EXHIBIT 10(D)
HARBOR FEDERAL SAVINGS BANK
RECOGNITION AND RETENTION PLAN
EFFECTIVE: 1/6/94
HARBOR FEDERAL SAVINGS BANK
RECOGNITION AND RETENTION PLAN AND TRUST AGREEMENT
ARTICLE I.
ESTABLISHMENT OF THE PLAN AND TRUST
1.01. Harbor Federal Savings Bank hereby establishes the Recognition and
Retention Plan (the "Plan") and Trust (the "Trust") upon the terms and
conditions hereinafter stated in this Recognition and Retention Plan and Trust
Agreement (the "Agreement").
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.
1.03. The Trust hereby established shall be revocable by the Company.
1.04. The Trust is intended to be a grantor trust, of which the
Company is the grantor, within the meaning of Subpart E, Part I, subchapter J.,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and
shall be construed accordingly.
1.05. The principal of the Trust, and any earnings thereof shall be held
separate and apart from other funds of the Company and shall be used exclusively
for the uses and purposes of Recipients and their Beneficiaries and general
creditors as herein set forth. Recipients and their Beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plan and this Agreement shall be mere
unsecured contractual rights of the Recipients and their Beneficiaries against
the Company. Any assets held by the Trust will be subject to the claims of the
Company's general creditors under federal and state law in the event of
insolvency of the Company.
ARTICLE II.
PURPOSE OF THE PLAN
2.01. The purpose of the Plan is to continue to attract and retain
employees and officers of experience and ability by providing such persons with
a proprietary interest in the Company as compensation for their contributions to
the Company and its Affiliates and as an incentive to make such contributions
and to promote the Company's growth and profitability in the future.
ARTICLE III.
DEFINITIONS
The following words and phrases when used in this Plan with an initial
capital letter, unless the context clearly indicates otherwise, shall have the
meanings set forth below. Wherever appropriate, the masculine pronoun shall
include the feminine pronoun and the singular shall include the plural.
3.01. "Affiliate" means the Company and those subsidiaries of the Company
which, with the consent of the Board, agree to participate in this Plan.
3.02. "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.
3.03. "Board" means the Board of Directors of the Company.
3.04. "Committee" means the Compensation Committee of the Board or
such other committee of the Board consisting solely of nonemployee directors of
the Company.
3.05. "Common Stock" means shares of the common stock, $1.00 par value
per share, of the Company.
3.06. "Company" shall mean Harbor Federal Savings Bank.
3.07. "Disability" means the permanent and total inability by reason of
mental or physical infirmity, or both, of an employee to perform the work
customarily assigned to him. Additionally, a medical doctor selected or approved
by the Board of Directors must advise the Committee that it is either not
possible to determine when such Disability will terminate or that it appears
probable that such Disability will be permanent during the remainder of said
participant's lifetime.
3.08. "Employee" means any person who is employed by the Company or an
Affiliate, including officers.
3.09. "Normal Retirement" means retirement at the normal or early
retirement date as set forth in the Harbor Federal Savings Bank 401(k) Profit
Sharing Plan.
3.10. "Plan Shares" means shares of Common Stock held in the Trust and
issued or issuable to a Recipient pursuant to the Plan.
3.11. "Plan Share Award" means a right granted under this Plan to earn
Plan Shares.
3.12. "Plan Share Reserve" means the shares of Common Stock held by the
Trustee pursuant to Sections 5.03 and 5.04.
3.13. "Recipient" means an Employee who receives a Plan Share Award under
the Plan.
3.14. "Trustee" means that person(s) or entity nominated by the Committee
and approved by the Board pursuant to Sections 4.01 and 4.02 to hold legal title
to the Plan assets 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 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 one or more persons or entity
to act as Trustee(s) 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
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Trustee or Trustees 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, replace
or add Trustees. The Board shall have all of the powers allocated to it in this
and other Sections of the Plan, may take any action under or with respect to the
Plan which the Committee is authorized to take, and may reverse or override any
action taken or decision made by the Committee under or with respect to the
Plan, provided, however, that except as provided in Section 7.01(d) hereof, the
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Board may not revoke any Plan Share Award.
4.03. Limitation on Liability. No member of the Board or the Committee
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or the Trustee(s) 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 or any Trustee 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 by him in such capacity under or with respect to the Plan, the Company
shall indemnify such member against expense (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
Company and its Affiliates and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
ARTICLE V.
CONTRIBUTIONS; PLAN SHARE RESERVE
5.01. Xxxxxx and Timing of Contributions. The Board shall determine
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the amounts (or the method of computing the amounts) to be contributed by the
Company and its Affiliates to the Trust established under this Plan. Such
amounts shall be paid to the Trustees at the time of contribution. No
contributions by Employees shall be permitted.
