Exhibit 10.8
BENEFIT RESTORATION PLAN
OF
WESTBOROUGH FINANCIAL SERVICES, INC.
________________________________
Amended and Restated
Effective as of January 23, 2006
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ARTICLE I
DEFINITIONS
Section 1.1 Affiliated Employer 1
Section 1.2 Applicable Limitation 1
Section 1.3 Bank 1
Section 1.4 Beneficiary 1
Section 1.5 Board 1
Section 1.6 Code 2
Section 1.7 Committee 2
Section 1.8 Company 2
Section 1.9 Eligible Employee 2
Section 1.10 Employee 2
Section 1.11 Employer 2
Section 1.12 Employer Contributions 2
Section 1.13 ERISA 2
Section 1.14 ESOP 2
Section 1.15 Exchange Act 2
Section 1.16 Fair Market Value of a Share 2
Section 1.17 Former Participant 3
Section 1.18 Savings Plan 3
Section 1.19 Participant 3
Section 1.20 Plan 3
Section 1.21 Share 3
Section 1.22 Stock Unit 3
Section 1.23 Termination of Service 3
ARTICLE II
PARTICIPATION
Section 2.1 Eligibility for Participation. 3
Section 2.2 Commencement of Participation. 4
Section 2.3 Termination of Participation. 4
ARTICLE III
BENEFITS TO PARTICIPANTS
Section 3.1 Supplemental Savings Benefit. 4
Section 3.2 Supplemental ESOP Benefits. 5
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ARTICLE IV
DEATH BENEFITS
Section 4.1 Supplemental Savings Plan Death Benefits. 7
Section 4.2 Supplemental ESOP Death Benefits. 7
Section 4.3 Beneficiaries. 7
ARTICLE V
TRUST FUND
Section 5.1 Establishment of Trust. 8
Section 5.2 Contributions to Trust. 8
Section 5.3 Unfunded Character of Plan. 8
ARTICLE VI
ADMINISTRATION
Section 6.1 The Committee. 9
Section 6.2 Liability of Committee Members and their Delegates 9
Section 6.3 Plan Expenses 10
Section 6.4 Facility of Payment. 10
ARTICLE VII
AMENDMENT AND TERMINATION
Section 7.1 Amendment by the Company. 10
Section 7.2 Termination. 11
Section 7.3 Amendment or Termination by Other Employers. 11
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Construction and Language. 11
Section 8.2 Headings. 11
Section 8.3 Non-Alienation of Benefits. 11
Section 8.4 Indemnification. 12
Section 8.5 Severability. 12
Section 8.6 Waiver. 12
Section 8.7 Governing Law. 12
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Section 8.8 Taxes. 12
Section 8.9 No Deposit Account. 13
Section 8.10 No Right to Continued Employment. 13
Section 8.11 Status of Plan Under ERISA. 13
Section 8.12 Restrictions on Payments to Key Employees. 13
Section 8.13 Compliance with Section 409A of the Code. 13
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BENEFIT RESTORATION PLAN
OF
WESTBOROUGH FINANCIAL SERVICES, INC.
ARTICLE I
DEFINITIONS
Wherever appropriate to the purposes of the Plan, capitalized terms
shall have the meanings assigned to them under the Savings Plan or ESOP, as
applicable; provided, however, that the following special definitions shall
apply for purposes of the Plan, unless a different meaning is clearly
indicated by the context:
Section 1.1 Affiliated Employer means any corporation which is a
member of a controlled group of corporations (as defined in section 414(b)
of the Code) that includes the Company; any trade or business (whether or
not incorporated) that is under common control (as defined in section
414(c) of the Code) with the Company; any organization (whether or not
incorporated) that is a member of an affiliated service group (as defined
in section 414(m) of the Code) that includes the Company; any leasing
organization (as defined in section 414(n) of the Code) to the extent that
any of its employees are required pursuant to section 414(n) of the Code to
be treated as employees of the Company; and any other entity that is
required to be aggregated with the Company pursuant to regulations under
section 414(o) of the Code.
