EX-10.1.J






Exhibit 10.1(j)




TENTH AMENDMENT

OF

U.S. BANK NON-QUALIFIED RETIREMENT PLAN




     The U.S. Bank Non-Qualified Retirement Plan (the “Plan”) is amended in the following respects:


1. SECTION 409A. Effective January 1, 2009, a new Section 1.7 shall be added to the Plan that
reads as follows:



1.7. Section 409A. The Tenth Amendment amended the Plan for section 409A of the Code. For certain
Participants whose benefit was earned and vested as of December 31, 2004, the intent is that the
benefit of these Participants be grandfathered, including:





	 	(a)	 	Participants in pay status as of December 31, 2004;
	 
	 	(b)	 	Participants who had a Separation from Service on or before December 31,
2004, but whose benefit was not in pay status;
	 
	 	(c)	 	Participants in active employment after December 31, 2004, who had a
benefit that was earned and vested under on of the Appendices A (except Participants
who earned under the Firstar Corporation Non-Qualified Retirement Plan and who earned
an additional benefit under the Plan on or after January 1, 2005); and
	 
	 	(d)	 	Participants in active employment after December 31, 2004, who due to
participation in a predecessor to this Plan and participation in the U.S. Bancorp
Cash Balance Pension Plan, had accrued a benefit as of December 31, 2001.




With respect to Participants in Appendices B-1, B-2, B-3, B-4, B-5, B-6, and Appendix B-11, any
benefit earned and vested as of December 31, 2004 is intended to be grandfathered. Unless an
amendment specifically states that the amendment applies to the benefits and rights of
Grandfathered Participants described in this Section 1.7 (and more fully described in Sections 2.20
and  2.21), the amendment shall not apply to the Grandfathered Amounts for Grandfathered
Participants.



2. BENEFITS ADMINISTRATION COMMITTEE (BAC). Effective January 1, 2009, a new Section 2.3 of the
Plan shall be added (with the current Section 2.3 renumbered and subsequent sections and cross
references renumbered as appropriate) that reads as follows:



2.3. Benefits Administration Committee and BAC — the Benefits Administration Committee of the
Company (and its successor or, if no such committee exists, the Executive Vice President, Human
Resources of the Company).




 









 




3. COMPANY. Effective January 1, 2009, Section 2.5A of the Plan shall be renumbered as Section 2.7
(with the prior Section 2.7 and subsequent sections and cross references renumbered as
appropriate).



4. DISABILITY OR DISABLED. Effective for payments to Participants based on a determination a
Participant is Disabled on and after January 1, 2009 (except this section shall not apply to
payment of Grandfathered Amounts to Grandfathered Participants – a determination of disability for
payment to such Participants shall be governed under the provision in place prior to this
amendment), Section 2.10 (formerly Section 2.8) of the Plan shall be amended to read as follows:



2.10. Disability or Disabled — a Participant will be considered disabled if the Participant (i) is
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically
determinable physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve (12) months, receiving income
replacement benefits for a period of not less than three (3) months under an accident and health
plan covering employees of the Participant’s employer.



5. DISABILITY COMMENCEMENT DATE. Effective for payments to Participants based on a determination a
Participant is Disabled on and after January 1, 2009 (except this section shall not apply to
payment of Grandfathered Amounts to Grandfathered Participants – determination of the Disability
Commencement Date for payment of such amounts to such Participants shall be governed under the
provision in place prior to this amendment), Section 2.12 (formerly Section 2.10) of the Plan shall
be amended to read as follows:



2.12 Disability Commencement Date — the first day of the month following the date the BAC
determines a Participant is Disabled.



6. DOMESTIC PARTNER. Effective for payments to Participants that commence on and after January 1,
2009 (except this section shall not apply to payment of Grandfathered Amounts to Grandfathered
Participants), a new Section 2.14 shall be added to the Plan (with the prior Section 2.14 and
subsequent sections and cross references renumbered as appropriate) that reads as follows:



2.14 Domestic Partner — a person who has an ongoing and committed spouse-like relationship with a
Participant, but only if the Participant certifies in writing to the Company prior to the
Participant’s death that the Participant has a Domestic Partner. The Company may establish a form
or rules for such certifications. Unless otherwise permitted by the BAC, an electronic
communication (such as e-mail) will not satisfy this writing requirement.



7. GRANDFATHERED AMOUNTS. Effective January 1, 2009, a new Section 2.21 shall be added to the Plan
(with the prior Section 2.21 and subsequent sections and cross references renumbered as
appropriate) that reads as follows:




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2.21. Grandfathered Amounts — Deferred compensation amounts for Grandfathered Participants that
were earned and vested as of December 31, 2004 (and subsequent earnings adjustments to the extent
permitted under section 409A of the Code). With respect to excess benefits earned under Article 4,
benefits earned on and after January 1, 2002 are generally not intended to be grandfathered (except
that the benefits earned and vested for Participants in Appendices B-1, B-2, B-3, B-4, B-5, B-6,
and Appendix B-11 prior to January 1, 2005 shall be Grandfathered Amounts, and the benefits earned
and vested for Participants who did not earn additional benefits on and after January 1, 2005).



8. GRANDFATHERED PARTICIPANTS. Effective January 1, 2009, a new Section 2.22 shall be added to the
Plan (with the prior Section 2.22 and subsequent sections and cross references renumbered as
appropriate) that reads as follows:



2.22. Grandfathered Participants — Participants whose benefits are Grandfathered Amounts include
the following categories:





	 	(a)	 	Participants in pay status as of December 31, 2004;
	 
	 	(b)	 	Participants who had a Separation from Service on or before December 31,
2004, but whose benefit was not in pay status;
	 
	 	(c)	 	Participants in active employment after December 31, 2004, who had a
benefit that was earned and vested under on of the Appendices A (except Participants
who earned under the Firstar Corporation Non-Qualified Retirement Plan and who earned
an additional benefit under the Plan on or after January 1, 2005); and
	 
	 	(d)	 	Participants in active employment after December 31, 2004, who due to
participation in a predecessor to this Plan and participation in the U.S. Bancorp
Cash Balance Pension Plan, had accrued a benefit as of December 31, 2001. (Except as
provided in the final paragraph of this Section, to the extent that one of these
Participants accrues a benefit after December 31, 2001, the benefit accrued after
that date shall not be a Grandfathered Amount.)




