TRUST AGREEMENT
BETWEEN
BIG FOOT FINANCIAL CORP.
AND
XXXXXX X. XXXXXX, XXXXXXX X. XXXXX AND F. XXXXXXX XXXXXX
FOR THE
BIG FOOT FINANCIAL CORP.
EMPLOYEE STOCK OWNERSHIP PLAN
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Entered into as of December 10, 1996
TABLE OF CONTENTS
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ARTICLE I
TRUST FUND
SECTION 1.1 TRUST FUND.................................................................................... 2
SECTION 1.2 COLLECTION OF CONTRIBUTIONS................................................................... 2
SECTION 1.3 NON-DIVERSION OF FUNDS........................................................................ 2
ARTICLE II
INVESTMENT AND ADMINISTRATION
SECTION 2.1 IN GENERAL.................................................................................... 3
SECTION 2.2 INVESTMENT FUNDS.............................................................................. 3
SECTION 2.3 APPOINTMENT OF INVESTMENT MANAGER............................................................. 3
SECTION 2.4 INVESTMENT DECISIONS.......................................................................... 4
SECTION 2.5 INVESTMENT IN COMMINGLED FUNDS................................................................ 5
SECTION 2.6 LIQUIDITY..................................................................................... 5
SECTION 2.7 INVESTMENT DIRECTIONS BY PARTICIPANTS......................................................... 6
SECTION 2.8 TRUSTEE'S ADMINISTRATIVE AUTHORITY............................................................ 6
SECTION 2.9 EXERCISE OF VOTING RIGHTS WITH RESPECT TO SHARES.............................................. 8
SECTION 2.10 RESPONSE TO TENDER OFFERS AND SIMILAR EVENTS.................................................. 8
SECTION 2.11 SHARE ACQUISITION LOANS....................................................................... 8
ARTICLE III
TRUSTEE, PLAN ADMINISTRATOR AND COMMITTEE
SECTION 3.1 COMMITTEE AND PLAN ADMINISTRATOR.............................................................. 9
SECTION 3.2 TRUSTEE'S RELIANCE............................................................................ 10
SECTION 3.3 LEGAL COUNSEL................................................................................. 10
SECTION 3.4 LIABILITY UNDER THE PLAN...................................................................... 10
ARTICLE IV
DISTRIBUTIONS FROM THE TRUST FUND
SECTION 4.1 IN GENERAL.................................................................................... 10
SECTION 4.2 DIRECTION BY THE PLAN ADMINISTRATOR........................................................... 11
SECTION 4.3 METHOD OF PAYMENT............................................................................. 11
(i)
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ARTICLE V
RESPONSIBILITIES
SECTION 5.1 GENERAL STANDARD OF CARE...................................................................... 11
SECTION 5.2 NO LIABILITY FOR ACTS OF OTHERS............................................................... 12
SECTION 5.3 COMPLIANCE WITH ERISA......................................................................... 13
ARTICLE VI
TRUSTEE'S ACCOUNTS
SECTION 6.1 ACCOUNTS...................................................................................... 13
SECTION 6.2 VALUATION OF TRUST FUND....................................................................... 13
SECTION 6.3 REPORTS TO THE PLAN ADMINISTRATOR............................................................. 13
SECTION 6.4 RIGHT OF JUDICIAL SETTLEMENT.................................................................. 14
SECTION 6.5 ENFORCEMENT OF AGREEMENT...................................................................... 14
ARTICLE VII
TAXES; COMPENSATION OF TRUSTEE
SECTION 7.1 TAXES......................................................................................... 15
SECTION 7.2 COMPENSATION OF TRUSTEE; EXPENSES............................................................. 15
ARTICLE VIII
RESIGNATION AND REMOVAL OF TRUSTEE
SECTION 8.1 RESIGNATION OR REMOVAL OF TRUSTEE............................................................. 15
SECTION 8.2 APPOINTMENT OF SUCCESSOR...................................................................... 16
SECTION 8.3 SUCCESSION.................................................................................... 16
SECTION 8.4 SUCCESSOR BOUND BY AGREEMENT.................................................................. 16
ARTICLE IX
AMENDMENT AND TERMINATION
SECTION 9.1 AMENDMENT AND TERMINATION..................................................................... 16
ARTICLE X
MISCELLANEOUS
SECTION 10.1 BINDING EFFECT; ASSIGNABILITY................................................................. 17
SECTION 10.2 GOVERNING LAW................................................................................. 17
SECTION 10.3 NOTICES....................................................................................... 17
SECTION 10.4 SEVERABILITY.................................................................................. 18
SECTION 10.5 WAIVER........................................................................................ 18
SECTION 10.6 NON-ALIENATION................................................................................ 18
SECTION 10.7 QUALIFIED PLAN AND TRUST...................................................................... 19
SECTION 10.8 RETURN OF CONTRIBUTIONS....................................................................... 19
SECTION 10.9 COMPLIANCE WITH SECURITIES LAWS............................................................... 19
SECTION 10.10 HEADINGS...................................................................................... 20
SECTION 10.11 CONSTRUCTION OF LANGUAGE...................................................................... 20
SECTION 10.12 COUNTERPARTS.................................................................................. 20
(ii)
TRUST AGREEMENT
FOR THE
BIG FOOT FINANCIAL CORP.
EMPLOYEE STOCK OWNERSHIP PLAN
This AGREEMENT ("Agreement") is made as of December 10, 1996,
by and between BIG FOOT FINANCIAL CORP., a corporation organized under the laws
of the State of Illinois and having its executive offices at 0000 XXX,
Xxxxxxxxx, Xxxxxxxx 00000-0000 ("Company"), and XXXXXX X. XXXXXX, XXXXXXX X.
XXXXX AND F. XXXXXXX XXXXXX, three individuals in their capacity as trustee and
having an office at c/o Big Foot Financial Corp., 0000 XXX, Xxxxxxxxx, Xxxxxxxx
00000-0000 ("Trustee").
