollover of the Participant’s Account (where the
amount in the Account exceeds One Thousand Dollars ($1,000) but does not exceed Five Thousand
Dollars ($5,000)), whether due to the lack of a current street address or for any other reason, the
amount shall remain in (or be returned to) the Plan.



2. NOTICE REGARDING CONSEQUENCES OF FAILING TO DEFER RECEIPT OF DISTRIBUTION. Effective for all
distributions made on or after January 1, 2007, Section 7.5.1 of the Plan Statement shall be
amended by adding the following sentence after the end of the first sentence of Section 7.5.1:



For all notices given in Plan Years beginning on or after January 1, 2007, such notification shall
also include a description of the consequences of failing to defer receipt of a distribution.



3. ELIGIBLE ROLLOVER DISTRIBUTION. Effective for all distributions made on or after January 1,
2007, the second paragraph of Section 7.5.2(a) of the Plan Statement shall be amended to read in
full as follows:




To the extent a distribution consists in part of after-tax employee
contributions which are not includible in gross income, such portion may be
transferred only to an individual retirement account or annuity described in
section 408(a) or 408(b) of the Code, or to a qualified trust described in
section 401(a) of the Code or to an annuity contract described in section
403(b) of the Code, if such trust or contract provides for separate
accounting for the portion of such distribution which is includible in gross
income and the portion of such distribution which is not so includible.


 


 









 





4. ROLLOVER TO ROTH IRA. Effective for all distributions made on or after January 1, 2008, Section
7.5.2 of the Plan Statement shall be amended by adding the following new paragraph (d):




	 	(d)	 	Qualified Rollover Contribution to Roth IRA. Effective for distributions
made on or after January 1, 2008, a distributee may elect to have all or a
portion of an eligible rollover distribution rolled over to a Roth IRA
described in section 408A of the Code. However, for distributions made
before January 1, 2010, the distributee shall not be eligible to make a
qualified rollover contribution to a Roth IRA if the distributee’s adjusted
gross income exceeds One Hundred Thousand Dollars ($100,000) or the
distributee is a married individual filing a separate return.






5. CHOICE OF LAW. Effective January 1, 2009, Section 11 of the Plan Statement shall be amended by
the addition of the following new Section 11.8:



11.8. Choice of Law. Except to the extent that federal law is controlling, the Plan shall be
construed and enforced in accordance with the laws of the State of Minnesota (except that the state
law will be applied without regard to any choice of law provisions).



6. CHOICE OF VENUE. Effective January 1, 2009, Section 11 of the Plan

Statement shall be amended by the addition of the following new Section 11.9:



11.9. Choice of Venue. All litigation in any way related to the Plan (including but not limited to
any and all claims brought under ERISA, such as claims for benefits and claims for breach of
fiduciary duty) must be filed in the United States District Court for the District of Minnesota.



7. PLAN DOCUMENT CONTROLS. Effective for Plan Years beginning on or after January 1, 2009, Section
13 of the Plan Statement shall be amended by deleting Section 13.6 (EGTRRA Sunset Provision) and
replacing it with a new Section 13.6 to read in full as follows:



13.6. Plan Statement Controls. In the event there is a conflict between the Plan Statement and any
other document relating to the Plan (including but not limited to, the summary plan description,
notices to employees, statements and reports), the Plan Statement shall control.



8. SCHEDULE I – PARTICIPATING EMPLOYERS. Effective January 1, 2008, the existing Schedule I listing
participating employers shall be replaced with the attached Schedule I dated effective January 1,
2008.




 


-2-









 




9. SCHEDULE I – PARTICIPATING EMPLOYERS. Effective January 1, 2009, the existing Schedule I listing
participating employers shall be replaced with the attached Schedule I dated effective January 1,
2009.



10. APPENDIX A – COMPLIANCE WITH FINAL 415 REGULATIONS. Effective for limitation years beginning on
or after January 1, 2008, Appendix A of the Plan Statement shall be amended by substituting
therefore the Appendix A attached to this amendment.



11. APPENDIX B CLARIFICATION. Effective for plan years beginning on and after August 1, 2006,
Section 1.1 of Appendix B is amended by replacing the phrase “Benefits Administration Committee”
with “the Company” and Section 1.8 of Appendix B is amended by replacing “the Company” with “an
Employer.”



12. APPENDIX D – 402(g) EXCESS DEFERRALS. Effective January 1, 2009, Section 1.1.1 of Appendix D is
amended to change “March 1” to “March 31”.



13. SAVINGS CLAUSE. Save and except as hereinabove expressly amended, the
Plan Statement shall continue in full force and effect.


