UNION COMMUNITY BANCORP EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST AGREEMENT (EFFECTIVE JANUARY 1, 1997)
Exhibit
10.4
EMPLOYEE
STOCK OWNERSHIP PLAN AND
(EFFECTIVE
JANUARY 1, 1997)
EMPLOYEE
STOCK OWNERSHIP PLAN AND
(EFFECTIVE
JANUARY 1, 1997)
TABLE
OF CONTENTS
Page
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ARTICLE
I
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DEFINITIONS
|
-1-
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Section
1.1
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Accrued
Company Contributions Benefit
|
-1-
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Section
1.2
|
Act
|
-1-
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Section
1.3
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Anniversary
Date
|
-1-
|
|
Section
1.4
|
Annual
Addition
|
-1-
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|
Section
1.5
|
Bank
|
-1-
|
|
Section
1.6
|
Beneficiary
|
-2-
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Section
1.7
|
Code
|
-2-
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Section
1.8
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Committee
|
-2-
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Section
1.9
|
Company
|
-2-
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Section
1.10
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Company
Contributions Account
|
-2-
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Section
1.11
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Compensation
|
-2-
|
|
Section
1.12
|
Date
of Employment
|
-3-
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Section
1.13
|
Date
of Separation
|
-3-
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Section
1.14
|
Deferred
Retirement
|
-3-
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|
Section
1.15
|
Deferred
Retirement Date
|
-3-
|
|
Section
1.16
|
Defined
Benefit Fraction
|
-3-
|
|
Section
1.17
|
Defined
Contribution Fraction
|
-3-
|
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Section
1.18
|
Effective
Date
|
-4-
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Section
1.19
|
Employee
|
-4-
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Section
1.20
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Exempt
Loan
|
-4-
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Section
1.21
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Fund
|
-4-
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Section
1.22
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Highly
Compensated Employee
|
-4-
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Section
1.23
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Holding
Company
|
-5-
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Section
1.24
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Hour
of Service
|
-5-
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Section
1.25
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Leave
of Absence
|
-6-
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Section
1.26
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Normal
Retirement
|
-6-
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Section
1.27
|
Normal
Retirement Date
|
-6-
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Section
1.28
|
One
Year Service Break
|
-6-
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Section
1.29
|
Participant
|
-6-
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Section
1.30
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Period
of Separation
|
-6-
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Section
1.31
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Period
of Service
|
-6-
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Section
1.32
|
Period
of Severance
|
-7-
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Section
1.33
|
Plan
|
-7-
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Section
1.34
|
Plan
Year
|
-7-
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|
Section
1.35
|
Re-employed
Individual
|
-8-
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Section
1.36
|
Section
415 Compensation
|
-8-
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|
Section
1.37
|
Stock
|
-9-
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Section
1.38
|
Top
Paid Group
|
-9-
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Section
1.39
|
Total
Disability
|
-10-
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Section
1.40
|
Trust
|
-10-
|
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Section
1.41
|
Trustee
|
-10-
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Section
1.42
|
Valuation
Date
|
-10-
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Section
1.43
|
Year
of Service
|
-10-
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ARTICLE
II
|
ELIGIBILITY
AND PARTICIPATION
|
-11-
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Section
2.1
|
Eligibility
|
-11-
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Section
2.2
|
Entry
Dates
|
-11-
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Section
2.3
|
Certification
by Company
|
-11-
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Section
2.4
|
Deferred
Retirement
|
-11-
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ARTICLE
III
|
COMPANY
CONTRIBUTIONS
|
-12-
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Section
3.1
|
Company
Contributions
|
-12-
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Section
3.2
|
Form
of Contributions
|
-12-
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|
Section
3.3
|
Holding
by Trustee
|
-12-
|
|
Section
3.4
|
Expenses
|
-12-
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|
Section
3.5
|
No
Company Liability for Benefits
|
-12-
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Section
3.6
|
No
Rollover Contributions
|
-12-
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ARTICLE
IV
|
ALLOCATION
TO PARTICIPANTS’ ACCOUNTS
|
-13-
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Section
4.1
|
Company
Contributions Accounts
|
-13-
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Section
4.2
|
Allocation
of Company Contributions
|
-13-
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Section
4.3
|
Limitations
on Annual Additions
|
-13-
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Clause
(a). Basic Limitations
|
-13-
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Clause
(b). Participation in Other Plans
|
-14-
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||
Section
4.4
|
Effective
Date of Allocations
|
-14-
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Section
4.5
|
Cash
Dividends
|
-14-
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Section
4.6
|
Allocation
of Forfeitures
|
-14-
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Section
4.7
|
Special
Allocation Rules
|
-15-
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Section
4.8
|
Rehire
after Military Service
|
-16-
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ARTICLE
V
|
VALUATIONS
AND ADJUSTMENTS
|
-16-
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Section
5.1
|
Valuation
of Fund
|
-16-
|
|
Clause
(a). Valuations
|
-16-
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Clause
(b). Frequency
|
-16-
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||
Clause
(c). Records
|
-17-
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||
Section
5.2
|
Adjustments
|
-17-
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Section
5.3
|
Amount
of Adjustments
|
-17-
|
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Section
5.4
|
Effective
Date of Adjustments
|
-17-
|
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Section
5.5
|
Notice
to Participants
|
-18-
|
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ARTICLE
VI
|
BENEFITS
|
-18-
|
|
Part
A
|
Retirement
Benefits
|
-18-
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|
Section
6.1
|
Retirement
|
-18-
|
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Part
B
|
Termination
Benefits
|
-18-
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Section
6.2
|
Effect
of Termination
|
-18-
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Section
6.3
|
Vesting
|
-18-
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Section
6.4
|
Payment
|
-19-
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|
Part
C
|
Death
Benefits
|
-19-
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Section
6.5
|
Benefits
upon Death
|
-20-
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Section
6.6
|
Beneficiaries
|
-20-
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Section
6.7
|
Lack
of Beneficiaries
|
-20-
|
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Section
6.8
|
Termination
or Retirement prior to Death
|
-20-
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Part
D
|
General
|
-20-
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Section
6.9
|
Date
of Distribution
|
-20-
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Section
6.10
|
Form
of Distribution
|
-21-
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Section
6.11
|
Liability
|
-21-
|
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Section
6.12
|
Right
of First Refusal
|
-22-
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Section
6.13
|
Put
Options
|
-22-
|
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Section
6.14
|
Eligible
Rollover Distributions
|
-23-
|
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ARTICLE
VII
|
ADMINISTRATIVE
COMMITTEE
|
-23-
|
|
Section
7.1
|
Establishment
|
-23-
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Section
7.2
|
Duties
|
-24-
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Section
7.3
|
Actions
|
-24-
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Section
7.4
|
Disqualification
|
-24-
|
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Section
7.5
|
Powers
|
-24-
|
|
Section
7.6
|
Discrimination
Prohibited
|
-24-
|
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Section
7.7
|
Statements
and Forms
|
-25-
|
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Section
7.8
|
Liability
|
-25-
|
|
Section
7.9
|
Determination
of Right to Benefits
|
-25-
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Section
7.10
|
Investment
Directions
|
-25-
|
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Section
7.11
|
Voting
Powers
|
-25-
|
|
ARTICLE
VIII
|
THE
TRUSTEE
|
-26-
|
|
Section
8.1
|
Assets
Held in Trust
|
-26-
|
|
Section
8.2
|
Investments
|
-26-
|
|
Section
8.3
|
Directions
of Committee
|
-26-
|
Section
8.4
|
Receipt
of Additional Shares
|
-26-
|
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Section
8.5
|
Delivery
of Materials to Committee
|
-27-
|
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Section
8.6
|
Powers
|
-27-
|
|
Section
8.7
|
Loans
to the Trust
|
-00-
|
|
Xxxxxx
(x). Xxxxxxxx
|
-00-
|
||
Xxxxxx
(x). Use of Proceeds
|
-28-
|
||
Clause
(c). Terms of Exempt Loan
|
-28-
|
||
Clause
(d). Collateral
|
-28-
|
||
Clause
(e). Limited Recourse
|
-29-
|
||
Clause
(f). Repayment
|
-29-
|
||
Clause
(g). Agreement by Companies
|
-29-
|
||
Clause
(h). Release of Collateral
|
-29-
|
||
Clause
(i). Default
|
-30-
|
||
Clause
(j). Termination of Plan
|
-30-
|
||
Section
8.8
|
Annual
Accounting
|
-30-
|
|
Section
8.9
|
Audit
|
-30-
|
|
Section
8.10
|
Uncertainty
Concerning Payment of Benefits
|
-30-
|
|
Section
8.11
|
Compensation
|
-31-
|
|
Section
8.12
|
Standard
of Care
|
-31-
|
|
Section
8.13
|
Request
for Instructions
|
-31-
|
|
Section
8.14
|
Resignation
of Trustee
|
-31-
|
|
Section
8.15
|
Vacancies
in Trusteeship
|
-31-
|
|
Section
8.16
|
Information
to Be Furnished
|
-32-
|
|
Section
8.17
|
Voting
Rights of Participants
|
-32-
|
|
Section
8.18
|
Delegation
of Authority
|
-32-
|
|
Section
8.19
|
Diversification
of Company Contributions Account
|
-33-
|
|
Section
8.20
|
Tender
Offer
|
-33-
|
|
ARTICLE
IX
|
AMENDMENT,
TERMINATION AND MERGER
|
-33-
|
|
Section
9.1
|
Amendment
|
-33-
|
|
Section
9.2
|
Termination
or Complete Discontinuance of Contributions
|
-34-
|
|
Section
9.3
|
Determination
by Internal Revenue Service
|
-35-
|
|
Section
9.4
|
Nonreversion
|
-35-
|
|
Section
9.5
|
Merger
|
-35-
|
|
ARTICLE
X
|
MISCELLANEOUS
|
-36-
|
|
Section
10.1
|
Creation
of Plan Voluntary
|
-36-
|
|
Section
10.2
|
No
Employment Contract
|
-36-
|
|
Section
10.3
|
Limitation
on Rights Created
|
-36-
|
|
Section
10.4
|
Waiver
of Claims
|
-36-
|
|
Section
10.5
|
Spendthrift
Provision
|
-36-
|
|
Section
10.6
|
Payment
of Benefits to Others
|
-37-
|
Section
10.7
|
Payments
to Missing Persons
|
-37-
|
|
Section
10.8
|
Severability
|
-37-
|
|
Section
10.9
|
Captions
|
-37-
|
|
Section
10.10
|
Construction
|
-37-
|
|
Section
10.11
|
Counterparts
|
-37-
|
|
Section
10.12
|
Indemnification
|
-37-
|
|
Section
10.13
|
Standards
of Interpretation and Administration
|
-38-
|
|
Section
10.14
|
Governing
Law
|
-38-
|
|
Section
10.15
|
Successors
and Assigns
|
-38-
|
|
Section
10.16
|
Adoption
of Plan
|
-38-
|
|
Section
10.17
|
Withdrawal
from Plan
|
-38-
|
|
ARTICLE
XI
|
TEFRA
TOP-HEAVY RULES
|
-38-
|
|
Section
11.1
|
Application
|
-38-
|
|
Section
11.2
|
Determination
|
-38-
|
|
Section
11.3
|
Accrued
Benefits
|
-40-
|
|
Section
11.4
|
Vesting
Provision
|
-40-
|
|
Section
11.5
|
Minimum
Contribution
|
-41-
|
|
Section
11.6
|
Code
Section 415 Limitations
|
-00-
|
XXXXX
XXXXXXXXX BANCORP
EMPLOYEE
STOCK OWNERSHIP PLAN AND
(EFFECTIVE
JANUARY 1, 1997)
ARTICLE
I
DEFINITIONS
Section
1.1.
“Accrued
Company Contributions Benefit”
shall
mean the balance of a Participant’s Company Contributions Account as of the last
preceding Valuation Date.
Section
1.2.
“Act”
shall
mean the Employee Retirement Income Security Act of 1974, as now in effect
or
hereafter amended, and shall also include all regulations promulgated
thereunder.
Section
1.3.
“Anniversary
Date”
shall
mean the last calendar day of any Plan Year.
Section
1.4.
“Annual
Addition”
shall
mean, with respect to any Participant for any Plan Year and with respect
to this
Plan and to all other qualified defined contribution plans maintained by
a
Company, the sum of:
(a)
|
Company
contributions credited to his Company Contributions Account for
that Plan
Year under this Plan;
|
(b)
|
that
Participant’s non-deductible
contributions;
|
(c)
|
forfeitures;
and
|
(d)
|
amounts
allocated to an individual medical account as defined in Section
415(1)(2)
of the Code which is part of a qualified defined benefit plan maintained
by a Company shall be treated as Annual Additions to a qualified
defined
contribution plan, and amounts derived from Company contributions
paid or
accrued in taxable years ending after such date which are attributable
to
post-retirement medical benefits allocated to the separate account
of a
key employee as defined in Section 416 of the Code under a welfare
benefit
fund as defined in Section 419(e) of the Code maintained by a Company
shall also be treated as Annual Additions to a qualified defined
contribution plan.
|
Annual
Additions shall not include any amounts allocated as income to a Participant’s
Company Contributions Account in accordance with Section 8.7(j).
Section
1.5.
“Bank”
means
the Union Federal Savings & Loan Association and any successor
thereto.
1
Section
1.6.
“Beneficiary”
shall
mean the person(s) entitled under the provisions of Section 6.5 to receive
benefits after the death of a Participant.
Section
1.7.
“Code”
shall
mean the Internal Revenue Code of 1986, as now in effect or hereafter amended,
and shall also include all regulations promulgated thereunder.
Section
1.8.
“Committee”
shall
mean the administrative committee appointed and acting in accordance with
the
provisions of Article VII. The Committee shall be deemed to be the Plan
Administrator for purposes of the Act.
Section
1.9.
“Company”
shall
mean the Holding Company, the Bank, any Company which becomes a participating
employer pursuant to Section 10.16, and any successors thereto. Solely for
the
purpose of:
(a)
|
computing
an Employee’s Years of Service and Period of Service to determine his
eligibility to participate in and the vesting of his benefits under
this
Plan;
|
(b)
|
applying
the limitations contained in Section
4.3;
|
(c)
|
determining
whether this Plan is a Top Heavy Plan under Section 11.2 and, thus,
subject to the provisions of Article XI;
and
|
(d)
|
determining
whether an Employee terminated his employment with the
Companies,
|
“Company”
shall
also include any entity which, together with a participating Company,
constitutes a member of a controlled group of corporations, a member of a
commonly controlled group of trades or businesses or a member of an affiliated
service group within the meaning of Section 414(b), Section 414(c) or Section
414(m) of the Code or any entity which is required to be aggregated with
a
participating Company under Section 414(o) of the Code.
Section
1.10.
“Company
Contributions Account”
shall
mean the account maintained for each Participant to which contributions made
by
the Companies shall be allocated.
Section
1.11.
“Compensation”
shall
mean the total of all amounts paid or payable in cash by the Companies by
reason
of services performed by an Employee during any period, including bonuses,
overtime, any other cash payments included on an Employee’s W-2, amounts
deferred by the Employee under any cash or deferred arrangement maintained
by a
Company under Section 401(k) of the Code and any salary reductions elected
by
the Employee pursuant to a salary reduction plan maintained by a Company
under
Section 125 of the Code but excluding, with respect to any Employee, any
other
amounts contributed by a Company for or on account of that Employee under
this
Plan or under any other employee benefit plan; provided,
however,
that
Compensation in a Plan Year in excess of one hundred and fifty thousand
($150,000), as adjusted pursuant to Section 401(a)(17) of the Code, shall
be
disregarded.
2
Section
1.12.
“Date
of Employment”
means
any date on which an Employee first completes an Hour of Service.
Section
1.13.“Date
of Separation”
means
the earlier of:
(a)
|
the
date an Employee’s employment with the Companies terminates by reason of a
quit, discharge, retirement (including disability retirement) or
death;
or
|
(b)
|
the
first anniversary of the first date of a period in which the Employee
remains absent from active employment with the Companies for some
reason
other than a quit, discharge, retirement, death, approved leave
of absence
or military service.
|
Section
1.14.
“Deferred
Retirement”
shall
mean retirement after a Participant’s Normal Retirement Date in accordance with
Section 2.4.
Section
1.15.
“Deferred
Retirement Date”
shall
mean the first (1st) calendar day of the month after a Participant’s Normal
Retirement Date as of which he retires or his employment with the Companies
is
terminated for any reason other than his death.
Section
1.16.
“Defined
Benefit Fraction”
shall
mean for a given Plan Year a fraction:
(a)
|
the
numerator of which is the projected annual benefit of a Participant
under
all qualified defined benefit plans maintained by a Company (determined
as
of the Anniversary Date of that Plan Year),
and
|
(b)
|
the
denominator of which is the lesser
of:
|
(i)
|
the
product of one and twenty-five one hundredths (1.25) multiplied
by ninety
thousand dollars ($90,000), as adjusted pursuant to Section 415(b)(1)(A)
and (d)(1) of the Code, or
|
(ii)
|
the
product of one and four tenths (1.4) multiplied by one hundred
percent
(100%) of that Participant’s average Section 415 Compensation for his
three (3) consecutive highest paid Years of Service with the
Companies.
|
Section
1.17.