5.02. Investment of Trust Assets Upon the Reorganization. The
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Trustee shall invest all of the Trust's assets exclusively in Common Stock
except as otherwise provided below; provided, however, that the Trust shall not
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purchase in the Company's common stock offering more than 37,215 shares of
Common Stock.
5.03. Investment of Trust Assets After the Reorganization. To the
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extent that the Company makes additional contributions to the Trust the Trustee
shall invest such contributions in shares of Common Stock (subject to Section
8.02). The Trustee may make such investments through private transactions, open
market purchases and directly from the Company.
5.04. Plan Share Reserve. All shares of Common Stock acquired by
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the Trustee shall constitute the "Plan Share Reserve." Any earnings received
with respect to Common Stock held in the Plan Share Reserve shall be held in an
interest-bearing account. Any earnings received with respect to Common Stock
subject to a Plan Share Award shall be held in an interest-bearing account on
behalf of the individual Recipient.
5.05. Effect of Allocations, Returns and Forfeitures Upon Plan Share
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Reserves. Upon the allocation of Plan Share Awards under Section 6.02, or the
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decision of the Committee to return Plan Shares to the Company, the Plan Share
Reserve shall be reduced by the number of Shares subject to the Awards so
allocated or returned. Any Shares subject to an Award which may not be earned
because of a forfeiture by the Recipient pursuant to Section 7.01 shall be
returned (added) to the Plan Share Reserve.
ARTICLE VI.
ELIGIBILITY; ALLOCATIONS
6.01. Eligibility. Employees of the Company and its Affiliates are
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eligible to receive Plan Share Awards.
6.02. Allocations. The Committee may determine which of the Employees
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referenced in Section 6.01 above will be granted Plan Share Awards and the
number of Shares covered by each Award, provided, however, that the number
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of Shares covered by such Awards may not exceed the number of Shares in the Plan
Share Reserve immediately prior to the grant of such Awards, and provided
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further, that in no event shall any Awards be made which will violate the
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Charter, Bylaws or Plan of Reorganization and Stock Issuance of the Company or
any applicable federal or state law or regulation. In the event Plan Shares are
forfeited for any reason, the Committee may, from time to time, determine which,
if any, of the Employees will be granted additional Plan Share Awards to be
awarded from forfeited Plan Shares. In selecting those Employees to whom Plan
Share Awards will be granted and the number of Plan Shares covered by such
Awards, the Committee shall consider the position and responsibilities of the
eligible Employees, the length and value of their services to the Company and
its Affiliates, the compensation paid to the Employees and any other factors the
Committee may deem relevant, and the Committee may request the written
recommendation of the Chief Executive Officer and other senior executive
officers of the Company and its Affiliates. All allocations by the Committee
shall be subject to review, and approval or rejection, by the Board.
6.03. Form of Allocation. As promptly as practicable after a
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determination is made pursuant to Section 6.02 that a Plan Share Award has been
granted, 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 may be earned. The date on which the
Committee so notifies the Recipient shall be considered the date of grant of the
Plan Share Awards. The Committee shall maintain records as to all grants of
Plan Share Awards under the Plan.
6.04. Allocations Not Required. Notwithstanding anything to the
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contrary in Sections 6.01 and 6.02, no Employee shall have any right or
entitlement to receive a Plan Share Award hereunder, such Awards being at the
total discretion of the Committee and the Board, nor shall the salaried
Employees as a group have such a right. The Committee may, with the approval of
the Board (or, if so directed by the Board, shall) return all Common Stock in
the Plan Share Reserve to the Company at any time, and cease issuing Plan Share
Awards.
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 state to
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the contrary at the time a Plan Share Award is granted, Plan Shares subject to
an Award shall be earned by a Recipient at the rate of one-third of the
aggregate number of Shares covered by the Award at the end of each full twelve
months of consecutive employment with the Company or an Affiliate after the date
of grant of the Award; provided, however, that the Committee may provide for a
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less or more rapid earnings rate than that set forth herein for all Awards or
for any given Award. If the employment of a Recipient is terminated for any
reason (except as specifically provided in Subsections (b) and (c) below), the
Recipient shall forfeit the right to earn any Shares subject to the Award which
have not theretofore been earned.
In determining the number of Plan Shares which are earned, fractional
shares shall be rounded down to the nearest whole number, provided that such
fractional shares shall be aggregated and earned when the last one-third of the
Plan Shares in a Plan Award are earned.
(b) Exception for Terminations Due to Death, Disability and Normal
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Retirement. Notwithstanding the general rule contained in Section 7.01(a)
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above, Plan Shares subject to a Plan Share Award held by a Recipient whose
employment with the Company or an Affiliate terminates due to death, Disability
or Normal Retirement, or any part thereof which have not theretofore been
earned, shall be deemed earned as of the Recipients' last day of employment with
the Company or an Affiliate.