Section 1.2 Applicable Limitation means any of the following: (a)
the limitation on annual compensation that may be recognized under a tax-
qualified plan for benefit computation purposes pursuant to section
401(a)(17) of the Code; (b) the maximum limitation on annual additions to a
tax-qualified defined contribution plan pursuant to section 415(c) of the
Code; (c) the maximum limitation on aggregate annual benefits and annual
additions under a combination of tax-qualified defined benefit and defined
contribution plans maintained by a single employer pursuant to section
415(e) of the Code; (d) the maximum limitation on annual elective deferrals
to a qualified cash or deferred arrangement pursuant to section 402(g) of
the Code; (e) the annual limitation on elective deferrals under a qualified
cash or deferred arrangement by highly compensated employees pursuant to
section 401(k) of the Code; and (f) the annual limitation on voluntary
employee contributions by, and employer matching contributions for, highly
compensated employees pursuant to section 401(m) of the Code.
Section 1.3 Bank means The Westborough Bank and its successors or
assigns.
Section 1.4 Beneficiary means any person, other than a Participant
or Former Participant, who is determined to be entitled to benefits under
the terms of the Plan.
Section 1.5 Board means the Board of Directors of Company.
Section 1.6 Code means the Internal Revenue Code of 1986 (including
the corresponding provisions of any prior law or succeeding law).
Section 1.7 Committee means the Compensation Committee of the Board
of Directors of the Company, or such other person, committee or other
entity as shall be designated by or on behalf of the Board to perform the
duties set forth in Article VI.
Section 1.8 Company means Westborough Financial Services, Inc., a
Delaware corporation, and any successor thereto.
Section 1.9 Eligible Employee means an Employee who is eligible for
participation in the Plan in accordance with the provisions of Article II.
Section 1.10 Employee means any person, including an officer, who
is employed by the Employer.
Section 1.11 Employer means the Bank and any successor thereto and
the Company and any successor thereto and any Affiliated Employer which,
with the prior written approval of the Board of Directors of the Bank and
subject to such terms and conditions as may be imposed by the Board, shall
adopt this Plan.
Section 1.12 Employer Contributions means contributions (other than
pursuant to a compensation reduction agreement) by any Employer to the
Savings Plan or the ESOP.
Section 1.13 ERISA means the Employee Retirement Income Security
Act of l974, as amended from time to time (including the corresponding
provisions of any succeeding law).
Section 1.14 ESOP means the Employee Stock Ownership Plan of
Westborough Financial Services, Inc., as amended from time to time
(including the corresponding provisions of any successor qualified employee
stock ownership plan adopted by the Company).
Section 1.15 Exchange Act means the Securities Exchange Act of
1934, as amended from time to time (including the corresponding provisions
of any succeeding law).
Section 1.16 Fair Market Value of a Share means, with respect to a
Share on a specified date:
(a) the final reported sales price on the date in question
(or if there is no reported sale on such date, on the last preceding
date on which any reported sale occurred) as reported in the
principal consolidated reporting system with respect to securities
listed or admitted to trading on the principal United States
securities exchange on which the Shares are listed or admitted to
trading; or
(b) if the Shares are not listed or admitted to trading on
any such exchange, the closing bid quotation with respect to a Share
on such date on the National Association of Securities Dealers
Automated Quotations System, or, if no such quotation is provided, on
another similar system, selected by the Committee, then in use; or
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(c) if sections 1.16(a) and (b) are not applicable, the fair
market value of a Share as the Committee may determine.
Section 1.17 Former Participant means a person whose participation
in the Plan has terminated as provided under section 2.3.
Section 1.18 Savings Plan means the tax-qualified 401(k) plan
maintained by the Company or the Bank from time to time.
Section 1.19 Participant means any person who is participating in
the Plan in accordance with its terms.
Section 1.20 Plan means the Benefit Restoration Plan of Westborough
Financial Services, Inc. as amended from time to time (including the
corresponding provisions of any successor plan adopted by the Company).
