ESOP TRUST AGREEMENT
BETWEEN
RSGROUP TRUST COMPANY
AND
XXXXXXX SAVINGS BANK, S.L.A.
THIS AGREEMENT OF TRUST (the "Agreement") made effective as of August 1,
2003, by and between XXXXXXX SAVINGS BANK, S.L.A., (the "Company") and RSGROUP
TRUST COMPANY, a trust company incorporated under the laws of the State of Maine
(the "Trustee"),
WITNESSETH
WHEREAS, the Company desires to establish the Xxxxxxx Savings Bank, S.L.A.
Employee Stock Ownership Plan (the "Plan"), effective as of January 1, 2003, for
the exclusive purpose of providing benefits to participants and their
beneficiaries under the Plan;
WHEREAS, the Company desires to establish a trust (the "Trust") for the
Plan and to appoint the Trustee to serve as trustee for the Trust, effective as
of January 1, 2003;
WHEREAS, the Trustee wishes to accept its appointment as trustee for the
Plan; and
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto, intending to be legally bound, hereby agree and declare as
follows:
ARTICLE I
ESTABLISHMENT OF TRUST
SECTION 1.1. The Company and the Trustee hereby agree to the
establishment of a trust consisting of such sums as shall from time to time be
paid to the Trustee under the Plan and such earnings, income and appreciation as
may accrue thereon which, less payments made by the Trustee to carry out the
purposes of the Plan, are referred to herein as the "Fund". The Trustee shall
carry out the duties and responsibilities herein specified, but shall be under
no duty to determine whether the amount of any contribution by the Company or
any affiliated entity or by any participant under the Plan is in accordance with
the terms of the Plan, nor shall the Trustee be responsible for the collection
of any contributions required under the Plan.
SECTION 1.2. The Fund shall be held, invested, reinvested and
administered by the Trustee in accordance with the terms of the Plan and this
Agreement solely in the interest of participants and their beneficiaries under
the Plan and for the exclusive purpose of providing
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benefits to participants and their beneficiaries and defraying the reasonable
expenses of administering the Plan. Except as provided in Section 4.2, no assets
of the Plan shall inure to the benefit of the Company or any affiliated entity.
SECTION 1.3. The Trustee shall pay benefits and expenses from the Fund
only upon the written direction of the Plan Administrator, the Committee
specified in the Plan as the fiduciary responsible for the day-to-day operation
and administration of the Plan. The Trustee shall be fully entitled to rely on
such directions furnished by the Plan Administrator and shall be under no duty
to ascertain whether the directions are in accordance with the provisions of the
Plan.
ARTICLE II
INVESTMENT OF THE FUND
SECTION 2.1. In accordance with the provisions of the Plan, the Trustee
shall invest and reinvest the Fund without distinction between principal and
income in Company Stock in accordance with the terms of the Plan and this
Agreement as directed by the Company. To the extent that contributions are made
in Company Stock, the Trustee will be expected to retain such Company Stock. To
the extent contributions are made in cash or other amounts are received in cash
and are not needed to pay principal or interest on an ESOP loan, to pay
distributions to participants and their beneficiaries or to pay expenses of the
Trust, the Trustee will be expected to acquire Company Stock either from other
shareholders or directly from the Company as directed by the Company. If at the
time Company Stock is to be purchased, the Company has outstanding more than one
class of Company Stock, the Company shall direct the Trustee as to which class
of Company Stock shall be purchased.
SECTION 2.2. In accordance with the provisions of the Plan and except as
provided in Section 2.1, all assets of the Fund shall be invested by the Trustee
solely in Company Stock, with the exception that if the Trustee is notified by
the Company that a participant is eligible to make a diversification election,
if provided for under the Plan, whereby the participant may transfer a specified
portion of the participant's account to other investment options available under
the Plan, the Trustee shall invest such specified portion of the participant's
account in accordance with the participant's investment directions as provided
for in the Plan and Section 2.3 hereof. The Company shall notify the Trustee of
any such investment options currently available under the Plan and any other
plan sponsored by the Company which accepts such amounts and of any changes
thereto, which changes shall be effective no earlier than 60 days after delivery
of written notice to the Trustee (unless otherwise agreed to by the Trustee).
