AMENDMENT NO. 1
DOCUMENT: [TPW] 3116380
DRAFT DATE: 8/8/2000
COMMITTEE APPROVAL DATE: 8/15/2000
BOARD APPROVAL DATE: 8/15/2000
EMPLOYEE STOCK OWNERSHIP PLAN OF
PORT FINANCIAL CORP.
Adopted on August 15, 2000
Effective January 1, 2000
AMENDMENT
1. Article I - Section 1.3 of the Plan shall be amended, effective as of
January 1, 2000, to read in its entirety as follows:
Section 1.3 Allocation Compensation during any period means
the compensation taken into account in determining the allocation of
benefits and contributions among Participants and consists of the
aggregate compensation received by an Employee from the Employer or
any Affiliated Employer with respect to such period that constitute
wages within the meaning of section 3401 of the Code plus the amount
by which such Employee's compensation with respect to such period has
been reduced pursuant to a compensation reduction agreement under the
terms of any of the following plans which may be maintained by the
Employer:
(a) a qualified cash or deferred arrangement described
in section 401(k) of the Code;
(b) a salary reduction simplified employee pension plan
described in section 408(k) of the Code;
(c) a tax deferred annuity plan described in section
403(b) of the Code; or
(d) a cafeteria plan described in section 125 of the
Code.
In no event, however, shall an Employee's Allocation Compensation for
any calendar year include any compensation in excess of $170,000, or
any such other amount as may be prescribed 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 $170,000
limitation (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).
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2. Article I - Article I of the Plan shall be amended, effective as of
January 1, 2000, by redesignating current section 1.11 as section
1.12, by redesignating section 1.12 as 1.11, by switching their
positions accordingly, and by modifying all cross-references to such
sections accordingly.
3. Article I - Section 1.16 of the Plan shall be amended, effective as
of January 1, 2000, to read in its entirety as follows:
Section 1.16 Eligibility Computation Period means, with
respect to any person, (a) the 12-consecutive month period beginning
on such person's Employment Commencement Date and (b) each 12-
consecutive month period that begins on an anniversary of such
person's Employment Commencement Date.
4. Article I - Section 1.17 of the Plan shall be amended, effective as
of January 1, 2000, by substituting "January 1, 2000" for "November
1, 1999" therein.
5. Article I - Section 1.21 of the Plan shall be amended, effective as
of January 1, 2000, to read in its entirety as follows:
Section 1.21 Employment Commencement Date means the date on
which a person first performs an Hour of Service, except that if an
Employee separates from service with the Employer, incurs a One-Year
Break in Service and subsequently returns to service with the
Employer, his Employment Commencement Date shall be the date on which
he first performs an Hour of Service following the One-Year Break in
Service.
6. Article I - Article I of the Plan shall be amended, effective as of
January 1, 2000, by deleting section 1.7, by redesignating sections
1.8 through 1.21 as sections 1.7 through 1.20, respectively,
including the redesignation of sections 1.11, 1.12, 1.16, 1.17 and
1.21 addressed above, and by modifying all cross-references to such
sections accordingly.
7. Article I - Section 1.32 of the Plan shall be amended, effective as
of January 1, 2000, by substituting "plus" for "plus, solely for the
purpose of computing the Years of Eligibility Service" therein.
8. Article I - Section 1.32(b) of the Plan shall be amended, effective
as of January 1, 2000, by substituting "Eligibility or Vesting
Computation" for "Eligibility Computation" for each of
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the three occurrences therein.
9. Article I - Section 1.41 of the Plan shall be amended, effective as
of January 1, 2000, by substituting "Eligibility or Vesting
Computation" for "Eligibility Computation" therein.
10. Article I - Article I of the Plan shall be amended, effective as of
January 1, 2000, by deleting section 1.22, by redesignating sections
1.23 through 1.43 as sections 1.21 through 1.41, respectively,
including the redesignation of sections 1.32 and 1.41 addressed
above, and by modifying all cross-references to such sections
accordingly.
