Exhibit 10.9
Exhibit A
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DOCUMENT: TPW/WA01/3126203
DRAFT DATE: 06/11/02
BOARD OF DIRECTORS
APPROVAL DATE: ________________
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EMPLOYEE STOCK OWNERSHIP PLAN
OF
WESTFIELD FINANCIAL, INC.
AMENDMENT
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1. Section 1.3 - The flush language at the end of section 1.3 of the
Plan shall be amended, effective January 1, 2002, to read in its
entirety as follows:
In no event, however, shall an Employee's Allocation
Compensation for any Plan Year include any compensation in
excess of $170,000 (in Plan Years beginning before January 1,
2002) and $200,000 (in Plan Years beginning after December 31,
2001). The $170,000 and $200,000 limitations set forth in the
preceding sentence shall be indexed in accordance with
regulations prescribed under section 401(a)(17) of the Code. If
there are less than twelve (12) months in the Plan Year, the
limitations (as adjusted) shall be prorated by multiplying such
limitation by a fraction, the numerator of which is the number
of months in the Plan Year and the denominator of which is
twelve (12).
2. Section 1.29 - Section 1.29 shall be amended, effective as of January
1, 2002, to add the following sentence to the end thereof:
The Company has not elected to use the top 20% election mentioned in
subparagraph (ii)(B) of this section.
3. Section 1.44 - Section 1.44 shall be amended, effective as of January
1, 2001, by replacing the phrase "January 1, 2001" with "January 1,
2002 " and the phrase "December 31, 2001 " with "December 31, 2002."
4. Section 1.54 - Section 1.54 shall be amended, effective as of January
1, 2002, by adding the following sentence to the end thereof:
In addition, for Limitation Years after 1997, each Employee's Total
Compensation shall include any amounts by which the Employee's
compensation paid by the Employer or any Affiliated Employer has been
reduced pursuant to a compensation reduction agreement under the
terms of any plan- described in section 457 of the Code.
5. Section 8.2 - Subparagraph 8.2(a) shall be amended, effective January
1, 2002, to read in its entirety as follows:
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(a) Notwithstanding any other provisions of the Plan, no amount
shall be allocated to a Participant's Account for any
Limitation Year to the extent that such allocation would result
in an Annual Addition of an amount exceeding:
(i) for Limitation Years beginning before January 1, 2002,
the lesser of (A) $30,000 (or such other amount as is
permissible under section 415(c)(1)(A) of the Code), or
(ii)(B) twenty-five percent (25%) of the Participant's
Total Compensation paid during such Limitation Year; and
(ii) for Limitation Years beginning after December 31, 2001,
the lesser of (A) $40,000 (or such other amount as is
permissible under section 415(c)(1)(A) of the Code), or
(B) one hundred percent (100%) of the Participant's Total
Compensation paid during such Limitation Year.
6. Section 8.2 - Subparagraph 8.2(c)(i)(A) shall be amended, effective
as of January 1, 2001, to read in its entirety as follows:
(A) all contributions by the Employer (in-cluding
contributions made under a salary reduction agreement pursuant to
sections 401(k), 408(k) or 403(b) of the Code) under any qualified
defined contribution plan or simplified employee pension (other than
this Plan) maintained by the Employer, as well as the Participant's
allocable share, if any, of any forfeitures under such plans as well
as all amounts allocated to an individual medical benefit account, as
defined in section 415(l)(2) of the Code, which is part of a pension
or annuity plan maintained by the Employer; plus
7. Section 8.2 - Subparagraph 8.2(c)(i) of the Plan shall be amended,
effective as of January 1, 2002, to include a new sentence at the end
thereof which shall read in its entirety as follows:
In Limitation Years beginning after December 31, 2001, catch-up
elective deferrals under section 414(v) of the Code shall not be
included as Annual Additions.
8. Section 9.3 - Section 9.3 shall be amended, effective as of January
1, 2002, to read in its entirety as follows:
Upon the termination of employment of a Participant or
Former Participant for any reason other than death or
Disability, that portion of the balance credited to his Account
which is not vested at the date of such termination shall be
forfeited upon the earliest of (a) full distribution of the
vested portion of the Account or (b) the fifth anniversary
following the date of re-employment. The proceeds of such
forfeited amounts, reduced by any amounts required to be
credited because of re-employment pursuant to section 9.4,
shall be treated as Forfeitures and shall be disposed of as
provided in section 9.5. If no portion of the balance credited
to an Account of a Participant or Former Participant is vested
as of the date of his termination of employment, a distribution
of $0, representing full distribution of the Account, shall be
deemed to have been made to the Participant or Former
Participant on such date.
