EXHIBIT 10.4
WVS FINANCIAL CORP.
AMENDED AND RESTATED
RECOGNITION AND RETENTION PLAN FOR OFFICERS
AND TRUST AGREEMENT FOR OFFICERS OF WEST VIEW SAVINGS BANK
ARTICLE I
ESTABLISHMENT OF THE PLAN AND TRUST
1.01 WVS Financial Corp. (the "Corporation") hereby amends and restates
the Recognition and Retention Plan for Officers of West View Savings Bank (the
"Plan") and Trust (the "Trust") upon the terms and conditions hereinafter stated
in this amended and restated Recognition and Retention Plan and Trust Agreement
(the "Agreement"), with the amendment and restatement effective as of November
24, 2008.
1.02 The Trustee hereby accepts this Trust and agrees to hold the Trust
assets existing on the date of this Agreement and all additions and accretions
thereto upon the terms and conditions hereinafter stated.
ARTICLE II
PURPOSE OF THE PLAN
2.01 The purpose of the Plan is to retain personnel of experience and
ability in key positions by providing such key employees of the Savings Bank
with a proprietary interest in the Corporation as compensation for their
contributions to the Corporation, the Savings Bank, and other Subsidiaries and
as an incentive to make such contributions in the future.
ARTICLE III
DEFINITIONS
The following words and phrases when used in this Agreement with an
initial capital letter, unless the context clearly indicates otherwise, shall
have the meanings set forth below. Wherever appropriate, the masculine pronouns
shall include the feminine pronouns and the singular shall include the plural.
3.01 "Beneficiary" means the person or persons designated by a
Recipient to receive any benefits payable under the Plan in the event of such
Recipient's death. Such person or persons shall be designated in writing on
forms provided for this purpose by the Committee and may be changed from time to
time by similar written notice to the Committee. In the absence of a written
designation, the Beneficiary shall be the Recipient's surviving spouse, if any,
or if none, his estate.
3.02 "Board" means the Board of Directors of the Corporation.
3.03 "Change in Control" shall mean a change in the ownership of the
Corporation or the Savings Bank, a change in the effective control of the
Corporation or the Savings Bank or a change in the ownership of a substantial
portion of the assets of the Corporation or the Savings Bank, in each case as
provided under Section 409A of the Code and the regulations thereunder.
3.04 "Code" means the Internal Revenue Code of 1986, as amended.
3.05 "Committee" means the committee appointed by the Board pursuant to
Article IV hereof.
3.06 "Common Stock" means shares of the common stock, $.10 par value
per share, of the Corporation.
3.07 "Disability" means the Recipient (i) is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months, or (ii) is, by reason
of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months, receiving income replacement benefits for a period
of not less than three months under an accident and health plan covering
employees of the Corporation or the Savings Bank (or would have received such
benefits for at least three months if he had been eligible to participate in
such plan).
3.08 "Effective Date" means the day on which the Common Stock was
initially sold by the Corporation in the Offering.
3.09 "Employee" means any person who is employed by the Corporation,
the Savings Bank, or any Subsidiary, including officers or other employees who
may be directors of the Corporation.
3.10 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
3.11 "Offering" means the offering of Common Stock to the public
pursuant to the Plan of Conversion of West View Savings Bank, which was
completed in November 1993.
3.12 "Plan Shares" or "Shares" means shares of Common Stock held in the
Trust which may be distributed to a Recipient pursuant to the Plan.
3.13 "Plan Share Award" or "Award" means a right granted under this
Plan to receive a distribution of Plan Shares upon completion of the service
requirements described in Article VII.
3.14 "Recipient" means an Employee who receives a Plan Share Award
under the Plan.
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3.15 "Retirement" means a termination of employment upon or after
attainment of age sixty-five (65) or such earlier age as may be specified in
applicable plans or policies of the Corporation or in a Recipient's Plan Share
Award, provided that no Retirement may occur prior to the one-year anniversary
of the date the Recipient's Plan Share Award was granted.
3.16 "Savings Bank" means West View Savings Bank, the wholly-owned
subsidiary of the Corporation.
3.17 "Subsidiary" means West View Savings Bank and any other
subsidiaries of the Corporation or the Savings Bank which, with the consent of
the Board, agree to participate in this Plan.
3.18 "Trustee" means such firm, entity or persons nominated by the
Committee and approved by the Board pursuant to Sections 4.01 and 4.02 to hold
legal title to the Plan for the purposes set forth herein.
