SOUND FEDERAL SAVINGS AND LOAN ASSOCIATION
EMPLOYEE STOCK OWNERSHIP PLAN
(adopted effective January 1, 1998)
SOUND FEDERAL SAVINGS AND LOAN ASSOCIATION
EMPLOYEE STOCK OWNERSHIP PLAN
This Employee Stock Ownership Plan, executed on the 25th day of August,
1998, by Sound Federal Savings and Loan Association, a federal stock savings
association (the "Association"),
W I T N E S S E T H T H A T
WHEREAS, the board of directors of the Association has resolved to adopt
an employee stock ownership plan for eligible employees in accordance with the
terms and conditions presented to the directors;
NOW, THEREFORE, the Association hereby adopts the following Plan setting
forth the terms and conditions pertaining to contributions by the Employer and
the payment of benefits to Participants and Beneficiaries.
IN WITNESS WHEREOF, the Association has adopted this Plan and caused this
instrument to be executed by its duly authorized officers as of the above date.
ATTEST:
/s/ William H. Morel By: /s/ Richard P. McStravick
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Secretary President
C 0 N T E N T S
PAGE NO.
SECTION 1. PLAN IDENTITY.................................................. -1-
1.1 NAME........................................................ -1-
1.2 PURPOSE..................................................... -1-
1.3 EFFECTIVE DATE.............................................. -1-
1.4 FISCAL PERIOD............................................... -1-
1.5 SINGLE PLAN FOR ALL EMPLOYERS............................... -1-
1.6 INTERPRETATION OF PROVISIONS................................ -1-
SECTION 2. DEFINITIONS.................................................... -1-
SECTION 3. ELIGIBILITY FOR PARTICIPATION............................... -7-
3.1 INITIAL ELIGIBILITY......................................... -7-
3.2 DEFINITION OF ELIGIBILITY YEAR.............................. -7-
3.3 TERMINATED EMPLOYEES........................................ -7-
3.4 CERTAIN EMPLOYEES INELIGIBLE................................ -7-
3.5 PARTICIPATION AND REPARTICIPATION........................... -7-
3.6 OMISSION OF ELIGIBLE EMPLOYEE............................... -8-
3.7 INCLUSION OF INELIGIBLE EMPLOYEE............................ -8-
SECTION 4. CONTRIBUTIONS AND CREDITS................................... -8-
4.1 DISCRETIONARY CONTRIBUTIONS................................. -8-
4.2 CONTRIBUTIONS FOR STOCK OBLIGATIONS......................... -8-
4.3 DEFINITIONS RELATED TO CONTRIBUTIONS........................ -9-
4.4 CONDITIONS AS TO CONTRIBUTIONS.............................. -9-
SECTION 5. LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS................ -9-
5.1 LIMITATION ON ANNUAL ADDITIONS.............................. -9-
5.2 COORDINATED LIMITATION WITH OTHER PLANS..................... -11-
5.3 EFFECT OF LIMITATIONS....................................... -12-
5.4 LIMITATIONS AS TO CERTAIN PARTICIPANTS...................... -12-
SECTION 6. TRUST FUND AND ITS INVESTMENT............................... -12-
6.1 CREATION OF TRUST FUND...................................... -12-
6.2 STOCK FUND AND INVESTMENT FUND.............................. -13-
6.3 ACQUISITION OF STOCK........................................ -13-
6.4 PARTICIPANTS' OPTION TO DIVERSIFY........................... -14-
SECTION 7. VOTING RIGHTS AND DIVIDENDS ON STOCK........................ -14-
7.1 VOTING AND TENDERING OF STOCK............................... -14-
7.2 DIVIDENDS ON STOCK.......................................... -15-
SECTION 8. ADJUSTMENTS TO ACCOUNTS..................................... -15-
(i)
PAGE NO.
8.1 ADJUSTMENTS FOR TRANSACTIONS................................ -15-
8.2 VALUATION OF INVESTMENT FUND................................ -16-
8.3 ADJUSTMENTS FOR INVESTMENT EXPERIENCE....................... -16-
SECTION 9. VESTING OF PARTICIPANTS' INTERESTS.......................... -16-
9.3 FULL VESTING UPON CERTAIN EVENTS............................ -17-
9.4 FULL VESTING UPON PLAN TERMINATION.......................... -18-
9.5 FORFEITURE, REPAYMENT, AND RESTORAL......................... -18-
9.6 ACCOUNTING FOR FORFEITURES.................................. -19-
9.7 VESTING AND NONFORFEITABILITY............................... -19-
SECTION 10. PAYMENT OF BENEFITS......................................... -19-
10.2 TIME FOR DISTRIBUTION....................................... -20-
10.3 MARITAL STATUS.............................................. -21-
10.4 DELAY IN BENEFIT DETERMINATION.............................. -21-
10.5 ACCOUNTING FOR BENEFIT PAYMENTS............................. -21-
10.6 OPTIONS TO RECEIVE AND SELL STOCK........................... -21-
10.7 RESTRICTIONS ON DISPOSITION OF STOCK........................ -22-
10.8 CONTINUING LOAN PROVISIONS; CREATIONS OF PROTECTIONS
AND RIGHTS................................................ -23-
10.9 DIRECT ROLLOVER OF ELIGIBLE DISTRIBUTION.................... -23-
10.10 WAIVER OF 30 DAY PERIOD AFTER NOTICE OF DISTRIBUTION....... -23-
SECTION 11. RULES GOVERNING BENEFIT CLAIMS AND REVIEW OF APPEALS........ -24-
11.1 CLAIM FOR BENEFITS.......................................... -24-
11.2 NOTIFICATION BY COMMITTEE................................... -24-
11.3 CLAIMS REVIEW PROCEDURE..................................... -24-
SECTION 12. THE COMMITTEE AND ITS FUNCTIONS............................. -24-
12.1 AUTHORITY OF COMMITTEE...................................... -24-
12.2 IDENTITY OF COMMITTEE....................................... -25-
12.3 DUTIES OF COMMITTEE......................................... -25-
12.4 VALUATION OF STOCK.......................................... -25-
12.5 COMPLIANCE WITH ERISA....................................... -26-
12.6 ACTION BY COMMITTEE......................................... -26-
12.7 EXECUTION OF DOCUMENTS...................................... -26-
12.8 ADOPTION OF RULES........................................... -26-
12.9 RESPONSIBILITIES TO PARTICIPANTS............................ -26-
12.10 ALTERNATIVE PAYEES IN EVENT OF INCAPACITY................... -26-
12.11 INDEMNIFICATION BY EMPLOYERS................................ -26-
12.12 NONPARTICIPATION BY INTERESTED MEMBER....................... -27-
(ii)
PAGE NO.
SECTION 13. ADOPTION, AMENDMENT, OR TERMINATION OF THE PLAN............. -27-
13.1 ADOPTION OF PLAN BY OTHER EMPLOYERS......................... -27-
13.2 PLAN ADOPTION SUBJECT TO QUALIFICATION...................... -27-
13.3 RIGHT TO AMEND OR TERMINATE................................. -27-
13.4 RIGHT TO AMEND OR TERMINATE................................. -27-
SECTION 14. MISCELLANEOUS PROVISIONS.................................... -28-
14.1 PLAN CREATES NO EMPLOYMENT RIGHTS........................... -28-
14.2 NONASSIGNABILITY OF BENEFITS................................ -28-
14.3 LIMIT OF EMPLOYER LIABILITY................................. -28-
14.4 TREATMENT OF EXPENSES....................................... -28-
14.5 NUMBER AND GENDER........................................... -28-
14.6 NONDIVERSION OF ASSETS...................................... -28-
14.7 SEPARABILITY OF PROVISIONS.................................. -28-
14.8 SERVICE OF PROCESS.......................................... -28-
14.9 GOVERNING STATE LAW......................................... -28-
14.10 EMPLOYER CONTRIBUTIONS CONDITIONED ON DEDUCTIBILITY......... -29-
14.11 UNCLAIMED ACCOUNTS.......................................... -29-
14.12 QUALIFIED DOMESTIC RELATIONS ORDER.......................... -29-
SECTION 15. TOP-HEAVY PROVISIONS........................................ -30-
15.1 TOP-HEAVY PLAN.............................................. -30-
15.2 SUPER TOP-HEAVY PLAN........................................ -30-
15.3 DEFINITIONS................................................. -31-
15.4 TOP-HEAVY RULES OF APPLICATION.............................. -32-
15.5 TOP-HEAVY RATIO............................................. -33-
15.6 MINIMUM CONTRIBUTIONS....................................... -33-
15.7 MINIMUM VESTING............................................. -34-
15.8 TOP-HEAVY PROVISIONS CONTROL IN TOP-HEAVY PLAN.............. -34-
(iii)
SOUND FEDERAL SAVINGS AND LOAN ASSOCIATION
EMPLOYEE STOCK OWNERSHIP PLAN
SECTION 1. PLAN IDENTITY.
1.1 Name . The name of this Plan is "Sound Federal Savings and Loan
Association Employee Stock Ownership Plan."
1.2 Purpose . The purpose of this Plan is to describe the terms and
conditions under which contributions made pursuant to the Plan will be credited
and paid to the Participants and their Beneficiaries.
1.3 Effective Date . The Effective Date of this Plan is January 1, 1998.
1.4 Fiscal Period . This Plan shall be operated on the basis of a
January 1 to December 31 fiscal year for the purpose of keeping the Plan's books
and records and distributing or filing any reports or returns required by law.
1.5 Single Plan for All Employers . This Plan shall be treated as a
single plan with respect to all participating Employers for the purpose of
crediting contributions and forfeitures and distributing benefits, determining
whether there has been any termination of Service, and applying the limitations
set forth in Section 5.
1.6 Interpretation of Provisions . The Employers intend this Plan and
the Trust to be a qualified stock bonus plan under Section 401(a) of the Code
and an employee stock ownership plan within the meaning of Section 407(d)(6) of
ERISA and Section 4975(e)(7) of the Code. The Plan is intended to have its
assets invested primarily in qualifying employer securities of one or more
Employers within the meaning of Section 407(d)(3) of ERISA, and to satisfy any
requirement under ERISA or the Code applicable to such a plan.
Accordingly, the Plan and Trust Agreement shall be interpreted and applied
in a manner consistent with this intent and shall be administered at all times
and in all respects in a nondiscriminatory manner.
Section 2. Definitions.
The following capitalized words and phrases shall have the meanings
specified when used in this Plan and in the Trust Agreement, unless the context
clearly indicates otherwise:
"ACCOUNT" means a Participant's interest in the assets accumulated under
this Plan as expressed in terms of a separate account balance which is
periodically adjusted to reflect his Employer's contributions, the Plan's
investment experience, and distributions and forfeitures.
"ACTIVE PARTICIPANT" means any Employee who has satisfied the eligibility
requirements of Section 3 and who qualifies as an Active Participant for a
particular Plan Year under Section 4.3.
"ASSOCIATION" means Sound Federal Savings and Loan Association and any
entity which succeeds to the business of Sound Federal Savings and Loan
Association and adopts this Plan as its own pursuant to Section 13.2.
"BENEFICIARY" means the person or persons who are designated by a
Participant to receive benefits payable under the Plan on the Participant's
death. In the absence of any designation or if all the designated Beneficiaries
shall die before the Participant dies or shall die before all benefits have been
paid, the Participant's Beneficiary shall be his surviving Spouse, if any, or
his estate if he is not survived by a Spouse. The Committee may rely upon the
advice of the Participant's executor or administrator as to the identity of the
Participant's Spouse.
"BREAK IN SERVICE" means any Plan Year, or, for the initial eligibility
computation period under Section 3.2, the 12-consecutive month period beginning
on the first day of which an Employee has an Hour of Service, in which an
Employee has 500 or fewer Hours of Service. Solely for this purpose, an Employee
shall be considered employed for his normal hours of paid employment during a
Recognized Absence (said Employee shall not be credited with more than 501 Hours
of Service to avoid a Break in Service), unless he does not resume his Service
at the end of the Recognized Absence. Further, if an Employee is absent for any
period beginning on or after January 1, 1985, (i) by reason of the Employee's
pregnancy, (ii) by reason of the birth of the Employee's child, (iii) by reason
of the placement of a child with the Employee in connection with the Employee's
adoption of the child, or (iv) for purposes of caring for such child for a
period beginning immediately after such birth or placement, the Employee shall
be credited with the Hours of Service which would normally have been credited
but for such absence, up to a maximum of 501 Hours of Service.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the committee responsible for the administration of this
Plan in accordance with Section 12.
"COMPANY" means Sound Federal Bancorp, Inc., the stock holding company of
Association.
"DISABILITY" means only a disability which renders the Participant totally
unable, as a result of bodily or mental disease or injury, to perform any duties
for an Employer for which he is reasonably fitted, which disability is expected
to be permanent or of long and indefinite duration. However, this term shall not
include any disability directly or indirectly resulting from or related to
habitual drunkenness or addiction to narcotics, a criminal act or attempt,
service in the armed forces of any country, an act of war, declared or
undeclared, any injury or disease occurring while compensation to the
Participant is suspended, or any injury which is intentionally self-inflicted.
Further, this term shall apply only if (i) the Participant is sufficiently
disabled to qualify for the payment of disability benefits under the federal
Social Security Act or Veterans Disability Act, or (ii) the Participant's
disability is certified by a physician selected by the Committee. Unless the
Participant is sufficiently disabled to qualify for disability benefits under
the federal Social Security Act or Veterans Disability Act, the Committee may
require the Participant to be appropriately examined from time to time by one or
more physicians chosen by the Committee, and no Participant who refuses to be
examined shall be treated as having a Disability. In any event, the Committee's
good faith decision as to whether a Participant's Service has been terminated by
Disability shall be final and conclusive.
"EARLY RETIREMENT" means retirement on or after a Participant's attainment
of age 55 and the completion of fifteen years of employment with an Employer. If
the Participant terminates employment
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before satisfying the age requirement, but has satisfied the employment
requirement, the Participant will be entitled to elect early retirement upon
satisfaction of the age requirement.
"EFFECTIVE DATE" means January 1, 1998.