“Defined
Contribution Fraction”
shall
mean for a given Plan Year a fraction:
(a)
|
the
numerator of which is the sum of the Annual Additions to a Participant’s
accounts under all qualified defined contribution plans maintained
by a
Company as of the Anniversary Date of that Plan Year,
and
|
(b)
|
the
denominator of which is the sum of the lesser of the following
amounts
determined for that Plan Year and for each prior year of service
with the
Companies:
|
3
(i)
|
the
product of one and twenty-five one hundredths (1.25) multiplied
by the
dollar limit in effect for that Plan Year pursuant to Section 415(c)(1)(A)
of the Code, or
|
(ii)
|
the
product of one and four tenths (1.4) multiplied by twenty-five
percent
(25%) of that Participant’s Section 415 Compensation for that Plan
Year.
|
Section
1.18.
“Effective
Date”
shall
mean January 1, 1997; provided,
however,
that if
prior to March 31, 1998, the Bank shall not have completed its conversion
from mutual to stock form, this Plan shall be null and void and any shares
of
Stock and other assets held hereunder shall be returned to the
Companies.
Section
1.19.
“Employee”
shall
mean any person employed by a Company, and shall also include any individual
deemed to be a leased employee (as defined below) of the Companies but only
to
the extent required by the Code. For purposes of this Plan, the term “leased
employee” means any person (other than an employee of the recipient) who
pursuant to an agreement between the recipient and any other person (“leasing
organization”) has performed services for the recipient (or for the recipient
and related persons determined in accordance with Section 414(n)(6) of the
Code)
on a substantially full-time basis for a period of at least one (1) year,
and
such services are performed under the primary control or direction of the
recipient employer; provided,
however,
that a
leased employee shall not be considered an employee of the recipient if (a)
such
employee is covered by a money purchase pension plan providing a nonintegrated
employer contribution rate of at least ten percent (10%) of Compensation,
immediate participation and full and immediate vesting and (b) leased employees
do not constitute more than twenty percent (20%) of the recipient’s non-highly
compensated workforce. A leased employee within the meaning of Section 414(n)(2)
of the Code shall become a Participant in the Plan based on service as a
leased
employee only as provided in provisions of the Plan other than this Section.
Contributions or benefits provided a leased employee by the leasing organization
which are attributable to services performed for the recipient employer shall
be
treated as provided by the recipient employer.
Section
1.20.
“Exempt
Loan”
shall
mean a loan made to this Plan by a party in interest or disqualified person
or a
loan to this Plan which is guaranteed by a party in interest or disqualified
person, including a direct loan of cash, a purchase-money transaction and
an
assumption of any obligation of this Plan. For purposes of this definition,
a
guarantee shall include an unsecured guarantee and the use of assets of a
party
in interest or disqualified person as collateral for a loan even though the
use
of assets may not constitute a guarantee under any applicable State
laws.
Section
1.21.
“Fund”
shall
mean all cash, investments and other properties held by the Trustee
hereunder.
Section
1.22.
“Highly
Compensated Employee”
shall
include any Employee described in Section 414(q) of the Code who:
4
(a)
|
is
a five percent (5%) or more owner (as then defined in Section 416(i)(1)
of
the Code) of the Company at any time during that Plan Year or the
immediately preceding Plan Year; or
|
(b)
|
received
more than eighty thousand dollars ($80,000), as automatically adjusted
pursuant to Sections 414(q)(1) and 415(d) of the Code without the
necessity of any amendment to the Plan, of Section 415 Compensation
from
the Company in the immediately preceding Plan Year and was in the
Top Paid
Group for that immediately preceding Plan
Year.
|
For
purposes of determining whether an Employee is a Highly Compensated Employee
and
notwithstanding anything else contained in this Section, the following rules
shall apply:
(c)
|
A
former Employee shall be treated as a Highly Compensated Employee
if he
was a Highly Compensated Employee in the Plan Year during which
his
employment with the Company terminated or in any Plan Year during
which
occurs or commencing after his fifty-fifth (55th)
birthday.
|
(d)
|
Section
415 Compensation shall include any amount which is contributed
by the
Company pursuant to a salary reduction agreement and which is not
includible in the gross income of an Employee under Sections 125,
401(k),
402(a)(8), 402(h)(1)(B) and 403(b) of the
Code.
|
(e)
|
An
Employee shall only be deemed to be a Highly Compensated Employee
to the
extent required by the Code.
|
Section
1.23.
“Holding
Company”
shall
mean Union Community Bancorp.
Section
1.24.
“Hour of Service”
shall
mean:
(a)
|
each
hour for which an Employee is paid, or entitled to payment, for
the
performance of duties for a Company; these hours shall be credited
to the
Employee for the computation period or periods in which the duties
are
performed; and
|
(b)
|
each
hour for which an Employee is paid, or entitled to payment, by
a Company
on account of a period of time during which no duties are performed
(irrespective of whether the employment relationship has terminated)
due
to vacation, holiday, illness, incapacity (including disability
but
excluding payments made because of Total Disability under Section
6.3),
layoff, jury duty, military duty or leave of absence; no more than
five
hundred and one (501) Hours of Service shall be credited under
this
Subsection (b) for any single continuous period (whether or not
such
period occurs in a single computation period); hours under this
Subsection
(b) shall
|
5
be
calculated and credited pursuant to Section 2530.200b-2 of the Department
of
Labor Regulations which are incorporated herein by this reference;
and
(c)
|
each
hour for which back pay, irrespective of mitigation of damages,
is either
awarded or agreed to by a Company; the same Hours of Service shall
not be
credited both under Subsection 1.24(a) or Subsection 1.24(b), as
the case
may be, and under this Subsection 1.24(c); these hours shall be
credited
to the Employee for the computation period or periods to which
the award
or agreement pertains, rather than to the computation period in
which the
award, agreement or payment is
made.
|
Section
1.25.
“Leave
of Absence”
shall
mean a leave granted by a Company, in accordance with rules uniformly applied
to
all Employees in a non-discriminatory manner, for reasons of health, public
service or other satisfactory reasons.
Section
1.26.
“Normal
Retirement”
shall
mean retirement on a Participant’s Normal Retirement Date.
Section
1.27.
“Normal
Retirement Date”
shall
mean the first (1st) calendar day of the month immediately following a
Participant’s sixty-fifth (65th) birthday. A Participant’s benefits under this
Plan shall be fully vested and non-forfeitable on and after the date he attains
age sixty-five (65), which is deemed to be the normal retirement age under
this
Plan, regardless of his Period of Service and regardless of the vesting
schedules in Section 6.3 and in Section 11.4.
Section
1.28.
“One
Year Service Break”
shall
mean a consecutive twelve (12) month Period of Severance.
Section
1.29.
“Participant”
shall
mean any Employee who has commenced participation in this Plan pursuant to
Section 2.2. Participation in this Plan shall continue until such time as
the
Participant has received all of the benefits to which he is entitled under
the
terms of this Plan.
Section
1.30.
“Period
of Separation”
means,
for an Employee, the period of time commencing with the date such Employee
separates from service with the Companies and ending with the date such Employee
resumes his employment with the Companies.
Section
1.31.
“Period
of Service”
means,
for an Employee, the period commencing on the later of the following
dates:
(a)
|
such
Employee’s Date of Employment; or
|
(b)
|
the
date on which such Employee’s Employer is required to be aggregated with
the Company under Code Section 414(b), (c), (m) or (o), whichever
is
applicable,
|
6
and
ending on the date a Period of Severance begins, including any Period of
Separation of less than twelve (12) consecutive months; provided,
however, that in the case of any person who terminates his employment
with the Employers but later resumes his employment with the Companies, the
Period of Service before such resumption of employment shall be aggregated
only
if that person is a Re-employed Individual.
Section
1.32.
“Period
of Severance”
means,
for an Employee, the period of time commencing with the earlier of:
(a)
|
the
date on which such Employee terminates his employment with the
Companies
by reason of quitting, retirement, death or discharge,
or
|
(b)
|
the
date twelve (12) consecutive months after the date a person remains
absent
from service with the Companies (with or without pay) for any reason
other
than quitting, retirement, death or
discharge,
|
and
ending, in the case of an Employee who terminates his employment with the
Companies by reason other than death, with the date such Employee resumes
his
employment with the Companies. Solely for purposes of determining whether
a One
Year Service Break has occurred for participation and vesting purposes has
occurred, an Employee who is absent from work for maternity or paternity
reasons
shall receive credit at least one (1) year. For purposes of this
Section 1.32, an absence from work for maternity and paternity reasons
means an absence:
(c)
|
by
reason of the pregnancy of the
Employee,
|
(d)
|
by
reason of the birth of a child of the
Employee,
|
(e)
|
by
reason of the placement of a child with the Employee in connection
with
the adoption of that child by the Employee,
or
|
(f)
|
for
purposes of caring for such a child for the period beginning immediately
following such birth or placement.
|
Section
1.33.
“Plan”
shall
mean the employee stock ownership plan and trust established pursuant to
the
provisions of this Agreement, as amended from time to time, which shall be
known
as the “Union Community Bancorp Savings Employee Stock Ownership Plan.” This
Plan is intended to be an employee stock ownership plan under Section 4975(e)(7)
of the Code and under Section 407(d)(6) of the Act.
Section
1.34.
“Plan
Year”
shall
mean the calendar year. The Plan Year shall also be the limitation year for
purposes of Section 415 of the Code for this Plan and for all other qualified
retirement plans maintained by a Company.
7
Section
1.35.
“Re-employed
Individual”
shall
mean a person who, after having terminated his employment with the Companies,
resumes his employment with the Companies:
(a)
|
with
any vested interest in his Company Contributions Account as provided
in
Section 6.3 or 11.4, or
|
(b)
|
with
no such vested interest but who resumes his employment with the
Companies
either:
|
(i)
|
before
a One Year Service Break,
|
(ii)
|
after
a One Year Service Break but before his latest Period of Severance
equals
or exceeds his Period of Service,
or
|
(iii)
|
after
a One Year Service Break but before the number of his consecutive
One Year
Service Breaks equals or exceeds the greater of five (5) or his
Period of
Service.
|
Section
1.36.
“Section
415 Compensation”
shall
mean with respect to any Plan Year and shall:
(a)
|
include
amounts accrued to a Participant (regardless of whether he was
a
Participant during the entire Plan Year and regardless of whether
in
cash):
|
(i)
|
as
wages, salaries, fees for professional services and other amounts
received
for personal services actually rendered in the course of his employment
with the Companies including but not limited to commissions, compensation
for services on the basis of a percentage of profits and
bonuses;
|
(ii)
|
for
purposes of Subsection (a)(i) above, earned income from sources
outside
the United States (as defined in Section 911(b) of the Code), whether
or
not excludible from gross income under Section 911 of the Code
or
deductible under Section 913 of the
Code;
|
(iii)
|
amounts
described in Sections 104(a)(3), 105(a) and 115(h) of the Code
but only to
the extent that these amounts are includible in the gross income
of that
Participant; and
|
(iv)
|
amounts
paid or reimbursed by the Companies for moving expenses incurred
by that
Participant, but only to the extent that these amounts are not
deductible
by that Participant under Section 217 of the
Code;
|
(b)
|
not
include:
|
8
(i)
|
notwithstanding
Subsection (a)(i) above, there shall be excluded from Section 415
Compensation amounts contributed to a plan as contributions to
a qualified
cash or deferred plan under Section 401(k) of the
Code;
|
(ii)
|
other
contributions made by a Company to any plan of deferred compensation
to
the extent that, before the application of the Section 415 of the
Code
limitations to that plan, the contributions are not includible
in the
gross income of that Participant for the taxable year in which
contributed; in addition, Company contributions made on behalf
of that
Participant to a simplified employee pension plan described in
Section
408(k) of the Code shall not be considered as Section 415 Compensation
for
the Plan Year in which contributed; additionally, any distributions
from a
plan of deferred compensation shall not be considered as Section
415
Compensation, regardless of whether such amounts are includible
in the
gross income of that Participant when distributed; however, any
amounts
received by that Participant pursuant to an unfunded nonqualified
plan
shall be considered as Section 415 Compensation in the Plan Year
in which
such amounts are includible in the gross income of that Participant;
and
|
(iii)
|
other
amounts which receive special federal income tax benefits, such
as
premiums for group term life insurance (but only to the extent
that the
premiums are not includible in the gross income of that
Participant);
|
provided,
however,
that
Section 415 Compensation in a Plan Year in excess of one hundred and fifty
thousand ($150,000), as adjusted pursuant to Section 401(a)(17) of the Code,
shall be disregarded. Notwithstanding anything in this Section 1.36 to the
contrary, for Plan Years beginning on or after January 1, 1998, Section 415
Compensation shall include any elective deferral (as defined in Section 402(g)
of the Code) and any amount contributed or deferred at the election of the
Participant that is not includible in that Participant’s gross income by reason
of Section 125 or Section 457 of the Code.
Section
1.37.
“Stock”
shall
mean any duly-issued shares of common stock of the Holding Company, without
par
value, which shares constitute employer securities under Section 409(1) and
Section 4975(e)(8) of the Code.
Section
1.38.
“Top
Paid Group”
shall
mean the Employees who are in the top twenty percent (20%) of the Employees
of
the Company in terms of Section 415 Compensation for such Plan Year;
provided, however, that for purposes of determining the number of
Employees to be included in the Top Paid Group, the following Employees shall
be
excluded to the extent permitted by Section 414(q)(4) of the Code:
(a)
|
Employees
who have not completed six (6) months of service with the
Group;
|
9
(b)
|
Employees
who normally work less than seventeen and one-half (17 1/2)
hours per
week or less than six (6) months during a Plan
Year;
|
(c)
|
Employees
who have not attained age twenty-one
(21);
|
(d)
|
except
as provided by regulations promulgated under the Code, Employees
who are
covered by a collectively bargained agreement;
and
|
(e)
|
Employees
who are non-resident aliens and who receive no earned income (within
the
meaning of Section 911(d)(2) of the Code) from the Company which
constitutes income from sources in the United States (within the
meaning
of Section 861(a)(3) of the Code).
|
Section
1.39.
“Total
Disability”
shall
mean a mental or physical condition which, in the judgment of the Committee
based upon medical reports and other evidence satisfactory to the Committee,
presumably permanently prevents a Participant from satisfactorily performing
his
usual duties for his employing Company or the duties of such other position
or
job which his employing Company makes available to that Participant and for
which that Participant is qualified by reason of training, education or
experience.
Section
1.40.
“Trust”
shall
mean the employee stock ownership trust established pursuant to the provisions
of this Agreement, as amended from time to time, which shall be known as
the
“Citizens Bancorp Employee Stock Ownership Trust.”
Section
1.41.
“Trustee”
shall
mean Home Federal Savings Bank, and any successors thereto.
Section
1.42.
“Valuation
Date”
shall
mean each December 31 and each other date as of which the Committee
shall
cause the Trustee to determine the value of the Trust assets as prescribed
in
Section 5.1.
Section
1.43.
“Year
of Service”
shall
mean for purposes of participation the consecutive twelve (12) month period
computed with reference to the date on which the Employee first (1st) completes
an Hour of Service and any Plan Year beginning after such date during which
twelve (12) month period an Employee has completed at least one thousand
(1,000)
Hours of Service. Notwithstanding the foregoing, periods of time during which
an
Employee or Participant:
(a)
|
is
on an approved Leave of Absence continuing for a period of not
more than
two (2) consecutive years; or
|
(b)
|
is
on military leave for training or service, or both, with the Armed
Forces
of the United States under any form of law requiring military service;
provided, however, that he shall make application for
re-employment by a Company within ninety (90) calendar days after
discharge or release from such Armed Forces or from
|
10
hospitalization
continuing after such discharge for a period of not more than one (1)
year;
shall
also be credited towards his Years of Service and shall not constitute a
Break
in Service for purposes of this Plan. A Participant’s Years of Service shall be
calculated taking into account employment before the Effective
Date.
ARTICLE
II
ELIGIBILITY
AND PARTICIPATION
Section
2.1.
Eligibility.
Each
Employee in the employ of a Company shall become eligible to participate
in this
Plan on the date on which he completes one (1) Year of Service or, if later,
on
the date on which he attains age twenty-one (21).
Section
2.2.
Entry
Dates.
Each
Employee who was eligible to participate under Section 2.1 on the Effective
Date
automatically became a Participant in this Plan as of the Effective Date.
Each
other Employee shall become a Participant in this Plan on the first day of
January or July coincident with or next following the first (1st) date on
which
he meets the eligibility requirements of Section 2.1. A re-employed Employee
who
has once met the one (1) Year of Service requirement for eligibility shall
become (or, if formerly a Participant, be reinstated as) a Participant in
this
Plan on his re-employment date or, if later, on the first day of January
or July
coincident with or next following the date he attains age twenty-one
(21).