 


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SCHEDULE I




PARTICIPATING EMPLOYERS




(As of January 1, 2008)




	 	 	 	 	 
	First Security Investor Reporting
	 	 	36-3900357	 
	Genpass Technologies LLC
	 	 	75-2879017	 
	Housing Capital Company
	 	 	94-3206669	 
	LADCO Financial Group
	 	 	95-3433174	 
	Lyon Financial Services Inc.
	 	 	41-1400571	 
	Nova Information Systems
	 	 	58-1916822	 
	Quasar Dist. LLC
	 	 	39-1982827	 
	U.S. Bancorp Asset Management Inc.
	 	 	41-2003732	 
	U.S. Bancorp Card Services Inc.
	 	 	41-1558798	 
	U.S. Bancorp Equipment Finance Inc.
	 	 	93-0594454	 
	U.S. Bancorp Fund Services LLC
	 	 	39-1939072	 
	U.S. Bancorp Insurance Services LLC
	 	 	39-1914078	 
	U.S. Bancorp Investments Inc.
	 	 	41-1233380	 
	U.S. Bancorp Service Providers, LLC
	 	 	39-2019998	 
	U.S. Bank National Association
	 	 	31-0841368	 
	U.S. Bank National Association ND
	 	 	41-1881896	 
	U.S. Bank National Association SD
	 	 	41-1899865	 
	U.S. Bank Trust National Association
	 	 	41-1973763	 
	Ultron, Inc.
	 	 	36-4311745	 
	Voyager Fleet Systems Inc.
	 	 	76-0476053	 
	NFC Sahara Corporation
	 	 	26-1540656	 






 


SI-1









 





SCHEDULE I PARTICIPATING




EMPLOYERS




(As of January 1, 2009)




	 	 	 	 	 
	Elavon, Inc.
	 	 	58-1916822	 
	Housing Capital Company
	 	 	94-3206669	 
	LADCO Financial Group
	 	 	95-3433174	 
	Lyon Financial Services Inc.
	 	 	41-1400571	 
	Quasar Dist. LLC
	 	 	39-1982827	 
	FAF Advisors, Inc.
	 	 	41-2003732	 
	U.S. Bancorp Equipment Finance Inc.
	 	 	93-0594454	 
	U.S. Bancorp Fund Services LLC
	 	 	39-1939072	 
	U.S. Bancorp Insurance Services LLC
	 	 	39-1914078	 
	U.S. Bancorp Investments Inc.
	 	 	41-1233380	 
	U.S. Bancorp Service Providers, LLC
	 	 	39-2019998	 
	U.S. Bank National Association
	 	 	31-0841368	 
	U.S. Bank National Association ND
	 	 	41-1881896	 
	U.S. Bank Trust National Association SD
	 	 	41-1899865	 
	U.S. Bank Trust National Association
	 	 	41-1973763	 
	Ultron, Inc.
	 	 	36-4311745	 
	Voyager Fleet Systems Inc.
	 	 	76-0476053	 
	NFC Sahara Corporation
	 	 	26-1540656	 






 


SI-1









 





APPENDIX A

(Customized)




LIMITATION ON ANNUAL ADDITIONS




Incorporating amendments of Code §415(c) regulations (T.D. 9313, April 5, 2007).

Effective for limitation years beginning on or after July 1, 2007.




SECTION 1




DEFINITIONS




Terms defined in the Plan Statement shall have the same meanings when used in this Appendix. In
addition, when used in this Appendix, the following terms shall have the following meanings:



1.1. Annual Addition. Annual addition means, with respect to any Participant for a limitation year,
the sum of:




	 	(i)	 	all contributions (including employer contributions
of the Participant’s earnings reductions under section 401(k), section
403(b) and section 408(k) of the Code) allocable as of a date during such
limitation year to the Participant under all defined contribution plans;







	 	(ii)	 	all forfeitures allocable as of a date during such
limitation year to the Participant under all defined contribution plans;
and







	 	(iii)	 	all Participant contributions made as of a date
during such limitation year to all defined contribution plans.






Notwithstanding the foregoing, if an employer contribution is made later than thirty (30) days
after the due date, including extensions, of the employer’s federal income tax return for the
taxable year that includes the last day of the limitation year, the employer contribution shall be
considered an annual addition for the limitation year in which the contribution is made. However,
if the employer contribution is made to correct a nondiscrimination violation (e.g., section
401(a)(4) or section 410(b) of the Code) that date is extended until the fifteenth (15th) day of
the tenth (10th) month following the end of the limitation year. A contribution made to restore an
erroneous forfeiture in a prior limitation year or on behalf of a participant who was erroneously
omitted from a prior limitation year’s allocation shall be considered an annual addition for the
limitation year to which it relates. If, in a particular limitation year, an amount is contributed
with respect to a prior limitation year and such contribution is required by reason of such
employee’s rights under chapter 43 of title 38, United States Code (USERRA), resulting from
qualified military service, as specified in section 414(u)(1) of the Code, then such contribution
is not considered an annual addition with respect to the employee for that limitation year in which
the contribution is made, but, in accordance with section 414(u)(1)(B) of the Code, is considered
an annual addition for the
limitation year to which the contribution relates.