11. Article I - Section 1.58 of the Plan shall be amended, effective as
of January 1, 2000, to read in its entirety as follows:
Section 1.58 Total Compensation during any period means an
Employee's aggregate total compensation paid by the Employer and any
Affiliated Employer with respect to such period that constitutes
wages within the meaning of section 3401 of the Code, plus 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 qualified cash or deferred
arrangement described in section 401(k) of the Code, any salary
reduction simplified employee pension plan described in section
408(k) of the Code, any tax deferred annuity plan described in
section 403(b) of the Code, or any cafeteria plan described in
section 125 of the Code. In no event, however, shall an Employee's
Total Compensation for any calendar year include any compensation in
excess of $170,000 (or such other amount as may be permitted under
section 401(a)(17) of the Code).
12. Article I - Section 1.65 of the Plan shall be amended, effective as
of January 1, 2000, to read in its entirety as follows:
Section 1.65 Year of Vesting Service means a Vesting
Computation Period during which the Employee completed at least 1,000
Hours of Service.
13. Article I - Article I of the Plan shall be amended, effective as of
January 1, 2000, by deleting sections 1.44 and 1.45, by redesignating
sections 1.46 through 1.65 as sections 1.42 through 1.61,
respectively, including the redesignation of sections 1.58 and 1.65
addressed above, and by modifying all cross-references to such
sections accordingly.
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14. Article II - Section 2.2 of the Plan shall be amended, effective as
of January 1, 2000, by substituting "Eligibility Computation Period
in which he becomes an Eligible Employee" for "date on which he
becomes an Eligible Employee" therein.
15. Article II - Article II of the Plan shall be amended, effective as of
January 1, 2000, by removing section 2.4 therein.
16. Article III - Section 3.1 of the Plan shall be amended, effective as
of January 1, 2000, to read in its entirety as follows:
Section 3.1 Military Service.
In the case of a termination of employment of any Employee to
enter directly into Military Service, the entire period of his
absence shall be treated, for purposes of vesting and eligibility for
participation (but not, except as required by law, for purposes of
eligibility to share in allocations of contributions in accordance
with Article VII), as if he had worked for the Employer during the
period of his absence. In the event of the re-employment of such
person by the Employer within a period of not more than six months:
(a) after he becomes entitled to release or discharge,
if he has entered into the armed forces; or
(b) after such service terminates, if he has entered
into other service defined as Military Service;
such period, also, shall be deemed to be Military Service.
17. Article III - Section 3.2 of the Plan shall be amended, effective as
of January 1, 2000, to read in its entirety as follows:
Section 3.2 Maternity or Paternity Leave.
(a) Subject to section 3.2(c), in the event of an
Employee's absence from work in the service of the Employer and
all Affiliated Employers for a period:
(i) that commences on or after October 1, 1985;
(ii) for which the person is not paid or entitled
to payment by the Employer or any Affiliated Employer;
and
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(iii) that constitutes Maternity or Paternity
Leave;
then the rules of section 3.2(b) shall apply.
(b) In cases of absence described in section 3.2(a), solely
for purposes of determining whether a One-Year Break in Service has
occurred, the person shall be credited for the period of an absence
described in section 3.2(a) with the number of Hours of Service equal
to the lesser of:
(i) (A) the number of Hours of Service that would have
been credited to the person if he had continued working for the
Bank or an Affiliated Employer during the period of such
absence, or (B) if the number of Hours of Service prescribed
under section 3.2(b)(i)(A) cannot be determined, 8 Hours of
Service for each working day during the period of absence; or
(ii) 501 Hours of Service.
Such credit shall be given during the Computation Period during which
such absence began, if necessary to prevent a One-Year Break in
Service from occurring during such Computation Period, and in all
other cases, such credit shall be given during the immediately
following Computation Period.
(c) Notwithstanding anything in the Plan to the contrary,
this section 3.2 shall not apply unless the person furnishes to the
Plan Administrator such information as the Plan Administrator may
reasonably require in order to establish (i) that the person's
absence is one described in section 3.2(a), and (ii) the number of
working days during such absence.
18. Article III - Article III of the Plan shall be amended, effective as
of January 1, 2000, by adding new section 3.3 to read in its entirety
as follows, by redesignating current section 3.3 as section 3.4, and
by modifying all cross-references to such sections accordingly:
Section 3.3 Adjustments to Years of Eligibility Service.
The Years of Eligibility Service of an Employee who returns to
the employment of the Employer or any Affiliated Employer following a
separation from service shall include his Years of Eligibility
Service prior to such separation from service, and such an Employee
shall be readmitted to participation immediately upon his return to
service if he is then an Eligible Employee.