"EMPLOYEE" means any individual who is or has been employed or
self-employed by an Employer. "Employee" also means an individual employed by a
leasing organization who, pursuant to an agreement between an Employer and the
leasing organization, has performed services for the Employer and any related
persons (within the meaning of Section 414(n)(6) of the Code) on a substantially
full-time basis for more than one year, if such services are performed under the
primary direction or control of the Employer. However, such a "leased employee"
shall not be considered an Employee if (i) he participates in a money purchase
pension plan sponsored by the leasing organization which provides for immediate
participation, immediate full vesting, and an annual contribution of at least 10
percent of the Employee's 415 Compensation, and (ii) leased employees do not
constitute more than 20 percent of the Employer's total work force (including
leased employees, but excluding Highly Paid Employees and any other Employees
who have not performed services for the Employer on a substantially full-time
basis for at least one year).
"EMPLOYER" means the Association or any affiliate within the purview of
section 414(b), (c) or (m) and 415(h) of the Code, any other corporation,
partnership, or proprietorship which adopts this Plan with the Association's
consent pursuant to Section 13.1, and any entity which succeeds to the business
of any Employer and adopts the Plan pursuant to Section 13.2.
"ENTRY DATE" means the Effective Date of the Plan and each January 1 and
July 1 of each Plan Year after the Effective Date.
"ERISA" means the Employee Retirement Income Security Act of 1974 (P.L.
93-406, as amended).
"415 COMPENSATION"
(a) shall mean wages, as defined in Code Section 3401(a) for
purposes of income tax withholding at the source.
(b) Any elective deferral as defined in Code Section 402(g)(3)
(any Employer contributions made on behalf of a Participant to the extent
not includible in gross income and any Employer contributions to purchase
an annuity contract under Code Section 403(b) under a salary reduction
agreement) and any amount which is contributed or deferred by the Employer
at the election of the Participant and which is not includible in gross
income of the Participant by reason of Code Section 125 (Cafeteria Plan)
shall also be included in the definition of 415 Compensation.
(c) 415 Compensation in excess of $160,000 (as indexed) shall be
disregarded for all Participants. For purposes of this sub-section, the
$160,000 limit shall be referred to as the "applicable limit" for the Plan
Year in question. The $160,000 limit shall be adjusted for increases in
the cost of living in accordance with Section 401(a)(17)(B) of the Code,
effective for the Plan Year which begins within the applicable calendar
year. For purposes of the applicable limit, 415 Compensation shall be
prorated over short Plan Years.
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"HIGHLY PAID EMPLOYEE" for any Plan Year means an Employee who, during
either of that or the immediately preceding Plan Year was at any time a five
percent owner of the Employer (as defined in Code Section 416(i)(1)) or, during
the immediately preceding Plan Year, had 415 Compensation exceeding $80,000 and
was among the most highly compensated one-fifth of all Employees. For this
purpose:
(a) "415 Compensation" shall include any amount which is
excludable from the Employee's gross income for tax purposes pursuant to
Sections 125, 402(a)(8), 402(h)(1)(B), or 403(b) of the Code.
(b) The number of Employees in "the most highly compensated
one-fifth of all Employees" shall be determined by taking into account all
individuals working for all related Employer entities described in the
definition of "Service", but excluding any individual who has not
completed six months of Service, who normally works fewer than 17-1/2
hours per week or in fewer than six months per year, who has not reached
age 21, whose employment is covered by a collective bargaining agreement,
or who is a nonresident alien who receives no earned income from United
States sources.
"HOURS OF SERVICE" means hours to be credited to an Employee under the
following rules:
(a) Each hour for which an Employee is paid or is entitled to be
paid for services to an Employer is an Hour of Service.
(b) Each hour for which an Employee is directly or indirectly paid
or is entitled to be paid for a period of vacation, holidays, illness,
disability, lay-off, jury duty, temporary military duty, or leave of
absence is an Hour of Service. However, except as otherwise specifically
provided, no more than 501 Hours of Service shall be credited for any
single continuous period which an Employee performs no duties. No more
than 501 Hours of Service will be credited under this paragraph for any
single continuous period (whether or not such period occurs in a single
computation period). Further, no Hours of Service shall be credited on
account of payments made solely under a plan maintained to comply with
worker's compensation, unemployment compensation, or disability insurance
laws, or to reimburse an Employee for medical expenses.
(c) Each hour for which back pay (ignoring any mitigation of
damages) is either awarded or agreed to by an Employer is an Hour of
Service. However, no more than 501 Hours of Service shall be credited for
any single continuous period during which an Employee would not have
performed any duties. The same Hours of Service will not be credited both
under paragraph (a) or (b) as the case may be, and under this paragraph
(c). These hours will be credited to the employee for the computation
period or periods to which the award or agreement pertains rather than the
computation period in which the award agreement or payment is made.
(d) Hours of Service shall be credited in any one period only
under one of the foregoing paragraphs (a), (b) and (c); an Employee may
not get double credit for the same period.
(e) If an Employer finds it impractical to count the actual Hours
of Service for any class or group of non-hourly Employees, each Employee
in that class or group shall be credited with 45 Hours of Service for each
weekly pay period in which he has at least one Hour of Service. However,
an Employee shall be credited only for his normal working hours during a
paid absence.
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(f) Hours of Service to be credited on account of a payment to an
Employee (including back pay) shall be recorded in the period of Service
for which the payment was made. If the period overlaps two or more Plan
Years, the Hours of Service credit shall be allocated in proportion to the
respective portions of the period included in the several Plan Years.
However, in the case of periods of 31 days or less, the Administrator may
apply a uniform policy of crediting the Hours of Service to either the
first Plan Year or the second.
(g) In all respects an Employee's Hours of Service shall be
counted as required by Section 2530.200b-2(b) and (c) of the Department of
Labor's regulations under Title I of ERISA.
"INVESTMENT FUND" means that portion of the Trust Fund consisting of
assets other than Stock. Notwithstanding the above, assets from the Investment
Fund may be used to purchase Stock in the open market or otherwise, or used to
pay on the Stock Obligation, and shares so purchased will be allocated to a
Participant's Stock Fund.
"NORMAL RETIREMENT" means retirement on or after the Participant's Normal
Retirement Date.
"NORMAL RETIREMENT DATE" means the date on which a Participant attains age
65 and completes five years of Service.
"PARTICIPANT" means any Employee who is participating in the Plan, or who
has previously participated in the Plan and still has a balance credited to his
Account.
"PLAN YEAR" means the twelve month period commencing January 1 and ending
December 31, 1998 and each period of 12 consecutive months beginning on January
1 of each succeeding year.
"RECOGNIZED ABSENCE" means a period for which --
(a) an Employer grants an Employee a leave of absence for a
limited period, but only if an Employer grants such leave on a
nondiscriminatory basis; or
(b) an Employee is temporarily laid off by an Employer because of
a change in business conditions; or
(c) an Employee is on active military duty, but only to the extent
that his employment rights are protected by the Military Selective Service
Act of 1967 (38 U.S.C. Sec. 2021).
"SERVICE" means an Employee's period(s) of employment or self-employment
with an Employer, excluding for initial eligibility purposes any period in which
the individual was a nonresident alien and did not receive from an Employer any
earned income which constituted income from sources within the United States. An
Employee's Service shall include any Service which constitutes Service with a
predecessor Employer within the meaning of Section 414(a) of the Code. An
Employee's Service shall also include any Service with an entity which is not an
Employer, but only either (i) for a period after 1975 in which the other entity
is a member of a controlled group of corporations or is under common control
with other trades and businesses within the meaning of Section 414(b) or 414(c)
of the Code, and a member of the controlled group or one of the trades and
businesses is an Employer, (ii) for a period after 1979 in which the other
entity is a member of an affiliated service group within the meaning of Section
414(m) of the Code, and a member
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of the affiliated service group is an Employer, or (iii) all Employers
aggregated with the Employer under Section 414(o) of the Code (but not until the
Proposed Regulations under Section 414(o) become effective). Notwithstanding any
provision of this Plan to the contrary, contributions, benefits and service
credit with respect to qualified military service will be provided in accordance
with Section 414(u) of the Code.
"SPOUSE" means the individual, if any, to whom a Participant is lawfully
married on the date benefit payments to the Participant are to begin, or on the
date of the Participant's death, if earlier. A former Spouse shall be treated as
the Spouse or surviving Spouse to the extent provided under a qualified domestic
relations order as described in section 414(p) of the Code.
"STOCK" means shares of the Company's voting common stock or preferred
stock meeting the requirements of Section 409(e)(3) of the Code issued by an
Employer which is a member of the same controlled group of corporations within
the meaning of Code Section 414(b).
"STOCK FUND" means that portion of the Trust Fund consisting of Stock.
"STOCK OBLIGATION" means an indebtedness arising from any extension of
credit to the Plan or the Trust which satisfies the requirements set forth in
Section 6.3 and which was obtained for any or all of the following purposes:
(i) to acquire qualifying Employer securities as defined in
Treasury Regulationsss. 54.4975-12
(ii) to repay such Stock Obligation; or
(iii) to repay a prior exempt loan.
"TRUST" OR "TRUST FUND" means the trust fund created under this Plan.
"TRUST AGREEMENT" means the agreement between the Association and the
Trustee concerning the Trust Fund. If any assets of the Trust Fund are held in a
co-mingled trust fund with assets of other qualified retirement plans, "Trust
Agreement" shall be deemed to include the trust agreement governing that
co-mingled trust fund. With respect to the allocation of investment
responsibility for the assets of the Trust Fund, the provisions of Article II of
the Trust Agreement are incorporated herein by reference.
"TRUSTEE" means one or more corporate persons or individuals selected from
time to time by the Association to serve as trustee or co-trustees of the Trust
Fund.
"UNALLOCATED STOCK FUND" means that portion of the Stock Fund consisting
of the Plan's holding of Stock which have been acquired in exchange for one or
more Stock obligations and which have not yet been allocated to the
Participant's Accounts in accordance with Section 4.2
"VALUATION DATE" means the last day of the Plan Year and each other date
as of which the Committee shall determine the investment experience of the
Investment Fund and adjust the Participants' Accounts accordingly.
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"VALUATION PERIOD" means the period following a Valuation Date and ending
with the next Valuation Date.
"VESTING YEAR" means a unit of Service credited to a Participant pursuant
to Section 9.2 for purposes of determining his vested interest in his Account.
Section 3. Eligibility for Participation.
3.1 Initial Eligibility . An Employee shall enter the Plan as of the
Entry Date coincident with or next following the later of the following dates:
(a) the last day of the Employee's first Eligibility Year, and
(b) the Employee's 21st birthday. However, if an Employee is not
in active Service with an Employer on the date he would otherwise first
enter the Plan, his entry shall be deferred until the next day he is in
Service.
3.2 Definition of Eligibility Year . An "Eligibility Year" means an
applicable eligibility period (as defined below) in which the Employee has
completed 1,000 Hours of Service for the Employer. For this purpose:
(a) an Employee's first "eligibility period" is the 12-consecutive
month period beginning on the first day on which he has an Hour of
Service, and
(b) his subsequent eligibility periods will be 12-consecutive
month periods beginning on each January 1 after that first day of Service.
3.3 Terminated Employees . No Employee shall have any interest or rights
under this Plan if he is never in active Service with an Employer on or after
the Effective Date.
3.4 Certain Employees Ineligible . No Employee shall participate in the
Plan while his Service is covered by a collective bargaining agreement between
an Employer and the Employee's collective bargaining representative if (i)
retirement benefits have been the subject of good faith bargaining between the
Employer and the representative and (ii) the collective bargaining agreement
does not provide for the Employee's participation in the Plan.
3.5 Participation and Reparticipation . Subject to the satisfaction of
the foregoing requirements, an Employee shall participate in the Plan during
each period of his Service from the date on which he first becomes eligible
until his termination. For this purpose, an Employee who returns before five (5)
consecutive Breaks in Service who previously satisfied the initial eligibility
requirements or who returns after five (5) consecutive one year Breaks in
Service with a vested Account balance in the Plan shall re-enter the Plan as of
the date of his return to Service with an Employer.
3.6 Omission of Eligible Employee . If, in any Plan Year, any Employee
who should be included as a Participant in the Plan is erroneously omitted and
discovery of such omission is not made until after a contribution by his
Employer for the year has been made, the Employer shall make a subsequent
contribution with respect to the omitted Employee in the amount which the said
Employer would have
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contributed shall be made regardless of whether or not it is deductible in whole
or in part in any taxable year under applicable provisions of the Code.
3.7 Inclusion of Ineligible Employee . If, in any Plan Year, any person
who should not have been included as a Participant in the Plan is erroneously
included and discovery of such incorrect inclusion is not made until after a
contribution for the year has been made, the Employer shall not be entitled to
recover the contribution made with respect to the ineligible person regardless
of whether or not a deduction is allowable with respect to the ineligible person
shall constitute a forfeiture for the Plan Year in which the discovery is made.
Section 4. Contributions and Credits.
4.1 Discretionary Contributions . The Employer shall from time to time
contribute, with respect to a Plan Year, such amounts as it may determine from
time to time. The Employer shall have no obligation to contribute any amount
under this Plan except as so determined in its sole discretion. The Employer's
contributions and available forfeitures for a Plan Year shall be credited as of
the last day of the year to the Accounts of the Active Participants in
proportion to their amounts of 415 Compensation.
4.2 Contributions for Stock Obligations . If the Trustee, upon
instructions from the Committee, incurs any Stock Obligation upon the purchase
of Stock, the Employer may contribute for each Plan Year an amount sufficient to
cover all payments of principal and interest as they come due under the terms of
the Stock Obligation. If there is more than one Stock Obligation, the Employer
shall designate the one to which any contribution is to be applied. Investment
earnings realized on Employer contributions and any dividends paid by the
Employer on Stock held in the Unallocated Stock Account, shall be applied to the
Stock Obligation related to that Stock, subject to Section 7.2.
In each Plan Year in which Employer contributions, earnings on
contributions, or dividends on unallocated Stock are used as payments under a
Stock Obligation, a certain number of shares of the Stock acquired with that
Stock Obligation which is then held in the Unallocated Stock Fund shall be
released for allocation among the Participants. The number of shares released
shall bear the same ratio to the total number of those shares then held in the
Unallocated Stock Fund (prior to the release) as (i) the principal and interest
payments made on the Stock Obligation in the current Plan Year bears to (ii) the
sum of (i) above, and the remaining principal and interest payments required (or
projected to be required on the basis of the interest rate in effect at the end
of the Plan Year) to satisfy the Stock Obligation.
