EXHIBIT 10.3
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Carver Federal Savings Bank
401(k) Savings Plan
In
RSI Retirement Trust
(As Amended And Restated Effective January 1, 1997
and including provisions effective through January 1, 2002)
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Incorporating Proposed Amendment Number One
Table Of Contents
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TABLE OF CONTENTS
Table Of Contents..............................................................i
Introduction...................................................................1
Article I - Definitions.......................................................3
Article II - Eligibility and Participation...................................13
2.1 Eligibility.....................................................13
2.2 Ineligible Employees............................................13
2.3 Participation...................................................14
2.4 Termination of Participation....................................14
2.5 Eligibility upon Reemployment...................................14
2.6 Eligibility Upon Reemployment of Employees Subject to
Section 16(b) of the Securities Exchange Act of 1934.........15
Article III - Contributions and Limitations on Contributions.................16
3.1 Before-Tax Contributions........................................16
3.2 Limitation on Before-Tax Contributions..........................16
3.3 Changes in Before-Tax Contributions.............................19
3.4 Matching Contributions..........................................20
3.5 Special Contributions...........................................20
3.6 Discretionary Employer Contributions............................21
3.7 Limitation on Matching Contributions............................21
3.8 Aggregate Limit; Multiple Use of Alternative Limitation.........23
3.9 Interest on Excess Contributions................................24
3.10 Payment of Contributions to the Trust and Separate Agency.......25
3.11 Rollover Contributions..........................................25
3.12 Section 415 Limits on Contributions.............................26
3.13 Nonelective Employer Contributions..............................30
Article IV - Vesting and Forfeitures.........................................32
4.1 Vesting.........................................................32
4.2 Forfeitures.....................................................33
4.3 Vesting upon Reemployment.......................................34
Article V - Trust Fund, Investment Accounts and voting rights................36
5.1 Trust Fund......................................................36
5.2 Interim Investments.............................................36
5.3 Account Values..................................................37
5.4 Voting Rights...................................................37
5.5 Tender Offers and Other Offers..................................38
5.6 Separate Assets.................................................39
5.7 Power to Invest in Employer Securities..........................39
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787 i Carver Federal Savings Bank
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Article VI - Investment Directions, Changes of Investment Directions and
Transfers Between Investment Accounts.........................................40
6.1 Investment Directions...........................................40
6.2 Change of Investment Directions.................................40
6.3 Transfers Between Investment Accounts...........................40
6.4 Employees Other than Participants...............................41
6.5 Restrictions on Investments in the Employer Stock Fund for
Certain Participants..........................................41
Article VII - Payment of Benefits............................................43
7.1 General.........................................................43
7.2 Spousal Consent Requirements - Optional Forms of Benefit
Payments, Loans, Withdrawals, Beneficiaries....................44
7.3 Non-Hardship Withdrawals........................................46
7.4 Hardship Distributions..........................................46
7.5 Distribution of Benefits Following Retirement, Disability or
Termination of Service.........................................50
7.6 Optional Forms of Benefit Payment upon Retirement, Disability
or Termination of Service......................................52
7.7 Designation of Beneficiary......................................55
7.8 Preretirement Death Benefits....................................56
7.9 Direct Rollover of Eligible Rollover Distributions..............58
7.10 Latest Commencement of Benefits.................................64
7.11 Manner of Payment of Distributions from the Employer
Stock Fund.....................................................65
Article VIII - Loans to Participants.........................................66
8.1 Definitions and Conditions......................................66
8.2 Loan Amount.....................................................66
8.3 Term of Loan....................................................66
8.4 Operational Provisions..........................................67
8.5 Repayments......................................................68
8.6 Default.........................................................69
8.7 Coordination of Outstanding Account and Payment of Benefits.....70
Article IX - Administration..................................................71
9.1 General Administration of the Plan..............................71
9.2 Designation of Named Fiduciaries................................71
9.3 Responsibilities of Fiduciaries.................................71
9.4 Plan Administrator..............................................72
9.5 Committee.......................................................72
9.6 Powers and Duties of the Committee..............................73
9.7 Certification of Information....................................74
9.8 Authorization of Benefit Payments...............................75
9.9 Payment of Benefits to Legal Custodian..........................75
9.10 Service in More Than One Fiduciary Capacity.....................75
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9.11 Payment of Expenses.............................................75
9.12 Administration of Separate Assets...............................76
Article X - Benefit Claims Procedure.........................................77
10.1 Definition......................................................77
10.2 Claims..........................................................77
10.3 Disposition of Claim............................................77
10.4 Denial of Claim.................................................77
10.5 Inaction by Plan Administrator..................................78
10.6 Right to Full and Fair Review...................................78
10.7 Time of Review..................................................78
10.8 Final Decision..................................................78
Article XI - Amendment, Termination, and Withdrawal..........................79
11.1 Amendment and Termination.......................................79
11.2 Withdrawal from the Trust Fund..................................79
Article XII - Top-Heavy Plan Provisions......................................80
12.1 Introduction....................................................80
12.2 Definitions.....................................................80
12.3 Minimum Contributions...........................................84
12.4 Impact on Section 415 Maximum Benefits..........................85
12.5 Vesting.........................................................86
Article XIII - Miscellaneous Provisions......................................87
13.1 No Right to Continued Employment................................87
13.2 Merger, Consolidation, or Transfer..............................87
13.3 Nonalienation of Benefits.......................................87
13.4 Missing Payee...................................................87
13.5 Affiliated Employers............................................88
13.6 Successor Employer..............................................88
13.7 Return of Employer Contributions................................88
13.8 Adoption of Plan by Affiliated Employer.........................88
13.9 Construction of Language........................................89
13.10 Headings........................................................89
13.11 Governing Law...................................................89
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787 iii Carver Federal Savings Bank
Introduction
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INTRODUCTION
Effective as of October 1, 1989, ("Effective Date"), Carver Federal Savings Bank
("Employer") adopted the Carver Federal Savings Bank 401(k) Savings Plan and
Trust ("1989 Plan").
Effective as of May 1, 1993, the Employer adopted resolutions wherein RSI
Retirement Trust was named successor trustee and the RSI Retirement Trust
Agreement and Declaration of Trust ("Agreement") was adopted.
Effective as of May 1, 1993, the 1989 Plan was amended and restated in its
entirety. The amended and restated plan became known as Carver Federal Savings
Bank 401(k) Savings Plan in RSI Retirement Trust ("Prior Plan"). Effective as of
October 24, 1994, the Employer (a) added an investment fund to the Prior Plan
consisting of common stock of the Employer, (b) established the Plan as a Plan
of Partial Participation as defined under the Agreement and (c) adopted a
Separate Agreement establishing a separate trust to hold the common stock of the
Employer and designated a Separate Agency to serve as trustee.
Effective as of January 1, 1997, the Prior Plan is amended and restated in its
entirety. The amended and restated plan shall be known as Carver Federal Savings
Bank 401(k) Savings Plan in RSI Retirement Trust ("Plan"), shall contain the
terms and conditions set forth herein, and shall in all respects be subject to
the provisions of the Agreement which are incorporated herein and made a part
hereof.
The Plan as amended and restated hereunder incorporates a cash or deferred
arrangement under Section 401(k) of the Internal Revenue Code of 1986, as
amended ("Code").
The Plan shall constitute a profit-sharing plan within the meaning of Section
401(a) of the Code, without regard to current or accumulated profits of the
Employer, as provided in Section 401(a)(27) of the Code.
The Plan complies with all Internal Revenue Service legislation and regulations
issued to date addressing tax-qualified plans, including the Uniformed Services
Employment and Reemployment Rights Act of 1994, the Uruguay Round Agreements
Act, the Small Business Job Protection Act of 1996, the Taxpayer Relief Act of
1997, the Restructuring and Reform Act of 1998 and the Community Renewal Tax
Relief Act of 2000 (commonly referred to as GUST II), and "good faith"
compliance with the requirements of the Economic Growth and Tax Relief
Reconciliation Act of 2001 (EGTRRA), as provided for under Internal Revenue
Service Notice 2001-57. In addition, the Plan complies with final regulations
under Code Section 401(a)(9).
Subject to any amendments that may subsequently be adopted by the Employer prior
to his Termination of Service, the provisions set forth in this Plan shall apply
to an Employee who is in the employment of the Employer on or after January 1,
1997. Except to the extent specifically required to the contrary under the terms
of this Plan, for terminations of employment prior to January 1, 1997, the
rights and benefits of a former participant shall be determined in accordance
with the provisions of the Prior Plan as in effect on the date of the former
participant's termination of employment.
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787 1 Carver Federal Savings Bank
Introduction
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The Employer has herein restated the Plan with the intention that (i) the Plan
shall at all times be qualified under Section 401(a) of the Code, (ii) the
Agreement and any trust created under any Separate Agreement shall be tax-exempt
under Section 501(a) of the Code, and (iii) Employer contributions under the
Plan shall be tax deductible under Section 404 of the Code. The provisions of
the Plan and the Agreement, as well as any Separate Agreement shall be construed
to effectuate such intentions.
Effective January 1, 2002, the Plan is amended to meet the requirements for a
designed-based "safe harbor" arrangement under Sections 401(k)(12) and
401(m)(11) of the Code.
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787 2 Carver Federal Savings Bank
Article I -
Definitions
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ARTICLE I -
DEFINITIONS
The following words and phrases shall have the meanings hereinafter ascribed to
them. Those words and phrases which have limited application are defined in the
respective Articles in which such terms appear.
1.1 Accounts means the Before-Tax Contribution Account (including Special
Contributions, if any), Matching Contribution Account, Rollover
Contribution Account, Discretionary Employer Contribution Account and
commencing January 1, 2001, Nonelective Employer Contribution Account,
established under the Plan on behalf of an Employee.
1.2 Actual Contribution Percentage means, prior to January 1, 2002, the ratio
(expressed as a percentage) of the Matching Contributions under the Plan
which are made on behalf of an Eligible Employee for the Plan Year to such
Eligible Employee's compensation (as defined under Section 414(s) of the
Code) for the Plan Year. An Eligible Employee's compensation hereunder
shall include compensation receivable from the Employer for that portion
of the Plan Year during which the Employee is an Eligible Employee, up to
a maximum of one hundred sixty thousand dollars ($160,000) for the 1997,
1998 and 1999 Plan Years and one hundred seventy thousand dollars
($170,000) for the 2000 and 2001 Plan Years, adjusted in multiples of ten
thousand dollars ($10,000) for increases in the cost-of-living as
prescribed by the Secretary of the Treasury under Section 401(a)(17)(B) of
the Code.
1.3 Actual Deferral Percentage means, prior to January 1, 2002, the ratio
(expressed as a percentage) of the sum of Before-Tax Contributions, and
those Qualified Nonelective Contributions taken into account under the
Plan for the purpose of determining the Actual Deferral Percentage, which
are made on behalf of an Eligible Employee for the Plan Year to such
Eligible Employee's compensation (as defined under Section 414(s) of the
Code) for the Plan Year. An Eligible Employee's compensation hereunder
shall include compensation receivable from the Employer for that portion
of the Plan Year during which the Employee is an Eligible Employee, up to
a maximum of one hundred sixty thousand dollars ($160,000) for the 1997,
1998 and 1999 Plan Years and one hundred seventy thousand dollars
($170,000) for the 2000 and 2001 Plan Years, adjusted in multiples of ten
thousand dollars ($10,000) for increases in the cost-of-living as
prescribed by the Secretary of the Treasury under Section 401(a)(17)(B) of
the Code.
1.4 Affiliated Employer means a member of an affiliated service group (as
defined under Section 414(m) of the Code), a controlled group of
corporations (as defined under Section 414(b) of the Code), a group of
trades or businesses under common control (as defined under Section 414(c)
of the Code) of which the Employer is a member, any leasing organization
(as defined under Section 414(n) of the Code) providing the services of
Leased Employees to the Employer, or any other group provided for under
any and all Income Tax Regulations promulgated by the Secretary of the
Treasury under Section 414(o) of the Code.
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787 3 Carver Federal Savings Bank
Article I -
Definitions
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1.5 Affiliated Service means employment with an employer during the period
that such employer is an Affiliated Employer.
1.6 Agreement means the RSI Retirement Trust Agreement and Declaration of
Trust as amended and restated August 1, 1990, as amended from time to
time. The Agreement shall be incorporated herein and constitute a part of
the Plan.
1.7 Average Actual Contribution Percentage means the average of the Actual
Contribution Percentages of (a) the group comprised of Eligible Employees
who are Highly Compensated Employees or (b) the group comprised of
Eligible Employees who are Non-Highly Compensated Employees, whichever is
applicable.
1.8 Average Actual Deferral Percentage means the average of the Actual
Deferral Percentages of (a) the group comprised of Eligible Employees who
are Highly Compensated Employees or (b) the group comprised of Eligible
Employees who are Non-Highly Compensated Employees, whichever is
applicable.
1.9 Before-Tax Contribution Account means the separate, individual account
established on behalf of a Participant to which Before-Tax Contributions
and Special Contributions if any, made on his behalf are credited,
together with all earnings and appreciation thereon, and against which are
charged any withdrawals, loans and other distributions made from such
account and any losses, depreciation or expenses allocable to amounts
credited to such account.
1.10 Before-Tax Contributions means the contributions of the Employer made in
accordance with the Compensation Reduction Agreements of Participants
pursuant to Section 3.1.
1.11 Beneficiary means any person who is receiving or is eligible to receive a
benefit under Section 7.8 of the Plan upon the death of an Employee or
former Employee.
1.12 Board means the board of trustees, directors or other governing body of
the Sponsoring Employer.
1.13 Code means the Internal Revenue Code of 1986, as amended from time to
time.
1.14 Committee means the person or persons appointed by the Employer in
accordance with Section 9.2(b).
1.15 Compensation means with respect to Plan Years commencing on and after
January 1, 1997, an Employee's wages, salary, fees and other amounts
defined as compensation in Section 415(c)(3) of the Code and Income Tax
Regulations Sections 1.415-2(d)(2), (3) and (6), received for personal
services actually rendered in the course of employment with the Employer
for the calendar year, prior to any reduction pursuant to a Compensation
Reduction Agreement. Compensation shall include commissions, overtime,
bonuses, wage continuation payments to an Employee absent due to illness
or disability of a short-term nature, the amount of any Employer
contributions under a flexible benefits program maintained by the Employer
under Section 125 of the Code pursuant to a salary reduction agreement
entered into by the Participant under Section 125
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787 4 Carver Federal Savings Bank
Article I -
Definitions
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of the Code, amounts paid or reimbursed by the Employer for Employee
moving expenses (to the extent not deductible by the Employee), and the
value of any nonqualified stock option granted to an Employee by the
Employer (to the extent includable in gross income for the year granted).
Commencing January 1, 1998, Compensation shall also include elective
amounts that are not includable in the gross income of the Employee by
reason of Section 132(f)(4) of the Code.
Compensation does not include contributions made by the Employer to any
other pension, deferred compensation, welfare or other employee benefit
plan, amounts realized from the exercise of a nonqualified stock option or
the sale of a qualified stock option, and other amounts which receive
special tax benefits.
Compensation shall not exceed one hundred sixty thousand dollars
($160,000) for the 1997, 1998 and 1999 Plan Years and one hundred seventy
thousand dollars ($170,000) for the 2000 and 2001 Plan Years, adjusted in
multiples of ten thousand dollars ($10,000) for increases in the
cost-of-living as prescribed by the Secretary of the Treasury under
Section 401(a)(17)(B) of the Code. For purposes of this Section 1.15, if
the Plan Year in which a Participant's Compensation is being made is less
than twelve (12) calendar months, the amount of Compensation taken into
account for such Plan Year shall be the adjusted amount, as prescribed by
the Secretary of the Treasury under Section 401(a)(17) of the Code, for
such Plan Year, multiplied by a fraction, the numerator of which is the
number of months taken into account for such Plan Year and the denominator
of which is twelve (12). In determining the dollar limitation hereunder,
compensation received from any Affiliated Employer shall be recognized as
Compensation.
1.16 Compensation Reduction Agreement means an agreement between the Employer
and an Eligible Employee whereby the Eligible Employee agrees to reduce
his Compensation during the applicable payroll period by an amount equal
to any whole percentage thereof, to the extent provided in Section 3.1,
and the Employer agrees to contribute to the Trust, on behalf of such
Eligible Employee, an amount equal to the specified reduction in
Compensation.
1.17 Conversion Date means October 24, 1994, the date of conversion of the
Employer from mutual to stock ownership.
1.18 Disability means a physical or mental condition, determined after review
of those medical reports deemed satisfactory for this purpose, which
renders the Participant totally and permanently incapable of engaging in
any substantial gainful employment based on his education, training and
experience.
1.19 Discretionary Employer Contribution Account means the separate, individual
account established on behalf of a Participant to which Discretionary
Employer Contributions, if any, are credited, together with all earnings
and appreciation thereon, and against which are charged any
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787 5 Carver Federal Savings Bank
Article I -
Definitions
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withdrawals, loans and other distributions made from such account, as well
as any losses, depreciation, or expenses allocable to amounts credited to
such account.
1.20 Discretionary Employer Contributions means the amounts, if any,
contributed by the Employer on behalf of an Eligible Employee, pursuant to
Section 3.6.
1.21 Early Retirement Date means the first day of any month coincident with or
following the Participant's attainment of age sixty (60) and the
completion of a five (5) year Period of Service.
Notwithstanding any provisions of the plan to the contrary, if a
Participant incurs a Termination of Service after having completed a five
(5) year Period of Service but before attaining age sixty (60), the
Participant's Early Retirement Date shall be the date as of which the
Participant attains age sixty (60).
1.22 Effective Date means October 1, 1989.
1.23 Eligible Employee means an Employee who is eligible to participate in the
Plan pursuant to the provisions of Article II.
1.24 Employee means any person employed by the Employer.
1.25 Employer means Carver Federal Savings Bank and any Participating Affiliate
or any successor organization which shall continue to maintain the Plan
set forth herein.
1.26 Employer Resolutions means resolutions adopted by the Board.
1.27 Employer Stock Fund means commencing upon the Conversion Date, the
Separate Assets consisting of common stock of the Employer which shall be
maintained in an Investment Account established for such purpose.
1.28 Employment Commencement Date means the date on which an Employee first
performs an Hour of Service for the Employer upon initial employment or,
if applicable, upon reemployment.
1.29 ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.30 Forfeitures means any amounts forfeited pursuant to Section 4.2.
1.31 Hardship means the condition described in Section 7.4.
1.32 Highly Compensated Employee means, with respect to a Plan Year commencing
January 1, 1997, an Employee or an employee of an Affiliated Employer who
is such an Employee or employee during the Plan Year for which a
determination is being made and who:
(a) during the Plan Year immediately preceding the Plan Year for which a
determination is being made, received compensation as defined under
Section 414(q)(4) of the Code
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787 6 Carver Federal Savings Bank
Article I -
Definitions
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("Section 414(q) Compensation") from the Employer, in excess of
eighty thousand dollars ($80,000) and effective for the 2000 Plan
Year, eighty-five thousand dollars ($85,000), adjusted as prescribed
by the Secretary of the Treasury under Section 415(d) of the Code,
or
(b) at any time during the Plan Year for which a determination is being
made or at any time during the Plan Year immediately preceding the
Plan Year for which a determination is being made, was a
five-percent owner as described under Section 414(q)(2) of the Code.
For purposes of subsection (a) above, effective for Plan Years commencing
after December 31, 1997, Section 414(q) Compensation shall include (A) any
elective deferral (as defined in Section 402(g)(3) of the Code, and (B)
any amount which is contributed or deferred by the Employer at the
election of the Employee and which is not includable in the gross income
of the Employee by reason of Section 125, 132(f)(4) or 457 of the Code.
Highly Compensated Employee also means a former Employee who (A) incurred
a Termination of Service prior to the Plan Year of the determination, (B)
is not credited with an Hour of Service during the Plan Year of the
determination and (C) satisfied the requirements of subsection (a) or (b)
during either the Plan Year of his Termination of Service or any Plan Year
ending coincident with or subsequent to the Employee's attainment of age
fifty-five (55).
1.33 Hour of Service means each hour for which an Employee is paid or entitled
to be paid by the Employer for the performance of duties.
1.34 Investment Accounts means any and all of the investment accounts
established by Board resolution and presented to the Trustees, for the
purpose of investing contributions made to the Plan Funds in accordance
with the provisions of the Agreement or Separate Agreement, as applicable.
The securities and other property in which contributions to the Investment
Accounts of the Plan Funds may be invested shall be specified in the
Agreement or the Separate Agreement, and the rights of the Trustees or
Separate Agency shall be established in accordance with the provisions of
such Agreement and Separate Agreement.
1.35 Leased Employee means with respect to Plan Years commencing on and after
January 1, 1997, any individual (other than an Employee of the Employer or
an employee of an Affiliated Employer) who, pursuant to an agreement
between the Employer or any Affiliated Employer and any other person
("leasing organization"), has performed services for the Employer or any
Affiliated Employer on a substantially full-time basis for a period of at
least one (1) year, and such services are performed under the primary
direction of and control by the Employer or any Affiliated Employer. A
determination as to whether a Leased Employee shall be treated as an
Employee of the Employer or an Affiliated Employer shall be made as
follows: a Leased Employee shall not be considered an Employee of the
Employer if: (a) such employee is a participant in a money purchase
pension plan providing (i) a nonintegrated Employer contribution rate of
at least ten percent (10%) of compensation, as defined in Section
415(c)(3)
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787 7 Carver Federal Savings Bank
Article I -
Definitions
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of the Code, however, including amounts contributed pursuant to a
compensation reduction agreement which are excludable from the employee's
gross income under Section 125, Section 402(e)(3), Section 402(h)(1)(B) or
Section 403(b) of the Code, and effective January 1, 1998, including
elective amounts that are excludable from the gross income of an Employee
by reason of Section 132(f)(4) of the Code; (ii) immediate plan
participation; and (iii) full and immediate vesting; and (b) Leased
Employees do not constitute more than twenty percent (20%) of the
Employer's Non-Highly Compensated Employees.
1.36 Matching Contribution Account means the separate, individual account
established on behalf of a Participant to which the Matching Contributions
made on such Participant's behalf are credited, together with all earnings
and appreciation thereon, and against which are charged any withdrawals,
loans and other distributions made from such account and any losses,
depreciation or expenses allocable to amounts credited to such account.
1.37 Matching Contributions means the contributions made by the Employer
pursuant to Section 3.4.
1.38 Named Fiduciaries means the Trustees, the Committee, the Separate Agency
and such other parties who are designated by the Sponsoring Employer to
control and manage the operation and administration of the Plan.
1.39 Net Value means the value of an Employee's Accounts as determined as of
the Valuation Date coincident with or next following the event requiring
such determination.
1.40 Nonelective Employer Contribution Account means the separate, individual
account established on behalf of a Participant to which Nonelective
Employer Contributions, if any, made on such Participant's behalf are
credited, together with all earnings and appreciation thereon, and against
which are charged any withdrawals, loans and other distributions made from
such account and any losses, depreciation or expenses allocable to amounts
credited to such account.
1.41 Nonelective Employer Contributions means the contributions made by the
Employer pursuant to Section 3.13.
1.42 Non-Highly Compensated Employee means, with respect to a Plan Year, an
Employee who is not a Highly Compensated Employee.
1.43 Normal Retirement Age means the date an Employee attains age sixty-five
(65).
1.44 Normal Retirement Date means the first day of the month coincident with or
next following the Participant's Normal Retirement Age.
1.45 One Year Period of Severance means, a twelve (12) consecutive month period
following an Employee's Termination of Service with the Employer during
which the Employee did not perform an Hour of Service.
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787 8 Carver Federal Savings Bank
Article I -
Definitions
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Notwithstanding the foregoing, if an Employee is absent from employment
for maternity or paternity reasons, such absence during the twenty-four
(24) month period commencing on the first date of such absence shall not
constitute a One Year Period of Severance. An absence from employment for
maternity or paternity reasons means an absence (a) by reason of pregnancy
of the Employee, or (b) by reason of a birth of a child of the Employee,
or (c) by reason of the placement of a child with the Employee in
connection with the adoption of such child by such Employee, or (d) for
purposes of caring for such child for a period beginning immediately
following such birth or placement.
1.46 Participant means an Eligible Employee who participates in accordance with
the provisions of Section 2.3, and whose participation in the Plan has not
been terminated in accordance with the provisions of Section 2.4.
