Exhibit 10.2
BENEFIT RESTORATION PLAN
OF
WESTBOROUGH FINANCIAL SERVICES, INC.
ADOPTED ____________, 1999
EFFECTIVE AS OF REORGANIZATION DATE
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
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...........................................4
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...............................6
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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................9
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
WESTBOROUGH FINANCIAL SERVICES, INC.
ARTICLE I
DEFINITIONS
Wherever appropriate to the purposes of the Plan, capitalized terms
shall have the meanings assigned to them under the 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 The Westborough Bank 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 majority of the members of the governing
body of the institution resulting
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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 Westborough Financial Services, 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 Employee Stock Ownership Plan of
Westborough Financial Services, Inc., 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 tax-qualified 401(k) Plan
maintained by the Bank or the Company 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 Westborough
Financial Services, Inc., as amended from time to time.
SECTION 1.24 RETIREMENT DATE means the date on which a Participant
attains the age of sixty-five (65).
SECTION 1.25 RETIREMENT PLAN means the tax-qualified defined
Benefits Retirement Plan maintained by the Company or the Bank from time
to time.
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SECTION 1.26 SHARE means a share of common stock, par value $.01 per
share, of Westborough Financial Services, 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.
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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.
(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:
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(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 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
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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.
(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
8
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.
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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 change therein or revocation thereof, shall be
made in writing in the form and manner prescribed by the
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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 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 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
(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.
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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.
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.
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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.
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.
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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.
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.
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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.
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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