At the direction of the Committee, the current and projected payments of
interest under a Stock Obligation may be ignored in calculating the number of
shares to be released in each year if (i) the Stock Obligation provides for
annual payments of principal and interest at a cumulative rate that is not less
rapid at any time than level annual payments of such amounts for 10 years, (ii)
the interest included in any payment is ignored only to the extent that it would
be determined to be interest under standard loan amortization tables, and (iii)
the term of the Stock Obligation, by reason of renewal, extension, or
refinancing, has not exceeded 10 years from the original acquisition of the
Stock.
4.3 Definitions Related to Contributions . For the purposes of this
Plan, the following terms have the meanings specified:
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"ACTIVE PARTICIPANT" means a Participant who has satisfied the
eligibility requirements under Section 3 and who has at least 1000 Hours of
Service during the current Plan Year. However, a Participant shall not qualify
as an Active Participant unless (i) he is in active Service with an Employer as
of the last day of the Plan Year, or (ii) he is on a Recognized Absence as of
that date, or (iii) his Service terminated during the Plan Year by reason of
Disability, death, Early or Normal Retirement.
In the event a Plan Year is a period of less than 12 months for any
reason, then 415 Compensation for the short period shall not exceed the pro rata
portion of this limit created by multiplying a fraction which is the number of
months in the short period divided by twelve times the annual compensation
limit.
4.4 Conditions as to Contributions . Employers' contributions shall in
all events be subject to the limitations set forth in Section 5. Contributions
may be made in the form of cash, or securities and other property to the extent
permissible under ERISA, including Stock, and shall be held by the Trustee in
accordance with the Trust Agreement. In addition to the provisions of Section
13.3 for the return of an Employer's contributions in connection with a failure
of the Plan to qualify initially under the Code, any amount contributed by an
Employer due to a good faith mistake of fact, or based upon a good faith but
erroneous determination of its deductibility under Section 404 of the Code,
shall be returned to the Employer within one year after the date on which the
contribution was originally made, or within one year after its nondeductibility
has been finally determined. However, the amount to be returned shall be reduced
to take account of any adverse investment experience within the Trust Fund in
order that the balance credited to each Participant's Account is not less that
it would have been if the contribution had never been made.
Section 5. Limitations on Contributions and Allocations.
5.1 Limitation on Annual Additions . Notwithstanding anything herein to
the contrary, allocation of Employer contributions for any Plan Year shall be
subject to the following:
5.1-1 If allocation of Employer contributions in accordance with
Section 4.1 will result in an allocation of more than one-third the total
contributions for a Plan Year to the Accounts of Highly Paid Employees,
then allocation of such amount shall be adjusted so that such excess will
not occur.
5.1-2 After adjustment, if any, required by the preceding paragraph,
the annual additions during any Plan Year to any Participant's Account
under this and any other defined contribution plans maintained by the
Employer or an affiliate (within the purview of Section 414(b), (c) and
(m) and Section 415(h) of the Code, which affiliate shall be deemed the
Employer for this purpose) shall not exceed the lesser of $30,000 (or such
other dollar amount which results from cost-of-living adjustments under
Section 415(d) of the Code) or "25 percent of the Participant's 415
Compensation for such limitation year." In the event that annual additions
exceed the aforesaid limitations, they shall be reduced in the following
priority:
(i) If the Participant is covered by the Plan at the end of the
Plan Year, any excess amount at the end of the Plan Year that cannot be
allocated to the Participant's Account shall be used to reduce the
employer contribution for such Participant in the next limitation year and
any succeeding limitation years if necessary.
(ii) If the Participant is not covered by the Plan at the end of
the Plan Year, the excess amount will be held unallocated in a suspense
account. The suspense account will be applied to
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reduce future Employer contributions for all remaining Participants in the
next limitation year and each succeeding limitation year if necessary.
(iii) If a suspense account is in existence at any time during a
limitation year, it will not participate in any allocation of investment
gains and losses. All amounts held in suspense accounts must be allocated
to Participant's Accounts before any contributions may be made to the Plan
for the limitation year.
(iv) If a suspense account exists at the time of Plan termination,
amounts held in the suspense account that cannot be allocated shall revert
to the Employer.
5.1-3 For purposes of this Section 5.1 and the following Section
5.2, the "annual addition" to a Participant's Accounts means the sum of
(i) Employer contributions, (ii) Employee contributions, if any, and (iii)
forfeitures. Annual additions to a defined contribution plan also include
amounts allocated, after March 31, 1984, to an individual medical account,
as defined in Section 415(l)(2) of the Internal Revenue Code, which is
part of a pension or annuity plan maintained by the Employer, amounts
derived from contributions paid or accrued after December 31, 1985, in
taxable years ending after such date, which are attributable to
post-retirement medical benefits allocated to the separate account of a
Key Employee under a welfare benefit fund, as defined in Section 419A(d)
of the Internal Revenue Code, maintained by the Employer. For these
purposes, annual additions to a defined contribution plan shall not
include the allocation of the excess amounts remaining in the Unallocated
Stock Fund subsequent to a sale of stock from such fund in accordance with
a transaction described in Section 8.1 of the Plan. The $30,000
limitations referred to shall, for each limitation year ending after 1988,
be automatically adjusted to the new dollar limitations determined by the
Commissioner of Internal Revenue for the calendar year beginning in that
limitation year.
5.1-4 Notwithstanding the foregoing, if no more than one-third of
the Employer contributions to the Plan for a year which are deductible
under Section 404(a)(9) of the Code are allocated to Highly Paid Employees
(within the meaning of Section 414(q) of the Internal Revenue Code), the
limitations imposed herein shall not apply to:
(i) forfeitures of Employer securities (within the meaning of
Section 409 of the Code) under the Plan if such securities were acquired
with the proceeds of a loan described in Section 404(a)(9)(A) of the
Code), or
(ii) Employer contributions to the Plan which are deductible under
Section 404(a)(9)(B) and charged against a Participant's Account.
5.1-5 If the Employer contributes amounts, on behalf of Employees
covered by this Plan, to other "defined contribution plans" as defined in
Section 3(34) of ERISA, the limitation on annual additions provided in
this Section shall be applied to annual additions in the aggregate to this
Plan and to such other plans. Reduction of annual additions, where
required, shall be accomplished first by reductions under such other plan
pursuant to the directions of the named Fiduciary for administration of
such other plans or under priorities, if any, established under the terms
of such other plans and then by allocating any remaining excess for this
Plan in the manner and priority set out above with respect to this Plan.
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5.1-6 A limitation year shall mean each 12 consecutive month period
beginning each January 1.
5.2 Coordinated Limitation With Other Plans . Aside from the limitation
prescribed by Section 5.1 with respect to the annual addition to a Participant's
Accounts for any single limitation year, if a Participant has ever participated
in one or more defined benefit plans maintained by an Employer or an affiliate,
then the accrued benefit shall be limited so that the sum of his defined plan
fraction and his defined contribution plan fraction does not exceed one. For
this purpose:
5.2-1 A Participant's defined contribution plan fraction with
respect to a Plan Year shall be a fraction, (i) the numerator of which is
the sum of the annual additions to his Accounts through the current year,
and (ii) the denominator of which is the sum of the lesser of the
following amounts -A- and -B- determined for the current limitation year
and each prior limitation year of Service with an Employer: -A- is 1.25
times the dollar limit in effect for the year under Section 415(c)(1)(A)
of the Code, or 1.0 times such dollar limitation if the Plan is super
top-heavy, and -B- is 35 percent of the Participant's 415 Compensation for
such year. Further, if the Participant participated in any related defined
contribution plan in any years beginning before 1976, any excess of the
sum of the actual annual additions to the Participant's Accounts for those
years over the maximum annual additions which could have been made in
accordance with Section 5.1 shall be ignored, and voluntary contributions
by the Participant during those years shall be taken into account as to
each such year only to the extent that his average annual voluntary
contribution in those years exceeded 10 percent of his average annual 415
Compensation in those years.
5.2-2 A Participant's defined benefit plan fraction with respect to
a limitation year shall be a fraction, (i) the numerator of which is his
projected annual benefit payable at normal retirement under the Employers'
defined benefit plans, and (ii) the denominator of which is the lesser of
(a) 1.25 times $90,000, or 1.0 times such dollar limitation if the Plan is
super top-heavy, and (b) 1.4 times the Participant's average 415
Compensation during his highest-paid three consecutive limitation years.
5.3 Effect of Limitations . The Committee shall take whatever action may
be necessary from time to time to assure compliance with the limitations set
forth in Section 5.1 and 5.2. Specifically, the Committee shall see that each
Employer restrict its contributions for any Plan Year to an amount which, taking
into account the amount of available forfeitures, may be completely allocated to
the Participants consistent with those limitations. Where the limitations would
otherwise be exceeded by any Participant, further allocations to the Participant
shall be curtailed to the extent necessary to satisfy the limitations. Where an
excessive amount is contributed on account of a mistake as to one or more
Participants' compensation, or there is an amount of forfeitures which may not
be credited in the Plan Year in which it becomes available, the amount shall be
corrected in accordance with Section 5.1-2 of the Plan.
5.4 Limitations as to Certain Participants . Aside from the limitations
set forth in Section 5.1 and 5.2, if the Plan acquires any Stock in a
transaction as to which a selling shareholder or the estate of a deceased
shareholder is claiming the benefit of Section 1042 of the Code, the Committee
shall see that none of such Stock, and no other assets in lieu of such Stock,
are allocated to the Accounts of certain Participants in order to comply with
Section 409(n) of the Code.
This restriction shall apply at all times to a Participant who owns
(taking into account the attribution rules under Section 318(a) of the Code,
without regard to the exception for employee plan trusts in Section
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318(a)(2)(B)(i) more than 25 percent of any class of stock of a corporation
which issued the Stock acquired by the Plan, or another corporation within the
same controlled group, as defined in Section 409(l)(4) of the Code (any such
class of stock hereafter called a "Related Class"). For this purpose, a
Participant who owns more than 25 percent of any Related Class at any time
within the one year preceding the Plan's purchase of the Stock shall be subject
to the restriction as to all allocations of the Stock, but any other Participant
shall be subject to the restriction only as to allocations which occur at a time
when he owns more than 25 percent of any Related Class.
Further, this restriction shall apply to the selling shareholder claiming
the benefit of Section 1042 and any other Participant who is related to such a
shareholder within the meaning of Section 267(b) of the Code, during the period
beginning on the date of sale and ending on the later of (1) the date that is
ten years after the date of sale, or (2) the date of the Plan allocation
attributable to the final payment of acquisition indebtedness incurred in
connection with the sale.
This restriction shall not apply to any Participant who is a lineal
descendant of a selling shareholder if the aggregate amounts allocated under the
Plan for the benefit of all such descendants do not exceed five percent of the
Stock acquired from the shareholder.
SECTION 6. TRUST FUND AND ITS INVESTMENT.
6.1 Creation of Trust Fund . All amounts received under the Plan from
Employers and investments shall be held as the Trust Fund pursuant to the terms
of this Plan and of the Trust Agreement between the Association and the Trustee.
The benefits described in this Plan shall be payable only from the assets of the
Trust Fund, and none of the Association, any other Employer, its board of
directors or trustees, its stockholders, its officers, its employees, the
Committee, and the Trustee shall be liable for payment of any benefit under this
Plan except from the Trust Fund.
6.2 Stock Fund and Investment Fund . The Trust Fund held by the Trustee
shall be divided into the Stock Fund, consisting entirely of Stock, and the
Investment Fund, consisting of all assets of the Trust other than Stock. The
Trustee shall have no investment responsibility for the Stock Fund, but shall
accept any Employer contributions made in the form of Stock, and shall acquire,
sell, exchange, distribute, and otherwise deal with and dispose of Stock in
accordance with the instructions of the Committee. The Trustee shall have full
responsibility for the investment of the Investment Fund, except to the extent
such responsibility may be delegated from time to time to one or more investment
managers pursuant to Section 2.2 of the Trust Agreement, or to the extent the
Committee directs the Trustee to purchase Stock with the assets in the
Investment Fund.
6.3 Acquisition of Stock . From time to time the Committee may, in its
sole discretion, direct the Trustee to acquire Stock from the issuing Employer
or from shareholders, including shareholders who are or have been Employees,
Participants, or fiduciaries with respect to the Plan. The Trustee shall pay for
such Stock no more than its fair market value, which shall be determined
conclusively by the Committee pursuant to Section 12.4. The Committee may direct
the Trustee to finance the acquisition of Stock by incurring or assuming
indebtedness to the seller or another party which indebtedness shall be called a
"Stock Obligation". The term "Stock Obligation" shall refer to a loan made to
the Plan by a disqualified person within the meaning of Section 4975(e)(2) of
the Code, or a loan to the Plan which is guaranteed by a disqualified person. A
Stock Obligation includes a direct loan of cash, a purchase-money transaction,
and an assumption of an obligation of a tax-qualified employee stock ownership
plan under Section 4975(e)(7) of the Code ("ESOP"). For these purposes, the term
"guarantee" shall include an unsecured guarantee and
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the use of assets of a disqualified person as collateral for a loan, even though
the use of assets may not be a guarantee under applicable state law. An
amendment of a Stock Obligation in order to qualify as an "exempt loan" is not a
refinancing of the Stock Obligation or the making of another Stock Obligation.
The term "exempt loan" refers to a loan that satisfies the provisions of this
paragraph. A "non-exempt loan" fails to satisfy this paragraph. Any Stock
Obligation shall be subject to the following conditions and limitations:
6.3-1 A Stock Obligation shall be for a specific term, shall not be
payable on demand except in the event of default, and shall bear a
reasonable rate of interest.
6.3-2 A Stock Obligation may, but need not, be secured by a
collateral pledge of either the Stock acquired in exchange for the Stock
Obligation, or the Stock previously pledged in connection with a prior
Stock Obligation which is being repaid with the proceeds of the current
Stock Obligation. No other assets of the Plan and Trust may be used as
collateral for a Stock Obligation, and no creditor under a Stock
Obligation shall have any right or recourse to any Plan and Trust assets
other than Stock remaining subject to a collateral pledge.
6.3-3 Any pledge of Stock to secure a Stock Obligation must provide
for the release of pledged Stock in connection with payments on the Stock
obligations in the ratio prescribed in Section 4.2.