Section 1.21 Share means a share of common stock, par value $.01
per share, of Westborough Financial Services, Inc.
Section 1.22 Stock Unit means a right to receive a payment under
the Plan in an amount equal, on the date as of which such payment is
valued, to the Fair Market Value of a Share.
Section 1.23 Termination of Service means an Employee's separation
from service with all Employers as an Employee, whether by resignation,
discharge, death, disability, retirement or otherwise.
ARTICLE II
PARTICIPATION
Section 2.1 Eligibility for Participation.
Only Eligible Employees may become Participants. An Employee shall
become an Eligible Employee if:
(a) he holds the office of Chief Executive Officer of the
Bank or the Company, or he has been designated an Eligible Employee
by resolution of the Board; and
(b) he is a participant in the Savings Plan or the ESOP, or
any combination thereof, and the benefits to which he is entitled
thereunder are limited by one or more of the Applicable Limitations;
provided, however, that no person shall be named an Eligible Employee, nor
shall any person who has been an Eligible Employee continue as an Eligible
Employee, to the extent that such person's participation, or continued
participation, in the Plan would cause the Plan to fail to be considered
maintained for the primary purpose of providing deferred compensation for a
select group of management or highly compensated employees for purposes of
ERISA.
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Section 2.2 Commencement of Participation.
An Employee shall become a Participant on the date when he first
becomes an Eligible Employee, unless the Committee shall, by resolution,
establish an earlier or later effective date of participation for a
Participant.
Section 2.3 Termination of Participation.
Participation in the Plan shall cease on the earlier of (a) the date
of the Participant's Termination of Service or (b) the date on which he
ceases to be an Eligible Employee.
ARTICLE III
BENEFITS TO PARTICIPANTS
Section 3.1 Supplemental Savings Benefit.
(a) A Participant whose benefits under the Savings Plan are limited
by one or more of the Applicable Limitations shall be eligible for a
supplemental savings benefit under this Plan in an amount equal to:
(i) the aggregate amount of Employer Contributions (including
any reallocation of amounts forfeited upon the termination of
employment of others participating in the Savings Plan) that would
have been credited to the Participant's account under the Savings
Plan in the absence of the Applicable Limitations if for all relevant
periods he had made the maximum amount of elective deferrals, within
the meaning of section 402(g)(3) of the Code, or voluntary employee
contributions, within the meaning of section 401(a) of the Code,
required to qualify for the maximum possible allocation of Employer
Contributions (and without regard to the amount of elective deferrals
or voluntary employee contributions actually made); over
(ii) the aggregate amount of Employer Contributions
(including any reallocation of amounts forfeited upon the termination
of employment of others participating in the Savings Plan) actually
credited to the Participant's account under the Savings Plan for such
periods;
adjusted for earnings and losses as provided in section 3.1(b); provided,
however, that if the Participant dies before the payment of such
supplemental savings benefit begins, no benefit shall be payable under this
section 3.1 and the survivor benefit, if any, which may be payable shall be
determined under section 4.1.
(b) The Committee shall cause to be maintained a bookkeeping
account to reflect all Employer Contributions (including any reallocation
of amounts forfeited upon the termination of employment of others
participating in the Savings Plan) that cannot be made to a Participant's
account under the Savings Plan due to the Applicable Limitations and shall
cause such bookkeeping account to be credited with all such Employer
Contributions as of the date on
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which such Employer Contributions would have been credited to the
Participant's account in the Savings Plan in the absence of the Applicable
Limitations. The balance credited to such bookkeeping account shall be
adjusted for earnings or losses as follows:
(i) except as provided in section 3.1(b)(ii), the balance
credited to such bookkeeping account shall be credited with interest
as of the last day of each calendar month at a rate for such month
equal to one-twelfth of the annual interest rate prescribed by the
Commissioner of Internal Revenue for such month pursuant to section
417(e) of the Code; or
(ii) if and to the extent permitted by the Committee, as
though such Employer Contributions had been contributed to a trust
fund and invested, for the benefit of the Participant, in such
investments at such time or times as the Participant shall have
designated in such form and manner as the Committee shall prescribe.