In accordance with the provisions of the Plan, the Named Fiduciary of the
Plan is authorized to appoint an "investment manager" as defined in Section
3(38) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), to be responsible for managing one or more of the designated
investment options available under the Plan and selecting the specific
investments that comprise any such investment option. In such case, the Named
Fiduciary shall establish the investment policies and guidelines that the
investment manager shall follow when managing the investment option for the
Plan, but the Named Fiduciary shall not be responsible for the selection of the
specific investments that comprise any such investment option. The Trustee shall
follow the directions of the investment manager regarding the designated
investment option(s) for which the investment manager is assigned
responsibility.
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SECTION 2.3. In accordance with the provisions of the Plan, each
participant who is eligible to make the diversification election described in
Section 2.2 shall direct the Trustee as to the investment of that portion of his
or her account subject to such election. All investment directions by
participants shall be timely furnished to the Trustee by the Plan Administrator,
except to the extent such directions are transmitted telephonically or otherwise
by participants and beneficiaries directly to the Trustee in accordance with
rules and procedures established and approved by the Plan Administrator and the
Trustee. In making any such investment of the assets of the Fund, the Trustee
shall be fully entitled to rely on the directions from participants that are
properly furnished to the Trustee, and the Trustee shall be under no duty to
make any inquiry or investigation with respect thereto.
SECTION 2.4. Subject to the provisions of Section 2.1, 2.2, and 2.3, the
Trustee shall have the authority, in addition to any authority given by law, to
exercise the following powers in the administration of the Fund:
(a) with respect to the diversification election described in Section
2.2 above, to invest and reinvest all or a part of the assets of the Fund
in the available investment options under the Plan without restriction to
investments authorized for fiduciaries, including, without limitation on
the amount that may be invested therein, any common, collective or
commingled trust fund maintained by the Trustee, investment company, mutual
fund, or other security or investment option offered by the Trustee. Any
investment in, and any terms and conditions of, any common, collective or
commingled trust fund available only to employee trusts which meet the
requirements of the Code or corresponding provisions of subsequent income
tax laws of the United States, shall constitute an integral part of this
Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or
other property which may from time to time or at any time constitute the
Fund and to make, execute and deliver to the purchasers thereof good and
sufficient deeds of conveyance thereof, and all assignments, transfers and
other legal instruments, either necessary or convenient for passing the
title and ownership thereto, free and discharged of all trusts and without
liability on the part of such purchasers to see to the application of the
purchase money;
(c) to cause any investment of the Fund to be registered in the name
of the Trustee or the name of its nominee or nominees or to retain such
investment unregistered or in a form permitting transfer by delivery;
provided that the books and records of the Trustee shall at all times show
that all such investments are part of the Fund;
(d) to consult and employ any suitable agent to act on behalf of the
Trustee and to contract for legal, accounting, clerical and other services
deemed necessary by the Trustee to manage and administer the Fund according
to the terms of the Plan and this Agreement;
(e) to pay from the Fund all taxes imposed or levied with respect to
the Fund or any part thereof under existing or future laws, and to contest
the validity or amount of any tax, assessment, claim or demand respecting
the Fund or any part thereof; and
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(f) generally to exercise any of the powers of an owner with respect
to all or any part of the Fund.