ARTICLE IV
ADMINISTRATION OF THE PLAN
4.01 Role of the Committee. The Plan shall be administered and
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interpreted by the Committee, which shall consist of two or more members of the
Board, none of whom shall be an officer or employee of the Corporation and each
of whom shall be a "disinterested person" within the meaning of Rule 16b-3 under
the Exchange Act. The Committee shall have all of the powers allocated to it in
this and other Sections of the Plan. The interpretation and construction by the
Committee of any provisions of the Plan or of any Plan Share Award granted
hereunder shall be final and binding. The Committee shall act by vote or written
consent of a majority of its members. Subject to the express provisions and
limitations of the Plan, the Committee may adopt such rules, regulations and
procedures as it deems appropriate for the conduct of its affairs. The Committee
shall report its actions and decisions with respect to the Plan to the Board at
appropriate times, but in no event less than one time per calendar year. The
Committee shall recommend to the Board a firm, other entity or persons to act as
Trustee in accordance with the provisions of this Plan and Trust and the terms
of Article VIII hereof.
4.02 Role of the Board. The members of the Committee and the Trustee
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shall be appointed or approved by, and will serve at the pleasure of, the Board.
The Board may in its discretion from time to time remove members from, or add
members to, the Committee, and may remove or replace the Trustee, provided that
any directors who are selected as members of the Committee shall not be officers
or employees of the Corporation and shall be "Non-Employee Directors" within the
meaning of Rule 16b-3 promulgated under the Exchange Act.
4.03 Limitation on Liability. No member of the Board or the Committee
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shall be liable for any determination made in good faith with respect to the
Plan or any Plan Shares or Plan Share Awards granted under it. If a member of
the Board or the Committee is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of anything done or not
done
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by him in such capacity under or with respect to the Plan, the Corporation
shall, subject to the requirements of applicable laws and regulations, indemnify
such member against all liabilities and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in the best interests of the
Corporation and any Subsidiaries and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
4.04 Compliance with Laws and Regulations. All Awards granted hereunder
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shall be subject to all applicable federal and state laws, rules and regulations
and to such approvals by any government or regulatory agency or stockholders as
may be required.
4.07 No Deferral of Compensation Under Section 409A of the Code. All
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Awards granted under the Plan are designed to not constitute a deferral of
compensation for purposes of Section 409A of the Code. No Recipient shall be
permitted to defer the recognition of income beyond the date an Award shall be
deemed earned pursuant to Article VII of this Plan.
ARTICLE V
CONTRIBUTIONS
5.01 Amount and Timing of Contributions. The Board shall determine the
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amount (or the method of computing the amount) and timing of any contributions
by the Corporation and any Subsidiaries to the Trust established under this
Plan. Such amounts may be paid in cash or in shares of Common Stock and shall be
paid to the Trust at the designated time of contribution. No contributions by
Employees shall be permitted.
5.02 Investment of Trust Assets; Number of Plan Shares. Subject to
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Section 8.02 hereof, the Trustee shall invest all of the Trust's assets
primarily in Common Stock. The aggregate number of Plan Shares available for
distribution pursuant to this Plan shall be 52,500 shares of Common Stock, which
are issued by the Corporation in the Offering. Subsequent to consummation of the
Offering, the Trust may purchase (from the Corporation and/or stockholders
thereof) additional shares of Common Stock for distribution pursuant to this
Plan.
ARTICLE VI
ELIGIBILITY; ALLOCATIONS
6.01 Eligibility. Plan Share Awards may be made to such Employees as
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may be selected by the Committee. In selecting those Employees to whom Plan
Share Awards may be granted and the number of Shares covered by such Awards, the
Committee shall consider the position and responsibilities of the eligible
Employees, the value of their services to the Corporation and any Subsidiaries,
and any other factors the Committee may deem relevant. The Committee may but
shall not be required to request the written recommendation of the Chief
Executive Officer of the Corporation other than with respect to Plan Share
Awards to be granted to him.
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6.02 Form of Allocation. As promptly as practicable after a
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determination is made pursuant to Section 6.01 that a Plan Share Award is to be
issued, the Committee shall notify the Recipient in writing of the grant of the
Award, the number of Plan Shares covered by the Award, and the terms upon which
the Plan Shares subject to the Award shall be distributed to the Employee. Such
terms shall be reflected in a written agreement with the Employee. The date on
which the Committee so notifies the Recipient shall be considered the date of
grant of the Plan Share Award. The Committee shall maintain records as to all
grants of Plan Share Awards under the Plan.