6.3-4 Repayments of principal and interest on any Stock Obligation
shall be made by the Trustee only from Employer cash contributions
designated for such payments, from earnings on such contributions, and
from cash dividends received on Stock, in the last case, however, subject
to the further requirements of Section 7.2.
6.3-5 In the event of default of a Stock Obligation, the value of
Plan assets transferred in satisfaction of the Stock Obligation must not
exceed the amount of the default. If the lender is a disqualified person
within the meaning of Section 4975 of the Code, a Stock Obligation must
provide for a transfer of Plan assets upon default only upon and to the
extent of the failure of the Plan to meet the payment schedule of said
Stock Obligation. For purposes of this paragraph, the making of a
guarantee does not make a person a lender.
6.4 Participants' Option to Diversify . The Committee shall provide for
a procedure under which each Participant may, during the qualified election
period, elect to "diversify" a portion of the Employer Stock allocated to his
Account, as provided in Section 401(a)(28)(B) of the Code. An election to
diversity must be made on the prescribed form and filed with the Committee
within the period specified herein. For each of the first five (5) Plan years in
the qualified election period, the Participant may elect to diversify an amount
which does not exceed 25% of the number of shares allocated to his Account since
the inception of the Plan, less all shares with respect to which an election
under this Section has already been made. For the last year of the qualified
election period, the Participant may elect to have up to 50 percent of the value
of his Account committed to other investments, less all shares with respect to
which an election under this Section has already been made. The term "qualified
election period" shall mean the six (6) Plan Year period beginning with the
first Plan Year in which a Participant has both attained age 55 and completed 10
years of participation in the Plan. A Participant's election to diversify his
Account may be made within each year of the qualified election period and shall
continue for the 90-day period immediately following the last day of each year
in the qualified election period. Once a Participant makes such election, the
Plan must complete diversification in accordance with such election within 90
days after the end of the period during
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which the election could be made for the Plan Year. In the discretion of the
Committee, the Plan may satisfy the diversification requirement by any of the
following methods:
6.4-1 The Plan may distribute all or part of the amount subject to
the diversification election.
6.4-2 The Plan may offer the Participant at least three other
distinct investment options, if available under the Plan. The other
investment options shall satisfy the requirements of Regulations under
Section 404(c) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA").
6.4-3 The Plan may transfer the portion of the Participant's Account
subject to the diversification election to another qualified defined
contribution plan of the Employer that offers at least three investment
options satisfying the requirements of the Regulations under Section
404(c) of ERISA.
SECTION 7. VOTING RIGHTS AND DIVIDENDS ON STOCK.
7.1 Voting and Tendering of Stock . The Trustee generally shall vote all
shares of Stock held under the Plan in accordance with the written instructions
of the Committee. However, if any Employer has registration-type class of
securities within the meaning of Section 409(e)(4) of the Code, or if a matter
submitted to the holders of the Stock involves a merger, consolidation,
recapitalization, reclassification, liquidation, dissolution, or sale of
substantially all assets of an entity, then (i) the shares of Stock which have
been allocated to Participants' Accounts shall be voted by the Trustee in
accordance with the Participants' written instructions, and (ii) the Trustee
shall vote any unallocated Stock and allocated Stock for which it has received
no voting instructions in the same proportions as it votes the allocated Stock
for which it has received instructions from Participants; provided, however,
that if an exempt loan, as defined in Section 4975(d) of the Code, is
outstanding and the Plan is in default on such exempt loan, as default is
defined in the loan documents, then to the extent that such loan documents
require the lender to exercise voting rights with respect to the unallocated
shares, the loan documents will prevail. In the event no shares of Stock have
been allocated to Participants' Accounts at the time Stock is to be voted and
any exempt loan which may be outstanding is not in default, each Participant
shall be deemed to have one share of Stock allocated to his or her Account for
the sole purpose of providing the Trustee with voting instructions.
Notwithstanding any provision hereunder to the contrary, all unallocated
shares of Stock must be voted by the Trustee in a manner determined by the
Trustee to be for the exclusive benefit of the Participants and Beneficiaries.
Whenever such voting rights are to be exercised, the Employers shall provide the
Trustee, in a timely manner, with the same notices and other materials as are
provided to other holders of the Stock, which the Trustee shall distribute to
the Participants. The Participants shall be provided with adequate opportunity
to deliver their instructions to the Trustee regarding the voting of Stock
allocated to their Accounts. The instructions of the Participants' with respect
to the voting of allocated shares hereunder shall be confidential.
7.1-1 In the event of a tender offer, Stock shall be tendered by the
Trustee in the same manner as set forth above with respect to the voting
of Stock. Notwithstanding any provision hereunder to the contrary, Stock
must be tendered by the Trustee in a manner determined by the Trustee to
be for the exclusive benefit of the Participants and Beneficiaries.
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7.2 Dividends on Stock . Dividends on Stock which are received by the
Trustee in the form of additional Stock shall be retained in the Stock Fund, and
shall be allocated among the Participant's Accounts and the Unallocated Stock
Fund in accordance with their holdings of the Stock on which the dividends have
been paid. Dividends on Stock credited to Participants' Accounts which are
received by the Trustee in the form of cash shall, at the direction of the
Employer paying the dividends, either (i) be credited to the Accounts in
accordance with Section 8.3 and invested as part of the Investment Fund, (ii) be
distributed immediately to the Participants in proportion with the Participants'
Stock Fund Account balance (iii) be distributed to the Participants within 90
days of the close of the Plan Year in which paid in proportion with the
Participants' Stock Fund Account balance or (iv) be used to make payments on the
Stock Obligation. If dividends on Stock allocated to a Participant's Account are
used to repay the Stock Obligation, Stock with a fair market value equal to the
dividends so used must be allocated to such Participant's Account in lieu of the
dividends. Dividends on Stock held in the Unallocated Stock Fund which are
received by the Trustee in the form of cash shall be allocated to Participants'
Investment Fund Accounts (pro rata based on the Participant's Account balance in
relation to all Participants' Account balances) and shall be applied as soon as
practicable to payments of principal and interest under the Stock Obligation
incurred with the purchase of the Stock.
SECTION 8. ADJUSTMENTS TO ACCOUNTS.
8.1 Adjustments for Transactions . An Employer contribution pursuant to
Section 4.1 shall be credited to the Participants' Accounts as of the last day
of the Plan Year for which it is contributed, in accordance with Section 4.1.
Stock released from the Unallocated Stock Fund upon the Trust's repayment of a
Stock Obligation pursuant to Section 4.2 shall be credited to the Participants'
Accounts as of the last day of the Plan Year in which the repayment occurred,
pro rata based on the cash applied from such Participant's Account relative to
the cash applied from all Participants' Accounts. Any excess amounts remaining
from the use of proceeds of a sale of Stock from the Unallocated Stock Fund to
repay a Stock Obligation shall be allocated as earnings of the Plan as of the
last day of the Plan Year in which the repayment occurred among the
Participants' Accounts in proportion to the opening balance in each Account. Any
benefit which is paid to a Participant or Beneficiary pursuant to Section 10
shall be charged to the Participant's Account as of the first day of the
Valuation Period in which it is paid. Any forfeiture or restoral shall be
charged or credited to the Participant's Account as of the first day of the
Valuation Period in which the forfeiture or restoral occurs pursuant to Section
9.6.
8.2 Valuation of Investment Fund . As of each Valuation Date, the
Trustee shall prepare a balance sheet of the Investment Fund, recording each
asset (including any contribution receivable from an Employer) and liability at
its fair market value. Any liability with respect to short positions or options
and any item of accrued income or expense and unrealized appreciation or
depreciation shall be included; provided, however, that such an item may be
estimated or excluded if it is not readily ascertainable unless estimating or
excluding it would result in a material distortion. The Committee shall then
determine the net gain or loss of the Investment Fund since the preceding
Valuation Date, which shall mean the entire income of the Investment Fund,
including realized and unrealized capital gains and losses, net of any expenses
to be charged to the general Investment Fund and excluding any contributions by
the Employer. The determination of gain or loss shall be consistent with the
balance sheets of the Investment Fund for the current and preceding Valuation
Dates.
8.3 Adjustments for Investment Experience . Any net gain or loss of the
Investment Fund during a Valuation Period, as determined pursuant to Section
8.2, shall be allocated as of the last day of the Valuation Period among the
Participants' Accounts in proportion to the opening balance in each Account, as
adjusted for benefit payments and forfeitures during the Valuation Period,
without regard to whatever Stock may be credited to an Account. Any cash
dividends received on Stock credited to Participant's
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Accounts shall be allocated as of the last day of the Valuation Period among the
Participants' Accounts based on the opening balance in each Participant's Stock
Fund Account.
SECTION 9. VESTING OF PARTICIPANTS' INTERESTS.
9.1 DEFERRED VESTING IN ACCOUNTS. A Participant's vested interest in his
Account shall be based on his Vesting Years in accordance with the following
Table, subject to the balance of this Section 9:
Vesting Percentage of
Years Interest Vested
------- ---------------
Fewer than 5 0%
5 or more 100%
9.2 COMPUTATION OF VESTING YEARS. For purposes of this Plan, a "Vesting
Year" means generally a Plan Year in which an Employee has at least 1,000 Hours
of Service, beginning with the first Plan Year in which the Employee has
completed an Hour of Service with the Employer, and including Service with other
Employers as provided in the definition of "Service". Notwithstanding the above,
an Employee who was employed with Sound Federal Savings and Loan Association, a
federal mutual savings association (the "Mutual Association") which is the
predecessor to the Association, shall receive credit for vesting purposes for
each calendar year of continuous employment with the Mutual Association in which
such Employee completed 1,000 Hours of Service (such years shall also be
referred to as "Vesting Years"). However, a Participant's Vesting Years shall be
computed subject to the following conditions and qualifications:
9.2-1 A Participant's Vesting Years shall not include any Service
prior to the date on which an Employee attains age 18.
9.2-2 A Participant's vested interest in his Account accumulated
before five (5) consecutive Breaks in Service shall be determined without
regard to any Service after such five consecutive Breaks in Service.
Further, if a Participant has five (5) consecutive Breaks in Service
before his interest in his Account has become vested to some extent,
pre-Break years of Service shall not be required to be taken into account
for purposes of determining his post-Break vested percentage.
9.2-3 In the case of a Participant who has 5 or more consecutive
1-year Breaks in Service, the Participant's pre-Break Service will count
in vesting of the Employer-derived post-break accrued benefit only if
either:
(i) such Participant has any nonforfeitable interest in the
accrued benefit attributable to Employer contributions at the
time of separation from Service, or
(ii) upon returning to Service the number of consecutive 1-year
Breaks in Service is less than the number of years of Service.
9.2-4 Unless otherwise specifically excluded, a Participant's
Vesting Years shall include any period of active military duty to the
extent required by the Military Selective Service Act of 1967 (38 U.S.C.
Section 2021).
9.2-5 If any amendment changes the vesting schedule, including an
automatic change to or from a top-heavy vesting schedule, any Participant
with three (3) or more Vesting Years may, by filing a written request with
the Employer, elect to have his vested percentage computed under the
vesting schedule in effect prior to the amendment. The election period
must begin not later than the
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later of sixty (60) days after the amendment is adopted, the amendment
becomes effective, or the Participant is issued written notice of the
amendment by the Employer or the Committee.
9.3 Full Vesting Upon Certain Events .
9.3-1 Notwithstanding Section 9.1, a Participant's interest in his Account
shall fully vest on the Participant's Normal Retirement Date. The Participant's
interest shall also fully vest in the event that his Service is terminated by
Early Retirement, Disability or by death.
9.3-2 The Participant's interest in his Account shall also fully vest in
the event of a "Change in Control" of the Association, or the Company. For these
purposes, "Change in Control" shall mean an event of a nature that; (i) would be
required to be reported in response to Item 1a of the current report on Form
8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act'); or (ii) results in a
Change in Control of the Association or the Company within the meaning of the
Bank Holding Company Act of 1956, as amended, and applicable rules and
regulations promulgated thereunder as in effect at the time of the Change in
Control (collectively, the BHCA"); or (iii) without limitation such a Change in
Control shall be deemed to have occurred at such time as (a) any "Person' (as
the term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Association or the Company
representing 25% or more of the Association's or the Company's outstanding
securities except for any securities of the Association purchased by the Company
in connection with the conversion of the Association to the stock form and any
securities purchased by the Association's employee stock ownership plan and
trust; or (b) individuals who constitute the Board on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, PROVIDED, HOWEVER, that this sub-section (b) shall not apply if the
Incumbent Board is replaced by the appointment by a Federal banking agency of a
conservator or receiver for the Association and, PROVIDED FURTHER that any
person becoming a director subsequent to the date hereof whose election was
approved by a vote of at least two-thirds of the directors comprising the
Incumbent Board or whose nomination for election by the Company's stockholders
was approved by the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (b), considered as though he were a member
of the Incumbent Board; or (c) a reorganization, merger, consolidation, sale of
all or substantially all the assets of the Association or the Company, or
similar transaction in which the Association or Company is not the surviving
institution occurs.
9.3-3 Upon a Change in Control described in 9.3-2, the Plan shall be
terminated and the Plan Administrator shall direct the Trustee to
sell a sufficient amount of Stock from the Unallocated Stock Fund to
repay any outstanding Stock Obligation in full. The proceeds of such
sale shall be used to repay such Stock Obligation. After repayment
of the Stock Obligation, all remaining shares in the Unallocated
Stock Fund (or the proceeds thereof, if applicable) shall be treated
as earnings and shall be allocated in accordance with the
requirements of Section 8.1.
9.4 Full Vesting Upon Plan Termination . Notwithstanding Section 9.1, a
Participant's interest in his Account shall fully vest upon termination of this
Plan or upon the permanent and complete discontinuance of contributions by his
Employer. In the event of a partial termination, the interest of each affected
Participant shall fully vest with respect to that part of the Plan which is
terminated.
9.5 FORFEITURE, REPAYMENT, AND RESTORAL. If a Participant's Service
terminates before his interest in his Account is fully vested, that portion
which has not vested shall be forfeited if he either (i) receives a distribution
of his entire vested interest pursuant to Section 10.1, or (ii) incurs five (5)
consecutive one year Breaks in Service. If a Participant's Service terminates
prior to having any portion of his Account
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become vested, such Participant shall be deemed to have received a distribution
of his vested interest as of the Valuation Date next following his termination
of Service.