9. Section 9.4 - Section 9.4 shall be amended, effective as of January
1, 2002, to read in its entirety as follows:
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If an Employee forfeited any amount of the balance
credited to his Account upon his termination of employment, and
is re-employed by any Affiliated Employer prior to the
occurrence of five consecutive One-Year Breaks in Service,
then:
(i) an amount equal to the Fair Market Value of
the Shares forfeited, determined as of the date of
forfeiture; and
(ii) the amount credited to his General Investment
Account that was forfeited, determined as of the date of
forfeiture;
shall be credited back to his Account; provided, however, that
the Employee repays the amount distributed to him from his
Account as a result of such termination no later than the fifth
anniversary of his re-employment or the end of the fifth Plan
Year to begin after such distribution, whichever is earlier.
Such amounts to be re-credited shall be obtained from the
proceeds of the forfeited amounts redeemed pursuant to section
9.3 during the Plan Year in which the repayment is made, unless
such proceeds are insufficient, in which case the Employee's
Employer shall make an additional contribution in the amount of
such deficiency. For purposes of this section 9.4, a
Participant or Former Participant who received a distribution
of $0, shall be deemed to have made repayment on the date of
re-employment with an Employer.
10. Section 12.2 - Subsection 12.2(b) of the Plan shall be amended,
effective as of January 1, 2002, to read in its entirety as follows:
(b) Dividends paid with respect to Shares allocated to
a person's Share Investment Account shall be credited to such
person's Share Investment Account. Cash dividends credited to a
person's General Investment Account shall be, at the direction
of the Committee, either: (i) held in such General Investment
Account and invested in accordance with sections 10.2 and 11.3;
(ii) distributed immediately to such person; (iii) distributed
to such person within 90 days of the close of the Plan Year in
which such dividends were paid; (iv) used to make payments of
principal or interest on a Share Acquisition Loan; provided,
however, that the Fair Market Value of Financed Shares released
from the Loan Repayment Account as a result of such payment
equals or exceeds the amount of the dividend; or (v) in
calendar years beginning after December 31, 2001 either held as
provided in section 12.2(b)(i) or distributed as provided in
section 12.2(b)(ii), as each person shall elect for his own
Account.
11. Section 13.3 - Section 13.3(a) shall be amended, effective as of
January 1, 2002, by adding a new sentence at the end thereof to read
as follows:
If an Account of a Participant or Former Participant does not
contain any vested amounts as of the date of his termination of
employment with all Affiliated Employers, a distribution of $0,
representing full distribution of the Account, shall be deemed
to have been made to the Participant or Former Participant on
such date.
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12. Section 13.6 - Subsections 13.6(c)(iii) and (iv) of the Plan shall be
amended, effective as of January 1, 2002, to read in their entirety
as follows:
(iii) "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, and (for distributions after December 31, 2001 only) an
annuity contract described in section 403(b) of the Code or an
eligible deferred compensation plan under section 457(b) of the
Code which is maintained by a state, political subdivision of a
state, or an agency or instrumentality of a state or political
subdivision thereof and which agrees to separately account for
amounts transferred into such plan from this Plan, that accepts
the distributee's eligible rollover distribution. However, in
the case of an eligible rollover distribution made before
January 1, 2002 to a current or former spouse who is the
alternate payee under a qualified domestic relations order as
defined in Code section 414(p) or to a surviving spouse, an
eligible retirement plan is only an individual retirement
account or individual retirement annuity.
(iv) "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) of 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; any
distribution made after December 31, 1999 on account of
hardship; and in the case of a distribution made before January
1, 2002, the portion of any distribution that is not includible
in gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer
securities). A portion of a distribution that is includible in
the gross income of the distributee that is treated as an
eligible rollover distribution may only be transferred in a
direct rollover to an eligible retirement plan that agrees to
separately account for such portion of the distribution. This
section 13.6 shall not apply to any eligible rollover
distributions during a year that are reasonably expected (as
determined by the Committee) to total less than $200. In no
event shall any withdrawal during service that is made on
account of hardship be considered an "eligible rollover
distribution". This section 13.6 shall be interpreted to comply
with the provisions of section 401(a)(31) of the Code.
13. Section 17.2 - Section 17.2 of the Plan shall be amended, effective
as of January 1, 2002, to read in its entirety as follows:
Section 17.2 Definition of Top Heavy Plan.