(c) Exception for Terminations After a Change in Control.
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Notwithstanding the general rule contained in Section 7.01(a) above, all Plan
Shares subject to a Plan Share Award held by a Recipient whose employment with
the Company or an Affiliate terminates following a Change in Control of the or
Company, shall be deemed earned as of the Recipient's last day of employment
with the Company or an Affiliate. A "Change in Control of the Company" is
defined as a Change in Control of a nature that: (i) would be required to be
reported in response to Item I of the current report on Form 8-K, as in effect
on the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"); or (ii) results in a Change in Control of the
Company within the meaning of the Change in Bank Control Act and the Rules and
Regulations promulgated by the Office of Thrift Supervision (or its predecessor
agency), as in effect on the date hereof; or (iii) without limitation such a
Change in Control shall be deemed to have occurred at such time as (a) any
"person" (as the term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
20% or more of the combined voting power of the Company's outstanding
securities; or (b) individuals who constitute the Board on the date hereof (the
"Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election was approved by
a vote of at least three-quarters of the directors comprising the Incumbent
Board, or whose nomination for election by the Company's stockholders was
approved by the same nominating committee serving under an Incumbent Board,
shall be, for purposes of this clause (b), considered as though he were a member
of the Incumbent Board; or (c) a plan of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Company or similar
transaction in which the Company is not the surviving institution occurs and
which the incumbent board of Directors does not approve of or consent to; or (d)
a proxy statement soliciting proxies from stockholders of the Company, by
someone other than the current management of the Company, seeking stockholder
approval of a plan of reorganization, merger or consolidation of the Company or
similar transaction with one or more corporations as a result of which the
outstanding shares of the class of securities then subject to the Plan are to be
exchanged for or converted into cash or property or securities not issued by the
Company shall be distributed; or (e) a tender offer is made for 20% or more of
the voting securities of the Company.
(d) Revocation for Misconduct. Notwithstanding anything hereinafter
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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 delivered thereunder to the
Recipient, whether or not yet earned, in the case of an Employee who is
discharged from the Company or an Affiliate for cause (as hereinafter defined),
or who is discovered after termination of employment to have engaged in conduct
that would have justified termination for cause. "Cause" is defined as personal
dishonesty, incompetence, willful misconduct, any breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, or the
willful violation of any law, rule or regulation (other than traffic violations
or similar offenses) which results in a material loss to the Company or final
cease and desist order.
7.02. Accrual of Dividends. Whenever Plan Shares are paid to a
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Recipient or Beneficiary under Section 7.03, such Recipient or Beneficiary shall
also be entitled to receive, with respect to each Plan Share paid, an amount
equal to any cash dividends and a number of shares of Common Stock equal to any
stock dividends, declared and paid with respect to a share of Common Stock
between the date the relevant Plan Share Award was granted and the date the Plan
Shares are being distributed. There shall also be distributed an appropriate
amount of net earnings, if any, of the Trust with respect to any cash dividends
so paid out.
7.03. Distribution of Plan Shares.
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(a) Timing of Distributions: General Rule. Except as provided in
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Subsection (b) below, Plan Shares shall be distributed to the Recipient or his
Beneficiary, as the case may be, as soon as practicable after they have been
earned.
(b) Timing: Exception for 10% Shareholders. Notwithstanding
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Subsection (a) above, no Plan Shares may be distributed prior to the date which
is five (5) years from the effective date of the Company's Reorganization into
the mutual holding company structure to the extent the Recipient or Beneficiary,
as the case may be, would after receipt of such shares own in excess of ten (10)
percent of the issued and outstanding shares of Common Stock. Any Plan Shares
remaining unpaid solely by reason of the operation of this Subsection (b) shall
be paid to the Recipient or his Beneficiary on the date which is five (5) years
from the effective date of the Company's Reorganization into the mutual holding
company structure.
(c) Form of Distribution. All Plan Shares, together with any shares
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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 payable.
Payments representing accumulated cash dividends (and earning thereon) shall be
made in cash.
(d) Withholding. The Trustee may withhold from any payment or
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distribution made under this Plan sufficient amounts of cash or shares of Common
Stock to cover any applicable withholding and employment taxes, and if the
amount of such 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
Company or Affiliate which employs or employed such Recipient any such amount
withheld from or paid by the Recipient or Beneficiary.
7.04. Voting of Plan Shares. After a Plan Share Award has been
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granted, the 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. All shares of
Common Stock held by the Trust as to which Recipients are not entitled to
direct, or have not directed, the voting, shall be voted by the Trustee in the
same proportion as Plan Shares which have been awarded and voted.
ARTICLE VIII.
