Exhibit 10.1
BANK’34
EMPLOYEE STOCK OWNERSHIP PLAN
Originally adopted effective January
1, 2000
Amended and Restated Effective January
1, 2001
Further Amended and Restated Effective
January 1, 2013
C O N T E N T S
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Page
No.
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Section 1. Plan Identity.
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1
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1.1
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Name
.
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1
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1.2
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Purpose
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1
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1.3
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Effective Date
.
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1
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1.4
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Fiscal Period
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1
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1.5
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Single Plan for All Employers
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1
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1.6
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Interpretation of Provisions
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1
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Section 2. Definitions.
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1
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Section 3. Eligibility for Participation.
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9
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3.1
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Initial Eligibility
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9
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3.2
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Definition of Eligibility Year
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9
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3.3
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Terminated Employees
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9
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3.4
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Certain Employees Ineligible
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9
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3.5
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Participation and Reparticipation
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9
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3.6
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Omission of Eligible Employee
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9
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3.7
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Inclusion of Ineligible Employee
.
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10
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Section 4. Contributions and Credits.
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10
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4.1
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Discretionary Contributions
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10
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4.2
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Contributions for Stock Obligations
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10
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4.3
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Definitions Related to Contributions
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11
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4.4
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Conditions as to Contributions
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11
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Section 5. Limitations on Contributions and Allocations.
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11
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5.1
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Limitation on Annual Additions
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11
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5.2
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Effect of Limitations
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14
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5.3
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Limitations as to Certain Participants
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14
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5.4
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Erroneous Allocations
.
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15
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Section 6. Trust Fund and Its Investment
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15
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6.1
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Creation of Trust Fund
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15
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6.2
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Stock Fund and Investment Fund
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15
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6.3
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Acquisition of Stock
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16
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6.4
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Participants’ Option to Diversify
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17
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Section 7. Voting Rights and Dividends on Stock.
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17
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7.1
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Voting and Tendering of Stock
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17
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7.2
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Dividends on Stock
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18
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Section 8. Adjustments to Accounts.
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19
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8.1
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Adjustments for Transactions
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19
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8.2
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Valuation of Investment Fund
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19
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8.3
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Adjustments for Investment Experience
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19
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Section 9. Vesting of Participants’ Interests.
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19
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9.1
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Deferred Vesting in Accounts
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19
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9.2
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Computation of Vesting Years
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20
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9.3
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Full Vesting Upon Certain Events
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21
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9.4
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Full Vesting Upon Plan Termination
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22
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9.5
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Forfeiture, Repayment, and Restoral
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22
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9.6
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Accounting for Forfeitures
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23
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9.7
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Vesting and Nonforfeitability
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23
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Section 10. Payment of Benefits.
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23
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10.1
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Benefits for Participants
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23
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10.2
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Time for Distribution
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24
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10.3
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Marital Status
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30
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10.4
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Delay in Benefit Determination
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30
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10.5
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Accounting for Benefit Payments
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30
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10.6
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Options to Receive and Sell Stock
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30
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10.7
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Restrictions on Disposition of Stock
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31
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10.8
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Continuing Loan Provisions; Creations of Protections and Rights
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32
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10.9
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Direct Rollover of Eligible Distribution
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32
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10.10
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Waiver of 30 Day Period After Notice of Distribution
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33
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Section 11. Rules Governing Benefit Claims and Review of Appeals.
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33
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11.1
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Claim for Benefits
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33
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11.2
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Notification by Committee
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33
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11.3
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Claims Review Procedure
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34
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Section 12. The Committee and Its Functions.
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34
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12.1
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Authority of Committee
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34
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12.2
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Identity of Committee
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34
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12.3
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Duties of Committee
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35
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12.4
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Valuation of Stock
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35
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12.5
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Compliance with ERISA
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35
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12.6
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Action by Committee
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35
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12.7
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Execution of Documents
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35
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12.8
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Adoption of Rules
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35
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12.9
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Responsibilities to Participants
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36
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12.10
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Alternative Payees in Event of Incapacity
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36
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12.11
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Indemnification by Employers
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36
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12.12
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Nonparticipation by Interested Member
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36
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Section 13. Adoption, Amendment, or Termination of the Plan.
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36
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13.1
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Adoption of Plan by Other Employers
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36
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13.2
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Plan Adoption Subject to Qualification
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37
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13.3
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Right to Amend or Terminate
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37
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Section 14. Miscellaneous Provisions.
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37
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14.1
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Plan Creates No Employment Rights
.
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37
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14.2
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Nonassignability of Benefits
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38
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14.3
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Limit of Employer Liability
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38
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14.4
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Treatment of Expenses
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38
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14.5
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Number and Gender
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38
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14.6
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Nondiversion of Assets
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38
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14.7
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Separability of Provisions
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38
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14.8
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Service of Process
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38
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14.9
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Governing State Law
.
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38
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14.10
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Employer Contributions Conditioned on Deduct
ibility.
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39
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14.11
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Unclaimed Accounts
.
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39
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14.12
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Qualified Domestic Relations Order
.
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39
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14.13
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Use of Electronic Media to Provide Notices and Make Participant Elections
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40
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Section 15. Top-Heavy Provisions.
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40
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15.1
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Top-Heavy Plan
.
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40
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15.2
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Definitions
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40
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15.3
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Top-Heavy Rules of Application
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42
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15.4
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Top-Heavy Ratio
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43
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15.5
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Minimum Contributions
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43
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15.6
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Minimum Vesting
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44
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15.7
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Top-Heavy Provisions Control in Top-Heavy Plan
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44
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BANK’34
EMPLOYEE STOCK OWNERSHIP PLAN
Section 1.
Plan
Identity
.
1.1
Name
.
The name of this Plan is “BANK’34 Employee Stock Ownership Plan” (formerly, “Alamogordo Federal Savings
& Loan Association Employee Stock Ownership Plan”).
1.2
Purpose
.
The purpose of this Plan is to describe the terms and conditions under which contributions made pursuant to the Plan will be credited
and paid to the Participants and their Beneficiaries.
1.3
Effective
Date
. The Effective Date of the original Plan is January 1, 2000, and the Effective Date of this amended and restated Plan
is January 1, 2013, except as otherwise provided herein.
1.4
Fiscal
Period
. This Plan shall be operated on the basis of a January 1 to December 31 fiscal year for the purpose of keeping the
Plan’s books and records and distributing or filing any reports or returns required by law.
1.5
Single
Plan for All Employers
. This Plan shall be treated as a single plan with respect to all participating Employers for the
purpose of crediting contributions and forfeitures and distributing benefits, determining whether there has been any termination
of Service, and applying the limitations set forth in Section 5.
