EXHIBIT 10.9
RESTORATION BENEFIT PLAN
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effective as of June 1, 1996
ARTICLE I
ESTABLISHMENT OF PLAN
1.1 Purpose of Plan
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This HomeBanc, fsb Restoration Benefit Plan (the "Plan") is adopted by
HomeBanc, fsb (the "Employer" or the "Company") for selected key executive
employees.
The purpose of the Plan is to provide selected key executive employees
whose benefits under the HomeBanc, fsb - Pension Trust (the "Pension Plan")
or the HomeCorp, Inc. Employee Stock Ownership and 401(k) Plan (the "Basic
Plan") are limited by certain Nondiscrimination Restrictions, described
herein, of the Internal Revenue Code of 1986, as amended with supplemental
retirement income and to accumulate deferred compensation which cannot be
accumulated under the Basic Plan because of said Nondiscrimination
restrictions.
1.2 Not a Plan or Trust
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This Plan shall not constitute a trust or plan under the Internal Revenue
Code, ERISA, state law, or any other law. Participants shall have only the
unsecured promise of the Company to pay the amounts accumulated and payable
under the Plan provisions. The Plan shall be unfunded and neither the
Participants nor their beneficiaries will have any claim to the amounts
accumulated in the Plan until the time for payment under the Plan, and then
only as general unsecured creditors of the Company.
1.3 Effective Dates
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The Company establishes the Plan effective June 1, 1996.
ARTICLE II
DEFINITIONS
The following definitions shall govern the construction of this Plan. Unless
some other meaning or intent is apparent from the context, the plural shall
include the singular and the singular shall include the plural, and
masculine, feminine and neuter words shall be used interchangeably.
2.1 Accounts
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Accounts means either collectively or individually a Participant's Deferral
Account, Matching Account or ESOP Account maintained on the books of the
Company for the benefit of a Participant.
2.2 Administrator
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Administrator means the Board or its designee as duly appointed by the
Board.
2.3 Basic Plan
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Basic Plan means the qualified defined contribution ESOP and 401(k)
retirement plan sponsored by the Company, named the HomeCorp, Inc. Employee
Stock Ownership and 401(k) Plan, or its successor plan, as it may be
amended from time to time.
2.4 Basic Plan Deferrals
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Basic Plan Deferrals means the amounts, authorized by the Participant, to
be deferred from Compensation into the Basic Plan.
2.5 Beneficiary
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Beneficiary means any person or persons so designated by a Participant in
accordance with the provisions of this Plans.
2.6 Board
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Board means the Board of Directors of the Company.
2.7 Company or Employer
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Company or Employer means HomeBanc, fsb and its successors and assigns
unless otherwise herein provided, or any other corporation or business
organization which, with the consent of HomeBanc, fsb or its successors or
assigns, assumes the Employer's obligations hereunder, or any other
corporation or business organization which agrees, with the consent of
HomeBanc, fsb, to become a party to the Plan, or becomes a successor as a
result of merger, consolidation, liquidation, transfer of assets or other
reorganization.
2.8 Company Pension Benefit
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Company Pension Benefit shall mean the supplemental pension benefit that is
payable from this Plan to the Participant or Beneficiary as determined
under the provisions of Article IV.
2.9 Compensation
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Compensation means the total of all salary, wages, bonuses, car allowances,
or other form of direct compensation paid to or accrued for a Participant
by the Company for services rendered during each calendar year.
Compensation shall exclude extraordinary pay such as moving expenses,
moving allowances, and other non-service related pay. In every case the
Administrator shall have the authority to rule on special circumstances as
to the inclusion or exclusion of compensation not specifically mentioned
within this definition.
2.10 Deferral Account
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Deferral Account means with respect to each Participant, the account
established by the Company to reflect the Deferral Amounts of the
Participant adjusted by Earnings as determined under this Plan.
2.11 Deferral Agreement
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Deferral Agreement means the agreement signed by the Participant
authorizing the deferral of Compensation and consenting to the terms and
conditions of the Plan, as if a signatory hereto.