SECTION 2.5. Each participant or beneficiary to whose account shares of
Company stock have been allocated shall, as a named fiduciary within the meaning
of Section 403(a)(1) of ERISA, direct the Trustee with respect to the voting
and, if applicable, tendering of shares of Company stock allocated to his or her
account, and the Trustee shall follow the directions of those participants and
beneficiaries who provide timely instructions to the Trustee. The Trustee shall
vote the shares of Company stock allocated to the accounts of participants for
whom no timely instructions have been received, and the shares of Company Stock
which have not been allocated to the accounts of participants and beneficiaries,
in the same proportion as those shares of Company stock for which instructions
were timely received, provided that the Plan requires that participants and
beneficiaries be given advance notice as to the consequences of any failure to
instruct the Trustee as to the voting of allocated shares of Company stock.
SECTION 2.6. Except as may be authorized by regulations promulgated by
the Secretary of Labor, the Trustee shall not maintain the indicia of ownership
in any assets of the Fund outside of the jurisdiction of the district courts of
the United States.
ARTICLE III
DUTIES AND RESPONSIBILITIES
SECTION 3.1. The Trustee, Company, Named Fiduciary and Plan Administrator
shall each discharge their assigned fiduciary duties and responsibilities under
this Agreement and the Plan solely in the interest of participants and their
beneficiaries in the following manner:
(a) for the exclusive purpose of providing benefits to participants
and their beneficiaries and defraying reasonable expenses of administering
the Plan;
(b) with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims;
(c) by selecting a range of available investment options under the
Plan referenced in Section 2.2 so as to permit participants and
beneficiaries to diversify their investments pursuant to Section 2.3; and
(d) in accordance with the provisions of the Plan and this Trust
Agreement insofar as they are consistent with the provisions of ERISA.
SECTION 3.2. The Trustee shall keep full and accurate accounts of all
receipts, investments, disbursements and other transactions hereunder, including
such specific records as may be agreed upon in writing between the Company and
Trustee. All such accounts, books and records shall be open to inspection and
audit at all reasonable times by any authorized representative of the Company,
the Named Fiduciary or the Plan Administrator. Any participant or beneficiary
under the Plan may examine only those individual account records pertaining
directly to that participant or beneficiary.
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SECTION 3.3. The Trustee shall determine the value of the Fund at such
times as are mutually agreed upon by the Trustee and the Company but in no case
less frequently than annually. The value of shares of Company Stock held in the
Fund shall be determined at their fair market value defined as their closing
market price on the relevant valuation date; provided, however, that in the
event such shares of Company Stock have no readily-ascertainable fair market
value because they are thinly-traded, at their fair value as determined in good
faith and pursuant to written procedures recommended by the Company and approved
by the Trustee as of such times as the Trustee determines to be appropriate, and
from such financial publications, pricing services, or other services or sources
as the Trustee reasonably believes appropriate. All other securities and the
value of other assets held in the Fund shall be valued by the Trustee at their
market values on the relevant valuation date under procedures established by the
Trustee. For purposes of this Section, Company Stock shall be considered "thinly
traded" if it is publicly traded on a national exchange or other generally
recognized market, but not in sufficient volume and/or with sufficient frequency
to assure prompt execution of buy and sell orders. The Trustee may seek an
opinion from an independent investment advisor or legal counsel as to whether a
given stock is "thinly traded."
SECTION 3.4. Within 120 days after the end of each plan year for the Plan
or within 120 days after its removal or resignation, the Trustee shall file with
the Named Fiduciary a written account of the administration of the Fund showing
all transactions effected by the Trustee with respect to the assets of the Plan
subsequent to the period covered by the last preceding account to the end of
such plan year or date of removal or resignation and all property held at its
fair market value at the end of the accounting period. Such accounting shall
show the net value of the Plan's interest in each investment option maintained
by the Trustee for the Fund and shall include financial information necessary
for the completion of the annual reports required for the Plan under ERISA. The
Named Fiduciary may approve such accounting by written notice of approval
delivered to the Trustee or by failure to express objection to such accounting
in writing delivered to the Trustee within 120 days from the date on which the
accounting is delivered to the Named Fiduciary.