1.6
Interpretation
of Provisions
. The Employers intend this Plan and the Trust to be a qualified stock bonus plan under Section 401(a) of
the Code and an employee stock ownership plan within the meaning of Section 407(d)(6) of ERISA and Section 4975(e)(7) of the Code.
The Plan is intended to have its assets invested primarily in qualifying employer securities of one or more Employers within the
meaning of Section 407(d)(3) of ERISA, and to satisfy any requirement under ERISA or the Code applicable to such a plan.
Accordingly, the Plan
and Trust Agreement shall be interpreted and applied in a manner consistent with this intent and shall be administered at all times
and in all respects in a nondiscriminatory manner.
Section 2.
Definitions
.
The following capitalized
words and phrases shall have the meanings specified when used in this Plan and in the Trust Agreement, unless the context clearly
indicates otherwise:
“
Account
”
means a Participant’s interest in the assets accumulated under this Plan as expressed in terms of a separate account balance
which is periodically adjusted to reflect his Employer’s contributions, the Plan’s investment experience, and distributions
and forfeitures.
“
Active Participant
”
means any Employee who has satisfied the eligibility requirements of Section 3 and who qualifies as an Active Participant for a
particular Plan Year under Section 4.3.
“
Bank
”
means BANK’34 (formerly, Alamogordo Federal Savings & Loan Association) and any entity which succeeds to the business
of BANK’34 and adopts this Plan as its own pursuant to Section 13.2.
“
Beneficiary
”
means the person or persons who are designated by a Participant to receive benefits payable under the Plan on the Participant’s
death. In the absence of any designation or if all the designated Beneficiaries shall die before the Participant dies or shall
die before all benefits have been paid, the Participant’s Beneficiary shall be his surviving Spouse, if any, or his estate
if he is not survived by a Spouse. The Committee may rely upon the advice of the Participant’s executor or administrator
as to the identity of the Participant’s Spouse.
“
Break in
Service
” means any Plan Year, or, for the initial eligibility computation period under Section 3.2, the 12-consecutive
month period beginning on the first day of which an Employee has an Hour of Service, in which an Employee has 500 or fewer Hours
of Service. Solely for this purpose, an Employee shall be considered employed for his normal hours of paid employment during a
Recognized Absence (said Employee shall not be credited with more than 501 Hours of Service to avoid a Break in Service), unless
he does not resume his Service at the end of the Recognized Absence. Further, if an Employee is absent for any period beginning
on or after January 1, 1985, (i) by reason of the Employee’s pregnancy, (ii) by reason of the birth of the Employee’s
child, (iii) by reason of the placement of a child with the Employee in connection with the Employee’s adoption of the child,
or (iv) for purposes of caring for such child for a period beginning immediately after such birth or placement, the Employee shall
be credited with the Hours of Service which would normally have been credited but for such absence, up to a maximum of 501 Hours
of Service.
“
Code
”
means the Internal Revenue Code of 1986, as amended.
“
Committee
”
means the committee responsible for the administration of this Plan in accordance with Section 12.
“
Company
”
means Alamogordo Financial Corp., the stock holding company of the Bank. The Company is a publicly traded corporation and is taxed
as a corporation under sub-chapter C of the Code.
“
Disability
”
means only a disability which renders the Participant totally unable, as a result of bodily or mental disease or injury, to perform
any duties for an Employer for which he is reasonably fitted, which disability is expected to be permanent or of long and indefinite
duration. However, this term shall not include any disability directly or indirectly resulting from or related to habitual drunkenness
or addiction to narcotics, a criminal act or attempt, service in
the armed forces of any
country, an act of war, declared or undeclared, any injury or disease occurring while compensation to the Participant is suspended,
or any injury which is intentionally self-inflicted. Further, this term shall apply only if (i) the Participant is sufficiently
disabled to qualify for the payment of disability benefits under the federal Social Security Act or Veterans Disability Act, or
(ii) the Participant’s disability is certified by a physician selected by the Committee. Unless the Participant is sufficiently
disabled to qualify for disability benefits under the federal Social Security Act or Veterans Disability Act, the Committee may
require the Participant to be appropriately examined from time to time by one or more physicians chosen by the Committee, and no
Participant who refuses to be examined shall be treated as having a Disability. In any event, the Committee’s good faith
decision as to whether a Participant’s Service has been terminated by Disability shall be final and conclusive. Notwithstanding
the foregoing, for purposes of subsection (d)(4) in the definition of 415 Compensation, Disabled shall have the meaning under Section
22(e)(3) of the Code.
“
Early Retirement
”
means retirement on or after a Participant’s attainment of age 55 and the completion of fifteen years of employment with
an Employer. If the Participant terminates employment before satisfying the age requirement, but has satisfied the employment requirement,
the Participant will be entitled to elect early retirement upon satisfaction of the age requirement.
“
Effective
Date
” means the effective date of the original plan, which is January 1, 2000, and the effective date of the amended
and restated Plan, which is January 1, 2013, unless a different effective date is specifically applied to another section of the
Plan.
“
Employee
”
means any individual who is or has been employed or self-employed by an Employer. “Employee” also means an individual
employed by a leasing organization who, pursuant to an agreement between an Employer and the leasing organization, has performed
services for the Employer and any related persons (within the meaning of Section 414(n)(6) of the Code) on a substantially full-time
basis for more than one year, if such services are performed under the primary direction or control of the Employer. However, such
a “leased employee” shall not be considered an Employee if (i) he participates in a money purchase pension plan sponsored
by the leasing organization which provides for immediate participation, immediate full vesting, and an annual contribution of at
least 10 percent of the Employee’s 415 Compensation, and (ii) leased employees do not constitute more than 20 percent of
the Employer’s total work force (including leased employees, but excluding Highly Paid Employees and any other Employees
who have not performed services for the Employer on a substantially full-time basis for at least one year).
“
Employer
”
means the Bank or any affiliate within the purview of section 414(b), (c) or (m) and 415(h) of the Code, any other corporation,
partnership, or proprietorship which adopts this Plan with the Bank’s consent pursuant to Section 13.1, and any entity which
succeeds to the business of any Employer and adopts the Plan pursuant to Section 13.2. The Employer has never been an S-corporation.
“
Entry Date
”
means January 1 and July 1 of each Plan Year.
“
ERISA
” means the Employee
Retirement Income Security Act of 1974 (P.L. 93-406, as amended).
“
415 Compensation
”
(a) shall
mean wages, as defined in Code Section 3401(a) for purposes of income tax withholding at the source.