Section
2.3.
Certification
by Company.
Not
later than thirty (30) calendar days after an Employee shall become a
Participant in this Plan, his employing Company shall certify such fact in
writing to the Committee, together with such additional facts regarding such
Participant as the Committee may request. Except as otherwise provided by
the
Act, each such certification shall be final and conclusive and the Committee
shall be entitled to rely thereon without any investigation, but it may correct
any errors discovered in any such certificate.
Section
2.4.
Deferred
Retirement.
A
Participant who continues in the employment of a Company after his Normal
Retirement Date shall continue to participate in this Plan, and contributions
shall be allocated to his Company Contributions Account as otherwise provided
in
this Plan. Any such Participant who elects Deferred Retirement shall be entitled
to benefits under this Plan payable at his Deferred Retirement Date in the
same
manner as if he had retired on his Normal Retirement Date; provided,
however, that the deferral of benefit payments after a Participant’s
Normal Retirement Date shall be permitted only to the extent authorized by
and
in compliance with all requirements imposed under Section 2530.203-3 of the
Department of Labor Regulations which are incorporated herein by
reference.
11
ARTICLE
III
COMPANY
CONTRIBUTIONS
Section
3.1.
Company
Contributions.
For the
initial Plan Year and for each Plan Year thereafter, the Companies shall
make
contributions to the Trust in one (1) or more installments in such amounts
as
the Board of Directors of the Bank may determine.
If
Company contributions are paid to the Trust by reason of a mistake in fact
made
in good faith or a mistake made in good faith in determining the deductibility
of such Company contributions for federal income tax purposes under Section
404
of the Code, such Company contributions may, except as otherwise provided
in
Section 8.7, be returned to the Companies by the Trustee (upon the written
direction of the Committee) within one (1) year after the payment to the
Trust
or after the date the federal income tax deduction is denied, whichever is
applicable.
Section
3.2.
Form
of Contributions.
The
Companies’ contributions, if any, for each Plan Year shall be paid to the
Trustee either in cash or in Stock valued at the fair market value thereof
as of
the date of the contribution (as determined consistent with Section 5.1(a))
and
within such period as is provided for in Section 404 of the Code or any other
statute of similar import or any rule or regulations thereunder.
Section
3.3.
Holding
by Trustee.
All
contributions made by the Companies under Section 3.1 shall be a part of
the
Fund and shall be held in trust by the Trustee until distributed as provided
in
this Plan.
Section
3.4.
Expenses.
In
addition to the contributions to be made under Section 3.1, the Companies
shall
pay all reasonable expenses incident to the operation of this Plan; in the
event
of any failure by the Companies to make such payment, the same shall be a
charge
against and paid from the Fund but only to the extent permitted under the
Code
and under the Act.
Section
3.5.
No
Company Liability for Benefits.
The
benefits under this Plan shall be only such as can be provided by the Fund,
and
there shall be no liability or obligation on the part of the Company to make
any
further contributions or payments. Except as otherwise provided by the Act,
no
liability for the payment of benefits under this Plan shall be imposed upon
the
Companies or upon the officers, directors or shareholders of the
Companies.
Section
3.6.
No
Rollover Contributions.
Rollover
contributions (within the meaning of Section 402(a)(5) of the Code) shall
not be
permitted nor accepted.
12
ARTICLE
IV
ALLOCATION
TO PARTICIPANTS’ ACCOUNTS
Section
4.1.
Company
Contributions Accounts.
For
purposes of allocating the Company contributions, the Committee shall establish
and maintain a separate Company Contributions Account in the name of each
Participant.
Section
4.2.
Allocation
of Company Contributions.
Except
as provided in Section 4.7, the Company contributions for each Plan Year
shall
be allocated among the Company Contributions Accounts of all Employees who
were
Participants on the Anniversary Date of that Plan Year or whose employment
with
the Companies terminated during that Plan Year because of death, Total
Disability or Deferred or Normal Retirement proportionately in the ratio
that
the Compensation paid to such Participant, if any, for that Plan Year or
since
becoming a Participant in this Plan if he became a Participant within that
Plan
Year bears to the aggregate Compensation paid to all Participants for that
Plan
Year or since becoming Participants in this Plan if they became Participants
within that Plan Year. To the extent cash dividends are applied to pay of
an
Exempt Loan under Section 4.5 and notwithstanding anything contained herein
to
the contrary, Company contributions shall first be applied towards crediting
the
Participant’s Company Contributions Account to which the cash dividends would
have been allocated before they are allocated under the preceding provisions
of
this Section.
Section
4.3.
Limitations
on Annual Additions.
Clause
(a).
Basic
Limitations.
Notwithstanding any other provision of this Plan, the maximum Annual Addition
during any Plan Year for any Participant under this Plan and under any other
qualified defined contribution plans maintained by the Companies shall in
no
event exceed the lesser of:
(i)
|
twenty-five
percent (25%) of that Participant’s Section 415 Compensation for that Plan
Year, or
|
(ii)
|
thirty
thousand dollars ($30,000), as adjusted pursuant to Section 415
of the
Code; provided, however, that such adjustments shall only
apply to the Plan Years ending on or after the date in which the
adjustment was made.
|
Any
Company contributions which are applied by the Trustee (not later than the
due
date, including extensions, for filing a Company’s federal income tax return for
that Plan Year) to pay interest on an Exempt Loan shall not be included as
Annual Additions under this Section 4.3; provided,
however,
that
the provisions of this Section shall be applicable only in Plan Years for
which
not more than one-third (1/3) of the Company contributions applied to pay
principal and interest on an Exempt Loan are allocated among Highly Compensated
Employees. The Committee may reallocate Company contributions in order to
satisfy this special limitation.
13
If
due to
a reasonable error in estimation of a Participant’s Compensation or due to the
allocation of forfeitures these maximum Annual Additions would be exceeded
as to
any Participant, any excess amount shall be used to reduce Company Contributions
for that Participant in the next, and succeeding, Plan Years. If that
Participant was not covered by this Plan at the Anniversary Date of that
Plan
Year, such excess shall be reallocated among the Company Contributions Accounts
of the other Participants under Section 4.2 to the fullest extent possible
without exceeding the limitations with respect to any other Participant for
that
Plan Year. Any excess amount which cannot be so allocated to any Participant’s
Company Contributions Account by reason of these limitations shall be allocated
under this Section 4.3(a) for the next succeeding Plan Years (prior to the
allocation of Company Contributions for such succeeding Plan
Years).
Clause
(b).
Participation
in Other Plans.
In any
case in which an Employee is a participant in one (1) or more qualified defined
contribution plans and in one (1) or more qualified defined benefit plans
(as
these terms are defined in Section 415(k) of the Code) maintained by a Company
and for Plan Year, beginning before January 1, 2000, the sum of the Defined
Benefit Fraction and of the Defined Contribution Fraction, computed as of
the
Anniversary Date of that Plan Year, shall not exceed one (1.0).
Section
4.4.
Effective
Date of Allocations.
For all
purposes of this Plan, allocations to the Participants’ Company Contributions
Accounts under this Article shall be deemed to have been made on the Anniversary
Date to which they relate although they may actually be determined at some
later
date. The fact that such allocations are made, however, shall not vest in
any
Participant or in his spouse or other Beneficiary any right, title or interest
in or to any part of the Fund except at the times, to the extent and on the
terms and conditions specified in this Plan.
Section
4.5.
Cash
Dividends.
Any cash
dividends received by the Trustee on Stock allocated to the Company
Contributions Accounts of Participants shall be credited to the applicable
Participants’ Company Contributions Accounts unless the Bank, in its sole
discretion, elects to pay the cash dividends directly to the applicable
Participants or directs the Trustee to pay the cash dividends to the
Participants (or, if applicable, their Beneficiaries) within ninety (90)
calendar days of the close of the Plan Year in which the cash dividends were
paid by the Holding Company to the Fund. Notwithstanding anything contained
in
this Section to the contrary, the Bank may direct cash dividends, including
dividends on non-allocated shares, be applied to repay an Exempt Loan, but
only
to the extent shares of Stock with an aggregate fair market value equal to
the
amount of dividends so applied are allocated to the Company Contributions
Accounts of the applicable Participants and to the extent the cash dividends
are
deductible under Section 404(k) of the Code.
Section
4.6.
Allocation
of Forfeitures.
The
Trustee, shall, as soon as practicable following the Anniversary Date marking
the close of each Plan Year, allocate the forfeitures which have occurred
in
that Plan Year first to reinstate any forfeitures of any reemployed Participant
under Section 6.2 and second, if any forfeitures are remaining after the
reinstatements described above are completed, among the Company Contributions
Accounts of all Employees who were or became Participants on the Anniversary
Date of that Plan Year or whose Years of Service terminated during
14
that
Plan
Year because of death, Total Disability or Deferred or Normal Retirement.
The
forfeitures shall be allocated among such Accounts in the same manner provided
for under Section 4.2.
Section
4.7.
Special
Allocation Rules.
Notwithstanding any other provision in this Plan to the contrary, no Stock
acquired by this Plan in a sale to which Section 1042 of the Code applies
may be
allocated directly or indirectly under this Plan:
(a)
|
during
the non-allocation period (as such term is defined below), for
the benefit
of:
|
(i)
|
any
Participant who makes an election under Section 1042(a) of the
Code with
respect to Stock sold to this Plan,
or
|
(ii)
|
any
Participant who is related to the Participant making the election
under
Section 1042(a) of the Code or to the deceased Participant (within
the
meaning of Section 267(b) of the Code); provided, however,
that this Subsection (a)(ii) shall not apply to any Participant
who is a
lineal descendent of a Participant as long as the aggregate amount
allocated to the benefit of all such lineal descendants during
the
non-allocation period (as such term is defined below) does not
exceed more
than five percent (5%) of the Stock (or amounts allocated in lieu
thereof)
held by this Plan which are attributable to the sale to this Plan
by any
person related to such descendants (within the meaning of Section
267(c)(4)) in a transaction to which Section 1042 of the Code
applies,
|
or
(b)
|
for
the benefit of any Participant who owns (after the application
of the
attribution rules contained in Section 318(a) of the Code, but
disregarding Section 318(a)(2)(B)(i) of the Code) more than twenty-five
percent (25%) of:
|
(i)
|
any
class of the outstanding stock of the Holding Company or of any
other
corporation which is a member of a controlled group of corporations
(within the meaning of Section 409(1)(4) of the Code) which includes
the
Holding Company, or
|
(ii)
|
the
total value of any class of outstanding stock of the Holding Company
or of
any other corporation which is a member of the controlled group
of
corporations (within the meaning of Section 409(1)(4) of the Code)
which
includes the Holding Company.
|
For
purposes of this Section 4.7, the “non-allocation period” shall mean a period
beginning on the date of the sale of the stock to the Plan and ending on
the
later of:
15
(c)
|
the
date which is ten (10) years after the sale of the Stock to this
Plan to
which Section 1042 of the Code applies,
or
|
(d)
|
the
date of the Plan allocation of Stock attributable to the final
payment of
any acquisition indebtedness incurred in connection with a sale
of such
Stock to this Plan to which Section 1042 of the Code
applies.
|
For
purposes of this Section 4.7 a Participant shall be deemed to be a twenty-five
percent (25%) or greater shareholder if such Participant owns more than
twenty-five percent (25%) of the shares at any time during a one (1) year
period
ending:
(e)
|
on
the date of a sale of the Stock to this Plan to which Section 1042
of the
Code applies, or
|
(f)
|
on
the date as of which the Stock sold to this Plan through a sale
to which
Section 1042 of the Code applies is allocated to
Participants.
|
The
provisions contained in this Section 4.7 shall be interpreted consistent
with
and in accordance with Section 409(n) of the Code.
Section
4.8.
Rehire
after Military Service.
The
provisions relating to qualified retirement plans which are set forth in
the
Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) are
hereby incorporated into, and made a part of, this Plan by reference. The
Committee shall apply the provisions of the USERRA with respect to any
Participant who is reemployed after completing covered military service in
a
manner consistent with the USERRA and all other applicable law and
regulations.
ARTICLE
V
VALUATIONS
AND ADJUSTMENTS
Section
5.1.
Valuation
of Fund.
Clause
(a).
Valuations.
The
Committee shall provide the Trustee with a written valuation showing the
fair
market value of the Stock, upon which valuation the Trustee may fully rely.
For
all purposes of this Plan, fair market value shall be determined by an
independent appraiser (as such term is defined in Treasury Regulations
promulgated under Section 170(a)(1) of the Code) unless the Stock is readily
tradeable on an established securities market at the date of valuation. The
Committee shall also direct the Trustee to determine the fair market value
of
all other assets of the Fund on each Valuation Date.
Clause
(b).
Frequency.
The Fund
shall be valued as soon as practical after the Anniversary Date of each Plan
Year and as soon as practical after the removal or resignation of the Trustee
on
the basis of fair market values determined as of the Anniversary Date of
the
Plan Year
16
or
as of
the effective date of the resignation or removal of the Trustee, respectively.
The Committee may require valuation of the Fund on such other dates as it
may
prescribe.
Clause
(c).
Records.
Records
of valuation of the Fund shall be prepared by the Trustee in such manner
and
within such time after each Valuation Date as may be prescribed in this Section
5.1, and such records shall be filed with the Committee, including a written
statement reflecting the value of the assets and liabilities of the Fund
and the
receipts and disbursements of the Fund since the last previous statement
filed
with the Committee. As to the fair market value of Stock, the Trustee shall
rely
solely upon the most recent valuation furnished by the Committee as provided
in
Section 5.1(a). If information necessary to ascertain the fair market value
of
the Fund assets other than Stock is not readily available to the Trustee
or if
the Trustee is unable in its sole discretion fairly to determine the fair
market
value of the other Fund assets, the Trustee may request the Committee in
writing
to instruct the Trustee as to such values to be used for all purposes under
this
Plan; in such event, the values as determined by the Committee shall be binding
and conclusive, except as otherwise provided by the Act. If the Committee
shall
fail or refuse to instruct the Trustee as to such values within a reasonable
time after receipt of the Trustee’s written request therefor, the Trustee may
take such action as it deems necessary or advisable to ascertain such values.
Except for the Trustee’s negligence, willful misconduct or lack of good faith,
upon the expiration of ninety (90) calendar days from the filing of such
records
and except as otherwise provided by the Act, the Trustee shall be forever
released and discharged from all liability and accountability to anyone with
respect to the propriety of its acts or transactions as set forth in such
records unless written objection is filed with the Trustee within the said
ninety (90) calendar day period by the Committee or by the Bank.
Section
5.2.
Adjustments.
As of
each Valuation Date the Committee shall cause the Trustee to allocate to
each
Participant’s Company Contributions Account, by credit thereto or deduction
therefrom as the case may be, a proportion of the increase or decrease in
the
fair market value of the Fund since the last preceding Effective Date or
Valuation Date. Such allocation shall be made in the proportion that each
Participant’s Company Contributions Account on such date bears to the total of
all such Company Contributions Accounts on such date.
Section
5.3.
Amount
of Adjustments.
The
increase or decrease in the Fund to be allocated shall be the difference
between:
(a)
|
the
fair market value of the Fund on the last preceding Effective Date
or
Valuation Date (excluding any amounts withdrawn from the Fund as
of such
Date for the payment of benefits hereunder),
and
|
(b)
|
the
fair market value of the Fund on the current Valuation Date (including
any
amounts to be withdrawn from the Fund as of such Date for the payment
of
benefits hereunder).
|
17
Section
5.4.
Effective
Date of Adjustments.
For all
purposes of this Plan, allocations to the Participants’ Company Contributions
Accounts under this Article shall be deemed to have been made on the Effective
Date or Valuation Date to which they relate although they may actually
be
determined at some later date. The fact that such allocations are made,
however,
shall not vest in any Participant or in his spouse or other Beneficiary
any
right, title or interest in or to any part of the Fund except at the times,
to
the extent and on the terms and conditions specified in this Plan.
Section
5.5.
Notice
to Participants.
Promptly
after the allocations herein described shall be completed, the Committee
shall
advise each Participant in writing of the fair market value of the Stock
and
other Fund assets then credited to his Company Contributions
Account.
ARTICLE
VI
BENEFITS
Part
A.
Retirement
Benefits.
Section
6.1.
Retirement.
Each
Participant who retires on his Normal Retirement Date or Deferred Retirement
Date shall be entitled to receive the entire balance credited to his Company
Contributions Account as of the Valuation Date coincidental with or immediately
following such Retirement Date plus any Company contributions to which he
is
entitled pursuant to Section 4.2 for the Plan Year in which his Normal
Retirement or Deferred Retirement occurs. Payment of such benefits shall
be made
in accordance with the provisions of Section 6.10.
Part
B.
Termination
Benefits.
Section
6.2.
Effect
of Termination.