W I T N E S S E T H :
WHEREAS, the Company has, by action of its Board of Directors,
adopted an Employee Stock Ownership Plan ("Plan") to be qualified under section
401(a) of the Internal Revenue Code of 1986, as amended ("Code"), for the
exclusive benefit of its eligible employees ("Participants") and their
beneficiaries; and
WHEREAS, the Company has, in accordance with the terms of the
Plan, appointed a Plan Administrator ("Plan Administrator") and a Committee
("Committee") to administer the Plan; and
WHEREAS, the Plan contemplates the establishment and
continuance of a trust so long as it remains in effect to be and to remain
qualified for tax exempt status under section 501(a) of the Code, to which
contributions will be made from time to time, to be accepted, invested and
maintained in accordance with this Agreement; and
WHEREAS, the Plan provides for the assets of such trust to be
invested primarily in shares of common stock of the Company ("Shares") and for
the assumption of debt for the purpose of purchasing Shares;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the Company and the Trustee hereby agree as
follows:
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ARTICLE I
TRUST FUND
SECTION 1.1 TRUST FUND.
The Company hereby establishes with the Trustee a trust,
pursuant to the Plan, in which shall be deposited such Shares and such sums of
money as shall from time to time be paid or delivered to or deposited with the
Trustee by or with the approval of the Company in accordance with terms of the
Plan. All such Shares and all such sums of money, all investments and
reinvestments thereof and all earnings, appreciation and additions allocable
thereto, less losses, depreciation and expenses allocable thereto and any
payments made therefrom as authorized under the Plan or this Agreement shall
constitute the "Trust Fund". The Trust Fund shall be held, managed and
administered by the Trustee, IN TRUST, and dealt with in accordance with the
provisions of this Agreement and in accordance with any funding policy or
guidelines established under the Plan that are communicated in writing to the
Trustee.
SECTION 1.2 COLLECTION OF CONTRIBUTIONS.
The Trustee shall have no authority over and shall have no
responsibility for the administration of the Plan or for the collection of any
contributions to the Trust Fund required under the Plan, nor shall it have any
authority to bring any action or proceeding to enforce the collection of any
such amount or to make inquiry as to whether any such contributions received by
it were properly collected or computed in accordance with the terms of the Plan.
SECTION 1.3 NON-DIVERSION OF FUNDS.
Notwithstanding anything to the contrary contained in this
Agreement or any amendment hereto, no part of the Trust Fund other than such
expenses and taxes properly charged to the Trust Fund under the Plan or this
Agreement shall be used for or diverted to purposes other than for the exclusive
benefit of Plan Participants and their beneficiaries (including alternate payees
entitled to benefits under the Plan pursuant to a qualified domestic relations
order described in section 414(p) of the Code).
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ARTICLE II
INVESTMENT AND ADMINISTRATION
SECTION 2.1 IN GENERAL.
The Trust Fund shall be held by the Trustee and shall be
invested and reinvested as hereinafter provided in this Article II, without
distinction between principal and income and without regard to the restrictions
of the laws of any jurisdiction relating to the investment of trust funds.
Subject to section 2.7, the Trust Fund shall be invested at all times, pursuant
to directions given in accordance with section 2.4, primarily in Shares.
SECTION 2.2 INVESTMENT FUNDS.
(a) The Trustee shall establish and maintain, for the
investment of the Trust Fund, such separate investment funds (individually, an
"Investment Fund") as the Company may request by written notice to the Trustee.
In the absence of such notice, the Trust Fund shall consist of a single
Investment Fund.
(b) To the extent directed to do so pursuant to section 2.4,
the Trustee shall hold and invest amounts paid over to it pursuant to this
Agreement in such Investment Funds as shall have been established in accordance
with section 2.2(a), and shall allocate amounts paid over to it among the
Investment Funds in the manner and in the proportion designated by the Plan
Administrator pursuant to the terms of the Plan. The Trustee shall also credit
to each such Investment Fund all earnings and appreciation allocable thereto and
shall charge against each such fund any depreciation, losses, expenses, payments
and distributions allocable thereto.
(c) The Trustee shall invest and reinvest amounts allocated to
each Investment Fund in accordance with such written investment criteria as
shall be established by the Committee and communicated in writing to the
Trustee. Notwithstanding any such investment criteria, the Trustee is authorized
to retain in an Investment Fund, for as long as it is deemed advisable by the
person responsible for directing the investment of the particular Investment
Fund, (i) any securities or other property received by means of a dividend,
distribution, exchange, conversion, liquidation or otherwise than by initial
purchase; and (ii) any investments which were authorized hereunder when made by
the Trustee.
SECTION 2.3 APPOINTMENT OF INVESTMENT MANAGER.
(a) The Committee may, in its discretion, appoint an
investment manager ("Investment Manager") to direct the investment and
reinvestment of an Investment Fund. Any such Investment Manager shall either (i)
be registered as an investment adviser under the Investment Advisers Act of
1940, as amended ("Investment Advisers Act"); (ii) be a bank, as defined in the
Investment Advisers Act; or (iii) be an insurance company qualified to perform
investment services under the laws of more than one state.
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(b) The Plan Administrator shall give written notice to the
Trustee of the appointment of an Investment Manager pursuant to section 2.3(a).
Such notice shall include: (i) a specification of the portion of the Trust Fund
to which the appointment applies; (ii) a certification by the Plan Administrator
that the Investment Manager satisfies the requirements of section 2.3(a)(i),
(ii) or (iii); (iii) a copy of the instruments appointing the Investment Manager
and evidencing the Investment Manager's acceptance of the appointment; (iv)
directions as to the manner in which the Investment Manager is authorized to
give instructions to the Trustee, including the persons authorized to give
instructions and the number of signatures required for any written instruction;
(v) an acknowledgement by the Investment Manager that it is a fiduciary of the
Plan; and (vi) if applicable, a certificate evidencing the Investment Manager's
current registration under the Investment Advisers Act. For purposes of this
Agree ment, the appointment of an Investment Manager pursuant to this section
2.3 shall become effective as of the effective date specified in such notice,
or, if later, as of the date on which the Trustee receives proper notice of such
appointment.