If a Participant who has received his entire vested interest returns to
Service before he has five (5) consecutive Breaks in Service, he may repay to
the Trustee an amount equal to the distribution. The Participant may repay such
amount at any time within five years after he has returned to Service. The
amount shall be credited to his Account at the time it is repaid; an additional
amount equal to that portion of his Account which was previously forfeited shall
be restored to his Account at the same time from other Employees' forfeitures
and, if such forfeitures are insufficient, from a special contribution by his
Employer for that year. A Participant who was deemed to have received a
distribution of his vested interest in the Plan shall have his Account restored
as of the first day on which he performs an Hour of Service after his return.
9.6 Accounting for Forfeitures . If a portion of a Participant's Account
is forfeited, Stock allocated to said Participant's Account shall be forfeited
only after other assets are forfeited. If interests in more than one class of
Stock have been allocated to a Participant's Account, the Participant must be
treated as forfeiting the same proportion of each class of Stock. A forfeiture
shall be charged to the Participant's Account as of the first day of the first
Valuation Period in which the forfeiture becomes certain pursuant to Section
9.5. Except as otherwise provided in that Section, a forfeiture shall be added
to the contributions of the terminated Participant's Employer which are to be
credited to other Participants pursuant to Section 4.1 as of the last day of the
Plan Year in which the forfeiture becomes certain.
9.7 Vesting and Nonforfeitability . A Participant's interest in his
Account which has become vested shall be nonforfeitable for any reason.
SECTION 10. PAYMENT OF BENEFITS.
10.1 BENEFITS FOR PARTICIPANTS. For a Participant whose Service ends for
any reason, distribution will be made to or for the benefit of the Participant
or, in the case of the Participant's death, his Beneficiary, by either, or a
combination of the following methods:
10.1.1 By payment in a lump sum, in accordance with Section 10.2; or
10.1.2 By payment in a series of substantially equal annual
installments over a period not to exceed five (5) years, provided
the maximum period over which the distribution of a Participant's
Account may be made shall be extended by 1 year, up to five (5)
additional years, for each $145,000 (or fraction thereof) by which
such Participant's Account balance exceeds $725,000 (the
aforementioned figures are subject to cost-of-living adjustments
prescribed by the Secretary of the Treasury pursuant to Section
409(o)(2) of the Code).
The Participant shall elect the manner in which his vested
Account balance will be distributed to him. If a Participant so
desires, he may direct how his benefits are to be paid to his
Beneficiary. If a deceased Participant did not file a direction with
the Committee, the Participant's benefits shall be distributed to
his Beneficiary in a lump sum. Notwithstanding any provision to the
contrary, if the value of a Participant's vested Account balance at
the time of any distribution, does not equal or exceed $5,000, then
such Participant's vested Account shall be distributed in a lump sum
within 60 days after the end of the Plan Year in which employment
terminates. If the value of a Participant's vested Account balance
is, or has ever been, in excess of $5,000, then his benefits shall
not be paid prior to the later of the time he has attained Normal
Retirement or age 62 unless he elects an early payment date in a
written election filed with the Committee. A Participant may modify
such an election at any time, provided any new benefit payment date
is at least 30 days after a modified election is delivered to the
Committee. Failure of a Participant to consent to a
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distribution prior to the later of Normal Retirement or age 62 shall
be deemed to be an election to defer commencement of payment of any
benefit under this section.
10.2 Time for Distribution .
10.2.1 If the Participant and, if applicable, with the consent
of the Participant's spouse, elects the distribution of the
Participant's Account balance in the Plan, distribution shall
commence as soon as practicable following his termination of
Service, but no later than one year after the close of the Plan
Year:
(i) in which the Participant separates from service by
reason of attainment of Normal Retirement Age under the
Plan, Disability, or death; or
(ii) which is the fifth Plan Year following the year in which
the Participant resigns or is dismissed, unless he is
reemployed before such date.
10.2.2 Unless the Participant elects otherwise, the
distribution of the balance of a Participant's Account shall commence not later
than the 60th day after the latest of the close of the Plan Year in which -
(i) the Participant attains the age of 65;
(ii) occurs the tenth anniversary of the year in which the
Participant commenced participation in the Plan; or
(iii) the Participant terminates his Service with the
Employer.
10.2.3 Notwithstanding anything to the contrary, (1) with respect to
a 5-percent owner (as defined in Code Section 416), distribution of a
Participant's Account shall commence (whether or not he remains in the
employ of the Employer) not later than the April 1 of the calendar year
next following the calendar year in which the Participant attains age 70-
1/2, and (2) with respect to all other Participants, payment of a
Participant's benefit will commence not later than April 1 of the calendar
year following the calendar year in which the Participant attains age
70-1/2, or, if later, the year in which the Participant retires. A
Participant's benefit from that portion of his Account committed to the
Investment Fund shall be calculated on the basis of the most recent
Valuation Date before the date of payment.
10.2.4 Distribution of a Participant's Account balance after his
death shall comply with the following requirements:
(i) If a Participant dies before his distributions have
commenced, distribution of his Account to his Beneficiary shall
commence not later than one year after the end of the Plan Year in
which the Participant died, however, if the Participant's
Beneficiary is his surviving Spouse, distributions may commence on
the date on which the Participant would have attained age 70-1/2. In
either case, distributions shall be completed within five years
after the they commence.
(ii) If the Participant dies after distribution has commenced
pursuant to Section 10.1.2 but before his entire interest in the
Plan has been distributed to him, then the remaining portion of that
interest shall, in accordance with Section 401(a)(9) of the Code,
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be distributed at least as rapidly as under the method of
distribution being used under Section 10.1.2 at the date of his
death.
(iii) If a married Participant dies before his benefit
payments begin, then unless he has specifically elected otherwise
the Committee shall cause the balance in his Account to be paid to
his Spouse. No election by a married Participant of a different
Beneficiary shall be valid unless the election is accompanied by the
Spouse's written consent, which (i) must acknowledge the effect of
the election, (ii) must explicitly provide either that the
designated Beneficiary may not subsequently be changed by the
Participant without the Spouse's further consent, or that it may be
changed without such consent, and (iii) must be witnessed by the
Committee, its representative, or a notary public. (This requirement
shall not apply if the Participant establishes to the Committee's
satisfaction that the Spouse may not be located.)
10.3 MARITAL STATUS. The Committee shall from time to time take whatever
steps it deems appropriate to keep informed of each Participant's marital
status. Each Employer shall provide the Committee with the most reliable
information in the Employer's possession regarding its Participants' marital
status, and the Committee may, in its discretion, require a notarized affidavit
from any Participant as to his marital status. The Committee, the Plan, the
Trustee, and the Employers shall be fully protected and discharged from any
liability to the extent of any benefit payments made as a result of the
Committee's good faith and reasonable reliance upon information obtained from a
Participant and his Employer as to his marital status.
10.4 DELAY IN BENEFIT DETERMINATION . If the Committee is unable to
determine the benefits payable to a Participant or Beneficiary on or before the
latest date prescribed for payment pursuant to Section 10.1 or 10.2, the
benefits shall in any event be paid within 60 days after they can first be
determined, with whatever makeup payments may be appropriate in view of the
delay.
10.5 ACCOUNTING FOR BENEFIT PAYMENTS. Any benefit payment shall be
charged to the Participant's Account as of the first day of the Valuation Period
in which the payment is made.
10.6 OPTIONS TO RECEIVE AND SELL STOCK. Unless ownership of virtually all
Stock is restricted to active Employees and qualified retirement plans for the
benefit of Employees pursuant to the certificates of incorporation or by-laws of
the Employers issuing Stock, a terminated Participant or the Beneficiary of a
deceased Participant may instruct the Committee to distribute the Participant's
entire vested interest in his Account in the form of Stock. In that event, the
Committee shall apply the Participant's vested interest in the Investment Fund
to purchase sufficient Stock from the Stock Fund or from any owner of Stock to
make the required distribution. In all other cases, the Participant's vested
interest in the Stock Fund shall be distributed in shares of Stock, and his
vested interest in the Investment Fund shall be distributed in cash.
Any Participant who receives Stock pursuant to Section 10.1, and any
person who has received Stock from the Plan or from such a Participant by reason
of the Participant's death or incompetency, by reason of divorce or separation
from the Participant, or by reason of a rollover contribution described in
Section 402(a)(5) of the Code, shall have the right to require the Employer
which issued the Stock to purchase the Stock for its current fair market value
(hereinafter referred to as the "put right"). The put right shall be exercisable
by written notice to the Committee during the first 60 days after the Stock is
distributed by the Plan, and, if not exercised in that period, during the first
60 days in the following Plan Year after the Committee has communicated to the
Participant its determination as to the Stock's current fair market value.
However, the put right shall not apply to the extent that the Stock, at the time
the put right would otherwise be exercisable, may be sold on an established
market in accordance with federal and state securities laws and regulations.
Similarly, the put option shall not apply with respect to the portion of a
Participant's Account
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which the Employee elected to have reinvested under Code Section 401(a)(28)(B).
If the put right is exercised, the Trustee may, if so directed by the Committee
in its sole discretion, assume the Employer's rights and obligations with
respect to purchasing the Stock. Notwithstanding anything herein to the
contrary, in the case of a plan established by a Association (as defined in Code
Section 581), the put option shall not apply if prohibited by a federal or state
law and Participants are entitled to elect their benefits be distributed in
cash.
If a Participant elects to receive his distribution in the form of a lump
sum pursuant to Section 10.1.1 of the Plan, the Employer or the Trustee, as the
case may be, may elect to pay for the Stock in equal periodic installments, not
less frequently than annually, over a period not longer than five years from the
day after the put right is exercised, with adequate security and interest at a
reasonable rate on the unpaid balance, all such terms to be set forth in a
promissory note delivered to the seller with normal terms as to acceleration
upon any uncured default.
If a Participant elects to receive his distribution in the form of an
installment payment pursuant to Section 10.1.2 of the Plan, the Employer or the
Trustee, as the case may be, shall pay for the Stock distributed in the
installment distribution over a period which shall not exceed 30 days after the
exercise of the put right.
Nothing contained herein shall be deemed to obligate any Employer to
register any Stock under any federal or state securities law or to create or
maintain a public market to facilitate the transfer or disposition of any Stock.
The put right described herein may only be exercised by a person described in
the second preceding paragraph, and may not be transferred with any Stock to any
other person. As to all Stock purchased by the Plan in exchange for any Stock
Obligation, the put right shall be nonterminable. The put right for Stock
acquired through a Stock Obligation shall continue with respect to such Stock
after the Stock Obligation is repaid or the Plan ceases to be an employee stock
ownership plan.
10.7 RESTRICTIONS ON DISPOSITION OF STOCK. Except in the case of Stock
which is traded on an established market, a Participant who receives Stock
pursuant to Section 10.1, and any person who has received Stock from the Plan or
from such a Participant by reason of the Participant's death or incompetency, by
reason of divorce or separation from the Participant, or by reason of a rollover
contribution described in Section 402(a)(5) of the Code, shall, prior to any
sale or other transfer of the Stock to any other person, first offer the Stock
to the issuing Employer and to the Plan at the greater of (i) its current fair
market value, or (ii) the purchase price offered in good faith by an independent
third party purchaser. This restriction shall apply to any transfer, whether
voluntary, involuntary, or by operation of law, and whether for consideration or
gratuitous. Either the Employer or the Trustee may accept the offer within 14
days after it is delivered. Any Stock distributed by the Plan shall bear a
conspicuous legend describing the right of first refusal under this Section
10.7, as well as any other restrictions upon the transfer of the Stock imposed
by federal and state securities laws and regulations.
10.8 CONTINUING LOAN PROVISIONS; CREATIONS OF PROTECTIONS AND RIGHTS.
Except as otherwise provided in Sections 10.6 and 10.7 and this Section, no
shares of Employer Stock held or distributed by the Trustee may be subject to a
put, call or other option, or buy-sell arrangement. The provisions of this
Section shall continue to by applicable to such Stock even if the Plan ceases to
be an employee stock ownership plan under Section 4975(e)(7) of the Code.
10.9 DIRECT ROLLOVER OF ELIGIBLE DISTRIBUTION. A Participant or
distributee may elect, at the time and in the manner prescribed by the Trustee
or the Committee, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the Participant or
distributee in a direct rollover.
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10.9-1 An "eligible rollover" is any distribution that does not
include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life
(or life expectancy) of the distributee or the joint lives (or joint life
expectancies) of the Participant and the Participant's Beneficiary, or for
a specified period of ten years or more; any distribution to the extent
such distribution is required under Code Section 401(a)(9); and the
portion of any distribution that is not included in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
10.9-2 An "eligible retirement plan" is an individual retirement
account described in Code Section 401(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan described in Code
Section 403(a), or a qualified trust described in Code Section 401(a),
that accepts the distributee's eligible rollover distribution. However, in
the case of an eligible rollover distribution to the surviving Spouse, an
eligible retirement plan is an individual retirement account or individual
retirement annuity.
10.9-3 A "direct rollover" is a payment by the Plan to the eligible
retirement plan specified by the distributee.
10.9-4 The term "distributee" shall refer to a deceased
Participant's Spouse or a Participant's former Spouse who is the alternate
payee under a qualified domestic relations order, as defined in Code
Section 414(p).
10.10 WAIVER OF 30 DAY PERIOD AFTER NOTICE OF DISTRIBUTION. If a
distribution is one to which Sections 401(a)(11) and 417 of the Code do not
apply, such distribution may commence less than 30 days after the notice
required under Section 4.11(a)-11(c) of the Income Tax Regulations is given,
provided that:
(i) the Trustee or Administrative Committee, as applicable,
clearly informs the Participant that the Participant has
a right to a period of at least 30 days after receiving
the notice to consider the decision of whether or not to
elect a distribution (and, if applicable, a particular
option), and
(ii) the Participant, after receiving the notice,
affirmatively elects a distribution.
Section 11. RULES GOVERNING BENEFIT CLAIMS AND REVIEW OF APPEALS.