1.47 Participating Affiliate means any corporation that is a member of a
controlled group of corporations (within the meaning of Section 414(b) of
the Code) of which the Sponsoring Employer is a member and any
unincorporated trade or business that is a member of a group of trades or
businesses under common control (within the meaning of Section 414(c) of
the Code) of which the Sponsoring Employer is a member, which, with the
prior approval of the Sponsoring Employer and subject to such terms and
conditions as may be imposed by such Sponsoring Employer and the Trustees,
shall adopt this Plan in accordance with the provisions of Section 13.8
and the Agreement. Such entity shall continue to be a Participating
Affiliate until such entity terminates its participation in the Plan in
accordance with Section 13.8.
1.48 Period of Service means a period commencing with an Employee's Employment
Commencement Date and ending on the date such Employee first incurs a
Termination of Service.
Notwithstanding the foregoing, the period between the first and second
anniversary of the first date of a maternity or paternity absence
described under Section 1.45 shall not be included in determining a Period
of Service.
A period during which an individual was not employed by the Employer shall
nevertheless be deemed to be a Period of Service if such individual
incurred a Termination of Service and:
(a) such Termination of Service was the result of resignation, discharge
or retirement and such individual is reemployed by the Employer
within one (1) year after such Termination of Service; or
(b) such Termination of Service occurred when the individual was
otherwise absent for less than one (1) year and he was reemployed by
the Employer within one (1) year after the date such absence began.
All Periods of Service not disregarded under Sections 2.5 and 4.3 shall be
aggregated.
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787 9 Carver Federal Savings Bank
Article I -
Definitions
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Wherever used in the Plan, a Period of Service means the quotient obtained
by dividing the days in all Periods of Service not disregarded hereunder
by three hundred sixty-five (365) and disregarding any fractional
remainder.
1.49 Plan means the Carver Federal Savings Bank 401(k) Savings Plan in RSI
Retirement Trust, as herein restated and as it may be amended from time to
time. The Plan shall be a Plan of Partial Participation as defined under
the Agreement.
1.50 Plan Administrator means the person or persons who have been designated as
such by the Employer in accordance with the provisions of Section 9.4.
1.51 Plan Funds means the assets of the Plan held in the Trust Fund and
Separate Assets held under any Separate Agreement.
1.52 Plan Year means the calendar year.
1.53 Postponed Retirement Date means the first day of the month coincident with
or next following a Participant's date of actual retirement which occurs
after his Normal Retirement Date.
1.54 Prior Plan means the Carver Federal Savings Bank 401(k) Savings Plan in
RSI Retirement Trust as in effect on the date immediately preceding the
Restatement Date.
1.55 Qualified Nonelective Contributions means contributions, other than
Matching Contributions and Discretionary Employer Contributions, made by
the Employer, which (a) Participants may not elect to receive in cash in
lieu of their being contributed to the Plan; (b) are one hundred percent
(100%) nonforfeitable when made; and (c) are not distributable under the
terms of the Plan to Participants or their Beneficiaries until the
earliest of:
(i) the Participant's death, Disability or separation from service for
other reasons;
(ii) the Participant's attainment of age fifty-nine and one-half
(59-1/2); or
(iii) termination of the Plan.
Special Contributions defined under Section 1.63 are Qualified Nonelective
Contributions.
1.56 Restatement Date means January 1, 1997.
1.57 Retirement Date means the Participant's Normal Retirement Date, Early
Retirement Date or Postponed Retirement Date, whichever is applicable.
1.58 Rollover Contribution means (a) a contribution to the Plan of money
received by an Employee from a qualified plan or (b) a contribution to the
Plan of money transferred directly from another qualified plan on behalf
of the Employee, which the Code permits to be rolled over into the Plan.
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787 10 Carver Federal Savings Bank
Article I -
Definitions
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1.59 Rollover Contribution Account means the separate, individual account
established on behalf of an Employee to which his Rollover Contributions
are credited together with all earnings and appreciation thereon, and
against which are charged any withdrawals, loans and other distributions
made from such account and any losses, depreciation or expenses allocable
to amounts credited to such account.
1.60 Separate Agency means any trustee holding Plan Funds under a Separate
Agreement.
1.61 Separate Agreement means the trust agreement governing the investment and
administration of any Separate Assets. Such Separate Agreement shall be
incorporated herein and constitute a part of the Plan.
1.62 Separate Assets means assets of the Plan as described in Article V which
are held in a trust other than the Trust.
1.63 Special Contributions means the contributions made by the Employer
pursuant to Section 3.5. Special Contributions are Qualified Nonelective
Contributions as defined under Section 1.55.
1.64 Sponsoring Employer means Carver Federal Savings Bank or any successor
organization which shall continue to maintain the Plan set forth herein.
1.65 Spouse means a person to whom the Employee was legally married and which
marriage had not been dissolved by formal divorce proceedings that had
been completed prior to the date on which payments to the Employee are
scheduled to commence.
1.66 Termination of Service means the earlier of (a) the date on which an
Employee's service is terminated by reason of his resignation, retirement,
discharge, death or Disability or (b) the first anniversary of the date on
which such Employee's active service ceases for any other reason.
Service in the Armed Forces of the United States of America shall not
constitute a Termination of Service but shall be considered to be a period
of employment by the Employer provided that (i) such military service is
caused by war or other emergency or the Employee is required to serve
under the laws of conscription in time of peace, (ii) the Employee returns
to employment with the Employer within six (6) months following discharge
from such military service and (iii) such Employee is reemployed by the
Employer at a time when the Employee had a right to reemployment at his
former position or substantially similar position upon separation from
such military duty in accordance with seniority rights as protected under
the laws of the United States of America. Notwithstanding any provision of
the Plan to the contrary,[ effective December 12, 1994, contributions,
benefits and calculation of Periods of Service with respect to qualified
military service will be provided in accordance with Section 414(u) of the
Code
A leave of absence granted to an Employee by the Employer shall not
constitute a Termination of Service provided that the Participant returns
to the active service of the Employer at the expiration of any such period
for which leave has been granted.
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787 11 Carver Federal Savings Bank
Article I -
Definitions
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Notwithstanding the foregoing, an Employee who is absent from service with
the Employer beyond the first anniversary of the first date of his absence
for maternity or paternity reasons set forth in Section 1.45 shall incur a
Termination of Service for purposes of the Plan on the second anniversary
of the date of such absence.
1.67 Trust means the trust established or maintained under the Agreement with
respect to the Plan.
1.68 Trust Fund means the assets held in accordance with the Agreement.
1.69 Trustees means the Trustees of the RSI Retirement Trust.
1.70 Units means the units of measure of an Employee's proportionate undivided
beneficial interest in one or more of the Investment Accounts, valued as
of the close of business.
1.71 Valuation Date means each business day.
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787 12 Carver Federal Savings Bank
Article II -
Eligibility and Participation
- --------------------------------------------------------------------------------
ARTICLE II -
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility
(a) Every Employee who was a Participant in the Prior Plan immediately
prior to the Restatement Date shall continue to be a Participant on
the Restatement Date.
(b) Every other Employee who is not excluded under the provisions of
Section 2.2 shall become an Eligible Employee upon satisfying all of
the following conditions:
(i) completion of a Period of Service of one (1) year;
(ii) attainment of age twenty-one (21); and
(iii) classification as a salaried Employee.
(c) For purposes of determining (i) if an Employee completed a Period of
Service of one (1) year and (ii) Periods of Service pursuant to
Section 2.5, employment with (A) an Affiliated Employer and (B)
effective October 1, 1989 and November 19, 1990 respectively, prior
employment with either Crossland Savings, FSB or Nassau Federal
Savings and Loan Association, shall be deemed employment with the
Employer.
(d) An Employee who otherwise satisfies the requirements of this Section
2.1 and who is no longer excluded under the provisions of Section
2.2 shall immediately become an Eligible Employee.
2.2 Ineligible Employees
The following classes of Employees are ineligible to participate in the
Plan:
(a) Employees compensated on an hourly basis;
(b) Leased Employees;
(c) Employees in a unit of Employees covered by a collective bargaining
agreement with the Employer pursuant to which employee benefits were
the subject of good faith bargaining and which agreement does not
expressly provide that Employees of such unit be covered under the
Plan; and
(d) Owner-Employees. For purposes of this Section 2.2(d), Owner-Employee
means an individual who is a sole proprietor or who is a partner
owning more than ten percent (10%) of either the capital or profits
interest of a partnership which adopted the Plan.
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787 13 Carver Federal Savings Bank
Article II -
Eligibility and Participation
- --------------------------------------------------------------------------------
2.3 Participation
Participation in the Plan is voluntary with respect to an election for
Before-Tax Contributions. An Eligible Employee may elect to make
Before-Tax Contributions in accordance with Section 3.1, as of the first
full payroll period of any calendar month with or next following
satisfaction of the eligibility requirements set forth in Section 2.1. In
addition, an Eligible Employee will participate in the Plan upon
satisfaction of the eligibility requirements set forth in Section 2.1,
with respect to eligibility for (a) Special Contributions in accordance
with Section 3.5 or (b) Discretionary Employer Contributions in accordance
with Section 3.9 or (c) Nonelective Employer Contributions in accordance
with Section 3.13.
An election for Before-Tax Contributions shall be evidenced by completing
and filing the form prescribed by the Committee not less than ten (10)
days prior to the date participation is to commence. Such form shall
include, but not be limited to, a Compensation Reduction Agreement, a
designation of Beneficiary, and an investment direction as described in
Section 6.1. By completing and filing such form, the Eligible Employee
authorizes the Employer to make the applicable payroll deductions from
Compensation, commencing on the first applicable payday coincident with or
next following the effective date of the Eligible Employee's election to
participate. In the case of Special Contributions or Discretionary
Employer Contributions and effective January 1, 2001, Nonelective Employer
Contributions, a Participant shall complete a form prescribed by the
Committee, designating a Beneficiary and an investment direction as
described in Section 6.1.
Effective January 1, 2001, for any Plan Year in which a Nonelective
Employer Contribution is made in accordance with Section 3.13, all
Employees who meet the requirements of an Eligible Employee during such
Plan Year and who are employed by the Employer on the last day of the Plan
Year shall participate in the Plan.
2.4 Termination of Participation
Participation in the Plan shall terminate on the earlier of the date a
Participant dies or the entire vested interest in the Net Value of such
Participant's Accounts has been distributed.
2.5 Eligibility upon Reemployment
If an Employee incurs a One Year Period of Severance prior to satisfying
the eligibility requirements of Section 2.1, service prior to such One
Year Period of Severance shall be disregarded and such Employee must
satisfy the eligibility requirements of Section 2.1 as a new Employee.
If an Employee incurs a One Year Period of Severance after satisfying the
eligibility requirements of Section 2.1 and:
(a) if such Employee is not vested in any Matching Contributions and/or
Discretionary Employer Contributions and/or Nonelective Employer
Contributions, incurs a One Year
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787 14 Carver Federal Savings Bank
Article II -
Eligibility and Participation
- --------------------------------------------------------------------------------
Period of Severance and again performs an Hour of Service, the
Employee shall receive credit for Periods of Service prior to a One
Year Period of Severance only if the number of consecutive One Year
Periods of Severance is less than the greater of: (i) five (5) years
or (ii) the aggregate number of such Employee's Periods of Service
credited before his One Year Period of Severance. If such former
Employee's Periods of Service prior to his One Year Period of
Severance are recredited under this Section 2.5, such former
Employee shall be eligible to participate immediately upon
reemployment, provided such Employee is not excluded from
participating under the provisions of Section 2.2. If such former
Employee's Periods of Service prior to his One Year Period of
Severance are not recredited under this Section 2.5, such Employee
must satisfy the eligibility requirements of Section 2.1 as a new
Employee;
(b) if such Employee is vested in any Matching Contributions and/or
Discretionary Employer Contributions and/or Nonelective Employer
Contributions, incurs a One Year Period of Severance and again
performs an Hour of Service, the Employee shall receive credit for
Periods of Service prior to his One Year Period of Severance and
shall be eligible to participate in the Plan immediately upon
reemployment, provided such Employee is not excluded from
participating under the provisions of Section 2.2.
2.6 Eligibility Upon Reemployment of Employees Subject to Section 16(b) of the
Securities Exchange Act of 1934
Notwithstanding anything contained in the Plan to the contrary, if an
Employee subject to the provisions of Section 16(b) of the Securities
Exchange Act of 1934 incurs a Termination of Service and again performs an
Hour of Service, such Employee shall not be eligible to participate in the
Plan until the later of: (a) the date which is six (6) months from the
date such Employee incurred a Termination of Service or (b) the date such
Employee again performs an Hour of Service with the Employer; provided
such Employee is not excluded from participating under the provisions of
Section 2.2.
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787 15 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
ARTICLE III -
CONTRIBUTIONS AND LIMITATIONS ON CONTRIBUTIONS
3.1 Before-Tax Contributions
The Employer shall make Before-Tax Contributions for each payroll period
in an amount equal to the amount by which a Participant's Compensation has
been reduced with respect to such period under his Compensation Reduction
Agreement. Subject to the limitations set forth in Sections 3.2 and 3.12,
the amount of reduction authorized by the Eligible Employee shall be
limited to whole percentages of Compensation and shall not be less than
one percent (1%) nor greater than fifteen percent (15%). The Before-Tax
Contributions made on behalf of a Participant shall be credited to such
Participant's Before-Tax Contribution Account and shall be invested in
accordance with Article VI of the Plan.
3.2 Limitation on Before-Tax Contributions
Sections 3.2(a), (b), (c) and (d), below, shall apply with respect to Plan
Years beginning prior to January 1, 2002. Commencing January 1, 2002, the
alternative method of meeting the non-discrimination requirements set
forth in Section 401(k)(12) of the Code shall apply.
For any year in which the alternative method, referred to above, applies,
the Employer shall provide each Eligible Employee a comprehensive notice
of the Employee's rights and obligations under the Plan, written in a
manner calculated to be understood by the average Eligible Employee. This
notice will be provided at least thirty (30) days but not more than ninety
(90) days before the beginning of the Plan Year. In the event the Employee
becomes an Eligible Employee after the ninetieth (90th) day before the
beginning of the Plan Year and does not receive the notice for that
reason, the notice must be provided no more than ninety (90) days before
the Employee becomes an Eligible Employee, but not later than the date the
Employee actually becomes an Eligible Employee.
In addition to any other election periods provided under the Plan, each
Eligible Employee may make or modify a deferral election during the thirty
(30)-day period immediately following receipt of the notice described in
the above paragraph.
(a) Commencing January 1, 1997, the percentage of Before-Tax
Contributions made on behalf of a Participant who is a Highly
Compensated Employee shall be limited so that the Average Actual
Deferral Percentage for the group of such Highly Compensated
Employees for the Plan Year does not exceed the greater of:
(i) the Average Actual Deferral Percentage for the group of
Eligible Employees who were Non-Highly Compensated Employees
for the preceding Plan Year multiplied by 1.25; or
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787 16 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
(ii) the Average Actual Deferral Percentage for the group of
Eligible Employees who were Non-Highly Compensated Employees
for the preceding Plan Year multiplied by two (2); provided,
that the difference in the Average Actual Deferral Percentage
for eligible Highly Compensated Employees and eligible
Non-Highly Compensated Employees does not exceed two percent
(2%). Use of this alternative limitation shall be subject to
the provisions of Income Tax Regulations issued under Code
Section 401(m)(9) regarding the multiple use of the
alternative limitation set forth in Sections 401(k) and 401(m)
of the Code.
The preceding Plan Year testing method can only be modified if the
Plan meets the requirements for changing to current Plan Year
testing as set forth in Internal Revenue Service Notice 98-1, or any
successor future guidance issued by the Internal Revenue Service.
The above subsections (i) and (ii) shall be subject to the
distribution provisions of the last paragraph of Section 3.12(f).
If the Average Actual Deferral Percentage for the group of eligible
Highly Compensated Employees exceeds the limitations set forth in
the preceding paragraph, the amount of excess Before-Tax
Contributions for a Highly Compensated Employee shall be determined
by "leveling" (as hereafter defined), the highest Before-Tax
Contributions made by Highly Compensated Employees until the Average
Actual Deferral Percentage test for the group of eligible Highly
Compensated Employees complies with such limitations. For purposes
of this paragraph, "leveling" means reducing the Before-Tax
Contribution of the Highly Compensated Employee with the highest
Before-Tax Contribution amount to the extent required to:
(A) enable the Average Actual Deferral Percentage limitations to
be met, or
(B) cause such Highly Compensated Employee's Before-Tax
Contribution amount to equal the dollar amount of the
Before-Tax Contribution of the Highly Compensated Employee
with the next highest Before-Tax Contribution amount by
distribution of such excess Before-Tax Contributions, as
described below, to the Highly Compensated Employee, whose
Before-Tax Contributions equal the highest dollar amount,
and repeating such process until the Average Actual Deferral
Percentage for the group of eligible Highly Compensated Employees
complies with the Average Actual Deferral Percentage limitations.
If Before-Tax Contributions made on behalf of a Participant during
any Plan Year exceed the maximum amount applicable to a Participant
as set forth above, any such contributions, including any earnings
thereon as determined under Section 3.9, shall be characterized as
Compensation payable to the Participant and shall be paid to the
- --------------------------------------------------------------------------------
787 17 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
Participant from his Before-Tax Contribution Account no later than
two and one-half (2-1/2) months after the close of such Plan Year.
If Before-Tax Contributions during any Plan Year exceed the maximum
amount applicable to a Participant as set forth above, any Matching
Contributions, including any earnings thereon as determined under
Section 3.9, that are attributable to Before-Tax Contributions which
are returned to the Participant as provided hereunder, shall be
treated as Forfeitures under Section 4.2.
In the event that the Plan satisfies the requirements of Section
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 Section 401(k), 401(a)(4) or 410(b) of the Code only
if aggregated with the Plan, then this Section 3.2 shall be applied
by determining the Actual Deferral Percentages of Eligible Employees
as if all such plans were a single plan.
If any Highly Compensated Employee is a Participant in two (2) or
more cash or deferred arrangements of the Employer, for purposes of
determining the Actual Deferral Percentage with respect to such
Highly Compensated Employee, all cash or deferred arrangements shall
be treated as one (1) cash or deferred arrangement.
(b) Before-Tax Contributions under this Plan, and elective deferrals (as
defined under Section 402(g) of the Code) under all other plans,
contracts or arrangements of the Employer made on behalf of any
Participant during the 1997 Plan Year shall not exceed nine thousand
five hundred dollars ($9,500). During the 1998 and 1999 Plan Years,
such amount shall be increased to ten thousand dollars ($10,000).
During the 2000 and 2001 Plan Years, such amount shall be increased
to ten thousand five hundred dollars ($10,500). For Plan Years
commencing after December 31, 2001, Before-Tax Contributions and
elective deferrals (as defined under Section 402(g) of the Code)
under all other plans, contracts or arrangements of the Employer
shall be further adjusted as prescribed by the Secretary of the
Treasury under Section 415(d) of the Code. This Section 3.2(b) shall
be subject to the distribution provisions of the last paragraph of
Section 3.12(f).
(c) If Before-Tax Contributions made on behalf of a Participant during
any Plan Year exceed the dollar limitation set forth in subsection
(b), such contributions, including any earnings thereon as
determined under Section 3.9, shall be characterized as Compensation
payable to the Participant and shall be paid to the Participant from
his Before-Tax Contribution Account no later than April 15th of the
calendar year following the close of such Plan Year.
If Before-Tax Contributions during any Plan Year exceed the maximum
dollar amount applicable to a Participant as set forth in subsection
(b), any Matching Contributions, including any earnings thereon as
determined under Section 3.9, that are attributable to
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787 18 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
Before-Tax Contributions which are returned to the Participant as
provided hereunder, shall be treated as Forfeitures under Section
4.2.
(d) Subject to the requirements of Sections 401(a) and 401(k) of the
Code, the maximum amounts under subsections (a) and (b) may differ
in amount or percentage as between individual Participants or
classes of Participants, and any Compensation Reduction Agreement
may be terminated, amended, or suspended without the consent of any
such Participant or Participants in order to comply with the
provisions of such subsections (a) and (b).
3.3 Changes in Before-Tax Contributions
Unless (a) an election is made to the contrary, or (b) a Participant
receives a Hardship distribution pursuant to Section 7.4(c)(iii), the
percentage of Before-Tax Contributions made under Section 3.1 shall
continue in effect so long as the Participant has a Compensation Reduction
Agreement in force. A Participant may, by completing the applicable form,
prospectively increase or decrease the rate of Before-Tax Contributions
made on his behalf to any of the percentages authorized under Section 3.1
or suspend Before-Tax Contributions without withdrawing from participation
in the Plan. Such form must be filed at least ten (10) days prior to the
first day of the payroll period with respect to which such change is to
become effective. A Participant who has Before-Tax Contributions made on
his behalf suspended may resume such contributions by completing and
filing the applicable form. Not more often than once in any calendar
quarter may an election be made which would prospectively increase,
decrease, suspend or resume Before-Tax Contributions made on behalf of a
Participant. A Participant may terminate his Before-Tax Contributions at
any time.
Notwithstanding the foregoing, a Participant who receives a Hardship
distribution pursuant to Section 7.4(c)(iii) shall have his Compensation
Reduction Agreement deemed null and void and all Before-Tax Contributions
made on behalf of such Participant shall be suspended until the later to
occur of: (i) twelve (12) months after receipt of the Hardship
distribution and (ii) the first payroll period which occurs ten (10) days
following the completion and filing of a Compensation Reduction Agreement
authorizing the resumption of Before-Tax Contributions to be made on his
behalf. Before-Tax Contributions following a Hardship distribution made
pursuant to Section 7.4(c)(iii) shall be subject to the following
limitations:
(A) Before-Tax Contributions for the Participant's taxable year
immediately following the taxable year of the Hardship distribution
shall not exceed the applicable limit under Section 402(g) of the
Code for such next taxable year less the amount of such
Participant's Before-Tax Contributions for the taxable year of the
Hardship distribution, and
(B) the percentage of Before-Tax Contributions for the twelve (12) month
period following the mandatory twelve (12) month suspension period
shall not exceed the percentage of
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787 19 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
Before-Tax Contributions made on behalf of the Participant as set
forth in the last Compensation Reduction Agreement in effect prior
to the Hardship distribution.
Before-Tax Contributions based on Compensation for the period during which
such contributions had been suspended or decreased may not be made up at a
later date.
3.4 Matching Contributions
(a) The Employer shall make contributions on behalf of each Participant
in an amount equal to fifty percent (50%) of such Participant's
Before-Tax Contribution. Commencing January 1, 2002, the Employer
shall make contributions on behalf of each Participant, in an amount
equal to one hundred percent (100%) of such Participant's Before-Tax
Contributions, up to the first four percent (4%) of the
Participant's Compensation.
(b) Matching Contributions shall be credited to the Participant's
Matching Contribution Account and shall be invested in accordance
with Article VI of the Plan.
(c) If a Participant terminates his Before-Tax Contributions, Matching
Contributions attributable to such contributions will also cease. If
Before-Tax Contributions are suspended, the Matching Contributions
attributable to such contributions will be suspended for the same
period. Subject to the limitations set forth in subsection (a), if
Before-Tax Contributions are increased or decreased, Matching
Contributions attributable to such contributions will be increased
or decreased during the same period. Matching Contributions for the
period during which Before-Tax Contributions had been suspended or
decreased may not be made up at a later date.
(d) Matching Contributions may be reviewed and modified by the
Employer's Board from time to time. Commencing January 1, 2002, this
Section 3.4(d) shall no longer apply.
3.5 Special Contributions
In addition to any other contributions, the Employer may, in its
discretion, make Special Contributions for a Plan Year to the Before-Tax
Contribution Account of any Eligible Employees. Such Special Contributions
may be limited to the amount necessary to insure that the Plan complies
with the requirements of Section 401(k) of the Code. The Special
Contributions made on behalf of a Participant shall be invested in
accordance with Article VI of the Plan.
The Employer may provide that Special Contributions be made only on behalf
of each Eligible Employee who is a Non-Highly Compensated Employee on the
last day of the Plan Year. Such Special Contributions shall be allocated
in proportion to each such Eligible Employee's Compensation for the Plan
Year.
Any other provision of the Plan to the contrary notwithstanding, no
Matching Contributions shall be made with respect to any Special
Contributions.
- --------------------------------------------------------------------------------
787 20 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
3.6 Discretionary Employer Contributions
Subject to the limitations of Section 3.12, the Employer may, in its sole
and absolute discretion, make Discretionary Employer Contributions to the
Plan for a Plan Year. Discretionary Employer Contributions shall be
allocated on an annual basis in an amount up to fifteen percent (15%)
determined by the Board, as a percentage of the Compensation of each
Eligible Employee who is in the employ of the Employer on the last day of
the Plan Year.