(c) The Plan Administrator shall give written notice to the
Trustee of the resignation or removal of an Investment Manager previously
appointed pursuant to this section 2.3. From and after the date on which the
Trustee receives such notice, or, if later, the effective date of the
resignation or removal specified in such notice, the Committee shall be
responsible, in accordance with this section 2.3, for the investment and
reinvestment of the portion of the Trust Fund theretofore managed by such
Investment Manager, until such time as a successor Investment Manager has been
duly appointed pursuant to this section 2.3.
SECTION 2.4 INVESTMENT DECISIONS.
(a) The Trustee shall invest and reinvest the Trust Fund as
follows:
(i) in accordance with the directions of the Committee; or
(ii) to the extent that an Investment Manager is appointed to
direct the investment of any Investment Fund, in accordance with the
directions of such Investment Manager.
The Trustee shall be under no duty or obligation to review any investment to be
acquired, held or disposed of pursuant to directions of the Committee or any
Investment Manager nor to make any recommendation with respect to the
disposition or continued retention of any such investment. To the extent that
the Trustee is subject to direction by the Committee or an Investment Manager,
the Trustee shall have no liability or responsibility for its actions or
inaction pursuant to the direction of, or its failure to act in the absence of
directions from, the Committee or an Investment Manager, except to the extent
provided in section 5.2. To the extent that the Trustee is subject to direction
by the Committee or an Investment Manager, the Company hereby agrees to
indemnify the Trustee and hold it harmless from and defend it against any claim
or liability which may be asserted against the Trustee by reason of any action
or inaction by it pursuant to a direction by the Committee or by an Investment
Manager or failing to act in the absence of any such direction.
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(b) An Investment Manager appointed pursuant to section 2.3
shall, from time to time, issue orders for the purchase or sale of securities
directly to a broker. Written notification of the issuance of each such order
shall be given promptly to the Trustee by the Committee or the Investment
Manager, and the execution of each such order shall be confirmed by written
advice to the Trustee by the broker. Such notification shall be authority for
the Trustee to pay for securities purchased against receipt thereof and to
deliver securities sold against payment therefor, as the case may be.
(c) To the extent that neither the Committee nor an Investment
Manager furnishes directions as to the investment of any portion of the Trust
Fund that is subject to its direction, the Trustee shall invest and reinvest the
Trust Fund (i) in Shares and (ii) to the extent that it is not practicable to
invest and reinvest the Trust Fund in Shares, in any savings account, time or
other interest bearing deposit or in any other interest bearing obligation of
any one or more savings banks, savings and loan associations, banks and other
financial institutions, or any of them, including the Trustee or any subsidiary
of the Company, or, subject to section 2.5, in any commingled, common or group
trust fund at least 75% of the assets of which are invested in such savings
accounts, time or other interest bearing deposits or other interest bearing
obligations.
SECTION 2.5 INVESTMENT IN COMMINGLED FUNDS.
The Trustee may, if directed to do so by the Committee or an
Investment Manager or if authorized to do so pursuant to section 2.4, invest any
amounts, other than Shares, held by it under this Agreement in any commingled or
group trust fund described in section 401(a) of the Code and exempt under
section 501(a) of the Code or in any common trust fund exempt under section 584
of the Code, provided that such trust fund satisfies the requirements of this
Agreement applicable to such amounts and that the Trustee serves as trustee of
such commingled, group or common trust fund. To the extent that the Trust Fund
is at any time invested in any commingled, group or common trust fund, the
declaration of trust or other instrument pertaining to such fund and any
amendments thereto are hereby adopted as part of this Agreement and deemed to
form a part of the Plan. If there is any conflict between the provisions of this
Agreement and such declaration of trust or other instrument, then the terms of
the declaration of trust or other instrument of the commingled, group or common
trust fund shall govern.
SECTION 2.6 LIQUIDITY.
Notwithstanding any provisions of this Article II to the
contrary, the Trustee, in its sole discretion or as the Plan Administrator shall
request, may retain uninvested cash or cash balances, and sell, to provide cash
or cash balances, such investments in whatever portion of the Trust Fund that it
may deem advisable, without being required to pay interest thereon. Pending
investment, the Trustee, in its sole discretion, may temporarily invest any
funds held or received by it for investment in an investment fund established
hereunder in commercial paper or in obligations of, or guaranteed by, the United
States government or any of its agencies.
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SECTION 2.7 INVESTMENT DIRECTIONS BY PARTICIPANTS.
Each Participant entitled thereto under the terms of the Plan
("Qualified Participant") shall have the right to direct the allocation to the
various Investment Funds established hereunder to be made by the Trustee for a
portion of such Qualified Participant's account under the Plan. The Plan
Administrator shall by written notice furnish the Trustee with the investment
directions for each Qualified Participant's account in the Plan. The Trustee
shall act in accordance with the most recent directions it has received from the
Plan Administrator for each account and shall have no discretion over or
responsibility or liability for its actions taken in accordance with such
directions. The Company hereby agrees to indemnify and defend the Trustee and
hold it harmless from and against any claim asserted against or liability
imposed on the Trustee by reason of its having acted on any direction given by a
Qualified Participant with respect to his own account.
SECTION 2.8 TRUSTEE'S ADMINISTRATIVE AUTHORITY.