(b) Any
elective deferral as defined in Code Section 402(g)(3) (any Employer contributions made on behalf of a Participant to the extent
not includible in gross income and any Employer contributions to purchase an annuity contract under Code Section 403(b) under a
salary reduction agreement) and any amount which is contributed or deferred by the Employer at the election of the Participant
and which is not includible in gross income of the Participant by reason of Code Section 125, 132(f)(4), 402(e)(3), 402(h)(1)(B),
402(k) or 457(b) shall also be included in the definition of 415 Compensation.
(c) 415
Compensation in excess of $255,000 (as indexed) shall be disregarded for all Participants. For purposes of this subsection, the
$255,000 limit shall be referred to as the “applicable limit” for the Plan Year in question. The $255,000 limit shall
be adjusted for increases in the cost of living in accordance with Section 401(a)(17)(B) of the Code, effective for the Plan Year
which begins within the applicable calendar year. For purposes of the applicable limit, 415 Compensation shall be prorated over
short Plan Years and only compensation for the portion of the Plan Year during which the individual was a Participant shall be
taken into account.
(c) For
limitation years beginning on and after July 1, 2007, 415 Compensation shall also include regular pay after severance from employment
if (a) the payment is for regular compensation for services during the Participant’s regular working hours, or compensation
for services outside of the Participant’s regular working hours (such as overtime or shift differential), commissions, bonuses,
or other similar payments, and (b) the payment would have been paid to the Participant prior to severance from employment if the
Participant had continued in employment with the Employer. Such amounts shall only be included in 415 Compensation to the extent
they are paid by the later of 2½ months after severance from employment, or by the end of the limitation year that includes
the date of such severance from employment.
(d) For
limitation years beginning on and after January 1, 2009, if the Employer is making differential wage payments to a former Employee
who is performing qualified military services (as defined in Code Section 414(u)(1)), 415 Compensation shall include such payments
to the extent that those payments do not exceed the amounts the individual would have received if the individual had continued
to perform services for the Employer rather than entering qualified military service.
(e) For
limitation years beginning on and after July 1, 2007, leave cashouts shall be included in 415 Compensation if those amounts would
have been included in the definition of 415 Compensation if they were paid prior to the Participant’s severance from
employment, and the amounts
are payment for unused accrued bona fide sick, vacation or other leave, but only if the Participant would have been able to use
the leave if his employment had continued. In addition, deferred compensation shall be included in 415 Compensation if the compensation
would have been included in the definition of 415 Compensation if it had been paid prior to the Participant’s severance from
employment, and the compensation is received pursuant to a nonqualified unfunded deferred compensation plan, but only if the payment
would have been paid at the same time if the Participant had continued in employment with the Employer and only to the extent that
the payment is includible in the Participant’s gross income.
(f) For
limitation years beginning on and after July 1, 2007, 415 Compensation shall include amounts earned but not paid during the limitation
year solely because of the timing of the pay periods and pay dates.
“
Highly Paid
Employee
” for any Plan Year means an Employee who, during either of that or the immediately preceding Plan Year was at
any time a five percent owner of the Employer (as defined in Code Section 416(i)(1)) or, during the immediately preceding Plan
Year, had 415 Compensation exceeding $115,000 (as indexed) and was among the most highly compensated one-fifth of all Employees.
For this purpose:
(a) “415
Compensation” shall include any amount which is excludable from the Employee’s gross income for tax purposes pursuant
to Sections 125, 132(f)(4), 402(a)(8), 402(h)(1)(B), or 403(b) of the Code.
(b) The
number of Employees in “the most highly compensated one-fifth of all Employees” shall be determined by taking into
account all individuals working for all related Employer entities described in the definition of “Service”, but excluding
any individual who has not completed six months of Service, who normally works fewer than 17-1/2 hours per week or in fewer than
six months per year, who has not reached age 21, whose employment is covered by a collective bargaining agreement, or who is a
nonresident alien who receives no earned income from United States sources.
“
Hours of
Service
” means hours to be credited to an Employee under the following rules:
(a) Each
hour for which an Employee is paid or is entitled to be paid for services to an Employer is an Hour of Service.
(b) Each
hour for which an Employee is directly or indirectly paid or is entitled to be paid for a period of vacation, holidays, illness,
disability, lay-off, jury duty, temporary military duty, or leave of absence is an Hour of Service. However, except as otherwise
specifically provided, no more than 501 Hours of Service shall be credited for any single continuous period which an Employee performs
no duties. No more than 501 Hours of Service will be credited under this paragraph for any single continuous period (whether or
not such period occurs in a single computation period). Further, no Hours of Service shall be credited on account of payments made
solely under a plan maintained to comply with worker’s
compensation, unemployment
compensation, or disability insurance laws, or to reimburse an Employee for medical expenses.
(c) Each
hour for which back pay (ignoring any mitigation of damages) is either awarded or agreed to by an Employer is an Hour of Service.
However, no more than 501 Hours of Service shall be credited for any single continuous period during which an Employee would not
have performed any duties. The same Hours of Service will not be credited both under paragraph (a) or (b) as the case may be, and
under this paragraph (c). These hours will be credited to the employee for the computation period or periods to which the award
or agreement pertains rather than the computation period in which the award agreement or payment is made.
(d) Hours
of Service shall be credited in any one period only under one of the foregoing paragraphs (a), (b) and (c); an Employee may not
get double credit for the same period.
(e) If
an Employer finds it impractical to count the actual Hours of Service for any class or group of non-hourly Employees, each Employee
in that class or group shall be credited with 45 Hours of Service for each weekly pay period in which he has at least one Hour
of Service. However, an Employee shall be credited only for his normal working hours during a paid absence.
(f) Hours
of Service to be credited on account of a payment to an Employee (including back pay) shall be recorded in the period of Service
for which the payment was made. If the period overlaps two or more Plan Years, the Hours of Service credit shall be allocated in
proportion to the respective portions of the period included in the several Plan Years. However, in the case of periods of 31 days
or less, the Administrator may apply a uniform policy of crediting the Hours of Service to either the first Plan Year or the second.
(g) In
all respects an Employee’s Hours of Service shall be counted as required by Section 2530.200b-2(b) and (c) of the Department
of Labor’s regulations under Title I of ERISA.
“
Investment
Fund
” means that portion of the Trust Fund consisting of assets other than Stock. Notwithstanding the above, assets from
the Investment Fund may be used to purchase Stock in the open market or otherwise, or used to pay on the Stock Obligation, and
shares so purchased will be allocated to a Participant’s Stock Fund.
“
Normal Retirement
”
means retirement on or after the Participant’s Normal Retirement Date.
“
Normal Retirement
Date
” means the later of (i) the date on which a Participant attains age 65 and (ii) the 5th anniversary of the time
a Participant commenced participation in the Plan.