2.12 Deferral Amount
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Deferral Amount means the amount which a Participant authorizes to be
deferred from Compensation in accordance with the provisions of the Plan
and pursuant to the Deferral Agreement.
2.13 Earnings
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Earnings means the interest, dividends, capital gains or losses (realized
or unrealized) and other accumulations on amounts credited to the
Participant's Accounts determined hereunder.
2.14 ESOP Account
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ESOP Account means with respect to each Participant, the account
established by the Company to reflect the Company ESOP contribution
credited to the Participant by the Company adjusted by Earnings in
accordance with the provisions of this Plan.
2.15 Matching Account
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Matching Account means with respect to each Participant, the account
established by the Company to reflect the matching amounts credited to the
Participant by the Company adjusted by Earnings as determined under this
Plan.
2.16 Nondiscrimination Restrictions
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Nondiscrimination Restrictions means the nondiscrimination provisions
promulgated by the Internal Revenue Code Section 402(g) (for the maximum
dollar limit on 401(k) deferrals for a calendar year), Section 401(k)
(for the nondiscrimination of 401(k) deferrals into a qualified plan),
Section 401(m) (for the nondiscrimination of Company matching contributions
to a qualified plan), Section 415 (for restricting the maximum amount of
annual additions which a Participant may receive in a single Plan Year or
the maximum amount of pension benefit a Participant may receive), and
Section 401(a)(17) (for restricting the amount of Compensation that can be
recognized under a qualified plan).
2.17 Participant
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Participant means an employee of the Company who has been approved by the
Board for participation in this Plan.
2.18 Payment Election Agreement
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Payment Election Agreement means the the election agreement signed by the
Participant electing a form (or forms) of distribution in accordance with
provisions of this Plan.
2.19 Pension Plan
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Pension Plan means the qualified defined benefit retirement plan sponsored
by the Company, named the HomeBanc, fsb - Pension Trust, or its successor
plan, as it may be amended from time to time.
2.20 Pension Plan Benefit
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Pension Plan Benefit shall mean the monthly benefit which is payable to the
Participant or his Beneficiary from the Pension Plan after the adjustments
for form of payment and any commencement date elections made under the
Pension Plan.
2.21 Plan
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Plan means this HomeBanc, fsb Restoration Benefit Plan, as amended from
time to time.
2.22 Plan Year
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Plan Year means the twelve (12) month period ending on December 31 or
each year during which the Plan is in effect.
ARTICLE III
ADMINISTRATION AND RECORDS
3.1 Administration
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The Administrator shall be responsible for all aspects of administration of
the Plan. The Administrator shall interpret the Plan provisions and apply
all interpretations in a consistent manner for all Participants unless the
Board has approved by resolution to do otherwise. A
Participant may request that the Board review any interpretation provided
by the Administrator if the Administrator is a designee of the Board rather
than the Board.
The Administrator shall maintain the Deferral Agreements and Payment
Election Agreements signed by the Participants, and shall have the
responsibility of operating the Plan in accordance with these agreements.
The Administer shall have the responsibility to operate the Plan,
including, without limiting thegenerality of the foregoing, the power,
duty and responsibility to:
A. Resolve and determine all disputes or questions arising under the Plan,
including the power to determine the rights of Participants and
Beneficiaries, and their respective benefits, and to remedy any
ambiguities, inconsistencies or omissions in the Plan.
B. Adopt such rules of procedure and regulations as in its opinion may be
necessary for the proper and efficient administration of the Plan and
as are consistent with the Plan.
3.2 Records of Accounts
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The Administrator shall maintain the record of Accounts for each
Participant in accordance with the provisions of the Plan. The
Administrator shall provide for payment of benefits when benefits are due
and payable under the provisions of the Plan, and the Administrator shall
provide the required tax notifications to the participant as part of the
administration duties.