(a) In addition to and not by way of limitation of any other
powers conferred upon the Trustee by law or by other provisions of this
Agreement, but subject to the provisions of section 1.3 and this Article II, the
Trustee is authorized and empowered:
(i) subject to section 2.10, to sell, exchange, convey,
transfer or dispose of and also to grant options with respect to any
property, whether real or personal, at any time held by it, and any
sale may be made by private contract or by public auction, and for cash
or upon credit, or partly for cash and partly upon credit, and no
person dealing with the Trustee shall be bound to see to the
application of the purchase money or to inquire into the validity,
expediency or propriety of any such sale or other disposition;
(ii) to retain, manage, operate, repair and rehabilitate and
to mortgage or lease for any period any real estate held by it and, in
its discretion, cause to be formed any corporation or trust to hold
title to any such real property;
(iii) unless otherwise agreed to and subject to sections 2.9
and 2.10, to vote in person or by proxy on any stocks, bonds, or other
securities held by it, to exercise any options appurtenant to any
stocks, bonds or other securities for the conversion thereof into other
stocks, bonds or securities, or to exercise any rights to subscribe for
additional stocks, bonds or other securities and to make any and all
necessary payment therefor and to enter into any voting trust;
(iv) with respect to any investment, to join in, dissent from,
or oppose any action or inaction of any corporation, or of the
directors, officers or stock holders of any corporation, including,
without limitation, any reorganization, recapitalization,
consolidation, liquidation, sale or merger;
(v) to settle, adjust, compromise, or submit to arbitration
any claims, debts or damages due or owing to or from the Trust Fund;
and
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(vi) to deposit any property with any protective,
reorganization or similar committee, to delegate power thereto and to
pay and agree to pay part of its expenses and compensation and any
assessments levied with respect to any property so deposited.
In exercising such powers with respect to any portion of the Trust Fund that is
invested in the discretion of the Trustee or pursuant to section 2.4(c), the
Trustee shall act in its discretion. In exercising such powers with respect to
any portion of the Trust Fund that is invested pursuant to directions of the
Committee or of an Investment Manager, the Trustee shall act in accordance with
directions provided by the Committee or Investment Manager. The Trustee shall be
under no duty or obligation to review any action to be taken, nor to recommend
any action, pursuant to this section 2.8(a) with respect to any portion of the
Trust Fund that is under the direction of the Committee or an Investment
Manager. The Trustee shall have no liability or responsibility for its actions
or inaction pursuant to the direction of, or its failure to act in the absence
of directions from, the Committee or an Investment Manager, except to the extent
provided in section 5.2.
(b) In addition to and not by way of limitation of any other
powers conferred upon the Trustee by law or other provisions of this Agreement,
but subject to section 1.3 and this Article II, the Trustee is authorized and
empowered, in its discretion:
(i) to commence or defend suits or legal proceedings, and to
represent the Trust Fund in all suits or legal proceedings in any court
or before any other body or tribunal;
(ii) to register securities in its name or in the name of any
nominee or nominees with or without indication of the capacity in which
the securities shall be held, or to hold securities in bearer form, but
the books and records of the Trustee shall at all times show that such
investments are part of the Trust Fund;
(iii) subject to section 2.11, to borrow or raise moneys for
the purposes of the Trust Fund from any lender, except the Trustee in
its individual capacity, and for any sum so borrowed to issue its
promissory note as Trustee and to secure the repayment thereof by
pledging all or any part of the Trust Fund, and no person lending money
to the Trustee shall be bound to see the application of the money
loaned or to inquire into the validity, expediency or propriety of any
such borrowing;
(iv) to make distributions in cash or in Shares upon the
direction of the Committee and to make transfers of funds into and out
of the Investment Funds for value or upon the direction of the Plan
Administrator;
(v) to employ such agents, counsel and accountants as the
Trustee shall deem advisable and to pay their reasonable expenses and
compensation;
(vi) to make, execute, acknowledge, and deliver any and all
deeds, leases, assignments and instruments; and
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(vii) generally to do all acts which the Trustee may deem
necessary or desirable for the administration and protection of the
Trust Fund.
SECTION 2.9 EXERCISE OF VOTING RIGHTS WITH RESPECT TO SHARES.
The Committee shall direct the Trustee as to the manner of
exercise of voting rights appurtenant to Shares held in the Trust Fund. The
Trustee shall act in accordance with the directions that it receives from the
Committee for each matter as to which voting rights are to be exercised and
shall refrain from exercising the voting rights appurtenant to Shares held in
the Trust Fund in the absence of such directions. The Trustee shall have no
discretion over or responsibility or liability for its actions taken in
accordance with such directions, or for its failure to exercise such voting
rights in the absence of such directions. The Company hereby agrees to indemnify
the Trustee and hold it harmless from and defend it against any claim asserted
against or liability imposed on the Trustee by reason of its having acted on any
direction given by the Committee in accordance with this section 2.9 or failing
to act in the absence of any such direction.
SECTION 2.10 RESPONSE TO TENDER OFFERS AND SIMILAR EVENTS.
The Committee shall direct the Trustee as to the manner of
exercise of any rights to tender Shares held in the Trust Fund or otherwise act
in response to any tender offer with respect to Shares or any other offer to
purchase, exchange, redeem or otherwise transfer such Shares. The Trustee shall
act in accordance with the directions that it receives from the Committee for
each matter as to which such rights are to be exercised and shall refrain from
taking any action in response to such an offer in the absence of such
directions. The Trustee shall have no discretion over or responsibility or
liability for its actions taken in accordance with such directions, or for its
failure to exercise such rights in the absence of such directions. The Company
hereby agrees to indemnify the Trustee and hold it harmless from and defend it
against any claim asserted against or liability imposed on the Trustee by reason
of its having acted on any direction given by the Committee in accordance with
this section 2.10 or failing to act in the absence of any such direction.
SECTION 2.11 SHARE ACQUISITION LOANS.
(a) The Trustee shall, if directed to do so by the Committee,
obtain a loan ("Share Acquisition Loan") on behalf of the Plan and shall apply
the proceeds of such Share Acquisition Loan in the proportions directed by the
Committee:
(i) to purchase Shares; or
(ii) to make payments of principal or interest, or a
combination of principal and interest, with respect to such Share
Acquisition Loan; or
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(iii) to make payments of principal and interest, or a
combination of principal and interest, with respect to a previously
obtained Share Acquisition Loan that is then outstanding.