6.03 Allocations Not Required to any Specific Employee. Notwithstanding
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anything to the contrary in Section 6.01 hereof, no Employee shall have any
right or entitlement to receive a Plan Share Award hereunder, with such Awards
being at the total discretion of the Committee.
ARTICLE VII
EARNING AND DISTRIBUTION OF PLAN SHARES; VOTING RIGHTS
7.01 Earning Plan Shares; Forfeitures.
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(a) General Rules. Unless the Committee shall specifically
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state to the contrary at the time a Plan Share Award is granted, and subject to
the terms hereof, Plan Shares subject to an Award shall be earned by a Recipient
at the rate of ten percent (10%) of the aggregate number of Shares covered by
the Award as of each annual anniversary of the date of grant of the Award. If
the employment of a Recipient is terminated prior to the tenth (10th) annual
anniversary of the date of grant of a Plan Share Award for any reason (except as
specifically provided in subsections (b), (c) and (d) below), the Recipient
shall forfeit the right to any Shares subject to the Award which have not
theretofore been earned. No fractional shares shall be distributed pursuant to
this Plan.
(b) Exception for Terminations Due to Death, Disability and
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Retirement. Notwithstanding the general rule contained in Section 7.01(a), all
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Plan Shares subject to a Plan Share Award held by a Recipient whose employment
with the Corporation or any Subsidiary terminates due to death, Disability or
Retirement shall be deemed earned as of the Recipient's last day of employment
with the Corporation or any Subsidiary and shall be distributed as soon as
practicable thereafter; provided, however, that no Awards shall be distributed
prior to six months from the date of grant of the Plan Share Award.
(c) Exception for a Change in Control. Notwithstanding the
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general rule contained in Section 7.01(a), all Plan Shares subject to a Plan
Share Award held by a Recipient shall be deemed to be earned in the event of a
Change in Control.
(d) Revocation for Misconduct. Notwithstanding anything
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hereinafter to the contrary, the Board may by resolution immediately revoke,
rescind and terminate any Plan Share Award, or portion thereof, previously
awarded under this Plan, to the extent Plan Shares have not been distributed
hereunder to the Recipient, whether or not yet earned, in the case of an
Employee who is discharged from the employ of the Corporation or any Subsidiary
for cause (as
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hereinafter defined). Termination of employment shall be deemed to be for cause
if the Employee has been convicted of a felony by a court of competent
jurisdiction or has been adjudged by a court of competent jurisdiction to be
liable for gross negligence or misconduct in the performance of his duties to
the Corporation or any Subsidiary.
7.02 Distribution of Dividends. Any cash dividends or stock dividends
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declared in respect of each Plan Share held by the Trust will be paid by the
Trust, as soon as practicable after the Trust's receipt thereof, to the
Recipient on whose behalf such Plan Share is then held by the Trust.
7.03 Distribution of Plan Shares.
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(a) Timing of Distributions: General Rule. Plan Shares shall
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be distributed to the Recipient or his Beneficiary, as the case may be, as soon
as practicable after they have been earned, provided, however, that no Plan
Shares shall be distributed to the Recipient or Beneficiary pursuant to a Plan
Share Award within six months from the date on which that Plan Share Award was
granted to such person.
(b) Form of Distributions. All Plan Shares, together with any
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Shares representing stock dividends, shall be distributed in the form of Common
Stock. One share of Common Stock shall be given for each Plan Share earned and
distributable. Payments representing cash dividends shall be made in cash.
(c) Withholding. The Trustee may withhold from any cash
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payment or Common Stock distribution made under this Plan sufficient amounts to
cover any applicable withholding and employment taxes, and if the amount of a
cash payment is insufficient, the Trustee may require the Recipient or
Beneficiary to pay to the Trustee the amount required to be withheld as a
condition of delivering the Plan Shares. The Trustee shall pay over to the
Corporation or any Subsidiary which employs or employed such Recipient any such
amount withheld from or paid by the Recipient or Beneficiary.
(d) Restrictions on Selling of Plan Shares. Plan Share Awards
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may not be sold, assigned, pledged or otherwise disposed of prior to the time
that they are earned and distributed pursuant to the terms of this Plan.
Following distribution, the Committee may require the Recipient or his
Beneficiary, as the case may be, to agree not to sell or otherwise dispose of
his distributed Plan Shares except in accordance with all then applicable
federal and state securities laws, and the Committee may cause a legend to be
placed on the stock certificate(s) representing the distributed Plan Shares in
order to restrict the transfer of the distributed Plan Shares for such period of
time or under such circumstances as the Committee, upon the advice of counsel,
may deem appropriate.