(a) Subject to section 17.2(c), the Plan is a Top Heavy Plan
if, as of a Determination Date: (i) it is not a member of a Required
Aggregation Group, and (ii)(A) the sum of the Cumulative Accrued
Benefits of all Key Employees exceeds 60% of (B) the sum of the
Cumulative Accrued Benefits of all Employees (excluding former Key
Employees), former Employees (excluding former Key Employees and
other former Employees who have not performed any services for the
Company or any Affiliated Employer during the immediately preceding 5
Plan Years if the
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Determination Date is before January 1, 2002 and one Plan Year if the
Determination Date is after December 31, 2001) and their
Beneficiaries.
(b) Subject to section 17.2(c), the Plan is a Top Heavy Plan
if, as of a Determination Date: (i) the Plan is a member of a
Required Aggregation Group, and (ii)(A) the sum of the Cumulative
Accrued Benefits of all Key Employees under all plans that are
members of the Required Aggregation Group exceeds 60% of (B) the sum
of the Cumulative Accrued Benefits of all Employees (excluding former
Key Employees), former Employees (excluding former Key Employees and
other former Employees who have not performed any services for the
Company or any Affiliated Employer during the immediately preceding 5
Plan Years if the Determination is before January 1, 2002 and one
Plan Year if the Determination Date is after December 31, 2001), and
their Beneficiaries under all plans that are members of the Required
Aggregation Group.
(c) Notwithstanding sections 17.2(a) and 17.2(b), the Plan is
not a Top Heavy Plan if, as of a Determination Date: (i) the Plan is
a member of a Permissible Aggregation Group, and (ii)(A) the sum of
the Cumulative Accrued Benefits of all Key Employees under all plans
that are members of the Permissible Aggregation Group does not exceed
60% of (B) the sum of the Cumulative Accrued Benefits of all
Employees (excluding former Key Employees), former Employees
(excluding former Key Employees and other former Employees who have
not performed any services for the Company or any Affiliated Employer
during the immediately preceding 5 Plan Years if the Determination
Date is before January 1, 2002 and one Plan Year if the Determination
Date is after December 31, 2001), and their Beneficiaries under all
plans that are members of the Permissible Aggregation Group.
14. Section 17.4 - Subsection 17.4(a)(iii) of the Plan shall be amended,
effective as of January 1, 2002, to read in its entirety as follows:
(iii) the amount of any distributions of such person's
Cumulative Accrued Benefits under the Plan (including, for Plan Years
beginning after December 31, 2001, distributions under terminated
plans that would have been included in the Required Aggregation Group
if not terminated) during the 5-year period (for all distributions
for Plan Years beginning before January 1, 2002 and for in-service
distributions for Plan Years beginning after December 31, 2001) or 1-
year period (for all distributions other than in-service
distributions for Plan Years beginning after December 31, 2001)
ending on the Determination Date.
15. Section 17.5 - Subsection 17.5(a)(iv) shall be amended, effective as
of January 1, 2002, by adding the words "in plan years beginning
before January 1, 2002" at the beginning thereof.
16. Section 17.6 - Section 17.6 shall be amended, effective as of January
1, 2002, to read in its entirety as follows:
Section 17.6 Required Aggregation Group.
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For purposes of this Article XVII, a Required Aggregation
Group shall consist of (a) this Plan; (b) any other qualified plans
currently maintained (or previously maintained and terminated within
the five year period ending on the Determination Date) by the
Employer and any Affiliated Employers that cover Key Employees; and
(c) any other qualified plans currently maintained (or previously
maintained and terminated within the five
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year period ending on the Determination Date) by the Employer and any
Affiliated Employers that cover Key Employees that are required to be
aggregated for purposes of satisfying the requirements of sections
401(a)(4) or 410(b) of the Code.
IN WITNESS WHEREOF, this Amendment has been executed by the undersigned
officer of Westfield Financial, Inc. pursuant to authority given by resolution
of the Board of Directors.
WESTFIELD FINANCIAL, INC.