For Participants actively employed after December 31, 2004, a Participant may be a Grandfathered
Participant with respect to a portion of the Participant’s benefit (the Grandfathered Amount) and
not a Grandfathered Participant with respect to a portion of the participant’s benefit (the
non-Grandfathered Amount). Participants hired on and after January 1, 2005 who did not have a
benefit under the Plan are not Grandfathered Participants.



With respect to Participants in Appendices B-1, B-2, B-3, B-4, B-5, B-6, and Appendix B-11, any
benefit earned and vested as of December 31, 2004 is intended to be grandfathered. Unless
an amendment specifically states that the amendment applies to the benefits and rights of
Grandfathered Participants, the amendment shall not apply to the Grandfathered Amounts for
Grandfathered Participants.




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9. SEPARATION FROM SERVICE. Effective for payments to Participants who separate from service on
and after January 1, 2009 (except this section shall not apply to payment of Grandfathered Amounts
to Grandfathered Participants – determination of separation from service for such Participants
shall be governed under the provision in place prior to this amendment), a new Section 2.31 shall
be added to the Plan (with the prior Section 2.31 and subsequent sections and cross references
renumbered as appropriate) that reads as follows:



2.31. Separation from Service — a Participant’s separation from service as defined under section
409A of the Code. For purposes of a Separation from Service, an affiliate shall mean a business
entity which is not the Company but which is part of a “controlled group” or under “common control”
with the Company, as those terms are defined in section 414(b) and (c) of the Code as required to
be aggregated with the Company under section 409A based on eighty percent (80%) or greater control.



10. SPECIFIED EMPLOYEE. Effective for determinations of who is a specified employee on and after
January 1, 2009 (except this section shall not apply to payment of Grandfathered Amounts to
Grandfathered Participants), a new Section 2.33 shall be added to the Plan (with the prior
Section 2.33 and subsequent sections and cross references renumbered as appropriate) that reads as
follows:



2.33. Specified Employee — a Participant who is a specified employee for purposes of section 409A
of the Code as defined in the separate document entitled “U.S. Bank Specified Employee
Determination.”



11. NORMAL FORM OF EXCESS BENEFIT — WHEN PAYABLE. Effective for payments to Participants that
commence benefits on and after January 1, 2009, Section 4.2 of the Plan shall be amended (i) to
amend the third sentence (which begins, “The first payment...”) shall read as follows:



For payment of Grandfathered Amounts to Grandfathered Participants, the first payment to the
Participant shall be due within thirty days after the earliest date on which the Participant could
begin receiving any benefits under the Qualified Plan on account of retirement or other termination
of employment; for non-Grandfathered Amounts paid to Participants, the first payment to the
Participant shall be due on the later of the first day of the month after (i) the Participant’s
attainment of age 62, or (ii) the Participant’s Separation from Service.



and, (ii) to amend the seventh sentence (which begins, “Except for...”) to read as follows:



Except for the limited purpose of determining the date when benefit payments under this Plan
normally commence for Grandfathered Participants, the rules governing the payment of benefits under
the Qualified Plan, and any elections and optional forms of payment in effect under the
Qualified Plan, shall be given no effect under this Plan in determining the time or form in which
Excess Benefits are paid.



12. OPTIONAL PAYMENT FORMS. Effective for payments to Participants that commence benefits on and
after January 1, 2009, Section 4.3 of the Plan shall be amended to read as follows:




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4.3. Optional Payment Forms.




     4.3.1. Non-Grandfathered Amounts. For non-Grandfathered Amounts, in lieu of payment in the
normal form described in Section 4.2 above, a Participant may elect to receive his or her Excess
Benefit in any of the following forms:




	 	(a)	 	single life annuity;
	 
	 	(b)	 	single life annuity with 5, 10, 15, or 20 year period certain;
	 
	 	(c)	 	50%, 75%, or 100% joint and survivor annuity;
	 
	 	(d)	 	Estate Protection Survivor Annuity (as described in Section 6.1(d) of the
Qualified Plan);
	 
	 	(e)	 	Estate Protection Single Life Annuity (as described in Section 6.1(e) of
the Qualified Plan); or
	 
	 	(f)	 	single lump sum cash payment.




Payment in any of the foregoing forms shall be in an amount that is Actuarially Equal to the Excess
Benefit payable in the applicable normal form described in Section 4.2.



In cases where a Participant desires to change the Participant’s form of payment, (i) if a
Participant’s form of payment prior to electing one of the optional forms of payment listed above
is an annuity, (ii) the Participant elects an annuity optional form of payment (options (a), (b),
(c), (d), and (e)) on or before the date of the Participant’s Separation from Service, and
(iii) the election is actuarially equivalent applying reasonable actuarial methods and assumptions,
then the Participant’s benefit shall commence on the same date the benefit would have been paid but
for the election of the optional form.  In all other cases, if a Participant elects one
of these optional payment forms, the election (i) shall not take effect until the date that is
twelve (12) months after the date on which the Participant makes the election, (ii) shall delay the
distribution to a date that is at least five (5) years after the date the distribution would have
been made to the Participant absent the election, and (iii) in the case of a distribution as of a
specified time (but not upon a Participant’s Separation from Service, Disability, or death), the
election shall not take effect unless the Participant makes the election at least twelve (12)
months prior to the date the distribution is to commence.



In cases where a Participant desires to change the Participant’s time when payment commences, the
Participant may pick a later date or the later of a date or Separation from Service subject to
rules established by the Committee provided the election (i) shall not take effect until the date
that is twelve (12) months after the date on which the Participant makes the election, (ii) shall
delay the distribution to a date that is at least five (5) years after the date the distribution
would have been made to the Participant absent the election, and (iii) in the case of a
distribution as of a specified time (but not upon a Participant’s Separation from Service,
Disability, or death), the election shall not take effect unless the Participant makes the election
at least twelve (12) months prior to the date the distribution is to commence.




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The Committee may impose limits on the number of elections a Participant may make with respect to
changing the form and time of payment. An election form that does not satisfy the advance filing
requirements shall be void and shall be disregarded. In all cases an election form shall not be
considered filed until the completed form is actually received by the Committee or its designated
agent.




     4.3.2. Grandfathered Amounts. For Grandfathered Amounts, in lieu of payment in the normal
form described in Section 4.2 above, a Participant may elect to receive his or her Excess Benefit
in any of the following forms:




	 	(a)	 	single life annuity;
	 
	 	(b)	 	single life annuity with 5, 10, 15, or 20 year period certain;
	 
	 	(c)	 	50%, 75%, or 100% joint and survivor annuity;
	 
	 	(d)	 	Estate Protection Survivor Annuity (as described in Section 6.1(d) of the
Qualified Plan as of December 31, 2004); or
	 
	 	(e)	 	Estate Protection Single Life Annuity (as described in Section 6.1(e) of
the Qualified Plan as of December 31, 2004).