Notwithstanding the foregoing, an Eligible Employee who incurs a
Termination of Service prior to the last day of the Plan Year for reasons
of death, Disability or retirement on a Retirement Date shall receive a
Discretionary Employer Contribution pursuant to the foregoing paragraph,
for the Plan Year up to the date of his Termination of Service.
The Discretionary Employer Contributions allocated to each Eligible
Employee shall be credited to such Participant's Discretionary Employer
Contribution Account and shall be invested in accordance with Article VI
of the Plan. Any and all withdrawals, distributions or payments from a
Participant's Discretionary Employer Contribution Account shall be made in
accordance with Article VII, or Article VIII of the Plan, whichever is
applicable.
3.7 Limitation on Matching Contributions
This Section 3.7 shall apply with respect to Plan Years beginning prior to
January 1, 2002. Commencing January 1, 2002, the alternative method of
meeting the non-discrimination requirements set forth in Section
401(m)(11) of the Code shall apply.
Commencing January 1, 1997, the Actual Contribution Percentage made on
behalf of a Participant who is a Highly Compensated Employee shall be
limited so that the Average Actual Contribution Percentage for the group
of such Highly Compensated Employees for the Plan Year shall not exceed
the greater of:
(a) the Average Actual Contribution Percentage for the group of Eligible
Employees who were Non-Highly Compensated Employees for the
preceding Plan Year multiplied by 1.25; or
(b) the Average Actual Contribution Percentage for the group of Eligible
Employees who were Non-Highly Compensated Employees for the
preceding Plan Year, multiplied by two (2); provided, that the
difference in the Average Actual Contribution Percentage for Highly
Compensated Employees and Non-Highly Compensated Employees does not
exceed two percent (2%). Use of this alternative limitation shall be
subject to the provisions of Income Tax Regulations issued under
Code Section 401(m)(9) regarding the multiple use of the alternative
limitation set forth in Sections 401(k) and 401(m) of the Code.
- --------------------------------------------------------------------------------
787 21 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
The preceding Plan Year testing method can only be modified if the Plan
meets the requirements for changing to current Plan Year testing as set
forth in Internal Revenue Service Notice 98-1, or any successor future
guidance issued by the Internal Revenue Service.
The above subsections (a) and (b) shall be subject to the distribution
provisions of the last paragraph of Section 3.12(f).
If the Average Actual Contribution Percentage for the group of eligible
Highly Compensated Employees exceeds the limitations set forth in the
preceding paragraph, the amount of excess Matching Contributions for a
Highly Compensated Employee shall be determined by "leveling" (as
hereafter defined) the highest Matching Contributions until the Average
Actual Contribution Percentage test for the group of eligible Highly
Compensated Employees complies with such limitations. For purposes of this
paragraph, "leveling" means reducing the Matching Contributions made on
behalf of the Highly Compensated Employee with the highest Matching
Contribution amount to the extent required to:
(i) enable the Average Actual Contribution Percentage limitations to be
met, or
(ii) cause such Highly Compensated Employee's Matching Contribution
amount to equal the dollar amount of the Matching Contribution made
on behalf of the Highly Compensated Employee with the next highest
Matching Contribution amount
and repeating such process until the Average Actual Contribution
Percentage for the group of eligible Highly Compensated Employees complies
with the Average Actual Contribution Percentage limitations.
If Matching Contributions during any Plan Year exceed the maximum amount
applicable to a Participant as set forth above, any such contributions,
including any earnings thereon as determined under Section 3.9, shall,
whether or not vested, be treated as Forfeitures under Section 4.2.
In the event that the Plan satisfies the requirements of Section 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 Section
401(m), 401(a)(4) or 410(b) of the Code only if aggregated with the Plan,
then this Section 3.7 shall be applied by determining the Actual
Contribution Percentages of Eligible Employees as if all such plans were a
single plan.
If any Highly Compensated Employee is a Participant in two (2) or more
plans of the Employer, for purposes of determining the Actual Contribution
Percentage with respect to such Highly Compensated Employee, all such
plans shall be treated as one (1) plan.
- --------------------------------------------------------------------------------
787 22 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
3.8 Aggregate Limit; Multiple Use of Alternative Limitation
This Section 3.8 shall apply with respect to Plan Years beginning prior to
January 1, 2002. Commencing January 1, 2002, the alternative method of
meeting the non-discrimination requirements set forth in Sections
401(k)(12) and 401(m)(11) of the Code shall apply.
Commencing January 1, 1997, multiple use of the alternative limitation in
determining the Average Actual Deferral Percentage and Average Actual
Contribution Percentage shall not be permitted.
Multiple use of the alternative limitation occurs if, for the group of
Eligible Employees who are Highly Compensated Employees, the sum of the
Average Actual Deferral Percentage and the Average Actual Contribution
Percentage exceeds the Aggregate Limit.
For purposes of this Section 3.8, Aggregate Limit shall mean the greater
of (a) or (b), where (a) and (b) are as follows:
(a) the sum of:
(i) one hundred twenty-five percent (125%) of the greater of:
(A) the Average Actual Deferral Percentage for the group of
Eligible Employees who were Non-Highly Compensated
Employees for the preceding Plan Year; or
(B) the Average Actual Contribution Percentage for the group
of Eligible Employees who were Non-Highly Compensated
Employees for the preceding Plan Year; and
(ii) two (2) plus the lesser of subsection (a)(i)(A) or (a)(i)(B).
In no event shall this amount exceed two hundred percent
(200%) of the lesser of subsection (a)(i)(A) or (a)(i)(B).
(b) the sum of:
(i) one hundred twenty-five percent (125%) of the lesser of:
(A) the Average Actual Deferral Percentage for the group of
Eligible Employees who were Non-Highly Compensated
Employees for the preceding Plan Year; or
(B) the Average Actual Contribution Percent age for the
group of Eligible Employees who were Non-Highly
Compensated Employees for the preceding Plan Year; and
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787 23 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
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(ii) two (2) plus the greater of subsection (b)(i)(A) or (b)(i)(B).
In no event shall this amount exceed two hundred percent
(200%) of the greater of subsection (b)(i)(A) or (b)(i)(B).
If multiple use of the alternative limitation occurs, the excess
Before-Tax Contributions for Highly Compensated Employees under the Plan
shall be reduced in accordance with Section 3.2(a).
3.9 Interest on Excess Contributions
In the event Before-Tax Contributions and/or Matching Contributions made
on behalf of a Participant during a Plan Year exceed the maximum allowable
amount as described in Section 3.2(a), 3.2(b) or 3.7 ("Excess
Contributions") and such Excess Contributions and earnings thereon are
payable to the Participant under the applicable provisions of the Plan,
earnings on such Excess Contributions for the period commencing with the
first day of the Plan Year in which the Excess Contributions were made and
ending with the date of payment to the Participant ("Allocation Period")
shall be determined in accordance with the provisions of this Section 3.9.
The earnings allocable to excess Before-Tax Contributions for an
Allocation Period shall be equal to the sum of (a) plus (b) where (a) and
(b) are determined as follows:
(a) The amount of earnings attributable to the Participant's Before-Tax
Contribution Account for the Plan Year multiplied by a fraction, the
numerator of which is the excess Before-Tax Contributions and
Special Contributions for the Plan Year, and the denominator of
which is the sum of (i) the Net Value of the Participant's
Before-Tax Contribution Account as of the last day of the
immediately preceding Plan Year and (ii) the contributions
(including the Excess Contributions) made to the Before-Tax
Contribution Account on the Participant's behalf during such Plan
Year.
(b) The amount of earnings attributable to the Participants Before-Tax
Contribution Account for the period commencing with the first day of
the Plan Year in which payment is made to the Participant and ending
with the date of payment to the Participant multiplied by a
fraction, the numerator of which is the excess Before-Tax
Contributions and Special Contributions made to the Before-Tax
Contribution Account on the Participant's behalf during the Plan
Year immediately preceding the Plan Year in which the payment is
made to the Participant, and the denominator of which is the Net
Value of the Participant's Before-Tax Contribution Account on the
first day of the Plan Year in which the payment is made to the
Participant.
The earnings allocable to excess Matching Contributions for an Allocation
Period shall be equal to the sum of (A) and (B) where (A) and (B) are
determined as follows:
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787 24 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
(A) The amount of earnings attributable to the Participants Matching
Contribution Account for the Plan Year multiplied by a fraction, the
numerator of which is the excess Matching Contributions for the Plan
Year, and the denominator of which is the sum of (I) the Net Value
of the Participant's Matching Contribution Account as of the last
day of the immediately preceding Plan Year and (II) the
contributions (including the Excess Contributions) made to the
Matching Contribution Account on the Participant's behalf during
such Plan Year.
(B) The amount of earnings attributable to the Participants Matching
Contribution Account for the period commencing with the first day of
the Plan Year in which payment is made to the Participant and ending
with the date of payment to the Participant multiplied by a
fraction, the numerator of which is the excess Matching
Contributions made to the Matching Contribution Account on the
Participant's behalf during the Plan Year immediately preceding the
Plan Year in which the payment is made to the Participant, and the
denominator of which is the Net Value of the Participant's Matching
Contribution Account on the first day of the Plan Year in which the
payment is made to the Participant.
3.10 Payment of Contributions to the Trust and Separate Agency
As soon as possible after each payroll period, but not less often than
once a month, the Employer shall deliver (a) to the Trustees: (i) the
Before-Tax Contributions required to be made to the Trust during such
payroll period under the applicable Compensation Reduction Agreements and
(ii) the amount of all Matching Contributions required to be made to the
Trust for such payroll period and (b) to the Separate Agency: (i) the
Before-Tax Contributions required to be made to the Separate Agency during
such payroll period under the applicable Compensation Reduction Agreement,
and (ii) the amount of all Matching Contributions required to be made to
the Separate Agency during such payroll period.
Special Contributions, Discretionary Employer Contributions and effective
January 1, 2001, Nonelective Employer Contributions to the Trust and to
the Separate Agency shall be forwarded by the Employer to the Trustees and
to the Separate Agency no later than the time for filing the Employer's
federal income tax return, plus any extensions thereon, for the Plan Year
to which they are attributable.
3.11 Rollover Contributions
Subject to such terms and conditions as may from time to time be
established by the Committee, the Trustees and the Separate Agency, an
Employee, whether or not a Participant, may contribute a Rollover
Contribution to the Plan Fund; provided, however, that such Employee shall
submit a written certification, in form and substance satisfactory to the
Committee, that the contribution qualifies as a Rollover Contribution. The
Committee shall be entitled to rely on such certification and shall accept
the contribution on behalf of the Trustees.
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787 25 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
Rollover Contributions shall be credited to an Employee's Rollover
Contribution Account and shall be invested in accordance with Article VI
of the Plan.
3.12 Section 415 Limits on Contributions
(a) For purposes of this Section 3.12, the following terms and phrases
shall have the meanings hereafter ascribed to them:
(i) "Annual Additions" shall mean the sum of the following amounts
credited to a Participant's Accounts for the Limitation Year:
(A) Employer contributions, including Before-Tax
Contributions, Matching Contributions, Special Contributions,
Discretionary Employer Contributions and Nonelective Employer
Contributions; (B) any Employee contributions; (C)
forfeitures; and (D) (1) amounts allocated to an individual
medical account, as defined in Section 415(l)(2) of the Code,
which is part of a pension or annuity plan maintained by the
Employer and (2) amounts derived from contributions, paid or
accrued, which are attributable to post-retirement medical
benefits allocated to the separate account of a key employee,
as defined in Section 419A(d)(3) of the Code, under a welfare
benefit fund as defined in Section 419(e) of the Code,
maintained by the Employer are treated as Annual Additions.
Annual Additions include the following contributions credited
to a Participant's Accounts for the Limitation Year,
regardless of whether such contributions have been distributed
to the Participant:
(I) Before-Tax Contributions which exceed the limitations
set forth in Section 3.2(a);
(II) Before-Tax Contributions made on behalf of a Highly
Compensated Employee which exceed the limitations set
forth in Section 3.2(b); and
(III) Matching Contributions made on behalf of a Highly
Compensated Employee which exceed the limitations set
forth in Section 3.7.
(ii) "Current Accrued Benefit" shall mean a Participant's annual
accrued benefit under a defined benefit plan, determined in
accordance with the meaning of Section 415(b)(2) of the Code,
as if the Participant had separated from service as of the
close of the last Limitation Year beginning before January 1,
1987. In determining the amount of a Participant's Current
Accrued Benefit, the following shall be disregarded:
(A) any change in the terms and conditions of the defined
benefit plan after May 5, 1986; and
(B) any cost of living adjustment occurring after May 5,
1986.
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787 26 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
(iii) "Defined Benefit Plan" and "Defined Contribution Plan" shall
have the meanings set forth in Section 415(k) of the Code.
(iv) "Defined Benefit Plan Fraction" for a Limitation Year shall
mean a fraction, (A) the numerator of which is the aggregate
projected annual benefit (determined as of the last day of the
Limitation Year) of the Participant under all defined benefit
plans (whether or not terminated) maintained by the Employer,
and (B) the denominator of which is the lesser of: (I) the
product of 1.25 (or such adjustment as required under Section
12.4) and the dollar limitation in effect under Section
415(b)(1)(A) of the Code, adjusted as prescribed by the
Secretary of the Treasury under Section 415(d) of the Code, or
(II) the product of 1.4 and the amount which may be taken into
account with respect to such Participant under Section
415(b)(1)(B) of the Code for such Limitation Year.
Notwithstanding the above, if the Participant was a
participant in one or more defined benefit plans of the
Employer in existence on May 6, 1986, the dollar limitation of
the denominator of this fraction will not be less than the
Participant's Current Accrued Benefit.
(v) "Defined Contribution Plan Fraction" for a Limitation Year
shall mean a fraction, (A) the numerator of which is the sum
of the Participant's Annual Additions under all defined
contribution plans (whether or not terminated) maintained by
the Employer for the current year and all prior Limitation
Years (including annual additions attributable to the
Participant's nondeductible employee contributions to all
defined benefit plans (whether or not terminated) maintained
by the Employer), and (B) the denominator of which is the sum
of the maximum aggregate amounts for the current year and all
prior Limitation Years with the Employer (regardless of
whether a defined contribution plan was maintained by the
Employer). "Maximum aggregate amounts" shall mean the lesser
of (I) the product of 1.25 (or such adjustment as required
under Section 12.4) and the dollar limitation in effect under
Section 415(c)(1)(A) of the Code, adjusted as prescribed by
the Secretary of the Treasury under Section 415(d) of the
Code, or (II) the product of 1.4 and the amount that may be
taken into account under Section 415(c)(1)(B) of the Code;
provided, however, that the Committee may elect, on a uniform
and nondiscriminatory basis, to apply the special transition
rule of Section 415(e)(7) of the Code applicable to Limitation
Years ending before January 1, 1983 in determining the
denominator of the Defined Contribution Plan Fraction.
If the Employee was a Participant as of the end of the first
day of the first Limitation Year beginning after December 31,
1986, in one or more defined contribution plans maintained by
the Employer which were in existence on May 6, 1986, the
numerator of this fraction will be adjusted if the sum of this
fraction and the defined benefit fraction would otherwise
exceed 1.0 under the terms of
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787 27 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
this Plan. Under the adjustment, an amount equal to the
product of (1) the excess of the sum of the fractions over 1.0
times (2) the denominator of this fraction, will be
permanently subtracted from the numerator of this fraction.
The adjustment is calculated using the fractions as they would
be computed as of the end of the last Limitation Year
beginning before January 1, 1987, and disregarding any changes
in the terms and conditions of the Plan made after May 5,
1986, but using the Section 415 limitation applicable to the
first Limitation Year beginning on or after January 1, 1987.
The annual addition for any Limitation Year beginning before
January 1, 1987, shall not be recomputed to treat all Employee
contributions as Annual Additions.
(vi) "Limitation Year" shall mean the calendar year.
(vii) "Section 415 Compensation" shall be with respect to a Plan
Year commencing January 1, 1997, a Participant's remuneration
as defined in Income Tax Regulations Sections 1.415-2(d)(2),
(3) and (6). For purposes of this Section, effective for Plan
Years commencing after December 31, 1997, Section 415
Compensation shall include (A) any elective deferral (as
defined in Section 402(g)(3) of the Code, and (B) any amount
which is contributed or deferred by the Employer at the
election of the Employee and which is not includable in the
gross income of the Employee by reason of Section 125 or 457
of the Code.
For purposes of this Section 3.12(a)(vii), effective for
Limitation Years commencing on or after January 1, 1998, for
purposes of applying the Limitations described in this Section
3.12, compensation paid or made available during such
Limitation Years shall include elective amounts that are not
includable in the gross income of an Employee by reason of
Section 132(f)(4) of the Code.
(b) For purposes of applying the Section 415 limitations, the Employer
and all members of a controlled group of corporations (as defined
under Section 414(b) of the Code as modified by Section 415(h) of
the Code), all commonly controlled trades or businesses (as defined
under Section 414(c) of the Code as modified by Section 415(h) of
the Code), all affiliated service groups (as defined under Section
414(m) of the Code) of which the Employer is a member, any leasing
organization (as defined under Section 414(n) of the Code) that
employs any person who is considered an Employee under Section
414(n) of the Code and any other group provided for under any and
all Income Tax Regulations promulgated by the Secretary of the
Treasury under Section 414(o) of the Code, shall be treated as a
single employer.
(c) If the Employer maintains more than one qualified Defined
Contribution Plan on behalf of its Employees, such plans shall be
treated as one Defined Contribution Plan for purposes of applying
the Section 415 limitations of the Code.
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787 28 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
(d) Notwithstanding anything contained in the Plan to the contrary, in
no event shall the Annual Additions to a Participant's Accounts for
a Limitation Year exceed the lesser of:
(i) thirty thousand dollars ($30,000), and with respect to a
Limitation Year commencing on and after January 1, 1995, as
adjusted in multiples of five thousand dollars ($5,000) for
increases in the cost-of-living as prescribed by the Secretary
of the Treasury under Section 415(d) of the Code; or
(ii) twenty-five percent (25%) of the Participants Section 415
Compensation for such Limitation Year. For purposes of this
subsection (d)(ii), Section 415 Compensation shall not include
(A) any contribution for medical benefits within the meaning
of Section 419A(f)(2) of the Code after separation from
service, which is otherwise treated as an Annual Addition, and
(B) any amount otherwise treated as an Annual Addition under
Section 415(l)(1) of the Code.
(e) If, as a result of the allocation of forfeitures, a reasonable error
in estimating a Participant's annual Compensation, a reasonable
error in determining the amount of elective deferrals that may be
made with respect to any Participant, or as otherwise permitted by
the Internal Revenue Service, the Annual Additions to a
Participant's Accounts for a Limitation Year exceed the limitation
set forth in subsection (d) above during the Limitation Year, any or
all of the following contributions on behalf of such Participant
shall be immediately adjusted to that amount which will result in
such Annual Additions not exceeding the limitation set forth in
subsection (d):
(i) Discretionary Employer Contributions;
(ii) Nonelective Employer Contributions;
(iii) Before-Tax Contributions;
(iv) Special Contributions; and
(v) Matching Contributions.
(f) If the Annual Additions to a Participant's Accounts for a Limitation
Year exceed the limitations set forth in subsection (d) above at the
end of a Limitation Year, such excess amounts shall not be treated
in accordance with the following:
(i) such excess amounts shall be used to reduce the Before-Tax
Contributions, Discretionary Employer Contributions, Matching
Contributions and/or Special Contributions to be made on
behalf of such Participant in the succeeding Limitation Year,
provided that such Participant is an Eligible Employee during
such succeeding Limitation Year. If such Participant is not an
Eligible Employee or ceases to be an Eligible Employee during
such succeeding Limitation Year, any remaining excess amounts
from the preceding Limitation Year shall be
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787 29 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
allocated during such succeeding Limitation Year to each
Participant then actively participating in the Plan. Such
allocation shall be in proportion to the Before-Tax
Contributions made to date on his behalf for such Limitation
Year, or the prior Limitation Year with respect to an
allocation as of the beginning of a Limitation Year, before
any other contributions are made in such succeeding Limitation
Year; or
(ii) such excess amounts may be reduced by the distribution of such
Participant's Before-Tax Contributions to such Participant.
The Employer will, at the end of the Limitation Year in which such
excess amounts were made, choose the manner in which to treat such
excess amounts on a uniform and nondiscriminatory basis on behalf of
all affected Participants. If such excess amounts are reduced by the
distribution described in subsection (ii), the amounts of such
distribution shall not be taken into account for purposes of
Sections 3.2(a)(i) and (ii), 3.7(a) and (b), or in determining the
limitation in Section 3.2(b). In addition, any Matching
Contributions attributable to such amounts shall constitute
Forfeitures as described in Section 4.2.
(g) If a Participant participates in both (i) the Plan and/or any other
defined contribution plan maintained by the Employer and (ii) any
defined benefit plan or plans maintained by the Employer, the sum of
the Defined Contribution Plan Fraction and the Defined Benefit Plan
Fraction shall not exceed the sum of l.0. This subsection (g) shall
not apply with respect to Plan Years beginning on or after January
1, 2000.
(h) If, for any Plan Year commencing prior to January 1, 2000, the sum
determined under subsection (g) for any Participant exceeds 1.0, the
Defined Benefit Plan Fraction of such Participant as provided in the
defined benefit plan or plans maintained by the Employer shall be
reduced in order that such sum shall not exceed 1.0.
3.13 Nonelective Employer Contributions
Effective with respect to the period beginning January 1, 2001, in
addition to other contributions, if any, the Employer will make a
Nonelective Employer Contribution in accordance with Section 401(k)(12) of
the Code, for a Plan Year, in order to meet the nondiscrimination
requirements of Code Section 401(k). For any Plan Year in which the
Employer makes a Nonelective Employer Contribution, such contribution
shall be in the amount of two percent (2%) of each Eligible Employee's
Compensation who is employed by the Employer on the last day of the Plan
Year.
Nonelective Employer Contributions made to the Plan on behalf of each
Eligible Employee, shall be credited to such Eligible Employee's
Nonelective Employer Contribution Account and shall be invested in
accordance with Article VI of the Plan. Any and all withdrawals,
distributions or
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787 30 Carver Federal Savings Bank
Article III -
Contributions and Limitations on Contributions
- --------------------------------------------------------------------------------
payments from a Participant's Nonelective Employer Contribution Account
shall be made in accordance with Article VII, or Article VIII of the Plan,
whichever is applicable.
- --------------------------------------------------------------------------------
787 31 Carver Federal Savings Bank
Article IV -
Vesting and Forfeitures
- --------------------------------------------------------------------------------
ARTICLE IV -
VESTING AND FORFEITURES
4.1 Vesting
(a) An Employee shall always be fully vested in the Net Value of his
Before-Tax Contribution Account and the Net Value of his Rollover
Contribution Account. Commencing January 1, 2002, an Employee shall
always be fully vested in the Net Value of the portion of his
Matching Contribution Account which consists of Matching
Contributions made on and after January 1, 2002, and the earnings
thereon.
(b) A Participant shall become fully vested in the Net Value of that
portion of his Matching Contribution Account as in effect prior to
January 1, 2002, the Net Value of his Discretionary Employer
Contribution Account and the Net Value of his Nonelective Employer
Contribution Account upon the earlier of such Participant's (i)
Normal Retirement Age or (ii) termination of employment by reason of
death, Disability or reaching his Retirement Date.
(c) Prior to September 15, 1998, a Participant who is not fully vested
under subsection (b) shall be vested in the Net Value of his
Matching Contribution Account and the Net Value of his Matching
Contribution Account in accordance with the following schedule:
Period of Service Vested Percentage
----------------- -----------------
Less than 3 years 0%
3 years but less than 4 years 20%
4 years but less than 5 years 40%
5 years but less than 6 years 60%
6 years but less than 7 years 80%
7 or more years 100%
Effective September 15, 1998, the vesting schedule was amended as
follows:
Period of Service Vested Percentage
----------------- -----------------
Less than 1 year 0%
1 year but less than 2 years 20%
2 years but less than 3 years 40%
3 years but less than 4 years 60%
4 years but less than 5 years 80%
5 or more years 100%
For purposes of determining a Participant's Period of Service under
this subsection (c) and under Section 4.3, employment with an
Affiliated Employer shall be deemed employment with the Employer.
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787 32 Carver Federal Savings Bank
Article IV -
Vesting and Forfeitures
- --------------------------------------------------------------------------------
For purposes of determining a Participant's vested percentage of the
Net Value of his Matching Contribution Account and the Net Value of
his Discretionary Employer Contribution Account, all Periods of
Service shall be recognized, including, effective October 1, 1989
and November 19, 1990 respectively, employment with CrossLand
Savings, FSB and Nassau Federal Savings and Loan Association which
preceded employment with the Employer.