By ___________________________
Name:
Title:
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Exhibit A
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AMENDMENT NO. 2
EMPLOYEE STOCK OWNERSHIP PLAN
OF DOCUMENT: WA01/3131269
WESTFIELD FINANCIAL, INC. DRAFT DATE: 12/06/02
Effective as of January 1, 2002 BOARD OF DIRECTORS
Incorporating Amendment No. 1 APPROVAL DATE: ________________
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AMENDMENT
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1. Article I - Section 1.11 of the Plan shall be amended, effective as of
January 1, 2003, to read in its entirety as follows:
Section 1.11 Designated Beneficiary means a natural person
designated by a Participant or Former Participant as a Beneficiary
under section 13.2 and shall not include any Beneficiary designated
by a person other than a Participant or Former Participant or any
Beneficiary other than a natural person. If a natural person is the
beneficiary of a trust which a Participant or Former Participant
has named as his Beneficiary, such natural person shall be treated
as a Designated Beneficiary if: (a) the trust is a valid trust
under applicable state law (or would be a valid trust except for
the fact that it does not have a corpus); (b) the trust is
irrevocable or will, by its terms, become irrevocable upon the
death of the Participant or Former Participant; (c) the
beneficiaries of the trust who are beneficiaries with respect to
the trust's interest as a Beneficiary are identifiable from the
terms of the trust instrument; and (d) the following information
is furnished to the Committee:
(i) by the Participant or Former Participant, if any
distributions are required to be made pursuant to section
13.5 prior to the death of the Participant or Former
Participant and (in the case of distributions after December
31, 2002 only) the Participant's or Former Participant's
spouse is his sole primary Beneficiary, either: (A) a copy
of the trust instrument, together with a written undertaking
by the Participant or Former Participant to furnish a copy
of any subsequent amendment to the Committee within a
reasonable time after such amendment is made; or (B)(I) a
list of all of the beneficiaries of the trust (including
contingent and remainderman beneficiaries with a description
of the conditions on their entitlement); (II) a certification
of the Participant or Former Participant to the effect that,
to the best of his knowledge, such list is correct and
complete and that the conditions of section 1.11(a), (b) and
(c) are satisfied; (III) a written undertaking to provide a
new certification to the extent that an amendment changes
any
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information previously certified; and (IV) a written
undertaking to furnish a copy of the trust instrument to the
Committee on demand; and
(ii) by the trustee of the trust within nine months
after the death of the Participant or Former Participant
(prior to January 1, 2003) or by October 31st of the first
calendar year that begins after the death of the Participant
or Former Participant (subsequent to December 31, 2002), if
any distributions are required to be made pursuant to section
13.5 after the death of the Participant or Former
Participant, either: (A) a copy of the actual trust
instrument for the trust; or (B)(I) a final list of all of
the beneficiaries of the trust (including contingent and
remainderman beneficiaries with a description of the
conditions on their entitlement) as of the date of death
(prior to January 1, 2003) or as of September 30th of the
first calendar year that begins after the date of death
(subsequent to December 31, 2002); (II) a certification of
the trustee to the effect that, to the best of his knowledge,
such list is correct and complete and that the conditions of
section 1.11(a), (b) and (c) are satisfied; and (III) a
written undertaking to furnish a copy of the trust instrument
to the Committee on demand.
2. Article XIII - Section 13.5(b) of the Plan shall be amended, effective as
of January 1, 2003, by replacing the last two sentences thereof with a
new subsection 13.5(c) and renumbering the following sections
accordingly. The new subsection 13.5(c) shall read in its entirety as
follows:
(c) For purposes of section 13.5(b):
(i) for taxable years beginning before January 1,
2003, the life expectancy of a Participant or Former
Participant (or the joint life and last survivor expectancy
of a Participant or Former Participant and his Designated
Beneficiary) for the calendar year in which the Participant
or Former Participant attains age 701/2 shall be determined
on the basis of Tables V and VI, as applicable, of section
1.72-9 of the Income Tax Regulations as of the Participant's
or Former Participant's birthday in such year. Such life
expectancy or joint life and last survivor expectancy for any
subsequent year shall be equal to the excess of (1) the life
expectancy or joint life and last survivor expectancy for the
year in which the Participant or Former Participant attains
age 701/2, over (2) the number of whole years that have
elapsed since the Participant or Former Participant attained
age 701/2; and
(ii) for taxable years beginning after December 31,
2002, during the Participant's or Former Participant's
lifetime, life expectancy shall be equal to:
(1) 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 such calendar
year; or
(2) if the Participant's spouse is the sole
Designated Beneficiary and the spouse is more than ten
years younger than the
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Participant, the number in the Joint and Last Survivor
Table set forth in section 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 such calendar year.
IN WITNESS WHEREOF, this Amendment has been executed by the undersigned
officer of Westfield Financial, Inc. pursuant to authority given by resolution
of the Board of Directors.
WESTFIELD FINANCIAL, INC.
By ___________________________
Name:
Title:
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