 


A-1









 





1.1.1. Specific Inclusions. With regard to a plan which contains a qualified cash or deferred
arrangement or matching contributions or employee contributions, excess contributions and excess
aggregate contributions (whether or not distributed during or after the limitation year) shall be
considered annual additions in the year contributed. Excess deferrals that are not distributed in
accordance with the regulations under section 402(g) of the Code are annual additions.



1.1.2. Specific Exclusions. The annual addition shall not, however, include any portion of a
Participant’s rollover contributions or any additions to accounts attributable to a plan merger or
a transfer of plan assets or liabilities or any other amounts excludable under law. Excess
deferrals that are distributed in accordance with the regulations under section 402(g) of the Code
are not annual additions. The annual addition shall not include (i) any payments made to restore
losses to a plan resulting from action that creates a reasonable risk of liability for breach of
fiduciary duty under Title I of ERISA (or, in the case of Defined Contribution Plans not subject to
ERISA, any other applicable federal or state law), (ii) any “catch-up” contributions made pursuant
to section 414(v) of the Code, (iii) any previously forfeited amounts restored to an account in
accordance with the plan terms, and (iv) any repayments of loans.



1.1.3. ESOP Rules. In the case of an employee stock ownership plan within the meaning of
section 4975(e)(7) of the Code, annual additions shall not include any dividends or gains on sale
of Qualifying Employer Securities held by the employee stock ownership plan (regardless of whether
such dividends or gains are (i) on securities which are allocated to Participants’ accounts or (ii)
on securities which are not allocated to Participants’ accounts which, in the case of dividends
used to pay principal on an employee stock ownership plan loan, result in employer securities being
allocated to Participants’ accounts or, in the case of a sale, result in sale proceeds being
allocated to Participants’ accounts). In the case of an employee stock ownership plan within the
meaning of section 4975(e)(7) of the Code under which no more than one-third (1/3rd) of the
employer contributions for a limitation year which are deductible under section 404(a)(9) of the
Code are allocated to highly compensated employees (as defined in section 414(q) of the Code),
annual additions shall not include forfeitures of Qualifying Employer Securities under the employee
stock ownership plan if such securities were acquired with the proceeds of an exempt loan or, if
the Company is not an S corporation as defined in section 1361(a)(1) of the Code, employer
contributions to the employee stock ownership plan which are deductible by the employer under
section 404(a)(9)(B) of the Code and charged against the Participant’s account (i.e., interest
payments). The ESOP Committee may elect, in its sole discretion, to calculate annual additions
using the fair market value of the Qualifying Employer Securities released from the suspense
account due to an Exempt Loan repayment and allocated to Participants’ Accounts for the limitation
year, if that amount is less than the amount determined in accordance with Section 1.1(i).


 


A-2









 





1.2. Controlled Group Member. Controlled group member means the Company and each member of a
controlled group of corporations (as defined in section 414(b) of the Code and as modified by
section 415(h) of the Code), all commonly controlled trades or businesses (as defined in section
414(c) of the Code and as modified by section 415(h) of the Code), affiliated service groups (as
defined in section 414(m) of the Code) of which the Company is a part and other organizations
required to be aggregated for this purpose under section 414(o) of the Code.



1.3. Defined Contribution Plans. Defined contribution plans shall have the meaning assigned to that
term by section 415(k)(1) of the Code. Whenever reference is made to defined contribution plans in
this Appendix, it shall include all such plans maintained by the Company and all controlled group
members including terminated plans, plans maintained by predecessor employers and plans that were
formerly maintained by the employer or a related employer but shall not include any multiemployer
plan (as defined in section 414(f) of the Code).



1.4. Individual Medical Account. Individual medical account means an account, as defined in section
415(1)(2) of the Code maintained by the Company or a controlled group member which provides an
annual addition.



1.5. Limitation Year. Limitation year means the Plan Year.



1.6. Maximum Permissible Addition.



1.6.1. General Rule. Maximum permissible addition (a term that is relevant only with respect
to defined contribution plans) means, for any one (1) limitation year, the lesser of:




	 	(i)	 	Forty Thousand Dollars ($40,000), as adjusted
automatically for increases in the cost of living by the Secretary of the
Treasury pursuant to section 415(d) of the Code, or







	 	(ii)	 	one hundred percent (100%) of the Participant’s §415
compensation for such limitation year.