Payment in any of the foregoing forms shall be in an amount that is Actuarially Equal to the Excess
Benefit payable in the applicable normal form described in Section 4.2.



In addition to the foregoing forms, a Participant may also elect to receive his or her Excess
Benefit in the form of a single lump sum cash payment; provided, however, that the single lump sum
cash payment option shall not be available for distributions to any Participant whose termination
of employment occurs prior to 2003 and whose Qualified Plan benefit prior to 2002 did not offer the
option to receive payment of the entire Qualified Plan benefit in a single lump sum cash payment
without regard to the amount payable. Payment in the form of a single lump sum cash payment shall
be in an amount that is Actuarially Equal to the Excess Benefit payable in the applicable normal
form described in Section 4.2; provided, however, that such Excess Benefit shall be calculated
using the benefits that would have been payable to the Participant commencing on the Participant’s
Normal Retirement Date (or at the time of the Participant’s actual termination of employment, if
later), rather than using the benefits that would have been payable to the Participant commencing
on the date as of which Excess Benefits are to commence under this Plan.



An election of an optional payment form permitted under this Section 4.3 must be made by the
Participant in writing on an election form approved by the Committee and filed with the Committee
or its designated agent for this purpose not less than twelve (12) full months prior to the
Participant’s termination of employment. A Participant may change his or her election at any time
by filing another election form; provided, however, that any election form that does not satisfy
the advance filing requirements of the preceding sentence shall be void and shall be disregarded.
An election form shall not be considered filed until the completed form is actually received by the
Committee or its designated agent.




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If a Participant was married at the time that the last optional payment election form was filed by
such Participant at least twelve (12) full months prior to the Participant’s termination of
employment and either (a) the Participant is married to a different spouse on the date the
Participant’s benefit commences, or (b) if the spouse was named as a joint annuitant on such last
optional payment election form and the spouse dies before the date the Participant’s benefit
commences, then (in either case) the Participant’s optional payment election shall be void and have
no effect, and the Participant’s benefit shall be paid in the applicable normal form described in
Section 4.2.



If a Participant elects an optional payment election form that requires the designation of a joint
annuitant and such joint annuitant dies prior to the date the Participant’s benefit commences, the
Participant’s optional payment election shall be void and the Participant’s benefit shall be paid
in the applicable normal form described in Section 4.2.



Payment in any optional form pursuant to this Section 4.3 shall commence at the same time as the
Participant’s benefit would have commenced if it had been paid in the normal form of payment unless
the Participant specifies a later date in his or her last effective optional payment election form.



13. DOMESTIC PARTNER. Effective for payments made to Participants on and after January 1, 2009
(except this section shall not apply to payment of Grandfathered Amounts to Grandfathered
Participants), a new Section 4.4 shall be added to the Plan (with the prior Section 4.4 and
subsequent sections and cross references renumbered as appropriate) that reads as follows:



4.4. Domestic Partner Annuity Rules.




     4.4.1. Domestic Partner. In addition to the preceding rules, the survivor benefit payable
under Section 4.3(c) (50%, 75%, or 100% joint and survivor annuity) to the Participant’s Domestic
Partner shall consist of the monthly survivor annuity described in Section 4.4.2 below and a single
lump sum payment equal to the excess of the Actuarially Equal present value of the portion of the
Participant’s Excess Benefit at the time of the Participant’s death that the Domestic Partner was
designated to receive over the Actuarially Equal present value at the time of the Participant’s
death of the monthly survivor annuity described in Section 4.4.2, all determined in accordance with
Appendix C of the Qualified Plan; provided, however, that if the portion of the Participant’s
Excess Benefit at the time of the Participant’s death that is payable to the Participant’s Domestic
Partner is less than
the value of the monthly survivor annuity described in Section 4.4.2 below, then the Domestic
Partner shall be paid only a pro rata portion of such monthly survivor annuity and no lump sum
payment.



     The first payment of a Domestic Partner’s monthly survivor annuity described in Section 4.4.2
below shall be due on the later of the first day of the month after (i) the Participant’s
attainment of age 62, or (ii) the Participant’s Separation from Service. The last payment of this
survivor annuity shall be due to the Domestic Partner on the first day of the calendar month in
which the Domestic Partner dies. No election, rescission or other action taken by the Participant
shall be effective to modify the survivor annuity hereinbefore described.



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     4.4.2. Domestic Partner’s Annuity. The amount of monthly survivor annuity payable to the
Participant’s Domestic Partner shall be:




	 	(a)	 	if the Participant dies before the Participant’s termination of employment,
the amount which the Domestic Partner would have received if the Participant:






	 	(i)	 	had a termination of employment on the date of
the Participant’s death (for reasons other than the Participant’s
death),
	 
	 	(ii)	 	had lived and elected to commence receipt of
the Participant’s normal form of benefit in a 50% joint and survivor
annuity form on the date the Domestic Partner elects to commence the
monthly survivor annuity,
	 
	 	(iii)	 	had lived until the annuity starting date, and
	 
	 	(iv)	 	had died immediately after payments commenced,
or






	 	(b)	 	if the Participant dies after the Participant’s termination of employment,
the amount which the Domestic Partner would have received if the Participant:






	 	(i)	 	had lived and elected to commence receipt of
the Participant’s normal form of benefit in a 50% joint and survivor
annuity form on the date the Domestic Partner elects to commence the
monthly survivor annuity,
	 
	 	(ii)	 	had lived until the annuity starting date, and
	 
	 	(iii)	 	had died immediately after payments commenced.




14. SMALL AMOUNTS. Effective for payments made to Participants on and after January 1, 2009
(except this section shall not apply to payment of Grandfathered Amounts to Grandfathered
Participants — payment of small amounts to such Participants shall be
governed under the provision in place prior to this amendment), Section 4.5 (formerly Section 4.4)
shall be amended to read as follows:



4.5. Small Amounts. Notwithstanding any other provision of this Article IV, if on the date of a
Participant’s Separation from Service the Actuarially Equal single lump value of a Participant’s
Excess Benefit and benefits under all of the Company’s nonaccount balance deferred compensation
plans (within the meaning of section 409A of the Code and applicable guidance thereunder) is not
greater than the applicable dollar limit under section 402(g)(1)(B) of the Code (as adjusted from
time to time), the Participant’s Excess Benefit and benefits under all of the Company’s nonaccount
balance deferred compensation plans (within the meaning of section 409A of the Code) may be paid in
a single lump sum payment as soon as administratively feasible after the Participant’s Separation
from Service.