If a
Participant’s employment with the Companies is terminated before his Normal
Retirement Date for any reason other than his death, that Participant shall
cease to be a Participant in this Plan and shall not be entitled to any benefits
under this Plan except as expressly provided in this Part B.
Section
6.3.
Vesting.
Any
Participant whose employment with the Companies is terminated as set forth
in
Section 6.2 shall be entitled to a percentage (as determined below) of the
entire balance credited to his Company Contributions Account as of the Valuation
Date coincidental with or immediately following the date of termination of
his
employment. The percentage of his Company Contributions Account to which
a
terminated Participant is entitled shall be determined on the basis of his
Period of Service on such date of termination of employment, as
follows:
Period
of Service
|
Vested
Percentage
|
||
Less
than five (5) years
|
0
|
||
Five
(5) years or more
|
100%
|
18
Any
portion of the terminated Participant’s Company Contributions Account which is
not vested shall be treated as a forfeiture; provided, however,
that such forfeiture shall not be allocated to the other Plan Participants
until
the first (1st) to occur of the following:
(a)
|
that
Participant’s Period of Severance is at least five (5) years;
or
|
(b)
|
that
Participant’s death;
|
provided,
further,
that if
that Participant is reemployed prior to his completion of a five (5) year
Period
of Severance, the forfeited amount shall be reinstated as the beginning balance
of that Participant’s Company Contribution Account. A Participant whose vested
percentage of his Company Contributions Account is zero (0) at the date of
his
termination of employment shall be deemed to have received a distribution
upon
his termination of employment.
In
the
case of any Participant whose Period of Severance is at least five (5) years,
that Participant’s pre-break service shall count in vesting of his post-break
Company Contributions Account balance only if either:
(a)
|
that
Participant has any nonforfeitable interest in his Company Contributions
Account balance at the time of his separation from service with
the
Companies; or
|
(b)
|
upon
returning to service with a Company his Period of Severance is
less than
five (5) or, if greater, less than his Period of Service completed
prior
to his Period of Severance.
|
In
the
case of any Participant whose Period of Separation is at least five (5) years,
all service after such Period of Severance shall be disregarded for the purpose
of vesting the Company Contributions Account balance that accrued before
such
Period of Severance.
Separate
sub-accounts shall be maintained for that Participant’s pre-break and post-break
Company Contributions Account. Both sub-accounts shall share in the earnings
and
losses of the Fund.
Any
Participant whose employment with the Companies is terminated because of
his
Total Disability shall be entitled to his entire Company Contributions Account
balance and shall also be entitled to receive any Company contributions to
which
he is entitled pursuant to Section 4.2 for the Plan Year in which his employment
is so terminated.
Section
6.4.
Payment.
All
benefits payable under Part B shall be paid in accordance with the provisions
of
Section 6.10.
Part
C.
Death
Benefits.
19
Section
6.5.
Benefits
upon Death.
If the
death of any Employee occurs while he is still a Participant in this Plan
and
prior to his actual retirement or other termination of employment with the
Companies, the entire balance credited to his Company Contributions Account
as
of the Valuation Date coincidental with or immediately preceding the date
of his
death plus any Company contributions to which he is entitled pursuant to
Section
4.2 for the Plan Year in which his death occurs shall be paid to the Beneficiary
of that deceased Participant in accordance with the provisions of Section
6.10.
Section
6.6.
Beneficiaries.
Each
Participant shall notify the Committee in writing of one (1) or more primary
and
contingent Beneficiaries to receive on his death any benefits payable under
this
Part C. Each such Beneficiary designation may be revoked, amended or changed
by
a Participant by like notice in writing delivered to the Committee prior
to his
death. The Beneficiary designation of any Participant who is married at the
date
such a designation is made or changed shall be signed by that Participant’s
spouse and witnessed by the Committee or by a Notary Public if it results
in a
designation of a Beneficiary other than that Participant’s spouse.
Notwithstanding anything contained in this Section to the contrary, the
Beneficiary of a married Participant shall be his spouse unless his spouse
consents to the designation of a non-spouse Beneficiary in a writing witnessed
by the Committee or by a Notary Public.
Section
6.7.
Lack
of Beneficiaries.
Any
portion of the amounts payable under Section 6.5 which is undisposed of because
all or some of the designated Beneficiaries have predeceased a Participant
or
because of a Participant’s failure to designate a Beneficiary in writing prior
to his death shall be paid to the deceased Participant’s surviving spouse, if
any, and, if none, to the deceased Participant’s estate.
Section
6.8.
Termination
or Retirement prior to Death.
On and
after the actual retirement of a Participant from the employ of the Companies
or
other termination of his employment, the rights of such Participant and his
spouse or other Beneficiary to any benefits under this Part C shall cease
and
the benefits payable to such Participant or to any person claiming through
or
under him shall be limited to the benefits provided in Parts A or B of this
Article.
Part
D.
General.
Section
6.9.
Date
of Distribution.
Unless
the Participant or, if deceased, his Beneficiary, surviving spouse or estate,
as
the case may be, otherwise elects, the payment of benefits to which any such
person is entitled shall begin not later than sixty (60) calendar days after
the
latest of the Anniversary Date of the Plan Year in which:
(a)
|
the
Participant attains age sixty-five
(65),
|
(b)
|
occurs
the tenth (10th) anniversary of the date on which the Participant
initially became eligible to participate in this Plan,
or
|
20
(c)
|
the
Participant terminates his employment with the
Companies;
|
provided,
however,
that
the distribution of benefits to a Participant shall commence on or before
April 1 of the calendar year following the calendar year during which
that
Participant attains age seventy and one-half (70 1/2) or, if the
Participant is not a five percent (5%) owner of a Company (within the meaning
of
Section 416 of the Code) and if later, of the calendar year during which
his
employment with the Company is terminated.
Section
6.10.
Form
of Distribution.
The
distributions provided under this Article VI shall be made by the Trustee,
as
directed by the Participant or, if deceased, his Beneficiary, in a single
lump
sum distribution of the amount to be paid to the Participant or, if deceased,
to
his Beneficiary; provided, however, that except as otherwise provided in
Section
6.9, payment shall be made as soon as practicable after the Plan Year during
which the employment of the Participant from the Companies terminated; provided,
further, that in no event shall payments to a deceased Participant’s estate or
to any Beneficiary other than the surviving spouse of a deceased Participant
extend more than five (5) years after the date of the Participant’s death.
Notwithstanding the above, a Participant whose Company Contributions Account
at
the initial distribution date or at any subsequent distribution date (when
aggregated with other distributions) is greater than five thousand dollars
($5,000) effective on or after January, may elect to defer the commencement
of
the distribution of his Company Contributions Account to the date on which
he
attains age sixty-five (65). Distributions under this Section 6.10 shall
be
distributed in Stock with fractional share interests distributed in cash.
If
shares of Stock are distributed and the shares of Stock available for
distribution consist of more than one (1) class of security, a distributee
shall
receive substantially the same proportion of each such class.
If
the
Trust purchases shares of Stock from a Company shareholder who is eligible
to
elect and so elects nonrecognition of gain under Section 1042 of the Code
in
connection with such purchase and notwithstanding anything contained herein
to
the contrary, no distribution that would be made within three (3) years after
the date of such purchase shall be made to a Participant before he incurs
a One
Year Service Break, unless his employment with the Companies terminates as
a
result of his Normal Retirement, Total Disability or death or unless the
distribution is made pursuant to Section 8.19.
Section
6.11.
Liability.
Any
payment to a Participant or to that Participant’s legal representative,
Beneficiary, surviving spouse or estate, in accordance with the provisions
of
this Plan, shall to the extent thereof be in full satisfaction of all claims
hereunder against the Trustee, the Committee and the Companies, any of whom
may
require such Participant, legal representative, Beneficiary, surviving spouse
or
estate, as a condition precedent to such payment, to execute a receipt and
release therefor in such form as shall be determined by the Trustee, the
Committee or the Companies. The Companies do not guarantee the Trust, the
Participants or, if deceased, their Beneficiaries, surviving spouses or estates,
as the case may be, against the loss of or depreciation in value of any right
or
benefit that any of them may acquire under the terms of this Plan.
21
Section
6.12.
Right
of First Refusal.
If any
recipient of shares of Stock from this Plan elects at any time to sell all
or
any part of such shares, the Trustee shall have a right of first refusal
to
purchase all or any part of such shares of Stock for the Fund. The price
to be
paid by the Trustee for shares of Stock purchased pursuant to this Section
6.12
shall be no less than the greater of:
(a)
|
the
fair market value of such shares of Stock at the date of their
purchase,
or
|
(b)
|
the
price offered to the recipient by another potential buyer (other
than a
Company) making a good faith, bona fide
offer to buy such shares of Stock,
|
and
the
terms of the purchase may not be less favorable to the recipient than the
terms
offered in the bona fide
offer.
This right of first refusal shall lapse no later than fourteen (14) calendar
days after the recipient gives written notice to the Trustee that an offer
by a
third party to purchase his shares of Stock has been received. The right
of
first refusal granted by this Section 6.12 shall only exist if the Stock
is not
publicly traded within the meaning of Treasury Regulations
§ 54.4975-7(b)(1)(iv).
Section
6.13.
Put
Options.
The
Holding Company shall issue a put option to any Participant, Beneficiary,
surviving spouse or estate of a deceased Participant, or any other person
(including distributees of an estate) to whom shares of Stock distributed
under
this Plan may pass by reason of a Participant’s death (herein collectively
referred to as the “Recipient”). This put option shall permit the Recipient to
sell such Stock to the Holding Company, at any time during two (2) option
periods, at the then fair market value. The first put option period shall
be a
period of at least sixty (60) calendar days beginning on the actual date
of
distribution of such Stock to the Recipient. The second put option period
shall
be a period of at least sixty (60) calendar days beginning after the
determination of the fair market value of such Stock is made by the Committee
(and notice of same is given in writing to the Recipient) for the next
succeeding Plan Year. Such Recipient shall be deemed to have a put option
as
herein provided with respect to the shares of Stock and may exercise this
put
option by delivering to the Holding Company a written notice of his election
to
sell such shares of Stock, or any portion thereof, together with the
certificates representing the shares of Stock to be sold duly endorsed for
transfer. The Holding Company shall be obligated to purchase the shares of
Stock, or the designated portion thereof, at their fair market value at the
date
the put option is exercised; provided, however, that the Holding
Company may grant the Trustee an option to assume on behalf of this Plan
and
Trust the Holding Company’s rights and obligations with respect to the put
option at the date the put option is actually exercised by the Recipient.
Except
as hereinafter provided, the Holding Company (or the Trustee, if it assumes
the
Holding Company’s obligation) shall pay for the shares of Stock so sold to it by
check within thirty (30) calendar days following the date of sale.
Notwithstanding anything contained herein to the contrary, the Holding Company
(or, if applicable, the Trustee) may pay the purchase price in substantially
equal periodic payments (not less frequently than annually) over a period
beginning not later than thirty (30) calendar days after the exercise of
the put
option and not exceeding five (5) years as long as reasonable interest is
paid
on the unpaid amounts and adequate security is provided to the Recipient.
If the
Stock is readily tradeable on an established market on the date of distribution,
the put option granted by this Section 6.13 shall not exist; provided,
however, that if the Stock ceases to be publicly
22
traded
within either of the sixty (60) day calendar periods as provided herein,
the
Holding Company shall notify the Recipient in writing within a reasonable
time
after the Stock ceases to be so publicly traded that the Stock shall be subject
to the put option for the remainder of the applicable sixty (60) day calendar
period. If the date of actual written notice to the Recipient by the Holding
Company is later than ten (10) calendar days after the Stock ceases to be
so
publicly traded, the put option shall automatically be extended to the extent
that the date on which written notice is actually given to the Recipient
is more
than ten (10) calendar days later.
Section
6.14.
Eligible
Rollover Distributions.
Notwithstanding any provision of the Plan to the contrary that would otherwise
limit a distributee’s election under this Section, a distributee may elect, at
the time and in the manner prescribed by the Committee, to have any portion
of
an eligible rollover distribution paid directly to an eligible retirement
plan
specified by the distributee in a direct rollover. For purposes of this Section,
the following terms shall have the meanings set forth below:
(a) Eligible
rollover distribution:
An
eligible rollover distribution is any distribution of all or any portion
of the
balance to the credit of the distributee, except that an eligible rollover
distribution does not include: (1) 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 distributee and the distributee’s designated
beneficiary, or for a specified period of ten (10) years or more; (2) any
distribution to the extent such distribution is required under Section 401(a)(9)
of the Code; and (3) the portion of any distribution that is not includible
in
gross income.
(b) Eligible
retirement plan:
An
eligible retirement plan is an individual retirement account described in
Section 408(a) of the Code, an individual retirement annuity described in
Section 408(b) of the Code, an annuity plan described in Section 403(a) of
the
Code, or a qualified trust described in Section 401(a) of the Code, 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.
(c) Distributee:
A
distributee includes an Employee or former Employee. In addition, the Employee’s
or former Employee’s surviving spouse and the Employee’s or former Employee’s
spouse or former spouse who is an alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are distributees
with
regard to the interest of the spouse or former spouse.
ARTICLE
VII
ADMINISTRATIVE
COMMITTEE
Section
7.1.
Establishment.
The
Committee shall consist of at least three (3) members to be appointed by
the
Board of Directors of the Bank, and the members shall hold office at the
pleasure of such Board of Directors. The members of the Committee shall be
individuals and may,
23
but
need
not, be officers, shareholders or Directors of the Holding Company or the
Bank,
Participants or Beneficiaries. The Bank may, at its sole discretion, designate
to serve as the Committee its Board of Directors as duly-constituted from
time
to time.
Section
7.2.
Duties.
The
Committee shall discharge its duties and powers in conformance with the care,
skill, prudence and diligence under the circumstances then prevailing that
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. It
shall
have complete control of the administration of this Plan and shall have all
powers necessary or convenient to enable it to exercise such control. In
connection therewith, it may provide rules and regulations, not inconsistent
with the provisions hereof or with requirements imposed under the Code or
under
the Act, for the administration of this Plan and may from time to time amend
or
rescind such rules and regulations. In addition, it may employ or appoint
a
secretary and such advisors, agents or representatives as it may deem desirable
and may consult with and employ counsel (who may, but need not, be counsel
to a
Company or to the Trustee) or actuaries with regard to any questions arising
in
connection with this Plan. All reasonable expenses incurred by the Committee
in
connection with this Plan shall be paid as provided in Section 3.4.
Section
7.3.
Actions.
The
Committee may decide any questions hereunder and may take or authorize or
direct
the taking of any action hereunder with the approval of a majority of the
members of the Committee. The approval of such members, expressed from time
to
time by a vote at a meeting or in writing without a meeting, shall constitute
the action of the Committee and shall be valid and effective for all purposes
of
this Plan. The fact that any member of the Committee shall be a Participant,
former Participant or Beneficiary shall not disqualify or debar him from
participating in any action or decision affecting any class of Participants,
former Participants or Beneficiaries, but he shall not participate in any
action
or decision affecting his own separate interest as a Participant, former
Participant or Beneficiary.
Section
7.4.
Disqualification.
The fact
that any member of the Committee is a Director, shareholder or officer of
a
Company or a Participant or Beneficiary shall not disqualify him from doing
any
act or thing which this Plan authorizes or requires him to do as a member
of the
Committee (except as otherwise provided in Section 7.3) or render him
accountable for any allowance or distribution or other pecuniary or material
profit or advantage received by him.
Section
7.5.
Powers.
The
Committee shall have the power to construe this Plan and to determine all
questions of fact or law arising under it. It may correct any defect, supply
any
omission or reconcile any inconsistency in this Plan in such manner and to
such
extent as it may deem expedient and, except as otherwise provided by the
Act, it
shall be the sole and final judge of such expediency. Except as otherwise
provided in Section 7.9, all acts and determinations of the Committee made
in
good faith within the scope of its authority shall be final and conclusive
on
all the parties hereto and on all Employees, Participants and their
Beneficiaries, surviving spouses or estates hereunder and shall not be subject
to appeal or review.
24
Section
7.6.
Discrimination
Prohibited.
The
Committee shall not take any action or direct the Trustee to take any action
with respect to any of the benefits provided hereunder or otherwise in pursuance
of the powers conferred herein upon the Committee which would be discriminatory
in favor of Employees who are officers, Directors, shareholders, persons
whose
principal duties consist of supervising the work of other Employees or Highly
Compensated Employees or which would result in benefiting one (1) Participant
or
group of Participants at the expense of another or in discrimination as between
Participants similarly situated or in the application of different rules
to
substantially-similar sets of facts.
Section
7.7.
Statements
and Forms.
The
Committee shall be authorized to require of a Company and of any person claiming
any rights hereunder a written statement of any information or the execution
of
any forms or instruments it may deem necessary or desirable for the
administration of this Plan.
Section
7.8.
Liability.