19. Article III - Section 3.4 of the Plan shall be amended, effective as
of January 1, 2000, to read in its entirety as follows:
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Section 3.4 Leave of Absence.
In the event of temporary absence from work in the service of
the Employer and all Affiliated Employers for any period for which a
Participant shall have been granted a leave of absence by the
Employer, the entire period of his absence shall be treated for
purposes of vesting and eligibility for participation (but not for
purposes of eligibility to share in the allocation of contributions
in accordance with Article VII), as if he had worked for the Employer
during the period of his absence. Absence from work for a period
greater than, or failure to return to work upon the expiration of,
the period of leave of absence granted by the Employer shall
terminate participation in the Plan as of the date on which such
period ended. In granting leaves of absence for purposes of the
Plan, all Employees in like circumstances shall be similarly treated.
20. Article III - Article III of the Plan shall be amended, effective as
of January 1, 2000, by adding new sections 3.5 and 3.6 to read in
their entirety as follows:
Section 3.5 Family and Medical Leave.
In the event of absence for a period recognized a family and
medical leave under the federal Family and Medical Leave Act of 1992,
the period of such absence shall be recognized for purposes of
vesting and eligibility to participate to the full extent required by
law.
Section 3.6 Service with Uniformed Forces.
Periods of service with the uniformed forces of the United
States shall be treated in the manner required pursuant to section
414(u) of the Code.
21. Article IX - Section 9.4 of the Plan shall be amended, effective as
of January 1, 2000, by substituting "five consecutive One-Year Breaks
in Service" for "a Period of Severance of five years" therein.
22. Article IX - Section 9.5 of the Plan shall be amended, effective as
of January 1, 2000, by adding the words "in the next Plan Year" after
the words "under the Plan" therein.
23. Article XII - Section 12.3 of the Plan shall be amended, effective as
of January 1, 2000, by adding a new section 12.3(c)(ii) which shall
read in its entirety as follows:
(ii) If voting rights are to be exercised with respect to
Financed
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Shares as provided in section 12.3(c)(i)(A) and (B) at a time when
there are no Shares allocated to the Share Investment Accounts of
Participants, Former Participants and the Beneficiaries of deceased
Former Participants, then the voting rights appurtenant to Financed
Shares shall be exercised as follows with respect to each matter as
to which holders of Shares may vote:
(A) Each person who is a Participant on the applicable
record date will be granted a number of votes equal to the
quotient, rounded to the nearest integral number, of (I) such
Participant's Allocation Compensation for the Plan Year ending
on or immediately prior to such record date (or for the portion
of such Plan Year during which he was a Participant); divided
by (II) $1,000.00; and
(B) a number of votes equal to the product of (I) the
total number of Financed Shares allocated to the Loan Repayment
Account on the applicable record date; multiplied by (II) a
fraction, the numerator of which is the total number of votes
that are cast in the affirmative with respect to such matter
pursuant to section 12.3(c)(ii)(A) and the denominator of which
is the total number of votes that are cast either in the
affirmative or in the negative with respect to such matter
pursuant to section 12.3(c)(ii)(A), shall be cast in the
affirmative; and
(C) a number of votes equal to the excess of (I) the
total number of Financed Shares allocated to the Loan Repayment
Account on the applicable record date, over (II) the number of
affirmative votes cast with respect to such matter pursuant to
section 12.3(c)(ii)(B), shall be cast in the negative.
To the extent that the Financed Shares consist of more than one class
of Shares, this section 12.3(c)(ii) shall be applied separately with
respect to each class of Shares.