However, the dollar limit in (i) shall be prorated if all defined contribution plans are terminated
before the end of the limitation year.



1.6.2. Medical Benefits. The dollar limitation in Section 1.6.1(i), but not the amount
determined in Section 1.6.1(ii), shall be reduced by the amount of employer contributions which are
allocated to a separate account established for the purpose of providing medical benefits or life
insurance benefits with respect to a key employee (as defined in section 416 of the Code) under a
welfare benefit fund or an individual medical account.


 


A-3









 





1.7. Section 415 Compensation. Section 415 compensation (sometimes, “§415 compensation”) shall
mean, with respect to any limitation year, the amount determined as follows:




	 	(a)	 	General Definition. Subject to the following rules, §415 compensation means
the total wages, salaries, fees for professional services and other amounts
received for personal services actually rendered in the course of employment
with the Company and all controlled group members to the extent that such
amounts are includible in gross income. This shall include any amount which
would have been received and includible in gross income but for an election
under section 125(a), section 132(f)(4), section 402(e)(3), section
402(h)(1)(B), section 402(k) or section 457 of the Code. These amounts include,
but are not limited to, commissions paid to salespersons, compensation for
services on the basis of a percentage of profits, commissions on insurance
premiums, tips, bonuses, fringe benefits and reimbursement or other expense
allowances under a nonaccountable plan as described in §1.62-2(c).







	 	(b)	 	Foreign Source Income. Amounts paid as compensation for services do not
fail to be treated as §415 compensation merely because those amounts are not
includible in gross income on account of the location of the services or merely
because those amounts are paid by an employer with respect to which all compensation
paid by such employer is excluded from gross income. Thus, for example, the
determination of whether an amount is §415 compensation shall be made without regard
to the exclusions from gross income under sections 872, 893, 894, 911, 931 and 933 of
the Code.







	 	(c)	 	Cash Basis. Section 415 compensation shall be included in the limitation
year in which paid or made available (or would have been paid but for an election
under section 125, 132(f)(4), 401(k), 403(b), 408(k), 408(p)(2)(A)(i) or 457(b) of
the Code). Amounts received pursuant to a nonqualified unfunded deferred compensation
plan are §415 compensation in the year actually received to the extent includible in
gross income.







	 	(d)	 	Comp Cap. Section 415 compensation for a limitation year shall not exceed
the applicable dollar limit under section 401(a)(17) of the Code for that limitation
year (e.g., $230,000 for a limitation year beginning in 2008).







	 	(e)	 	Add-Backs. Section 415 compensation shall also include any elective
deferral as defined in section 402(g)(3) of the Code and any amount which would have
been received and includible in gross income but for an election under section
125(a), section 132(f)(4), section 402(e)(3), section 402(h)(1)(B), section 402(k) or
section 457 of the Code.





 


A-4










 











	 	(f)	 	Constructively Received Income. Amounts includible in federal taxable
income under section 409A of the Code or section 457(f)(1)(A) of the Code and other
amounts constructively received in income are §415
compensation at the time that they are so included in income. Section 415
compensation shall also include amounts includible in gross income upon making
the election described in section 83(b) of the Code.







	 	(g)	 	Miscellaneous. Section 415 compensation shall also include, (i) in the case
of an employee who is an employee within the meaning of section 401(c)(1) of the Code
and regulations promulgated under section 401(c)(1) of the Code, the employee’s
earned income (as described in section 401(c)(2) of the Code and regulations
promulgated under section 401(c)(2)) of the Code, plus amounts deferred at the
election of the employee that would be includible in gross income but for the rules
of section 402(e)(3), 402(h)(1)(B), 402(k), or 457(b) of the Code and (ii) amounts
described in section 104(a)(3), 105(a), or 105(h) of the Code, but only to the extent
that these amounts are includible in the gross income of the employee, and (iii)
amounts paid or reimbursed by the employer for moving expenses incurred by an
employee, but only to the extent that at the time of the payment it is reasonable to
believe that these amounts are not deductible by the employee under section 217 of
the Code, and (iv) the value of a nonstatutory option (which is an option other than
a statutory option as defined in §1.421-1(b)) granted to an employee by the employer,
but only to the extent that the value of the option is includible in the gross income
of the employee for the taxable year in which granted.







	 	(h)	 	Exclusions. Notwithstanding the foregoing, §415 compensation shall not
include any of the following.