(d) The vested Net Value of a Participant's Matching Contribution
Account, Discretionary Employer Contribution Account and Nonelective
Employer Contribution Account shall be determined as follows:
(i) the Participant's Matching Contribution Account, Discretionary
Employer Contribution Account and Nonelective Employer
Contribution Account shall first be increased to include (A)
that portion of such Account which had been previously
withdrawn in accordance with Sections 7.3 and 7.4 and (B) that
portion of such Account which had been borrowed in accordance
with Article VIII and is outstanding on the date of this
determination;
(ii) the applicable vested percentage determined in accordance with
subsection (c) shall then be applied to such Account as
determined in accordance with clause (i);
(iii) the amount determined in accordance with clause (ii) shall
then be reduced by (A) that portion of such Account which had
been previously withdrawn in accordance with Sections 7.2 and
7.3 and (B) that portion of such Account which had been
borrowed in accordance with Article VIII and is outstanding on
the date of this determination.
4.2 Forfeitures
If a Participant who is not fully vested in the Net Value of his Accounts
terminates employment, the Units representing the nonvested portion of his
Accounts shall constitute Forfeitures. Forfeitures shall be treated as
Matching Contributions, Discretionary Employer Contributions and
Nonelective Employer Contributions and shall be applied to reduce the
amount of subsequent Matching Contributions, Discretionary Employer
Contributions and Nonelective Employer Contributions otherwise required to
be made.
With respect to a Participant's Matching Contribution Account, anything in
Section 4.1 to the contrary notwithstanding, any Matching Contribution
forfeited in accordance with the sixth paragraph of Section 3.2(a), the
second paragraph of Section 3.2(c), the sixth paragraph of Section 3.7 or
the second paragraph of Section 3.12(f), shall be applied to reduce the
amount of subsequent Matching Contributions otherwise required to be made.
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787 33 Carver Federal Savings Bank
Article IV -
Vesting and Forfeitures
- --------------------------------------------------------------------------------
If a former Participant who is not fully vested in the Net Value of his
Accounts receives a distribution of his vested interest in the Net Value
of his Accounts and is subsequently reemployed by the Employer prior to
incurring five (5) consecutive One Year Periods of Severance, he shall
have the Net Value of his Accounts as of the date he previously terminated
employment reinstated provided he repays the full amount of his
distribution in cash or cash equivalents before the end of the five (5)
consecutive One Year Periods of Severance commencing with the date of
distribution. The reinstated amount shall be unadjusted by any gains or
losses occurring subsequent to the Participant's termination of employment
and prior to repayment of such distribution. Any forfeited amounts
required to be reinstated hereunder shall be made by an additional
Employer contribution for such Plan Year. If such former Participant does
not repay the full amount of his distribution in cash or cash equivalents
before the end of the five (5) consecutive One Year Periods of Severance
commencing with the date of distribution, the Net Value of his Accounts as
of the date he previously terminated employment shall not be reinstated.
If a former Participant who is not fully vested in the Net Value of his
Accounts elects to defer distribution of his vested account interest or
elects to receive installment payments pursuant to Section 7.6(e), the
nonvested portion of such former Participant's Account shall be forfeited
as of the date of his Termination of Service; provided, however, that if
such former Participant is reemployed before incurring five (5)
consecutive One Year Periods of Severance, the nonvested portion of his
Accounts shall be reinstated in its entirety, unadjusted by any gains or
losses occurring subsequent to the distribution.
4.3 Vesting upon Reemployment
(a) For purposes of this Section 4.3, "Period of Service" means an
Employee's Period of Service determined in accordance with Section
4.1(c).
(b) For the purpose of determining a Participant's vested interest in
the Net Value of his Matching Contribution Account, Discretionary
Employer Contribution Account and Nonelective Employer Contribution
Account:
(i) if an Employee is not vested in any Matching Contributions
and/or Discretionary Employer Contributions and/or Nonelective
Employer Contributions, incurs a One Year Period of Severance
and again performs an Hour of Service, such Employee shall
receive credit for his Periods of Service prior to his One
Year Period of Severance only if the number of consecutive One
Year Periods of Severance is less than the greater of: (A)
five (5) years or (B) the aggregate number of his Periods of
Service credited before his One Year Period of Severance.
(ii) if a Participant is partially vested in any Matching
Contributions and/or Discretionary Employer Contributions
and/or Nonelective Employer Contributions, incurs a One Year
Period of Severance and again performs an
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787 34 Carver Federal Savings Bank
Article IV -
Vesting and Forfeitures
- --------------------------------------------------------------------------------
Hour of Service, such Participant shall receive credit for his
Periods of Service prior to his One Year Period of Severance;
provided, however, that after five (5) consecutive One Year
Periods of Severance, a former Participant's vested interest
in the Net Value of the Matching Contribution Account and/or
Discretionary Employer Contribution Account and/or Nonelective
Employer Contribution Account attributable to Periods of
Service prior to his One Year Period of Severance shall not be
increased as a result of his Periods of Service following his
reemployment date.
(iii) if a Participant is fully vested in any Matching Contributions
and/or Discretionary Employer Contributions and/or Nonelective
Employer Contributions, incurs a One Year Period of Severance
and again performs an Hour of Service, such Participant shall
receive credit for all his Periods of Service prior to his One
Year Period of Severance.
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787 35 Carver Federal Savings Bank
Article V -
Trust Fund, Investment Accounts and voting rights
- --------------------------------------------------------------------------------
ARTICLE V -
TRUST FUND, INVESTMENT ACCOUNTS AND VOTING RIGHTS
5.1 Trust Fund
The Employer has adopted the Agreement as the funding vehicle with respect
to the Investment Accounts. Commencing on the Conversion Date, the
Employer has adopted the Separate Agreement as the funding vehicle with
respect to the Employer Stock Fund.
All contributions forwarded by the Employer to the Trustees pursuant to
the Agreement shall be held by them in trust and shall be used to purchase
Units on behalf of the Plan in accordance with the terms and provisions of
the Agreement. Contributions designated for investment in any Investment
Account of the Trust Fund shall be allocated proportionately to and among
the classes of Units so selected for such Investment Account.
All contributions forwarded by the Employer to the Separate Agency
pursuant to the Separate Agreement shall be held by them in trust in
accordance with the terms and provisions of the Separate Agreement.
All assets of the Plan shall be held for the exclusive benefit of
Participants, Beneficiaries or other persons entitled to benefits. No part
of the corpus or income of the Plan Funds shall be used for, or diverted
to, purposes other than for the exclusive benefit of Participants,
Beneficiaries or other persons entitled to benefits and for defraying
reasonable administrative expenses of the Plan, Trust and Separate Agency.
No person shall have any interest in or right to any part of the earnings
of the Plan Funds, or any rights in, to or under the Plan Funds or any
part of its assets, except to the extent expressly provided in the Plan.
The Trustees and the Separate Agency shall invest and reinvest the Plan
Fund, and the income therefrom, without distinction between principal and
income, in accordance with the terms and provisions of the Agreement and
Separate Agreement, respectively. The Trustees and the Separate Agency may
maintain such part of the Trust Fund and the Separate Assets, respectively
in cash uninvested as they shall deem necessary or desirable. The Trustees
shall be the owner of and have title to all the assets of the Plan Funds
other than the Separate Assets and shall have full power to manage the
same, except as otherwise specifically provided in the Agreement. The
Separate Agency shall be the owner of and shall have title to the Separate
Assets, and shall have full power to manage the same, except as otherwise
specifically provided in the Separate Agreement.
5.2 Interim Investments
The Trustees may temporarily invest any amounts designated for investment
in any of the Investment Accounts of the Trust Fund identified herein in
the Investment Account which provides for short-term investments and
retain the value of such contributions therein pending
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787 36 Carver Federal Savings Bank
Article V -
Trust Fund, Investment Accounts and voting rights
- --------------------------------------------------------------------------------
the allocation of such values to the Investment Accounts designated for
investment. The Separate Agency may temporarily invest any amounts in
short-term investment pending investment in the Employer Stock Fund.
5.3 Account Values
The Net Value of the Accounts of an Employee means the sum of the total
Net Value of each Account maintained on behalf of the Employee in the
Trust and Separate Agency as determined as of the Valuation Date
coincident with or next following the event requiring the determination of
such Net Value. The assets of any Account shall consist of the Units
credited to such Account. The applicable Units shall be valued from time
to time by the Trustees and Separate Agency, respectively, in accordance
with the Agreement and Separate Agreement, but not less often than
monthly. On the basis of such valuations, each Employee's Accounts shall
be adjusted to reflect the effect of income collected and accrued,
realized and unrealized profits and losses, expenses and all other
transactions during the period ending on the applicable Valuation Date.
Upon receipt by the Trustees of Before-Tax Contributions, Matching
Contributions, and, if applicable, Discretionary Employer Contributions,
Rollover Contributions, Special Contributions and Nonelective Employer
Contributions, and upon receipt by a Separate Agency of any Before-Tax
Contributions, Matching Contributions, and, if applicable, Discretionary
Employer Contributions, Rollover Contributions, Special Contributions and
Nonelective Employer Contributions, such contributions shall be applied to
purchase for such Employee's Account (a) Units other than Units of the
Employer Stock Fund, using the value of such Units as of the close of
business on the date received and (b) Units of the Employer Stock Fund
using the value of such Units as of the preceding Valuation Date. Whenever
a distribution is made to a Participant, Beneficiary or other person
entitled to benefits, the appropriate number of Units credited to such
Employee shall be reduced accordingly and each such distribution shall be
charged against the Units of the Investment Accounts of such Employee pro
rata according to their respective values.
For the purposes of this Section 5.3, fractions of Units as well as whole
Units may be purchased or redeemed for the Account of an Employee.
5.4 Voting Rights
Each Participant with Units in the Employer Stock Fund shall have the
right to participate confidentially in the exercise of voting rights
appurtenant to shares held in such Investment Account, provided that such
person had Units in such Account as of the most recent Valuation Date
coincident with or preceding the applicable record date for which records
are available. Such participation shall be achieved by completing and
filing with the inspector of elections, or such other person who shall be
independent of the issuer of shares as the Committee shall designate, at
least ten (10) days prior to the date of the meeting of holders of shares
at which such voting rights will be exercised, a written direction in the
form and manner prescribed by the
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787 37 Carver Federal Savings Bank
Article V -
Trust Fund, Investment Accounts and voting rights
- --------------------------------------------------------------------------------
Committee. The inspector of elections, or other such person designated by
the Committee shall tabulate the directions given on a strictly
confidential basis, and shall provide the Committee with only the final
results of the tabulation. The final results of the tabulation shall be
followed by the Committee in the direction as to the manner in which such
voting rights shall be exercised. As to each matter in which the holders
of shares are entitled to vote:
(a) a number of affirmative votes shall be cast equal to the product of:
(i) the total number of shares held in the Employer Stock Fund as
of the applicable record date; and
(ii) a fraction, the numerator of which is the aggregate value (as
of the Valuation Date coincident with or immediately preceding
the applicable record date) of the Units in the Employer Stock
Fund of all persons directing that an affirmative vote be
cast, and the denominator of which is the aggregate value (as
of the Valuation Date coincident with or immediately preceding
the applicable record date) of the Units in the Employer Stock
Fund of all persons directing that an affirmative or negative
vote be cast; and
(b) a number of negative votes shall be cast equal to the product of:
(i) the total number of shares held in the Employer Stock Fund as
of the applicable record date; and
(ii) a fraction, the numerator of which is the aggregate value (as
of the Valuation Date coincident with or immediately preceding
the applicable record date) of the Units in the Employer Stock
Fund of all persons directing that a negative vote be cast,
and the denominator of which is the aggregate value (as of the
Valuation Date coincident with or immediately preceding the
applicable record date) of the Units in the Employer Stock
Fund of all persons directing that an affirmative or negative
vote be cast.
The Committee shall furnish, or cause to be furnished, to each person with
Units in the Employer Stock Fund, all annual reports, proxy materials and
other information known to have been furnished by the issuer of the shares
or by any proxy solicitor, to the holders of shares.
5.5 Tender Offers and Other Offers
Each Participant with Units in the Employer Stock Fund shall have the
right to participate confidentially in the response to a tender offer, or
any other offer, made to the holders of shares generally, to purchase,
exchange, redeem or otherwise transfer shares; provided that such person
has Units in the Employer Stock Fund as of the Valuation Date coincident
with or immediately preceding the first day for delivering shares or
otherwise responding to such tender or other offer. Such participation
shall be achieved by completing and filing with the inspector of
elections, or such other person who shall be independent of the issuer of
shares as the
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787 38 Carver Federal Savings Bank
Article V -
Trust Fund, Investment Accounts and voting rights
- --------------------------------------------------------------------------------
Committee shall designate, at least ten (10) days prior to the last day
for delivering shares or otherwise responding to such tender or other
offer, a written direction in the form and manner prescribed by the
Committee. The inspector of elections, or other such person designated by
the Committee shall tabulate the directions given on a strictly
confidential basis, and shall provide the Committee with only the final
results of the tabulation. The final results of the tabulation shall be
followed by the Committee in the direction as to the number of shares to
be delivered. On the last day for delivering shares or otherwise
responding to such tender or other offer, a number of shares equal to the
product of:
(a) the total number of shares held in the Employer Stock Fund; and
(b) a fraction, the numerator of which is the aggregate value (as of the
Valuation Date coincident with or immediately preceding the first
day for delivering shares or otherwise responding to such tender or
other offer) of the Units in the Employer Stock Fund of all persons
directing that shares be delivered in response to such tender or
other offer, and the denominator of which is the aggregate value (as
of the Valuation Date coincident with or immediately preceding the
first day for delivering shares or otherwise responding to such
tender or other offer) of the Units in the Employer Stock Fund of
all persons directing that shares be delivered or that the delivery
of shares be withheld;
shall be delivered in response to such tender or other offer. Delivery of
the remaining shares then held in the Employer Stock Fund shall be
withheld. The Committee shall furnish, or cause to be furnished, to each
person whose Account is invested in whole or in part in the Employer Stock
Fund, all information concerning such tender offer furnished by the issuer
of shares, or information furnished by or on behalf of the person making
the tender or such other offer.
5.6 Separate Assets
Subject to the terms and conditions of the Agreement and upon approval by
the Trustees, a designated portion of the assets of the Plan may be held
as Separate Assets under the Separate Agreement pursuant to investment
elections made by Plan Participants from time to time. The Trustees shall
have no responsibility or liability with respect to the management and
control of any Separate Assets and shall have only those administrative
duties with respect to such Separate Assets as are set forth in the Plan
and the Agreement.
5.7 Power to Invest in Employer Securities
The Committee may direct the Separate Agency to acquire or hold any
security issued by the Employer or any Affiliated Employer which is a
"qualifying employer security" as such term is defined under ERISA and to
invest that portion of the assets of the Plan Funds in such securities.
- --------------------------------------------------------------------------------
787 39 Carver Federal Savings Bank
Article VI -
Investment Directions, Changes of Investment Directions
and Transfers Between Investment Accounts
- --------------------------------------------------------------------------------
ARTICLE VI -
INVESTMENT DIRECTIONS, CHANGES OF INVESTMENT DIRECTIONS
AND TRANSFERS BETWEEN INVESTMENT ACCOUNTS
6.1 Investment Directions
Upon electing to participate, each Participant shall direct that the
contributions made to his Accounts shall be applied to purchase Units in
any one or more of the Investment Accounts of the Trust Fund, and
commencing on the Conversion Date, purchase Units in the Employer Stock
Fund. Such direction shall indicate the percentage, in multiples of ten
percent (10%), in which Before-Tax Contributions, Matching Contributions,
Special Contributions, Discretionary Employer Contributions and Rollover
Contributions shall be made to the designated Investment Accounts.
Commencing January 1, 2001, such direction shall indicate the percentage,
in multiples of one percent (1%), in which Before-Tax Contributions,
Matching Contributions, Special Contributions, Discretionary Employer
Contributions, Rollover Contributions and Nonelective Employer
Contributions shall be made to the designated Investment Accounts.
To the extent a Participant shall fail to make an investment direction,
contributions made on his behalf shall be applied to purchase Units in the
Investment Account which provides for short-term investments.
6.2 Change of Investment Directions
A Participant may change any investment direction not more often than once
in any calendar quarter by completing and filing a notice in the form and
manner prescribed by the Committee at least ten (10) days prior to the
effective date of such direction. Commencing January 1, 2001, a
Participant may change any investment direction, at any time, in the form
and manner prescribed by the Committee either: (a) by completing and
filing a notice at least ten (10) days prior to the effective date of such
direction, or (b) by telephone or other electronic medium. Any such change
shall be subject to the same conditions as if it were an initial direction
and shall be applied only to any contributions to be invested on or after
the effective date of such direction.
6.3 Transfers Between Investment Accounts
By filing a notice in the form and manner prescribed by the Committee at
least ten (10) days prior to the effective date of such change, a
Participant or Beneficiary may, not more often than once in any calendar
quarter, direct that multiples of ten percent (10%) of the Net Value of
any one or more Investment Accounts be transferred to any one or more of
the other Investment Accounts. Commencing January 1, 2001, a Participant
or Beneficiary may, at any time, redirect the investment of his Investment
Accounts such that a percentage of any one or more Investment Accounts may
be transferred to any one or more other
- --------------------------------------------------------------------------------
787 40 Carver Federal Savings Bank
Article VI -
Investment Directions, Changes of Investment Directions
and Transfers Between Investment Accounts
- --------------------------------------------------------------------------------
Investment Accounts in the form and manner prescribed by the Committee,
either: (a) by filing a notice at least ten (10) days prior to the
effective date of such change, or (b) by telephone or other electronic
medium. The requisite transfers shall be valued as of the Valuation Date
on which the direction is received by the Trustees and shall be affected
within seven (7) days of the Trustees' receipt of such direction.
6.4 Employees Other than Participants
(a) Investment Direction
An Employee who is not a Participant but who has made a Rollover
Contribution in accordance with the provisions of Section 3.11,
shall direct, in the form and manner prescribed by the Committee,
that such contribution be applied to the purchase of Units in any
one or more of the Investment Accounts, and commencing on the
Conversion Date, to purchase Units in the Employer Stock Fund. Such
direction shall indicate the percentage, in multiples of ten percent
(10%), in which contributions shall be made to the designated
Investment Accounts. Commencing January 1, 2001, such direction
shall indicate the percentage, in multiples of one percent (1%), in
which contributions shall be made to the designated Accounts. To the
extent any Employee shall fail to make an investment direction, the
Rollover Contributions shall be applied to the purchase of Units in
the Investment Account which provides for short-term investments.
(b) Transfers Between Investment Accounts
An Employee who is not a Participant may, subject to the provisions
of Section 6.3, not more often than once in any calendar quarter,
direct that multiples of ten percent (10%) of the Net Value of any
one or more Investment Accounts be transferred to any one or more of
the other Investment Accounts. Commencing January 1, 2001, an
Employee who is not a Participant may, subject to the provisions of
Section 6.3, at any time, redirect the investment of his Investment
Accounts such that a percentage of any one or more Investment
Accounts may be transferred to any one or more other Investment
Accounts. The requisite transfers shall be valued as of the
Valuation Date on which the direction is received by the Trustees
and shall be affected within seven (7) days of the Trustees' receipt
of such direction.
6.5 Restrictions on Investments in the Employer Stock Fund for Certain
Participants
Notwithstanding anything in the Plan to the contrary, any Participant
subject to the provisions of Section 16(b) of the Securities Exchange Act
of 1934, as amended: (a) may direct that his Accounts be transferred into
or out of the Employer Stock Fund, subject to the provisions of Section
6.3, only once during each quarter, during the period beginning on the
third (3rd)
- --------------------------------------------------------------------------------
787 41 Carver Federal Savings Bank
Article VI -
Investment Directions, Changes of Investment Directions
and Transfers Between Investment Accounts
- --------------------------------------------------------------------------------
business day following the date of release of the quarterly and annual
statements of sales and earnings by the issuer of the shares, and ending
on the twelfth (12th) business day following such date; and (b) may not
make a transfer in accordance with the provisions of Section 6.3 within
six (6) months of the next preceding transfer into or out of the Employer
Stock Fund. In addition, any Participant subject to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 who elects to receive
a distribution of shares from the Plan in accordance with Section 7.11
hereof, including withdrawals under Sections 7.3 and 7.4 and loans under
Article VIII, or who substantially decreases his rate of Before-Tax
Contributions pursuant to Section 3.3 with respect to the amounts to be
invested in the Employer Stock Fund, or his investment direction with
respect to the Employer Stock Fund pursuant to Section 6.2, must either
(i) in the case of a distribution, hold such shares for a period of six
(6) months commencing with the date of distribution, or (ii) refrain from
directing the purchase of additional Units in the Employer Stock Fund for
a period of six (6) months beginning with the date of a decrease in rate
or a change in investment direction. However, unless otherwise required by
rules and regulations of the Securities and Exchange Commission, the
restrictions under this Section 6.5 shall not apply to distributions of
shares made in connection with a Participant's death, Disability,
termination of employment or reaching his Retirement Date; pursuant to a
qualified domestic relations order described under Section 414(p) of the
Code; as a result of the minimum distribution requirements described under
Section 401(a)(9) of the Code; or as a result of the limitations described
under Section 401(k), 401(m), 402(g) and 415 of the Code.
- --------------------------------------------------------------------------------
787 42 Carver Federal Savings Bank
Article VII -
Payment of Benefits
- --------------------------------------------------------------------------------
ARTICLE VII -
PAYMENT OF BENEFITS
7.1 General
(a) For purposes of this Article VII, the following terms and phrases
shall have the meanings hereinafter ascribed to them:
(i) "Beneficiary" shall mean (A) in the case of a married
Participant, the Spouse. Notwithstanding the foregoing, such
Participant may, subject to the spousal consent requirements
of Section 7.2(a), effectively elect to designate a person or
persons other than the Spouse as Beneficiary; (B) in the case
of a single Participant, a person or persons who have been
designated under the Plan by such Participant or who are
otherwise entitled to a benefit under the Plan.
(ii) "Straight Life Annuity" shall mean a benefit payable in equal
monthly installments to the Participant for his life with no
benefits payable after his death.
(iii) "100% Joint and Survivor Annuity" shall mean a benefit payable
in equal monthly installments to the Participant for his life
with the same benefit continuing after his death to and for
the life of a surviving Beneficiary.
(iv) "75% Joint and Survivor Annuity" shall mean a benefit payable
in equal monthly installments to the Participant for his life
with a benefit equal to three-quarters (3/4) of the benefit
paid to the Participant continuing after his death to and for
the life of a surviving Beneficiary.
(v) "50% Joint and Survivor Annuity" shall mean a benefit payable
in equal monthly installments to the Participant for his life
with a benefit equal to one-half (1/2) of the benefit paid to
the Participant continuing after his death to and for the life
of a surviving Beneficiary.
(vi) "Period Certain and Life Annuity" shall mean a benefit payable
in equal monthly installments to the Participant for his
lifetime. If the Participant's death occurs on or after the
expiration of the period certain, no further benefits will be
payable. If, however, the Participant's death occurs before
the expiration of the period certain, equal monthly
installments in the same amount as paid to the Participant
prior to his death will be paid to his designated Beneficiary.
In the event neither the Participant nor the designated
Beneficiary survive to the end of said period certain, a final
lump sum distribution equal to the commuted value of any
installments shall be made to the estate of the last to die of
(A) the Participant and (B) his Beneficiary.
- --------------------------------------------------------------------------------
787 43 Carver Federal Savings Bank
Article VII -
Payment of Benefits
- --------------------------------------------------------------------------------
(b) The vested interest in the Net Value of any one or more of the
Accounts of a Participant, Beneficiary or any other person entitled
to benefits under the Plan shall be paid only at the times, to the
extent, in the manner, and to the persons provided in this Article
VII.
(c) Notwithstanding the foregoing, if payments are to be made on a
monthly basis and if payments are fifty dollars ($50.00) or less,
the Committee, in its sole discretion, may determine to make such
payments in a lump sum or in quarterly, semi-annual, or annual
installments.
(d) Any distribution of the vested interest in the Net Value of a
Participant's Accounts which is made by the purchase of any annuity
shall be made by the purchase of a nontransferable annuity contract
from a legal reserve life insurance company licensed to do business
in the state of New York. Such annuity contract shall comply with
the provisions of this Plan.
(e) The Net Value of any one or more of the Accounts of a Participant
shall be subject to the provisions of Section 8.7.
(f) Notwithstanding any provisions of the Plan to the contrary, any and
all withdrawals, distributions or payments made under the provisions
of this Article VII shall be made in accordance with Section
401(a)(9) of the Code and any and all Income Tax Regulations
promulgated thereunder.
