EXHIBIT 10.9
Exhibit A
AMENDMENT NO. 1
DOCUMENT: TPW/WA01/3126203
DRAFT DATE: 06/11/02
BOARD OF DIRECTORS
APPROVAL DATE: __________________
Employee Stock Ownership Plan
of
Westfield Financial, Inc.
AMENDMENT
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:
(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 (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 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.
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9. Section 9.4 - Section 9.4 shall be amended, effective as of January 1,
2002, to read in its entirety as follows:
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.
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
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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.
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:
6
Exhibit A
Amendment No. 2
Document: WA01/3131269
Draft Date: 12/06/02
Board of Directors
Approval Date: __________________
Employee Stock Ownership Plan
of
Westfield Financial, Inc.
Effective as of January 1, 2002
Incorporating Amendment No. 1
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
2
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: