EXHIBIT (10)(a)(9)
THE HIBERNIA SAVINGS BANK
NON-QUALIFIED EXECUTIVE RETIREMENT PLAN
Effective January 1, 1994
ARTICLE I
PURPOSE AND EFFECTIVE DATE
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1.1 Purpose. The plan set forth herein shall be known as "The Hibernia
Savings Bank Non-Qualified Executive Retirement Plan" (the "Plan"). The Plan is
established by The Hibernia Savings Bank (the "Employer") for a select group of
management or highly compensated employees and shall be maintained for the
purpose of providing retirement benefits for eligible employees ("Executives")
whose retirement benefits in the Employer's tax qualified retirement plans are
restricted by statute.
1.2 No Guarantee of Benefits. Benefits under the Plan shall be paid only
from the general assets of the Employer. The Employer may set aside funds to
meet its obligations under the Plan to such an extent and in such a manner as it
deems advisable. An Executive's rights to benefits under the Plan shall be only
those of a general, unsecured creditor of the Employer. The Employer does not
guarantee that assets will be available to pay benefits under the Plan.
1.3 Effective Date. The Effective Date of the Plan shall be January 1,
1994. The Plan shall apply only to individuals who die, retire or otherwise
terminate employment with the Employer after the Effective Date. Death,
retirement or termination for Plan purposes shall be determined by the Plan
Administrator.
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ARTICLE II
DEFINITIONS
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Unless the context clearly indicates otherwise, the following terms shall
have the following meanings wherever used in the Plan:
2.1 "Account" means a bookkeeping account for an Executive established by
the Employer to be credited with the Employer Credits provided for in Article IV
and deemed investment returns as provided for in Article V.
2.2 "Beneficiary" means the person or persons (including a trust)
designated by the Executive to receive any death benefit payable under the Plan.
In the absence of any designation, the Beneficiary shall be the Executive's
estate.
2.3 "Board" means the Board of Directors of The Hibernia Savings Bank.
2.4 "Change of Control" means
(a) the consummation of any transaction in which the Employer
ceases to be an independent corporation (including, without
limitation, a transaction in which the Employer becomes the
subsidiary of another corporation) or the sale or other
disposition of all or substantially all of the assets of the
Employer;
(b) a change in the composition of the Board as a result of a
tender offer, exchange offer, business combination or merger
in which more than 50% of the Board members were not members
of said Board prior to the date of such change; or
(c) the consummation of any transaction in which a person or group
of persons acquires 25% or more of the common stock of the
Employer without the approval of two-thirds of the Board.
2.5 "Code" means the Internal Revenue Code of 1986, as amended.
2.6 "Compensation" means total annual compensation paid by the Employer to
the Executive, including base salary, salary reduction amounts and annual
incentives, but excluding
(a) any amount paid to the Executive pursuant to any severance
agreement or salary continuation payments following
termination of employment,
(b) payments under any long-term incentive plan, and
(c) non-taxable benefits to any retirement plan, group insurance
plan, or other employee benefit plan sponsored by the
Employer.
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The Plan Administrator shall have discretion to determine whether any specific
item of compensation, other than those described above, shall be treated as
Compensation under the Plan.
2.7 "Disability" shall have the same meaning under the Plan with respect
to an Executive as the meaning given such term in the group long-term disability
plan sponsored by the Employer at the time of the Executive's disability.
2.8 "Effective Date" means January 1, 1994.
2.9 "Employer" means The Hibernia Savings Bank.
2.10 "Employer Credits" mean amounts credited for an Executive under the
terms of this Plan.
2.11 "ESOP" means The Hibernia Savings Bank Employee Stock Ownership Plan,
as amended from time to time.
2.12 "Executive" means an employee of the Employer designated as eligible
for participation in the Plan pursuant to Section 3.1. As of the Effective Date,
the sole Executive is Mark A. Osborne.
2.13 "Normal Retirement Age" means the Executive's 65th birthday.
2.14 "Participation Date" means the date as of which an individual is
designated as eligible to participate in the Plan in accordance with Section
3.1.
2.15 "Plan" means The Hibernia Savings Bank Non-Qualified Executive
Retirement Plan as described herein.
2.16 "Plan Administrator" means the Executive Committee of the Board. The
Plan Administrator shall be responsible for the general operation and
administration of the Plan and for carrying out the provisions thereof.
2.17 "Plan Year" means January 1 to December 31, the Employer's fiscal
year.
2.18 "Profit Sharing Plan" means The Hibernia Savings Bank Profit Sharing
Plan, as amended from time to time.