(c) The supplemental savings benefit payable to a Participant
hereunder shall be paid in a single lump sum on, or as soon as practicable
following, the Participant's Termination of Service and shall be equal to
the balance credited to his bookkeeping account as of the last day of the
last calendar month to end prior to the date of payment. Notwithstanding
the foregoing, a Participant may specify that such supplemental savings
benefit be paid in a different form or commencing at a different time by
filing a written election, in such form and manner as the Committee may
prescribe; provided, however, that no such election or change made thereto
shall take effect until twelve (12) months after it is received by the
Committee and the first payment made under such election shall not occur
until at least five (5) years later than such payment would otherwise have
been made.
Section 3.2 Supplemental ESOP Benefits.
(a) A Participant whose benefits under the ESOP are limited by one
or more of the Applicable Limitations shall be eligible for a supplemental
ESOP benefit under this Plan in an amount equal to the sum of:
(i) a number of Stock Units equal to the excess (if any) of
(A) the aggregate number of Shares (including any reallocation of
Shares forfeited upon the termination of employment of others
participating in the ESOP) that would have been credited to the
Participant's account under the ESOP in the absence of the Applicable
Limitations over (B) the number of Shares actually credited to his
account under the ESOP; plus
(ii) if and to the extent that Employer Contributions to the
ESOP result in allocations to the Participant's account of assets
other than Shares, an amount equal to the excess (if any) of (A) the
aggregate amount of Employer Contributions (including any
reallocation of amounts forfeited upon the termination of employment
of others participating in the ESOP) that would have been credited to
the Participant's account under the ESOP in the absence of the
Applicable Limitations over (B) the aggregate amount of Employer
Contributions (including any reallocation of amounts forfeited upon
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the termination of employment of others participating in the ESOP)
actually credited to the Participant's account under the ESOP;
adjusted for earnings and losses as provided section 3.2(b); provided,
however, that if the Participant dies before the payment of such
supplemental ESOP benefit begins, no benefit shall be payable under this
section 3.2 and the survivor benefit, if any, which may be payable shall be
determined under section 4.2.
(b) The Committee shall cause to be maintained a bookkeeping
account to reflect all Shares and Employer Contributions (including any
reallocation of amounts forfeited upon the termination of employment of
others participating in the ESOP) that cannot be allocated to a
Participant's account under the ESOP due to the Applicable Limitations and
shall cause such bookkeeping account to be credited with such Employer
Contributions and Stock Units reflecting such Shares as of the date on
which such Employer Contributions and Shares, respectively, would have been
credited to the Participant's account in the ESOP in the absence of the
Applicable Limitations. The balance credited to such bookkeeping account
shall be adjusted for earnings or losses as follows:
(i) all Stock Units shall be adjusted from time to time so
that the value of a Stock Unit on any date is equal to the Fair
Market Value of a Share on such date, and the number of Stock Units
shall be adjusted as and when appropriate to reflect any stock
dividend, stock split, reverse stock split, exchange, conversion, or
other event generally affecting the number of Shares held by all
holders of Shares; and
(ii) (A) except as provided in section 3.2(b)(ii)(B), the
balance credited to such bookkeeping account that does not consist of
Stock Units shall be credited with interest as of the last day of
each calendar month at a rate for such month equal to one-twelfth of
the annualized yield on 30-year Treasury Securities, Constant
Maturities, prescribed by the Commissioner of Internal Revenue for
such month pursuant to section 417(e) of the Code; or
(B) if and to the extent permitted by the Committee,
the balance credited to such bookkeeping account that does not
consist of Stock Units shall be adjusted as though such Employer
Contributions had been contributed to a trust fund and invested, for
the benefit of the Participant, in such investments at such time or
times as the Participant shall have designated in such form and
manner as the Committee shall prescribe;
provided, however, that to the extent that the Participant shall receive on
a current basis any dividend paid with respect to Shares credited to his
account under the ESOP, the bookkeeping account established for him under
this Plan shall not be adjusted to reflect such dividend and, instead, the
Participant shall be paid an amount per Stock Unit equal to the dividend
per Share received by the Participant under the ESOP, at substantially the
same time as such dividend is paid under the ESOP.