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15. ACCELERATED DISTRIBUTIONS. Effective January 1, 2005, Section 4.6 (formerly Section 4.5) of
the Plan shall be amended to add the following introductory sentence immediately after the words
Accelerated Distributions: “The provisions in Sections 4.5(a) and 4.5(b) below shall apply only
with respect to Grandfathered Amounts of Grandfathered Participants.”



16. ACCELERATED DISTRIBUTIONS. Effective January 1, 2009, Section 4.6(b) (formerly Section 4.5(b))
of the Plan shall be amended to change the phrase “Section 4.5” to “Section 4.6(a)”.



17. DELAY FOR SPECIFIED EMPLOYEES. Effective for payments made to Participants on and after
January 1, 2009 (except this section shall not apply to payment of Grandfathered Amounts to
Grandfathered Participants), a new Section 4.8 shall be added to the Plan that reads as follows:



4.8. Delay for Specified Employees. If a Participant is a Specified Employee as of the date of the
Participant’s Separation from Service and the Participant is due an Excess Benefit based on the
Participant’s Separation from Service, payment shall commence the last day of the month following
the date that is six (6) months after the date of the Participant’s Separation from Service (or, if
earlier, the date of the Participant’s death). The delay shall not change the calculation of the
amount of the payments to be made to the Participant; the amount shall be calculated as if the
Participant had commenced without the delay. Payments that would have been made during the six
(6)-month delay period shall all be paid to the Participant on the last day of the month following
the date that is six (6) months after the date of the Participant’s Separation from Service (along
with the regular payment that is to be paid on that date). The Participant shall receive interest
on the delayed payments that is equal to the rate of interest used to calculate a lump sum benefit
under the Plan at the time the delayed payment is made.



18. OTHER BENEFITS. Effective for payments made to Participants on and after January 1, 2009, a
new Section 5.7 of the Plan shall be added that reads as follows:



5.7. Grandfathered Amounts and Participants. The benefits under this Article V for Participants
who had terminated employment on or before December 31, 2004 and whose benefit was earned and
vested as of December 31, 2004 shall be Grandfathered Amounts. As provided in Section 1.7, unless
an amendment specifically states that the amendment applies to the benefits and rights of these
Grandfathered Participants and Grandfathered Amounts, the amendment shall not apply to these
Grandfathered Participants and Grandfathered Amounts.



19. NORMAL FORM OF SUPPLEMENTAL BENEFIT. Effective for payments to Participants that commence
benefits on and after January 1, 2009, Section 6.2 of the Plan shall be amended to read as follows:



6.2. Normal Form of Benefit.




     6.2.1. Non-Grandfathered Amounts. For non-Grandfathered Amounts, the first payment to the
Participant shall be due on the later of the first day of the month after (i) the Participant’s
attainment of Normal Retirement Age (the Unreduced Retirement Age) specified in the applicable
Appendix B, or (ii) the Participant’s Separation from Service. The form of



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payment shall be the
normal form of payment specified in the applicable Appendix B (unless an optional form of payment
is elected), in an amount calculated as follows:




	 	(a)	 	First, the formula specified in the applicable Appendix B shall be applied
to the Participant’s Final Average Monthly Earnings and Credited Service, subject to
any special terms, conditions, or modifications (other than the reductions referred
to in (b) below) specified in the applicable Appendix B.
	 
	 	(b)	 	Second, the amount determined in (a) above shall be reduced by all of the
following (each of which shall be considered an “offsetting benefit”): (i) any
benefits paid or payable to the Participant from the Qualified Plan, (ii) any Excess
Benefits paid or payable to the Participant from this Plan, (iii) any other
retirement benefits (qualified or not) paid or payable by the Employer (or any
related employer) to the Participant, and (iv) if so specified in the applicable
Appendix B, any benefits paid or payable to the Participant under a plan of, or
pursuant to an agreement with, a prior employer of the Participant. If payment of an
offsetting benefit has not commenced on or before the date as of which the
Participant’s Supplemental Benefit commences, the reduction attributable to such
offsetting benefit shall be Actuarially Equal to the offsetting benefit payable (but
not actually commenced) on the date the Participant’s Supplemental Benefit commences
or, if the offsetting benefit could not by its terms actually be commenced until a
later date, the offsetting benefit payable on the earliest permitted commencement
date. If payment of an offsetting benefit has commenced on or before the date as of
which the Supplemental Benefit commences, the reduction attributable to such
offsetting benefit shall be Actuarially Equal to the offsetting benefit that
actually commenced.
	 
	 	 	 	The excess, if any, of (a) over (b) shall be the Participant’s Supplemental
Benefit.
	 
	 	 	 	If a Participant fails to provide the Plan Administrator with documentation
as to benefits payable under the plan of a prior employer of the Participant
as the Plan Administrator reasonably determines is necessary to calculate
any applicable offset based on such benefits before the commencement of the
Participant’s benefit, the Plan Administrator has the discretion to reduce
the Participant’s Supplemental Benefit, including reducing the Participant’s
Supplemental Benefit to no benefit ($0). The Plan Administrator may use
whatever assumptions or methods it deems reasonable to determine the
appropriate prior employer benefit or other benefit that is to be offset
against the benefits provided by this Plan and to convert that offsetting
benefit to a comparable form when calculating a Participant’s Supplemental
Benefit.




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If the applicable Appendix B lists and “Earliest Payout Date,” the earliest payout Date shall be
disregarded and have no meaning.




     6.2.2. Grandfathered Amounts — Normal Retirement. A Participant who is entitled to a
Supplemental Benefit that is a Grandfathered Amount whose employment terminates on or after his or
her Normal Retirement Date shall be entitled to a benefit commencing at the Participant’s Normal
Retirement Date (or, if later, upon the Participant’s termination of employment) in the normal form
of payment specified in the applicable Appendix B, in an amount calculated as follows:




	 	(a)	 	First, the formula specified in the applicable Appendix B shall be applied
to the Participant’s Final Average Monthly Earnings and Credited Service, subject to
any special terms, conditions, or modifications (other than the reductions referred
to in (b) below) specified in the applicable Appendix B.
	 
