EXHIBIT 10.5
FORM OF
BENEFIT RESTORATION PLAN
OF
RFS BANCORP, INC.
ADOPTED __________, 1998
EFFECTIVE AS OF CONVERSION DATE
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
PAGE
----
SECTION 1.1 ACTUARIAL EQUIVALENT.........................................1
SECTION 1.2 AFFILIATED EMPLOYER...................................... ...1
SECTION 1.3 APPLICABLE LIMITATION ......................................1
SECTION 1.4 BANK.........................................................2
SECTION 1.5 BENEFICIARY..................................................2
SECTION 1.6 BOARD........................................................2
SECTION 1.7 CHANGE IN CONTROL............................................2
SECTION 1.8 CODE.........................................................3
SECTION 1.9 COMMITTEE....................................................3
SECTION 1.10 COMPANY......................................................3
SECTION 1.11 DISABILITY...................................................3
SECTION 1.12 ELIGIBLE EMPLOYEE............................................3
SECTION 1.13 EMPLOYEE.....................................................3
SECTION 1.14 EMPLOYER.....................................................3
SECTION 1.15 EMPLOYER CONTRIBUTIONS.......................................3
SECTION 1.16 ERISA........................................................4
SECTION 1.17 ESOP.........................................................4
SECTION 1.18 EXCHANGE ACT.................................................4
SECTION 1.19 FAIR MARKET VALUE OF A SHARE.................................4
SECTION 1.20 FORMER PARTICIPANT .........................................4
SECTION 1.21 SAVINGS PLAN.................................................4
SECTION 1.22 PARTICIPANT..................................................4
SECTION 1.23 PLAN.........................................................4
SECTION 1.24 RETIREMENT DATE............................................. 4
SECTION 1.25 RETIREMENT PLAN..............................................5
SECTION 1.26 SHARE........................................................5
SECTION 1.27 STOCK UNIT...................................................5
SECTION 1.28 TERMINATION OF SERVICE.......................................5
ARTICLE II
PARTICIPATION
SECTION 2.1 ELIGIBILITY FOR PARTICIPATION................................5
SECTION 2.2 COMMENCEMENT OF PARTICIPATION................................5
SECTION 2.3 TERMINATION OF PARTICIPATION.................................5
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ARTICLE III
BENEFITS TO PARTICIPANTS
SECTION 3.1 SUPPLEMENTAL RETIREMENT BENEFIT..............................6
SECTION 3.2 SUPPLEMENTAL SAVINGS BENEFIT.................................6
SECTION 3.3 SUPPLEMENTAL ESOP BENEFITS...................................8
ARTICLE IV
DEATH BENEFITS
SECTION 4.1 SUPPLEMENTAL RETIREMENT PLAN DEATH BENEFITS.................10
SECTION 4.2 SUPPLEMENTAL SAVINGS PLAN DEATH BENEFITS....................10
SECTION 4.3 SUPPLEMENTAL ESOP DEATH BENEFITS............................10
SECTION 4.4 BENEFICIARIES...............................................10
ARTICLE V
TRUST FUND
SECTION 5.1 ESTABLISHMENT OF TRUST......................................11
SECTION 5.2 CONTRIBUTIONS TO TRUST......................................11
SECTION 5.3 UNFUNDED CHARACTER OF PLAN..................................11
ARTICLE VI
ADMINISTRATION
SECTION 6.1 THE COMMITTEE...............................................12
SECTION 6.2 LIABILITY OF COMMITTEE MEMBERS AND THEIR DELEGATES..........13
SECTION 6.3 PLAN EXPENSES...............................................13
SECTION 6.4 FACILITY OF PAYMENT.........................................13
ARTICLE VII
AMENDMENT AND TERMINATION
SECTION 7.1 AMENDMENT BY THE BANK.......................................14
SECTION 7.2 TERMINATION.................................................14
SECTION 7.3 AMENDMENT OR TERMINATION BY OTHER EMPLOYERS.................14
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 CONSTRUCTION AND LANGUAGE...................................15
SECTION 8.2 HEADINGS....................................................15
SECTION 8.3 NON-ALIENATION OF BENEFITS..................................15
SECTION 8.4 INDEMNIFICATION.............................................15
SECTION 8.5 SEVERABILITY................................................16
SECTION 8.6 WAIVER......................................................16
SECTION 8.7 GOVERNING LAW...............................................16
SECTION 8.8 TAXES.......................................................16
SECTION 8.9 NO DEPOSIT ACCOUNT..........................................16
SECTION 8.10 NO RIGHT TO CONTINUED EMPLOYMENT............................16
SECTION 8.11 STATUS OF PLAN UNDER ERISA..................................17
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BENEFIT RESTORATION PLAN
OF
RFS BANCORP, INC.