“
Participant
”
means any Employee who is participating in the Plan, or who has previously participated in the Plan and still has a balance credited
to his Account.
“
Plan Year
”
means the twelve month period commencing January 1 and ending December 31, 2000 and each period of 12 consecutive months beginning
on January 1 of each succeeding year.
“
Recognized
Absence
” means a period for which —
(a) an
Employer grants an Employee a leave of absence for a limited period, but only if an Employer grants such leave on a nondiscriminatory
basis; or
(b) an
Employee is temporarily laid off by an Employer because of a change in business conditions; or
(c) an
Employee is on active military duty, but only to the extent that his employment rights are protected by the Military Selective
Service Act of 1967 (38 U.S.C. Sec. 2021).
“
Service
”
means an Employee’s period(s) of employment or self-employment with an Employer, excluding for initial eligibility purposes
any period in which the individual was a nonresident alien and did not receive from an Employer any earned income which constituted
income from sources within the United States. An Employee’s Service shall include any Service which constitutes Service with
a predecessor Employer within the meaning of Section 414(a) of the Code. An Employee’s Service shall also include any Service
with an entity which is not an Employer, but only either (i) for a period after 1975 in which the other entity is a member of a
controlled group of corporations or is under common control with other trades and businesses within the meaning of Section 414(b)
or 414(c) of the Code, and a member of the controlled group or one of the trades and businesses is an Employer, (ii) for a period
after 1979 in which the other entity is a member of an affiliated service group within the meaning of Section 414(m) of the Code,
and a member of the affiliated service group is an Employer, or (iii) all Employers aggregated with the Employer under Section
414(o) of the Code (but not until the Proposed Regulations under Section 414(o) become effective). Notwithstanding any provision
of this Plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided
in accordance with Section 414(u) of the Code.
“
Spouse
”
means the individual, if any, to whom a Participant is lawfully married on the date benefit payments to the Participant are to
begin, or on the date of the Participant’s death, if earlier. A former Spouse shall be treated as the Spouse or surviving
Spouse to the extent provided under a qualified domestic relations order as described in section 414(p) of the Code.
“
Stock
”
means common stock issued by the Employer (or by a corporation which is a member of the same controlled group) which is readily
tradable on an established securities market, and beginning on and after January 1, 2012, within the meaning of Treasury Regulation
1.401(a)(35)-1(f)(5). In the event there is no common stock which meets the requirements of the preceding sentence, then “Stock”
means common stock issued by the Employer (or by a corporation which is a member of the same controlled group) having a combined
voting power and dividend rights equal to or in excess of (A) that class of common stock of the Employer (or
of any other such corporation) having the
greatest voting power; and (B) that class of common stock of the Employer (or of any other such corporation) having the greatest
dividend rights.
“
Stock Fund
”
means that portion of the Trust Fund consisting of Stock.
“
Stock Obligation
”
means an indebtedness arising from any extension of credit to the Plan or the Trust which satisfies the requirements set forth
in Section 6.3 and which was obtained for any or all of the following purposes:
(i) to
acquire qualifying Employer securities as defined in Treasury Regulations § 54.4975-12;
(ii) to
repay such Stock Obligation; or
(iii) to
repay a prior exempt loan.
“
Trust
”
or “
Trust Fund
” means the trust fund created under this Plan.
“
Trust Agreement
”
means the agreement between the Bank and the Trustee concerning the Trust Fund. If any assets of the Trust Fund are held in a co-mingled
trust fund with assets of other qualified retirement plans, “Trust Agreement” shall be deemed to include the trust
agreement governing that co-mingled trust fund. With respect to the allocation of investment responsibility for the assets of the
Trust Fund, the provisions of Article II of the Trust Agreement are incorporated herein by reference.
“
Trustee
”
means one or more corporate persons or individuals selected from time to time by the Bank to serve as trustee or co-trustees of
the Trust Fund.
“
Unallocated
Stock Fund
” means that portion of the Stock Fund consisting of the Plan’s holding of Stock which has been acquired
in exchange for one or more Stock obligations and which has not yet been allocated to the Participant’s Accounts in accordance
with Section 4.2.
“
Valuation
Date
” means each business day provided the Stock is readily tradable on an established securities market. If the Stock
is not readily tradable on an established securities market, then “Valuation Date” shall mean the last day of the Plan
Year and each other date as of which the Committee shall determine the investment experience of the Investment Fund and adjust
the Participants’ Accounts accordingly. The Valuation Date for transactions between the Plan and a disqualified person, if
any, shall be the date of the transaction, in accordance with Treasury Regulation 54.4975-11(d)(5).
“
Valuation
Period
” means the period following a Valuation Date and ending with the next Valuation Date.
“
Vesting Year
”
means a unit of Service credited to a Participant pursuant to Section 9.2 for purposes of determining his vested interest in his
Account.
Section 3.
Eligibility
for Participation
.
3.1
Initial
Eligibility
. An Employee shall enter the Plan as of the Entry Date coincident with or next following the later of the following
dates:
(a) the
last day of the Employee’s first Eligibility Year, and
(b) the
Employee’s 21st birthday. However, if an Employee is not in active Service with an Employer on the date he would otherwise
first enter the Plan, his entry shall be deferred until the next day he is in Service.
3.2
Definition
of Eligibility Year
. An “Eligibility Year” means an applicable eligibility period (as defined below) in which
the Employee has completed 1,000 Hours of Service for the Employer. For this purpose:
(a) an
Employee’s first “eligibility period” is the 12-consecutive month period beginning on the first day on which
he has an Hour of Service, and
(b) his
subsequent eligibility periods will be 12-consecutive month periods beginning on each January 1 after that first day of Service.
3.3
Terminated
Employees
. No Employee shall have any interest or rights under this Plan if he is never in active Service with an Employer
on or after the Effective Date.
3.4
Certain
Employees Ineligible
. No Employee shall participate in the Plan while his Service is covered by a collective bargaining
agreement between an Employer and the Employee’s collective bargaining representative if (i) retirement benefits have been
the subject of good faith bargaining between the Employer and the representative and (ii) the collective bargaining agreement does
not provide for the Employee’s participation in the Plan.
3.5
Participation
and Reparticipation
. Subject to the satisfaction of the foregoing requirements, an Employee shall participate in the Plan
during each period of his Service from the date on which he first becomes eligible until his termination. For this purpose, an
Employee who returns before five (5) consecutive Breaks in Service who previously satisfied the initial eligibility requirements
or who returns after five (5) consecutive one year Breaks in Service with a vested Account balance in the Plan shall re-enter the
Plan as of the date of his return to Service with an Employer.