Except
as otherwise provided by the Act, no member of the Committee shall be directly
or indirectly responsible or under any liability by reason of any action
or
default by him as a member of the Committee or the exercise of or failure
to
exercise any power or discretion as such member except for his own fraud
or bad
faith shown in the exercise of or failure to exercise such power or discretion,
and no member of the Committee shall be liable in any way for the acts or
defaults of any other member. The Committee may consult with counsel (who
may,
but need not, be counsel to a Company or to the Trustee) or accountants selected
by it and, except as otherwise provided by the Act, the opinion of such counsel
or the recommendations of such accountants shall be full and complete authority
and protection for any action or conduct pursued by the Committee in good
faith
and in accordance with such opinion or recommendations.
Section
7.9.
Determination
of Right to Benefits.
The
Committee shall make all determinations as to the right of any person to
a
benefit under the provisions of this Plan. Any denial by the Committee of
a
claim for benefits under this Plan by an Employee or, if deceased, by such
Employee’s spouse or other Beneficiary, shall be stated in writing by the
Committee and delivered or mailed to the Employee, spouse or other Beneficiary,
as the case may be, within ninety (90) calendar days after receipt of such
benefit claim by the Committee. Such notice shall set forth the specific
reasons
for the denial and such additional information as is required under Section
503
of the Act, written to the best of the Committee’s ability in a manner that may
be understood without legal or actuarial counsel. In addition, the Committee
shall afford a reasonable opportunity to any Employee, spouse or other
Beneficiary, as the case may be, whose claim for benefits has been denied,
for a
review of the decision denying the claim in accordance with Section 503 of
the
Act.
Section
7.10.
Investment
Directions.
The
Committee may direct the investment of the Fund, by written directions to
the
Trustee, but such direction shall not be inconsistent with the provisions
of
this Plan, of the Act or of the Code.
25
Section
7.11.
Voting
Power.
Except
as otherwise provided in Section 8.17, the Committee shall be authorized
to
vote, either in person or by proxy, the Stock or other securities which are
held
by the Trustee as part of the Fund.
ARTICLE
VIII
THE
TRUSTEE
Section
8.1.
Assets
Held in Trust.
The
Trustee shall hold the Fund and shall accept and hold all contributions thereto
and all investments and reinvestments thereof in trust for the persons
ultimately entitled thereto under the terms of this Plan.
Section
8.2.
Investments.
This
Plan is designed to invest primarily in shares of Stock. Except as otherwise
provided in this Plan, the Trustee shall invest the cash contributed or accruing
to the Fund in Stock and shall not make any other investment for the Fund.
There
shall be no limit on the permissible investment in shares of Stock. The Trustee
may purchase such shares of Stock from the Holding Company or from any other
source, and such shares of Stock may be outstanding, newly-issued or treasury
shares. All such purchases shall be made at fair market value (as determined
consistent with Section 5.1(a)). If no shares of Stock are available for
purchase, the Trustee may retain cash uninvested or may invest all or any
part
thereof in any other investment if such retention or investment is prudent
under
all the facts and circumstances then prevailing. The Trustee shall have the
power at any time to enter into legally-binding agreements to purchase shares
of
Stock from any person or entity, whether or not such person or entity shall
own
such shares of Stock at the date such purchase agreement is entered into,
including but not limited to Participants in and Beneficiaries of this Plan,
except as otherwise provided in the Act and in Treasury Regulations
§ 54.4975-11(a)(7). Except as otherwise required by Section 6.12, the
purchase price set forth in any such purchase agreement shall be determined
by
the fair market value of such shares of Stock at the date of purchase (as
determined consistent with Section 5.1(a)).
Section
8.3.
Directions
of Committee.
The
powers granted to the Trustee under this Plan shall be exercised by the Trustee
in its sole discretion. Except as provided in Section 8.20, the Committee
may at
any time and from time to time by written direction to the Trustee require
the
Trustee to invest in, to retain or to dispose of any security or other form
of
investment as may be specified in such direction, limited, however, to
investments permitted under this Plan, under the Act and under the Code.
Neither
the Trustee nor any other person shall be under any duty to question any
such
written direction of the Committee, and the Trustee shall as promptly as
possible comply with any such written direction. Any such direction may be
of a
continuing nature or otherwise and may be revoked in writing by the Committee
at
any time. The Trustee shall not be liable in any manner or for any reason
for
the making, retention or disposition of any investment pursuant to the lawful
written direction of the Committee.
Section
8.4.
Receipt
of Additional Shares.
Any
securities received by the Trustee as a stock split or a stock dividend or
as a
result of a reorganization or other recapitalization shall be allocated as
of
each Valuation Date in the same manner as the Stock to which it is attributable
is then
26
allocated.
If any rights, warrants or options are issued on common shares or other
securities held in the Fund, the Trustee shall exercise them for the acquisition
of additional common shares or other securities to the extent that cash is
then
available. Any common shares or other securities acquired in this fashion
shall
be treated as common shares or other securities bought by the Trustee for
the
net price paid. Any rights, warrants or options on common shares or other
securities which cannot be exercised for lack of cash may be sold by the
Trustee
with the proceeds thereof treated as a current cash dividend received on
such
common shares or other securities.
Section
8.5.
Delivery
of Materials to Committee.
Except
as otherwise provided in Section 8.17 and Section 8.20, the Trustee shall
deliver or cause to be delivered to the Committee copies of all notices,
prospectuses and financial statements relating to investments held in the
Fund.
Section
8.6.
Powers.
The
Trustee shall have power with regard to all property in the Fund at any time
and
from time to time:
(a)
|
to
sell, convey, transfer, mortgage, pledge, lease, exchange or otherwise
dispose of the same, without the necessity of approval of any court
therefor or notice to any person, natural or legal, thereof and
without
obligation on the part of any person dealing with the Trustee to
see to
the application of any money or property delivered to
it;
|
(b)
|
except
as otherwise provided in Section 7.11, Section 8.17 and Section
8.20, to
exercise any and all rights or options pertaining to any share
of Stock
held as part of the assets of the Fund and to enter into agreements
and
consent to or oppose the reorganization, consolidation, merger,
readjustment of financial structure or sale of assets of any corporation
or organization, the securities of which are held in the
Fund;
|
(c)
|
except
as otherwise provided in Section 4.5, to collect the principal
and income
of such property as the same shall become due and payable and to
give
binding receipt therefor;
|
(d)
|
to
take such action, whether by legal proceedings, compromise, abandonment
or
otherwise, as the Trustee, in its sole discretion, shall deem to
be in the
best interest of the Fund, but the Trustee shall be under no obligation
to
take any legal action unless it shall have been first indemnified
by the
Companies with respect to any expenses or losses to which it may
be
subjected through taking such
action;
|
(e)
|
to
register any securities and to hold any other property in the Fund
in its
own name or in the name of a nominee with or without the addition
of words
indicating that such securities or other property are held in a
fiduciary
capacity;
|
27
(f)
|
pending
the selection or the purchase of suitable investments or the payment
of
expenses or the making of any other payment required or permitted
under
this Plan, to retain in or to convert to cash, without liability
for
interest or any other return thereon, such portion of the Fund
as it shall
deem reasonable under the circumstances, including, but not by
way of
limitation, the power to retain sufficient cash to permit the acquisition
of large blocks of shares of Stock as the same may from time to
time
become available for purchase;
|
(g)
|
to
borrow from banks or similar lending institutions reasonable sums
of money
for the purchase of shares of Stock for the Company Contributions
Accounts
of Participants in accordance with the provisions of Section 8.7;
provided,
however,
that the Trustee may not borrow from itself or from an affiliated
institution even if the Trustee is a bank or similar lending institution
except to the extent specifically permitted by the Act and by the
Code;
and
|
(h)
|
to
do all other acts in its judgment necessary or desirable for the
proper
administration of the Trust and permissible under the Act and under
the
Code although the power to do such acts is not specifically set
forth
herein.
|
Section
8.7.
Loans
to the Trust.
The
following conditions shall be met with respect to any Exempt Loan to the
Trust:
Clause
(a).
Interest.
The rate
of interest on any Exempt Loan shall not be in excess of a reasonable rate
of
interest. At the date an Exempt Loan is made, the interest rate for the Exempt
Loan and the price of any shares of Stock to be purchased with the Exempt
Loan
proceeds shall not be such that the Plan assets might be drained
off.
Clause
(b).
Use
of
Proceeds.
The
proceeds of an Exempt Loan shall be used within a reasonable time after receipt
by the Trustee for any or all of the following purposes:
(i)
|
to
acquire Stock;
|
(ii)
|
to
repay that Exempt Loan; or
|
(iii)
|
to
repay a prior Exempt Loan.
|
Except
as
otherwise provided in Section 6.12 and Section 6.13, no Stock acquired with
Exempt Loan proceeds shall be subject to a put, call or other option or a
buy-sell or similar arrangement while held by the Trustee and when distributed
from this Plan.
Clause
(c).
Terms
of Exempt Loan.
The
terms of each Exempt Loan shall be, at the time that Exempt Loan is made,
as
favorable to this Plan as the terms of a comparable loan resulting
28
from
arm’s-length negotiations between independent parties. Each Exempt Loan shall
be
for a specific term and shall not be payable at the demand of any person,
except
in the case of default.
Clause
(d).
Collateral.
Any
collateral pledged to the lender by the Trustee shall consist only of Stock
purchased with the borrowed funds or Stock that was used as collateral for
a
prior Exempt Loan repaid with the proceeds of the current Exempt Loan;
provided,
however,
that in
addition to such collateral, the Companies may guarantee the repayment of
an
Exempt Loan.
Clause
(e).
Limited
Recourse.
Under
the terms of each Exempt Loan, the lender shall not have any recourse against
the Fund or the Trust except with respect to the collateral.
Clause
(f).
Repayment.
No
person entitled to payment under any Exempt Loan shall have any right to
assets
of the Fund or the Trust other than:
(i)
|
collateral
given for that Exempt Loan;
|
(ii)
|
contributions
(other than contributions of Stock) that are made by the Companies
under
this Plan to meet this Plan’s obligations under that Exempt
Loan;
|
(iii)
|
earnings
attributable to such collateral and the investment of such contributions;
and
|
(iv)
|
to
the extent directed by the Holding Company under Section 4.5, cash
dividends on allocated shares of
Stock.
|
Payments
made with respect to an Exempt Loan by the Trustee during any Plan Year shall
not exceed an amount equal to the sum of such contributions and earnings
received during or prior to that Plan Year less such payments in prior Plan
Years. Such contributions and earnings shall be accounted for separately
in the
books of account of this Plan and Trust until that Exempt Loan is
repaid.
Clause
(g).
Agreement
by Companies.
The
Companies shall agree in writing with the Trustee to contribute to the Fund
amounts sufficient to enable the Trustee to pay each installment of principal
and interest on each Exempt Loan on or before the date such installment is
due,
even if no tax benefit to the Companies results from such
contribution.
Clause
(h).
Release
of Collateral.
All
assets of the Fund acquired by this Plan and Trust with Exempt Loan proceeds
and
all collateral pledged to secure an Exempt Loan shall be held in a suspense
account and considered encumbered by the Exempt Loan. For each Plan Year
during
the duration of an Exempt Loan, the number of assets to be released from
encumbrance and withdrawn from the suspense account shall be based upon the
ratio that the payment of principal and interest on that Exempt Loan for
that
Plan Year bears to the total projected payments of principal
29
and
interest over the duration of the Exempt Loan period. Assets released from
encumbrance and withdrawn from the suspense account shall be allocated to
the
various Company Contributions Accounts in the Plan Year during which such
portion is paid off and in the same manner as if the assets had been obtained
by
the Trustee when no Exempt Loan was involved. Income with respect to shares
of
Stock acquired with Exempt Loan proceeds and held in the suspense account
shall
be allocated to Company Contributions Accounts along with other income earned
by
the Fund, except to the extent that such income is to be used to repay an
Exempt
Loan.
Clause
(i).
Default.
In the
event of any default upon an Exempt Loan, the value of Trust assets transferred
in satisfaction of that Exempt Loan shall not exceed the amount of the default.
If the lender is a disqualified person within the meaning of Section 4975(e)(2)
of the Code, the Exempt Loan shall provide for a transfer of Trust assets
upon
default only upon and to the extent of the failure of the Trustee to meet
the
payment schedule of that Exempt Loan; provided, however, that the making
of a
guarantee shall not make a person a lender within the meaning of this Clause
(i).
Clause
(j).
Termination
of Plan.
Upon a
complete termination of the Plan but only to the extent permitted by the
Code
and the Act, any unallocated Stock shall be sold to the Corporation at a
price
no less than fair market value or on the open market. To the extent permitted
by
Code and the Act, the proceeds of such sale shall be used to satisfy any
outstanding Exempt Loan and the balance of any funds remaining shall be
allocated as income to each Participant’s Company Contributions Account based on
the proportion that the Participant’s Company Contributions Account balance as
of the immediately preceding Valuation Date bears to the aggregate Company
Contributions Account balances of all Participants as of the immediately
preceding Valuation Date.
Section
8.8.
Annual
Accounting.
At least
annually the Trustee shall render to the Committee a written account of its
administration of the Fund during the period since the establishment of this
Plan or the last accounting thereafter. Pursuant to this requirement, Stock
acquired by the Trustee shall be accounted for as provided in Treasury
Regulations § 1.402(a)-1(b)(2)(ii). Unless written notice of disapproval is
furnished to the Trustee by the Committee within ninety (90) calendar days
after
receipt of such account, such account shall be deemed to have been
approved.
Section
8.9.
Audit.
In the
case of any disapproval as provided in Section 8.8 and unless a satisfactory
corrected written account is furnished to the Committee, an audit of the
Trustee’s account shall be made by a certified public accountant selected
jointly by the Holding Company and the Trustee, but at the expense of the
Companies. Upon completion of any such audit, the inaccuracies in the Trustee’s
account, if any, shall be corrected to conform to such audit and a corrected
written account shall be delivered to the Committee by the Trustee. Except
as
otherwise provided by the Act, an approved account or an account corrected
pursuant to such an audit shall be final and binding upon the Companies and
upon
all other persons who shall then or thereafter have any interest under this
Plan.
30
Section
8.10.
Uncertainty
Concerning Payment of Benefits.
In the
event of any dispute or uncertainty as to the person to whom payment of any
funds or other property shall be made under this Plan, the Trustee may, in
its
sole discretion, withhold such payment or delivery until such dispute or
uncertainty shall have been determined or resolved by a court of competent
jurisdiction or otherwise settled by the parties concerned.
Section
8.11.
Compensation.
The
Trustee shall be entitled to receive fair and reasonable compensation for
its
services hereunder, taking into account the amount and nature of its services
and the responsibilities involved, and shall also be entitled to be reimbursed
for all reasonable out-of-pocket expenses, including, but not by way of
limitation, legal, actuarial and accounting expenses and all costs and expenses
incurred in prosecuting or defending any action concerning this Plan or the
Trust or the rights or responsibilities of any person hereunder, brought
by or
against the Trustee. Such reasonable compensation and expenses shall be paid
by
the Companies as provided in Section 3.4.
Section
8.12.
Standard
of Care.
The
Trustee shall use its best judgment in exercising any duties or powers or
in
taking any action hereunder and shall be bound at all times to act in good
faith
and in accordance with all requirements imposed under the Act and under the
Code. Except as otherwise provided by the Act, the Trustee shall not incur
any
liability by reason of any error of judgment, mistake of law or fact or any
act
or omission hereunder of itself or of any agent, proxy or attorney so long
as it
has acted in good faith. The Trustee may act on any paper or document believed
by it to be genuine and to have been signed and presented by the proper person.
The Trustee may consult with counsel (who may, but need not, be counsel to
a
Company), accountants or actuaries selected by it and, except as otherwise
provided by the Act, the written opinion of such counsel or the written
recommendations of such accountants or actuaries shall be full and complete
authority and protection for any action or conduct pursued by the Trustee
in
good faith and in accordance with such written opinion or recommendations.
Except as otherwise provided by the Act, the Trustee shall not be liable
for any
action taken by it pursuant to the written direction of the
Committee.
Section
8.13.
Request
for Instructions.
In
addition to written instructions relating to valuation and except as otherwise
provided in Section 8.20, at any time the Trustee may, by written request,
seek
written instructions from the Committee on any matter and may await such
written
instructions from the Committee without incurring any liability whatsoever.
If
at any time the Committee should fail to give written directions to the Trustee,
the Trustee may act, and shall be protected in acting, without such written
directions, in such manner as in its sole discretion seems appropriate and
advisable under the circumstances for carrying out the purposes of the
Trust.
Section
8.14.
Resignation
of Trustee.
The
Trustee may resign at any time by giving sixty (60) calendar days’ prior written
notice to the Bank, and the Trustee may be removed, with or without cause,
by
the Bank on sixty (60) calendar days’ prior written notice to the Trustee. Such
prior written notice may be waived by the party entitled to receive it. Upon
any
such resignation or removal becoming effective, the Trustee shall render
to the
Committee a written account of its
31
administration
of the Fund for the period since the last written accounting and shall do
all
necessary acts to transfer the assets of the Fund to the successor Trustee
or
Trustees.