	 	(i)	 	Contributions (other than elective deferrals) to a
plan of deferred compensation to the extent the contributions are not
includible in gross income for the year the contribution is added.







	 	(ii)	 	Amount realized from the exercise of a nonstatutory
option or when restricted stock or other property either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture.







	 	(iii)	 	Amounts realized from the sale, exchange or other
disposition of stock acquired under a statutory stock option.







	 	(iv)	 	Other amounts receiving special tax benefits such as
premiums for group-term life insurance (but only to the extent that the
premiums are not includible in gross income and are not salary reduction
amounts described in section 125 of the Code).





 


A-5









 











	 	(i)	 	Post-Severance Pay. Notwithstanding the foregoing, §415 compensation shall not
include any amounts received after an employee’s severance from employment except
as follows.







	 	(i)	 	Regular Pay. Regular pay (e.g., regular base pay, overtime,
shift differential pay, commissions, bonuses and other similar compensation)
shall be included if (A) it is paid not later than the end of the limitation
year that includes the severance from employment date or, if later, two and
one-half (2-1/2) months after the severance from employment date, and (B) it
would have been paid if there had been no severance from employment.







	 	(ii)	 	Unused Leave. Payments of unused accrued bona fide sick
leave, vacation or other leave shall be included if it is paid not later than
the end of the limitation year that includes the severance from employment
date or, if later, two and one-half (2-1/2) months after severance from
employment.







	 	(iii)	 	NQDC. Payments of nonqualified unfunded deferred
compensation plan shall be included if (A) it is received not later than the
end of the limitation year that includes the severance from employment date
or, if later, two and one-half (2-1/2) months after the severance from
employment date, and (B) it would have been paid if there had been no
severance from employment.







	 	(iv)	 	Actual USERRA and Disability. Payments of compensation paid
to employees performing qualified military service (e.g., “differential pay”)
and to employees who are totally and permanently disabled shall be included
if the payments do not exceed the amounts the employee would have received if
employment had continued.







	 	(v)	 	Imputed Disability Pay. The compensation an employee would
have received for the limitation year shall be included if the following
conditions are satisfied: (A) the employee is totally and permanently
disabled within the meaning of section 22(e)(3) of the Code, and (B) either
(x) the employee is not a highly compensated employee immediately before
becoming disabled or (y) the terms of the plan provide for the continuation
of contributions on behalf of all participants who are permanently and
totally disabled for a fixed or determinable period, and (C) the plan
provides that such amounts are taken into account for the purpose of making
contributions, and (D) all contributions made with respect to such imputed
compensation are nonforfeitable when made.





 


A-6









 










1.8. Welfare Benefit Fund. Welfare benefit fund means a fund as defined in section 419(e) of the
Code which provides post-retirement medical benefits allocated to separate accounts for key
employees as defined in section 419A(d)(3).



SECTION 2




DEFINED CONTRIBUTION LIMITATION




Notwithstanding anything to the contrary contained in the Plan Statement, there shall not be
allocated to the account of any Participant under a defined contribution plan for any limitation
year an amount which would cause the annual addition for such Participant to exceed the maximum
permissible addition. Subject to the provisions of this Appendix, the limitations of section 415(c)
of the Code (and regulations issued pursuant thereto) are incorporated by reference in this
Appendix.



SECTION 3




SUSPENSION OF ANNUAL ADDITIONS




3.1. Temporary Suspension. If as of any date during a limitation year it is determined that a
Participant’s annual additions that would be made then under other provisions of this Plan
Statement would exceed the maximum permissible addition as of that date, the contributions and
allocations to that Participant’s accounts shall be made only to the extent that they can be made
without causing any such excess to occur. Therefore, the contributions and allocations to be made
as of that date shall be made in the following sequence to the extent permitted.




	 	(a)	 	Employer Contributions – Not Matching.







	 	(i)	 	Employer contributions to defined contribution
pension plans (e.g., money purchase pension plans including target benefit
pension plans).







	 	(ii)	 	Employer fixed (non-discretionary, non-matching)
contributions to defined contribution profit sharing plans and stock bonus
plans.







	 	(iii)	 	Employer discretionary (non-matching) contributions
to defined contribution profit sharing plans and stock bonus plans.







	 	(b)	 	Employee Matched and Employer Matching Contributions.







	 	(i)	 	Employee non-Roth matched elective deferrals (within
the meaning of section 402(g)(3) of the Code) to defined contribution
profit sharing plans and stock bonus plans.





 


A-7









 











	 	(ii)	 	Employee Roth matched elective deferrals (within the meaning of
section 402(g)(3) of the Code) to defined contribution profit sharing
plans and stock bonus plans.