7.04 Voting of Plan Shares. After a Plan Share Award has been made, the
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Recipient shall be entitled to direct the Trustee as to the voting of the Plan
Shares which are covered by the Plan Share Award and which have not yet been
earned and distributed to him pursuant to Section 7.03, subject to rules and
procedures adopted by the Committee for this purpose. Provided that
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the Recipient informs the Trustee how the Recipient voted Plan Shares which have
been earned and distributed for and against proposals to stockholders, the
Trustee shall vote all Plan Shares which have not yet been earned and
distributed pursuant to Section 7.03 in the same proportion for and against
proposals to stockholders as the Recipient actually votes Plan Shares which have
been earned and distributed pursuant to Section 7.03. If the Recipient does not
provide the Trustee with such information, Plan Shares which have not yet been
earned and distributed pursuant to Section 7.03 shall not be voted by the
Trustee. In the event a tender offer is made for Plan Shares, the Trustee shall
tender Plan Shares held by it which have not yet been earned and distributed in
the same proportion in which the Recipient actually tenders Plan Shares which
have been earned and distributed.
ARTICLE VIII
TRUST
8.01 Trust. The Trustee shall receive, hold, administer, invest and
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make distributions and disbursements from the Trust in accordance with the
provisions of the Plan and Trust and the applicable directions, rules,
regulations, procedures and policies established by the Committee pursuant to
the Plan.
8.02 Management of Trust. It is the intent of this Plan and Trust that
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the Trustee shall have complete authority and discretion with respect to the
arrangement, control and investment of the Trust, and that the Trustee shall
invest all assets of the Trust in Common Stock to the fullest extent
practicable, except (i) to the extent that the Trustee determines that the
holding of monies in cash or cash equivalents is necessary to meet the
obligations of the Trust and (ii) contributions to the Trust by the Corporation
prior to the Offering may be temporarily invested in such interest-bearing
account or accounts as the Trustee shall determine to be appropriate. In
performing its duties, the Trustee shall have the power to do all things and
execute such instruments as may be deemed necessary or proper, including the
following powers:
(a) To invest up to one hundred percent (100%) of all Trust
assets in Common Stock without regard to any law now or hereafter in force
limiting investments for trustees or other fiduciaries. The investment
authorized herein may constitute the only investment of the Trust, and in making
such investment, the Trustee is authorized to purchase Common Stock from the
Corporation or from any other source, and such Common Stock so purchased may be
outstanding, newly issued, or treasury shares.
(b) To invest any Trust assets not otherwise invested in
accordance with (a) above, in such deposit accounts, and certificates of
deposit, obligations of the United States Government or its agencies or such
other investments as shall be considered the equivalent of cash.
(c) To sell, exchange or otherwise dispose of any property at
any time held or acquired by the Trust.
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(d) To cause stocks, bonds or other securities to be
registered in the name of a nominee, without the addition of words indicating
that such security is an asset of the Trust (but accurate records shall be
maintained showing that such security is an asset of the Trust).
(e) To hold cash without interest in such amounts as may in
the opinion of the Trustee be reasonable for the proper operation of the Plan
and Trust.
(f) To employ brokers, agents, custodians, consultants and
accountants.
(g) To hire counsel to render advice with respect to its
rights, duties and obligations hereunder, and such other legal services or
representation as it may deem desirable.
(h) To hold funds and securities representing the amounts to
be distributed to a Recipient or his Beneficiary as a consequence of a dispute
as to the disposition thereof, whether in a segregated account or held in common
with other assets of the Trust.
Notwithstanding anything herein contained to the contrary, the Trustee
shall not be required to make any inventory, appraisal or settlement or report
to any court, or to secure any order of court for the exercise of any power
herein contained, or give bond.
8.03 Records and Accounts. The Trustee shall maintain accurate and
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detailed records and accounts of all transactions of the Trust, which shall be
available at all reasonable times for inspection by any legally entitled person
or entity to the extent required by applicable law, or any other person
determined by the Committee.
8.04 Expenses. All costs and expenses incurred in the operation and
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administration of this Plan shall be borne by the Corporation.
8.05 Indemnification. Subject to the requirements of applicable laws
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and regulations, the Corporation shall indemnify, defend and hold the Trustee
harmless against all claims, expenses and liabilities arising out of or related
to the exercise of the Trustee's powers and the discharge of its duties
hereunder, unless the same shall be due to its gross negligence or willful
misconduct.