2.19 "Valuation Date" means the date as of which an Executive's Account is
adjusted for deemed investment returns under Article V. Valuation Dates shall be
in the discretion of the Plan Administrator, but no less frequent than the last
day of every calendar quarter.
2.20 Gender and Number. Wherever used in the Plan, the masculine shall
include the feminine, and the singular shall include the plural, unless the
context clearly indicates otherwise.
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ARTICLE III
ELIGIBILITY TO PARTICIPATE
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3.1 Eligibility to Participate. The Plan Administrator shall, in its
discretion and from time to time, designate the employees eligible for
participation in the Plan.
3.2 Termination of Participation. An Executive's participation in the Plan
shall cease upon his death, Disability, Normal Retirement Age, or other
termination of employment as determined by the Plan Administrator.
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ARTICLE IV
BENEFIT ENTITLEMENTS
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4.1 Amount of Employer Credits. With respect to each Plan Year beginning
on or after the Executive's Participation Date through the Plan Year beginning
before the earlier of his death, Disability, termination of employment, or
Normal Retirement Age, the Employer shall credit to the Executive's Account an
amount determined in accordance with this Section 4.1. Such amount shall be
equal to the difference between what the Employer would have (in the absence of
any statutory limitations in the Code) contributed for such Plan Year to the
ESOP and the Profit Sharing Plan minus the actual contribution made on behalf of
the Executive to the ESOP and the Profit Sharing Plan for said Plan Year. The
result will be the Executive's Employer Credits for the Plan Year.
4.2 Vesting in Employer Credits. Subject to Section 7.1,
(a) An Executive shall have a 100% vested interest in the amount
credited to his Account upon the earliest of death,
Disability, Normal Retirement Age, or a Change of Control,
provided that he is still actively employed by the Employer on
the date of any such event.
(b) If the termination of employment of an Executive occurs for
any reason other than those listed in (a), he shall have a
vested interest in each Plan Year's Employer Credits in his
Account (and earnings thereon) determined pursuant to the
vesting schedule then in effect in the ESOP.
The percentage of the Employer Credits (and earnings thereon) credited to
an Executive's Account which is not vested shall be forfeited to the Employer
upon his termination of employment.
4.3 No Effect on Other Benefits. The Employer Credits described in this
Article IV shall have no effect whatever on any other employee benefits provided
to an Executive by the Bank.
4.4 No Executive Contributions. No contributions by Executives will be
required or permitted under this Plan.
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ARTICLE V
CREDITING OF INVESTMENT RETURNS TO ACCOUNTS
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5.1 Investment Options. The Plan Administrator shall identify one or more
investment options in which the Executive's Account shall be deemed to be
invested. As of the Effective Date, the sole investment option is common stock
of the Employer.
5.2 Adjustment of Accounts. As of each Valuation Date, the Account of each
Executive shall be adjusted to reflect deemed investment returns under the
investment option or options in Section 5.1, determined as if the investments
had actually been made.
5.3 No Obligation to Invest. The Employer shall not be obligated to make
any investments directed pursuant to Section 5.1. The purpose of such deemed
investment options is solely to establish a method of adjusting each Executive's
Account in order to determine the amounts to which he may ultimately be
entitled.
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ARTICLE VI
RETIREMENT AND TERMINATION BENEFITS
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6.1 Amount and Form of Payment. The amount payable with respect to an
Executive under the Plan shall be limited to the amounts credited to his Account
under Section 4.1, as adjusted for deemed investment returns under Article V.
For this purpose, deemed investment returns shall be determined under Article V
as of the Valuation Date coincident with or immediately preceding the date of
payment. Payment shall be made in a single lump sum, provided that an Executive
may elect an alternative form of payment under Section 6.2.
6.2 Alternative Form of Payment. An Executive may, with the consent of the
Plan Administrator, elect to receive the amount credited to his Account (in cash
or securities) in any alternative form of payment allowed by the Plan
Administrator, including annual installments for a period of up to 15 years (or
the Executive's life expectancy, if shorter). The election to receive an
alternative form of payment must be made by the Executive prior to the beginning
of the Plan Year in which his benefit would otherwise become payable in a lump
sum. Installment payments in the event of death may be commuted to a lump sum in
accordance with uniform guidelines pursuant to Section 8.4 below.
6.3 Time of Payment. Payment of benefits to the Executive (or in the event
of death, his Beneficiary) shall normally commence within 60 days following the
event which gave rise to the payment. A later distribution date may only be
allowed with the approval of the Plan Administrator.