	 	(iii)	 	Employee matched after-tax contributions to defined
contribution profit sharing plans and stock bonus plans.







	 	(iv)	 	Employer non-discretionary fixed matching
contributions to defined contribution profit sharing and plans and stock
bonus plans.







	 	(v)	 	Employer discretionary matching contributions to
defined contribution profit sharing plans and stock bonus plans.







	 	(c)	 	Employee Contributions – Not Matched.







	 	(i)	 	Employee non-Roth unmatched elective deferrals
(within the meaning of section 402(g)(3) of the Code) to defined
contribution profit sharing plans and stock bonus plans.







	 	(ii)	 	Employee Roth unmatched elective deferrals (within
the meaning of section 402(g)(3) of the Code) to defined contribution
profit sharing plans and stock bonus plans.







	 	(iii)	 	Employee unmatched after-tax contributions to
defined contribution profit sharing plans and stock bonus plans.







	 	(d)	 	Other.







	 	(i)	 	All other contributions and allocations (but
excluding forfeitures to be reallocated).







	 	(ii)	 	Forfeitures to be reallocated.






3.2. Tie Breaker. If a contribution or allocation that would be in two (2) or more plans in the
same priority cannot be made because of the foregoing rules, the contribution or allocation shall
be made among the plans in chronological order as determined by the effective date of each plan
(using the original effective date of the plan) beginning with the plan that was first established.




 


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WRITTEN ACTION OF

OFFICER OF

U.S. BANCORP




(Adoption of Twelfth Amendment to

U.S. Bank 401(k) Savings Plan)




I, Jennie Carlson, certify that I am the Executive Vice President, Human Resource of U.S.
Bancorp, a Delaware corporation, and that, pursuant to authority granted by Section 9.1(b) of the
U.S. Bank 401(k) Savings Plan, I take the following actions:




The document entitled “TWELFTH AMENDMENT OF U.S. BANK 401(k) SAVINGS PLAN (2002
Restatement)” is approved and adopted.



I certify that the document is a true and correct copy of the amendment.



	 	 	 	 	 
	 	 	 
	Dated: December 31, 2009 	/s/ Jennie Carlson
 	 
	 	Jennie Carlson 	 
	 	Executive Vice President, Human Resources 	 



 


 









 





	 	 	 	 	 



TWELFTH AMENDMENT

OF

U.S. BANK 401(k) SAVINGS PLAN

(2002 Restatement)





The U.S. Bank 401(k) Savings Plan (2002 Restatement) (hereinafter referred to as the “Plan
Statement”) is hereby amended in the following respects:



1. RECOGNIZED COMPENSATION. Effective for compensation paid on or after January 1, 2010, Section
2.1.36(a) of the Plan Statement shall be amended by deleting the “and” before (ii); adding a comma
after “Company” at the end of the sentence, and adding the following at the end of the sentence:
“and (iii) payments for accrued vacation not taken but paid out.”



2. RECOGNIZED COMPENSATION. Effective for compensation paid on or after January 1, 2010, Section
2.1.36(b) of the Plan Statement shall be amended by deleting the words “for vacation and” from
subsection (ii) of the paragraph.



3. NO ACCEPTANCE OF ROLLOVER CONTRIBUTIONS ATTRIBUTABLE TO ROTH CONTRIBUTIONS. Effective for Plan
Years beginning on or after January 1, 2006, the last sentence of Section 4.5.1 of the Plan
Statement shall be amended to read in full as follows:



The Plan will not accept a rollover of after-tax contributions and Roth 401(k) contributions.



4. PAYMENT TO BENEFICIARIES. Effective for distributions on or after January 1, 2010 (including for
participants who died prior to January 1, 2010), Section 7.3.4 of the Plan Statement shall be
amended to read in full as follows:



7.3.4. Beneficiary’s Required Beginning Date. Notwithstanding any other provision of this Plan
Statement, distribution to the Beneficiary of a Participant shall be made by the December 31 of the
calendar year in which occurs the first anniversary of the Participant’s death.



5. PPA-ADDITIONAL TIME TO DISTRIBUTE REQUIRED NOTICES. Effective for Plan Years beginning on or
after January 1, 2010, Section 7.5.1 of the Plan Statement shall be amended by replacing all
references to “ninety (90) days” with “one hundred eighty (180) days (90 days prior to January 1,
2010).”