Any such Share Acquisition Loan shall be on such terms and conditions as the
Committee may determine, and the Trustee shall have no duty or obligation to
inquire as to the expediency or propriety of any such Share Acquisition Loan or
any of the terms and conditions thereof.
(b) If directed to do so by the Committee, the Trustee shall
execute a promissory note, in its capacity as Trustee, evidencing the obligation
of the Plan to repay a Share Acquisition Loan and shall pledge, in such
proportions as the Committee may direct, the following assets of the Plan as
collateral for such Share Acquisition Loan:
(i) any Shares purchased with the proceeds of such Share
Acquisition Loan; and
(ii) any Shares purchased with the proceeds of a previous
Share Acquisition Loan, provided that such previous Share Acquisition
Loan is repaid with the proceeds of the Share Acquisition Loan for
which such Shares are pledged.
Any Share Acquisition Loan shall be without recourse against the Plan or the
Trustee, and, except as specifically provided in this section 2.11, no assets of
the Plan shall be pledged as collateral for a Share Acquisition Loan.
(c) The Trustee shall apply the Company's contributions to the
Trust Fund, the earnings on such contributions, and the earnings with respect to
Shares that shall have been pledged as collateral for a Share Acquisition Loan,
in such proportions as the Committee may direct, to the payment of principal and
interest with respect to such Share Acquisition Loan.
ARTICLE III
TRUSTEE, PLAN ADMINISTRATOR AND COMMITTEE
SECTION 3.1 COMMITTEE AND PLAN ADMINISTRATOR.
The Company shall certify to the Trustee the names and
specimen signatures of the Plan Administrator and of the members of the
Committee appointed by the Company to administer the Plan and give directions to
the Trustee. Such certification shall include directions as to the number of
signatures required for any communication or direction to the Trustee. The
Company shall promptly give notice to the Trustee of changes in the identity of
the Plan Administrator or in the membership of the Committee. The Plan
Administrator or the Committee may also certify to the Trustee the name of any
person, together with a specimen signature of any such person, authorized to act
for it in relation to the Trustee. The Plan
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Administrator or the Committee shall promptly give notice to the Trustee of any
change in any person authorized to act on behalf of it. For all purposes under
this Agreement, until any such notice is received by the Trustee, the Trustee
shall be fully protected in assuming that the identity of the Plan
Administrator, the membership of the Committee and the authority of any person
certified to act in its behalf remain unchanged.
SECTION 3.2 TRUSTEE'S RELIANCE.
The Trustee may rely and act upon any certificate, notice or
direction of the Plan Administrator or the Committee, or of a person authorized
to act on its behalf, or of the Company or of an Investment Manager which the
Trustee believes to be genuine and to have been signed by the person or persons
duly authorized to sign such certificate, notice, or direction.
SECTION 3.3 LEGAL COUNSEL.
The Trustee may consult with legal counsel (who may, but need
not, be counsel to the Company) concerning any question which may arise under
this Agreement, and the opinions of such counsel shall be full and complete
protection with respect to any action taken, or omitted, by the Trustee
hereunder in good faith in accordance with the opinion of such counsel.
SECTION 3.4 LIABILITY UNDER THE PLAN.
The duties and obligations of the Trustee shall be limited to
those expressly set forth in this Agreement, notwithstanding any reference
herein to the Plan. The Trustee shall not be obliged to take or defend any
action or participate in or proceed with any suit or legal or administrative
proceeding which might subject it to substantial cost or expense or liability
unless first indemnified by the Company in an amount and by security
satisfactory to it against all losses, costs, damages and expenses which may
result therefrom or be occasioned thereby.
ARTICLE IV
DISTRIBUTIONS FROM THE TRUST FUND
SECTION 4.1 IN GENERAL.
The Trustee shall make payments from the Trust Fund in such
amounts, at such times, and to such persons as the Plan Administrator may, from
time to time, direct.
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SECTION 4.2 DIRECTION BY THE PLAN ADMINISTRATOR.
(a) A direction by the Plan Administrator to make a
distribution from the Trust Fund shall:
(i) be made in writing;
(ii) specify the amount of the payment or the number of Shares
to be distributed, the date such payment is to be made, the person to
whom payment is to be made, and the address to which the payment is to
be sent; and
(iii) be deemed to certify to the Trustee that such direction
and any payment pursuant thereto are authorized under the terms of the
Plan.
(b) The Trustee shall be entitled to rely conclusively on the
Plan Administrator's certification of its authority to direct a payment without
independent investigation. The Trustee shall have no liability to any person
with respect to payments made in accordance with the provisions of this Article
IV.
SECTION 4.3 METHOD OF PAYMENT.
Payments of money by the Trustee may be made by its check
payable to the order of the payee designated by the Plan Administrator and
mailed to the payee's address last furnished to the Trustee by the Plan
Administrator, or, if no such address has been so furnished, to the payee in
care of the Company. Distributions of Shares shall be made by causing the
Company, or its transfer agent, to issue to the distributee a stock certificate
evidencing ownership of the designated number of Shares. To the extent that any
distribution of Shares to any person requires the registration of such Shares
under the securities or blue sky laws of the United States or any state, or
otherwise requires any governmental approvals, the Company shall undertake to
complete such registration or obtain such approvals at its sole expense.
ARTICLE V
RESPONSIBILITIES
SECTION 5.1 GENERAL STANDARD OF CARE.
The Trustee, the Plan Administrator, the members of the
Committee and any Investment Manager shall at all times discharge their duties
with respect to the Trust Fund solely in the interest of the Plan Participants
and their beneficiaries (including alternate payees entitled to benefits under
the Plan pursuant to a qualified domestic relations order described in section
414(p) of the Code) and with the care, skill, prudence, and diligence that,
under the
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circumstances prevailing, a prudent man 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.