Section
8.15.
Vacancies
in Trusteeship.
In the
event of any vacancy in the trusteeship of the Trust hereby created, the
Bank
may designate and appoint a qualified successor Trustee or Trustees. Any
such
successor Trustee or Trustees shall have all the powers herein conferred
upon
the original Trustee.
Section
8.16.
Information
to Be Furnished.
The
Companies shall furnish to the Trustee, and the Trustee shall furnish to
the
Companies, such information relevant to this Plan and Trust as may be required
under the Code and under the Act. The Trustee shall keep such records, make
such
identification and file with the Internal Revenue Service and with the U.S.
Department of Labor such returns and other information concerning this Plan
and
Trust as may be required of it under the Code and under the Act. The Companies
shall fulfill any reporting and disclosure obligations imposed on it by the
Act,
and each Participant shall be given any reports required by the Act. To the
extent that the Trustee assumes any such Company obligations, it may charge
a
reasonable fee for its services apart from its normal fee and its expenses
as
provided in Section 8.11.
Section
8.17.
Voting
Rights of Participants.
Each
Participant (or, if applicable, his Beneficiary) shall have the right to
direct
the Trustee as to the manner in which voting rights of shares of Stock which
are
allocated to his Company Contributions Account are to be exercised with respect
to any corporate matter which involves the voting of such shares with respect
to
the approval or disapproval of any corporate merger or consolidation,
recapitalization, reclassification, liquidation, dissolution, sale of
substantially all assets of a trade or business, or such similar transactions
which may be prescribed by the Secretary of Treasury in regulations. Each
Participant (or, if applicable, his Beneficiary) shall also have the right
to
direct the Trustee as to the manner in which voting rights of shares of Stock
which are allocated to his Company Contributions Account are to be exercised
at
any time the Holding Company has a class of securities that are required
to be
registered under Section 12 of the Securities Exchange Act of 1934 or that
would
be required to be so registered except for the exemption from registration
provided by Section 12(g)(2)(H) of the Securities Exchange Act of 1934. In
all
other cases, the Committee shall be authorized to vote the Stock held by
the
Trustee as part of the Fund as provided in Section 7.11. Not less than thirty
(30) calendar days prior to each annual or special meeting of shareholders
of
the Holding Company at which one (1) or more Participants are entitled to
vote
shares of Stock allocated to their Company Contributions Accounts under this
Section 8.17, the Trustee shall cause to be prepared and delivered to each
such
Participant who has a Company Contributions Account as of the record date
established by the Holding Company a copy of the notice of the meeting and
form
of proxy directing the Trustee as to how it shall vote at such meeting or
at any
adjournment thereof with respect to each issue. Upon receipt of such proxies,
the Trustee shall vote or may grant the Committee a proxy to vote the shares
of
Stock in accordance with the proxies received by the Participants. The shares
of
Stock for which no direction is received by the Participant (or, if applicable,
his Beneficiary) or held by the Trustee in any unallocated account shall
be
tendered in proportion to the tendering directions
32
received
by the Trustee with respect to the allocated shares of Stock. The Trustee
shall
take steps to keep a Participant’s voting directions confidential and shall not
provide them to the Companies.
Section
8.18.
Delegation
of Authority.
The
Trustee may delegate any of its ministerial powers or duties under this Plan,
including the signing of any checks drawn on the Fund, to any of its agents
or
employees.
Section
8.19.
Diversification
of Company Contributions Account.
Notwithstanding anything contained in Article VI to the contrary, a Participant
who has attained age fifty-five (55) and who has completed at least ten (10)
years of participation in this Plan shall be permitted to elect that during
a
six (6) year period beginning with the Plan Year during which he had obtained
age fifty-five (55) or, if later, during which he completed his tenth (10th)
year of participation in this Plan a portion of his vested Company Contribution
Account be distributed. In the first (1st) Plan Year for which the Participant
has an election under this Section 8.19, the Participant may elect a
distribution of up to twenty-five percent (25%) of his vested Company
Contribution Account as of the end of such Plan Year. In the second (2nd),
third
(3rd), fourth (4th) and fifth (5th) Plan Year for which the Participant has
an
election under this Section 8.19, the Participant may elect a distribution
which, when aggregated to any earlier distributions made by reason of this
Section 8.19, does not exceed twenty-five percent (25%) of the vested balance
held in his Company Contribution Account as of the end of the Plan Year for
which the election is made. In the final Plan Year for which a Participant
has
an election under this Section 8.19, the Participant may elect a distribution
of
an amount which, when aggregated with any other distribution made by reason
of
this Section 8.19, does not exceed fifty percent (50%) of his vested Company
Contribution Account balance as of the end of such Plan Year. The Trustee
shall
provide Participants eligible for an election under this Section 8.19 with
information relating to the election before the end of the first (1st) Plan
Year
for which the election relates. A Participant electing a distribution under
this
Section 8.19 shall have until the ninetieth (90th) calendar day immediately
following the end of the Plan Year for which the election is made to make
his
election. Any distribution made by reason of this Section 8.19 shall be in
cash
and shall be made within one hundred and eighty (180) calendar days after
the
end of the Plan Year for which the election is made.
Section
8.20.
Tender
Offer.
Each
Participant (or, if applicable, his Beneficiary) shall have the right to
direct
the Trustee as to whether the shares of Stock which are allocated to his
Company
Contributions Account are to be tendered pursuant to any tender offer made
for
the Stock of the Holding Company. The Trustee shall as soon as practical
(and in
no event later than five (5) calendar days) after its receipt of the tender
offer documents shall cause to be prepared and delivered to each Participant
(and, if applicable, his Beneficiary) who has a Company Contributions Account
as
of the date of the tender offer a copy of all relevant information as to
the
tender offer and a written election form which will direct the Trustee as
to
whether it should tender the shares of Stock held in such Participant’s Company
Contributions Account. The shares of Stock for which no direction is received
by
the Participant (or, if applicable, his Beneficiary) or held by the Trustee
in
any unallocated account shall be tendered in proportion to the tendering
directions received by the Trustee with respect to the allocated shares of
Stock. The Trustee shall take steps to keep a
33
Participant’s
decision whether or not to tender shares of Stock confidential and shall
not
provide the information to the Companies.
ARTICLE
IX
AMENDMENT,
TERMINATION AND MERGER
Section
9.1.
Amendment.
Except
for such amendments as are permitted under this Section 9.1 and as otherwise
provided in Section 1.18 and Section 9.3, the Trust is irrevocable. The Bank
reserves the right to amend this Plan, at any time and from time to time,
in
whole or in part, including without limitation, retroactive amendments necessary
or advisable to qualify this Plan and the Trust under the provisions of Sections
401(a) and 501(a) of the Code or the corresponding provisions of any similar
statute hereafter enacted. However, the Bank’s right to amend this Plan shall
remain at all times subject to the provisions of Section 9.4. Further, no
amendment of this Plan shall:
(a)
|
alter,
change or modify the duties, powers, or liabilities of the Trustee
hereunder without their written
consent;
|
(b)
|
permit
any part of the Fund to be used to pay premiums or contributions
of the
Companies under any other employee benefit plan maintained by the
Companies for the benefit of its
Employees;
|
(c)
|
effect
any discrimination among the
Participants;
|
(d)
|
change
the vesting schedule in Section 6.3 or, if applicable, in Section
11.4
unless each Participant who has completed three (3) or more Years
of
Service as of the effective date of the amendment is permitted
to elect,
within sixty (60) calendar days after he is notified by the Committee
of
his rights under this Subsection (d), to have his vested interest
determined without regard to such
amendment;
|
(e)
|
decrease
the accrued benefit of any Participant unless the amendment is
approved by
the Department of Labor because of substantial business hardship;
or
|
(f)
|
decrease
a Participant’s Company Contributions Account balance or eliminate an
optional form of distribution for the accrued benefits of a Participant
determined as of the date of the
amendment.
|
Section
9.2.
Termination
or Complete Discontinuance of Contributions.
The
Companies are not and shall not be under any obligation or liability whatsoever
to continue their contributions pursuant to this Plan or to maintain this
Plan
for any given length of time, except as otherwise provided in Section 8.7.
A
Company may, in its sole discretion, discontinue Company contributions to
this
Plan completely, except as otherwise provided in Section 8.7, with or without
notice, or partially or totally terminate this Plan in accordance with its
provisions at any time without any
34
liability
whatsoever for such discontinuance or termination. If this Plan shall be
partially or totally terminated or if contributions of a Company shall be
completely discontinued, the rights of all Participants directly affected
by the
partial or total termination or the complete discontinuance of contributions
in
their Company Contributions Accounts shall thereupon become fully vested
and
non-forfeitable notwithstanding any other provisions of this Plan. However,
the
Trust shall continue until all Participants’ Company Contributions Accounts have
been completely distributed to, or for the benefit of, the Participants in
accordance with this Plan.
Section
9.3.
Determination
by Internal Revenue Service.
Notwithstanding any other provisions of this Plan, if the Internal Revenue
Service shall fail or refuse to issue a favorable written determination or
ruling with respect to the initial qualification of this Plan and the initial
exemption of the Trust from tax under Sections 401(a) and 501(a) of the Code,
the Trustee shall, within a reasonable time after receiving a written direction
from the Committee to do so, return to the Companies the current value of
all
Company contributions theretofore made. As a condition to such repayment,
the
Companies shall execute, acknowledge and deliver to the Trustee its written
undertaking, in form satisfactory to the Trustee, to indemnify, defend and
hold
the Trustee harmless from all claims, actions, demands, or liabilities arising
in connection with such repayment. If for any reason the Key District Director
of the Internal Revenue Service should at any time after initial qualification
fail to approve any of the terms, conditions or amendments contained in or
implied from this Plan and Trust for continuing qualification and tax exemption
under Sections 401(a) and 501(a) of the Code, then the Holding Company shall
make such modifications, alterations and amendments of this Plan as are
necessary to retain such approval and such modifications, alterations and
amendments shall be effective retroactively to the Effective Date or to such
later date as is required to retain such approval.
Section
9.4.
Nonreversion.
Except
as otherwise provided in Section 3.1 and Section 9.3:
(a)
|
The
Bank shall have no power to amend or to terminate this Plan in
such a
manner which would cause or permit any part of the Fund to be diverted
to
purposes other than for the exclusive benefit of Participants or,
if
deceased, of their spouse or other Beneficiaries or as would cause
or
permit any portion of the Fund to revert to or to become the property
of
the Companies, and
|
(b)
|
The
Bank shall have no right to modify or to amend this Plan retroactively
in
such a manner as to deprive any Participants, or if deceased, their
spouses or other Beneficiaries of any benefits to which they are
entitled
under this Plan by reason of contributions made by the Companies
prior to
the modification or amendment, unless such modification or amendment
is
necessary to meet the qualification requirements of Sections 401(a)
and
501(a) of the Code.
|
Section
9.5.
Merger.
The Bank
shall have the right, by action of its Board of Directors, to merge or to
consolidate this Plan with, or to transfer the assets or liabilities of the
Fund
to, any other qualified retirement plan and trust at any time, except that
no
such merger, consolidation or transfer
35
shall
be
authorized unless each Participant in this Plan would receive a benefit
immediately after the merger, consolidation or transfer (if the merged,
consolidated or transferred plan and trust then terminated) equal to or greater
than the benefit to which he would have been entitled immediately before
the
merger, consolidation or transfer (if this Plan then terminated).
ARTICLE
X
MISCELLANEOUS
Section
10.1.
Creation
of Plan Voluntary.
The Plan
hereby created is purely voluntary on the part of the Companies and, except
as
otherwise provided in Section 8.7, any Company may suspend or discontinue
payments hereunder at any time or from time to time as it may decide in
accordance with Section 10.17, but no suspension or discontinuance shall
operate
retroactively with respect to the rights of any Participant hereunder or
his
spouse or other Beneficiary.
Section
10.2.
No
Employment Contract.
Except
as may be required by the Act, no contributions or other payments under this
Plan shall constitute any contract on the part of the Company to continue
such
contributions or other payments hereunder. Participation hereunder shall
not
give any Participant the right to be retained in the service of the Companies
or
any right or claim to any benefits hereunder unless the right to such benefits
has accrued under this Plan. All Participants shall remain subject to
assignment, reassignment, promotion, transfer, layoff, reduction, suspension
and
discharge by the Companies to the same extent as if this Plan had never been
established.
Section
10.3.
Limitation
on Rights Created.
Nothing
contained in this Plan or any modification of the same or act done in pursuance
hereof shall be construed as giving any person whomsoever any legal or equitable
right against the Companies, the Committee, the Trustee or the Fund, unless
specifically provided herein or granted by the Act.
Section
10.4.
Waiver
of Claims.
Except
as otherwise provided by the Act, no liability whatsoever shall attach to
or be
incurred by any shareholder, officer or Director, as such, of the Companies
under or by reason of any provision of this Plan or any act with reference
to
this Plan, and any and all rights and claims thereof, as such, whether arising
at common law or in equity or created by statute, constitution or otherwise,
are
hereby expressly waived and released to the fullest extent permitted by law
by
every Participant and by his spouse or other Beneficiary as a condition of
and
as part of the consideration for the payments by the Companies under this
Plan
and for the receipt of benefits hereunder.
Section
10.5.
Spendthrift
Provision.
To the
fullest extent permitted by law, none of the benefits, payments, accounts,
funds
or proceeds of any contract held hereunder shall be subject, voluntarily
or
involuntarily, to any claim of any creditor of any Participant or of his
spouse
or other Beneficiary, nor shall the same be subject to attachment, garnishment
or other legal or equitable process by any creditor of a Participant or of
his
spouse or other Beneficiary, nor shall any Participant or his spouse or other
Beneficiary have any right to alienate, anticipate, commute, pledge,
36
encumber
or assign any such benefits, payments, accounts, funds or proceeds of any
such
contract. The preceding sentence shall also apply to the creation, assignment
or
recognition of a right to any benefit payable with respect to a Participant
pursuant to a domestic relations order, unless such order is determined to
be a
qualified domestic relations order as defined in Section 414(p) of the Code.
It
is the intention of the Companies that benefit payments hereunder shall be
made
only at the times, in the amounts and to the distributees as specified in
this
Plan regardless of any marital dissolution, bankruptcy or other legal
proceedings to which such distributees may be a party to the fullest extent
permitted by law.
Section
10.6.
Payment
of Benefits to Others.
If any
person to whom benefit payments are due or payable under this Plan shall
be
unable to care for his affairs because of illness or accident, any such payment
may be made (unless prior claim thereto shall have been made by a duly-qualified
guardian or other legal representative) to the spouse, parent, brother, sister
or other person deemed by the Committee, in its sole discretion, to have
incurred expense for such person and on such terms as the Committee, in its
sole
discretion, may impose. Any such payment and any payment to a Participant
or to
his legal representative or, if deceased, to his spouse or other Beneficiary
made pursuant to the provisions of this Plan shall to the extent thereof
be in
full satisfaction of all claims arising hereunder against this Plan, the
Fund,
the Committee, the Trustee and the Companies.
Section
10.7.
Payments
to Missing Persons.
If the
Trustee is unable to effect delivery of any amounts payable under this Plan
to
the person entitled thereto or, upon such person’s death, to such person’s
personal representative, they shall so advise the Committee in writing, and
the
Committee shall give written notice by certified mail to said person at the
last
known address of such person as shown in the Companies’ records. If such person
or the personal representative thereof shall not have responded to the Committee
within three (3) years from the date of mailing such certified notice, the
Committee shall direct the Trustee to distribute such amount, including any
amount thereafter becoming due to such person or the personal representative
thereof, in the manner provided in Section 6.7 with respect to the death
of a
Participant when there is no valid designation of Beneficiary on
file.
Section
10.8.
Severability.
If any
provisions of this Plan shall be held illegal or invalid for any reason,
such
illegality or invalidity shall not affect the remaining part of this Plan
and it
shall be construed and enforced as if such illegal or invalid provisions
had
never been inserted herein.
Section
10.9.
Captions.
Titles
of Articles, Sections and Clauses herein are for general information only
and
shall be ignored in any construction of the provisions hereof.
Section
10.10.
Construction.
Words in
the masculine gender shall be construed to include the feminine gender in
all
cases where appropriate, and words in the singular or plural shall be construed
as being in the plural or singular where appropriate.
37
Section
10.11.
Counterparts.
This
Plan may be executed in any number of counterparts, each of which shall be
deemed to be an original. All the counterparts shall constitute but one (1)
and
the same instrument and may be sufficiently evidenced by any one (1)
counterpart.
Section
10.12.
Indemnification.
The
Companies shall indemnify and hold harmless each member of the Committee
and any
individual Trustee who is also an Employee of the Company from any and all
claims, loss, damage, expense and liability arising from any act or omission
of
such member or Trustee, as the case may be, except when the same is judicially
determined to be due to the fraud or bad faith of such member or Trustee,
as the
case may be, if possible.