ARTICLE IX
MISCELLANEOUS
9.01 Adjustments for Capital Changes. The aggregate number of Plan
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Shares available for distribution pursuant to the Plan Share Awards and the
number of Shares to which any Plan Share Award relates shall be proportionately
adjusted for any increase or decrease in the total number of outstanding shares
of Common Stock issued subsequent to the Effective Date resulting from any
split, subdivision or consolidation of shares or other capital adjustment, or
other increase or decrease in such shares effected without receipt or payment of
consideration by the Corporation. If, upon a merger, consolidation,
reorganization, liquidation, recapitalization or the like of the Corporation or
of another corporation, the shares of the Corporation's Common
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Stock shall be exchanged for other securities of the Corporation or of another
corporation, each Recipient of a Plan Share Award shall be entitled, subject to
the conditions herein stated, to receive such number of shares of Common Stock
or amount of other securities of the Corporation or such other corporation as
were exchangeable for the number of shares of Common Stock of the Corporation
which such Recipients would have been entitled to receive except for such
action.
9.02 Amendment and Termination of Plan. The Board may, by resolution,
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at any time amend or terminate the Plan, subject to any required stockholder
approval or any stockholder approval which the Board may deem to be advisable
for any reason, such as for the purpose of obtaining or retaining any statutory
or regulatory benefits under tax, securities or other laws or satisfying any
applicable stock exchange listing requirements. The Board may not, without the
consent of the Recipient, alter or impair his Plan Share Award except as
specifically authorized herein. The provisions of Articles VI and VII of this
Plan shall not be amended more than once every six months, other than to comport
with changes in the Internal Revenue Code of 1986, as amended, the Employee
Retirement Income Security Act of 1974, as amended, or the rules and regulations
promulgated under such statutes. Notwithstanding any other provision of the
Plan, this Plan may not be terminated prior to such time as all outstanding Plan
Share Awards granted to Recipients have been earned or forfeited in accordance
with the Plan.
9.03 Nontransferable. Plan Share Awards and rights to Plan Shares shall
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not be transferable by a Recipient, and during the lifetime of the Recipient,
Plan Shares may only be earned by and paid to a Recipient who was notified in
writing of an Award by the Committee pursuant to Section 6.02. No Recipient or
Beneficiary shall have any right in or claim to any assets of the Plan or Trust,
nor shall the Corporation or any Subsidiary be subject to any claim for benefits
hereunder.
9.04 Employment Rights. Neither the Plan nor any grant of a Plan Share
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Award or Plan Shares hereunder nor any action taken by the Trustee, the
Committee or the Board in connection with the Plan shall create any right on the
part of any Employee to continue in the employ of the Corporation or any
Subsidiary.
9.05 Voting and Dividend Rights. No Recipient shall have any voting or
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dividend rights or other rights of a stockholder in respect of any Plan Shares
covered by a Plan Share Award, except as expressly provided in Sections 7.02 and
7.04 above, prior to the time said Plan Shares are actually earned and
distributed to him.
9.06 Governing Law. The Plan and Trust shall be governed by the laws of
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the Commonwealth of Pennsylvania.
9.07 Effective Date. This Plan shall be effective as of the Effective
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Date, and Awards may be granted hereunder as of or after the Effective Date and
as long as the Plan remains in effect. The amendment and restatement of this
Plan shall be effective as of the date set forth in Section 1.01 above.
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9.08 Term of Plan. This Plan shall remain in effect until the earlier
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of (1) ten (10) years from the Effective Date, (2) termination by the Board, or
(3) the distribution to Recipients and Beneficiaries of all assets of the Trust.
9.09 Tax Status of Trust. It is intended that the trust established
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hereby be treated as a Grantor Trust of the Corporation under the provisions of
Section 671 et seq. of the Code, as the same may be amended from time to time.
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IN WITNESS WHEREOF, the Corporation has caused this amended and
restated Agreement to be executed by its duly authorized officers and the
corporate seal to be affixed and duly attested, and the Trustees of the Trust
established pursuant hereto have duly and validly executed this amended and
restated Agreement, all on this 24th day of November 2008.
ATTEST: WVS FINANCIAL CORP.
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Secretary President and Chief Executive Officer
TRUSTEES:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxxxxx XxxXxxxx
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Xxxxxxxx XxxXxxxx
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