SECTION 5.2 NO LIABILITY FOR ACTS OF OTHERS.
(a) Subject to section 5.2(b), no "fiduciary" (as such term is
defined in section 3(21) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) under this Agreement shall be liable for an act or
omission of another person in carrying out any fiduciary responsibility where
such fiduciary responsibility is allocated to such other person by this
Agreement or pursuant to a procedure established in this Agreement except to the
extent that:
(i) such fiduciary participated knowingly in, or knowingly
undertook to conceal, an act or omission of such other person, knowing
such act or omission to be a breach of fiduciary responsibility;
(ii) such fiduciary, by his failure to comply with section
404(a)(1) of ERISA in the administration of his specific
responsibilities which give rise to his status as a fiduciary, has
enabled such other person to commit a breach of fiduciary
responsibility;
(iii) such fiduciary has knowledge of a breach of fiduciary
responsibility by such other person, unless he makes reasonable efforts
under the circumstances to remedy the breach; or
(iv) such fiduciary is a "named fiduciary" (as such term is
defined in section 402(a)(2) of ERISA) and has violated his duties
under section 404(a)(1) of ERISA:
(A) with respect to the allocation of fiduciary
responsibilities among named fiduciaries or the designation of
persons other than named fiduciaries to carry out fiduciary
responsibilities under this Agreement;
(B) with respect to the establishment or
implementation of procedures for allocating fiduciary
responsibilities among named fiduciaries or for designating
persons other than named fiduciaries to carry out fiduciary
responsibilities under this Agreement; or
(C) in continuing the allocation of fiduciary
responsibilities among named fiduciaries or the designation of
persons other than named fiduciaries to carry out fiduciary
responsibilities under this Agreement.
(b) Notwithstanding anything in this Agreement to the
contrary, the Trustee shall have no liability or responsibility for an act or
omission of an Investment Manager appointed pursuant to section 2.3 in carrying
out its fiduciary responsibilities with respect to the Plan, unless the Trustee
(i) by its failure to comply with section 404(a)(1) of ERISA in the
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administration of its specific responsibilities which give rise to its status as
a fiduciary, has enabled such Investment Manager to commit a breach of fiduciary
responsibility, or (ii) participated knowingly in, or knowingly undertook to
conceal, an act or omission of such Investment Manager, knowing such act or
omission to be a breach of fiduciary responsibility.
SECTION 5.3 COMPLIANCE WITH ERISA.
Notwithstanding anything in this Agreement, as amended from
time to time, to the contrary, no provision of this Agreement shall be construed
so as to violate the requirements of ERISA.
ARTICLE VI
TRUSTEE'S ACCOUNTS
SECTION 6.1 ACCOUNTS.
The Trustee shall keep accurate and detailed accounts of all
investments, reinvestments, receipts and disbursements, and other transactions
hereunder, and all such accounts and the books and records relating thereto
shall be open to inspection at all reasonable times by the Company or the Plan
Administrator or persons designated by them.
SECTION 6.2 VALUATION OF TRUST FUND.
The Trustee shall value or cause to be valued the Trust Fund
and any Investment Fund that has been established hereunder as of the last
business day of each calendar quarter ("Valuation Date"), and shall report to
the Plan Administrator the value of the Trust Fund and each Investment Fund as
of such date, within a reasonable time after the first day of the month next
succeeding each Valuation Date.
SECTION 6.3 REPORTS TO THE PLAN ADMINISTRATOR.
(a) Within seventy-five (75) days following the last day of
each fiscal year of the trust, and within seventy-five (75) days following the
effective date of the resignation or removal of the Trustee as provided in
section 8.1, the Trustee shall render to the Plan Administrator a written
account setting forth all investments, receipts, disbursements and other
transactions affecting the Trust Fund or any Investment Fund, which account
shall be signed by the Trustee and mailed to the Plan Administrator.
(b) The Plan Administrator shall notify the Trustee in writing
of any objection or exception to an account so rendered not later than sixty
(60) days following the date on which
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the Account was mailed to the Plan Administrator, whereupon the Plan
Administrator and the Trustee shall cooperate in resolving such objection or
exception.
(c) If the Plan Administrator has not communicated in writing
to the Trustee within sixty (60) days following the mailing of the account to
the Plan Administrator any exception or objection to the account, the account
shall become an account stated at the end of such sixty (60) day period. If the
Plan Administrator does communicate such an exception or objection, as to which
it later becomes satisfied, the Plan Administrator shall thereupon indicate in
writing its approval of the account, or of the account as amended, and the
account shall thereupon become an account stated.
(d) Whenever an account shall have become an account stated as
aforesaid, such account shall be deemed to be finally settled and shall be
conclusive upon the Trustee, the Company and all persons having or claiming to
have any interest in the Trust Fund or under the Plan, and the Trustee shall be
fully and completely discharged and released to the same extent as if the
account had been settled and allowed by a judgment or decree of a court of
competent jurisdiction in an action or proceeding in which the Trustee, the
Company, and all persons having or claiming to have any interest in the Trust
Fund or under the Plan were parties.
SECTION 6.4 RIGHT OF JUDICIAL SETTLEMENT.
Notwithstanding the provisions of section 6.3, the Trustee,
the Plan Administrator, and the Company, or any of them, shall have the right to
apply at any time to a court of competent jurisdiction for the judicial
settlement of the Trustee's account. In any such case, it shall be necessary to
join as parties thereto only the Trustee, the Plan Administrator and the
Company; and any judgment or decree which may be entered therein shall be
conclusive upon all persons having or claiming to have any interest in the Trust
Fund or under the Plan.
SECTION 6.5 ENFORCEMENT OF AGREEMENT.