3.6
Omission
of Eligible Employee
. If, in any Plan Year, any Employee who should be included as a Participant in the Plan is erroneously
omitted and discovery of such omission is not made until after a contribution by his Employer for the year has been made, the Employer
shall make a subsequent contribution with respect to the omitted Employee in the amount which the said Employer would have contributed
shall be made regardless of whether or not it is deductible in whole or in part in any taxable year under applicable provisions
of the Code.
3.7
Inclusion
of Ineligible Employee
. If, in any Plan Year, any person who should not have been included as a Participant in the Plan
is erroneously included and discovery of such incorrect inclusion is not made until after a contribution for the year has been
made, the Employer shall not be entitled to recover the contribution made with respect to the ineligible person regardless of whether
or not a deduction is allowable with respect to the ineligible person shall constitute a forfeiture for the Plan Year in which
the discovery is made.
Section 4.
Contributions
and Credits
.
4.1
Discretionary
Contributions
. The Employer shall from time to time contribute, with respect to a Plan Year, such amounts as it may determine
from time to time. The Employer shall have no obligation to contribute any amount under this Plan except as so determined in its
sole discretion. The Employer’s contributions and available forfeitures for a Plan Year shall be credited as of the last
day of the year to the Accounts of the Active Participants in proportion to their amounts of 415 Compensation. Notwithstanding
the foregoing, this Plan shall not accept a direct rollover or rollover contribution of an “eligible rollover” as such
term is defined in Section 10.9-1 of the Plan.
4.2
Contributions
for Stock Obligations
. If the Trustee, upon instructions from the Committee, incurs any Stock Obligation upon the purchase
of Stock, the Employer may contribute for each Plan Year an amount sufficient to cover all payments of principal and interest as
they come due under the terms of the Stock Obligation. If there is more than one Stock Obligation, the Employer shall designate
the one to which any contribution is to be applied. Investment earnings realized on Employer contributions and any dividends paid
by the Employer on Stock held in the Unallocated Stock Account, shall be applied to the Stock Obligation related to that Stock,
subject to Section 7.2.
In each Plan Year in
which Employer contributions, earnings on contributions, or dividends on unallocated Stock are used as payments under a Stock Obligation,
a certain number of shares of the Stock acquired with that Stock Obligation which is then held in the Unallocated Stock Fund shall
be released for allocation among the Participants. The number of shares released shall bear the same ratio to the total number
of those shares then held in the Unallocated Stock Fund (prior to the release) as (i) the principal and interest payments made
on the Stock Obligation in the current Plan Year bears to (ii) the sum of (i) above, and the remaining principal and interest payments
required (or projected to be required on the basis of the interest rate in effect at the end of the Plan Year) to satisfy the Stock
Obligation.
At the direction of
the Committee, the current and projected payments of interest under a Stock Obligation may be ignored in calculating the number
of shares to be released in each year if (i) the Stock Obligation provides for annual payments of principal and interest at a cumulative
rate that is not less rapid at any time than level annual payments of such amounts for 10 years, (ii) the interest included in
any payment is ignored only to the extent that it would be determined to be interest under standard loan amortization tables, and
(iii) the term of the Stock Obligation, by reason of renewal, extension, or refinancing, has not exceeded 10 years from the original
acquisition of the Stock.
4.3
Definitions
Related to Contributions
. For the purposes of this Plan, the following terms have the meanings specified:
“
Active Participant
”
means a Participant who has satisfied the eligibility requirements under Section 3 and who has at least 1000 Hours of Service during
the current Plan Year. However, a Participant shall not qualify as an Active Participant unless (i) he is in active Service with
an Employer as of the last day of the Plan Year, or (ii) he is on a Recognized Absence as of that date, or (iii) his Service terminated
during the Plan Year by reason of Disability, death, Early or Normal Retirement.
In the event a Plan
Year is a period of less than 12 months for any reason, then 415 Compensation for the short period shall not exceed the pro rata
portion of this limit created by multiplying a fraction which is the number of months in the short period divided by twelve times
the annual compensation limit.
4.4
Conditions
as to Contributions
. Employers’ contributions shall in all events be subject to the limitations set forth in Section
5. Contributions may be made in the form of cash, or securities and other property to the extent permissible under ERISA, including
Stock, and shall be held by the Trustee in accordance with the Trust Agreement. In addition to the provisions of Section 13.3 for
the return of an Employer’s contributions in connection with a failure of the Plan to qualify initially under the Code, any
amount contributed by an Employer due to a good faith mistake of fact, or based upon a good faith but erroneous determination of
its deductibility under Section 404 of the Code, shall be returned to the Employer within one year after the date on which the
contribution was originally made, or within one year after its nondeductibility has been finally determined. However, the amount
to be returned shall be reduced to take account of any adverse investment experience within the Trust Fund in order that the balance
credited to each Participant’s Account is not less that it would have been if the contribution had never been made.
Section 5.
Limitations
on Contributions and Allocations
.
5.1
Limitation
on Annual Additions
. Notwithstanding anything herein to the contrary, allocation of Employer contributions for any Plan
Year shall be subject to the following:
5.1-1 No
more than one-third of the Employer contributions used for repayment of any Stock Obligation in accordance with Section 4.2 shall
be allocated to the accounts of Highly Paid Employees (within the meaning of Code Section 414(q)), with the remaining Employer
contributions to be made to Non-Highly Compensated Employees in the manner specified under Section 8.1. Such adjustments shall
be made before any allocations occur.
5.1-2 After
adjustment, if any, required by the preceding paragraph, the annual additions during any Plan Year to any Participant’s Account
under this and any other defined contribution plans maintained by the Employer or an affiliate (within the purview of Sections
414(b), (c) and (m) and Section 415(h) of the Code, which affiliate shall be deemed the Employer for this purpose) shall not exceed
the lesser of: (i) $51,000 (or such other dollar amount which results from cost-of-living adjustments under Section 415(d) of the
Code) (the “Dollar Limitation”) or (ii) 100 percent of the Participant’s 415 Compensation for such limitation
year (the “Percentage Limitation”). In the event Stock is released from the Unallocated Stock Fund and allocated to
a Participant’s account for a particular Plan Year, the Employer may determine for such year that an annual addition shall
be calculated on the basis of the fair market value of the Stock so released and allocated (such fair market value to be based
on the value as of the last Valuation Date of the Plan Year for which the Stock is released) if the annual addition, as so calculated,
is lower than the annual addition calculated on the basis of the Employer contribution. The percentage limitation 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. If, as a result of the allocation of forfeitures, a reasonable error
in estimating a Participant’s annual compensation, a reasonable error in determining the amount of elective deferrals (within
the meaning of Code Section 401(g)(3)) that may be made with respect to any individual under the limits of Code Section 415, or
under other limited facts and circumstances that the Commissioner of the Internal Revenue Service finds justify the availability
of the rules set forth in this paragraph, the annual additional under the terms of the Plan for a particular Participant would
cause the limitations of Code Section 415 applicable to that Participant for the limitation year to be exceeded, the excess amounts
shall not be deemed annual additional in that limitation year if they are treated in accordance with any one of the following:
(i) Any
excess amount at the end of the Plan Year that cannot be allocated to the Participant’s Account shall be reallocated to the
remaining Participants who are eligible for an allocation of Employer contributions for the Plan Year. The reallocation shall be
made in accordance with Section 4.1 of the Plan as if the Participant whose Account otherwise would receive the excess amount is
not eligible for an allocation of Employer contributions.