11.1 CLAIM FOR BENEFITS. Any Participant or Beneficiary who qualifies for
the payment of benefits shall file a claim for his benefits with the Committee
on a form provided by the Committee. The claim, including any election of an
alternative benefit form, shall be filed at least 30 days before the date on
which the benefits are to begin. If a Participant or Beneficiary fails to file a
claim by the day before the date on which benefits become payable, he shall be
presumed to have filed a claim for payment for the Participant's benefits in the
standard form prescribed by Sections 10.1 or 10.2
11.2 NOTIFICATION BY COMMITTEE. Within 90 days after receiving a claim
for benefits (or within 180 days, if special circumstances require an extension
of time and written notice of the extension is given to the Participant or
Beneficiary within 90 days after receiving the claim for benefits), the
Committee shall notify the Participant or Beneficiary whether the claim has been
approved or denied. If the Committee denies a claim in any respect, the
Committee shall set forth in a written notice to the Participant or Beneficiary:
(i) each specific reason for the denial;
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(ii) specific references to the pertinent Plan provisions on which
the denial is based;
(iii) a description of any additional material or information which
could be submitted by the Participant or Beneficiary to support his claim,
with an explanation of the relevance of such information; and
(iv) an explanation of the claims review procedures set forth in
Section 11.3.
11.3 CLAIMS REVIEW PROCEDURE. Within 60 days after a Participant or
Beneficiary receives notice from the Committee that his claim for benefits has
been denied in any respect, he may file with the Committee a written notice of
appeal setting forth his reasons for disputing the Committee's determination. In
connection with his appeal the Participant or Beneficiary or his representative
may inspect or purchase copies of pertinent documents and records to the extent
not inconsistent with other Participants' and Beneficiaries' rights of privacy.
Within 60 days after receiving a notice of appeal from a prior determination (or
within 120 days, if special circumstances require an extension of time and
written notice of the extension is given to the Participant or Beneficiary and
his representative within 60 days after receiving the notice of appeal), the
Committee shall furnish to the Participant or Beneficiary and his
representative, if any, a written statement of the Committee's final decision
with respect to his claim, including the reasons for such decision and the
particular Plan provisions upon which it is based.
SECTION 12. THE COMMITTEE AND ITS FUNCTIONS.
12.1 AUTHORITY OF COMMITTEE. The Committee shall be the "plan
administrator" within the meaning of ERISA and shall have exclusive
responsibility and authority to control and manage the operation and
administration of the Plan, including the interpretation and application of its
provisions, except to the extent such responsibility and authority are otherwise
specifically (i) allocated to the Association, the Employers, or the Trustee
under the Plan and Trust Agreement, (ii) delegated in writing to other persons
by the Association, the Employers, the Committee, or the Trustee, or (iii)
allocated to other parties by operation of law. The Committee shall have
exclusive responsibility regarding decisions concerning the payment of benefits
under the Plan. The Committee shall have no investment responsibility with
respect to the Investment Fund except to the extent, if any, specifically
provided in the Trust Agreement. In the discharge of its duties, the Committee
may employ accountants, actuaries, legal counsel, and other agents (who also may
be employed by an Employer or the Trustee in the same or some other capacity)
and may pay their reasonable expenses and compensation.
12.2 IDENTITY OF COMMITTEE. The Committee shall consists of three or more
individuals selected by the Association. Any individual, including a director,
trustee, shareholder, officer, or Employee of an Employer, shall be eligible to
serve as a member of the Committee. The Association shall have the power to
remove any individual serving on the Committee at any time without cause upon 10
days written notice, and any individual may resign from the Committee at any
time upon 10 days written notice to the Association. The Association shall
notify the Trustee of any change in membership of the Committee.
12.3 DUTIES OF COMMITTEE. The Committee shall keep whatever records may
be necessary to implement the Plan and shall furnish whatever reports may be
required from time to time by the Association. The Committee shall furnish to
the Trustee whatever information may be necessary to properly administer the
Trust. The Committee shall see to the filing with the appropriate government
agencies of all reports and returns required of the plan Committee under ERISA
and other laws.
Further, the Committee shall have exclusive responsibility and authority
with respect to the Plan's holdings of Stock and shall direct the Trustee in all
respects regarding the purchase, retention, sale, exchange, and pledge of Stock
and the creation and satisfaction of Stock Obligations. The Committee shall at
all times
-23-
act consistently with the Association's long-term intention that the Plan, as an
employee stock ownership plan, be invested primarily in Stock. Subject to the
direction of the Board as to the application of Employer contributions to Stock
Obligations, and subject to the provisions of Sections 6.4 and 10.6 as to
Participants' rights under certain circumstances to have their Accounts invested
in Stock or in assets other than Stock, the Committee shall determine in its
sole discretion the extent to which assets of the Trust shall be used to repay
Stock Obligations, to purchase Stock, or to invest in other assets to be
selected by the Trustee or an investment manager. No provision of the Plan
relating to the allocation or vesting of any interests in the Stock Fund or the
Investment Fund shall restrict the Committee from changing any holdings of the
Trust, whether the changes involve an increase or a decrease in the Stock or
other assets credited to Participants' Accounts. In determining the proper
extent of the Trust's investment in Stock, the Committee shall be authorized to
employ investment counsel, legal counsel, appraisers, and other agents to pay
their reasonable expenses and compensation.
12.4 VALUATION OF STOCK. If the valuation of any Stock is not established
by reported trading on a generally recognized public market, the valuation of
such Stock shall be determined by an independent appraiser. For purposes of the
preceding sentence, the term "independent appraiser" means any appraiser meeting
requirements similar to the requirements of the regulations prescribed under
Section 170(a)(1) of the Code.
12.5 COMPLIANCE WITH ERISA. The Committee shall perform all acts
necessary to comply with ERISA. Each individual member or employee of the
Committee shall discharge his duties in good faith and in accordance with the
applicable requirements of ERISA.
12.6 ACTION BY COMMITTEE. All actions of the Committee shall be governed
by the affirmative vote of a number of members which is a majority of the total
number of members currently appointed, including vacancies. The members of the
Committee may meet informally and may take any action without meeting as a
group.
12.7 EXECUTION OF DOCUMENTS. Any instrument executed by the Committee
shall be signed by any member or employee of the Committee.
12.8 ADOPTION OF RULES. The Committee shall adopt such rules and
regulations of uniform applicability as it deems necessary or appropriate for
the proper administration and interpretation of the Plan.
12.9 RESPONSIBILITIES TO PARTICIPANTS. The Committee shall determine
which Employees qualify to enter the Plan. The Committee shall furnish to each
eligible Employee whatever summary plan descriptions, summary annual reports,
and other notices and information may be required under ERISA. The Committee
also shall determine when a Participant or his Beneficiary qualifies for the
payment of benefits under the Plan. The Committee shall furnish to each such
Participant or Beneficiary whatever information is required under ERISA (or is
otherwise appropriate) to enable the Participant or Beneficiary to make whatever
elections may be available pursuant to Sections 6 and 10, and the Committee
shall provide for the payment of benefits in the proper form and amount from the
assets of the Trust Fund. The Committee may decide in its sole discretion to
permit modifications of elections and to defer or accelerate benefits to the
extent consistent with applicable law and the best interests of the individuals
concerned.
12.10 ALTERNATIVE PAYEES IN EVENT OF INCAPACITY. If the Committee finds at
any time that an individual qualifying for benefits under this Plan is a minor
or is incompetent, the Committee may direct the benefits to be paid, in the case
of a minor, to his parents, his legal guardian, or a custodian for him under the
Uniform Gifts to Minors Act, or, in the case of an incompetent, to his spouse,
or his legal guardian, the payments to be used for the individual's benefit. The
Committee and the Trustee shall not be obligated to inquire as to the actual use
of the funds by the person receiving them under this Section 12.10, and any such
-24-
payment shall completely discharge the obligations of the Plan, the Trustee, the
Committee, and the Employers to the extent of the payment.
12.11 INDEMNIFICATION BY EMPLOYERS. Except as separately agreed in
writing, the Committee, and any member or employee of the Committee, shall be
indemnified and held harmless by the Employer, jointly and severally, to the
fullest extent permitted by ERISA, and subject to and conditioned upon
compliance with 12 C.F.R. Section 545.121, to the extent applicable, against any
and all costs, damages, expenses, and liabilities reasonably incurred by or
imposed upon it or him in connection with any claim made against it or him or in
which it or he may be involved by reason of its or his being, or having been,
the Committee, or a member or employee of the Committee, to the extent such
amounts are not paid by insurance.
12.12 NONPARTICIPATION BY INTERESTED MEMBER. Any member of the Committee
who also is a Participant in the Plan shall take no part in any determination
specifically relating to his own participation or benefits, unless his
abstention would leave the Committee incapable of acting on the matter.
SECTION 13. ADOPTION, AMENDMENT, OR TERMINATION OF THE PLAN.
13.1 ADOPTION OF PLAN BY OTHER EMPLOYERS. With the consent of the
Association, any entity may become a participating Employer under the Plan by
(i) taking such action as shall be necessary to adopt the Plan, (ii) becoming a
party to the Trust Agreement establishing the Trust Fund, and (iii) executing
and delivering such instruments and taking such other action as may be necessary
or desirable to put the Plan into effect with respect to the entity's Employees.
13.2 PLAN ADOPTION SUBJECT TO QUALIFICATION. Notwithstanding any other
provision of the Plan, the adoption of the Plan and the execution of the Trust
Agreement are conditioned upon their being determined initially by the Internal
Revenue Service to meet the qualification requirements of Section 401(a) of the
Code, so that the Employers may deduct currently for federal income tax purposes
their contributions to the Trust and so that the Participants may exclude the
contributions from their gross income and recognize income only when they
receive benefits. In the event that this Plan is held by the Internal Revenue
Service not to qualify initially under Section 401(a), the Plan may be amended
retroactively to the earliest date permitted by U.S. Treasury Regulations in
order to secure qualification under Section 401(a). If this Plan is held by the
Internal Revenue Service not to qualify initially under Section 401(a) either as
originally adopted or as amended, each Employer's contributions to the Trust
under this Plan (including any earnings thereon) shall be returned to it and
this Plan shall be terminated. In the event that this Plan is amended after its
initial qualification and the Plan as amended is held by the Internal Revenue
Service not to qualify under Section 401(a), the amendment may be modified
retroactively to the earliest date permitted by U.S. Treasury Regulations in
order to secure approval of the amendment under Section 401(a).
13.3 RIGHT TO AMEND OR TERMINATE. The Association intends to continue
this Plan as a permanent program. However, each participating Employer
separately reserves the right to suspend, supersede, or terminate the Plan at
any time and for any reason, as it applies to that Employer's Employees, and the
Association reserves the right to amend, suspend, supersede, merge, consolidate,
or terminate the Plan at any time and for any reason, as it applies to the
Employees of each Employer. No amendment, suspension, supersession, merger,
consolidation, or termination of the Plan shall (i) reduce any Participant's or
Beneficiary's proportionate interest in the Trust Fund, (ii) reduce or restrict,
either directly or indirectly, the benefit provided any Participant prior to the
amendment, or (iii) divert any portion of the Trust Fund to purposes other than
the exclusive benefit of the Participants and their Beneficiaries prior to the
satisfaction of all liabilities under the Plan. Moreover, there shall not be any
transfer of assets to a successor plan or merger or consolidation with another
plan unless, in the event of the termination of the successor plan or the
surviving plan immediately following such transfer, merger, or consolidation,
each participant or beneficiary
-25-
would be entitled to a benefit equal to or greater than the benefit he would
have been entitled to if the plan in which he was previously a participant or
beneficiary had terminated immediately prior to such transfer, merger, or
consolidation. Following a termination of this Plan by the Association, the
Trustee shall continue to administer the Trust and pay benefits in accordance
with the Plan as amended from time to time and the Committee's instructions.
SECTION 14. MISCELLANEOUS PROVISIONS.
14.1 PLAN CREATES NO EMPLOYMENT RIGHTS. Nothing in this Plan shall be
interpreted as giving any Employee the right to be retained as an Employee by an
Employer, or as limiting or affecting the rights of an Employer to control its
Employees or to terminate the Service of any Employee at any time and for any
reason, subject to any applicable employment or collective bargaining
agreements.
14.2 NONASSIGNABILITY OF BENEFITS. No assignment, pledge, or other
anticipation of benefits from the Plan will be permitted or recognized by the
Employer, the Committee, or the Trustee. Moreover, benefits from the Plan shall
not be subject to attachment, garnishment, or other legal process for debts or
liabilities of any Participant or Beneficiary, to the extent permitted by law.
This prohibition on assignment or alienation shall apply to any judgment,
decree, or order (including approval of a property settlement agreement) which
relates to the provision of child support, alimony, or property rights to a
present or former spouse, child or other dependent of a Participant pursuant to
a state domestic relations or community property law, unless the judgment,
decree, or order is determined by the Committee to be a qualified domestic
relations order within the meaning of Section 414(p) of the Code, as more fully
set forth in Section 14.2 hereof.
14.3 LIMIT OF EMPLOYER LIABILITY. The liability of the Employer with
respect to Participants under this Plan shall be limited to making contributions
to the Trust from time to time, in accordance with Section 4.
14.4 TREATMENT OF EXPENSES. All expenses incurred by the Committee and
the Trustee in connection with administering this Plan and Trust Fund shall be
paid by the Trustee from the Trust Fund to the extent the expenses have not been
paid or assumed by the Employer or by the Trustee.
14.5 NUMBER AND GENDER. Any use of the singular shall be interpreted to
include the plural, and the plural the singular. Any use of the masculine,
feminine, or neuter shall be interpreted to include the masculine, feminine, or
neuter, as the context shall require.
14.6 NONDIVERSION OF ASSETS. Except as provided in Sections 5.3 and 13.3,
under no circumstances shall any portion of the Trust Fund be diverted to or
used for any purpose other than the exclusive benefit of the Participants and
their Beneficiaries prior to the satisfaction of all liabilities under the Plan.
14.7 SEPARABILITY OF PROVISIONS. If any provision of this Plan is held to
be invalid or unenforceable, the other provisions of the Plan shall not be
affected but shall be applied as if the invalid or unenforceable provision had
not been included in the Plan.
14.8 SERVICE OF PROCESS. The agent for the service of process upon the
Plan shall be the president of the Association, or such other person as may be
designated from time to time by the Association.
14.9 GOVERNING STATE LAW. This Plan shall be interpreted in accordance
with the laws of the State of New York to the extent those laws are applicable
under the provisions of ERISA.