Section
10.13.
Standards
of Interpretation and Administration.
This
Plan
and the Fund held hereunder shall be for the exclusive benefit of Employees
of
the Companies and their spouses or other Beneficiaries and defraying reasonable
costs of administration. This Plan shall be interpreted and administered
in a
manner consistent with the requirements of the Code relating to qualified
stock
bonus plans and trusts and the requirements imposed by the Act. Wherever
in this
Plan discretionary powers are given to any party or wherever any interpretation
may be necessary, such powers shall be exercised and such interpretation
shall
be made in a non-discriminatory manner and in conformity with the fiduciary
duties imposed under Section 404 of the Act.
Section
10.14.
Governing
Law.
Except
as otherwise provided by the Act, this Plan shall be administered and construed
and its validity determined under the laws of the State of Indiana.
Section
10.15.
Successors
and Assigns.
This
Plan shall be binding upon the successors and assigns of the Companies and
of
the Trustee.
Section
10.16.
Adoption
of Plan.
Any
corporation, who together with the Holding Company, constitutes a member
of a
controlled group of corporations under Section 414(b) of the Code, with the
approval of the Board of Directors of the Holding Company may adopt this
Plan
and participate as a Company in this Plan by the execution of an instrument
of
adoption of this Plan which shall specify the Effective Date as to such party.
A
listing of the subsidiaries and affiliates who have adopted this Plan is
shown
as Appendix
A.
Section
10.17.
Withdrawal
from Plan.
Any
Company in this Plan may, by resolution of its Board of Directors or other
governing body, withdraw from participation as a Company in this
Plan.
ARTICLE
XI
TEFRA
TOP-HEAVY RULES
Section
11.1.
Application.
The
rules set forth in this Article XI shall be applicable with respect to any
Plan
Year beginning on or after the Effective Date in which this Plan is determined
to be a Top-Heavy Plan. The provisions of this Article XI shall be applied
only
to the extent necessary to comply with Section 416 of the Code and in a manner
consistent with all requirements imposed under Section 416 of the
Code.
38
Section
11.2.
Determination.
This
Plan shall be considered a Top-Heavy Plan with respect to any Plan Year if
as of
the Anniversary Date of the immediately preceding Plan Year or, if the
determination is to be made for this Plan’s first (1st) Plan Year, the last
calendar day of the first (1st) Plan Year (the “determination
date”):
(a)
|
the
present value of the Accrued Benefits (as such term is defined
in Section
11.3) of Key Employees (as such term is defined below) exceeds
sixty
percent (60%) of the present value of the Accrued Benefits of all
Employees and former Employees (other than former Key Employees
(as such
term is defined below)); provided,
however,
that the Accrued Benefits of any Participant who has not completed
an Hour
of Service for the Company during a five (5) year period ending
on the
determination date (as such term is defined above) shall be disregarded,
or
|
(b)
|
this
Plan is part of a required aggregation group (as such term is defined
below) and the required aggregation group is
top-heavy;
|
provided,
however,
that
this Plan shall not be considered a Top-Heavy Plan with respect to any Plan
Year
in which this Plan is part of a required or permissive aggregation group
(as
such terms are defined below) which is not top-heavy. For purposes of this
Article XI, the term “Key Employee” shall include for any Plan Year any Employee
or former Employee who at any time during that Plan Year or any of the four
(4)
preceding Plan Years is:
(c)
|
an
officer of a Company whose Section 415 Compensation from the Companies
is
greater than fifty percent (50%) of the maximum dollar limitation
under
Section 415(b)(1)(A) of the Code in effect for the calendar year
in which
the determination date (as such term is defined above)
falls,
|
(d)
|
one
(1) of the ten (10) Employees owning (or considered as owning within
the
meaning of Section 318 of the Code) the largest interest in a Company
whose ownership interest in that Company is at least one-half of
one
percent (0.5%) and whose Section 415 Compensation from the Companies
is
equal to or greater than the maximum dollar limitation under Section
415(c)(1)(A) of the Code in effect for the calendar year in which
the
determination date (as such term is defined above) falls; provided,
however,
that if two (2) Employees have the same interest in a Company,
the
Employee whose annual Section 415 Compensation from the Companies
is
greater shall be treated as having a larger interest in the
Company,
|
(e)
|
a
five percent (5%) owner (determined without regard to Sections
414(b),(c)
and (n) of the Code) of a Company,
|
(f)
|
a
one percent (1%) owner (determined without regard to Sections 414(b),(c)
and (n) of the Code) of a Company whose Section 415 Compensation
from the
Companies is in excess of one hundred and fifty thousand dollars
($150,000);
|
39
provided,
however,
that
the Beneficiary of any deceased Employee or of any deceased former Employee
who
was included as a Key Employee by reason of this Section 11.2 shall also
be
included as a Key Employee; provided,
further,
that an
individual shall only be included as a Key Employee to the extent required
by
Section 416(i) of the Code. For purposes of this Article XI, “Non-Key Employee”
is any Employee or former Employee who is not a Key Employee. For purposes
of
determining who is a key employee, Section 415 Compensation shall include
amounts deferred or redirected by an Employee pursuant to Sections 401(k)
and
125 of the Code. For purposes of this Section 11.2, the term “required
aggregation group” shall include:
(g)
|
all
qualified retirement plans maintained by a Company in which a Key
Employee
(as such term is defined above) is a participant; provided,
however,
that the term “required aggregation group” shall also include all
qualified retirement plans previously maintained by a Company but
terminated within the five (5) year period ending on the determination
date (as such term is defined above) in which a key employee (as
such term
is defined above) was a participant;
and
|
(h)
|
any
other qualified retirement plans maintained by a Company which
enable any
qualified retirement plan described in Subsection (g) above to
meet the
requirements of Section 401(a)(4) or of Section 410 of the
Code.
|
For
purposes of this Section 11.2, the term “permissive aggregation group” shall
include all qualified retirement plans that are part of a required aggregation
group (as such term is defined above) and any other qualified retirement
plans
maintained by a Company if such group will continue to meet the requirements
of
Section 401(a)(4) and of Section 410 of the Code.
Section
11.3.
Accrued
Benefits.
For
purposes of this Article XI, Accrued Benefits with respect to any Plan Year
shall be determined as of the determination date (as such term is defined
in
Section 11.2) for that Plan Year based on the Company Contributions Account
balances as of the most recent Valuation Date within a consecutive twelve
(12)
month period ending on such determination date; provided,
however,
that
such Company Contributions Account balances shall be adjusted to the extent
required by Section 416 of the Code to increase the Company Contributions
Accounts balances by the amount of any Company Contributions made and allocated
after the Valuation Date but on or before such determination date and by
any
distributions made to Participants prior to the Valuation Date during any
of the
five (5) consecutive Plan Years immediately preceding the Plan Year for which
the determination as to whether this Plan is a Top-Heavy Plan is being made
(including distributions from a terminated plan which if not terminated would
have been part of a required aggregation group (as such term is defined in
Section 11.7)) and to reduce the Company Contributions Account balances by
any
rollovers or plan to plan transfers made to this Plan before the Valuation
Date
which are initiated by a Participant from any qualified retirement plan
maintained by an unrelated employer and by any deductible employee
contributions.
40
Section
11.4.
Vesting
Provisions.
Notwithstanding the provisions of Section 6.3, with respect to any Plan
Year in
which this Plan is determined to be a Top-Heavy Plan, a Participant’s Accrued
Benefit which is derived from Company Contributions shall vest in accordance
with the following vesting schedule if it would result in a larger vested
percentage than the percentage determined under Section 6.3:
Period
of Service
|
Vested
Percentage
|
||
Less
than two (2) years
|
0
|
||
Two
(2) years or more but less than three (3) years
|
20%
|
||
Three
(3) years or more but less than four (4) years
|
40%
|
||
Four
(4) years or more but less than five (5) years
|
60%
|
||
Five
(5) years or more but less than six (6) years
|
80%
|
||
Six
(6) years or more
|
100%
|
provided,
however,
that if
this Plan becomes a Top-Heavy Plan and subsequently ceases to be
such:
(a)
|
the
vesting schedule shown above shall continue to apply but only with
respect
to Participants whose Period of Service is as least three (3) years
as of
the Anniversary Date of the final Top-Heavy Plan
Year,
|
(b)
|
the
vesting schedule shown above shall continue to apply but only with
respect
to the Accrued Benefits of all other Participants as of the Anniversary
Date of the final Top-Heavy Plan Year,
and
|
(c)
|
the
vesting schedule in Section 6.3 shall apply to any additional Accrued
Benefits of the Participants described in Subsection (b) above
which
accrue after the Anniversary Date of the final Top-Heavy Plan
Year.
|
Section
11.5.
Minimum
Contribution.
Notwithstanding the provisions of Section 4.2, with respect to any Plan Year
in
which this Plan is a Top-Heavy Plan, the Company contributions for such Plan
Year shall be allocated in the following order of priority:
41
(a)
|
first,
among the Company Contributions Accounts of all eligible Participants
who
had not separated from service with the Companies as of the Anniversary
Date of that Plan Year regardless of the number of Hours of Service
completed by each such Participant during that Plan Year according
to the
ratio that each Participant’s Compensation for that Plan Year bears to the
total Compensation of all eligible Participants; provided,
however,
that the portion of the Company contributions to be allocated pursuant
to
this Subsection (a) shall not exceed three percent (3%) of the
total
Compensation of all eligible Participants for that Plan
Year;
|
(b)
|
next,
the remaining portion, if any, of the Company contributions for
such Plan
Year shall be allocated in accordance with Section
4.2;
|
provided,
however,
that if
a Participant also participates in a top-heavy defined benefit plan, he shall
receive the minimum benefit for such Plan Year under the defined benefit
plan.
Section
11.6.
Code
Section 415 Limitations.
With
respect to any Plan Year beginning before January 1, 2000, in which
this
Plan is a Top-Heavy Plan, Section 4.3 shall be read by substituting the number
one (1.00) for the number one and twenty-five one hundredths (1.25) wherever
it
appears therein; provided,
however,
that
such substitution shall not have the effect of reducing a Participant’s Accrued
Benefit under any qualified defined benefit plan maintained by a Company
prior
to the first (1st) calendar day of the Plan Year in which this Article XI
initially becomes applicable.
42
This
Plan
has been adopted on this 13th
day of
April,
2001,
but is to be effective as of January 1, 1997.
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|||||
Its:
|
President
|
|||||
Attest:
|
||||||
By:
|
/s/
Xxxxxx X. Xxxxxxxxxx
|
|||||
Its:
|
Secretary
|
|||||
UNION
FEDERAL SAVINGS & LOAN ASSOCIATION
|
||||||
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|||||
Its:
|
President
|
|||||
Attest:
|
||||||
By:
|
/s/
Xxxxxx X. Xxxxxxxxxx
|
|||||
Its:
|
Secretary-Treasurer
|
|||||
HOME
FEDERAL SAVINGS BANK
|
||||||
By:
|
/s/
Xxxxx X. Xxxxxx
|
|||||
Its:
|
Vice
President and Senior Trust Officer
|
|||||
Attest:
|
||||||
By:
|
/s/
Xxxxx X. Scheedt
|
|||||
Its:
|
Assistant
Secretary
|
43
FIRST
AMENDMENT TO THE
EMPLOYEE
STOCK OWNERSHIP PLAN AND
(EFFECTIVE
JANUARY 1, 1997)
Pursuant
to rights reserved under Section 9.1 of the Union Community Bancorp Employee
Stock Ownership Plan, effective as of January 1, 1997, (the “Plan”), Union
Federal Savings & Loan Association (the “Bank”) amends the Plan, effective
January 1, 1999, as follows:
1. The
following sentence is added to the end of Section 6.14(a) of the Plan as
follows:
An
eligible rollover distribution does not include any hardship withdrawals,
as
defined in Section 401(k)(2)(B)(i)(IV) of the Code, which are attributable
to
the distributee’s elective contributions under Treas. Reg. section
1.401(k)-1(d)(2)(ii).
2.
|
The
following sentence is added to the end of Section 1.36 of the Plan
as
follows:
|
For
Plan
Years beginning on and after January 1, 2001, Section 415 Compensation shall
include elective amounts that are not includible in the gross income of the
Participant by reason of Section 132(f)(4) of the Code.
This
First Amendment has been executed this 6th
day of
September,
2001.
UNION
FEDERAL SAVINGS & LOAN ASSOCIATION
|
||
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|
Its:
|
President
|
1
SECOND
AMENDMENT TO THE
EMPLOYEE
STOCK OWNERSHIP PLAN AND
(EFFECTIVE
JANUARY 1, 1997)
Pursuant
to rights reserved under Section 9.1 of the Union Community Bancorp Employee
Stock Ownership Plan, effective as of January 1, 1997, (the “Plan”), Union
Federal Savings & Loan Association (the “Bank”) amends Section 2.1 of the
Plan, effective January 1, 2002, to provide, in its entirety, as
follows:
Section
2.1.
Eligibility.
Each
Employee in the employ of a Company shall become eligible to participate
in this
Plan on the date on which he completes one (1) Year of Service or, if later,
on
the date on which he attains age twenty-one (21); provided,
however,
that
notwithstanding anything contained herein to the contrary, any Employee who
participated in the Xxxxxxxxxx Financial Corporation Employee Stock Ownership
Plan shall not be eligible to participate in the Plan any earlier than January
1, 2004.
This
Second Amendment has been executed this 14th
day of
November,
2001.
UNION
FEDERAL SAVINGS & LOAN ASSOCIATION
|
||
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|
Xxxxxx
X. Xxxxxxx
|
||
Its:
|
President
|
1
EGTRRA
PLAN AMENDMENTS:
AMENDMENT
OF THE PLAN FOR EGTRRA
Pursuant
to the rights reserved under Section 9.1 of the Union Community Bancorp Employee
Stock Ownership Plan and Trust Agreement, as amended and restated as of January
1, 1997 (the “Plan”), Union Federal Savings & Loan Association (the
“Company”) amends the Plan to add the following pursuant to the Economic Growth
and Tax Relief Reconciliation Act of 2001 (EGTRRA).
PREAMBLE
1.
Adoption and effective date of amendment. This amendment of the plan is adopted
to reflect certain provisions of 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
provided, this amendment shall be effective as of the first day of the first
plan year beginning after December 31, 2001.
2.
Supersession of inconsistent provisions. This amendment shall supersede the
provisions of the plan to the extent those provisions are inconsistent with
the
provisions of this amendment.
SECTION
1. PLAN LOANS FOR OWNER-EMPLOYEES AND SHAREHOLDER
EMPLOYEES
Effective
for plan loans made after December 31, 2001, plan provisions prohibiting
loans
to any owner-employee or shareholder-employee shall cease to apply.
SECTION
2. LIMITATIONS ON CONTRIBUTIONS (generally
required unless §415(c) limits are incorporated by reference)
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 14
of this
amendment that provides for catch-up contributions under EGTRRA §631 and 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:
(a)
$40,000, as adjusted for increases in the cost-of-living under section 415(d)
of
the Code, or
(b)
100
percent of the participant's compensation, within the meaning of section
415(c)(3) of the Code, for the limitation year.
1
The
compensation limit referred to in (b) 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.
SECTION
3. MODIFICATION OF TOP-HEAVY RULES (not
required if plan meets safe harbor requirements of § 401(K)(12) and/or §
401(m)(11); if plan falls under safe harbors, then see plan amendments in
Plan
Amendments for Section 401(k) plans)
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 the top-heavy provisions of the plan.
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.
2
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 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. The employer may provide in the adoption
agreement that the minimum benefit requirement shall be met in another plan
(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).
Minimum
Benefits for Employees Also Covered Under Another Plan:
Describe
below the extent, if any, to which the top-heavy minimum benefit requirement
of
section 416(c) of the Code and the section of the plan providing for that
requirement shall be met in another plan. Include the name of the other plan,
the minimum benefit that will be provided under such other plan, and the
employees who will receive the minimum benefit under such other
plan:
3
SECTION
7, ROLLOVERS FROM OTHER PLANS, SHALL BE EFFECTIVE: January
1, 2002.
SECTION
8. REPEAL OF MULTIPLE USE TEST
The
multiple use test described in Treasury Regulation section 1.401(m)-2 and
the
plan shall not apply for plan years beginning after December 31,
2001.
SECTION
9. INCREASE IN COMPENSATION LIMIT (generally
recommended)
4
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.
SECTION
10. ROLLOVERS DISREGARDED IN INVOLUNTARY CASH-OUTS
1.
Applicability and effective date. This section shall apply if elected
by the
employer in the adoption agreement and shall be effective as specified
in the
adoption agreement.
2.
Rollovers disregarded in determining value of account balance for involuntary
distributions. If elected by the employer in the adoption agreement,
for
purposes of section of the plan providing for the involuntary distribution
of
vested accrued benefits of $5,000 or less, the value of a participant's
nonforfeitable account balance shall be determined without regard to
that
portion of the account balance that is attributable to rollover contributions
(and earnings allocable thereto) within the meaning of sections 402(c),
403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16) of the Code. If
the value
of the participant's nonforfeitable account balance as so determined
is $5,000
or less, the plan shall immediately distribute the participant's entire
nonforfeitable account balance.