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(c) The supplemental ESOP benefit payable to a Participant
hereunder shall be paid in a single lump sum cash payment on, or as soon as
practicable following, the Participant's Termination of Service and shall
be in an amount equal to the balance credited to his bookkeeping account.
Notwithstanding the foregoing, a Participant may specify that such
supplemental ESOP benefit be paid in a different form or commencing at a
different time by filing a written election, in such form and manner as the
Committee may prescribe; provided, however, that no such election or change
made thereto shall take effect until twelve (12) months after it is
received by the Committee and the first payment made under such election
shall not occur until at least five (5) years later than such payment would
otherwise have been made.
ARTICLE IV
DEATH BENEFITS
Section 4.1 Supplemental Savings Plan Death Benefits.
If a Participant who is eligible for a supplemental savings benefit
under section 3.1 dies before the payment of such benefit begins, a
supplemental savings benefit shall be payable to the Participant's
Beneficiary under this Plan in amount equal to the balance credited to the
bookkeeping account established for the Participant under section 3.1(b).
Such benefit shall be paid in a single lump sum payment as soon as
practicable following the death of the Participant and the bookkeeping
account established for such Participant pursuant to section 3.1(b) shall
continue to be adjusted as provided therein through the last day of the
last calendar month to end prior to the date of payment.
Section 4.2 Supplemental ESOP Death Benefits.
If a Participant who is eligible for a supplemental ESOP benefit
under section 3.2 dies before the payment of such benefit begins, a
supplemental ESOP benefit shall be payable to the Participant's Beneficiary
under this Plan in amount equal to the balance credited to the bookkeeping
account established for the Participant under section 3.2(b). Such benefit
shall be paid in a single lump sum payment as soon as practicable following
the death of the Participant, and the bookkeeping account established for
such Participant pursuant to section 3.2(b) shall continue to be adjusted
as provided therein through the last day of the last calendar month to end
prior to the date of payment.
Section 4.3 Beneficiaries.
A Participant or Former Participant may designate a Beneficiary or
Beneficiaries to receive any death benefits payable under the Plan upon his
death. Any such designation, or change therein or revocation thereof,
shall be made in writing in the form and manner prescribed by the
Committee, shall be revocable until the death of the Participant, and shall
thereafter be irrevocable; provided, however, that any change or
revocation shall be effective only if received by the Committee prior to
the Participant's or Former Participant's death. If a Participant or
Former Participant shall die without having effectively named a
Beneficiary, he shall be deemed to have named his estate as his sole
Beneficiary. If a Participant or Former Participant and his designated
Beneficiary shall die in circumstances which give rise to doubt as to which
of them
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shall have been the first to die, the Participant or Former Participant
shall be deemed to have survived the Beneficiary. If a Participant or
Former Participant designates more than one Beneficiary, all shall be
deemed to have equal shares unless the Participant or Former Participant
shall expressly provide otherwise.
ARTICLE V
TRUST FUND
Section 5.1 Establishment of Trust.
The Company may establish a trust fund which may be used to
accumulate funds to satisfy benefit liabilities to Participants, Former
Participants and their Beneficiaries under the Plan; provided, however,
that the assets of such trust shall be subject to the claims of the
creditors of the Company in the event that it is determined that the
Company is insolvent; and provided, further, that the trust agreement shall
contain such terms, conditions and provisions as shall be necessary to
cause the Company to be considered the owner of the trust fund for federal,
state or local income tax purposes with respect to all amounts contributed
to the trust fund or any income attributable to the investments of the
trust fund. The Company shall pay all costs and expenses incurred in
establishing and maintaining such trust. Any payments made to a
Participant, Former Participant or Beneficiary from a trust established
under this section 5.1 shall offset payments which would otherwise be
payable by the Company in the absence of the establishment of such trust.