 


 









 





6. PPA-DIRECT ROLLOVERS AND NONSPOUSE BENEFICIARY ROLLOVERS. Effective for all benefit payments
commencing on or after January 1, 2007, Section 7.5.2 of the Plan Statement shall be amended by
adding a new paragraph (d) (and all subsequent paragraphs shall be re-lettered):




	 	(d)	 	Special Rule For Nonspouse Beneficiaries. A distributee who is a Beneficiary
and who is not the surviving spouse of a Participant or an alternate payee may elect,
at the time and the manner prescribed by the Committee, to have all or any portion of
such distributee’s benefit paid directly in a trustee-to-trustee transfer to an
individual retirement account or annuity described in sections 408(a) or (b) of the
Code, which is treated as an inherited individual retirement account or annuity within
the meaning of section 408(d)(3)(C) of the Code.






7. WRERA-NONSPOUSE BENEFICIARY ROLLOVERS. Effective for distributions payable on or after January
1, 2010, Section 7.5.2(d) of the Plan Statement shall be amended by adding the following sentences
at the end thereof:



Any distribution to a nonspouse Beneficiary which is payable prior to January 1, 2010, shall not be
subject to the direct rollover requirements of section 401(a)(31) of the Code and the notice
requirements of section 402(f) of the Code. Any distribution to a nonspouse Beneficiary which is
payable on or after January 1, 2010, shall be subject to the direct rollover requirements of
section 401(a)(31) of the Code and the notice requirements of section 402(f) of the Code.



8. COMPLIANCE WITH FINAL REGULATIONS UNDER CODE SECTION 401(a)(9) REGARDING MINIMUM REQUIRED
DISTRIBUTIONS. Effective for all distributions payable on or after January 1, 2003, Section 7.5.3
of the Plan Statement shall be amended to read in full as follows:



7.5.3. Compliance with Section 401(a)(9) of the Code. Notwithstanding the foregoing provisions
of this Section 7, all distributions under this Plan shall comply with the minimum distribution
requirements of section 401(a)(9) of the Code, including the minimum distribution incidental
benefit requirements of section 401(a)(9)(G) of the Code. Effective with respect to distributions
made on or after January 1, 2003, the Plan will apply the minimum distribution requirements of
section 401(a)(9) of the Code in accordance with the final regulations issued thereunder on April
17, 2002, notwithstanding any provision to the contrary.



9. COMPLIANCE WITH HEART ACT. Effective January 1, 2009, Section 13.5 of the Plan Statement shall
be amended to read in full as follows:



13.5. Compliance With Uniformed Services Employment and Reemployment Rights Act of 1994 and
Heroes Earnings Assistance and Relief Tax Act of 2008. Effective for veterans rehired on or after
December 12, 1994, and notwithstanding any provision of the Plan Statement to the contrary,
contributions, benefits or service credits, if any, will be provided in accordance with section
414(u) of the Code. Effective January 1, 2009, and notwithstanding any provision of the Plan
Statement to the contrary, (i) differential pay (as defined in section 3401(h)(2) of the Code)
shall be included in compensation that is used to determine benefits, and (ii) the death after 2006
of a Participant during qualified military service (as defined in section
414(u)(5) of the Code) will be treated as death while in the employment of the Employer and all
Affiliates for purposes of any benefits (other than benefit accruals related to the period of
qualified military service) to which the Participant’s survivors would have been entitled had the
Participant resumed employment and then terminated employment on account of death.


 


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10. CLARIFICATION REGARDING KEY EMPLOYEE DETERMINATION. Effective for Plan Years beginning on or
after January 1, 2002, the lead-in to Section 1.6 of Appendix B to the Plan Statement shall be
amended to read in full as follows:



1.6. Key Employee. Key employee means each Participant (whether or not then an employee) who
at any time during the Plan Year that includes the determination date is:



11. CLARIFICATION REGARDING TOP HEAVY PROVISIONS. Effective for Plan Years beginning on or after
January 1, 2002, Section 1.9(a) of Appendix B to the Plan Statement shall be amended to read in
full as follows:




	 	(a)	 	For the purpose of determining the present value of the cumulative accrued
benefit for any employee under a defined benefit plan, or the amount of the account of
any employee under a defined contribution plan, such present value or amount shall be
increased by the aggregate distributions made with respect to such employee under the
plan on account of severance from employment, death or disability during the one (1)
year period ending on the determination date and the aggregate distributions made with
respect to such employee under the plan for any other reason during the five (5) year
period ending on the determination date.






12. CLARIFICATION REGARDING TOP HEAVY PROVISIONS. Effective for Plan Years beginning on or after
January 1, 2002, Section 1.10(b) of Appendix B to the Plan Statement shall be amended to read in
full as follows:




	 	(b)	 	For the purpose of determining the present value of the cumulative accrued
benefit for any employee under a defined benefit plan, or the amount of the account of
any employee under a defined contribution plan, such present value or amount shall be
increased by the aggregate distributions made with respect to such employee under the
plan on account of severance from employment, death or disability during the one (1)
year period ending on the determination date and the aggregate distributions made with
respect to such employee under the plan for any other reason during the five (5) year
period ending on the determination date.