ARTICLE I
DEFINITIONS
Wherever appropriate to the purposes of the Plan, capitalized terms shall
have the meanings assigned to them under the Retirement Plan, 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 ACTUARIAL EQUIVALENT means a benefit of equivalent value
determined on the basis of interest rate and mortality assumptions
prescribed under the Retirement Plan. If it shall be necessary to determine
an Actuarial Equivalent in any case for which interest rate and mortality
assumptions shall not have been prescribed under the Retirement Plan, the
Actuarial Equivalent shall be determined using the interest rate and
mortality assumptions prescribed by the Commissioner of Internal Revenue
pursuant to section 417(e) of the Code for the month in which the
determination is being made.
SECTION 1.2 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 1.3 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 benefits
payable by a tax-qualified defined benefit plan pursuant to section 415(b)
of the Code; (c) the maximum limitation on annual additions to a
tax-qualified defined contribution plan pursuant to section 415(c) of the
Code; (d) for Plan Years ending prior to December 31, 1999, the maximum
limitation on aggregate annual benefits and annual additions under a
combination of tax qualified defined benefit and defmed contribution plans
maintained by a single employer pursuant to section 415(e) of the Code; (e)
the maximum limitation on annual elective deferrals to a qualified cash or
deferred arrangement pursuant to section 402(g) of the Code; (f) 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; (g) the
annual limitation on employer matching contributions for highly compensated
employees pursuant to section 401(m) of the Code; and (h) the special
limitations applicable to employee stock ownership plans under section
415(c)(6) of the Code.
SECTION 1.4 BANK means Revere Federal Savings and its successors or
assigns.
SECTION 1.5 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 1.6 BOARD means the Board of Directors of the Bank.
SECTION 1.7 CHANGE IN CONTROL means any of the following events:
(a) the occurrence of any event upon which any "person" (as such term
is used in sections 13(d) and 14(d) of the Exchange Act), other than (i) a
trustee or other fiduciary holding securities under an employee benefit
plan maintained for the benefit of employees of the Company; (ii) a
corporation owned, directly or indirectly, by the shareholders of the
Company in substantially the same proportions as their ownership of stock
of the Company; or (iii) any group constituting a person in which employees
of the Company are substantial members, becomes the "beneficial owner" (as
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities issued by the Company representing 25% or more of
the combined voting power of all of the Company's then outstanding
securities; or
(b) the occurrence of any event upon which the individuals who were
members of the Board as of the date this Plan was adopted, together with
individuals whose election by the Board or nomination for election by the
Company's shareholders was approved by the affirmative vote of at least
two-thirds of the members of the Board then in office who were either
members of the Board on the date this Plan is adopted or whose nomination
or election was previously so approved, cease for any reason to constitute
a majority of the members of the Board, but excluding, for this purpose,
any such individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of
directors of the Company (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act); or
(c) the shareholders of the Company approve either:
(i) a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation following which both
of the following conditions are satisfied:
(A) either (1) the members of the Board of the Company
immediately prior to such merger or consolidation constitute at least
a
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majority of the members of the governing body of the institution
resulting from such merger or consolidation; or (2) the shareholders
of the Company own securities of the institution resulting from such
merger or consolidation representing 80% or more of the combined
voting power of all such securities then outstanding in substantially
the same proportions as their ownership of voting securities of the
Company before such merger or consolidation; and
(B) the entity which results from such merger or
consolidation expressly agrees in writing to assume and perform the
Company's obligations under the Plan; or
(ii) a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all of its assets; and
(d) any event that would be described in section 1.7(a), (b) or (c) if
"the Bank" were substituted for "the Company" therein.
SECTION 1.8 CODE means the Internal Revenue Code of 1986 (including
the corresponding provisions of any prior law or succeeding law).
SECTION 1.9 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 1.10 COMPANY means RFS Bancorp, Inc., a Delaware corporation,
or any successor thereto.
SECTION 1.11 DISABILITY means any physical or mental impairment that
would qualify the Participant for benefits under the applicable long-term
disability plan maintained by his Employer or, if no such plan is then in
effect, the Federal Social Security System.