With respect to distributions under the Plan made in calendar years
beginning on or after January 1, 2001, the Plan will apply the
minimum distribution requirements of Section 401(a)(9) of the Code
in accordance with the regulations under Section 401(a)(9) that were
proposed in January 2001, notwithstanding any provision of the Plan
to the contrary. This amendment shall continue in effect until the
end of the 2002 calendar year. For calendar years beginning with the
2003 calendar year, the Plan will apply the minimum distribution
requirements of Section 401(a)(9) of the Code, in accordance with
final regulations, as set forth in Section 7.10.
(g) Notwithstanding any provisions of the Plan to the contrary, the
provisions of this Article VII shall also apply to a person who is
not a Participant but who has made a contribution to and maintains a
Rollover Contribution Account under the Plan.
(h) Distributions from the Employer Stock Fund under this Article VII,
shall be made in accordance with Section 7.11 hereunder.
7.2 Spousal Consent Requirements - Optional Forms of Benefit Payments, Loans,
Withdrawals, Beneficiaries
(a) An election by the Participant (i) to receive benefit payments in a
form other than the normal form of benefit payment set forth in
Section 7.5(a), (ii) to receive a loan in
- --------------------------------------------------------------------------------
787 44 Carver Federal Savings Bank
Article VII -
Payment of Benefits
- --------------------------------------------------------------------------------
accordance with the provisions of Article VIII or to revise,
renegotiate, renew or extend an existing loan, (iii) to receive a
withdrawal in accordance with the provisions of Section 7.3 or
Section 7.4, (iv) to designate a Beneficiary who is other than his
Spouse, or (v) under any other provision of the Plan which is
subject to spousal consent, shall not be effective unless: (A) the
Participant's Spouse irrevocably consents to such election in
writing, (B) such election designates a Beneficiary or form of
benefit payment, which may not be changed without spousal consent
unless the consent of the Spouse expressly permits designation by
the Participant without any requirement of further consent by the
Spouse, (C) the Spouse's consent acknowledges understanding of the
effect of such election, and (D) the consent is witnessed by a Plan
representative or a notary public. Notwithstanding this consent
requirement, if the Participant establishes to the satisfaction of
the Plan representative that such written consent cannot be obtained
because there is no Spouse or the Spouse cannot be located, such
election shall be deemed a qualified election.
Any consent necessary under this provision shall be valid only with
respect to the Spouse who signs the consent. Notwithstanding the
foregoing sentence, a consent to receive a loan or withdrawal which
had been executed by a Spouse shall be binding with respect to such
loan or withdrawal on any subsequent Spouse.
(b) (i) A married Participant who has submitted to the Committee an
election form in accordance with the provisions of subsection
(a)(i) may, without the consent of his Spouse, revoke such
prior election by submitting written notification of such
revocation to the Committee before the date benefit payments
are scheduled to commence. Upon revocation, the 50% Joint and
Survivor Annuity, with the Participant's Spouse as
Beneficiary, shall be reinstated unless the Participant files
another election form in accordance with the provisions of
subsection (a). The number of election forms and revocations
shall not be limited.
(ii) A married Participant who has submitted to the Committee an
election form in accordance with the provisions of subsection
(a)(iv), may, without the consent of his Spouse, revoke such
prior election by submitting written notification of such
revocation to the Committee before the date benefit payments
are scheduled to commence. Such revocation shall result in the
reinstatement of the Spouse as the designated Beneficiary
unless the Participant effectively designates another person
as Beneficiary in accordance with the provisions of subsection
(a) and Section 7.7. The number of election forms and
revocations shall not be limited.
(c) The terms and conditions of any election form shall, unless
otherwise indicated, become effective on the date benefit payments
are scheduled to commence, or, if applicable, the date of
distribution.
- --------------------------------------------------------------------------------
787 45 Carver Federal Savings Bank
Article VII -
Payment of Benefits
- --------------------------------------------------------------------------------
7.3 Non-Hardship Withdrawals
(a) Subject to the spousal consent requirements of Section 7.2(a) and
the terms and conditions contained in this Section 7.3, upon ten
(10) days prior written notice to the Committee each Participant who
has attained age fifty-nine and one-half (59-1/2) shall be entitled
to withdraw not more often than once during any Plan Year all or any
portion of his vested interest in the Net Value of his Accounts in
the following order of priority:
(i) the Before-Tax Contribution Account;
(ii) the Net Value of the Participant's Rollover Contribution
Account provided that such Participant shall have satisfied
such additional terms and conditions, if any, as the Committee
may deem necessary;
(iii) the vested interest in the Net Value of his Matching
Contribution Account;
(iv) the vested interest in the Net Value of his Discretionary
Employer Contribution Account; and
(v) the Net Value of his Nonelective Employer Contribution
Account.
(b) Withdrawals under this Section 7.3 shall be made in the following
order of priority:
(i) by the redemption of Units from each of the Participant's
Accounts in the Trust Fund in the order set forth in Section
7.3(a), on a pro rata basis from the Investment Accounts
thereunder, as were selected by the Participant pursuant to
Article VI; and
(ii) by the redemption of Units invested in the Employer Stock Fund
from each of the Participant's Accounts invested under the
Separate Agreement, in the order set forth in Section 7.3(a),
if selected by the Participant pursuant to Article VI.
(c) Any withdrawals under this Section 7.3 shall be subject to the
restrictions of Section 6.5.
7.4 Hardship Distributions
(a) For purposes of this Section 7.4, a "Hardship" distribution shall
mean a distribution that is (i) made on account of a condition which
has given rise to immediate and heavy financial need of a
Participant and (ii) necessary to satisfy such financial need. A
determination of the existence of an immediate and heavy financial
need and the amount necessary to meet the need shall be made by the
Committee in accordance with uniform nondiscriminatory standards
with respect to similarly situated persons.
(b) Immediate and Heavy Financial Need:
- --------------------------------------------------------------------------------
787 46 Carver Federal Savings Bank
Article VII -
Payment of Benefits
- --------------------------------------------------------------------------------
A Hardship distribution shall be deemed to be made on account of an
immediate and heavy financial need if the distribution is on account
of:
(i) expenses for medical care described under Section 213(d) of
the Code which were previously incurred by the Participant,
the Participant's Spouse or any of the Participant's
dependents as defined under Section 152 of the Code or
expenses which are necessary to obtain medical care described
under Section 213(d) of the Code for the Participant, the
Participant's Spouse or any of the Participant's dependents as
defined under Section 152 of the Code; or
(ii) purchase (excluding mortgage payments) of a principal
residence of the Participant; or
(iii) payment of tuition and related educational fees for the next
twelve (12) months of post-secondary education for the
Participant, the Participant's Spouse, children or any of the
Participant's dependents as defined under Section 152 of the
Code; or
(iv) the need to prevent the eviction of the Participant from his
principal residence or foreclosure on the mortgage of the
Participant's principal residence; or
(v) any other condition which the Commissioner of Internal
Revenue, through the publication of revenue rulings, notices
and other documents of general applicability, deems to be an
immediate and heavy financial need.
(c) Necessary to Satisfy Such Financial Need:
(i) A distribution will be treated as necessary to satisfy an
immediate and heavy financial need of a Participant if: (A)
the amount of the distribution is not in excess of (1) the
amount required to relieve the financial need of the
Participant and (2) if elected by the Participant, an amount
necessary to pay any federal, state or local income taxes, or
penalties reasonably anticipated to result from such
distribution, and (B) such need may not be satisfied from
other resources that are reasonably available to the
Participant.
(ii) A distribution will be treated as necessary to satisfy a
financial need if the Committee reasonably relies upon the
Participant's representation that the need cannot be relieved:
(A) through reimbursement or compensation by insurance or
otherwise,
(B) by reasonable liquidation of the Participant's assets,
to the extent such liquidation would not itself cause an
immediate and heavy financial need,
- --------------------------------------------------------------------------------
787 47 Carver Federal Savings Bank
Article VII -
Payment of Benefits
- --------------------------------------------------------------------------------
(C) by cessation of Before-Tax Contributions or Employee
contributions, if any, under the Plan, or
(D) by other distributions or nontaxable loans from plans
maintained by the Employer or by any other employer, or
by borrowing from commercial sources on reasonable
commercial terms.
For purposes of this subsection (c)(ii), the Participant's
resources shall be deemed to include those assets of his
Spouse and minor children that are reasonably available to the
Participant.
(iii) Alternatively, a Hardship distribution will be deemed to be
necessary to satisfy an immediate and heavy financial need of
a Participant if (A) or (B) are met:
(A) all of the following requirements are satisfied:
(I) the distribution is not in excess of (1) the
amount of the immediate and heavy financial need
of the Participant and (2) if elected by the
Participant, an amount necessary to pay any
federal, state or local income taxes or penalties
reasonably anticipated to result from such
distribution;
(II) the Participant has obtained all distributions,
other than Hardship distributions, and all
nontaxable loans currently available under all
plans maintained by the Employer;
(III) the Plan, and all other plans maintained by the
Employer, provide that the Participant's elective
contributions and Employee contributions, if any,
will be suspended for twelve (12) months after
receipt of the Hardship distribution; and
(IV) the Plan, and all other plans maintained by the
Employer, provide that the Participant may not
make elective contributions for the Participant's
taxable year immediately following the taxable
year of the Hardship distribution in excess of the
applicable limit under Section 402(g) of the Code
for such next taxable year, less the amount of
such Participant's elective contributions for the
taxable year of the Hardship distribution; or
(B) the requirements set forth in additional methods, if
any, prescribed by the Commissioner of Internal Revenue
(through the publication of revenue rulings, notices and
other documents of general applicability) are satisfied.
- --------------------------------------------------------------------------------
787 48 Carver Federal Savings Bank
Article VII -
Payment of Benefits
- --------------------------------------------------------------------------------
(d) A Participant who has withdrawn the maximum amounts available to
such Participant under Section 7.3 or a Participant who is not
eligible for a withdrawal thereunder, may, in case of Hardship (as
defined under this Section 7.4), apply not more often than once in
any Plan Year to the Committee for a Hardship distribution. Any
application for a Hardship distribution shall be subject to the
spousal consent requirements of Section 7.2(a) and be made in
writing to the Committee at least ten (10) days prior to the
requested date of payment. Hardship distributions may be made by a
distribution of all or a portion of a Participant's (i) Before-Tax
Contributions, (ii) Net Value of his Rollover Contribution Account,
(iii) vested interest in the Net Value of his Matching Contribution
Account and (iv) the vested interest in the Net Value of his
Discretionary Employer Contribution Account.
(e) Distributions under this Section 7.4 shall be made in the following
order of priority:
(i) Participant's Before-Tax Contributions;
(ii) the Net Value of the Participant's Rollover Contribution
Account;
(iii) the vested interest in the Net Value of the Participant's
Matching Contribution Account; and
(iv) the vested interest in the Net Value of the Participant's
Discretionary Employer Contribution Account; and
(v) the vested interest in the Net Value of the Participant's
Nonelective Employer Contribution Account.
(f) Withdrawals under this Section 7.4 shall be made in the following
order of priority:
(i) by the redemption of Units from each of the Participant's
Accounts in the Trust Fund in the order set forth in Section
7.4(e), on a pro rata basis from the Investment Accounts
thereunder, as were selected by the Participant pursuant to
Article VI; and
(ii) by the redemption of Units invested in the Employer Stock Fund
from each of the Participant's Accounts invested under the
Separate Agreement, in the order set forth in Section 7.4(e),
if selected by the Participant pursuant to Article VI.
(g) A Participant who receives a Hardship distribution under this
Section 7.4 may have his Before-Tax Contributions suspended in
accordance with Section 3.3.
(h) Any withdrawals under this Section 7.4 shall be subject to the
restrictions of Section 6.5.
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7.5 Distribution of Benefits Following Retirement, Disability or Termination
of Service
(a) If a Participant incurs a Termination of Service for any reason
other than death, a distribution of the vested interest in the Net
Value of his Accounts shall be made by the purchase of (i) a 50%
Joint and Survivor Annuity with his Spouse as the designated
Beneficiary or (ii) a Straight Life Annuity if the Participant does
not have a Spouse. Payment of benefits to the Participant shall
commence as of the later of the Participant's Normal Retirement Date
or his Postponed Retirement Date.
(b) The Committee shall make every reasonable effort to furnish each
Participant, by personal delivery or first class mail, the following
information not less than thirty (30) days nor more than ninety (90)
days prior to the date benefit payments are scheduled to commence:
(i) the terms and conditions of the 50% Joint and Survivor
Annuity,
(ii) the Participant's right to make, and the effect of, an
election to waive the 50% Joint and Survivor Annuity,
(iii) the rights of the Participant's Spouse under the Plan,
(iv) the right to make, and the effect of, a revocation of a
previous election to waive the 50% Joint and Survivor Annuity,
and
(v) the relative values of the various optional forms of benefit
payments under the Plan.
The Employer may also permanently post in the Employers office or
offices the information described in (i) through (v) above in a
manner that is reasonably calculated to reach the attention of each
Participant.
(c) In lieu of the normal form of benefit payment set forth in Section
7.5(a), the Participant may file an election form to receive his
vested interest in the Net Value of his Accounts in any one of the
optional forms of benefit payment set forth in Section 7.6. Such
form must be filed with the Committee during the ninety (90) day
election period ending on the date benefit payments are scheduled to
commence.
(d) If a Participant who incurs a Termination of Service for any reason
other than death, files an election with the Committee to receive an
optional form of benefit payment in accordance with the provisions
of Section 7.6, and dies before the entire vested interest in the
Net Value of his Accounts has been distributed:
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(i) if the Net Value of a Participant's Accounts was distributed
by the purchase of an annuity contract, the remainder, if any,
of such vested interest shall be paid in accordance with the
provisions of such annuity contract;
(ii) if the Participant had elected to receive and had begun
receiving a distribution in the form of installments, the
Beneficiary shall receive distributions over the remaining
installment period, at the times set forth in such election.
If the Beneficiary designated to receive payments under the
installment form of benefit payments dies after the
commencement of payments to the Participant but prior to the
earlier of the end of the installment period or the date of
the Participant's death, the Participant shall, subject to the
spousal consent requirements of Section 7.2(a), have the right
to designate another Beneficiary, provided such designation is
executed and filed with the Committee prior to the
Participant's death. If there is no Beneficiary, the remaining
vested interest in the Net Value of his Accounts shall be
payable in a lump sum to the executor or administrator of his
estate, or, if no such executor or administrator is appointed
and qualifies within a time which the Committee shall, in its
sole and absolute discretion, deem to be reasonable, then to
such one or more of the descendants and blood relatives of
such deceased Participant as the Committee, in its sole and
absolute discretion, may select;
(iii) if the Participant had elected to receive a deferred lump sum
distribution, the Participant's Beneficiary shall receive a
lump sum distribution as of the earlier of: (A) the Valuation
Date set forth in the Participant's election or (B) the last
Valuation Date which occurs within one (1) year of the
Participant's death;
(iv) if the Participant had elected to receive an immediate lump
sum distribution, the Participant's Beneficiary shall receive
a lump sum distribution as of the Valuation Date set forth in
the Participant's election;
(v) if the Participant had elected to receive an annuity and the
annuity contract had not yet been purchased, the Participant's
Beneficiary shall, by completing and filing the election form
prescribed by the Committee, elect to receive the distribution
as a Straight Life Annuity or one of the optional forms of
benefit payment set forth in Section 7.8(f));
(vi) if the Participant had elected that a lump sum distribution be
paid in a Direct Rollover pursuant to Section 7.9 and such
distribution had not yet been made, the Participant's
Beneficiary shall, by completing and filing the election form
prescribed by the Committee, elect to receive the distribution
as a Straight Life Annuity or in one of the optional forms of
benefit payment set forth in Section 7.8(f));
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(vii) Notwithstanding the foregoing, if the Beneficiary is the
Participant's Spouse and if benefits are payable to such
Beneficiary as an immediate or deferred lump sum distribution,
such Spouse may defer the distribution up to the date on which
the Participant would have attained age seventy and one-half
(70-1/2).
(e) If an Participant who incurs a Termination of Service is reemployed
by the Employer, upon such Participant's subsequent Termination of
Service his prior election to receive a distribution in a form other
than the normal form of benefit payment set forth in subsection (a)
shall be null and void and the vested interest in the Net Value of
his Accounts shall be distributed to him in accordance with the
provisions of subsection (a).
(f) An Employee who incurs a Termination of Service, has elected to
receive a distribution in the form of installments and is reemployed
by the Employer prior to the distribution of the entire vested
interest in the Net Value of his Accounts in accordance with the
provisions of Section 7.6(e), shall not be eligible to receive or to
continue to receive such distribution during his period of
reemployment with the Employer. Upon such Employee's subsequent
Termination of Service, his prior election to receive a distribution
in the form of installments shall be null and void and the vested
interest in the Net Value of his Accounts shall be distributed to
him in accordance with the provisions of subsection (a).
(g) If a Participant incurs a Termination of Service for any reason and
the vested interest in the Net Value of the Participant's Accounts
is equal to or less than three thousand five hundred dollars
($3,500), (and effective January 1, 1998, five thousand dollars
($5,000)), a lump sum distribution of the vested interest in the Net
Value of his Accounts shall be made to the Participant within seven
(7) days of the Valuation Date coincident with the date of receipt
by the Trustees of the proper documentation that such Participant
incurred a Termination of Service.
(d) A Participant's vested interest in the Net Value of his Accounts in
the Employer Stock Fund shall be distributed to the Participant by
the Separate Agency as soon as administratively possible following
the date the Employer is informed by the Trustees of the
Participant's vested interest in such Investment Accounts. The
distribution shall be made in accordance with Section 7.11 and the
terms and provisions of the Separate Agreement.
7.6 Optional Forms of Benefit Payment upon Retirement, Disability or
Termination of Service
(a) In lieu of the normal form of benefit payment set forth in Section
7.5(a), a Participant who incurs a Termination of Service as of his
Retirement Date or incurs a Termination of Service due to Disability
or incurs a Termination of Service for any other reason may file an
election form to receive a distribution of the vested interest in
the Net Value of his Accounts by the purchase of a 100% Joint and
Survivor Annuity, a 75% Joint and
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Survivor Annuity or a 50% Joint and Survivor Annuity or a Period
Certain and Life Annuity. Such form may, subject to the spousal
consent requirements of Section 7.2(a), include an election to
designate a Beneficiary who is other than his Spouse. Payment of
benefits to the Participant shall commence as of the later of the
Participant's Normal Retirement Date or his Postponed Retirement
Date. Notwithstanding the foregoing sentence, such form may include
an election to receive a distribution commencing on any date
coincident with or next following his Early Retirement Date or, if
applicable, the date of his Disability.
(b) In lieu of the normal form of benefit payment set forth in Section
7.5(a), a Participant who incurs a Termination of Service as of his
Retirement Date or incurs a Termination of Service due to Disability
or incurs a Termination of Service for any other reason may, subject
to the spousal consent requirements of Section 7.2(a), file an
election form to receive a distribution of the vested interest in
the Net Value of his Accounts by the purchase of a Straight Life
Annuity. Payment of benefits to the Participant shall commence as of
the later of the Participant's Normal Retirement Date or his
Postponed Retirement Date. Notwithstanding the foregoing sentence,
such form may include an election to receive a distribution
commencing on any date coincident with or next following his Early
Retirement Date or, if applicable, the date of his Disability.
(c) In lieu of the normal form of benefit payment set forth in Section
7.5(a), a Participant who incurs a Termination of Service as of his
Retirement Date or incurs a Termination of Service due to Disability
or incurs a Termination of Service for any other reason may, subject
to the spousal consent requirements of Section 7.2(a) and the
required minimum distribution provisions of Sections 7.10(b) and
7.10(c), file an election form to receive the vested interest in the
Net Value of his Accounts as a lump sum distribution as of any
Valuation Date following his Termination of Service and prior to his
Normal Retirement Date; provided, however, that the Valuation Date
may not be later than thirteen (13) months following his Termination
of Service. The vested interest in the Net Value of his Accounts
shall be distributed to such Participant as a lump sum distribution
within seven (7) days of the Valuation Date coincident with the date
of receipt by the Trustees of the proper documentation indicating
the Participant's distribution date.
(d) In lieu of the normal form of benefit payment set forth in Section
7.5(a), a Participant who incurs a Termination of Service as of his
Retirement Date or incurs a Termination of Service due to Disability
or incurs a Termination of Service for any other reason may, subject
to the spousal consent requirements of Section 7.2(a), elect to
defer receipt of the vested interest in the Net Value of his
Accounts beyond his Normal Retirement Date or Postponed Retirement
Date. If such an election is made, the vested interest in the Net
Value of his Accounts shall continue to be held in the Trust Fund.
Subject to the required minimum distribution provisions of Sections
7.10(b) and 7.10(c), the vested interest in the Net Value of his
Accounts shall be distributed to such Participant as a lump sum
distribution within seven (7) days of the Valuation Date coincident
with the
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date of receipt by the Trustees of the proper documentation
indicating the Employee's deferred distribution date.
(e) In lieu of the normal form of benefit payment set forth in Section
7.5(a), a Participant who incurs a Termination of Service as of his
Retirement Date or incurs a Termination of Service due to Disability
or incurs a Termination of Service for any other reason may, subject
to the spousal consent requirements of Section 7.2(a) and the
required minimum distribution provisions of Sections 7.10(b) and
7.10(c), file an election form to receive the vested interest in the
Net Value of his Accounts in the form of equal monthly, quarterly or
annual installments over a period not to exceed ten (10) years. If a
Participant elects to receive his benefit pursuant to this
subsection (e), the installment period may not extend beyond the
life expectancy of such Participant or the life expectancy of such
Participant and his Beneficiary. The vested interest in the Net
Value of his Accounts shall be determined as of such Valuation Date
or Valuation Dates in each such Plan Year as may be elected by such
Participant and shall be based on the respective values of the
Participant's Units in each Investment Account as of such Valuation
Date or Valuation Dates. The amount of the installment payment shall
be distributed by the redemption of Units from the Participant's
Accounts on a pro rata basis among such Participant's Investment
Accounts. Any portion of the vested interest in the Net Value of the
Accounts of such Participant which shall not have been so paid shall
continue to be held for his benefit or for the benefit of his
Beneficiary in the Participant's Investment Accounts.
(f) In lieu of the normal form of benefit payment set forth in Section
7.5(a), a Participant who incurs a Termination of Service as of his
Retirement Date or incurs a Termination of Service due to Disability
or incurs a Termination of Service for any other reason may, subject
to the spousal consent requirements of Section 7.2(a), file an
election form that a lump sum distribution equal to the vested
interest in the Net Value of his Accounts be paid in a Direct
Rollover pursuant to Section 7.9. The amount of such lump sum
distribution shall be determined as of the Valuation Date coincident
with the date of receipt by the Trustees of the proper
documentation.
(g) In lieu of the normal form of benefit payment set forth in Section
7.5(a), a Participant who incurs a Termination of Service as of his
Retirement Date or incurs a Termination of Service due to Disability
or incurs a Termination of Service for any other reason may, subject
to the spousal consent requirements of Section 7.2(a), file an
election form to receive the vested interest in the Net Value of his
Accounts in the form of a partial lump sum distribution as of some
Valuation Date following his Termination of Service. Subject to the
required minimum distribution provisions of Sections 7.10(b) and
7.10(c), the partial lump sum distribution shall be distributed to
such Employee within seven (7) days of the Valuation Date coincident
with the date of receipt by the Trustees of the proper documentation
indicating the Employee's distribution date; and the balance
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of the vested interest in the Net Value of his Accounts shall be
payable in the form of one (1) of the following:
(i) monthly, quarterly or annual installments over a period not to
exceed ten (10) years, as set forth in subsection (e); or
(ii) the purchase of an annuity, as set forth in Section
7.1(a)(ii), (iii), (iv), (v) or (vi).
7.7 Designation of Beneficiary
(a) Subject to the spousal consent requirements of Section 7.2(a), a
Participant may, from time to time, designate any person or persons
as Beneficiary or contingent Beneficiary to receive a benefit under
Section 7.5 or Section 7.8 upon the death of the Participant. For
purposes of this Section 7.7, "person" includes an individual, a
trust, an estate, or any other entity designated as a Beneficiary.
(b) The designation of a Beneficiary or contingent Beneficiary shall be
made in writing by the Participant in the form and manner prescribed
by the Committee and shall not be effective unless such form is (i)
filed prior to the death of such person and (ii) complies with the
spousal consent requirements of Section 7.2(a). If more than one (1)
person is designated as a Beneficiary, each designated Beneficiary
in such Beneficiary classification shall have an equal share, unless
the Participant directs otherwise.
