Exhibit 10.5
BENEFIT RESTORATION PLAN
OF
WESTFIELD FINANCIAL, INC.
--------------------------------
Amended and Restated
Effective as of October 23, 2007
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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...........................................................2
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
Section 3.3 Restored ESOP Benefits..........................................7
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(continued)
ARTICLE IV
DEATH BENEFITS
Section 4.1 Supplemental Savings Plan Death Benefits........................8
Section 4.2 Supplemental ESOP Death Benefits................................8
Section 4.3 Restored ESOP Death Benefits....................................8
Section 4.4 Beneficiaries...................................................8
ARTICLE V
TRUST FUND
Section 5.1 Establishment of Trust..........................................9
Section 5.2 Contributions to Trust..........................................9
Section 5.3 Unfunded Character of Plan......................................9
ARTICLE VI
ADMINISTRATION
Section 6.1 The Committee..................................................10
Section 6.2 Liability of Committee Members and their Delegates.............10
Section 6.3 Plan Expenses..................................................11
Section 6.4 Facility of Payment............................................11
ARTICLE VII
AMENDMENT AND TERMINATION
Section 7.1 Amendment by the Company.......................................11
Section 7.2 Termination....................................................12
Section 7.3 Amendment or Termination by Other Employers....................12
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Construction and Language......................................12
Section 8.2 Headings.......................................................12
Section 8.3 Non-Alienation of Benefits.....................................12
Section 8.4 Indemnification................................................13
Section 8.5 Severability...................................................13
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(continued)
Section 8.6 Waiver.........................................................13
Section 8.7 Governing Law..................................................13
Section 8.8 Taxes..........................................................13
Section 8.9 No Deposit Account.............................................14
Section 8.10 No Right to Continued Employment...............................14
Section 8.11 Status of Plan Under ERISA.....................................14
Section 8.12 Restrictions on Payments to Key Employees......................14
Section 8.13 Compliance with Section 409A of the Code.......................14
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BENEFIT RESTORATION PLAN
OF
WESTFIELD FINANCIAL, 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 Westfield 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 Westfield Financial, Inc., a Massachusetts
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 Westfield
Financial, 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
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(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
(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 Westfield
Financial, 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 Westfield Financial, 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 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 (1) or more of the Applicable Limitations;
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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.
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 (1) 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.
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(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 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, but not more
than thirty (30) days, 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. To
that end, the Employee, the Company and the Bank agree that the termination
benefits described in this Section 3.1(c) are intended to be exempt from
Section 409A of the Code pursuant to Treasury Regulation Section 1.409A-1(b)(4)
as short-term deferrals. 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 (1) 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
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(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 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 annual interest rate
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,
6
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.
(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,
but not more than thirty (30) days, following, the Participant's Termination of
Service and shall be in an amount equal to the balance credited to his
bookkeeping account. To that end, the Employee, the Company and the Bank agree
that the termination benefits described in this Section 3.2(c) are intended to
be exempt from Section 409A of the Code pursuant to Treasury Regulation Section
1.409A-1(b)(4) as short-term deferrals. 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.
Section 3.3 Restored ESOP Benefits.
(a) A Participant who satisfies section 2.1 shall be entitled to, upon
his Termination of Service upon or after attaining age 55, an unfunded,
unsecured promise from the Company to receive an amount determined by:
(i) projecting the total number of Shares that would have been
allocated to the Participant's account under the terms of the ESOP
(without regard to the Applicable Limitations) had the Participant
continued in the employ of the Bank until the ESOP loan was repaid in
full and the final allocation of Shares acquired when the ESOP loan was
made occurred; and then
(ii) multiplying the number of Shares determined in section
3.3(a)(i) above by the average of the closing prices of such Shares at
the end of each fiscal quarter during the four fiscal quarters
immediately preceding (or such fewer quarters as the Participant has been
a Participant) the Participant's Termination of Service.
(b) The projection of Shares required by section 3.3(a)(i) above shall be
performed by a public accountant or other third party selected by the Committee
based on assumptions which the Committee has approved as reasonable at the time
the calculation of the benefit payable to the Participant is performed.
(c) The restored ESOP benefit payable to a Participant hereunder shall be
paid in a single lump sum cash payment on, or as soon as practicable, but not
more than thirty (30) days, following, the Participant's Termination of Service
and shall be in an amount determined pursuant to section 3.3(a) above. To that
end, the Employee, the Company and the Bank agree that the termination benefits
described in this Section 3.3(c) are intended to be exempt from Section 409A of
the Code pursuant to Treasury Regulation Section 1.409A-1(b)(4) as short-term
deferrals. Notwithstanding the foregoing, a Participant may specify that such
restored ESOP benefit be paid in a different form or commencing at a different
time by filing a written election,
7
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 Restored ESOP Death Benefits.
If a Participant who is eligible for a restored ESOP benefit under
section 3.3 (or would be eligible for such a benefit if he terminated
employment) dies before the payment of such benefit begins, a restored ESOP
benefit shall be payable to the Participant's Beneficiary under this Plan in
amount determined pursuant to section 3.3(b). Such benefit shall be paid in a
single lump sum payment as soon as practicable following the death of the
Participant.
Section 4.4 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
8
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 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 (1) 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,
10
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 sixty (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
(1) 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. ss.
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) months after
such termination of service.
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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