SECTION 1.12 ELIGIBLE EMPLOYEE means an Employee who is eligible for
participation in the Plan in accordance with the provisions of Article II.
SECTION 1.13 EMPLOYEE means any person, including an officer, who is
employed by the Employer.
SECTION 1.14 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 1.15 EMPLOYER CONTRIBUTIONS means contributions by any
Employer to the Savings Plan or the ESOP.
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SECTION 1.16 ERISA means the Employee Retirement Income Security Act
of 1974, as amended from time to time (including the corresponding
provisions of any succeeding law).
SECTION 1.17 ESOP means the RFS Bancorp, Inc. Employee Stock Ownership
Plan, as amended from time to time.
SECTION 1.18 EXCHANGE ACT means the Securities Exchange Act of 1934,
as amended from time to time (including the corresponding provisions of any
succeeding law).
SECTION 1.19 FAIR MARKET VALUE OF A SHARE means, with respect to a
Share on a specified date:
(a) the final quoted 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 Quotation System,
or, if no such quotation is provided, on the OTC Bulletin Board or on
another similar system, selected by the Committee, then in use; or
(c) if sections 1.18(a) and (b) are not applicable, the fair market
value of a Share as the Committee may determine.
SECTION 1.20 FORMER PARTICIPANT means a person whose participation in
the Plan has terminated as provided under section 2.3.
SECTION 1.21 SAVINGS PLAN means the Revere Federal Savings & Loan
Association Employees' Savings and Profit Sharing Plan and Trust, as
amended from time to time.
SECTION 1.22 PARTICIPANT means any person who is participating in the
Plan in accordance with its terms.
SECTION 1.23 PLAN means the Benefit Restoration Plan of RFS Bancorp,
Inc., as amended from time to time. The Plan may be referred to as the
"Benefit Restoration Plan of RFS Bancorp, Inc."
SECTION 1.24 RETIREMENT DATE means the date on which a Participant
attains the age of sixty-five (65).
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SECTION 1.25 RETIREMENT PLAN means the Financial Institutions
Retirement Fund, as amended from time to time.
SECTION 1.26 SHARE means a share of common stock, par value $.01 per
share, of RFS Bancorp, Inc.
SECTION 1.27 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 made, to
the Fair Market Value of a Share.
SECTION 1.28 TERMINATION OF SERVICE means an Employee's separation
from service with all Employers as an Employee on his Retirement Date or
due to his Disability or death.
ARTICLE II
PARTICIPATION
SECTION 2.1 ELIGIBILITY FOR PARTICIPATION
Only Eligible Employees may be or become Participants. An Employee
shall become an Eligible Employee if:
(a) he holds the office of, President and 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 Retirement Plan, 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.
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.
5
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 RETIREMENT BENEFIT.
(a) A Participant whose benefits under the Retirement Plan are limited
by one or more of the Applicable Limitations shall be eligible for a
supplemental retirement benefit under this Plan in an amount equal to the
excess of:
(i) the annual retirement benefit to which he would be entitled
under the Retirement Plan in the absence of the Applicable
Limitations; over
(ii) the actual annual retirement benefit to which he is entitled
under the Retirement Plan;
in each case computed as of the Participant's Termination Date and on the basis
of the benefit form selected by him under the Retirement Plan or, if no such
election has been made, on the basis of a single life annuity; provided,
however, that if the Participant dies before the payment of such supplemental
retirement 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; and, provided, further, however, that the annual retirement
benefit amount to be computed under each of section 3.1(a)(i) and 3.1(a)(ii)
shall be calculated solely on the basis of the Participant's base salary and
cash bonus compensation.
(b) The supplemental retirement benefit provided for in this section
3.1 shall be paid in the form of a single life annuity commencing on the
first day of the month coincident with or next following the Participant's
Termination of Service. Notwithstanding the foregoing, a Participant may,
within 30 days after first becoming eligible to participate in the Plan for
purposes of receiving a supplemental retirement benefit, elect that such
supplemental retirement benefit be paid commencing at a different time by
filing a written election, in such form and manner as the Committee may
provide, within such 30-day period, and the amount of such benefit shall be
the Actuarial Equivalent of the benefit payable in the absence of such an
election.
SECTION 3.2 SUPPLEMENTAL SAVINGS BENEFIT.