(c) The designation of a Beneficiary or contingent Beneficiary which is
filed with the Committee will revoke all prior Beneficiary
designations filed with the Committee. The number of Beneficiary
designations and revocations shall not be limited.
(d) If the Beneficiary or contingent Beneficiary designated to receive
payments under an optional form of benefit set forth in Section 7.6
dies prior to the commencement of benefit payments to the
Participant, the terms and conditions of such election shall be
deemed null and void and the normal form of benefit set forth in
Section 7.5(a) shall be reinstated. Subject to the spousal consent
requirements of Section 7.2(a), the Participant shall have the right
to elect another optional form of benefit payment and another
Beneficiary, provided such election is completed and filed with the
Committee prior to the earlier of: (i) the Participant's death, or
(ii) the date the Participant's benefit payments are scheduled to
commence. Such election shall become effective on the date the
Participant's benefit payments are scheduled to commence.
(e) If the Spouse or other Beneficiary designated to receive payments
under Section 7.8(b) or Section 7.8(e), dies prior to the death of
the Participant, the terms and conditions of such election shall be
null and void. If the Participant is married, the normal form of
benefit set forth in Section 7.8(b)(ii) shall be reinstated. Subject
to the spousal consent requirements of Section 7.2(a), the
Participant shall have the right to elect another Beneficiary,
provided such election is completed and filed with the Committee
prior to
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the earlier of: (i) the Participant's death, or (ii) the date the
Participant's benefit payments are scheduled to commence. Such
election shall become effective on the date the Participant's
benefit payments are scheduled to commence.
(f) If a Participant fails to designate a Beneficiary other than a
Spouse to receive the Preretirement Death Benefit set forth in
Section 7.8, or if the Beneficiary and contingent Beneficiary
designated by a Participant die prior to such Participant's death
and before the entire vested interest in the Net Value of the
Participant's Accounts has been distributed, such Participant's
benefits shall be paid as a lump sum to the executor or
administrator of his estate.
7.8 Preretirement Death Benefits
(a) If a Participant dies prior to the date benefits are to commence and
the vested interest in the Net Value of the Participant's Accounts
is equal to or less than three thousand five hundred dollars
($3,500) (and effective January 1, 1998, five thousand dollars
($5,000)), a lump sum distribution of the vested interest in the Net
Value of his Accounts shall be made to the Participant's Beneficiary
within seven (7) days of the Valuation Date coincident with the date
of receipt by the Trustees of the proper documentation indicating
the date of the Participant's death.
(b) If a Participant dies prior to the date benefits are to commence and
the vested interest in the Net Value of the Participant's Accounts
exceeds three thousand five hundred dollars ($3,500) (and effective
January 1, 1998, five thousand dollars ($5,000)), the Preretirement
Death Benefit for a Participant shall be as follows:
(i) if a Participant had a vested interest in the Net Value of his
Accounts and died (A) prior to the date benefit payments are
scheduled to commence and (B) with no surviving Spouse, the
vested interest in the Net Value of his Accounts shall be made
to the Participant's designated Beneficiary by the purchase of
a Straight Life Annuity. Payment of benefits shall commence
within one (1) year of the Participant's death;
(ii) if a Participant had a vested interest in the Net Value of his
Accounts and died (A) prior to the date benefits payments are
scheduled to commence and (B) with a surviving Spouse, the
vested interest in the Net Value of his Accounts shall be made
to the surviving Spouse by the purchase of a Straight Life
Annuity. Payment of benefits to the Participant's Spouse shall
commence as of the later of the date the Participant would
have attained his Normal Retirement Date or the date of the
Participant's death.
(c) Notwithstanding the provisions of subsection (b)(ii), the surviving
Spouse of a Participant may elect that the Straight Life Annuity be
purchased with benefits to commence on a date selected by the Spouse
which occurs on any date commencing
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with the Participant's date of death and ending on the date the
Participant would have attained age seventy and one-half (70-1/2).
(d) In lieu of the normal form of benefit payment set forth in
subsection (b)(ii), a Participant may, subject to the spousal
consent requirements of Section 7.2(a), elect to waive the
Preretirement Death Benefit. Such waiver shall designate a
Beneficiary who is other than the Participant's Spouse.
(e) Consent by a Spouse to waive the Preretirement Death Benefit is not
binding on a subsequent Spouse. If a Participant has elected, with
spousal consent, to waive the Preretirement Death Benefit and is
subsequently widowed or divorced and thereafter remarried, the
Preretirement Death Benefit is automatically reinstated upon
remarriage, subject to any subsequent election by the Participant,
with the consent of his new Spouse, to waive such coverage.
(f) In lieu of the normal form of Preretirement Death Benefit set forth
in subsection (b), upon the Participant's death the Beneficiary of a
Participant may, by completing and filing the election form
prescribed by the Committee, elect to receive the vested interest in
the Net Value of a Participant's Accounts in one of the following
optional forms of benefit payment:
(i) as a lump sum distribution as of any Valuation Date following
the Participant's death; provided, however, that the Valuation
Date may not be later than one (1) year following the
Participant's death. The vested interest in the Net value of
the Participant's Accounts shall be distributed to such person
as a lump sum distribution within seven (7) days of the
Valuation Date coincident with the date of receipt by the
Trustees of the proper documentation indicating the
distribution date.
(ii) in the form of equal monthly, quarterly or annual installments
over a period not to exceed ten (10) years. The vested
interest in the Net value of the Participant's Accounts shall
be determined as of such Valuation Date or Valuation Dates in
each such Plan Year as may be elected by such person and shall
be based on the respective values of the deceased
Participant's Units in each Investment Account as of such
Valuation Date or Valuation Dates. The amount of the
installment payment shall be distributed by the redemption of
Units from the deceased Participant's Accounts on a pro rata
basis among such deceased Participant's Investment Accounts.
Any portion of the vested interest in the Net Value of the
Accounts of such deceased Participant which shall not have
been so paid shall continue to be held for the benefit of the
surviving Spouse or other Beneficiary or for the benefit of
the beneficiary designated by such person. If the surviving
Spouse or other Beneficiary elects to receive his benefit
pursuant to this subsection (f)(ii), installment payments
shall begin to such
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person within one (1) year of the Participant's death and the
installment period may not extend beyond the life expectancy
of such person.
(iii) as a lump sum distribution equal to the vested interest in the
Net Value of the Participant's Accounts made payable in a
Direct Rollover pursuant to Section 7.9. Such lump sum
distribution shall be made within seven (7) days of the
Valuation Date coincident with the date of receipt by the
Trustees of the proper documentation.
(iv) in the form of a partial distribution as of some Valuation
Date following his Termination of Service. Subject to the
required minimum distribution provisions of Sections 7.10(b)
and 7.10(c), the partial distribution shall be distributed to
such Employee within seven (7) days of the Valuation Date
coincident with the date of receipt by the Trustees of the
proper documentation indicating the Employee's distribution
date; and the balance of the vested interest in the Net Value
of his Accounts shall be payable in the form of one of the
following:
(I) installments over a period not to exceed ten (10) years,
as set forth in subsection (f)(ii);
(II) the purchase of a Straight Life Annuity, as set forth in
subsections (b) and (c), if applicable; or
(III) a lump sum distribution made payable in a Direct
Rollover pursuant to Section 7.9 and as set forth in
subsection (iii).
Notwithstanding the foregoing provisions to the contrary, if the
surviving Spouse of a deceased Participant elects one of these
optional forms of benefit payment set forth above, such Spouse may
elect to have benefits commence on a date selected by such Spouse
which occurs on any date commencing with the Participant's date of
death and ending on the date the Participant would have attained age
seventy and one-half (70-1/2).
7.9 Direct Rollover of Eligible Rollover Distributions
For purposes of this Section 7.9, the following definitions shall apply:
(a) "Direct Rollover" means a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
(b) "Distributee" means an Employee or former Employee. In addition, the
Employee's or former Employee's surviving spouse and the Employee's
or former Employee's Spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, are Distributees with regard to the
interest of the Spouse or former spouse.
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(c) "Eligible Retirement Plan" means an individual retirement account
described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan
described in Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts the
Distributee's Eligible Rollover Distribution. However, in the case
of an Eligible Rollover Distribution to the surviving Spouse, an
Eligible Retirement Plan is an individual retirement account or
individual retirement annuity.
(d) "Eligible Rollover Distribution" means any distribution of all or
any portion of the balance to the credit of the Distributee, except
that an Eligible Rollover Distribution does not include: any
distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or
life expectancy) of the Distributee or the joint lives (or joint
life expectancies) or the Distributee and the Distributee's
designated Beneficiary, or for a specified period of ten (10) years
or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and the portion of any
distribution that is not includable in gross income (determined
without regard to the exclusion for net unrealized appreciation with
respect to employer securities); and effective January 1, 2000, any
Hardship distribution described in Section 401(k)(2)(B)(i)(IV) of
the Code.
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a Distributee's election under this Section, a Distributee
may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an Eligible Rollover Distribution
paid directly to an Eligible Retirement Plan specified by the Distributee
in a Direct Rollover.
7.10 Minimum Distribution Requirements
(a) General Rules
(i) Effective Date. The provisions of this Section 7.10 will apply
for purposes of determining required minimum distributions for
calendar years beginning with the 2003 calendar year.
(ii) Precedence. The requirements of this Section 7.10 will take
precedence over any inconsistent provisions of the Plan.
(iii) Requirements of Treasury Regulations Incorporated. All
distributions required under this Section 7.10 will be
determined and made in accordance with the Treasury
regulations under Section 401(a)(9) of the Code.
(iv) TEFRA Section 242(b)(2) Elections. Notwithstanding the other
provisions of this Section 7.10, distributions may be made
under a designation made before January 1, 1984, in accordance
with Section 242(b)(2) of the Tax Equity and Fiscal
Responsibility Act (TEFRA), and the provisions of the Plan, if
applicable, that relate to Section 242(b)(2) of TEFRA.
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(b) Time and Manner of Distribution
(i) Required Beginning Date. The Participant's entire interest
will be distributed, or begin to be distributed, to the
Participant no later than the Participant's Required Beginning
Date.
(ii) Death of Participant Before Distributions Begin. If the
Participant dies before distributions begin, the Participant's
entire interest will be distributed, or begin to be
distributed, no later than as follows:
(A) If the Participant's surviving Spouse is the
Participant's sole Designated Beneficiary, distributions
to the surviving Spouse will begin by December 31 of the
calendar year immediately following the calendar year in
which the Participant died, or by December 31 of the
calendar year in which the Participant would have
attained age 70 1/2, if later.
(B) If the Participant's surviving Spouse is not the
Participant's sole Designated Beneficiary, distributions
to the Designated Beneficiary will begin by December 31
of the calendar year immediately following the calendar
year in which the Participant died.
(C) If there is no Designated Beneficiary as of September 30
of the year following the year of the Participant's
death, the Participant's entire interest will be
distributed by December 31 of the calendar year
containing the fifth (5th) anniversary of the
Participant's death.
(D) If the Participant's surviving Spouse is the
Participant's sole Designated Beneficiary and the
surviving Spouse dies after the Participant but before
distributions to the surviving Spouse begin, this
Section 7.10(b)(ii), other than Section 7.10(b)(ii)(A),
will apply as if the surviving Spouse were the
Participant.
For purposes of this Section 7.10(b)(ii) and Section 7.10(d),
unless Section 7.10(b)(ii)(D) applies, distributions are
considered to begin on the Participant's Required Beginning
Date. If Section 7.10.(b)(ii)(D) applies, distributions are
considered to begin on the date distributions are required to
begin to the surviving Spouse under Section 7.10(b)(ii)(A). If
distributions under an annuity purchased from an insurance
company, if applicable, irrevocably commence to the
Participant before the Participant's Required Beginning Date
(or to the Participant's surviving Spouse before the date
distributions are required to begin to the surviving Spouse
under Section 7.10(b)(ii)(A), the date distributions are
considered to begin is the date distributions actually
commence.
(iii) Election to Apply 5-Year Rule to Distributions to Designated
Beneficiaries. If the Participant dies before distributions
begin and there is a Designated Beneficiary, distribution to
the Designated Beneficiary is not required to begin by the
date specified in Section 7.10(b)(ii), but the Participant's
entire interest will be distributed to the Designated
Beneficiary by December 31 of the calendar year containing the
fifth anniversary of the Participant's death. If the
Participant's surviving Spouse is the Participant's sole
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787 60 Carver Federal Savings Bank
Article VII -
Payment of Benefits
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Designated Beneficiary and the surviving Spouse dies after the
Participant but before distributions to either the Participant
or the surviving Spouse begin, this election will apply as if
the surviving Spouse were the Participant.
(iv) Election to Allow Participants or Beneficiaries to Elect
5-Year Rule. Participants or Beneficiaries may elect on an
individual basis whether the 5-year rule or the Life
Expectancy rule in Sections 7.10(b)(ii) and 7.10(d)(ii)
applies to distributions after the death of a Participant who
has a Designated Beneficiary. The election must be made no
later than the earlier of September 30 of the calendar year in
which distribution would be required to begin under Section
7.10(b)(ii), or by September 30 of the calendar year which
contains the fifth anniversary of the Participant's (or, if
applicable, surviving Spouse's) death. If neither the
Participant nor Beneficiary makes an election under this
subsection, distributions will be made in accordance with
Sections 7.10(b)(ii) and 7.10(d)(ii) and, if applicable, the
elections in Section 7.10(b)(iii) above.
(v) Election to Allow Designated Beneficiary Receiving
Distributions Under 5-Year Rule to Elect Life Expectancy
Distributions. A Designated Beneficiary who is receiving
payments under the 5-year rule may make a new election to
receive payments under the Life Expectancy rule until December
31, 2003, provided that all amounts that would have been
required to be distributed under the Life Expectancy rule for
all Distribution Calendar Years before 2004 are distributed by
the earlier of December 31, 2003 or the end of the 5-year
period.
(vi) Forms of Distribution. Unless the Participant's interest is
distributed in the form of an annuity purchased from an
insurance company or in a single sum on or before the Required
Beginning Date, as of the first Distribution Calendar Year
distributions will be made in accordance with Sections 7.10(c)
and (d). If the Participant's interest is distributed in the
form of an annuity purchased from an insurance company,
distributions thereunder will be made in accordance with the
requirements of Section 401(a)(9) of the Code and the Treasury
regulations.
(c) Required Minimum Distributions During Participant's Lifetime
(i) Amount of Required Minimum Distribution For Each Distribution
Calendar Year. During the Participant's lifetime, the minimum
amount that will be distributed for each Distribution Calendar
Year is the lesser of:
(A) the quotient obtained by dividing the Participant's
Accounts by the distribution period in the Uniform
Lifetime Table set forth in Section 1.401(a)(9)-9 of the
Treasury regulations, using the Participant's age as of
the Participant's birthday in the Distribution Calendar
Year; or
(B) if the Participant's sole Designated Beneficiary for the
Distribution Calendar Year is the Participant's Spouse,
the quotient obtained by dividing the Participant's
Accounts by the number in the Joint and Last Survivor
Table set forth in Section
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787 61 Carver Federal Savings Bank
Article VII -
Payment of Benefits
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1.401(a)(9)-9 of the Treasury regulations, using the
Participant's and Spouse's attained ages as of the
Participant's and Spouse's birthdays in the Distribution
Calendar Year.
(ii) Lifetime Required Minimum Distributions Continue Through Year
of Participant's Death. Required minimum distributions will be
determined under this Section 7.10(c) beginning with the first
Distribution Calendar Year and up to and including the
Distribution Calendar Year that includes the Participant's
date of death.
(d) Required Minimum Distributions After Participant's Death
(i) Death On or After Date Distributions Begin
(A) Participant Survived by Designated Beneficiary. If the
Participant dies on or after the date distributions
begin and there is a Designated Beneficiary, the minimum
amount that will be distributed for each Distribution
Calendar Year after the year of the Participant's death
is the quotient obtained by dividing the Participant's
Accounts by the longer of the remaining Life Expectancy
of the Participant or the remaining Life Expectancy of
the Participant's Designated Beneficiary, determined as
follows:
(I) The Participant's remaining Life Expectancy is
calculated using the age of the Participant in the
year of death, reduced by one for each subsequent
year.
(II) If the Participant's surviving Spouse is the
Participant's sole Designated Beneficiary, the
remaining Life Expectancy of the surviving Spouse
is calculated for each Distribution Calendar Year
after the year of the Participant's death using
the surviving Spouse's age as of the Spouse's
birthday in that year. For Distribution Calendar
Years after the year of the surviving Spouse's
death, the remaining Life Expectancy of the
surviving Spouse is calculated using the age of
the surviving Spouse as of the Spouse's birthday
in the calendar year of the Spouse's death,
reduced by one for each subsequent calendar year.
(III) If the Participant's surviving Spouse is not the
Participant's sole Designated Beneficiary, the
Designated Beneficiary's remaining Life Expectancy
is calculated using the age of the Beneficiary in
the year following the year of the Participant's
death, reduced by one for each subsequent year.
(B) No Designated Beneficiary. If the Participant dies on or
after the date distributions begin and there is no
Designated Beneficiary as of September 30 of the year
after the year of the Participant's death, the minimum
amount that will be distributed for each Distribution
Calendar Year after the year of the Participant's death
is the quotient obtained by dividing the Participant's
Accounts by the Participant's remaining Life Expectancy
calculated using the age of the Participant in the year
of death, reduced by one for each subsequent year.
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787 62 Carver Federal Savings Bank
Article VII -
Payment of Benefits
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(ii) Death Before Date Distributions Begin
(A) Participant Survived by Designated Beneficiary. If the
Participant dies before the date distributions begin and
there is a Designated Beneficiary, the minimum amount
that will be distributed for each Distribution Calendar
Year after the year of the Participant's death is the
quotient obtained by dividing the Participant's Accounts
by the remaining Life Expectancy of the Participant's
Designated Beneficiary, determined as provided in
Section 7.10(d)(i).
(B) No Designated Beneficiary. If the Participant dies
before the date distributions begin and there is no
Designated Beneficiary as of September 30 of the year
following the year of the Participant's death,
distribution of the Participant's entire interest will
be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant's
death.
(C) Death of Surviving Spouse Before Distributions to
Surviving Spouse Are Required to Begin. If the
Participant dies before the date distributions begin,
the Participant's surviving Spouse is the Participant's
sole Designated Beneficiary, and the surviving Spouse
dies before distributions are required to begin to the
surviving Spouse under Section 7.10(b)(ii)(A), this
Section 7.10(d)(ii) will apply as if the surviving
Spouse were the Participant.
(e) Definitions
For purposes of this Section 7.10, the following words and phrases
shall have the meanings hereafter ascribed to them:
(i) Designated Beneficiary. The individual who is designated as
the Beneficiary under Section 1.11 of the Plan and is the
Designated Beneficiary under Section 401(a)(9) of the Code and
Section 1.401(a)(9)-1, Q&A-4, of the Treasury regulations.
(ii) Distribution Calendar Year. A calendar year for which a
minimum distribution is required. For distributions beginning
before the Participant's death, the first Distribution
Calendar Year is the calendar year immediately preceding the
calendar year which contains the Participant's Required
Beginning Date. For distributions beginning after the
Participant's death, the first Distribution Calendar Year is
the calendar year in which distributions are required to begin
under Section 7.10(b)(ii). The required minimum distribution
for the Participant's first Distribution Calendar Year will be
made on or before the Participant's Required Beginning Date.
The required minimum distribution for other Distribution
Calendar Years, including the required minimum distribution
for the Distribution Calendar Year in which the Participant's
Required Beginning Date occurs, will be made on or before
December 31 of that Distribution Calendar Year.
(iii) Life Expectancy. Life Expectancy as calculated by use of the
Single Life Table in Section 1.401(a)(9)-9 of the Treasury
regulations.
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787 63 Carver Federal Savings Bank
Article VII -
Payment of Benefits
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(iv) Participant's Accounts. The Accounts of the last Valuation Date in
the calendar year immediately preceding the Distribution Calendar
Year (valuation calendar year) increased by the amount of any
contributions made and allocated or Forfeitures allocated to the
Accounts as of dates in the valuation calendar year after the
Valuation Date and decreased by distributions made in the valuation
calendar year after the Valuation Date. The Accounts for the
valuation calendar year includes any amounts rolled over or
transferred to the Plan either in the valuation calendar year or in
the Distribution Calendar Year if distributed or transferred in the
valuation calendar year.
(v) Required Beginning Date. The date specified in Section 7.11(b) or
(c), whichever is applicable.
7.11 Latest Commencement of Benefits
(a) Unless the Participant elects otherwise in accordance with the Plan,
in no event shall the payment of benefits commence later than the
sixtieth (60th) day after the close of the Plan Year in which the
latest of the following events occur: (i) the attainment by the
Participant of age sixty-five (65), (ii) the tenth (10th)
anniversary of the year in which the Participant commenced
participation in the Plan or Prior Plan, or (iii) the termination of
the Participant's employment with the Employer; provided, however,
that if the amount of the payment required to commence on the date
determined under this sentence cannot be ascertained by such date, a
payment retroactive to such date may be made no later than sixty
(60) days after the earliest date on which the amount of such
payment can be ascertained under the Plan.
(b) Distributions to five-percent owners:
The vested interest in the Net Value of the Accounts of a
five-percent owner (as described in Section 416(i) of the Code and
determined with respect to the Plan Year ending in the calendar year
in which such individual attains age seventy and one-half (70-1/2))
must be distributed or commence to be distributed no later than the
first day of April following the calendar year in which such
individual attains age seventy and one-half (70-1/2). The vested
interest in the Net Value of the Accounts of a Participant who is
not a five-percent owner (as described in Section 416(i) of the
Code) for the Plan Year ending in the calendar year in which such
person attains age seventy and one-half (70-1/2) but who becomes a
five-percent owner (as described in Section 416(i) of the Code) for
a later Plan Year must be distributed or commence to be distributed
no later than the first day of April following the last day of the
calendar year that includes the last day of the first Plan Year for
which such individual is a five-percent owner (as described in
Section 416(i) of the Code).
(c) Subject to Section 7.1(f), distributions to other than five-percent
owners:
The vested interest in the Net Value of the Accounts of a
Participant who is not a five-percent owner and who attained age
seventy and one-half (70-1/2) prior to January 1,
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787 64 Carver Federal Savings Bank
Article VII -
Payment of Benefits
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1988, must be distributed or commence to be distributed no later
than the first day of April following the calendar year in which
occurs the later of: (i) his termination of employment or (ii) his
attainment of age seventy and one-half (70-1/2).
Except as otherwise provided in the following paragraph, the vested
interest in the Net Value of the Accounts of any Participant who
attains age seventy and one-half (70-1/2) after December 31, 1987,
must be distributed or commence to be distributed no later than the
first day of April following the calendar year in which such
individual attains age seventy and one-half (70-1/2).
Effective January 1, 1997, an Employee otherwise required to receive
a distribution under the preceding paragraph, may elect to defer
distribution of the Net Value of his Accounts to the date of his
termination of employment.
Notwithstanding the foregoing, the vested interest in the Net Value
of the Accounts of (I) any Employee who becomes a Participant on or
after January 1, 1997 or (II) any Employee who attains age seventy
and one-half (70-1/2) in a calendar year beginning on or after
January 1, 2003, must be distributed or commence to be distributed
no later than the first day of April following the calendar year in
which occurs the later of: (1) his termination of employment or (2)
his attainment of age seventy and one-half (70-1/2).
7.12 Manner of Payment of Distributions from the Employer Stock Fund
Distributions from the Employer Stock Fund shall be made to Participants
and Beneficiaries in cash, unless the Participant or Beneficiary elects
that such distributions may be made wholly or partially in shares. If the
Participant or Beneficiary elects that such distributions may be made
wholly or partially in shares, subject to such terms and conditions as may
be established from time to time by the Committee, the maximum number of
shares to be distributed shall be equal to the number of whole shares that
could be purchased on the date of distribution based on the fair market
value of shares determined as of the date of payment and on the fair
market value of the Participant's Units in the Employer Stock Fund on the
valuation date preceding the distribution. An amount of money equal to any
remaining amount of the payment that is less than the fair market value of
a whole share shall be distributed in cash. For purposes of this Section
7.12, the fair market value of a share shall be determined on a uniform
and nondiscriminatory basis in such manner as the Separate Agency may, in
its discretion, prescribe.