ARTICLE IV
CONTRIBUTIONS, DEFERRALS, AND BENEFITS
4.1 Participant Deferral Elections
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For each Plan Year a Participant will be provided the opportunity to defer
a minimum of 2% and a maximum of 25% (increasing in increments of 1%) of
his Compensation into this Deferral Account. The election to defer shall be
made in writing pursuant to the Deferral Agreement provided by the
Administrator. Except for the first Plan Year a Participant is allowed to
participate in the Plan, the election to defer shall be made in the month
of December preceding the Plan Year of applicability. Such Deferral Amounts
shall be effective on the later of January 1 or the first day of the
payroll period specified within the Deferral Agreement. The election to
defer shall be irrevocable for the Plan Year for which it is applicable.
For Plan Years in which the Participant is first approved for
Participation, the election must be made within four weeks (28 days) of the
date the Administrator provides written notification to the Participant of
the opportunity to make Deferral Amounts. Such Deferral Amounts shall be
effective on the first day of the month immediately following the date the
Deferral Agreement is signed or if later, the first day of the payroll
period specified within the Deferral Agreement.
A Participant's Deferral Amount shall be credited to his Deferral Account
as of each pay date he would have received the deferred Compensation except
for the Deferral Agreement in effect for the Plan Year.
4.2 Company Matching Contributions
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A. Eligibility
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The Participant shall have his Match Account credited with a Company
match under the Plan for each pay period in which the following
conditions have been met:
1. The Participant has made Basic Plan Deferrals, or has Deferral
Amounts pursuant to the provisions of this Plan, and
2. The Company matching contribution made by the Company into the
Basic Plan for the pay period on the Participant's behalf is less
than the amount which would have been made had the matching
provisions of the Basic Plan been equally applicable to both the
Basic Plan and this Plan as a single plan, and had the Basic Plan
not been subject to any of the Nondiscrimination Restrictions in
the determination of the matching contribution amounts for the
Basic Plan.
B. Amount
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The amount of the Company matching contributions to be credited to the
Participant's Matching Account for a pay period in which the
requirements of Section 4.2(A) above have been met shall be determined
as the difference of (1 and 2) below:
1. The amount determined by applying the matching contribution
provisions of the Basic Plan (without regard to any
Nondiscrimination Restrictions applicable to the Basic Plan) to the
sum of the Participant's Basic Plan Deferrals and the Deferral
Amounts under this Plan for the pay period, while applying
Compensation as defined in this Plan.
2. The amount of Company matching contribution made to the Basic Plan
on behalf of the Participant for the pay period
and allocated to the Participant's Basic Plan matching
account after adjustment for distributions, if any, of
excess aggregate contributions or forfeiture of matching
contributions as determined under the provisions of the
Basic Plan.
4.3 Deemed Contribution Date
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A. Eligibility
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A Participant shall have his ESOP Account credited with a Company ESOP
contribution for each Plan Year in which the Participant received a
Company ESOP contribution under the Basic Plan, and:
1. The amount of such Company ESOP contribution to the Basic Plan for
the Plan Year was restricted by the Nondiscrimination Restrictions,
or
2. The amount of such Company ESOP contribution to the Basic Plan was
determined by using a definition of compensation which was less
than the Compensation as defined within this Plan.
B. Amount
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The amount of Company ESOP contribution credited to a Participant's
ESOP Account for a Plan Year in which the requirements of Section 4.3
above have been met shall be determined as the difference of (1 and 2)
below:
1. The amount of Company ESOP contribution which would have been made
to the Basic Plan on behalf of the Participant for the Plan Year
had the Basic Plan utilized the definition of Compensation of the
Plan, and further had the contribution been determined for the
participant without regard to the Nondiscrimination Restrictions
applicable to the Basic Plan.
2. The amount of Company ESOP contribution actually made to the Basic
Plan on behalf of the Participant for the Plan Year.
C. Deemed Contribution Date
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The Company ESOP contribution determined hereunder shall be credited to
the Participant's ESOP Account as of the last day of the applicable
Plan Year.
4.4 Company Pension Benefit
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A Participant who retires or terminates from employment with the Employer
shall be entitled to receive a Company Pension Benefit equal to (a) the
Pension Plan Benefit which would have been payable under the provisions of
the Pension Plan, if the Pension Plan were administered without regard to
the Nondiscrimination Restrictions, less (b) the amount of the Pension Plan
Benefit which is payable under the Pension Plan.