(ii) If,
as a result of the allocation of forfeitures, there is an excess annual addition with respect to a Participant for a limitation
year and the Participant is covered by the Plan at the end of the Plan Year, any excess amount at the end of the Plan Year that
cannot be allocated to the Participant’s Account shall be used to reduce the Employer contributions for the Participant in
the next limitation year and any succeeding limitation years if necessary.
(iii) If
the Participant is not covered by the Plan at the end of the Plan Year, the excess amount will be held unallocated in a suspense
account. The suspense account will be applied to reduce future Employer contributions for all remaining Participants in the next
limitation year and each succeeding limitation year if necessary.
(iv) If
a suspense account is in existence at any time during a limitation year, it will not participate in any allocation of investment
gains and losses. All amounts held in suspense accounts must be allocated to Participant’s Accounts before any contributions
may be made to the Plan for the limitation year.
(v) If
a suspense account exists at the time of Plan termination, amounts held in the suspense account that cannot be allocated shall
revert to the Employer.
(vi) Notwithstanding
any provision of the Plan to the contrary, effective for limitation years beginning on and after July 1, 2007, if the annual additions
are exceeded for any Participant, then the Plan may only correct such excess in accordance with the Employee Plans Compliance Resolution
System (EPCRS) as set forth in Revenue Procedure 2013-12 or any superseding guidance, including, but not limited to, the preamble
to the final Treasury Regulations under Section 415 of the Code.
5.1-3 For
purposes of this Section 5.1, the “annual addition” to a Participant’s Accounts means the sum of (i) Employer
contributions, (ii) Employee contributions, if any, and (iii) forfeitures. Annual additions to a defined contribution plan also
include amounts allocated, after March 31, 1984, to an individual medical account, as defined in Section 415(l)(2) of the Internal
Revenue Code, which is part of a pension or annuity plan maintained by the Employer, amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending after such date, which are attributable to post-retirement medical benefits
allocated to the separate account of a Key Employee under a welfare benefit fund, as defined in Section 419A(d) of the Internal
Revenue Code, maintained by the Employer. The $30,000 limitations referred to shall, for each limitation year ending after 1988,
be automatically adjusted to the new dollar limitations determined by the Commissioner of Internal Revenue for the calendar year
beginning in that limitation year. Effective July 1, 2007, “annual additions” shall not include (i) the direct transfer
of a benefit or Employee contribution from a qualified plan to the Plan, (ii) rollover contributions described in Sections 401(a)(31),
402(c)(1), 403(a)(4), 403(b)(8), 408(d)(3) or 457(e)(16) of the Code, (iii) repayments of amounts described in Section 411(a)(7)(B)
of the Code, or (iv) restorative payments. A restorative payment is a payment made to restore losses to the Plan resulting from
actions by a fiduciary for which there is a reasonable risk of liability for breach of a fiduciary duty under ERISA or other applicable
federal or state law, where Participants who are similarly situated are treated similarly with respect to the payments. Generally,
payments are restorative payments only if the payments are made to restore some or all of the Plan’s losses due to an action
(or failure to act) that creates a reasonable risk of liability for such a breach of fiduciary duty, including payments to the
Plan made pursuant to a Department of Labor order, the Department of Labor’s Voluntary Fiduciary Correction Program, or a
court-approved settlement, to restore losses to the Plan on account of the breach of fiduciary duty.
5.1-4 Notwithstanding
the foregoing, if no more than one-third of the Employer contributions to the Plan for a year which are deductible under Section
404(a)(9) of the Code are allocated to Highly Paid Employees (within the meaning of Section 414(q) of the Internal Revenue Code),
the limitations imposed herein shall not apply to:
(i) forfeitures
of Employer securities (within the meaning of Section 409 of the Code) under the Plan if such securities were acquired with the
proceeds of a loan described in Section 404(a)(9)(A) of the Code), or
(ii) Employer
contributions to the Plan which are deductible under Section 404(a)(9)(B) and charged against a Participant’s Account.
5.1-5 If
the Employer contributes amounts, on behalf of Employees covered by this Plan, to other “defined contribution plans”
as defined in Section 3(34) of ERISA, the limitation on annual additions provided in this Section shall be applied to annual additions
in the aggregate to this Plan and to such other plans. Reduction of annual additions, where required, shall be accomplished first
by reductions under such other plan pursuant to the directions of the named Fiduciary for administration of such other plans or
under priorities, if any, established under the terms of such other plans and then by allocating any remaining excess for this
Plan in the manner and priority set out above with respect to this Plan.
5.1-6 A
limitation year shall mean each 12 consecutive month period beginning each January 1. Effective July 1, 2007, the limitation year
may only be changed by Plan amendment. Furthermore, if the Plan is terminated effective as of a date other than the last day of
the Plan’s limitation year, then the Plan shall be treated as if the Plan had been amended to change its limitation year.
5.2
Effect
of Limitations
. The Committee shall take whatever action may be necessary from time to time to assure compliance with the
limitations set forth in Section 5.1. Specifically, the Committee shall see that each Employer restrict its contributions for any
Plan Year to an amount which, taking into account the amount of available forfeitures, may be completely allocated to the Participants
consistent with those limitations. Where the limitations would otherwise be exceeded by any Participant, further allocations to
the Participant shall be curtailed to the extent necessary to satisfy the limitations. Where an excessive amount is contributed
on account of a mistake as to one or more Participants’ compensation, or there is an amount of forfeitures which may not
be credited in the Plan Year in which it becomes available, the amount shall be corrected in accordance with Section 5.1-2 of the
Plan.
5.3
Limitations
as to Certain Participants
. Aside from the limitations set forth in Section 5.1, if the Plan acquires any Stock in a transaction
as to which a selling shareholder or the estate of a deceased shareholder is claiming the benefit of Section 1042 of the Code,
the Committee shall see that none of such Stock, and no other assets in lieu of such Stock, are allocated to the Accounts of certain
Participants in this Plan or be allocated directly or indirectly under any plan of the Employer meeting the requirements of Code
Section 401(a) during the non allocation period, in order to comply with Code Section 409(n).