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787 65 Carver Federal Savings Bank
Article VIII -
Loans to Participants
- --------------------------------------------------------------------------------
ARTICLE VIII -
LOANS TO PARTICIPANTS
8.1 Definitions and Conditions
(a) For purposes of this Article VIII, the following terms and phrases
shall have the meanings hereafter ascribed to them:
(i) "Borrower" means a Participant or a "Party in Interest" (as
defined under Section 3(14) of ERISA) who maintains an
Account, provided such Participant or Party in Interest is not
receiving a benefit payment in the form of installment or
annuity payments in accordance with the provisions of Article
VII, or a preretirement death benefit in accordance with the
provisions of Section 7.8.
(ii) "Loan Account" means the separate, individual account
established on behalf of a Borrower in accordance with the
provisions of Section 8.4(d).
(b) To the extent permitted under the provisions of this Article VIII
and subject to the terms and conditions set forth herein and in
Section 7.2, a Borrower may request a loan from his Accounts. Any
loans made in accordance with this Article VIII shall not be subject
to the provisions of Article VI.
8.2 Loan Amount
Upon a finding by the Committee that all requirements hereunder have been
met, a Borrower may request a loan from his Accounts, in an amount up to
the lesser of: (a) fifty percent (50%) of the Net Value as of the close of
business on the date the loan is processed of the Before-Tax Contribution
Account, vested Matching Contribution Account, vested Discretionary
Employer Contribution Account, Rollover Contribution Account and
Nonelective Employer Contribution Account, or (b) fifty thousand dollars
($50,000), reduced by the highest outstanding loan balance during the
preceding twelve (12) months. The minimum loan permitted shall be one
thousand dollars ($1,000).
8.3 Term of Loan
All loans shall be for a fixed term of not more than five (5) years,
except that a loan which shall be used to acquire any dwelling which
within a reasonable time is to be used as the principal residence of the
Borrower, may, in the discretion of the Committee, be made for a term of
not more than fifteen (15) years. Interest on a loan shall be based on a
reasonable rate of interest. Such rate shall be the "prime rate" as set
forth in the first publication of The Wall Street Journal issued during
the month in which the Borrower requests the loan, increased by one (1)
percentage point and rounded to the nearest quarter of one percent (1/4 of
1%). Such rate shall remain in effect until the Loan Account is closed.
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787 66 Carver Federal Savings Bank
Article VIII -
Loans to Participants
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8.4 Operational Provisions
(a) An application for a loan shall be filed in the form and manner
prescribed by the Committee and shall be subject to the fees, if
any, set forth in Section 9.11. If the Committee shall approve such
application, the Committee shall establish the amount of such loan
and such loan shall be effected as of the Valuation Date next
following receipt by the Trustees.
(b) The amount of the loan shall be distributed from the Investment
Accounts in which the Borrower's Accounts are invested, in the
following order of priority:
(i) Before-Tax Contribution Account;
(ii) Rollover Contribution Account;
(iii) vested Matching Contribution Account;
(iv) vested Discretionary Employer Contribution Account;
(v) vested Nonelective Employer Contribution Account.
Distributions from each of the foregoing Accounts shall be made in
the following order of priority:
(A) by the redemption of Units from each of the Borrower's
Accounts in the Trust Fund in the order set forth above,
on a pro rata basis from the Investment Accounts
thereunder, as were selected by the Participant pursuant
to Article VI; and
(B) by the redemption of Units invested in the Employer
Stock Fund from each of the Borrower's Accounts invested
under the Separate Agreement, in the order set forth
above, if selected by the Borrower pursuant to Article
VI.
(c) The proceeds of a loan shall be distributed to the Borrower as soon
as practicable after the Valuation Date as of which the loan is
processed; provided, however, that the Borrower shall have satisfied
such reasonable conditions as the Committee shall deem necessary,
including, without limitation: (i) the delivery of an executed
promissory note for the amount of the loan, including interest,
payable to the order of the Trustees; (ii) an assignment to the Plan
of such Borrower's interest in his Accounts to the extent of such
loan; and (iii) if the Borrower is actively employed by the
Employer, an authorization to the Employer to make payroll
deductions in order to repay his loan to the Plan. The
aforementioned promissory note shall be duly acknowledged and
executed by the Borrower and shall be held by the Trustees, or the
Committee as agent for the Trustees, as an asset of the Borrower's
Loan Account pursuant to subsection (d).
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787 67 Carver Federal Savings Bank
Article VIII -
Loans to Participants
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(d) A Loan Account shall be established for each Borrower with an
outstanding loan pursuant to this Article VIII. Each Loan Account
shall be comprised of a Borrower's (i) executed promissory note and
(ii) installment payments of principal and interest made pursuant to
Section 8.5(a). Upon full payment and satisfaction of the
outstanding Loan Account balance, a Borrower's promissory note shall
be marked paid in full, returned to the Borrower, and his Loan
Account thereupon closed.
(e) As of each Valuation Date coincident with or next succeeding each
payment of principal and interest on a loan, the then current
balance of each Borrower's Loan Account shall be debited by the
amount of such payment and such amount shall be transferred for
investment in accordance with Section 8.5(c) to the appropriate
Borrower's Account. If the Committee established a lien against the
Borrower's Accounts pursuant to Section 8.6(c), and foreclosure of
such lien is deferred until the Borrower's Termination of Service
pursuant to Section 8.6(c)(i), for each month that foreclosure of
the lien is deferred, the then current balance of the Borrower's
Loan Account shall be charged with interest on the unpaid principal
and interest thereon.
(f) Only one (1) loan shall be outstanding to any Borrower under this
Article VIII at any time.
(g) Any loans under this Article VIII shall be subject to the
restrictions of Section 6.5.
8.5 Repayments
(a) If the Borrower is on the payroll of the Employer and unless
otherwise agreed to by the Committee, repayments of loan principal,
or the unpaid balance thereof, and interest thereon shall be made
through payroll deductions. The first repayment shall be deducted as
of the first payroll date occurring no later than three (3) weeks
after the Committee submits the loan form for processing.
If the Borrower is not on the payroll of the Employer and unless
otherwise agreed to by the Committee, repayments of loan principal,
or the unpaid balance thereof, and interest thereon, shall be made
in cash or cash equivalencies to the Employer in equal monthly
installments for payment to his Loan Account.
(b) Any amount repaid to the Plan by a Borrower with respect to a loan,
including interest thereon, shall be invested as if such amount were
a contribution to be invested in accordance with Section 6.1.
(c) With respect to each Borrower's Loan Account, any repayment of
principal and interest made by a Borrower shall be credited, as of
the Valuation Date coincident with or next succeeding such payment,
to the Borrower's Accounts in the order of priority established
under Section 8.4(b). No Account having a lesser degree of priority
shall be credited until the Account having the immediately preceding
degree of priority has
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787 68 Carver Federal Savings Bank
Article VIII -
Loans to Participants
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been restored by an amount equal to that which had been borrowed
from such Account.
(d) A Borrower may prepay his entire loan, plus all interest accrued and
unpaid thereon, as of any Valuation Date. A Borrower will not be
permitted to make partial prepayments to his or her Loan Account.
(e) In the event the Plan is terminated, the entire unpaid principal
amount of the loan hereunder, together with any accrued and unpaid
interest thereon, shall become immediately due and payable.
8.6 Default
(a) If a Borrower fails to make any payment on any loan when due under
this Article VIII, the entire unpaid principal amount of such loan,
together with any accrued and unpaid interest thereon, shall be
deemed in default and become due and payable ninety (90) days after
the initial date of payment delinquency.
(b) If a Borrower fails to make any payment on a loan and is deemed to
be in default pursuant to subsection (a), the Committee shall
establish a lien against the Borrower's Accounts in an amount equal
to any unpaid principal and interest. The lien shall be foreclosed
by applying the value of the Borrower's Loan Account (determined as
of the next Valuation Date immediately following foreclosure) in
satisfaction of said unpaid principal and interest as follows:
(i) if the Borrower is in the employment of the Employer, upon the
Borrower's Termination of Service; or
(ii) if the Borrower is not in the employment of the Employer,
immediately upon default.
Thereupon, the vested interest in the balance of the Borrower's
Accounts shall be distributed in accordance with the applicable
provisions of the Plan.
(c) The Committee may, in accordance with uniform rules established by
it, restrict the right of any Borrower who has defaulted on a loan
from the Plan to: (i) make withdrawals and/or loans from his
Matching Contribution Account, Before-Tax Contribution Account,
Discretionary Employer Contribution Account, Nonelective Employer
Contribution Account and/or Rollover Contribution Account for a
period not exceeding twelve (12) months or (ii) if the Borrower is
an Eligible Employee, authorize Before-Tax Contributions to be made
on his behalf or make any other contributions to the Plan for a
period not exceeding twelve (12) months.
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787 69 Carver Federal Savings Bank
Article VIII -
Loans to Participants
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8.7 Coordination of Outstanding Account and Payment of Benefits
(a) If the Borrower has an outstanding Loan Account and is either (i)
scheduled to receive or elects to receive a lump sum distribution in
accordance with the provisions of Article VII, or (ii) scheduled to
receive the last installment payment under a previous election made
in accordance with the provisions of Article VII to receive payments
in a form other than the normal form of benefit payments, then, at
the time of the distribution or payment under clause (i) or (ii)
above, the entire unpaid principal amount of the loan together with
any accrued and unpaid interest thereon, shall become immediately
due and payable. No Plan distribution, except as permitted under
Section 7.3 or Section 7.4, shall be made to any Borrower unless and
until such Borrower's Loan Account, including accrued interest
thereunder, has been liquidated and closed. If a Borrower fails to
pay the outstanding balance of his Loan Account hereunder, such loan
shall be satisfied as if a default had occurred pursuant to Section
8.6.
(b) Any reference in the Plan to the Net Value of Units in a Borrower's
Accounts available for distribution to any Borrower, shall mean the
value after the satisfaction of the entire unpaid principal loan
amount and any accrued, unpaid interest thereon, as provided in this
Article VIII.
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787 70 Carver Federal Savings Bank
Article IX -
Administration
- --------------------------------------------------------------------------------
ARTICLE IX -
ADMINISTRATION
9.1 General Administration of the Plan
The operation and administration of the Plan shall be subject to the
management and control of the Named Fiduciaries and Plan Administrator
designated by the Sponsoring Employer. The designation of such Named
Fiduciaries and Plan Administrator, the terms of their appointment, and
their duties and responsibilities allocated among them shall be as set
forth in this Article IX. Any actions taken hereunder shall be conclusive
and binding on Participants, Retired Participants, Employees,
Beneficiaries and other persons, and shall not be overturned unless found
to be arbitrary and capricious by a court of competent jurisdiction.
9.2 Designation of Named Fiduciaries
The management and control of the operation and administration of the Plan
shall be allocated in the following manner:
(a) The Sponsoring Employer shall designate the Trustees as a Named
Fiduciary to perform those functions set forth in the Plan or the
Agreement which are applicable to a Plan of Partial Participation.
(b) The Sponsoring Employer shall designate the Separate Agency to
perform those functions relating to the Separate Agency in the Plan
or the Separate Agreement.
(c) The Sponsoring Employer shall designate one or more individuals to
serve as member(s) of an employee benefits Committee to perform
those functions set forth in the Agreement, Separate Agreement or
the Plan that are assigned to such Committee.
(d) A Trust Participant (as defined under the Agreement) may delegate to
a person or persons the duties and responsibilities for voting Units
set forth under the Agreement and Separate Agreement.
(e) The Sponsoring Employer shall designate the Separate Agency as a
Named Fiduciary to perform those functions set forth in the Separate
Agreement or the Plan that are assigned to the Separate Agency,
including the voting and tender of shares of the Employer Stock.
9.3 Responsibilities of Fiduciaries
The Named Fiduciaries and Plan Administrator shall have only those powers,
duties, responsibilities and obligations that are specifically allocated
to them under the Plan, the Agreement or the Separate Agreement.
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787 71 Carver Federal Savings Bank
Article IX -
Administration
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To the extent permitted by ERISA, each Named Fiduciary and Plan
Administrator may rely upon any direction, information or action of
another Named Fiduciary, Plan Administrator or the Sponsoring Employer as
being proper under the Plan, the Agreement or the Separate Agreement and
is not required to inquire into the propriety of any such direction,
information or action and no Named Fiduciary or Plan Administrator shall
be responsible for any act or failure to act of another Named Fiduciary,
Plan Administrator or the Sponsoring Employer.
No Named Fiduciary, Plan Administrator or the Employer guarantees the
Trust Fund or Separate Assets in any manner against investment loss or
depreciation in asset value.
The allocation of responsibility between the Trustees and the Sponsoring
Employer or between the Separate Agency and the Sponsoring Employer may be
changed by written agreement. Such reallocation shall be evidenced by
Employer Resolutions and shall not be deemed an amendment to the Plan.
To the extent permitted by ERISA, the Trustees shall have no liability or
responsibility with respect to the administration of any Separate Assets
held outside the Trust except as specifically set forth in the Agreement.
The authority and responsibility of the Trustees extend only to those Plan
assets held in accordance with the Agreement.
9.4 Plan Administrator
The Sponsoring Employer shall designate the Trustees as the Trustee
Administrator to perform those functions applicable to Plans of Partial
Participation as set forth in the Agreement. The Sponsoring Employer shall
also designate one or more persons to act as Plan Administrator and to
perform those functions set forth in the Agreement, the Plan or the
Separate Agreement that are assigned to the Plan Administrator.
The duties and responsibilities of a plan administrator under ERISA shall
be allocated between the Plan Administrator and the Trustee Administrator
as set forth herein or in the Agreement. Such allocation may be changed
only by written agreement between the parties and shall not be deemed an
amendment to the Plan.
The Plan Administrator shall be solely responsible for monitoring and
notifying the Trustees of an Employee's age for all purposes under the
Plan.
The Plan Administrator is designated as the Plan's agent for the service
of legal process.
9.5 Committee
The members of the Committee designated by the Sponsoring Employer under
Section 9.2(b) shall serve for such term(s) as the Sponsoring Employer
shall determine and until their successors are designated and qualified.
The term of any member of the Committee may be renewed from time to time
without limitation as to the number of renewals. Any member of the
Committee may (a) resign upon at least sixty (60) days written notice to
the Sponsoring Employer or (b) be removed from office but only for his
failure or inability, in the opinion of the Sponsoring
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787 72 Carver Federal Savings Bank
Article IX -
Administration
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Employer, to carry out his responsibilities in an effective manner.
Termination of employment with the Employer shall be deemed to give rise
to such failure or inability.
The powers and duties allocated to the Committee shall be vested jointly
and severally in its members. Notwithstanding specific instructions to the
contrary, any instrument or document signed on behalf of the Committee by
any member of the Committee may be accepted and relied upon by the
Trustees and Separate Agency as the act of the Committee. The Trustees and
Separate Agency shall not be required to inquire into the propriety of any
such action taken by the Committee nor shall they be held liable for any
actions taken by them in reliance thereon.
The Sponsoring Employer may, pursuant to Employer Resolutions and upon
notice to the Trustees, change the number of individuals comprising the
Committee, their terms of office or other conditions of their incumbency
provided that there shall be at all times at least one individual member
of the Committee. Any such change shall not be deemed an amendment to the
Plan.
9.6 Powers and Duties of the Committee
The Committee shall have authority to perform all acts it may deem
necessary or appropriate in order to exercise the duties and powers
imposed or granted by ERISA, the Plan, the Agreement, the Separate
Agreement or any Employer Resolutions. Such duties and powers shall
include, but not be limited to, the following:
(a) Power to Construe - Except as otherwise provided in the Agreement,
or the Separate Agreement, the Committee shall have the power to
construe the provisions of the Plan and to determine any questions
of fact which may arise thereunder.
(b) Power to Make Rules and Regulations - The Committee shall have the
power to make such reasonable rules and regulations as it may deem
necessary or appropriate to perform its duties and exercise its
powers. Such rules and regulations shall include, but not be limited
to, those governing (i) the manner in which the Committee shall act
and manage its own affairs, (ii) the procedures to be followed in
order for Employees or Beneficiaries to claim benefits, and (iii)
the procedures to be followed by Participants, Beneficiaries or
other persons entitled to benefits with respect to notifications,
elections, designations or other actions required by the Plan or
ERISA. All such rules and regulations shall be applied in a uniform
and nondiscriminatory manner.
(c) Powers and Duties with Respect to Information - The Committee shall
have the power and responsibility:
(i) to obtain such information as shall be necessary for the
proper discharge of its duties;
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787 73 Carver Federal Savings Bank
Article IX -
Administration
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(ii) to furnish to the Employer, upon request, such reports as are
reasonable and appropriate;
(iii) to receive, review and retain periodic reports of the
financial condition of the Plan Funds; and
(iv) to receive, collect and transmit to the Trustees all
information required by the Trustees in the administration of
the Accounts of the Employee as contemplated in Section 9.7.
(d) Power of Delegation - The Committee shall have the power to delegate
fiduciary responsibilities (other than trustee responsibilities
defined under Section 405(c)(3) of ERISA) to one or more persons who
are not members of the Committee. Unless otherwise expressly
indicated by the Sponsoring Employer, the Committee must reserve the
right to terminate such delegation upon reasonable notice.
(e) Power of Allocation - Subject to the written approval of the
Sponsoring Employer, the Committee shall have the power to allocate
among its members specified fiduciary responsibilities (other than
trustee responsibilities defined under Section 405(c)(3) of ERISA).
Any such allocation shall be in writing and shall specify the
persons to whom such allocation is made and the terms and conditions
thereof.
(f) Duty to Report - Any member of the Committee to whom specified
fiduciary responsibilities have been allocated under subsection (e)
shall report to the Committee at least annually. The Committee shall
report to the Sponsoring Employer at least annually regarding the
performance of its responsibilities as well as the performance of
any persons to whom any powers and responsibilities have been
further delegated.
(g) Power to Employ Advisors and Retain Services - The Committee may
employ such legal counsel, enrolled actuaries, accountants, pension
specialists, clerical help and other persons as it may deem
necessary or desirable in order to fulfill its responsibilities
under the Plan.
9.7 Certification of Information
The Committee shall certify to the Trustees on such periodic or other
basis as may be agreed upon, but in no event later than ten (10) days
before any Valuation Date as of which the Trustees must effect any action
with respect to any Accounts held under the provisions of the Plan,
relevant facts regarding the establishment of the Accounts of an Employee,
periodic contributions with respect to such Accounts, investment elections
and modifications thereof and withdrawals and distributions therefrom. The
Trustees shall be fully protected in maintaining individual Account
records and in administering the Accounts of the Employee on the basis of
such certifications and shall have no duty of inquiry or otherwise with
respect to any transactions
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787 74 Carver Federal Savings Bank
Article IX -
Administration
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or communications between the Committee and Employees relating to the
information contained in such certifications.
9.8 Authorization of Benefit Payments
The Committee shall forward to the Trustees and, if applicable, any
Separate Agency, any application for payment of benefits within a
reasonable time after it has approved such application. The Trustees and
Separate Agency may rely on any such information set forth in the approved
application for the payment of benefits to the Participant, Beneficiary or
any other person entitled to benefits.
9.9 Payment of Benefits to Legal Custodian
Whenever, in the Committee's opinion, a person entitled to receive any
benefit payment is a minor or deemed to be physically, mentally or legally
incompetent to receive such benefit, the Committee may direct the Trustees
and Separate Agency to make payment for his benefit to such individual or
institution having legal custody of such person or to his legal
representative. Any benefit payment made in accordance with the provisions
of this Section 9.9 shall operate as a valid and complete discharge of any
liability for payment of such benefit under the provisions of the Plan.
9.10 Service in More Than One Fiduciary Capacity
Any person or group of persons may serve in more than one fiduciary
capacity with respect to the Plan, regardless of whether any such person
is an officer, employee, agent or other representative of a party in
interest.
9.11 Payment of Expenses
The Employer will pay the ordinary administrative expenses of the Plan and
compensation of the Trustees to the extent required, except that any
expenses directly related to the Trust Fund, such as transfer taxes,
brokers' commissions, registration charges, or administrative expenses of
the Trustees (including expenses of counsel retained by it in accordance
with the Agreement), shall be paid from the Trust Fund or from such
Investment Account to which such expenses directly relate.
The Employer may, if determined by the Committee, charge Employees all or
part of the reasonable expenses associated with withdrawals and other
distributions or Account transfers. The Employer will charge Employees
loan origination fees and all annual maintenance fees associated with
loans.
Brokerage commissions incurred in connection with the Employer Stock Fund
shall be paid by the Employer.
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787 75 Carver Federal Savings Bank
Article IX -
Administration
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9.12 Administration of Separate Assets
The Committee and the Separate Agency shall be solely responsible for the
administration of the Separate Assets, including the administration,
collection and enforcement of any loans held therein. All contributions to
and withdrawals or disbursements from the Separate Assets shall be made
directly to or by the Separate Agency.
The Trustees may, as agreed upon with the Committee, provide such combined
or coordinated Plan records and reports, which include the Separate
Assets. The Trustees shall be fully protected in relying upon any
information provided to them by the Committee or Separate Agency with
respect to such Separate Assets. The inclusion of any information
pertaining to Separate Assets in such combined or coordinated Plan records
and reports shall not increase the responsibility or liability of the
Trustees with respect to the Separate Assets. If Plan Funds may be
transferred between the Separate Assets and the other Investment Accounts,
the manner in which such transfers may be made must be agreed to in a
written instrument entered into among the Committee, the Trustees and the
Separate Agency.
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787 76 Carver Federal Savings Bank
Article X -
Benefit Claims Procedure
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ARTICLE X -
BENEFIT CLAIMS PROCEDURE
10.1 Definition
For purposes of this Article X, "Claimant" shall mean any Participant,
Beneficiary or any other person entitled to benefits under the Plan or his
duly authorized representative.
10.2 Claims
A Claimant may file a written claim for a Plan benefit with the Plan
Administrator on the appropriate form to be supplied by the Plan
Administrator. The Plan Administrator shall, in its sole and absolute
discretion, review the Claimant's application for benefits and determine
the disposition of such claim.
10.3 Disposition of Claim
The Plan Administrator shall notify the Claimant as to the disposition of
the claim for benefits under this Plan within ninety (90) days after the
appropriate form has been filed unless special circumstances require an
extension of time for processing. If such an extension of time is
required, the Plan Administrator shall furnish written notice of the
extension to the Claimant prior to the termination of the initial ninety
(90) day period. The extension notice shall indicate the special
circumstances requiring the extension of time and the date the Plan
Administrator expects to render a decision. In no event shall such
extension exceed a period of one hundred-eighty (180) days from the
receipt of the claim.
10.4 Denial of Claim
If a claim for benefits under this Plan is denied in whole or in part by
the Plan Administrator, a notice written in a manner calculated to be
understood by the Claimant shall be provided by the Plan Administrator to
the Claimant and such notice shall include the following:
(a) a statement that the claim for the benefits under this Plan has been
denied;
(b) the specific reasons for the denial of the claim for benefits,
citing the specific provisions of the Plan which set forth the
reason or reasons for the denial;
(c) a description of any additional material or information necessary
for the Claimant to perfect the claim for benefits under this Plan
and an explanation of why such material or information is necessary;
and
(d) appropriate information as to the steps to be taken if the Claimant
wishes to appeal such decision.
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Article X -
Benefit Claims Procedure
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10.5 Inaction by Plan Administrator
A claim for benefits shall be deemed to be denied if the Plan
Administrator shall not take any action on such claim within ninety (90)
days after receipt of the application for benefits by the Claimant or, if
later, within the extended processing period established by the Plan
Administrator by written notice to the Claimant, in accordance with
Section 10.3.
10.6 Right to Full and Fair Review
A Claimant who is denied, in whole or in part, a claim for benefits under
the Plan may file an appeal of such denial. Such appeal must be made in
writing by the Claimant or his duly authorized representative and must be
filed with the Committee within sixty (60) days after receipt of the
notification under Section 10.4 or the date his claim is deemed to be
denied under Section 10.5. The Claimant or his representative may review
pertinent documents and submit issues and comments in writing.
10.7 Time of Review
The Committee, independent of the Plan Administrator, shall conduct a full
and fair review of the denial of claim for benefits under this Plan to a
Claimant within sixty (60) days after receipt of the written request for
review described in Section 10.6; provided, however, that an extension,
not to exceed sixty (60) days, may apply in special circumstances. Written
notice shall be furnished to the Claimant prior to the commencement of the
extension period.
10.8 Final Decision
The Claimant shall be notified in writing of the final decision of such
full and fair review by such Committee. Such decision shall be written in
a manner calculated to be understood by the Claimant, shall state the
specific reasons for the decision and shall include specific references to
the pertinent Plan provisions upon which the decision is based. In no
event shall the decision be furnished to the Claimant later than sixty
(60) days after the receipt of a request for review, unless special
circumstances require an extension of time for processing, in which case a
decision shall be rendered within one hundred-twenty (120) days after
receipt of such request for review.