24. Article XII - Section 12.4(c) of the Plan shall be amended, effective
as of January 1, 2000, to read in its entirety as follows:
(a) In the case of any Tender Offer, any Financed Shares held
in the Loan Repayment Account shall be dealt with as follows:
(i) If such Tender Offer occurs at a time when there
are no Shares allocated to the Share Investment Accounts of
Participants, Former Participants and the Beneficiaries of
deceased Former Participants, then the disposition of the
Financed Shares shall be determined as follows:
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(A) each person who is a Participant on the
applicable record date will be granted a number of tender
rights equal to the quotient, rounded to the nearest
integral number, of (I) such Participant's Allocation
Compensation for the Plan Year ending on or immediately
prior to such record date (or for the portion of such
Plan Year during which he was a Participant), divided by
(II) $1,000.00; and
(B) on the last day for delivering Shares or
otherwise responding to such Tender Offer, a number of
Shares equal to the product of (I) the total number of
Financed Shares allocated to the Loan Repayment Account
on the last day of the effective period of such Tender
Offer; multiplied by (II) a fraction, the numerator of
which is the total number of tender rights exercised in
favor of the delivery of Shares in response to the Tender
Offer pursuant to section 12.4(c)(i)(A) and the
denominator of which is the total number of tender rights
that are exercisable in response to the Tender Offer
pursuant to section 12.4(c)(i)(A), shall be delivered in
response to the Tender Offer; and
(C) a number of Shares equal to the excess of (I)
the total number of Financed Shares allocated to the Loan
Repayment Account on the last day of the effective period
of such Tender Offer; over (II) the number of Shares to
be delivered in response to the Tender Offer pursuant to
section 12.4(c)(i)(B), shall be withheld from delivery.
(ii) If such Tender Offer occurs at a time when the
voting rights appurtenant to such Financed Shares are to be
exercised in accordance with section 12.3(c)(i), then:
(A) on the last day for delivering Shares or
otherwise responding to such Tender Offer, a number of
Financed Shares equal to the product of (I) the total
number of Financed Shares allocated to the Loan Repayment
Account on the last day of the effective period of such
Tender Offer; multiplied by (II) a fraction, the
numerator of which is the total number of Shares
delivered from the Share Investment Accounts of
Participants, Former Participants and the Beneficiaries
of deceased Former Participants in response to such
Tender Offer pursuant to section 12.4(a), and the
denominator of which is the total number of Shares
allocated to the Share Investment Accounts of
Participants, Former Participants and Beneficiaries of
deceased Former Participants immediately prior to the
last day for delivering Shares or
8
otherwise responding to such Tender Offer, shall be
delivered; and
(B) a number of Financed Shares equal to the
excess of (I) the total number of Financed Shares
allocated to the Loan Repayment Account on the last day
for delivering Shares or otherwise responding to such
Tender Offer; over (II) the number of Financed Shares to
be delivered pursuant to section 12.4(c)(ii)(A), shall be
withheld from delivery.
To the extent that the Financed Shares consist of more than one
class of Shares, this section 12.4(c) shall be applied
separately with respect to each class of Shares.
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SECOND AMENDMENT TO THE
EMPLOYEE STOCK OWNERSHIP PLAN
OF PORT FINANCIAL CORP.
Pursuant to the powers reserved under Section 16.1 of the Employee
Stock Ownership Plan of Port Financial Corp. (the "Plan"), the Board of
Directors of Port Financial Corp. Inc. hereby amends the Plan as follows,
effective as of January 1, 2001.
FIRST AND ONLY CHANGE
---------------------
The definition of "Allocation Compensation" provided in Section 1.3
of the Plan is amended by adding the following clause to the end of the
first paragraph of such Section 1.3:
";but excluding any income related to any award or exercise of a
stock option or the award, vesting or payment of dividends with
respect to restricted stock."
The Plan as previously adopted is hereby ratified and affirmed in all
other respects.
Exhibit A
EMPLOYEE STOCK OWNERSHIP PLAN
OF
PORT FINANCIAL CORP.
AMENDMENT NO. 3
DOCUMENT: TPW/WA01/3125756
DRAFT DATE: 02/07/02
BOARD OF DIRECTORS
APPROVAL DATE: ________________
AMENDMENT
1. Section 1.3 - Section 1.3 shall be amended, effective as of January
1, 2002, to replace subsection 1.3(d) and add a subsection 1.3(e) as
follows:
(d) a cafeteria plan described in section 125 of the Code; or
(e) a qualified transportation fringe benefits plan described
in section 132(f) of the Code.
2. Section 1.29 - Section 1.29 shall be amended, effective as of January
1, 2000, 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 1.54 - Section 1.54 shall be amended, effective as of January
1, 2002, to read in its entirety as follows:
Section 1.54 Total Compensation during any period means an
Employee's aggregate total compensation paid by the Employer and any
Affiliated Employer with respect to such period that constitutes
wages within the meaning of section 3401 of the Code, plus 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 qualified cash or deferred
arrangement described in section 401(k) of the Code, any salary
reduction simplified employee pension plan described in section
408(k) of the Code, any tax deferred annuity plan described in
section 403(b) of the Code, any cafeteria plan described in section
125 of the Code and any salary reduction contributions under any
qualified transportation fringe benefit plan described in section
132(f) of the Code. In no event, however, shall an Employee's Total
Compensation for any calendar year include any compensation in excess
of the amount permitted under section 401(a)(17) of the Code.