	 	(b)	 	Second, the amount determined in (a) above shall be reduced by all of the
following (each of which shall be considered an “offsetting benefit”): (i) any
benefits paid or payable to the Participant from the Qualified Plan, (ii) any Excess
Benefits paid or payable to the Participant from this Plan, (iii) any other
retirement benefits (qualified or not) paid or payable by the Employer (or any
related employer) to the Participant, and (iv) if so specified in the applicable
Appendix B, any benefits paid or payable to the Participant under a plan of, or
pursuant to an agreement with, a prior employer of the Participant. If payment of an
offsetting benefit has not commenced on or before the date as of which the
Participant’s Supplemental Benefit commences, the reduction attributable to such
offsetting benefit shall be Actuarially Equal to the offsetting benefit
payable (but not actually commenced) on the date the Participant’s
Supplemental Benefit commences or, if the offsetting benefit could not by
its terms actually be commenced until a later date, the offsetting benefit
payable on the earliest permitted commencement date. If payment of an
offsetting benefit has commenced on or before the date as of which the
Supplemental Benefit commences, the reduction attributable to such
offsetting benefit shall be Actuarially Equal to the offsetting benefit that
actually commenced.
	 
	 	 	 	The excess, if any, of (a) over (b) shall be the Participant’s Supplemental
Benefit at or after Normal Retirement (or at termination of employment, if
later).





     6.2.3. Grandfathered Amounts — Early Retirement. A Participant who is entitled to a
Supplemental Benefit that is a Grandfathered Amount whose employment terminates on or after his or
her Early Retirement Date and before his or her Normal Retirement Date shall be entitled to a
benefit commencing as soon as administratively feasible after the Participant’s termination of
employment in the normal form of payment specified in the applicable Appendix B, in an amount
calculated as follows:



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	 	(a)	 	First, the amount determined in Section 6.1(a) is calculated based on the
formula and reductions (including reductions for early commencement) specified in the
applicable Appendix B.
	 
	 	(b)	 	Second, the amount determined in (a) above shall be reduced by all of the
following (each of which shall be considered an “offsetting benefit”): (i) any
benefits paid or payable to the Participant from the Qualified Plan, (ii) any Excess
Benefits paid or payable from this Plan to the Participant, (iii) any other
retirement benefits (qualified or not) paid or payable by the Employer (or any
related employer) to the Participant, and (iv) if so specified in Appendix B, any
benefits paid or payable under a plan of a prior employer of the Participant. If
payment of an offsetting benefit has not commenced on or before the date as of which
the Participant’s Supplemental Benefit commences, the reduction attributable to such
offsetting benefit shall be Actuarially Equal to the offsetting benefit payable (but
not actually commenced) on the date the Participant’s Supplemental
Benefit commences
or, if the offsetting benefit could not by its terms actually be commenced until a
later date, the offsetting benefit payable on the earliest permitted commencement
date. If payment of an offsetting benefit has commenced on or before the date as of
which the Supplemental Benefit commences, the reduction attributable to such
offsetting benefit shall be Actuarially Equal to the offsetting benefit that actually
commenced.
	 
	 	 	 	The excess, if any, of (a) over (b) shall be the Participant’s Supplemental
Benefit at Early Retirement.





     6.2.4. Grandfathered Amounts — Vested Termination Benefits. A Participant who is entitled to
a Supplemental Benefit that is a Grandfathered Amount whose employment terminates before his or her
Early Retirement Date shall be entitled to a benefit, commencing as soon as administratively
feasible after the Participant’s termination of employment, in the normal form of payment specified
in the applicable Appendix B, in an amount calculated as follows:




	 	(a)	 	First, the amount determined in Section 6.1(a) is calculated based on the
formula and reductions (including reductions for early commencement and reductions
attributable to vesting restrictions) specified in the applicable Appendix B.
	 
	 	(b)	 	Second, the amount determined in (a) above shall be reduced by all of the
following (each of which shall be considered an “offsetting benefit”): (i) any
benefits paid or payable to the Participant from the Qualified Plan, (ii) any Excess
Benefits paid or payable from this Plan to the Participant, (iii) any other
retirement benefits (qualified or not) paid or payable by the Employer (or any
related employer) to the Participant, and (iv) if so specified in Appendix A, any
benefits paid or payable under a plan of a prior employer of the Participant. If
payment of an offsetting benefit has not commenced on or before the date as of which
the Supplemental 




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	 	 	 	Benefit commences, the reduction attributable to such offsetting
benefit shall be Actuarially Equal to the offsetting benefit payable (but not
actually commenced) on the date the Participant’s Supplemental Benefit commences or,
if the offsetting benefit could not by its terms actually be commenced until a later
date, the offsetting benefit payable on the earliest permitted commencement date. If
payment of an offsetting benefit has commenced on or before the date as of which the
Supplemental Benefit commences, the reduction attributable to such offsetting benefit
shall be Actuarially Equal to the offsetting benefit that actually commenced.
	 
	 	 	 	The excess, if any, of (a) over (b) shall be the Participant’s Supplemental
Benefit at Vested Termination.





     6.2.5. Grandfathered Amounts — Documentation and Assumptions. Notwithstanding anything in
this Article VI to the contrary, with respect to Grandfathered Amounts:




	 	(a)	 	No Supplemental Benefits shall be due to a Participant until after the
Participant has provided the Plan Administrator with such documentation of any
benefits payable under the plan of a prior employer of the
Participant as the Plan Administrator reasonably determines is necessary to
calculate any applicable offset based on such benefits.
	 
	 	(b)	 	The Plan Administrator may use whatever assumptions or methods it deems
reasonable to determine the appropriate prior employer benefit or other benefit that
is to be offset against the benefits provided by this Plan and to convert that
offsetting benefit to a comparable form when calculating a Participant’s Supplemental
Benefit.
	 
	 	(c)	 	A Participant who is Disabled and who is entitled to receive a Disability
Benefit as provided in Article VII shall not be treated for purposes of this
Article VI as having terminated his or her employment prior to the date on which such
Disability Benefit ceases. If a Participant’s Disability Benefit ceases due to the
Participant’s death or attainment of his or her Normal Retirement Date, the
Participant shall be treated as having terminated employment on the date the
Disability Benefit ends. If the Participant’s Disability Benefit ceases because the
Participant ceased to be Disabled, the Participant shall be treated as terminated on
the date the Disability Benefit ends only if the Participant fails to return
immediately to active employment.
	 
	 	(d)	 	As applied to any particular Participant, the terms and conditions of this
Article VI, including the foregoing subsections of this Section 6.2.5, shall be
subject to any modifications or limitations set forth in the Appendix B for that
Participant.