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787 78 Carver Federal Savings Bank
Article XI -
Amendment, Termination, and Withdrawal
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ARTICLE XI -
AMENDMENT, TERMINATION, AND WITHDRAWAL
11.1 Amendment and Termination
The Employer expects to continue the Plan indefinitely, but specifically
reserves the right, in its sole and absolute discretion, at any time, by
appropriate action of the Board, to terminate its Plan or to amend
(subject to the approval of the Trustees), in whole or in part, any or all
of the provisions of the Plan. Subject to the provisions of Section 13.7,
no such amendment or termination shall permit any part of the Plan Funds
to be used for or diverted to purposes other than for exclusive benefit of
Participants, Beneficiaries or other persons entitled to benefits, and no
such amendment or termination shall reduce the interest of any
Participant, Beneficiary or other person who may be entitled to benefits,
without his consent. In the event of a partial termination of the Plan, or
upon complete discontinuance of contributions under the Plan, the Accounts
of each affected Participant shall become fully vested and shall be
distributable in accordance with the provisions of Article VII. In the
event of a complete termination of the Plan, the Accounts of each affected
Participant shall become fully vested and shall be distributable as a lump
sum distribution within seven (7) days of the Valuation Date coincident
with the date of receipt by the Trustees of the proper documentation
indicating the Participant's distribution date.
If any amendment changes the vesting schedule, any Participant who has a
Period of Service of three (3) or more years may, by filing a written
request with the Employer, elect to have his vested percentage computed
under the vesting schedule in effect prior to the amendment.
The period during which the Participant may elect to have his vested
percentage computed under the prior vesting schedule shall commence with
the date the amendment is adopted and shall end on the latest of:
(a) sixty (60) days after the amendment is adopted;
(b) sixty (60) days after the amendment becomes effective; or
(c) sixty (60) days after the Participant is issued written notice of
the amendment from the Employer.
11.2 Withdrawal from the Trust Fund
An Employer may withdraw its Plan from the Trust Fund in accordance with
and subject to the provisions of the Agreement.
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787 79 Carver Federal Savings Bank
Article XII -
Top-Heavy Plan Provisions
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ARTICLE XII -
TOP-HEAVY PLAN PROVISIONS
12.1 Introduction
Any other provisions of the Plan to the contrary notwithstanding, the
provisions contained in this Article XII shall be effective with respect
to any Plan Year in which this Plan is a Top-Heavy Plan, as hereinafter
defined.
12.2 Definitions
For purposes of this Article XII, the following words and phrases shall
have the meanings stated herein unless a different meaning is plainly
required by the context.
(a) "Account," for the purpose of determining the Top-Heavy Ratio, means
the sum of (i) a Participant's Accounts as of the most recent
Valuation Date and (ii) an adjustment for contributions due as of
the Determination Date.
(b) "Determination Date" means, with respect to any Plan Year, the last
day of the preceding Plan Year. With respect to the first Plan Year,
"Determination Date" means the last day of such Plan Year.
(c) "Five-Percent Owner" means, if the Employer is a corporation, any
Employee who owns (or is considered as owning within the meaning of
Section 318 of the Code modified by Section 416(i)(1)(B)(iii) of the
Code) more than five percent (5%) of the value of the outstanding
stock of, or more than five percent (5%) of the total combined
voting power of all the stock of, the Employer. If the Employer is
not a corporation, a Five-Percent Owner means any Employee who owns
more than five percent (5%) of the capital or profits interest in
the Employer.
(d) "Key Employee" means any Employee or former Employee (or, where
applicable, such person's Beneficiary) in the Plan who, at any time
during the Plan Year containing the Determination Date or any of the
preceding four (4) Plan Years, is: (i) an Officer having Top-Heavy
Earnings from the Employer of greater than fifty percent (50%) of
the dollar limitation in effect under Section 415(b)(1)(A) of the
Code; (ii) one of the ten (10) Employees having Top-Heavy Earnings
from the Employer of more than the dollar limitation in effect under
Section 415(c)(1)(A) of the Code and owning (or considered as owning
within the meaning of Section 318 of the Code modified by Section
416(i)(1)(B)(iii) of the Code) both more than a one-half of one
percent (1/2%) interest in value and the largest interests in the
value of the Employer; (iii) a Five-Percent Owner of the Employer;
or (iv) a One-Percent Owner of the Employer having Top-Heavy
Earnings from the Employer greater than one hundred fifty thousand
dollars ($150,000). For purposes of computing the Top-Heavy Earnings
in subsections (d)(i), (d)(ii) and
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Article XII -
Top-Heavy Plan Provisions
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(d)(iv), the aggregation rules of Sections 414(b), (c), (m) and (o)
of the Code shall apply.
(e) "Non-Key Employee" means an Employee or former Employee (or, where
applicable, such person's Beneficiary) who is not a Key Employee.
(f) "Officer" means an Employee who is an administrative executive in
the regular and continued service of his Employer; any Employee who
has the title but not the authority of an officer shall not be
considered an Officer for purposes of this Article XII. Similarly,
an Employee who does not have the title of an officer but has the
authority of an officer shall be considered an Officer. For purposes
of this Article XII, the maximum number of Officers that must be
taken into consideration shall be determined as follows: (i) three
(3), if the number of Employees is less than thirty (30); (ii) ten
percent (10%) of the number of Employees, if the number of Employees
is between thirty (30) and five hundred (500); or (iii) fifty (50),
if the number of Employees is greater than five hundred (500). In
determining such limit, the term "Employer" shall be determined in
accordance with Sections 414(b), (c), (m) and (o) of the Code and
"Employee" shall include Leased Employees and exclude employees
described in Section 414(q)(5) of the Code.
(g) "One-Percent Owner" means, if the Employer is a corporation, any
Employee who owns (or is considered as owning within the meaning of
Section 318 of the Code modified by Section 416(i)(1)(B)(iii) of the
Code) more than one percent (1%) of the value of the outstanding
stock of, or more than one percent (1%) of the total combined voting
power of all the stock of, the Employer. If the Employer is not a
corporation, a One-Percent Owner means any Employee who owns more
than one percent (1%) of the capital or profits interest in the
Employer.
(h) A "Permissive Aggregation Group" consists of one or more plans of
the Employer that are part of a Required Aggregation Group, plus one
or more plans that are not part of a Required Aggregation Group but
that satisfy the requirements of Sections 401(a)(4) and 410 of the
Code when considered together with the Required Aggregation Group.
If two (2) or more defined benefit plans are included in the
aggregation group, the same actuarial assumptions must be used with
respect to all such plans in determining the Present Value of
Accrued Benefits.
(i) "Present Value of Accrued Benefits" shall be determined in
accordance with the actuarial assumptions set forth in the defined
benefit plan and the assumed benefit commencement date shall be
determined taking into account any nonproportional subsidy. The
accrued benefit of any Employee shall be determined under the method
used for accrual purposes for all plans of the Employer, or if no
such method is described, as if such benefit accrued not more
rapidly than the slowest accrual rate permitted under Section
411(b)(1)(C) of the Code.
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787 81 Carver Federal Savings Bank
Article XII -
Top-Heavy Plan Provisions
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(j) "Related Rollover Contributions" means rollover contributions
received by the Plan that are not initiated by the Employee nor made
from another plan maintained by the Employer.
(k) A "Required Aggregation Group" consists of each plan of the Employer
(whether or not terminated) in which a Key Employee participates or
participated at any time during the Plan Year containing the
Determination Date or any of the four (4) preceding Plan Years and
each other plan of the Employer (whether or not terminated) which
enables any plan in which a Key Employee participates or
participated to meet the requirements of Section 401(a)(4) or 410 of
the Code. If two (2) or more defined benefit plans are included in
the aggregation group, the same actuarial assumptions must be used
with respect to all such plans in determining the Present Value of
Accrued Benefits.
(l) A "Super Top-Heavy Plan" means a Plan in which, for any Plan Year:
(i) the Top-Heavy Ratio (as defined under subsection (o)) for the
Plan exceeds ninety percent (90%) and the Plan is not part of
any Required Aggregation Group (as defined under subsection
(k)) or Permissive Aggregation Group (as defined under
subsection (h)); or
(ii) the Plan is a part of a Required Aggregation Group (but is not
part of a Permissive Aggregation Group) and the Top-Heavy
Ratio for the group of plans exceeds ninety percent (90%); or
(iii) the Plan is a part of a Required Aggregation Group and part of
a Permissive Aggregation Group and the Top-Heavy Ratio for the
Permissive Aggregation Group exceeds ninety percent (90%).
(m) "Top-Heavy Earnings" means, for any year, compensation as defined
under Section 414(q)(4) of the Code, up to a maximum of one hundred
sixty thousand dollars ($160,000) for the 1997, 1998 and 1999 Plan
Years and one hundred seventy thousand dollars ($170,000) for the
2000 and 2001 Plan Years, adjusted in multiples of ten thousand
dollars ($10,000) for increases in the cost-of-living, as prescribed
by the Secretary of the Treasury under Section 401(a)(17)(B) of the
Code.
(n) A "Top-Heavy Plan" means a Plan in which, for any Plan Year:
(i) the Top-Heavy Ratio (as defined under subsection (o)) for the
Plan exceeds sixty percent (60%) and the Plan is not part of
any Required Aggregation Group (as defined under subsection
(k)) or Permissive Aggregation Group (as defined under
subsection (h)); or
(ii) the Plan is a part of a Required Aggregation Group but is not
part of a Permissive Aggregation Group and the Top-Heavy Ratio
for the group of plans exceeds sixty percent (60%); or
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787 82 Carver Federal Savings Bank
Article XII -
Top-Heavy Plan Provisions
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(iii) the Plan is a part of a Required Aggregation Group and part of
a Permissive Aggregation Group and the Top-Heavy Ratio for the
Permissive Aggregation Group exceeds sixty percent (60%).
(o) "Top-Heavy Ratio" means:
(i) if the Employer maintains one or more qualified defined
contribution plans and the Employer has not maintained any
qualified defined benefit plans which during the five (5) year
period ending on the Determination Date have or have had
accrued benefits, the Top-Heavy Ratio for the Plan alone or
for the Required Aggregation Group or Permissive Aggregation
Group, as appropriate, is a fraction, the numerator of which
is the sum of the Account balances under the aggregated
defined contribution plan or plans for all Key Employees as of
the Determination Date, including any part of any Account
balance distributed in the five (5) year period ending on the
Determination Date but excluding distributions attributable to
Related Rollover Contributions, if any, and the denominator of
which is the sum of all Account balances under the aggregated
qualified defined contribution plan or plans for all
Participants as of the Determination Date, including any part
of any Account balance distributed in the five (5) year period
ending on the Determination Date but excluding distributions
attributable to Related Rollover Contributions, if any,
determined in accordance with Section 416 of the Code and the
regulations thereunder.
(ii) if the Employer maintains one or more qualified defined
contribution plans and the Employer maintains or has
maintained one or more qualified defined benefit plans which
during the five (5) year period ending on the Determination
Date have or have had any accrued benefits, the Top-Heavy
Ratio for any Required Aggregation Group or Permissive
Aggregation Group, as appropriate, is a fraction, the
numerator of which is the sum of the Account balances under
the aggregated qualified defined contribution plan or plans
for all Key Employees, determined in accordance with (i)
above, and the sum of the Present Value of Accrued Benefits
under the aggregated qualified defined benefit plan or plans
for all Key Employees as of the Determination Date, and the
denominator of which is the sum of the Account balances under
the aggregated qualified defined contribution plan or plans
determined in accordance with (i) above, for all Participants
and the sum of the Present Value of Accrued Benefits under the
aggregated qualified defined benefit plan or plans for all
Participants as of the Determination Date, all determined in
accordance with Section 416 of the Code and the regulations
thereunder. The accrued benefits under a qualified defined
benefit plan in both the numerator and denominator of the
Top-Heavy Ratio are adjusted for any distribution of an
accrued benefit made in the five (5) year period ending on the
Determination Date.
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787 83 Carver Federal Savings Bank
Article XII -
Top-Heavy Plan Provisions
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(iii) For purposes of (i) and (ii) above, the value of Account
balances and the Present Value of Accrued Benefits will be
determined as of the most recent Valuation Date that falls
within the twelve (12) month period ending on the
Determination Date, except as provided in Section 416 of the
Code and the regulations thereunder for the first and second
Plan Years of a qualified defined benefit plan. The Account
balances and Present Value of Accrued Benefits of a
Participant (A) who is a Non-Key Employee but who was a Key
Employee in a prior year, or (B) who has not been credited
with at least an Hour of Service with any employer maintaining
the Plan at any time during the five (5) year period ending on
the Determination Date will be disregarded. The calculation of
the Top-Heavy Ratio, and the extent to which distributions,
rollovers, and transfers are taken into account will be made
in accordance with Section 416 of the Code and the regulations
thereunder. When aggregating plans, the value of Account
balances and the Present Value of Accrued Benefits will be
calculated with reference to the Determination Date that falls
within the same calendar year.
(p) "Valuation Date", for the purpose of computing the Top-Heavy Ratio
(as defined under subsection (o)) under subsections (1) and (n)
means the last date of the Plan Year.
For purposes of subsections (h), (j) and (k), the rules of Sections
414(b), (c), (m) and (o) of the Code shall be applied in determining the
meaning of the term "Employer."
12.3 Minimum Contributions
If the Plan becomes a Top-Heavy Plan, then any provision of Article III to
the contrary notwithstanding, the following provisions shall apply:
(a) Subject to subsection (b), the Employer shall contribute on behalf
of each Participant who is employed by the Employer on the last day
of the Plan Year and who is a Non-Key Employee an amount with
respect to each Top-Heavy year which, when added to the amount of
Special Contributions, Nonelective Employer Contributions,
Discretionary Employer Contributions and Forfeitures made on behalf
of such Participant, shall not be less than the lesser of: (i) three
percent (3%) of such Participant's Section 415 Compensation (as
defined under Section 3.12(a)(vii) of the Plan and modified by
Section 401(a)(17) of the Code), or (ii) if the Employer has no
defined benefit plan which is designated to satisfy Section 416 of
the Code, the largest of the total of each Key Employee's Matching
Contributions, Before-Tax Contributions, Special Contributions,
Nonelective Employer Contributions, Discretionary Employer
Contributions and Forfeitures, as a percentage of the Key Employees'
Top-Heavy Earnings; provided, however, that in no event shall any
contributions be made under this Section 12.3 in an amount which
will cause the percentage of contributions made by the Employer on
behalf of any Participant who is a Non-Key Employee to exceed the
percentage at which contributions are made by the Employer on behalf
of the Key
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787 84 Carver Federal Savings Bank
Article XII -
Top-Heavy Plan Provisions
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Employee for whom the percentage of the total of Matching
Contributions, Before-Tax Contributions, Special Contributions,
Discretionary Employer Contributions, Nonelective Employer
Contributions and Forfeitures, is highest in such Top-Heavy year.
Any such contribution shall be allocated to the Matching
Contribution Account of each such Participant and, for purposes of
vesting and withdrawals only, shall be deemed to be a Matching
Contribution. Any such contribution shall not be deemed to be a
Matching Contribution for any other purpose.
(b) Notwithstanding the foregoing, this Section 12.3 shall not apply to
any Participant to the extent that such Participant is covered under
any other plan or plans of the Employer (determined in accordance
with Sections 414(b), (c), (m) and (o) of the Code) and such other
plan provides that the minimum allocation or benefit requirement
will be met by such other plan should this Plan become Top-Heavy. If
such other plan does not provide for a minimum allocation or benefit
requirement, a minimum of five percent (5%) of a Participant's
Section 415 Compensation, as defined in Section 12.3(a) above, shall
be provided under this Plan.
(c) For purposes of this Article XII, the following shall be considered
as a contribution made by the Employer:
(i) Qualified Nonelective Contributions;
(ii) Matching Contributions made by the Employer on behalf of Key
Employees; and
(iii) Before-Tax Contributions made by the Employer on behalf of Key
Employees;
(iv) Discretionary Employer Contributions made by the Employer on
behalf of Key Employees and Non-Key Employees; and
(v) Nonelective Employer Contributions made by the Employer on
behalf of Key Employees and Non-Key Employees.
(d) Subject to the provisions of subsection (b), all Non-Key Employee
Participants who are employed by the Employer on the last day of the
Plan Year shall receive the defined contribution minimum provided
under subsection (a). A Non-Key Employee may not fail to accrue a
defined contribution minimum merely because such Employee was
excluded from participation or failed to accrue a benefit because
(i) his Compensation is less than a stated amount, or (ii) he failed
to make Before-Tax Contributions.
12.4 Impact on Section 415 Maximum Benefits
For any Plan Year commencing prior to January 1, 2000, in which the Plan
is a Super Top-Heavy Plan, Sections 3.12(a)(iv) and (v) shall be read by
substituting the number l.0 for the number 1.25 wherever it appears
therein.
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787 85 Carver Federal Savings Bank
Article XII -
Top-Heavy Plan Provisions
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For any Plan Year in which the Plan is a Top-Heavy Plan but not a Super
Top-Heavy Plan, the Plan shall be treated as a Super Top-Heavy Plan under
this Section 12.4, unless each Non-Key Employee who is entitled to a
minimum contribution or benefit receives an additional minimum
contribution or benefit. If the Non-Key Employee is entitled to a minimum
contribution under Section 12.3(a), the Plan shall not be treated as a
Super Top-Heavy Plan under this Section 12.4 if the minimum contribution
satisfies Section 12.3(a) when four percent (4%) is substituted for three
percent (3%) in Section 12.3(a)(i). If the Non-Key Employee is entitled to
a minimum contribution under Section 12.3(b), the Plan shall not be
treated as a Super Top-Heavy Plan under this Section 12.4, if the minimum
contribution satisfies Section 12.3(b) when seven and one-half percent
(7-1/2%) is substituted for five percent (5%).
12.5 Vesting
If the Plan becomes a Top-Heavy Plan, then, notwithstanding Section
4.1(c), the Vested Percentage of a Participant who has at least one (1)
Hour of Service with the Employer after the Plan becomes Top-Heavy shall
not be less than the following Vested Percentage of his accrued benefit,
determined in accordance with the following table:
Period of Service Vested Percentage
----------------- -----------------
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%
Notwithstanding the foregoing provision, each Participant with at least a
Period of Service of three (3) years with the Employer shall at all times
have his vested percentage computed under the greater of the provisions of
this Section 12.5 or the provisions of Section 4.1(c).
For those Plan Years in which the Plan ceases to be a Top-Heavy Plan, the
vesting schedule shall be determined in accordance with the provisions of
Section 4.1(c), except that the vested percentage of a Participant's
accrued benefit before the Plan ceased to be a Top-Heavy Plan shall not be
reduced.
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787 86 Carver Federal Savings Bank
Article XIII -
Miscellaneous Provisions
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ARTICLE XIII -
MISCELLANEOUS PROVISIONS
13.1 No Right to Continued Employment
Neither the establishment of the Plan, nor any provisions of the Plan or
of the Agreement establishing the Trust, or of any Separate Agreement nor
any action of any Named Fiduciary, Plan Administrator or the Employer,
shall be held or construed to confer upon any Employee any right to a
continuation of his employment by the Employer. The Employer reserves the
right to dismiss any Employee or otherwise deal with any Employee to the
same extent and in the same manner that it would if the Plan had not been
adopted.
13.2 Merger, Consolidation, or Transfer
The Plan shall not be merged or consolidated with, nor transfer its assets
or liabilities to, any other plan unless each Employee, Participant,
Beneficiary and other person entitled to benefits under the Plan, would
(if such other plan then terminated) receive a benefit immediately after
the merger, consolidation or transfer which is equal to or greater than
the benefit he would have been entitled to receive if the Plan had
terminated immediately before the merger, consolidation or transfer.
13.3 Nonalienation of Benefits
Except, effective August 5, 1997, to the extent of any offset of a
Participant's benefits as a result of any judgment, order, decree or
settlement agreement provided in Section 401(a)(13)(C) of the Code,
benefits payable under the Plan shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
charge, garnishment, execution, or levy of any kind, either voluntary or
involuntary and any attempt to so anticipate, alienate, sell, transfer,
assign, pledge, encumber, charge, garnish, execute, levy or otherwise
affect any right to benefits payable hereunder, shall be void.
Notwithstanding the foregoing, the Plan shall permit the payment of
benefits in accordance with a qualified domestic relations order as
defined under Section 414(p) of the Code.
13.4 Missing Payee
Any other provision in the Plan or Agreement to the contrary
notwithstanding, if the Trustees and, if appropriate, any Separate Agency
are unable to make payment to any Employee, Participant, Beneficiary or
other person to whom a payment is due ("Payee") under the Plan because the
identity or whereabouts of such Payee cannot be ascertained after
reasonable efforts have been made to identify or locate such person
(including mailing a certified notice of the payment due to the last known
address of such Payee as shown on the records of the Employer), such
payment and all subsequent payments otherwise due to such Payee shall be
forfeited twenty-four (24) months after the date such payment first became
due. However, such
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787 87 Carver Federal Savings Bank
Article XIII -
Miscellaneous Provisions
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payment and any subsequent payments shall be reinstated retroactively,
without interest, no later than sixty (60) days after the date on which
the Payee is identified and located.
13.5 Affiliated Employers
All employees of all Affiliated Employers shall, for purposes of the
limitations in Article XII and for measuring Hours of Service and Periods
of Service, be treated as employed by a single employer. No employee of an
Affiliated Employer shall become a Participant of this Plan unless
employed by the Employer or an Affiliated Employer which has adopted the
Plan.
13.6 Successor Employer
In the event of the dissolution, merger, consolidation or reorganization
of the Employer, the successor organization may, upon satisfying the
provisions of the Agreement and the Plan, adopt and continue this Plan.
Upon adoption, the successor organization shall be deemed the Employer
with all its powers, duties and responsibilities and shall assume all Plan
liabilities.
13.7 Return of Employer Contributions
Any other provision of the Plan, Separate Agreement or Agreement to the
contrary notwithstanding, upon the Employer's request and with the consent
of the Trustees and, if appropriate, any Separate Agency, a contribution
to the Plan by the Employer which was (a) made by mistake of fact, or (b)
conditioned upon initial qualification of the Plan with the Internal
Revenue Service, or (c) conditioned upon the deductibility by the Employer
of such contributions under Section 404 of the Code, shall be returned to
the Employer within one (1) year after: (i) the payment of a contribution
made by mistake of fact, or (ii) the denial of such qualification or (iii)
the disallowance of the deduction (to the extent disallowed), as the case
may be.
Any such return shall not exceed the lesser of (A) the amount of such
contributions (or, if applicable, the amount of such contribution with
respect to which a deduction is denied or disallowed) or (B) the amount of
such contributions net of a proportionate share of losses incurred by the
Plan during the period commencing on the Valuation Date as of which such
contributions are made and ending on the Valuation Date as of which such
contributions are returned. All such refunds shall be limited in amount,
circumstances and timing to the provisions of Section 403(c) of ERISA.
13.8 Adoption of Plan by Affiliated Employer
An Affiliated Employer of the Sponsoring Employer may adopt the Plan and
Agreement upon satisfying the requirements set forth in the Agreement.
Upon such adoption, such Affiliated Employer shall become a Participating
Affiliate in the Plan, which Plan shall be deemed a "single plan" within
the meaning of Income Tax Regulations Section 1.414(1)-1(b)(1).
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787 88 Carver Federal Savings Bank
Article XIII -
Miscellaneous Provisions
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For purposes of Article IX, Employer shall mean only the Sponsoring
Employer and each Participating Affiliate shall be deemed to accept and
designate the Named Fiduciaries, Committee, Plan Administrator, Trustee
Administrator and voter of Units designated by the Sponsoring Employer to
act on its behalf in accordance with the provisions of the Plan and
Agreement.
The Sponsoring Employer shall solely exercise for and on behalf of such
Participating Affiliate the powers reserved to the Employer under Articles
IX and XI. However, such Participating Affiliate may at anytime terminate
its future participation in the Plan for the purposes and in the manner
set forth in the Agreement.
13.9 Construction of Language
Wherever appropriate in the Plan, words used in the singular may be read
in the plural; words used in the plural may be read in the singular; and
words importing the masculine gender shall be deemed equally to refer to
the female gender. Any reference to a section number shall refer to a
section of this Plan, unless otherwise indicated.
13.10 Headings
The headings of articles and sections are included solely for convenience
of reference, and if there be any conflict between such headings and the
text of the Plan, the text shall control.
13.11 Governing Law
The Plan shall be governed by and construed and enforced in accordance
with the laws of the State of New York, except to the extent that such
laws are preempted by the Federal laws of the United States of America.
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787 89 Carver Federal Savings Bank