4. Section 2.1 - Subparagraph 2.1(b) shall be amended, effective as of
January 1, 2000, to read in its entirety as follows:
(b) An Employee is not an Eligible Employee if he:
(i) does not receive Allocation Compensation from at
least one Participating Employer;
(ii) is an Employee who has waived any claim to
participation in the Plan;
(iii) is an Employee or in a unit of Employees covered by
a collective bargaining agreement with the Employer where
retirement benefits were the subject of good faith bargaining,
unless such agreement expressly provides that Employees such as
he be covered under the Plan;
(iv) is a "leased employee" as defined in section
18.8(a);
(v) is classified as an "independent contractor" by the
Employer, even if considered a common-law employee under
applicable law;
(vi) is classified as a "temporary employee" by the
Employer; or
(vii) is a nonresident alien who received no earned
income from the Employer which constitutes income from sources
within the United States.
5. Section 8.2 - Subparagraph 8.2(a) shall be amended, effective January
1, 2002, to read in its entirety as follows:
(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.
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6. Section 8.2 - Subparagraph 8.2(c)(i)(A) shall be amended, effective
as of January 1, 2000, to read in its entirety as follows:
(A) all contributions by the Employer (including
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 8.2 - Subparagraph 8.2(c)(vi) shall be amended, effective as
of January 1, 2000, to read in its entirety as follows:
(vi) Maximum Permissible Amount: The maximum Annual Addition
that may be contributed or allocated to a Participant's Account under
the Plan for any Limitation Year shall not exceed the lesser of: (a)
$30,000, as adjusted under Section 415(d) of the Code or (b) 25% of
the Participant's Total Compensation for the Limitation Year. The
compensation limitation referred to in (b) shall not apply to any
contribution for medical benefits (within the meaning of section
401(h) of the Code) which is otherwise treated as an Annual Addition
under Section 415(l)(1) of the Code.
9. 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
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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.
10. Section 13.4 - Effective as of January 1, 2000, the Plan shall be
amended by adding the following to the end of Section 13.4:
If an Employee terminates service, and the value of the Employee's
vested Account balance is not greater than $5,000, the Employee will
receive a distribution of the value of the entire vested portion of
such Account balance and the nonvested portion will be treated as a
Forfeiture. If an Employee would have received a distribution under
the preceding sentence but for the fact that the Employee's vested
Account balance exceeded $5,000 when the Employee terminated Service
and if at a later time such Account balance is reduced such that it
is not greater than $5,000, the Employee will receive a distribution
of such Account balance and the nonvested portion will be treated as
a Forfeiture. For purposes, of this section, if the value of an
Employee's vested Account balance is zero, the Employee shall be
deemed to have received a distribution of such vested Account
balance.
11. 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
4
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.
12. 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 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
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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.
13. 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.
14. 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.
15. 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.
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 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.
16. Section 18.8 - Subsection 18.8(a) of the Plan shall be amended,
effective as of January 1, 2000, by replacing the phrase "of a type
historically performed by employees in the business field of the
Employer" with the phrase "performed under the primary direction or
control of the Employer or."
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IN WITNESS WHEREOF, this Amendment has been executed by the
undersigned duly authorized officer of Port Financial Corp.
PORT FINANCIAL CORP.
By _________________________________
Name:
Title:
7
Exhibit A
EMPLOYEE STOCK OWNERSHIP PLAN
OF
PORT FINANCIAL CORP.
Adopted on October 19, 1999
Effective as of January 1, 2000
AMENDMENT NO. 4
DOCUMENT: WA01/3131244
DRAFT DATE: 12/04/02
BOARD OF DIRECTORS
APPROVAL DATE: ____________
AMENDMENT
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
(2) if the Participant's spouse is the sole
Designated Beneficiary and the spouse is more than ten
years younger than the 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 Port Financial Corp. pursuant to authority given by
resolution of the Board of Directors.
PORT FINANCIAL CORP.
By _________________________________
Name:
Title:
3