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20. OPTIONAL PAYMENT FORMS. Effective for payments to Participants that commence benefits on and
after January 1, 2009, a new Section 6.3 (former Section 6.6, moving up due to the consolidation of
Sections 6.2, 6.3, 6.4, and 6.5) of the Plan shall be amended to read as follows:



6.3. Optional Payment Forms.




     6.3.1. Non-Grandfathered Amounts. For non-Grandfathered Amounts, in lieu of payment in the
normal form described in Section 6.2 above, a Participant may elect to receive his or her
Supplemental Benefit in any of the following forms:




	 	(a)	 	single life annuity;
	 
	 	(b)	 	single life annuity with 5, 10, 15, or 20 year period certain;
	 
	 	(c)	 	50%, 75%, or 100% joint and survivor annuity;
	 
	 	(d)	 	Estate Protection Survivor Annuity (as described in Section 6.1(d) of the
Qualified Plan);
	 
	 	(e)	 	Estate Protection Single Life Annuity (as described in Section 6.1(e) of
the Qualified Plan); or
	 
	 	(f)	 	annual installment payments paid over a period of three (3) years.
	 
	 	 	 	Payment in any of the foregoing forms shall be in an amount that is
Actuarially Equal to the Supplemental Benefit payable in the applicable
normal form described in Section 6.2.
	 
	 	 	 	In cases where a Participant desires to change the Participant’s form of
payment, (i) if a Participant’s form of payment prior to electing one of the
optional forms of payment listed above is an annuity, (ii) the Participant
elects an annuity optional form of payment (options (a), (b), (c), (d), and
(e)) on or before the date of the Participant’s Separation from Service, and
(iii) the election is actuarially equivalent applying reasonable actuarial
methods and assumptions, then the Participant’s benefit shall commence on
the same date the benefit would have been paid but for the election of the
optional form.  In all other cases, if a Participant elects one
of these optional payment forms, the election (i) shall not take effect
until the date that is twelve (12) months after the date on which the
Participant makes the election, (ii) shall delay the distribution to a date
that is at least five (5) years after the date the distribution would have
been made to the Participant absent the election, and (iii) in the case of a
distribution as of a specified time (but not upon a Participant’s Separation
from Service, Disability, or death), the election shall not take effect
unless the Participant makes the election at least twelve (12) months prior
to the date the distribution is to commence.




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	 	 	 	In cases where a Participant desires to change the Participant’s time when
payment commences, the Participant may pick a later date or the later of a
date or Separation from Service subject to rules established by the
Committee provided the election (i) shall not take effect until the date
that is twelve (12) months after the date on which the Participant makes the
election, (ii) shall delay the distribution to a date that is at least
five (5) years after the date the distribution would have been made to the
Participant absent the election, and (iii) in the case of a distribution as
of a specified time (but not upon a Participant’s Separation from Service,
Disability, or death), the election shall not take effect unless the
Participant makes the election at least twelve (12) months prior to the date
the distribution is to commence.
	 
	 	 	 	The Committee may impose limits on the number of elections a Participant may
make with respect to changing the form and time of payment. An election form
that does not satisfy the advance filing requirements shall be void and
shall be disregarded. In all cases an election form shall not be considered
filed until the completed form is actually received by the Committee or its
designated agent.





     6.3.2. Grandfathered Amounts. For Grandfathered Amounts, in lieu of payment in the normal
form described in the applicable Appendix B, a Participant may elect to receive his or her
Supplemental Benefit in any of the optional forms of payment described in Section 4.3 of this Plan
(subject to any limitations on their availability set forth therein), by making an election in
writing on an election form approved by the Committee and filed with the Committee or its
designated agent for this purpose not less than twelve (12) full months prior to the Participant’s
termination of employment. A Participant may change his or her election at any time by filing
another election form; provided, however, that any election form that does not satisfy the advance
filing requirements of the preceding sentence shall be void and shall be disregarded. An election
form shall not be considered filed until the completed form is actually received by the Committee
or its designated agent.


If a Participant was married at the time that the last optional payment election form was filed by
such Participant at least twelve (12) full months prior to the Participant’s termination of
employment and either (a) the Participant is married to a different spouse on the date the
Participant’s benefit commences, or (b) if the spouse was named as a joint annuitant on such last
optional payment election form and the spouse dies before the date the Participant’s benefit
commences, then (in either case) the Participant’s optional payment election shall be void and have
no effect, and the Participant’s benefit shall be paid in the normal form described in the
applicable Appendix B.



If a Participant elects an optional payment election form that requires the designation of a joint
annuitant and such joint annuitant dies prior to the date the Participant’s benefit commences, the
Participant’s optional payment election shall be void and the Participant’s benefit shall be paid
in the normal form described in the applicable Appendix B.




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Payment in any available optional form other than a single lump sum cash payment shall be in an
amount that is Actuarially Equal to the Supplemental Benefit payable in the normal form of payment
specified in the applicable Appendix B. Payment in the form of a single lump sum cash payment
shall be in an amount that is Actuarially Equal to the Supplemental Benefit payable in the normal
form of payment specified in the applicable Appendix B; provided, however, that if the
Participant’s Supplemental Benefit was subject to an early retirement reduction, such reduced
Supplemental Benefit shall be converted to a benefit as of the earliest time the Participant could
have received an unreduced benefit by dividing the reduced Supplemental Benefit by the early
reduction factor specified in the applicable Appendix B, and the Participant’s single lump sum
shall be calculated based on that converted amount.



Payment in any optional form timely elected pursuant to this Section 6.6 shall commence at the same
time as the Participant’s benefit would have commenced if it had been paid in the normal form of
payment unless the Participant specifies a later date in his or her last effective optional payment
election form.



Election of an optional form of payment with respect to a Participant’s Supplemental Benefit shall
not affect payment of the Participant’s Excess Benefit, and election of an optional form of payment
with respect to a Participant’s Excess Benefit shall not affect payment of the
Participant’s Supplemental Benefit, unless the Participant’s last effective optional payment
election form expressly provides that it applies to both benefits.