The provision of this Section 4.4 shall be equally applicable to all
Pension Plan Benefits whether they are payable to the Participant or the
Beneficiary.
ARTICLE V
ACCOUNTS
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5.1 Account Maintenance
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The Administrator shall establish and maintain as applicable a Deferral
Account, a Matching Account, and an ESOP Account for each Participant. Each
Participant shall be advised from time to time, but at least once at the
end of each calendar year, as to the value of his Accounts.
Each Participant's Accounts shall be maintained on the books of the Company
until the Accounts have been fully distributed to the Participant (or the
Participant's designated Beneficiaries, if applicable). The Company may,
but shall not be required to, segregate funds for the Accounts of this
Plan. Any funds segregated shall be subject to claims of the Company's
creditors as general assets of the Company.
5.2 Investment Return
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Each Participant's Accounts shall be adjusted with Earnings as if the
accounts were fully invested in the Investment Funds, as defined in Section
5.3, from the date credited to the Accounts to the date distributed from
the Accounts. Earnings shall be credited to the Account of this Plan i the
same manner with the same returns as if they had been invested in the funds
of the Basic Plan. It is intended that the returns if the respective funds
of the Basic Plan will be reflected as the returns for the respective
Accounts within this Plan, including the ESOP account.
5.3 Investment Funds
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The Plan shall maintain the same investment fund options and alternatives
that are available within the Basic Plan. The Administrator shall rely upon
the Participant's Basic Plan investment elections for purposes of
determining the Earnings to be credited to a Participant's Deferral Account
and Matching Account.
Deferral Amounts and Company matching contributions to this Plan shall be
deemed to be invested in the same investment funds and in the same
proportions as the Participant's Basic Plan Deferrals and respective
matching contributions being invested within the Basic Plan.
Company ESOP contributions to this Plan shall be deemed to be fully
invested in Company stock.
ARTICLE VI
VESTING
6.1 Deferral and Matching Accounts
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Each participant's Deferral Account and Matching Account shall be 100%
vested at all times.
6.2 ESOP Accounts
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Each Participant's ESOP Account shall be subject to the vesting schedule
that is applicable in the Basic Plan. The provisions of the Basic Plan
related to a Participant's vesting percentage in the Basic Plan shall be
incorporated herein for purposes of this Plan.
ARTICLE VII
DISTRIBUTIONS
7.1 Time of Account Distributions
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Distributions of a Participant's Accounts shall commence within 30 days
following a Participant's date of termination of employment with the
Company, including termination through the death of the Participant.
7.2 Account Distribution Elections
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A. Distribution Method
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Distributions from the vested portion of the Accounts shall be paid
in one of the following methods as selected by the Participant
pursuant to the Payment Election Agreement:
1. Substantially equal quarterly installments over a period of five (5)
years.
2. Substantially equal quarterly installments over a period of ten (10)
years.
3. Fifty percent (50%) in the form of a lump-sum, and the remaining
portion to be paid in accordance with either (1 or 2) above.
4. One hundred percent (100%) in the form of a lump-sum.
In the event no election had been made by the Participant, the
Administrator shall make distributions under this Plan as if the
Participant had elected the one hundred percent (100%) lump-sum option.
The quarterly amount of distribution under this Plan for each
applicable Plan Year shall be determined as the value of the Accounts
on the tenth business day preceding the first payment due date for that
Plan Year divided by the number of quarterly payments remaining in the
payment period. The last quarterly payment in an elected payment period
shall be the residual balance of all vested Accounts of the
Participant.
Notwithstanding the provisions of Section 7.2(B) below, only one method
of distribution shall be applicable to the Accounts of a Participant.
The execution of the Payment Election Agreement shall be made as soon
as practical after becoming an active participant in this Plan.