Treatment
of Rollovers in Application of Involuntary Cash-out
Provisions:
The
employer: (choose one)
x
elects
¨
does not elect
to
exclude rollover contributions in determining the value of the participant's
nonforfeitable account balance for purposes of the plan's involuntary
cash-out
rules.
If
the
employer has elected to exclude rollover contributions, the election
shall apply
with respect to distributions made after:
x
December 31, 2001
with
respect to participants who separated from service after:
¨
________________ (may be earlier than December 31,
2001)
5
EGTRRA
PLAN AMENDMENTS FOR SECTION 401(k) PLANS
SECTION
11. ELECTIVE DEFERRALS -- CONTRIBUTION LIMITATION (required
to permit the higher amount of elective deferrals if it does not incorporate
§402(g) limit by reference)
No
participant shall be permitted to have elective deferrals made under this
plan,
or any other qualified plan maintained by the employer during any taxable
year,
in excess of the dollar limitation contained in section 402(g) of the Code
in
effect for such taxable year, except to the extent permitted under the section
that provides for catch-up contributions under EGTRRA §631 and section 414(v) of
the Code, if applicable.
SECTION
12. MAXIMUM SALARY REDUCTION CONTRIBUTIONS (for
SIMPLE §401(k) plans only)
Except
to
the extent permitted under section 14 of this amendment that provides for
catch-up contributions under EGTRRA §631 and section 414(v) of the Code, if
applicable, the maximum salary reduction contribution that can be made to
this
plan is the amount determined under section 408(p)(2)(A)(ii) of the Code
for the
calendar year.
SECTION
13. MODIFICATION OF TOP-HEAVY RULES (only
for plans that consist solely of a cash or deferred arrangement that meet
the
requirements of §401(k)(12) and matching contributions with respect to which the
requirements of §401(m)(11) are met)
The
top-heavy requirements of section 416 of the Code and the plan shall not
apply
in any year beginning after December 31, 2001, in which the plan 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.
6
SECTION
15. SUSPENSION PERIOD FOLLOWING HARDSHIP DISTRIBUTION (required
for §401(k)(12) and/or §401(m)(11) plans; optional for all other §401K) plans
that use the safe harbor standards for hardship distributions or elective
contributions)
A
participant who receives a distribution of elective deferrals after December
31,
2001, on account of hardship shall be prohibited from making elective deferrals
and employee contributions under this and all other plans of the employer
for 6
months after receipt of the distribution. A participant who receives a
distribution of elective deferrals in calendar year 2001 on account of hardship
shall be prohibited from making elective deferrals and employee contributions
under this and all other plans of the employer for the period specified by
the
employer in the adoption agreement.
Suspension
Period for Hardship Distributions:
(Choose
one.)
¨
A
participant who receives a distribution of elective deferrals in calendar
year
2001 on account of hardship shall be prohibited from making elective deferrals
and employee contributions under this and all other plans of the employer
for 6
months after receipt of the distribution or until January 1, 2002, if
later.
x
A
participant who receives a distribution of elective deferrals in calendar
year
2001 on account of hardship shall be prohibited from making elective deferrals
and employee contributions under this and all other plans of the employer
for
the period specified in the provisions of the plan relating to suspension
of
elective deferrals that were in effect prior to this
amendment.
SECTION
16. DISTRIBUTION UPON SEVERANCE FROM EMPLOYMENT
1.
Effective date. If elected by the employer in the adoption agreement, this
section shall apply for distributions and severances from employment occurring
after the dates specified in the adoption agreement.
2.
New
distributable event. A participant's elective deferrals, qualified nonelective
contributions, qualified matching contributions, and earnings attributable
to
these contributions shall be distributed on account of the participant's
severance from employment. However, such a distribution shall be subject
to the
other provisions of the plan regarding distributions, other than provisions
that
require a separation from service before such amounts may be
distributed.
7
Section
16, Distribution Upon Severance from Employment, shall apply for distributions
after:
x
December
31, 2001 (or later date ____________),
(Choose
one.)
¨
regardless of when the severance from employment occurred.
¨
for
severances from employment occurring after _____________,
This
Amendment has been executed this 23rd
day of
December, 2002.
UNION
FEDERAL SAVINGS & LOAN ASSOCIATION
|
|||
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
||
Its:
|
President
|
8
FOURTH
AMENDMENT
TO THE
UNION
COMMUNITY BANCORP
EMPLOYEE
STOCK OWNERSHIP PLAN AND
(EFFECTIVE
JANUARY 1, 1997)
Pursuant
to rights reserved under Section 9.1 of the Union Community Bancorp Employee
Stock Ownership Plan, effective as of January 1, 1997, (the “Plan”), Union
Federal Savings & Loan Association (the “Bank”) amends the Plan to add a new
Article XII, effective January 1, 2003, to provide, in its entirety,
as
follows:
ARTICLE
XII
MINIMUM
DISTRIBUTION REQUIREMENTS
Section
12.1. General
Rules.
(a)
|
Effective
Date. The provisions of this Article will apply for purposes
of
determining required minimum distributions for calendar years
beginning
with the 2003 calendar year.
|
(b)
|
Precedence.
The requirements of this Article will take precedence over any
inconsistent provisions of the
Plan.
|
(c)
|
Requirements
of Treasury Regulations Incorporated. All distributions required under
this Article will be determined and made in accordance with the
Treasury
regulations under Section 401(a)(9) of the
Code.
|
(d)
|
TEFRA
Section 242(b)(2) Elections. Notwithstanding the other provisions of
this Article, distributions may be made under a designation made
before
January 1, 1984, in accordance with Section 242(b)(2) of the
Tax Equity
and Fiscal Responsibility Act (TEFRA) and the provisions of the
Plan that
relate to Section 242(b)(2) of
TEFRA.
|
Section
12.2. Time
and Manner of Distribution.
(a)
|
Required
Beginning Date. The Participant’s entire nonforfeitable interest will
be distributed, or begin to be distributed, to the Participant
no later
than the Participant’s required beginning
date.
|
(b)
|
Death
of Participant Before Distributions Begin. If the Participant dies
before distributions begin, the Participant’s entire nonforfeitable
interest will be distributed, or begin to be distributed, no
later than as
follows:
|
1
(i)
|
If
the Participant’s surviving spouse is the Participant’s sole designated
Beneficiary, then distributions to the surviving spouse will
begin by
December 31 of the calendar year immediately following the calendar
year
in which the Participant died, or by December 31 of the calendar
year in
which the Participant would have attained age 70 1/2 , if
later.
|
(ii)
|
If
the Participant’s surviving spouse is not the Participant’s sole
designated Beneficiary, then distributions to the designated
Beneficiary
will begin by December 31 of the calendar year immediately following
the
calendar year in which the Participant
died.
|
(iii)
|
If
there is no designated Beneficiary as of September 30 of the
year
following the year of the Participant’s death, the Participant’s entire
nonforfeitable interest will be distributed by December 31 of
the calendar
year containing the fifth anniversary of the Participant’s
death.
|
(iv)
|
If
the Participant’s surviving spouse is the Participant’s sole designated
Beneficiary and the surviving spouse dies after the Participant
but before
distributions to the surviving spouse begin, this Section 12.2(b),
other
than Subsection 12.2(b)(i), will apply as if the surviving spouse
were the
Participant.
|
For
purposes of this Section 12.2(b) and Section 12.4, unless Subsection 12.2(b)(iv)
applies, distributions are considered to begin on the Participant’s required
beginning date. If Subsection 12.2(b)(iv) applies, distributions are considered
to begin on the date distributions are required to begin to the surviving
spouse
under Subsection 12.2(b)(i). If distributions under an annuity purchased
from an
insurance company irrevocably commence to the Participant before the
Participant’s required beginning date (or to the Participant’s surviving spouse
before the date distributions are required to begin to the surviving spouse
under Subsection 12.2(b)(i)), the date distributions are considered to
begin is
the date distributions actually commence.
(c)
|
Forms
of Distribution. Unless the Participant’s interest is distributed in
the form of an annuity purchased from an insurance company or
in a single
sum on or before the required beginning date, as of the first
distribution
calendar year distributions will be made in accordance with Sections
12.3
and 12.4 of this Article. If the Participant’s interest is distributed in
the form of an annuity purchased from an insurance company, distributions
thereunder will be made in accordance with the requirements of
Section
401(a)(9) of the Code and the Treasury
regulations.
|
Section
12.3. Required
Minimum Distributions During Participant’s Lifetime.
(a)
|
Amount
of Required Minimum Distribution For Each Distribution Calendar
Year.
During the Participant’s lifetime, the minimum amount that will be
distributed for each distribution calendar year is the lesser
of:
|
2
(i)
|
the
quotient obtained by dividing the Participant’s Company Contributions
Account balance by the distribution period in the Uniform Lifetime
Table
set forth in Section 1.401(a)(9)-9 of the Treasury regulations,
using the
Participant’s age as of the Participant’s birthday in the distribution
calendar year; or
|
(ii)
|
if
the Participant’s sole designated Beneficiary for the distribution
calendar year is the Participant’s spouse, the quotient obtained by
dividing the Participant’s Company Contributions Account balance by the
number in the Joint and Last Survivor Table set forth in Section
1.401(a)(9)-9 of the Treasury regulations, using the Participant’s and
spouse’s attained ages as of the Participant’s and spouse’s birthdays in
the distribution calendar year; provided, however, that under
no
circumstances shall the distribution exceed the nonforfeitable
portion of
the Participant’s Company Contributions Account
balance.
|
(b)
|
Lifetime
Required Minimum Distributions Continue Through Year of Participant’s
Death. Required minimum distributions will be determined under
this
Section 12.3 beginning with the first distribution calendar year
and up to
and including the distribution calendar year that includes the
Participant’s date of death.
|
Section
12.4. Required
Minimum Distributions After Participant’s Death.
(a)
|
Death
On or After Date Distributions
Begin.
|
(i)
|
Participant
Survived by Designated Beneficiary. If the Participant dies on or
after the date distributions begin and there is a designated
Beneficiary,
the minimum amount that will be distributed for each distribution
calendar
year after the year of the Participant’s death is the quotient obtained by
dividing the Participant’s Company Contributions Account balance by the
longer of the remaining life expectancy of the Participant or
the
remaining life expectancy of the Participant’s designated Beneficiary,
determined as follows:
|
(1)
|
The
Participant’s remaining life expectancy is calculated using the age of the
Participant in the year of death, reduced by one for each subsequent
year.
|
(2)
|
If
the Participant’s surviving spouse is the Participant’s sole designated
Beneficiary, the remaining life expectancy of the surviving spouse
is
calculated for each distribution calendar year after the year
of the
Participant’s death using the surviving spouse’s age as of the spouse’s
birthday in that year. For distribution calendar years after
the year of
the surviving spouse’s death, the remaining life expectancy of the
surviving spouse is calculated using the age of the surviving
spouse as of
the spouse’s
|
3
birthday
in the calendar year of the spouse’s death, reduced by one for each subsequent
calendar year.
(3)
|
If
the Participant’s surviving spouse is not the Participant’s sole
designated Beneficiary, the designated Beneficiary’s remaining life
expectancy is calculated using the age of the Beneficiary in
the year
following the year of the Participant’s death, reduced by one for each
subsequent year.
|
(ii)
|
No
Designated Beneficiary. If the Participant dies on or after the date
distributions begin and there is no designated Beneficiary as
of September
30 of the year after the year of the Participant’s death, the minimum
amount that will be distributed for each distribution calendar
year after
the year of the Participant’s death is the quotient obtained by dividing
the Participant’s Company Contributions Account balance by the
Participant’s remaining life expectancy calculated using the age of the
Participant in the year of death, reduced by one for each subsequent
year.
|
(b)
|
Death
Before Date Distributions
Begin.
|
(i)
|
Participant
Survived by Designated Beneficiary. If the Participant dies before the
date distributions begin and there is a designated Beneficiary,
the
minimum amount that will be distributed for each distribution
calendar
year after the year of the Participant’s death is the quotient obtained by
dividing the Participant’s balance credited to his Company Contributions
Account by the remaining life expectancy of the Participant’s designated
Beneficiary, determined as provided in Section
12.4(a).
|
(ii)
|
No
Designated Beneficiary. If the Participant dies before the date
distributions begin and there is no designated Beneficiary as
of September
30 of the year following the year of the Participant’s death, distribution
of the Participant’s entire nonforfeitable interest will be completed by
December 31 of the calendar year containing the fifth anniversary
of the
Participant’s death.
|
(iii)
|
Death
of Surviving Spouse Before Distributions to Surviving Spouse
Are Required
to Begin. If the Participant dies before the date distributions begin,
the Participant’s surviving spouse is the Participant’s sole designated
Beneficiary, and the surviving spouse dies before distributions
are
required to begin to the surviving spouse under Subsection 12.2(b)(i),
this Section 12.4(b) will apply as if the surviving spouse were
the
Participant.
|
Section
12.5. Election
to Apply 5-Year Rule to Distributions to Designated Beneficiaries. If the
Participant dies before distributions begin and there is a designated
Beneficiary and notwithstanding anything contained in this Article to the
contrary, distribution to the designated Beneficiary is not required to
begin by
the date specified in Section 12.2(b) of
4
Article
XII of the Plan, but the Participant’s entire nonforfeitable interest will be
distributed to the designated Beneficiary by December 31 of the calendar
year
containing the fifth anniversary of the Participant’s death. If the
Participant’s surviving spouse is the Participant’s sole designated Beneficiary
and the surviving spouse dies after the Participant but before distributions
to
either the Participant or the surviving spouse begin, this election will
apply
as if the surviving spouse were the Participant. This election will apply
to all
distributions.
Section
12.6. Definitions.
(a)
|
Designated
Beneficiary. The individual who is designated as the Beneficiary under
Section 6.6 of the Plan and is the designated Beneficiary under
Section
401(a)(9) of the Code and Section 1.401(a)(9)-1, Q&A-4, of the
Treasury regulations.
|
(b)
|
Distribution
calendar year. A calendar year for which a minimum distribution is
required. For distributions beginning before the Participant’s death, the
first distribution calendar year is the calendar year immediately
preceding the calendar year which contains the Participant’s required
beginning date. For distributions beginning after the Participant’s death,
the first distribution calendar year is the calendar year in
which
distributions are required to begin under Section 12.2(b). The
required
minimum distribution for the Participant’s first distribution calendar
year will be made on or before the Participant’s required beginning date.
The required minimum distribution for other distribution calendar
years,
including the required minimum distribution for the distribution
calendar
year in which the Participant’s required beginning date occurs, will be
made on or before December 31 of that distribution calendar
year.
|
(c)
|
Life
expectancy. Life expectancy as computed by use of the Single Life
Table in Section 1.401(a)(9)-9 of the Treasury
regulations.
|
(d)
|
Participant’s
Company Contributions Account balance. The balance credited to the
Participant’s Company Contributions Account as of the last Valuation Date
in the calendar year immediately preceding the distribution calendar
year
(valuation calendar year) increased by the amount of any contributions
made and allocated or forfeitures allocated to the balance of
that
Participant’s Company Contributions Account as of dates in the valuation
calendar year after the Valuation Date and decreased by distributions
made
in the valuation calendar year after the Valuation Date. The
Company
Contributions Account balance for the valuation calendar year
includes any
amounts rolled over or transferred to the Plan either in the
valuation
calendar year or in the distribution calendar year if distributed
or
transferred in the valuation calendar
year.
|
(e)
|
Required
beginning date. The date specified in Section 6.9 of the
Plan.
|
5
This
Fourth Amendment has been executed this 24th
day of
November,
2003.
UNION
FEDERAL SAVINGS &
LOAN
ASSOCIATION
|
||
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|
Its:
|
President
|
6
FIFTH
AMENDMENT TO THE
UNION
COMMUNITY BANCORP
EMPLOYEE
STOCK OWNERSHIP PLAN AND TRUST AGREEMENT
Pursuant
to rights reserved under Section 9.1 of the Union Community Bancorp
Employee Stock Ownership Plan and Trust Agreement (as last restated effective
January 1, 1997) (the “Plan”), Union Federal Savings & Loan Association
amends the Plan, effective with respect to distributions of benefits on
or after
March 28, 2005, as follows.
Section 6.10
of the Plan shall be amended by changing the mandatory small benefit cashout
threshold from five thousand dollars ($5,000) to one thousand dollars ($1,000).
This
Fifth Amendment has been executed this 20th day of April,
2005.
UNION
FEDERAL SAVINGS &
LOAN
ASSOCIATION
|
||
Signature
|
/s/
Xxxxxx X. Xxxxxxx
|
|
Printed
Name
|
Xxxxxx
X. Xxxxxxx
|
|
Title
|
President
|