21. DOMESTIC PARTNER. Effective for payments made to Participants on and after January 1, 2009
(except for payment of Grandfathered Amounts to Grandfathered Participants, to which the domestic
partner change shall not apply), a new Section 6.4 of the Plan shall be added to the Plan that
reads as follows:



6.4. Domestic Partner Annuity Rules.




     6.4.1. Domestic Partner. In addition to the preceding rules, the survivor benefit payable
under Section 4.3(c) (50%, 75%, or 100% joint and survivor annuity) to the Participant’s Domestic
Partner shall consist of the monthly survivor annuity described in Section 6.4.2 below and a single
lump sum payment equal to the excess of the Actuarially Equal present value of the portion of the
Participant’s Supplemental Benefit at the time of the Participant’s death that the Domestic Partner
was designated to receive over the Actuarially Equal present value at the time of the Participant’s
death of the monthly survivor annuity described in Section 6.4.2, all determined in accordance with
Appendix C of the Qualified Plan; provided, however, that if the portion of the Participant’s
Supplemental Benefit at the time of the Participant’s death that is payable to the Participant’s
Domestic Partner is less than the value of the monthly survivor annuity described in Section 6.4.2
below, then the Domestic Partner shall be paid only a pro rata portion of such monthly survivor
annuity and no lump sum payment.



     The first payment of a Domestic Partner’s monthly survivor annuity described in Section 6.4.2
below shall be due on the later of the first day of the month after (i) the Participant’s
attainment of age 62, or (ii) the Participant’s Separation from Service. The last payment of this
survivor annuity shall be due to the Domestic Partner on the first day of the



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calendar month in
which the Domestic Partner dies. No election, rescission, or other action taken by the Participant
shall be effective to modify the survivor annuity hereinbefore described.



     6.4.2. Domestic Partner’s Annuity. The amount of monthly survivor annuity payable to the
Participant’s Domestic Partner shall be:




	 	(a)	 	if the Participant dies before the Participant’s termination of employment,
the amount which the Domestic Partner would have received if the Participant:






	 	(i)	 	had a termination of employment on the date of
the Participant’s death (for reasons other than the Participant’s
death),
	 
	 	(ii)	 	had lived and elected to commence receipt of
the Participant’s normal form of benefit in a 50% joint and survivor
annuity form on the date the Domestic Partner elects to commence the
monthly survivor annuity,
	 
	 	(iii)	 	had lived until the annuity starting date, and
	 
	 	(iv)	 	had died immediately after payments commenced,
or






	 	(b)	 	if the Participant dies after the Participant’s termination of employment,
the amount which the Domestic Partner would have received if the Participant:






	 	(i)	 	had lived and elected to commence receipt of
the Participant’s normal form of benefit in a 50% joint and survivor
annuity form on the date the Domestic Partner elects to commence the
monthly survivor annuity,
	 
	 	(ii)	 	had lived until the annuity starting date, and
	 
	 	(iii)	 	had died immediately after payments commenced.




22. DELAY FOR SPECIFIED EMPLOYEES. Effective for payments made to Participants on and after
January 1, 2009 (except this section shall not apply to payment of Grandfathered Amounts to
Grandfathered Participants), a new Section 6.5 shall be added to the Plan that reads as follows:



6.5. Delay for Specified Employees. If a Participant is a Specified Employee as of the date of the
Participant’s Separation from Service and the Participant is due an Supplemental Benefit based on
the Participant’s Separation from Service, payment shall commence the last day of the month
following the date that is six (6) months after the date of the Participant’s Separation from
Service (or, if earlier, the date of the Participant’s death). The delay shall not change the
calculation of the amount of the payments to be made to the Participant; the amount shall be
calculated as if the Participant had commenced without the delay. Payments that would have been
made during the six (6)-month delay period shall all be paid to the Participant on the last


-17-









 






 day of
the month following the date that is six (6) months after the date of the Participant’s Separation
from Service (along with the regular payment that is to be paid on that date). The Participant
shall receive interest on the delayed payments that is equal to the rate of interest used to
calculate a lump sum benefit under the Plan at the time the delayed payment is made.



23. DEATH BEFORE BENEFIT COMMENCEMENT. Effective for payments made to Participants on and after
January 1, 2009, Section 8.1 shall be amended (i) to renumber paragraph (a) as subsection 8.1.1,
(ii) to renumber paragraph (b) as subsection 8.1.2, (iii) to add subsection 8.1.3 that reads as
follows:




     8.1.3. Non-Grandfathered Amounts. For non-Grandfathered Amounts, any survivor benefit payable
under subsections 8.1.1 or 8.1.2 of this Section 8.1 to a Beneficiary shall be paid in the form of
a single lump sum cash payment equal to that portion of the Actuarially Equal present value of the
applicable benefit (Supplemental Benefit or Excess Benefit) at the time of the Participant’s death
that the Beneficiary was designated to receive. The benefit payment will commence as of the
first day of the month following the date that is four (4) months after the date of the
Participant’s death.


and, (iv) to renumber and reorganize existing paragraphs (c) and (d) under a new subsection 8.1.4
as follows:




     8.1.4. Grandfathered Amounts.




	 	(a)	 	Grandfathered Amounts — Form of Benefit — When Payable. For Grandfathered
Amounts, any survivor benefit payable under subsections 8.1.1 or 8.1.2 of this
Section 8.1 to a Beneficiary other than the Participant’s surviving spouse shall be
paid in the form of a single lump sum payment equal to that portion of the
Actuarially Equal present value of the applicable benefit (Supplemental Benefit or
Excess Benefit) at the time of the Participant’s death that the Beneficiary was
designated to receive.
	 
	 	 	 	Any survivor benefit payable under subsections 8.1.1 or 8.1.2 of Section 8.1
to the Participant’s surviving spouse shall consist of the monthly survivor
annuity described in subsection (b) of this Section 8.1.4 and a single lump
sum payment equal to the excess of the Actuarially Equal present value of
the portion of the survivor benefit at the time of the Participant’s death
that the surviving spouse was designated to receive over the Actuarially
Equal present value at the time of the Participant’s death of the monthly
survivor annuity described in subsection (b) of this Section 8.1.1;
provided, however, that if the portion of the survivor benefit at the time
of the Participant’s death that is payable to the Participant’s surviving
spouse is less than the value of the monthly survivor annuity described in
subsection (b) below, then the surviving spouse shall be paid only a pro
rata portion of such monthly survivor annuity and no lump sum payment.




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	 	 	 	Any lump sum payment due to a Beneficiary shall be paid as soon as
administratively feasible after the Employer is provided evidence of the
Participant’s death. The first payment of a surviving spouse’s monthly
survivor annuity described in subsection (b) below shall be due after the
death of the Participant on the first day of the calendar month after the
calendar month in which the Participant died or, if later, the first day of
the calendar month in which the Participant’s “Earliest Commencement Date”
(as defined in the Qualified Plan) would have occurred. The last payment of
this survivor annuity shall be due to the surviving spouse on the first day
of the calendar month in which the surviving spouse dies. No election,
rescission, or other action taken by the Participant under Section 4.3.2
(optional forms for grandfathered Excess Benefits) or Section 6.3.2
(optional forms for grandfathered Supplemental Benefits) shall be effective
to modify the survivor annuity hereinbefore described. No other death benefit shall be payable with respect to a Participant who
dies under these circumstances.
	 