To protect the Trust Fund from expenses which might otherwise
be incurred, the Company and the Plan Administrator shall have authority, either
jointly or severally, to enforce this Agreement on behalf of all persons
claiming any interest in the Trust Fund or under the Plan, and no other person
may institute or maintain any action or proceeding against the Trustee or the
Trust Fund in the absence of written authority from the Plan Administrator or a
judgment of a court of competent jurisdiction that in refusing authority the
Plan Administrator acted fraudulently or in bad faith.
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ARTICLE VII
TAXES; COMPENSATION OF TRUSTEE
SECTION 7.1 TAXES.
Any taxes that may be imposed upon the Trust Fund or the
income therefrom shall be deducted from and charged against the Trust Fund or to
the particular Investment Funds to which such taxes are applicable.
SECTION 7.2 COMPENSATION OF TRUSTEE; EXPENSES.
The Trustee shall receive for its services hereunder such
compensation as may be agreed upon in writing from time to time by the Company
and the Trustee and shall be reimbursed for its reasonable expenses, including
counsel fees, incurred in the performance of its duties hereunder. The Trustee
shall deduct from and charge against the Trust Fund such compensation and all
such expenses unless previously paid by the Company, except that all commissions
paid in connection with the acquisition or sale of Shares shall be paid by the
Company. Expenses of the Trust Fund, as well as compensation of the Trustee,
that are not paid by the Company and that are general in nature and not directly
related to a particular Investment Fund shall be charged to the Trust Fund and
allocated to each of the Investment Funds in the same proportion that the value
of each such Investment Fund bears to the value of the Trust Fund on the
Valuation Date next preceding the date of such payments. Any expenses directly
related to a particular Investment Fund that are not paid by the Company shall
be charged to such Investment Fund.
ARTICLE VIII
RESIGNATION AND REMOVAL OF TRUSTEE
SECTION 8.1 RESIGNATION OR REMOVAL OF TRUSTEE.
The Trustee may resign as trustee hereunder at any time by
giving sixty (60) days prior written notice to the Company. The Company may
remove the Trustee as trustee hereunder at any time by giving the Trustee prior
written notice of such removal, which shall include notice of the appointment of
a successor trustee. Such removal shall take effect not earlier than sixty (60)
days following receipt of such notice by the Trustee unless otherwise agreed
upon by the Trustee and the Company. If one or more individuals shall be serving
as trustee, the death or incapacity of any such individual shall be deemed a
resignation effective as of such death or disability.
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SECTION 8.2 APPOINTMENT OF SUCCESSOR.
In the event of the resignation or removal of the Trustee, a
successor trustee shall be appointed by the Company. Except as is otherwise
provided in section 8.1, such appointment shall take effect upon delivery to the
Trustee of an instrument so appointing the successor and an instrument of
acceptance executed by such successor, both of which instruments shall be duly
acknowledged before a notary public. If within sixty (60) days after notice of
resignation shall have been given by the Trustee a successor shall not have been
appointed as aforesaid, the Trustee may apply to any court of competent
jurisdiction for the appointment of such successor.
SECTION 8.3 SUCCESSION.
(a) Upon the appointment of a successor, the Trustee shall
transfer and deliver the Trust Fund to such successor; provided, however, that
the Trustee may reserve such sum of money as it shall in its sole discretion
deem advisable for payment of its fees and all expenses in connection with the
settlement of its account, and any balance of such reserve remaining after the
payment of such charges shall be paid over to the successor trustee. If such
reserve shall be insufficient to pay such charges, the Trustee shall be entitled
to recover the amount of any deficiency from the Company, from the successor
trustee, or from both.
(b) Upon the completion of the succession and the rendering of
its final accounts, the Trustee shall have no further responsibilities
whatsoever under this Agreement.
SECTION 8.4 SUCCESSOR BOUND BY AGREEMENT.
All the provisions of this Agreement shall apply to any
successor trustee with the same force and effect as if such successor had been
originally named herein as the trustee hereunder.
ARTICLE IX
AMENDMENT AND TERMINATION
SECTION 9.1 AMENDMENT AND TERMINATION.
(a) The Company may, at any time and from time to time, by
instrument in writing executed pursuant to authorization of its Board of
Directors, (i) amend in whole or in part any or all of the provisions of this
Agreement, or (ii) terminate this Agreement and the trust created hereby;
provided, however, that no amendment which affects the rights, duties or
responsibilities of the Trustee may be made without the Trustee's consent; and
provided further that no such amendment shall divert any part of the Trust Fund
to purposes other than for the exclusive benefit of the Plan Participants or
their beneficiaries (including alternate payees entitled
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to benefits under the Plan pursuant to a qualified domestic relations order
described in section 414(p) of the Code) at any time prior to the satisfaction
of all liabilities with respect to such Participants and their beneficiaries
under the Plan and this Agreement.
(b) Any such amendment shall become effective upon receipt by
the Trustee of the instrument of amendment and endorsement thereon by the
Trustee of its consent thereto, if such consent is required. Any such
termination shall become effective upon the receipt by the Trustee of the
instrument of termination; thereafter the Trustee, upon the direction of the
Plan Administrator, shall liquidate the Trust Fund to the extent required for
distribution and, after the final account of the Trustee has been approved or
settled, shall distribute the balance of the Trust Fund remaining in its hands
as directed by the Plan Administrator, or in the absence of such direction, as
may be directed by a judgment or decree of a court of competent jurisdiction.
Following any such termination, the powers of the Trustee hereunder shall
continue as long as any of the Trust Fund remains in its hands.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 BINDING EFFECT; ASSIGNABILITY.
This Agreement shall be binding upon, and the powers granted
to the Company and the Trustee, respectively, shall be exercisable by the
respective successors and assigns of the Company and the Trustee. Any
corporation which shall, by merger, consolidation, purchase, or otherwise,
succeed to substantially all the trust business of the Trustee shall, upon such
succession and without any appointment or other action by the Company, be and
become successor trustee hereunder.
SECTION 10.2 GOVERNING LAW.