Any such trust will conform to the terms of the model trust described in
Revenue Procedure 92-64, as the same may be modified from time to time.
Section 5.2 Contributions to Trust.
If a trust is established in accordance with section 5.1, the Company
shall make contributions to such trust in such amounts and at such times as
may be specified by the Committee or as may be required pursuant to the
terms of the agreement governing the establishment and operation of such
trust.
Section 5.3 Unfunded Character of Plan.
Notwithstanding the establishment of a trust pursuant to section, the
Plan shall be unfunded for purposes of the Code and ERISA. Any liability
of the Bank, the Company or another Employer to any person with respect to
benefits payable under the Plan shall be based solely upon such contractual
obligations, if any, as shall be created by the Plan, and shall give rise
only to a claim against the general assets of the Bank, the Company or such
Employer. No such liability shall be deemed to be secured by any pledge or
any other encumbrance on any specific property of the Bank, the Company or
any other Employer.
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ARTICLE VI
ADMINISTRATION
Section 6.1 The Committee.
Except for the functions reserved to the Bank or the Board, the
administration of the Plan shall be the responsibility of the Committee.
The Committee shall have the power and the duty to take all actions and to
make all decisions necessary or proper to carry out the Plan. The
determination of the Committee as to any question involving the general
administration and interpretation of the Plan shall be final, conclusive
and binding. Any discretionary actions to be taken under the Plan by the
Committee shall be uniform in their nature and applicable to all persons
similarly situated. Without limiting the generality of the foregoing, the
Committee shall have the following powers:
(a) to furnish to all Participants, upon request, copies of
the Plan and to require any person to furnish such information as it
may request for the purpose of the proper administration of the Plan
as a condition to receiving any benefits under the Plan;
(b) to make and enforce such rules and regulations and
prescribe the use of such forms as it shall deem necessary for the
efficient administration of the Plan;
(c) to interpret the Plan, and to resolve ambiguities,
inconsistencies and omissions, and the determinations of the
Committee in respect thereof shall be binding, final and conclusive
upon all interested parties;
(d) to decide on questions concerning the Plan in accordance
with the provisions of the Plan;
(e) to determine the amount of benefits which shall be
payable to any person in accordance with the provisions of the Plan,
to hear and decide claims for benefits, and to provide a full and
fair review to any Participant whose claim for benefits has been
denied in whole or in part;
(f) to designate a person, who may or may not be a member of
the Committee, as "plan administrator" for purposes of the ERISA;
(g) to allocate any such powers and duties to or among
individual members of the Committee; and
(h) the power to designate persons other than Committee
members to carry out any duty or power which would otherwise be a
responsibility of the Committee or Administrator, under the terms of
the Plan.
Section 6.2 Liability of Committee Members and their Delegates
To the extent permitted by law, the Committee and any person to whom
it may delegate any duty or power in connection with administering the
Plan, the Bank, the Company,
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any Employer, and the officers and directors thereof, shall be entitled to
rely conclusively upon, and shall be fully protected in any action taken or
suffered by them in good faith in the reliance upon, any actuary, counsel,
accountant, other specialist, or other person selected by the Committee, or
in reliance upon any tables, valuations, certificates, opinions or reports
which shall be furnished by any of them. Further, to the extent permitted
by law, no member of the Committee, nor the Bank, the Company, any
Employer, nor the officers or directors thereof, shall be liable for any
neglect, omission or wrongdoing of any other members of the Committee,
agent, officer or employee of the Bank, the Company or any Employer. Any
person claiming benefits under the Plan shall look solely to the Employer
for redress.
Section 6.3 Plan Expenses
All expenses that shall arise in connection with the administration
of the Plan (including, but not limited to administrative expenses, proper
charges and disbursements, compensation and other expenses and charges of
any actuary, counsel, accountant, specialist, or other person who shall be
employed by the Committee in connection with the administration of the
Plan), shall be paid by the Company.