6.4 No Loans or Withdrawals. No payments of any kind will be made to any
Executive or his Beneficiary while such Executive is still in the active employ
of the Employer.
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ARTICLE VII
STATUS OF PLAN BENEFITS
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7.1 No Funding of Plan. The Employer is not required by the Plan to
segregate any funds representing any Executive's Account hereunder, and nothing
in this Plan shall be construed as providing for such segregation. However, the
Employer may create a grantor trust (within the meaning of Section 671 of the
Code) in connection with the adoption of this Plan to which it may from time to
time make contributions. Notwithstanding the creation of any such trust, the
benefits hereunder shall be a general obligation of the Employer. Payment of
benefits from each trust shall, to that extent, discharge the Employer's
obligations under this Plan. All payments provided for under this Plan not so
discharged shall be paid from the general assets of the Employer. The Plan at
all times shall be entirely unfunded, and no provision shall at any time be made
with respect to segregating any assets of the Employer for payment of any
benefits hereunder. No Executive, Beneficiary or any other person shall have any
interest in any particular assets of the Employer by reason of the right to
receive a benefit under the Plan and any such Executive, Beneficiary, or other
person shall have only the rights of a general, unsecured creditor of the
Employer with respect to any rights under the Plan.
7.2 No Fiduciary Relationship. Nothing in this Plan shall create or be
construed to create a trust or escrow account of any kind or a fiduciary
relationship between the Employer and any Executive, his Beneficiary or any
other person. Executives and their Beneficiaries and any other persons entitled
to payment hereunder shall rely solely on the unsecured promise of the Employer
to make the payments required hereunder and shall have the right to enforce such
a claim in the same manner as any other general, unsecured creditor of the
Employer. Neither the Employer nor any individual acting as an employee or agent
of the Employer shall be liable to any Executive, former Executive, Beneficiary
or any other person for any claim, loss, liability or expense incurred in
connection with the Plan.
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ARTICLE VIII
MISCELLANEOUS
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8.1 No Guarantee of Employment. Nothing contained in the Plan shall be
construed as a contract of employment between the Employer and any Executive, as
providing any Executive the right to have his employment continued, or as a
limitation on the right of the Employer to deal with any Executive as to his
hiring, discharge, layoff, compensation or any other condition of employment.
8.2 Amendment and Termination. The Employer reserves the right from time
to time to amend and/or terminate the Plan for any reason by vote of the Board.
If the Plan is terminated, the benefits payable to any Executive or Beneficiary
under it as of the termination date shall equal the Executive's vested interest
in his Account. Such benefits shall be payable in the manner described in
Article VI. Notwithstanding the foregoing, no amendment or termination of the
Plan shall reduce the vested benefit payable as of the date such amendment is
adopted with respect to any Executive under the Plan, other than with consent of
the Executive or (if the Executive is deceased) his Beneficiary.
8.3 Nonassignability. No benefit payable under this Plan shall be subject
to alienation, assignment, garnishment, pledge, execution, attachment or levy of
any kind, and any attempt to do so shall not be recognized, except to the extent
required by applicable law.
8.4 Plan Administration. Unless otherwise specifically provided in the
Plan, the Plan Administrator shall be responsible for administering,
interpreting and applying the Plan, and the Plan Administrator's decision on all
such matters shall be final and binding. The administration, interpretation and
application of the Plan by the Plan Administrator shall be made pursuant to
documented policies which shall be subject to the approval of, and may be
changed by, the Board. In the absence of documented policies, all provisions set
forth in the ESOP with respect to the administrative powers and duties of the
Employer, expenses of administration, and procedures for filing claims shall
also be applicable with respect to this plan. The Employer shall be entitled to
rely conclusively upon all tables, valuations, certificates, opinions and
reports furnished by any actuary, accountant, controller, counsel or other
person or entity employed or engaged by the Employer with respect to the Plan.
8.5 Successor Employer. In the event of the dissolution, merger,
consolidation or reorganization of the Employer, provision shall be made for a
successor to the Employer's property or business to participate in the Plan as a
successor Employer. Such successor shall have all the powers, duties and
responsibilities of the Plan.
8.6 Governing Law. This Plan shall be construed and enforced in accordance
with the laws of the Commonwealth of Massachusetts, except as any such laws may
be superseded by federal law.
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IN WITNESS WHEREOF, The Hibernia Savings Bank has caused this document to
be executed by its duly authorized officer and its corporate seal to be hereunto
affixed this ____________________ day of ________________, 1994.
By: _____________________________________
Title ___________________________________
Attest:_________________________________________________________________________
(Corporate Seal)
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