B. Death Benefit Election
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A Participant may elect a separate distribution method from any one of the
distribution methods described above in Section 7.2(A) to become applicable
in the event of the death of the Participant prior to the total
distribution of the Accounts. The distribution method elected under the
provisions of this Section 7.2(B) shall be applicable to the Accounts at
the time of the death of the Participant. The death benefit election shall
be made as part of the Payment Election Agreement, however, the Participant
may change his death benefit election at any time through written
notification to the Administrator. In the event a death benefit election
had not been made by the Participant, the Administrator shall make the
distributions under this Plan to the Participant's beneficiary
utilizing the same method of distribution the Participant had elected for
payment of his own benefit.
7.3 Withholding
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The Administrator may withhold from any payment income tax or other
amounts as required by law.
7.4 Beneficiaries
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Account distributions to Beneficiaries from this Plan shall be made in
the following order of priority:
A. To the beneficiary designated by the Participant in writing to the
Administrator, or if none
B. To the Participant's surviving spouse, or if none
C. To the Participant's descendants, per stirpes, or if none
D. To the Participant's estate.
7.5 Company Pension Benefits
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Payment of Company Pension Benefits shall be made in the same form and
manner as provided under the Pension Plan and will be paid to the same
beneficiaries as determined by the provisions and elections made for
the Pension Plan.
ARTICLE VIII
AMENDMENTS AND TERMINATION
8.1 Amendments
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Except as noted in this Article, the Company may amend this Plan at any
time after a thirty (30) day notice to the Participants. An amendment may
not be made without the consent of the majority of the Participants if the
amendment would modify Plan provisions which affect, for those Accounts and
Company Pension Benefits earned or in existence on the effective date of
the amendment, the credited Earnings or distribution provisions and
elections.
8.2 Termination
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The Company may terminate this Plan at any time after a thirty (30) day
notice to the Participants. On termination of the Plan the following shall
apply:
A. Deferral Agreements shall terminate as of the effective date of the
Plan termination.
B. Each Participant's Accounts as of the effective date of termination of
the Plan shall become payable pursuant to the payment Election
Agreements as if each Participant had terminated employment on the
effective date of the the Plan termination.
C. For those accounts which are not distributed in a lump-sum, the
Accounts shall continue to be maintained and shall be credited with
interest as of the last day of each month at a rate equal to the thirty
(30) day U.S. Treasury Bill rate which was applicable as of the first
day of that month.
D. Company Pension Benefits shall be determined as of the date of
termination as if the Participant had elected retirement as of the date
of termination, and shall be paid in a single lump-sum determined under
the Actuarial Equivalent provisions of the Pension Plan as of the
effective date of the Plan termination.
ARTICLE IX
CLAIMS PROCEDURE
9.1 Original Claim
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Any Participant or Beneficiary claiming a benefit, requesting an
interpretation or ruling under the Plan, or requesting information under
the Plan shall present the request in writing to the Administrator which
shall respond in writing as soon as practicable, but within sixty (60)
days.
9.2 Denial
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If the claim or request is denied, the written notice of denial shall
state:
A. The reasons for denial, with specific reference to the Plan
provisions on which the denial is based.
B. A description of any additional material or information required
and an explanation of why it is necessary.
C. An explanation of the Plan's claim review procedure.
9.3 Request for Review
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Any person whose claim or request is denied or who has not received a
response within sixty (60) days may request review by notice given in
writing to the Board. The claim or request shall be reviewed by the Board
or a designated committee of the Board which may, but shall not be required
to, have the claimant appear before it. On review, the claimant may have
representation, examine pertinent documents, and submit issues and comments
in writing.
9.4 Final Decision
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The decision of review shall normally be made within ninety (90) days. If
an extension is required for a hearing or other special circumstances the
claimant status shall be so notified and the time limit shall be one
hundred twenty (120) days the decision shall be in writing and shall state
the reasons and the relevant Plan provision. All decisions on review shall
be final and bind all parties concerned.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 No Assignment
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The rights of a Participant under this Plan are personal. A Participant's
rights to benefit payments under this Plan are not subject in any manner to
anticipation alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the Participant or the
Participant's Beneficiary.
10.2 Mergers and Acquisitions
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If the Company merges, consolidates, or otherwise reorganizes, or its
assets or business are acquired by another company, this Plan shall
continue with respect to all Participants.