Section 6.4 Facility of Payment.
If the Company is unable to make payment to any Participant, Former
Participant Beneficiary, or any other person to whom a payment is due
under the Plan, because it cannot ascertain the identity or whereabouts of
such Participant, Former Participant Beneficiary, or other person after
reasonable efforts have been made to identify or locate such person
(including a notice of the payment so due mailed to the last known address
of such Participant, Former Participant Beneficiary, or other person shown
on the records of the Employer), such payment and all subsequent payments
otherwise due to such Participant, Former Participant, Beneficiary or other
person shall be forfeited 24 months after the date such payment first
became due; provided, however, that such payment and any subsequent
payments shall be reinstated, retroactively, without interest or other
investment return attributable to the intervening period no later than 60
days after the date on which the Participant, Former Participant,
Beneficiary, or other person is identified or located.
ARTICLE VII
AMENDMENT AND TERMINATION
Section 7.1 Amendment by the Company.
The Company reserves the right, in its sole and absolute discretion,
at any time and from to time, by action of the Board, to amend the Plan in
whole or in part. In no event, however, shall any such amendment adversely
affect the right of any Participant, Former Participant or Beneficiary to
receive any benefits under the Plan in respect of participation for any
period ending on or before the later of the date on which such amendment is
adopted or the date on which it is made effective.
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Section 7.2 Termination.
The Company also reserves the right, in its sole and absolute
discretion, by action of the Board, to terminate the Plan. In such event,
undistributed benefits attributable to participation prior to the date of
termination shall be distributed as though each Participant terminated
employment with the Bank, the Company and all other Employers as of the
effective date of termination of the Plan.
Section 7.3 Amendment or Termination by Other Employers.
In the event that a corporation or trade or business other than the
Bank shall adopt this Plan, such corporation or trade or business shall, by
adopting the Plan, empower the Bank to amend or terminate the Plan,
insofar as it shall cover employees of such corporation or trade or
business, upon the terms and conditions set forth in sections 7.1 and 7.2;
provided, however, that any such corporation or trade or business may, by
action of its board of directors or other governing body, amend or
terminate the Plan, insofar as it shall cover employees of such corporation
or trade or business, at different times and in a different manner. In the
event of any such amendment or termination by action of the board of
directors or other governing body of such a corporation or trade or
business, a separate plan shall be deemed to have been established for the
employees of such corporation or trade or business, and any amounts set
aside to provide for the satisfaction of benefit liabilities with respect
to Employees of such corporation or trade or business shall be segregated
from the assets set aside for the purposes of this Plan at the earliest
practicable date and shall be dealt with in accordance with the documents
governing such separate plan.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Construction and Language.
Wherever appropriate in the Plan, words used in the singular may be
read in the plural, words in the plural may be read in the singular, and
words importing the masculine gender shall be deemed equally to refer to
the feminine or the neuter. Any reference to an Article or section shall
be to an Article or section of the Plan, unless otherwise indicated.
Section 8.2 Headings.
The headings of Articles and sections are included solely for
convenience of reference. If there is any conflict between such headings
and the text of the Agreement, the text shall control.
Section 8.3 Non-Alienation of Benefits.
Except as may otherwise be required by law, no distribution or
payment under the Plan to any Participant, Former Participant or
Beneficiary shall be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance or charge, whether
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voluntary or involuntary, and any attempt to so anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge the same shall be void; nor
shall any such distribution or payment be in any way liable for or subject
to the debts, contracts, liabilities, engagements or torts of any person
entitled to such distribution or payment. If any Participant, Former
Participant or Beneficiary is adjudicated bankrupt or purports to
anticipate, alienate, sell, transfer, assign, pledge encumber or charge any
such distribution or payment, voluntarily or involuntarily, the Committee,
in its sole discretion, may cancel such distribution or payment or may hold
or cause to be held or applied such distribution or payment, or any part
thereof, to or for the benefit of such Participant, Former Participant or
Beneficiary, in such manner as the Committee shall direct; provided,
however, that no such action by the Committee shall cause the acceleration
or deferral of any benefit payments from the date on which such payments
are scheduled to be made.