Except to the extent that the federal law of the United States
of America is applicable, this Agreement and the trust created and the Trust
Fund held hereunder shall be interpreted, construed and administered in
accordance with the law of the State of Illinois applicable to contracts to be
performed entirely within the State of Illinois and between parties all of whom
are citizens and residents of such state. All contributions to the Trust Fund
shall be deemed to take place in the State of Illinois.
SECTION 10.3 NOTICES.
Any communication requested or permitted to be given under
this Agreement, including any notice, direction, designation, certification,
order, instruction, or objection shall be in writing and signed by the person
authorized under the Plan to give the communication.
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The person receiving such a communication shall be fully protected in acting in
accordance therewith. Any notice required or permitted to be given to a party
hereunder shall be deemed given if in writing and hand delivered or mailed,
postage prepaid, certified mail, return receipt requested, to such party at the
following address or at such other address as such party may by notice specify:
If to the Company:
Big Foot Financial Corp.
0000 XXX
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Executive Officer
If to the Trustee:
Big Foot Financial Corp.
Employee Stock Ownership Plan Trust
c/o Big Foot Financial Corp.
0000 XXX
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Messrs. Xxxxxx X. Xxxxxx, Xxxxxxx X.
XxXxx and F. Xxxxxxx Xxxxxx, a Trustee
SECTION 10.4 SEVERABILITY.
The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
provisions.
SECTION 10.5 WAIVER.
Failure of any party to insist at any time or times upon
strict compliance with any provision of this Agreement shall not be a waiver of
such provision at such time or any later time unless in a writing designated as
a waiver and signed by or on behalf of the party against whom enforcement of the
waiver is sought.
SECTION 10.6 NON-ALIENATION.
No interest, right or claim in or to any part of the Trust
Fund or any payment therefrom shall be assignable, transferable or subject to
sale, mortgage, pledge, hypothecation, commutation, anticipation, garnishment,
attachment, execution, or levy of any kind, and the Trustee and the Plan
Administrator shall not recognize any attempt to assign, transfer, sell,
-19-
mortgage, pledge, hypothecate, commute, or anticipate the same, except to the
extent required by law.
SECTION 10.7 QUALIFIED PLAN AND TRUST.
This Agreement and the trust hereby created are part of an
employee benefit plan which the Company intends shall be qualified under section
401(a) of the Code and until advised to the contrary, the Trustee may assume
that the Plan so qualifies and that the trust is exempt from tax under section
501(a) of the Code. However, any taxes that may be assessed on or in respect of
the Trust Fund shall be a charge against the Trust Fund. All contributions made
prior to the receipt by the Company of a determination from the Internal Revenue
Service to the effect that the trust forming part of the Plan is a qualified
trust under section 401(a) of the Code and that the trust is exempt from federal
income tax under section 501(a) of the Code shall be made on the express
condition that such a determination is received, and in the event that the
Internal Revenue Service determines that the trust and Plan are not so
qualified, all contributions made prior to the date of the receipt of such
determination, after giving effect to any income, gain or loss, less any
compensation and expenses properly chargeable thereto, shall be returned to the
Company.
SECTION 10.8 RETURN OF CONTRIBUTIONS.
(a) In the event that any contribution to the Trust Fund by
the Company shall be the result of a mistake of fact, such contribution (after
giving effect to any income gain or loss, less any compensation or expenses
properly chargeable thereto) shall be returned to the Company promptly upon
discovery of the mistake of fact; PROVIDED, HOWEVER, that no such return shall
be made after the first anniversary of the date of the contribution.
(b) In the event that a contribution to the Trust Fund by the
Company shall be conditioned upon its deductibility under the Code, the amount
of such contribution which shall have been disallowed as a deduction shall be
returned to the Company within one (1) year after the date on which it is
disallowed.
SECTION 10.9 COMPLIANCE WITH SECURITIES LAWS.
In the event that the Plan or any portion thereof, or any
interest therein, by virtue of investments made in Shares, shall be deemed to be
a "security" for purposes of the Securities Act of 1933, the Securities Exchange
Act of 1934 or any other federal or state law, for which there is no exemption
from the registration, reporting, blue sky or other requirements applicable to
securities under such laws, the Company shall, at its sole cost and expense,
take all such actions as are necessary or appropriate to comply with the
requirements of such laws. The Company hereby agrees to indemnify the Trustee
and hold it harmless from and against any claim or liability which may be
asserted against the Trustee by reason of any determination that the Plan or any
portion thereof, or any interest therein, constitutes such a security.
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SECTION 10.10 HEADINGS.
The headings of Articles and sections are included solely for
convenience of reference. If there is any conflict between such headings and the
text of the Agreement, the text shall control.
SECTION 10.11 CONSTRUCTION OF LANGUAGE.
Whenever appropriate in this Agreement, words used in the
singular may be read in the plural; words used in the plural may be read in the
singular; and words importing the masculine gender shall be deemed equally to
refer to the female gender or the neuter. Any reference to a section number
shall refer to a section of this Agreement, unless otherwise indicated.
SECTION 10.12 COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Trustee, respectively,
have caused this Agreement to be executed in their corporate names and their
corporate seals to be hereunto affixed and duly attested, on the dates indicated
below their respective signatures.
BIG FOOT FINANCIAL CORP.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Title: President
--------------------------------
Date: December 10, 1996
--------------------------------
ATTEST:
/s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx
Secretary
[Seal]
BIG FOOT FINANCIAL CORP.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
BY: XXXXXX X. XXXXXX,
XXXXXXX X. XXXXX AND
F. XXXXXXX XXXXXX, AS TRUSTEE
AND NOT IN ANY OTHER CAPACITY
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Date: December 10, 1996
By: /s/ Xxxxxxx X. XxXxx
-----------------------------------
Xxxxxxx X. XxXxx
Date: December 10, 1996
By: /s/ F. Xxxxxxx Xxxxxx
-----------------------------------
F. Xxxxxxx Xxxxxx
Date: December 10, 1996