-26-
14.10 EMPLOYER CONTRIBUTIONS CONDITIONED ON DEDUCTIBILITY. Employer
Contributions to the Plan are conditioned on deductibility under Code Section
404. In the event that the Internal Revenue Service shall determine that all or
any portion of an Employer Contribution is not deductible under that Section,
the nondeductible portion shall be returned to the Employer within one year of
the disallowance of the deduction.
14.11 UNCLAIMED ACCOUNTS. Neither the Employer nor the Trustees shall be
under any obligation to search for, or ascertain the whereabouts of, any
Participant or Beneficiary. The Employer or the Trustees, by certified or
registered mail addressed to his last known address of record with the Employer,
shall notify any Participant or Beneficiary that he is entitled to a
distribution under this Plan, and the notice shall quote the provisions of this
Section. If the Participant or Beneficiary fails to claim his benefits or make
his whereabouts known in writing to the Employer or the Trustees within seven
(7) calendar years after the date of notification, the benefits of the
Participant or Beneficiary under the Plan will be disposed of as follows:
(a) If the whereabouts of the Participant is unknown but the
whereabouts of the Participant's Beneficiary is known to the Trustees,
distribution will be made to the Beneficiary.
(b) If the whereabouts of the Participant and his Beneficiary are
unknown to the Trustees, the Plan will forfeit the benefit, provided that
the benefit is subject to a claim for reinstatement if the Participant or
Beneficiary make a claim for the forfeited benefit.
Any payment made pursuant to the power herein conferred upon the Trustees
shall operate as a complete discharge of all obligations of the Trustees, to the
extent of the distributions so made.
14.12 QUALIFIED DOMESTIC RELATIONS ORDER. Section 14.2 shall not apply to
a "qualified domestic relations order" defined in Code Section 414(p), and such
other domestic relations orders permitted to be so treated under the provisions
of the Retirement Equity Act of 1984. Further, to the extent provided under a
"qualified domestic relations order", a former Spouse of a Participant shall be
treated as the Spouse or surviving Spouse for all purposes under the Plan.
In the case of any domestic relations order received by the Plan:
(a) The Employer or the Plan Committee shall promptly notify the
Participant and any other alternate payee of the receipt of such order and
the Plan's procedures for determining the qualified status of domestic
relations orders, and
(b) Within a reasonable period after receipt of such order, the
Employer or the Plan Committee shall determine whether such order is a
qualified domestic relations order and notify the Participant and each
alternate payee of such determination. The Employer or the Plan Committee
shall establish reasonable procedures to determine the qualified status of
domestic relations orders and to administer distributions under such
qualified orders.
During any period in which the issue of whether a domestic relations order
is a qualified domestic relations order is being determined (by the Employer or
Plan Committee, by a court of competent jurisdiction, or otherwise), the
Employer or the Plan Committee shall segregate in a separate account in the Plan
or in an escrow account the amounts which would have been payable to the
alternate payee during such period if the order had been determined to be a
qualified domestic relations order. If within eighteen (18) months the order (or
modification thereof) is determined to be a qualified domestic relations order,
the Employer or the Plan Committee shall pay the segregated amounts (plus any
interest thereon) to the person or persons entitled thereto. If within eighteen
(18) months it is determined that the order is not a qualified domestic
relations order, or the issue as to whether such order is a qualified domestic
relations order is not resolved, then the Employer or the Plan Committee shall
pay the segregated amounts (plus any interest
-27-
thereon) to the person or persons who would have been entitled to such amounts
if there had been no order. Any determination that an order is a qualified
domestic relations order which is made after the close of the eighteen (18)
month period shall be applied prospectively only. The term "alternate payee"
means any Spouse, former Spouse, child or other dependent of a Participant who
is recognized by a domestic relations order as having a right to receive all, or
a portion of, the benefit payable under a Plan with respect to such Participant.
SECTION 15. TOPHEAVY PROVISIONS.
15.1 TOP-HEAVY PLAN. For any Plan Year beginning after December 31, 1983,
this Plan is top-heavy if any of the following conditions exist:
(a) If the top-heavy ratio for this Plan exceeds sixty percent
(60%) and this Plan is not part of any required aggregation group or permissive
aggregation group;
(b) If this Plan is a part of a required aggregation group (but is
not part of a permissive aggregation group) and the aggregate top-heavy ratio
for the group of Plans exceeds sixty percent (60%); or
(c) If this Plan is a part of a required aggregation group and
part of a permissive aggregation group and the aggregate top-heavy ratio for the
permissive aggregation group exceeds sixty percent (60%).
15.2 SUPER TOP-HEAVY PLAN For any Plan Year beginning after December 31,
1983, this Plan will be a super top-heavy Plan if any of the following
conditions exist:
(a) If the top-heavy ratio for this Plan exceeds ninety percent
(90%) and this Plan is not part of any required aggregation group or permissive
aggregation group.
(b) If this Plan is a part of a required aggregation group (but is
not part of a permissive aggregation group) and the aggregate top-heavy ratio
for the group of Plans exceeds ninety percent (90%), or
(c) If this Plan is a part of a required aggregation group and
part of a permissive aggregation group and the aggregate top-heavy ratio for the
permissive aggregation group exceeds ninety percent (90%).
15.3 DEFINITIONS.
In making this determination, the Committee shall use the following definitions
and principles:
15.3-1 The "Determination Date", with respect to the first Plan Year
of any plan, means the last day of that Plan Year, and with respect to
each subsequent Plan Year, means the last day of the preceding Plan Year.
If any other plan has a Determination Date which differs from this Plan's
Determination Date, the top-heaviness of this Plan shall be determined on
the basis of the other plan's Determination Date falling within the same
calendar years as this Plan's Determination Date.
15.3-2 A "Key Employee", with respect to a Plan Year, means an
Employee who at any time during the five years ending on the top-heavy
Determination Date for the Plan Year has received compensation from an
Employer and has been (i) an officer of the Employer having 415
Compensation greater than 50 percent of the limit then in effect under
Section 415(b)(1)(A) of the Code, (ii) one of the 10 Employees owning the
largest interests in the Employer having 415 Compensation greater than the
limit then in effect under Section 415(c)(1)(A), (iii) an owner of more
than five percent of the outstanding equity interest or the outstanding
voting interest in any
-28-
Employer, or (iv) an owner of more than one percent of the outstanding
equity interest or the outstanding voting interest in an Employer whose
annual compensation exceeds $150,000. For purposes of determining whether
an Employee is a Key Employee, annual compensation means compensation as
defined in Section 415(c)(3) of the Code, but including amounts
contributed by the Employee pursuant to a salary reduction agreement which
are excludable from the Employee's gross income under Section 125, Section
402(e)(3), Section 402(H)(1)(B) or Section 403(b) of the Code. The
Beneficiary of a Key Employee shall also be considered a Key Employee.
15.3-3 A "Non-key Employee" means an Employee who at any time during
the five years ending on the top-heavy Determination Date for the Plan
Year has received compensation from an Employer and who has never been a
Key Employee, and the Beneficiary of any such Employee.
15.3-4 A "required aggregation group" includes (a) each qualified
Plan of the Employer in which at least one Key Employee participates in
the Plan Year containing the Determination Date and any of the four (4)
preceding Plan Years, and (b) any other qualified Plan of the Employer
which enables a Plan described in (a) to meet the requirements of Code
Sections 401(a)(4) and 410. For purposes of the preceding sentence, a
qualified Plan of the Employer includes a terminated Plan maintained by
the Employer within the five (5) year period ending on the Determination
Date. In the case of a required aggregation group, each Plan in the group
will be considered a top-heavy Plan if the required aggregation group is a
top-heavy group. No Plan in the required aggregation group will be
considered a top-heavy Plan if the required aggregation group is not a
top-heavy group. All Employers aggregated under Code Sections 414(b), (c)
or (m) or (o) (but only after the Code Section 414(o) regulations become
effective) are considered a single Employer.
15.3-5 A "permissive aggregation group" includes the required
aggregation group of Plans plus any other qualified Plan(s) of the
Employer that are not required to be aggregated but which, when considered
as a group with the required aggregation group, satisfy the requirements
of Code Sections 401(a)(4) and 410 and are comparable to the Plans in the
required aggregation group. No Plan in the permissive aggregation group
will be considered a top-heavy Plan if the permissive aggregation group is
not a top-heavy group. Only a Plan that is part of the required
aggregation group will be considered a top-heavy Plan if the permissive
aggregation group is top-heavy.
15.4 TOP-HEAVY RULES OF APPLICATION.
For purposes of determining the value of Account balances and the
present value of accrued benefits the following provisions shall apply:
15.4-1 The value of Account balances and the present value of
accrued benefits will be determined as of the most recent Valuation Date
that falls within or ends with the twelve (12) month period ending on the
Determination Date.
15.4-2 For purposes of testing whether this Plan is top-heavy, the
present value of an individual's accrued benefits and an individual's
Account balances is counted only once each year.
15.4-3 The Account balances and accrued benefits of a Participant
who is not presently a Key Employee but who was a Key Employee in a Plan
Year beginning on or after January 1, 1984 will be disregarded.
15.4-4 For years beginning after December 31, 1984, Employer
contributions attributable to a salary reduction or similar arrangement
will be taken into account.
-29-
15.4-5 When aggregating Plans, the value of Account balances and
accrued benefits will be calculated with reference to the Determination
Dates that fall within the same calendar year.
15.4-6 The present value of the accrued benefits or the amount of
the Account balances of an Employee shall be increased by the aggregate
distributions made to such Employee from a Plan of the Employer. No
distribution, however, made from the Plan to an individual (other than the
Beneficiary of a deceased Employee who was an Employee within the five (5)
year period ending on the Determination Date) who has not been an Employee
at any time during the five (5) year period ending on the Determination
Date shall be taken into account in determining whether the Plan is
top-heavy. Also, any amounts recontributed by an Employee upon becoming a
Participant in the Plan shall no longer be counted as a distribution under
this paragraph.
15.4-7 The present value of the accrued benefits or the amount of
the Account balances of an Employee shall be increased by the aggregate
distributions made to such Employee from a terminated Plan of the
Employer, provided that such Plan (if not terminated) would have been
required to be included in the aggregation group.
15.4-8 Accrued benefits and Account balances of an individual shall
not be taken into account for purposes of determining the top-heavy ratios
if the individual has performed no services for the Employer during the
five (5) year period ending on the applicable Determination Date.
Compensation for purposes of this subparagraph shall not include any
payments made to an individual by the Employer pursuant to a qualified or
non-qualified deferred compensation plan.
15.4-9 The present value of the accrued benefits or the amount of
the Account balances of any Employee participating in this Plan shall not
include any rollover contributions or other transfers voluntarily
initiated by the Employee except as described below. If this Plan
transfers or rolls over funds to another Plan in a transaction voluntarily
initiated by the Employee after December 31, 1983, then this Plan shall
count the distribution for purposes of determining Account balances or the
present value of accrued benefits. A transfer incident to a merger or
consolidation of two or more Plans of the Employer (including Plans of
related Employers treated as a single Employer under Code Section 414), or
a transfer or rollover between Plans of the Employer, shall not be
considered as voluntarily initiated by the Employee.
15.5 TOP-HEAVY RATIO.
If the Employer maintains one (1) or more defined contribution plans
(including any simplified Employee pension plan) and the Employer has never
maintained any defined benefit plans which have covered or could cover a
Participant in this Plan, the top-heavy ratio is a fraction, the numerator of
which is the sum of the Account balances of all Key Employees as of the
Determination Date, and the denominator of which is the sum of the Account
balances of all Employees as of the Determination Date. Both the numerator and
denominator of the top-heavy ratio shall be increased to reflect any
contribution which is due but unpaid as of the Determination Date.
If the Employer maintains one (1) or more defined contribution plans
(including any simplified Employee pension plan) and the Employer maintains or
has maintained one (1) or more defined benefit plans which have covered or could
cover a Participant in this Plan, the top-heavy ratio is a fraction, the
numerator of which is the sum of Account balances under the defined contribution
plans for all Key Employees and the present value of accrued benefits under the
defined benefit plans for all Key Employees, and the denominator of which is the
sum of the Account balances under the defined contribution plans for all
Employees and the present value of accrued benefits under the defined benefit
plans for all Employees.
-30-
For these purposes, the accrued benefit of a Participant other than a Key
Employee in a defined benefit plan shall be determined under (a) the method, if
any, that uniformly applies for accrual purposes under all defined benefit plans
maintained by the Employer, or (b) if there is no such method, as if such
benefit accrued not more rapidly than the slowest accrual rate permitted under
the fractional rule of Section 411(b)(1)(C).
15.6 MINIMUM CONTRIBUTIONS. For any Top-Heavy Year, each Employer shall
make a special contribution on behalf of each Participant to the extent that the
total allocations to his Account pursuant to Section 4 is less than the lesser
of:
(i) three percent of his 415 Compensation for that year, or
(ii) the highest ratio of such allocation to 415 Compensation
received by any Key Employee for that year. For purposes of the special
contribution of this Section 15.2, a Key Employee's 415 Compensation shall
include amounts the Key Employee elected to defer under a qualified 401(k)
arrangement. Such a special contribution shall be made on behalf of each
Participant who is employed by an Employer on the last day of the Plan
Year, regardless of the number of his Hours of Service, and shall be
allocated to his Account.
For any Plan Year when (1) the Plan is top-heavy and (2) a Non-key
Employee is a Participant in both this Plan and a defined benefit plan included
in the plan aggregation group which is top heavy, the sum of the Employer
contributions and forfeitures allocated to the Account of each such Non-key
Employee shall be equal to at least five percent (5%) of such Non-key Employee's
415 Compensation for that year.
15.7 MINIMUM VESTING. For any Plan Year in which this Plan is Top-Heavy,
a Participant's vested interest in his Account shall be based on the following
"top-heavy table":
Vesting Percentage of
Years Interest Vested
------- ---------------
Fewer than 3 years 0%
3 or more 100%
15.8 TOP-HEAVY PROVISIONS CONTROL IN TOP-HEAVY PLAN. In the event this
Plan becomes top-heavy and a conflict arises between the top-heavy provisions
herein set forth and the remaining provisions set forth in this Plan, the
top-heavy provisions shall control.