SECTION 3.5. In accordance with the terms of the Plan, the Trustee shall
establish and maintain separate accounts in the name of each participant in
order to record all contributions by or on behalf of the participant to the Plan
and any earnings, losses and expenses attributable thereto. The Plan
Administrator shall furnish the Trustee with participant enrollment data in a
format acceptable to the Trustee identifying the name, address, social security
number, and current investment directions of each participant for whom one or
more separate accounts are to be established by the Trustee under this
Agreement. With respect to all contributions to the Plan and other amounts that
are transmitted to the Trustee, the Plan Administrator shall furnish the Trustee
with participant allocation data in a format acceptable to the Trustee
identifying each participant on whose behalf an amount is being transmitted to
the Trustee and the dollar amount to be allocated to each of the participant's
separate account under the Plan. In allocating amounts to participants' separate
accounts under the Plan, the Trustee shall be fully entitled to rely on the
participant enrollment and allocation data furnished to it by the Plan
Administrator and shall be under no duty to make any inquiry or investigation
with respect thereto.
SECTION 3.6. The Trustee shall, at least annually, furnish each
participant in the Plan with statements reflecting the current fair market value
of the participant's separate accounts under the Plan and all activities
occurring within such accounts during the most recent reporting
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period, including Plan contributions, earnings, investment exchanges,
distributions, and withdrawals.
SECTION 3.7. The Trustee shall not be required to determine the facts
concerning the eligibility of any participant to participate in the Plan, the
amount of benefits payable to any participant or beneficiary under the Plan, or
the date or method of payment or disbursement. The Trustee shall be fully
entitled to rely solely upon the written advice and directions of the Plan
Administrator as to any such question of fact.
SECTION 3.8. Unless resulting from the Trustee's gross negligence,
willful misconduct, lack of good faith, or breach of its fiduciary duties under
this Agreement or ERISA, the Company shall indemnify and save harmless the
Trustee from, against, for and in respect of any and all damages, losses,
obligations, liabilities, liens, deficiencies, costs and expenses, including
without limitation, reasonable attorney's fees incident to any suit, action,
investigation, claim or proceedings suffered, sustained, incurred or required to
be paid by the Trustee in connection with the Plan or this Agreement.
ARTICLE IV
PROHIBITION OF DIVERSION
SECTION 4.1. Except as provided in Section 4.2, at no time prior to the
satisfaction of all liabilities with respect to participants and their
beneficiaries under the Plan shall any part of the corpus or income of the Fund
be used for, or diverted to, purposes other than for the exclusive benefit of
participants or their beneficiaries, or for defraying reasonable expenses of
administering the Plan.
SECTION 4.2. The provisions of Section 4.1 notwithstanding, contributions
made by the Company or any affiliated entity under the Plan will be returned to
the Company or affiliated entity under the following conditions:
(a) If a contribution is made by mistake of fact, such contributions
may be returned within one year of the payment of such contribution upon
demand of the Company or affiliated entity; and
(b) Contributions to the Plan are specifically conditioned upon their
deductibility under the Code. To the extent a deduction is disallowed for
any such contribution, it will be returned within one year after the
disallowance of the deduction upon demand of the Company or affiliated
entity. Contributions which are not deductible in the taxable year in which
made but are deductible in subsequent taxable years shall not be considered
to be disallowed for purposes of this subsection; and
(c) Contributions to the Plan are specifically conditioned on initial
qualification of the Plan under the Code. If a Plan is determined by the
Internal Revenue Service to not be initially qualified, upon demand of the
Company or affiliated entity any employer contributions made incident to
that initial qualification will be returned within one year after the date
the initial qualification is denied, provided that the determination of the
Internal Revenue Service is made pursuant to an application for
determination made by the time prescribed by law for filing the return of
the Company or affiliated
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entity for the taxable year in which the Plan is adopted or such later date
as is prescribed by the Secretary of the Treasury.