6
(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 under section 402(g)
of the Code required to qualify for the maximum possible allocation of
Employer Contributions (and without regard to the amount of elective
deferrals 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 section 3.2(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 3.2 and the
survivor benefit, if any, which may be payable shall be determined under section
4.2; and, provided, further, however, that the aggregate amount of Employer
Contributions to be determined under each of section 3.2(a)(i) and 3.2(a)(ii)
shall be calculated solely on the basis of the Participant's base salary and
cash bonus compensation.
(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 3.2(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 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
(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
7
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 as soon as practicable
following the last day of the calendar year in which the Participant's
Termination of Service occurs 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, within 30 days after first becoming eligible to
participate in the Plan for purposes of receiving a supplemental savings
benefit, specify that such supplemental savings benefit be paid commencing
at a different time by filing a written election, in such form and manner
as the Committee may prescribe, within such 30-day period.
SECTION 3.3 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 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 3.3(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 3.3 and the
survivor benefit, if any, which may be payable shall be determined under section
4.3; and, provided, further, however, that the amounts to be determined under
each of section 3.3(a)(i) and 3.3(a)(ii) shall be calculated solely on the basis
of the Participant's base salary and cash bonus compensation.
8
(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 3.3(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.
(c) The supplemental ESOP benefit payable to a Participant hereunder
shall be paid in a single lump sum cash payment as soon as practicable
following the last day of the calendar year in which the Participant's
Termination of Service occurs and shall be in an amount equal to the
balance credited to his bookkeeping account. Notwithstanding the foregoing,
a Participant may, within 30 days after first becoming eligible to
participate in the Plan for purposes of receiving a supplemental ESOP
benefit, specify that such supplemental ESOP benefit be paid commencing at
a different time by filing a written election, in such form and manner as
the Committee may prescribe, within such 30 day period.
9
ARTICLE IV
DEATH BENEFITS
SECTION 4.1 SUPPLEMENTAL RETIREMENT PLAN DEATH BENEFITS
If a Participant who is eligible for a supplemental retirement benefit
under section 3.3 dies before the payment of such benefit begins, a supplemental
survivor's retirement benefit shall be payable to the Participant's Beneficiary
under this Plan in amount equal to the excess (if any) of (a) the survivor's
benefit that would have been payable under the Retirement Plan commencing at the
earliest permissible date in the absence of the Applicable Limitations but based
only upon the Participant's base salary and cash bonus if the Participant had
effectively designated such Beneficiary as his beneficiary under the Retirement
Plan, over (b) the survivor's benefit that would have been payable under the
Retirement Plan commencing at the earliest permissible date after giving effect
to the Applicable Limitations if the Participant had effectively designated such
Beneficiary as his beneficiary under the Retirement Plan. Such benefit shall be
paid in a single lump sum which is the Actuarial Equivalent of the benefit
described in the preceding sentence as soon as practicable following the death
of the Participant.
SECTION 4.2 SUPPLEMENTAL SAVINGS PLAN DEATH BENEFITS
If a Participant who is eligible for a supplemental savings benefit
under section 3.2 dies before the payment of such benefit begins, a supplemental
survivor's 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 3.2(b). Such benefit shall
be paid in a single lump 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 SUPPLEMENTAL ESOP DEATH BENEFITS
If a Participant who is eligible for a supplemental ESOP benefit under
section 3.3 dies before the payment of such benefit begins, a supplemental ESOP
benefit shall be payable to the Participant's Beneficiary under this Plan in an
amount equal to the balance credited to the bookkeeping account established for
the Participant under section 3.3(b). Such benefit shall be paid in a single
lump as soon as practicable following the death of the Participant, and the
bookkeeping account established for such Participant pursuant to section 3.3(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 4.4 BENEFICIARIES
A Participant or Former Participant may designate a Beneficiary or
Beneficiaries to receive any survivor benefits payable under the Plan upon his
death. Any such designation, or
10
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 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 5.1,
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
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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.
ARTICLE VI
ADMINISTRATION
SECTION 6.1 THE COMMITTEE
Except for the functions reserved to the Company 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
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(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, 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 incurred prior to the termination of the Plan 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, no later
than 60 days after the date on which the Participant, Former Participant,
Beneficiary, or other person is identified or located.
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ARTICLE VII
AMENDMENT AND TERMINATION
SECTION 7.1 AMENDMENT BY THE BANK
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.
SECTION 7.2 TERMINATION
The Company also reserve 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
Company 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.
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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 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 Company 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 they may be involved, as a result of their 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.
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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 Section 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.
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.
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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.
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