-31-
SOUND FEDERAL SAVINGS AND LOAN ASSOCIATION
EMPLOYEE STOCK OWNERSHIP PLAN
-------------------------------
AMENDMENT NUMBER ONE
-------------------------------
The Sound Federal Savings and Loan Association Employee Stock Ownership
Plan (the "Plan") is hereby amended effective January 1, 2000, unless otherwise
stated, in accordance with the following:
1. The definition of "HOURS OF SERVICE" at Section 2 of the Plan shall
be amended by adding the following subsection (h) immediately after
subsection (g):
(h) Solely for purposes of determining whether a Break
in Service for vesting purposes has occurred in a computation
period, the Hours of Service credited to an individual who is
absent from work for maternity or paternity reasons shall be
credited (1) in the computation period in which the absence
begins if the crediting is necessary to prevent a Break in
Service in that period, or (2) in all other cases, in the
following computation period.
2. Section 5.1-3 of the Plan shall be amended by adding the following
paragraph at the end thereof:
In the event Stock is released from the suspense account
and allocated to a Participant's account for a particular Plan
Year, the Employer shall determine for such year that an
annual addition will be calculated on the basis of the fair
market value of the Stock so released and allocated (such fair
market value to be based on the valuation as of the Valuation
Date immediately preceding the Plan Year in respect of which
the release and allocation are made) if the annual addition,
as so calculated, is lower than the annual addition calculated
on the basis of Employer contributions.
3. Section 5.2 of the Plan and all references thereto in the Plan shall
be deleted and Sections 5.3 and 5.4 of the Plan and all references
thereto shall be renumbered Sections 5.2 and 5.3, respectively.
4. Section 8.1 of the Plan shall be amended by replacing "Section 9.6"
with "Sections 9.5 and 9.6" in its last sentence.
Sound Federal Savings and Loan Association
Employee Stock Ownership Plan
Amendment Number One
Page 2
5. Effective January 1, 1998, Section 10.1 of the Plan shall be amended
by adding the following paragraph at the end thereof:
All distributions under this section shall be determined
and made in accordance with the regulations under Code Section
401(a)(9), including Section 1.401(a)(9)-2. The provisions
reflecting Code Section 401(a)(9) override any distribution
options in the Plan inconsistent with Code Section 401(a)(9).
6. Effective January 1, 1998, Section 10.2.3 of the Plan shall be
amended by inserting the following text between its first and second
sentences:
Any Participant (other than a 5-percent owner) attaining
age 70 1/2 may elect by April 1 of the calendar year following
the year in which the Participant attained age 70 1/2 to defer
distributions until the calendar year following the calendar
year in which the Participant retires. If no such election is
made, the Participant will begin receiving distributions by
the April 1 of the calendar year following the year in which
the Participant attained age 70 1/2.
7. Section 15.3-4 of the Plan shall be amended by replacing the words
"Code Sections 401(a)(4) and 410" with the words "Code Section
401(a)(4) or 410" in its first sentence.
SOUND FEDERAL SAVINGS AND LOAN ASSOCIATION
EMPLOYEE STOCK OWNERSHIP PLAN
-------------------------------
AMENDMENT NUMBER TWO
-------------------------------
The Sound Federal Savings and Loan Association Employee Stock Ownership
Plan (the "Plan") is hereby amended effective January 1, 2000, unless otherwise
stated, in accordance with the following:
1. Section 5 of the Plan shall be amended by adding the following
sub-section 5.4 at the end thereof:
5.4 ERRONEOUS ALLOCATIONS. No Participant shall be
entitled to any annual additions or other allocations to his
Account in excess of those permitted under Section 5. If it is
determined at any time that the administrator and/or Trustee
have erred in accepting and allocating any contributions or
forfeitures under this Plan, or in allocating investment
adjustments, or in excluding or including any person as a
Participant, then the administrator, in a uniform and
nondiscriminatory manner, shall determine the manner in which
such error shall be corrected and shall promptly advise the
Trustee in writing of such error and of the method for
correcting such error. The Accounts of any or all Participants
may be revised, if necessary, in order to correct such error.
2. Section 9.2-4 of the Plan shall be amended, effective January 1998,
by adding the following sentence at the end thereof:
Notwithstanding any provision of the Plan to the
contrary, calculation of service for determining Vesting Years
with respect to qualified military service will be provided in
accordance with Section 414(u) of the Code.
Sound Federal Savings and Loan Association ESOP
Amendment Number Two
Page 2
3. Section 10.9-1 of the Plan shall be amended, effective January 1,
1999, by adding the following clause after the words "Code Section 401(a)(9);":
"a hardship distribution described in Section 401(k)(2)
(B)(i)(IV) of the Code;"
4. Section 10.9-2 of the Plan shall be amended by replacing the words
"An `eligible retirement plan' is an individual retirement account described in
Code Section 401(a)" with the words "An `eligible retirement plan' is an
individual retirement account described in Code Section 408(a)".
SOUND FEDERAL SAVINGS AND LOAN ASSOCIATION
-------------------------------------
RESOLUTIONS OF THE BOARD OF DIRECTORS
-------------------------------------
WHEREAS, the Board of Directors (the "Board") of Sound Federal Savings and
Loan Association (the "Association") maintains the Sound Federal Savings and
Loan Association Employee Stock Ownership Plan (the "Plan"); and
WHEREAS, the Board desires to amend the Plan to conform with tax law
changes; and
WHEREAS, Section 13.3 of the Plan permits the Association to amend the
Plan from time to time.
NOW, THEREFORE, BE IT RESOLVED, that the Plan shall be, and hereby is,
amended in accordance with Amendment Number Two attached hereto and made a part
hereof, effective as set forth therein; and
RESOLVED, FURTHER, that the Plan Committee shall be, and the same hereby
is, authorized, empowered and directed to take any and all action necessary for
the implementation of the aforesaid amendment.
SOUND FEDERAL SAVINGS AND LOAN ASSOCIATION
EMPLOYEE STOCK OWNERSHIP PLAN
-------------------------------
AMENDMENT NUMBER THREE
-------------------------------
The Sound Federal Savings and Loan Association Employee Stock Ownership
Plan (the "Plan") is hereby amended in accordance with the following:
1. Section 15.5 of the Plan shall be deleted, effective January 1,
2000. Section 15.5 shall be reserved for future use.
------------------------------------------------------------------------
MODEL AMENDMENTS FOR
THE COMMUNITY RENEWAL TAX RELIEF ACT OF 2000 ("CRA")
AND
THE ECONOMIC GROWTH AND TAX RELIEF RECONCILIATION ACT OF 2001 ("EGTRRA")
------------------------------------------------------------------------
2. CRA: MODEL LANGUAGE FOR SECTION 415(C)(3) COMPENSATION DEFINITION
For limitation years beginning on and after January 1, 2001, for
purposes of applying the limitations described in Section 2 of the
Plan, definition of "415 Compensation," compensation paid or made
available during such limitation years shall include elective
amounts that are not includible in the gross income of the Employee
by reasons of Code Section 132(f)(4).
This amendment shall also apply to the definition of compensation
for purposes of Sections 2 of the Plan, definition of "Highly Paid
Employee" and definition of "Service," and Section 15.3-2 of the
Plan, definition of "Key Employee," for Plan Years beginning on and
after January 1, 2001.
3. EGTRRA
A. PREAMBLE
ADOPTION AND EFFECTIVE DATE OF AMENDMENT. This amendment of
the Plan is adopted to reflect certain provisions of the
Economic Growth and Tax Relief Reconciliation Act of 2001
(EGTRRA). This amendment is intended as good faith compliance
with the requirements of EGTRRA and is to be construed in
accordance with EGTRRA and guidance issued thereunder. Except
as otherwise provide, this amendment shall be effective as of
the first day of the first Plan Year beginning after December
31, 2001.
SUPERSESSION OF INCONSISTENT PROVISIONS. This amendment shall
supersede the provisions of the Plan to the extent those
provisions are inconsistent with the
Sound Federal Savings and Loan Association
Employee Stock Ownership Plan
Amendment Number Three
Page 2
provisions of this amendment.
B. SECTION 5 OF THE PLAN. LIMITATIONS ON CONTRIBUTIONS
1. EFFECTIVE DATE. This section shall be effective for
limitation years beginning after December 31, 2001.
2. MAXIMUM ANNUAL ADDITION. Except to the extent permitted
under section 414(v) of the Code, if applicable, the
annual addition that may be contributed or allocated to
a Participant's account under the Plan for any
limitation year shall not exceed the lesser of:
1. $40,000, as adjusted for increases in the
cost-of-living under section 415(d) of the Code,
or
2. 100 percent of the Participant's compensation,
within the meaning of section 415(c)(3) of the
Code, for the limitation year.
The compensation limit referred to in 2. shall not apply to
any contribution for medical benefits after separation from
service (within the meaning of section 401(h) or section
419A(f)(2) of the Code) which is otherwise treated as an
annual addition.
C. SECTION 2 OF THE PLAN. INCREASE IN COMPENSATION LIMIT
The annual compensation of each Participant taken into account
in determining allocations for any Plan Year beginning after
December 31, 2001, shall not exceed $200,000, as adjusted for
cost-of-living increases in accordance with section
401(a)(17)(B) of the Code. Annual compensation means
compensation during the Plan Year or such other consecutive
12-month period over which compensation is otherwise
determined under the Plan (the determination period). The
cost-of-living adjustment in effect for a calendar year
applies to annual compensation for the determination period
that begins with or within such calendar year.
D. SECTION 15 OF THE PLAN. MODIFICATION OF TOP-HEAVY RULES
1. EFFECTIVE DATE. This section shall apply for purposes of
determining whether the Plan is a top-heavy plan under
section 416(g) of the Code for Plan Years beginning
after December 31, 2001, and whether the Plan satisfies
the minimum benefits requirements of section 416(c) of
the Code for such years. This section amends section 15
of the Plan.
Sound Federal Savings and Loan Association
Employee Stock Ownership Plan
Amendment Number Three
Page 3
2. DETERMINATION OF TOP-HEAVY STATUS.
2.1 KEY EMPLOYEE. Key employee means any Employee or former
Employee (including any deceased Employee) who at any
time during the Plan Year that includes the
determination date was an officer of the Employer having
annual compensation greater than $130,000 (as adjusted
under section 416(i)(1) of the Code for Plan Years
beginning after December 31, 2002), a 5-percent owner of
the Employer, or a 1-percent owner of the Employer
having annual compensation of more than $150,000. For
this purpose, annual compensation means compensation
within the meaning of section 415(c)(3) of the Code. The
determination of who is a key employee will be made in
accordance with section 416(i)(1) of the Code and the
applicable regulations and other guidance of general
applicability issued thereunder.
2.2 DETERMINATION OF PRESENT VALUES AND AMOUNTS. This
section 2.2 shall apply for purposes of determining the
present values of accrued benefits and the amounts of
account balances of Employees as of the determination
date.
2.2.1 DISTRIBUTIONS DURING YEAR ENDING ON THE DETERMINATION
DATE. The present values of accrued benefits and the
amounts of account balances of an Employee as of the
determination date shall be increased by the
distributions made with respect to the Employee under
the Plan and any plan aggregated with the Plan under
section 416(g)(2) of the Code during the 1-year period
ending on the determination date. The preceding sentence
shall also apply to distributions under a terminated
plan which, had it not been terminated, would have been
aggregated with the Plan under section 416(g)(2)(A)(i)
of the Code. In the case of a distribution made for a
reason other than separation from service, death, or
disability, this provision shall be applied by
substituting 5-year period for 1-year period.
2.2.2 EMPLOYEES NOT PERFORMING SERVICES DURING YEAR ENDING ON
THE DETERMINATION DATE. The accrued benefits and
accounts of any individual who has not performed
services for the Employer during the 1-year period
ending on the determination date shall not be taken into
account.
3. MINIMUM BENEFITS.
3.1 MATCHING CONTRIBUTIONS. Employer matching contributions
shall be taken into account for purposes of satisfying
the minimum contribution requirements of section
416(c)(2) of the Code and the Plan. The preceding
sentence shall apply with respect to matching
contributions under the Plan
Sound Federal Savings and Loan Association
Employee Stock Ownership Plan
Amendment Number Three
Page 4
or, if the Plan provides that the minimum contribution
requirement shall be met in another plan, such other
plan. Employer matching contributions that are used to
satisfy the minimum contribution requirements shall be
treated as matching contributions for purposes of the
actual contribution percentage test and other
requirements of section 401(m) of the Code.
3.2 CONTRIBUTIONS UNDER OTHER PLANS. If the Employer
maintains a qualified plan in addition to this Plan and
more than one such plan is determined to be Top-Heavy, a
minimum contribution or a minimum benefit shall be
provided in one of such other plans (including another
plan that consists solely of a cash or deferred
arrangement which meets the requirements of section
401(k)(12) of the Code and matching contributions with
respect to which the requirements of section 401(m)(11)
of the Code are met).
E. SECTION 10.9 OF THE PLAN. DIRECT ROLLOVERS OF PLAN
DISTRIBUTIONS
1. EFFECTIVE DATE. This section shall apply to
distributions made after December 31, 2001.
2. MODIFICATION OF DEFINITION OF ELIGIBLE RETIREMENT PLAN.
For purposes of the direct rollover provisions in
section 10.9 of the Plan, an eligible retirement plan
shall also mean an annuity contract described in section
403(b) of the Code and an eligible plan under section
457(b) of the Code which is maintained by a state,
political subdivision of a state, or any agency or
instrumentality of a state or political subdivision of a
state and which agrees to separately account for amounts
transferred into such plan from this Plan. The
definition of eligible retirement plan shall also apply
in the case of a distribution to a surviving spouse, or
to a spouse or former spouse who is the alternate payee
under a qualified domestic relation order, as defined in
section 414(p) of the Code.
3. MODIFICATION OF DEFINITION OF ELIGIBLE ROLLOVER
DISTRIBUTION TO INCLUDE AFTER-TAX EMPLOYEE
CONTRIBUTIONS. For purposes of the direct rollover
provisions in section 10.9 of the Plan, a portion of a
distribution shall not fail to be an eligible rollover
distribution merely because the portion consists of
after-tax employee contributions which are not
includible in gross income. However, such portion may be
transferred only to an individual retirement account or
annuity described in section 408(a) or (b) of the Code,
or to a qualified defined contribution plan described in
section 401(a) or 403(a) of the Code that agrees to
separately account for amounts so transferred, including
separately accounting for the portion of such
distribution which is includible in gross income and the
portion of such distribution which is not so includible.