FIRST AMENDMENT OF
U.S. BANK EXECUTIVE EMPLOYEE DEFERRED COMPENSATION PLAN (2005
Statement)
The
U.S. Bank Executive Employee Deferred Compensation Plan (2005
Statement) (the “Plan”) is amended in the following
respects:
1. PREAMBLE.
Effective January 1, 2009, the Preamble is clarified to read
as follows:
U.S. Bancorp
approved the U.S. Bank Executive Employees Deferred Compensation
Plan (2005 Statement) to distinguish elective contributions made by
a select group of management or highly compensated employees that
are subject to section 409A of the Code. The Plan applies to
elective contributions made by eligible employees on and after
January 1, 2005, including the deferral of elective
contributions on 2004 bonus payments that were paid in
2005.
2.
AFFILIATE. Effective January 1, 2009, the second sentence of
Section 1.1(1) shall be deleted.
3. BENEFITS
ADMINISTRATION COMMITTEE. Effective January 1, 2009, a new
Section 1.1(4) shall be added to the Plan (with subsequent Sections
and cross references renumbered as appropriate) that reads as
follows:
(4) The
terms “ Benefits Administration Committee ” and
“ BAC ” shall mean 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).
4. BENEFIT
COMMENCEMENT DATE. Effective for participants whose benefits
commence on or after January 1, 2009, Section 1.1(5) (prior to
this amendment Section 1.1(4)) shall be deleted (with subsequent
Sections and cross references renumbered as
appropriate).
5. CHANGE IN
CONTROL. Effective January 1, 2009, Section 1.1(6) (prior to
this amendment Section 1.1(7)) shall be deleted (with subsequent
Sections and cross references renumbered as
appropriate).
6. CODE.
Effective January 1, 2009, Section 1.1(6) (prior to this
amendment Section 1.1(8)) shall be amended to read as
follows:
(6) The
term “Code” shall mean the Internal Revenue Code
of 1986, including applicable regulations for the specified section
of the Code. Any reference in this Plan 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.
7. DISABILITY. Effective January 1,
2009, Section 1.1(14) (prior to this amendment
Section 1.1(15)) shall be deleted (with subsequent Sections
and cross references renumbered as appropriate).
8. ERISA. Effective January 1, 2009,
Section 1.1(19) (prior to this amendment Section 1.1(21))
shall be amended to read in full as follows:
(19) The
term “ERISA” shall mean the Employee Retirement
Income Security Act of 1974, including applicable regulations for
the specified section of ERISA. Any reference in this Plan 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.
9. FINANCIAL HARDSHIP. Effective
January 1, 2009, Section 1.1(20) prior to this amendment
Section 1.1(22)) shall be deleted (with subsequent Sections and
cross references renumbered as appropriate).
10. KEY
EMPLOYEE. Effective January 1, 2009, Section 1.1(20)
(prior to this amendment Section 1.1(23), the definition of Key
Employee) shall be deleted (with subsequent Sections and cross
references renumbered as appropriate — the definition is
being replaced by the phrase “Specified Employee”). In
addition, the phrase “Key Employee” in the Plan shall
be replaced by the phrase “Specified
Employee”.
11. PLAN. Effective January 1, 2009,
Section 1.1(21) (prior to this amendment Section 1.1(25)) shall be
amended to read in full as follows (and all other references to the
name of the Plan revised as appropriate, including the cover
page):
(21) The
term “Plan” shall mean the U.S. Bank Executive
Employees Deferred Compensation Plan (2005 Statement).
12. RETIREMENT. Effective January 1,
2009, Section 1.1(24) prior to this amendment Section 1.1(27))
shall be deleted (with subsequent Sections and cross references
renumbered as appropriate — the terms
“Retirement”, “Retire(s)” and
“Retired” shall be replaced with the phrase
“Separation from Service” unless such replacement shall
lead to repetition of the phrase “Separation from
Service” in which case the second “Separation from
Service” shall be deleted).
13. SEPARATION FROM SERVICE (previously
“Termination of Employment”). Effective January 1,
2009, a new Section 1.1(24) shall be added that reads in full as
follows (with subsequent Sections and cross references renumbered
as appropriate — the phrase “Termination of
Employment” is being replaced by the phrase “Separation
from Service”):
(24) The
term “ Separation from Service ” shall mean a
Participant’s separation from service as defined under Code
Section 409A. 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.
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14. SPECIFIED EMPLOYEE (previously
“Key Employee”). Effective for participants who are
specified employees as of January 1, 2009, a new Section
1.1(26) shall be added to the Plan ((with subsequent Sections and
cross references renumbered as appropriate — the phrase
“Key Employee” is being replaced by the phrase
“Specified Employee”) that reads in full as
follows:
(26) The
term “Specified Employee” shall mean a
Participant who is a specified employee for purposes of Code
Section 409A as defined in the separate document entitled
“U.S. Bank Specified Employee
Determination.”
15. TERMINATION OF EMPLOYMENT. Effective
January 1, 2009, Section 1.1(27) (prior to this amendment
Section 1.1(30), the definition of Termination of Employment)
shall be deleted (with subsequent Sections and cross references
renumbered as appropriate — the definition is being replaced
by the phrase “Separation from Service”). In addition,
the phrase “Termination of Employment” in the Plan
shall be replaced by the phrase “Separation from
Service”.
16. UNFORESEEABLE EMERGENCY. Effective for
distributions on and after January 1, 2009, a new
Section 1.1(27) shall be added to the Plan ((with subsequent
Sections and cross references renumbered as appropriate) that reads
in full as follows:
(27) The term
“Unforeseeable Emergency” shall mean an
unforeseeable emergency as defined under Code
Section 409A.
17. CESSATION OF ACTIVE PARTICIPATION.
Effective January 1, 2009, Section 2.2 shall be amended to
read in full as follows:
2.2 Cessation of Active Participation . Deferrals
from a Participant’s Base Pay shall cease as of the earlier
of (i) the last day of the Plan Year for which a Participant
has entered into a Deferred Compensation Agreement, (ii) the date
the Participant dies, and (iii) the last day of the Plan Year
in which the BAC or the Executive Vice President of Human Resources
determines the Participant may no longer defer compensation under
the Plan. Deferrals from a Participant’s Bonus shall cease as
of the earlier of (i) the date of the bonus payment for the
last year in which the Participant entered into a Deferred
Compensation Agreement for the Participant’s Bonus, or (ii)
the date the Participant dies. Nothing in this Plan shall prevent
the BAC or the Executive Vice President of Human Resources from
determining a Participant is no longer a member of a select group
of management and highly compensated employees.
18. EFFECTIVE DATE OF DEFERRED COMPENSATION
AGREEMENT. Effective January 1, 2009, Section 3.2 shall be
amended to read in full as follows:
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3.2 Effective Date of Deferred Compensation Agreement
. A Deferred Compensation Agreement shall be effective upon
receipt (as determined by the BAC) and shall be irrevocable as of
the December 31 prior to the Plan Year to which the Deferred
Compensation Agreement applies.
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