This restriction shall
apply at all times to a Participant who owns (taking into account the attribution rules under Section 318(a) of the Code, without
regard to the exception for employee plan trusts in Section 318(a)(2)(B)(i)) more than 25 percent of (i) any class of outstanding
stock of a corporation and (ii) the total value of any class of outstanding stock of a corporation which
issued the Stock acquired by the Plan,
or another corporation within the same controlled group, as defined in Section 409(l)(4) of the Code (any such class of stock hereafter
called a “Related Class”). For this purpose, a Participant who owns more than 25 percent of Related Class at any time
within the one year preceding the Plan’s purchase of the Stock shall be subject to the restriction as to all allocations
of the Stock, but any other Participant shall be subject to the restriction only as to allocations which occur at a time when he
owns more than 25 percent of any Related Class.
Further, this restriction
shall apply to the selling shareholder claiming the benefit of Section 1042 and any other Participant who is related to such a
shareholder within the meaning of Section 267(b) of the Code, during the period beginning on the date of sale and ending on the
later of (1) the date that is ten years after the date of sale, or (2) the date of the Plan allocation attributable to the final
payment of acquisition indebtedness incurred in connection with the sale.
This restriction shall
not apply to any Participant who is a lineal descendant of a selling shareholder if the aggregate amounts allocated under the Plan
for the benefit of all such descendants do not exceed five percent of the Stock acquired from the shareholder.
5.4
Erroneous
Allocations
. No Participant shall be entitled to any annual additions or other allocations to his Account in excess of
those permitted under Section 5. If it is determined at any time that the administrator and/or Trustee have erred in accepting
and allocating any contributions or forfeitures under this Plan, or in allocating investment adjustments, or in excluding or including
any person as a Participant, then the administrator, in a uniform and nondiscriminatory manner, shall determine the manner in which
such error shall be corrected and shall promptly advise the Trustee in writing of such error and of the method for correcting such
error. The Accounts of any or all Participants may be revised, if necessary, in order to correct such error.
Section 6.
Trust
Fund and Its Investment
6.1
Creation
of Trust Fund
. All amounts received under the Plan from Employers and investments shall be held as the Trust Fund pursuant
to the terms of this Plan and of the Trust Agreement between the Bank and the Trustee. The benefits described in this Plan shall
be payable only from the assets of the Trust Fund, and none of the Bank, any other Employer, its board of directors or trustees,
its stockholders, its officers, its employees, the Committee, and the Trustee shall be liable for payment of any benefit under
this Plan except from the Trust Fund.
6.2
Stock
Fund and Investment Fund
. The Trust Fund held by the Trustee shall be divided into the Stock Fund, consisting entirely
of Stock, and the Investment Fund, consisting of all assets of the Trust other than Stock. The Trustee shall have no investment
responsibility for the Stock Fund, but shall accept any Employer contributions made in the form of Stock, and shall acquire, sell,
exchange, distribute, and otherwise deal with and dispose of Stock in accordance with the instructions of the Committee. The Trustee
shall have full responsibility for the investment of the Investment Fund, except to the extent such responsibility may be delegated
from time to time to one or more investment managers pursuant to Section 2.3 of the Trust
Agreement, or to the
extent the Committee directs the Trustee to purchase Stock with the assets in the Investment Fund.
6.3
Acquisition
of Stock
. From time to time the Committee may, in its sole discretion, direct the Trustee to acquire Stock from the issuing
Employer or from shareholders, including shareholders who are or have been Employees, Participants, or fiduciaries with respect
to the Plan. The Trustee shall pay for such Stock no more than its fair market value, which shall be determined conclusively by
the Committee pursuant to Section 12.4. The Committee may direct the Trustee to finance the acquisition of Stock by incurring or
assuming indebtedness to the seller or another party which indebtedness shall be called a “Stock Obligation”. The term
“Stock Obligation” shall refer to a loan made to the Plan by a disqualified person within the meaning of Section 4975(e)(2)
of the Code, or a loan to the Plan which is guaranteed by a disqualified person. A Stock Obligation includes a direct loan of cash,
a purchase-money transaction, and an assumption of an obligation of a tax-qualified employee stock ownership plan under Section
4975(e)(7) of the Code (“ESOP”). For these purposes, the term “guarantee” shall include an unsecured guarantee
and the use of assets of a disqualified person as collateral for a loan, even though the use of assets may not be a guarantee under
applicable state law. An amendment of a Stock Obligation in order to qualify as an “exempt loan” is not a refinancing
of the Stock Obligation or the making of another Stock Obligation. The term “exempt loan” refers to a loan that satisfies
the provisions of this paragraph. A “non-exempt loan” fails to satisfy this paragraph. “Stock Obligation”
shall be synonymous with “exempt loan.” All Stock Obligations incurred by the Plan must be for the primary benefit
of Plan Participants and Beneficiaries. Any Stock Obligation shall be subject to the following conditions and limitations:
6.3-1 A
Stock Obligation shall be for a specific term, shall not be payable on demand except in the event of default, and shall bear a
reasonable rate of interest, such that the interest rate and the price of the securities to be acquired with the Stock Obligation
will not cause the Plan’s assets to be inappropriately impaired in violation of Treasury Regulation Section 54.4975-7(b)(3).6.3-2 A
Stock Obligation may, but need not, be secured by a collateral pledge of either the Stock acquired in exchange for the Stock Obligation,
or the Stock previously pledged in connection with a prior Stock Obligation which is being repaid with the proceeds of the current
Stock Obligation. No other assets of the Plan and Trust may be used as collateral for a Stock Obligation, and no creditor under
a Stock Obligation shall have any right or recourse to any Plan and Trust assets other than Stock remaining subject to a collateral
pledge.
6.3-3 Any
pledge of Stock to secure a Stock Obligation must provide for the release of pledged Stock in connection with payments on the Stock
obligations in the ratio prescribed in Section 4.2.
6.3-4 Repayments
of principal and interest on any Stock Obligation during any Plan Year must not exceed an amount equal to the sum of contributions
and earnings received during or prior to such Plan Year, less such payments in prior Plan Years and from cash dividends received
on Stock, in the last case, however, subject to the further requirements of Section 7.2. All contributions and earnings shall be
separately accounted for in the Plan’s records until the Stock Obligation is repaid.