ARTICLE V
COMMUNICATION WITH FIDUCIARIES
SECTION 5.1. Whenever the Trustee is permitted or required to act upon
the directions or instructions of the Company, any named fiduciary, any
investment manager or the Plan Administrator, the Trustee shall be entitled to
rely upon any written communication signed by any person or agent designated to
act as or on behalf of any such fiduciary. Such person or agent shall be so
designated either under the provisions of the Plan or in writing by the Company
and such authority shall continue until revoked in writing. The Trustee shall
incur no liability for failure to act on such person's or agent's instructions
or orders without written communication, and the Trustee shall be fully
protected in all actions taken in good faith in reliance upon any instructions,
directions, certifications and communications believed to be genuine and to have
been signed or communicated by the proper person.
SECTION 5.2. The Company shall notify the Trustee in writing of the
appointment, removal or resignation of any person designated to act as or on
behalf of the Company, the Named Fiduciary, any investment manager, or the Plan
Administrator. After such notification, the Trustee shall be fully protected in
acting upon the directions of any person designated to act as or on behalf of
any such fiduciary until the Trustee receives notice from the Company to the
contrary. The Trustee shall have no duty to inquire into the qualifications of
any person designated to act as or on behalf of the Company, the Named
Fiduciary, any investment manager or the Plan Administrator.
ARTICLE VI
TRUSTEE'S COMPENSATION
SECTION 6.1. The Trustee shall be entitled to reasonable compensation for
its services as is agreed upon with the Company. The Trustee shall also be
entitled to reimbursement for all direct expenses properly and actually incurred
on behalf of the Plan. Such compensation or reimbursement shall be paid to the
Trustee out of the Fund unless paid directly by the Company.
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ARTICLE VII
RESIGNATION AND REMOVAL OF TRUSTEE
SECTION 7.1. The Trustee may resign at any time by written notice to the
Company which shall be effective 30 days after delivery unless prior thereto a
successor trustee shall have been appointed.
SECTION 7.2. The Trustee may be removed by the Company at any time upon
30 days written notice to the Trustee; such notice, however, may be waived by
the Trustee.
SECTION 7.3. The appointment of a successor trustee hereunder shall be
accomplished by and take effect upon the delivery to the Trustee of written
notice of the Company appointing such successor trustee, and an acceptance in
writing of the successor trustee hereunder executed by the successor so
appointed. A successor trustee may be either a corporation authorized and
empowered to exercise trust powers or one or more individuals. All of the
provisions set forth herein with respect to the Trustee shall relate to each
successor trustee so appointed with the same force and effect as if such
successor trustee had been originally named herein as the trustee hereunder. If
within 30 days after notice of resignation or removal shall have been given
under the provisions of this Article VII a successor trustee shall not have been
appointed, the Trustee or Company may apply to any court of competent
jurisdiction for the appointment of a successor trustee.
SECTION 7.4. Upon the appointment of a successor trustee, the Trustee
shall transfer and deliver the Fund to such successor trustee, within 30 days of
receipt of written notice of such appointment, and after reserving such
reasonable amount as it shall deem necessary to provide for its expenses in the
settlement of its account, the amount of any compensation due to it and any sums
chargeable against the Fund for which it may be liable. If the sums so reserved
are not sufficient for such purposes, the resigning or removed Trustee shall be
entitled to reimbursement for any deficiency from the successor trustee and the
Company who shall be jointly and severally liable therefor.
ARTICLE VIII
AMENDMENT AND TERMINATION OF THE TRUST AND PLAN
SECTION 8.1. The Company may, by delivery to the Trustee of an instrument
in writing, terminate this Agreement at any time.
SECTION 8.2. The Company may partially terminate this Agreement at any
time by delivering to the Trustee a written direction to transfer such part of
the Fund as may be specified in such direction to any other trust established
for the purpose of funding benefits under the Plan or under any other plan
qualifying under Section 401 of the Code, established for the benefit of
participants in the Plan or their beneficiaries by the Company or any affiliated
entity or any successor transferee of the Company or any affiliated entity;
provided such transfer shall be in conformity with the requirements of Federal
law.