 


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13. PPA-TOP HEAVY PROVISION. Effective for Plan Years beginning on or after January 1, 2008,
Section 1.10(j) of Appendix B to the Plan Statement shall be amended to read in full as follows:




	 	(j)	 	A plan shall not be a top heavy plan if it consists solely of (i) a cash or
deferred arrangement which meets the requirements of section 401(k)(12) or section
401(k)(13) of the Code, and (ii) matching contributions which meet the requirements of
section 401(m)(11) or section 401(m)(12) of the Code. If, but for the preceding
sentence, a plan would be treated as a top heavy plan because it is a member of an
aggregation group which is a top heavy group, contributions under the Plan may be taken
into account in determining whether any other plan in the group meets the requirements
of Section 3.3.






14. WRERA-ELIMINATION OF GAP PERIOD INCOME ON EXCESS DEFERRALS. Effective for taxable years
beginning on or after January 1, 2008, Section 1.1.4 of Appendix D to the Plan Statement shall be
amended to read in full as follows:



1.1.4. Determination of Income or Loss. The excess deferrals shall be adjusted for income or
loss for the taxable year (but not the gap period). Unless the Committee (which for this Appendix
shall be the Benefits Administration Committee) and the Trustee agree otherwise in writing, the
income or loss allocable to excess deferrals shall be equal to the sum of the income or loss
allocable to the Participant’s elective contributions for the Plan Year ending within such
preceding taxable year by a fraction, the numerator of which is the excess deferrals on behalf of
the Participant for such preceding taxable year and the denominator of which is the Participant’s
Earnings Reduction Account balance attributable to elective contributions on the Valuation Date
coincident with or immediately before the last day of such preceding taxable year.



15. PPA-ELIMINATION OF GAP PERIOD INCOME ON EXCESS CONTRIBUTIONS. Effective for purposes of
determining nondiscrimination testing for Plan Years beginning on or after January 1, 2008, Section
2.2.4 of Appendix D to the Plan Statement shall be amended to read in full as follows:



2.2.4. Determination of Income or Loss. The excess contributions to be distributed to any
eligible Highly Compensated Employee shall be adjusted for income or loss. Unless the Committee
and the Trustee agree otherwise in writing, the income or loss allocable to excess contributions to
be distributed shall be equal to the income or loss allocable to the eligible Highly Compensated
Employee’s elective contributions, and if used to determine an eligible Highly Compensated
Employee’s deferral percentage under Section 2.1 of this Appendix, matching contributions (as
defined in section 401(m)(4) of the Code which meet the requirements of sections 401(k)(2)(B) and
401(k)(2)(C) of the Code for the Plan Year multiplied by a fraction, the numerator of which is the
excess contributions to be distributed to the eligible Highly Compensated Employee for the Plan
Year and the denominator of which is the sum of the eligible Highly Compensated Employee’s account
balances attributable to elective contributions and such matching contributions on the last day of
the Plan Year.


 


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16. PPA-ELIMINATION OF GAP PERIOD INCOME ON EXCESS AGGREGATE CONTRIBUTIONS. Effective for purposes
of determining nondiscrimination testing for Plan Years beginning on or after January 1, 2008,
Section 3.2.4 of Appendix D to the Plan Statement shall be amended to read in full as follows:



3.2.4. Determination of Income or Loss. The excess aggregate contributions to be distributed
to any eligible Highly Compensated Employee shall be adjusted for income or loss for the Plan Year
(but not the gap period). Unless the Committee and the Trustee agree otherwise in writing, the
income or loss allocable to excess aggregate contributions to be distributed shall be equal to the
income or loss allocable to the eligible Highly Compensated Employee’s Employer matching
contributions (to the extent used to determine the eligible Highly Compensated Employee’s
contribution percentage under Section 3.1 of this Appendix), and if used to determine an eligible
Highly Compensated Employee’s contribution percentage under Section 3.1 of this Appendix, elective
contributions for the Plan Year multiplied by a fraction, the numerator of which is the excess
aggregate contributions to be distributed to the eligible Highly Compensated Employee for the Plan
Year and the denominator of which is the sum of the eligible Highly Compensated Employee’s account
balances attributable to Employer matching contributions and such elective contributions on the
last day of the Plan Year.



17. SAVINGS CLAUSE. Save and except as hereinabove expressly amended, the Plan Statement shall
continue in full force and effect.




 


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