TRUST
8.01. Trust. The Trustee shall receive, hold, administer, invest
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and 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
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that, subject to the provisions of this Plan, the Trustee shall have complete
authority and discretion with respect to the management, control and investment
of the Trust, and that the Trustee shall invest all assets
of the Trust, except those attributable to cash dividends paid with respect to
Plan Shares, in Common Stock to the fullest extent practicable and permissible
under applicable law, and except to the extent that the Trustee determines that
the holding of monies in cash or cash equivalents is necessary to meet the
obligation of the Trust. In performing their duties, the Trustees 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
constitutes the only investment of the Trust, and in making such investment, the
Trustees are authorized to purchase Common Stock from the Company or an
Affiliate 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 (including
those issued by the Company), 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.
(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 be in the
opinion of the Trustee 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 their rights,
duties and obligations hereunder, and such other legal services or
representation as they 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. Earnings. All earnings, gains and losses with respect to
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Trust assets shall be allocated, in accordance with a reasonable procedure
adopted by the Committee, to bookkeeping accounts for Recipients or to the
general account of the Trust, depending on the nature and allocation of the
assets generating such earnings, gains and losses. In particular, any earnings
on cash dividends received with respect to shares of Common Stock shall be
allocated to accounts for Recipients, if such shares are the subject of
outstanding Plan Share Awards, or, otherwise to the Plan Share Reserve.
8.05. Expenses. All costs and expenses incurred in the operation
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and administration of this Plan, including those incurred by the Trustee, shall
be borne by the Company.
8.06. Indemnification. The Company shall indemnify, defend and hold
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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 their
duties hereunder, unless the same shall be due to their gross negligence or
willful misconduct.
ARTICLE IX.
MISCELLANEOUS
9.01. Adjustments for Capital Changes. In the event of any change
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in the outstanding shares of Common Stock of the Company by reason of any stock
dividend or split, recapitalization, merger, consolidation, spin-off,
reorganization, combination or exchange of shares, or other similar corporate
change, or other increase or decrease in such shares effected without receipt
or payment of consideration by the Company, the Committee shall adjust the
aggregate number of Plan Shares available for issuance pursuant to the Plan and
shall adjust the number of shares to which any Plan Share Award relates to
prevent dilution or enlargement of the rights granted to the Recipient under the
Plan.
9.02. Amendment and Termination of Plan. The Board may, by resolution
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at any time amend or terminate the Plan and Trust. The power to amend or
terminate shall include the power to direct the Trustee to return to the Company
all or any part of the assets of the Trust, including shares of Common Stock
held in the Plan Share Reserve. However, the termination of the Trust shall not
affect a Recipient's right to earn Plan Share Awards and to the distribution of
Common Stock relating thereto, including earnings thereon, in accordance with
the terms of this Plan and the grant by the Committee or Board.
9.03. Non-Alienation. Benefits payable to Recipients and their
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Beneficiaries under this Agreement may not be anticipated, assigned (either at
law or in equity), alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal or equitable process.
9.04. Employment Rights. Neither the Plan nor any grant of a Plan
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Share 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 Company or an Affiliate
thereof, or the Company.
9.05. Voting and Dividend Rights. No Recipient shall have any
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voting or dividend rights or other rights of a shareholder 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
distributed to him.
9.06. Governing Law. The Plan and Trust shall be governed by the laws
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of the State of Florida.
9.07. Effective Date. This Plan is effective as of the effective
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date of the Company's Reorganization into the mutual holding company structure.
The Plan shall be presented to shareholders of the Company for ratification for
purposes of (i) obtaining favorable treatment under Section 16(b) of the
Securities Exchange Act of 1934; and (ii) maintaining listing on the National
Association of Securities Dealers Automated Quotation ("NASDAQ") National Market
System; provided, however, that the failure to obtain shareholder ratification
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will not affect the validity of the Plan and the Plan Share Awards hereunder.
9.08. Term of Plan. This Plan shall remain in effect until the
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earlier of (1) 21 years from the Effective Date; (2) termination by the Board of
Directors of the Company; or (3) the distribution of all assets of the Trust.
Termination of the Plan shall not affect any Plan Share Awards previously
granted, and such Awards shall remain valid and in effect until they have been
earned and paid, or by their terms expire or are forfeited.
IN WITNESS WHEREOF, the Company has caused this Trust Agreement to be
executed by its duly authorized officers and the corporate seal to be affixed
and duly attested, as of the 6th day of January, 1994.
HARBOR FEDERAL SAVINGS BANK
By: /s/
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Xxxxxxx X. Xxxxx, Xx.
President and Chief Executive Officer
Attest:
/s/
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Xxxxxxxxx Xxxxxx
Secretary
IN WITNESS WHEREOF, I, Xxxxxxx X. Xxxxx, execute this agreement, as Trustee
accepting and binding myself to undertake and perform the obligations and duties
of the Trustee hereunder and consenting to the foregoing Plan and Trust
Agreement.
Signed: /s/
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Xxxxxxx X. Xxxxx
Trustee