Section 8.4 Indemnification.
The Bank shall indemnify, hold harmless and defend each Participant,
Former Participant and Beneficiary, against their reasonable costs,
including legal fees, incurred by them or arising out of any action, suit
or proceeding in which he may be involved, as a result of his efforts, in
good faith, to defend or enforce the obligation of the Bank, the Company
and any other Employer under the terms of the Plan.
Section 8.5 Severability.
A determination that any provision of the Plan is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
Section 8.6 Waiver.
Failure to insist upon strict compliance with any of the terms,
covenants or conditions of the Plan shall not be deemed a waiver of such
term, covenant or condition. A waiver of any provision of the Plan must be
made in writing, designated as a waiver, and signed by the party against
whom its enforcement is sought. Any waiver or relinquishment of any right
or power hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 8.7 Governing Law.
The Plan shall be construed, administered and enforced according to
the laws of the Commonwealth of Massachusetts without giving effect to the
conflict of laws principles thereof, except to the extent that such laws
are preempted by the federal laws of the United States. Any payments made
pursuant to this Plan are subject to and conditioned upon their compliance
with 12 U.S.C. Section 1828(k) and any regulations promulgated thereunder.
Section 8.8 Taxes.
The Employer shall have the right to retain a sufficient portion of
any payment made under the Plan to cover the amount required to be withheld
pursuant to any applicable federal, state and local tax law.
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Section 8.9 No Deposit Account.
Nothing in this Plan shall be held or construed to establish any
deposit account for any Participant or any deposit liability on the part of
the Bank. Participants' rights hereunder shall be equivalent to those of a
general unsecured creditor of each Employer.
Section 8.10 No Right to Continued Employment.
Neither the establishment of the Plan, nor any provisions of the Plan
nor any action of the Plan Administrator, the Committee or any Employer
shall be held or construed to confer upon any Employee any right to a
continuation of employment by the Employer. The Employer reserves the
right to dismiss any Employee or otherwise deal with any Employee to the
same extent as though the Plan had not been adopted.
Section 8.11 Status of Plan Under ERISA.
The Plan is intended to be (a) to the maximum extent permitted under
applicable laws, an unfunded, non-qualified excess benefit plan as
contemplated by section 3(36) of ERISA for the purpose of providing
benefits in excess of the limitations imposed under section 415 of the
Code, and (b) to the extent not so permitted, an unfunded, non-qualified
plan maintained primarily for the purpose of providing deferred
compensation for highly compensated employees, as contemplated by sections
201(2), 301(a)(3) and 401(a)(1) of ERISA. The Plan is not intended to
comply with the requirements of section 401(a) of the Code or to be subject
to Parts 2, 3 and 4 of Title I of ERISA. The Plan shall be administered
and construed so as to effectuate this intent.
Section 8.12 Restrictions on Payments to Key Employees.
Notwithstanding anything in the Plan to the contrary, to the extent
required under section 409A of the Code, no payment to be made to a key
employee (within the meaning of section 409A of the Code) on or after the
date of his termination of service shall be made sooner than six (6) after
such termination of service; provided, however, that to the extent such six
(6) month delay is imposed by section 409A of the Code, the payments that
would have been made if such delay were not imposed by section 409A of the
Code shall be paid into the rabbi trust contemplated by section 5.1 for the
benefit of the key employee with such amounts then being distributed to the
key employee as soon as permissible under section 409A of the Code.
Section 8.13 Compliance with Section 409A of the Code.
The Plan is intended to be a non-qualified deferred compensation plan
described in section 409A of the Code. The Plan shall be operated,
administered and construed to give effect to such intent. In addition, the
Plan shall be subject to amendment, with or without advance notice to
Participants and other interested parties, and on a prospective or
retroactive basis, including but not limited amendment in a manner that
adversely affects the rights of participants and other interested parties,
to the extent necessary to effect such compliance.
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