	 	(b)	 	Grandfathered Amounts — Spouse’s Annuity. For Grandfathered Amounts, the
amount of any survivor benefit payable under subsections 8.1.1 or 8.1.2 of this
Section 8.1 that is payable in the form of a monthly survivor annuity to the
Participant’s spouse shall be:






	 	(i)	 	if the Participant dies before the
Participant’s termination of employment, the amount which the surviving
spouse would have received if the Participant had a termination of
employment on the date of the Participant’s death for reasons other
than the Participant’s death and had lived to and had elected to
commence receipt of the applicable benefit (Supplemental Benefit or
Excess Benefit) on the date as of which the surviving spouse’s monthly
survivor annuity is to commence and had elected to receive the
applicable benefit in the form of a 50% joint and survivor annuity form
and had immediately died, or
	 
	 	(ii)	 	if the Participant dies after the Participant’s
termination of employment, the amount which the surviving spouse would
have received if the Participant had lived to and had elected to
commence receipt of the applicable benefit (Supplemental Benefit or
Excess Benefit) on the date as of which the surviving spouse’s monthly
survivor annuity is to commence and had elected to receive the
applicable benefit in the 50% joint and survivor annuity form and had
immediately died.




24. AMENDMENT. Effective as of July 1, 2008, Section 11.1 of the Plan shall be amended to reads as
follows:



11.1. Amendment. The Company, by action of its Board of Directors or the Compensation Committee of
the Board of Directors, reserves the right at any time and from time to time,


-19-









 






whether
prospectively, retroactively, or both, to terminate, modify or amend, in whole or in part, any or
all provisions of the Plan, without notice to any person affected by this Plan. This power
includes the right at any time and for any reason deemed sufficient by it to terminate or curtail
the benefits of this Plan with regard to persons expecting to receive benefits in the future and/or
persons already receiving benefits at the time of such action. No modification of the terms of
this Plan shall be effective unless it is adopted or ratified by the Board of Directors or the
Compensation Committee of the Board of Directors. No oral representation concerning the
interpretation or effect of this Plan shall be effective to amend the Plan. All of the power and
authority granted to the Company pursuant to this Section may also be exercised by the Benefits
Administration Committee of U.S. Bancorp, except the Benefits Administration Committee may not
amend the Plan in a manner that materially increases and decreases the benefit of a senior
executive officer of the Company (unless the Board of Directors or the Compensation Committee
explicitly delegate this authority to the Benefits Administration Committee).



25. CLAIMS PROCEDURE. Effective for claims filed on and after January 1, 2009, Section 12 of the
Plan shall be amended to reads as follows:



12.1. Determinations. The Committee and the BAC shall make such determinations as may be required
from time to time in the administration of the Plan. The Committee and BAC shall have the
discretion, authority and responsibility to interpret and construe this Plan 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. Their discretionary authority shall include all matters arising under the Plan.



12.2. Claims and Review Procedure. Until modified by the BAC, 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.




     12.2.1. Initial Claim. An individual may, subject to any applicable deadline, file with the
BAC to be reviewed by the BAC’s designate (employees of the Human Resources Department of the
Company unless the BAC appoints a different designate).




	 	(a)	 	If the claim is denied in whole or in part, the Human Resources Department
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 Human Resources Department determines that
special circumstances require an extension of time for determination of the claim,
provided that the Human Resources Department 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.





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



-20-









 






	 	(a)	 	the specific reasons for the adverse determination;
	 
	 	(b)	 	references to the specific provisions of the Plan (or other applicable Plan
document) on which the adverse determination is based;
	 
	 	(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 section 502(a) of ERISA following an adverse determination on
review.





     12.2.3. Request for Review. Within sixty (60) days after receipt of an initial adverse
benefit determination notice, the claimant may file with the BAC 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. With respect to a request for review, the BAC may refer a
claim to the Committee for review rather than review by the BAC (in such a case references to the
BAC in Sections 12.2.3, 12.2.4, and 12.2.5 shall be to the Committee).



     12.2.4. Claim on Review. If the claim, upon review, is denied in whole or in part, the BAC
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 BAC determines that special circumstances require an
extension of time for determination of the claim, provided that the 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 BAC’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.




-21-









 











     12.2.5. Notice of Adverse Determination for Claim on Review. A notice of an adverse
determination for a claim on review shall be 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 (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
	 
	 	(d)	 	a statement of the claimant’s right to bring an action under section 502(a)
of ERISA.




12.3. Rules and Regulations.




     12.3.1. Adoption of Rules. Any rule not in conflict or at variance with the provisions hereof
may be adopted by the BAC.



     12.3.2. 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 BAC 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 BAC upon request.
	 
	 	(b)	 	All decisions on claims and on requests for a review of denied claims shall
be made by the BAC unless delegated as provided for in the Plan, in which case
references to the BAC shall be treated as references to the BAC’s delegate.
	 
	 	(c)	 	Claimants may be represented by a lawyer or other representative at their
own expense, but the BAC 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.
	 
	 	(d)	 	The decision of the BAC 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 BAC.





-22-









 





	 	(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 BAC may, in its discretion, rely on any applicable statute of
limitation or deadline as a basis for denial of any claim.




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



12.5. Exhaustion of Administrative Remedies. The exhaustion of the claims 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, 




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	 	 	 	whether or not statutory,
until the claims 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 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.




12.6. 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:
(i) thirty (30) months after the claimant knew or reasonably should have known of the principal
facts on which the claim is based (to the extent the claim is based on investment directions, the
thirty (30) month period is shortened to nineteen (19) months), or, (ii) six (6) months after the
claimant has exhausted the claims and review procedure.



12.7. 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.



26. CHOICE OF LAW. Effective for claims filed on and after January 1, 2008, Section 13.8 of the
Plan shall be amended to reads as follows:



13.8. 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). The Participant, the
Participant’s Beneficiaries, and any other person claiming a benefit shall only have recourse
against the Employer.



27. CHOICE OF VENUE. Effective for claims filed on and after January 1, 2008, Section 13.9 of the
Plan shall be amended to reads as follows:



13.9. Choice of Venue. Any claim or action brought with respect to this Plan shall be brought in
the Federal courts of the State of Minnesota.



28. SAVINGS CLAUSE. Save and except as expressly amended above, the Plan shall continue in full
force and effect.





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