SECTION 8.3. This Agreement may be amended from time to time by the
Company; provided, however, that no amendment shall increase the duties or
liabilities of the Trustee
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without the Trustee's consent; and, provided further, that no amendment shall
divert any part of the Fund to any purpose other than providing benefits to
participants and their beneficiaries under the Plan or defraying the reasonable
expenses of administering the Plan.
SECTION 8.4. If the Plan is terminated in whole or in part, the Trustee
shall distribute the Fund or any part thereof in such manner and at such times
as the Plan Administrator shall direct in writing in accordance with the
provisions of the Plan; provided, however, that the Trustee may delay
distribution of the Fund until it has received from the Company a copy of an
Internal Revenue Service determination letter addressing the Plan's
tax-qualified status upon termination, or, in lieu thereof at the Trustee's sole
discretion, an opinion from the Company's legal counsel that the Plan met all
qualification requirements at the date of termination.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1. Unless the context of this Agreement clearly indicates
otherwise, the terms defined in the Plan shall, when used herein, have the same
meaning as in the Plan.
SECTION 9.2. Except as otherwise required by law in the case of any
qualified domestic relations order within the meaning of Section 414(p) of the
Code, to the extent of any offset of a Participant's benefits as a result of any
judgment, order, decree or settlement agreement provided in Section
401(a)(13)(C) of the Code, or any federal tax levy made pursuant to Section 6331
of the Code, or except as otherwise provided in the Plan with respect to any
loan to a leveraged ESOP described in Section 4975(d)(3) of the Code or loan
from the Fund to a participant in accordance with the provisions of the Plan,
the benefits or proceeds of any allocated or unallocated portion of the assets
of the Fund and any interest of any participant or beneficiary arising out of or
created by the Plan either before or after the participant's retirement shall
not be subject to execution, attachment, garnishment or other legal or judicial
process whatsoever by any person, whether creditor or otherwise, claiming
against such participant or beneficiary. Except as otherwise provided in the
Plan with respect to any loan from the Fund to a participant in accordance with
the provisions of the Plan, no participant or beneficiary shall have the right
to alienate, encumber or assign any of the payments or proceeds or any other
interest arising out of or created by the Plan and any action purporting to do
so shall be void. The provisions of this Section shall apply to all participants
and beneficiaries, regardless of their citizenship or place of residence.
SECTION 9.3. Any person dealing with the Trustee may rely upon a copy of
this Agreement and any amendments thereto certified to be true and correct by
the Trustee.
SECTION 9.4. The Trustee hereby acknowledges receipt of a copy of the
Plan. The Company will cause a copy of any amendment to the Plan to be delivered
to the Trustee.
SECTION 9.5. The construction, validity and administration of this
Agreement shall be governed by ERISA and, to the extent not preempted by ERISA,
the laws of the State of Maine without regard to its rules regarding conflict of
laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective names by their duly authorized officers under their
corporate seals as of the day and year first above written.
XXXXXXX SAVINGS BANK, S.L.A.
BY:
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PRINT NAME
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TITLE
RSGROUP TRUST COMPANY
BY:
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PRINT NAME
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TITLE
00
XXXXX XX XXX XXXXXX )
: ss.:
COUNTY OF )
On this ____ day of _________, in the year 2003, before me, the undersigned, a
Notary Public in and for the said state, personally appeared _________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies) and that by his/her/their signature(s) on the instrument, the
person(s) or the entity upon behalf of which the person(s) acted, executed the
instrument.
SEAL:
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Notary Public of
-------------------------
My Commission expires
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, in the year 2003, before me, the undersigned, a
Notary Public in and for the said state, personally appeared _________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies) and that by his/her/their signature(s) on the instrument, the
person(s) or the entity upon behalf of which the person(s) acted, executed the
instrument.
SEAL:
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Notary Public of
-------------------------
My Commission expires
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