6.3-5 In
the event of default of a Stock Obligation, the value of Plan assets transferred in satisfaction of the Stock Obligation must not
exceed the amount of the default. If the lender is a disqualified person within the meaning of Section 4975 of the Code, a Stock
Obligation must provide for a transfer of Plan assets upon default only upon and to the extent of the failure of the Plan to meet
the payment schedule of said Stock Obligation. For purposes of this paragraph, the making of a guarantee does not make a person
a lender.
6.4
Participants’
Option to Diversify
. The Committee shall provide for a procedure under which each Participant may, during the qualified
election period, elect to “diversify” a portion of the Employer Stock allocated to his Account, as provided in Section
401(a)(28)(B) of the Code. An election to diversify must be made on the prescribed form and filed with the Committee within the
period specified herein. For each of the first five (5) Plan years in the qualified election period, the Participant may elect
to diversify an amount which does not exceed 25% of the number of shares allocated to his Account since the inception of the Plan,
less all shares with respect to which an election under this Section has already been made. For the last year of the qualified
election period, the Participant may elect to have up to 50 percent of the value of his Account committed to other investments,
less all shares with respect to which an election under this Section has already been made. The term “qualified election
period” shall mean the six (6) Plan Year period beginning with the first Plan Year in which a Participant has both attained
age 55 and completed 10 years of participation in the Plan. A Participant’s election to diversify his Account may be made
within each year of the qualified election period and shall continue for the 90-day period immediately following the last day of
each year in the qualified election period. Once a Participant makes such election, the Plan must complete diversification in accordance
with such election within 90 days after the end of the period during which the election could be made for the Plan Year. In the
discretion of the Committee, the Plan may satisfy the diversification requirement by any of the following methods:
6.4-1 The
Plan may distribute all or part of the amount subject to the diversification election.
6.4-2 The
Plan may offer the Participant at least three other distinct investment options, if available under the Plan. The other investment
options shall satisfy the requirements of Regulations under Section 404(c) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”).
6.4-3 The
Plan may transfer the portion of the Participant’s Account subject to the diversification election to another qualified defined
contribution plan of the Employer that offers at least three investment options satisfying the requirements of the Regulations
under Section 404(c) of ERISA.
Section 7.
Voting
Rights and Dividends on Stock
.
7.1
Voting
and Tendering of Stock
. The Trustee generally shall vote all shares of Stock held under the Plan in accordance with the
written instructions of the Committee. However, if any Employer has registration-type class of securities within the meaning
of Section
409(e)(4) of the Code,
or if a matter submitted to the holders of the Stock involves a merger, consolidation, recapitalization, reclassification, liquidation,
dissolution, or sale of substantially all assets of an entity, then (i) the shares of Stock which have been allocated to Participants’
Accounts shall be voted by the Trustee in accordance with the Participants’ written instructions, and (ii) the Trustee shall
vote any unallocated Stock and allocated Stock for which it has received no voting instructions in the same proportions as it votes
the allocated Stock for which it has received instructions from Participants. In the event no shares of Stock have been allocated
to Participants’ Accounts at the time Stock is to be voted and any exempt loan which may be outstanding is not in default,
each Participant shall be deemed to have one share of Stock allocated to his or her Account for the sole purpose of providing the
Trustee with voting instructions.
Notwithstanding any
provision hereunder to the contrary, all unallocated shares of Stock must be voted by the Trustee in a manner determined by the
Trustee to be for the exclusive benefit of the Participants and Beneficiaries. Whenever such voting rights are to be exercised,
the Employers shall provide the Trustee, in a timely manner, with the same notices and other materials as are provided to other
holders of the Stock, which the Trustee shall distribute to the Participants. The Participants shall be provided with adequate
opportunity to deliver their instructions to the Trustee regarding the voting of Stock allocated to their Accounts. The instructions
of the Participants’ with respect to the voting of allocated shares hereunder shall be confidential.
7.1-1 In
the event of a tender offer, Stock shall be tendered by the Trustee in the same manner as set forth above with respect to the voting
of Stock. Notwithstanding any provision hereunder to the contrary, Stock must be tendered by the Trustee in a manner determined
by the Trustee to be for the exclusive benefit of the Participants and Beneficiaries.
7.2
Dividends
on Stock
. Dividends on Stock which are received by the Trustee in the form of additional Stock shall be retained in the
Stock Fund, and shall be allocated among the Participant’s Accounts and the Unallocated Stock Fund in accordance with their
holdings of the Stock on which the dividends have been paid. Dividends on Stock credited to Participants’ Accounts which
are received by the Trustee in the form of cash shall, at the direction of the Employer paying the dividends, either (i) be credited
to the Accounts in accordance with Section 8.3 and invested as part of the Investment Fund, (ii) be distributed immediately to
the Participants in proportion with the Participants’ Stock Fund Account balance (iii) be distributed to the Participants
within 90 days of the close of the Plan Year in which paid in proportion with the Participants’ Stock Fund Account balance;
(iv) be used to make payments on the Stock Obligation, or (v) at the election of the Participant or his Beneficiary, be (1) payable
as provided clause (ii) or (iii) above, or (2) paid to the Plan and reinvested in the Stock Fund pursuant to Section 6.2 hereof.
If dividends on Stock allocated to a Participant’s Account are used to repay the Stock Obligation, Stock with a fair market
value equal to the dividends so used must be allocated to such Participant’s Account in lieu of the dividends. Dividends
on Stock held in the Unallocated Stock Fund which are received by the Trustee in the form of cash shall be allocated to Participants’
Investment Fund Accounts (pro rata based on the Participant’s Account balance in relation to all Participants’ Account
balances) and shall be applied as soon as practicable to
payments of principal
and interest under the Stock Obligation incurred with the purchase of the Stock.
Section 8.
Adjustments
to Accounts
.
8.1
Adjustments
for Transactions
. An Employer contribution pursuant to Section 4.1 shall be credited to the Participants’ Accounts
as of the last day of the Plan Year for which it is contributed, in accordance with Section 4.1. Stock released from the Unallocated
Stock Fund upon the Trust’s repayment of a Stock Obligation pursuant to Section 4.2 shall be credited to the Participants’
Accounts as of the last day of the Plan Year in which the repayment occurred, pro rata based on the cash applied from such Participant’s
account relative to the cash applied from all Participants’ Accounts. Any benefit which is paid to a Participant or Beneficiary
pursuant to Section 10 shall be charged to the Participant’s Account as of the first day of the Valuation Period in which
it is paid. Any forfeiture or restoral shall be charged or credited to the Participant’s Account as of the first day of the
Valuation Period in which the forfeiture or restoral occurs pursuant to Section 9.6.
8.2
Valuation
of Investment Fund
. As of each Valuation Date, the Trustee shall prepare a balance sheet of the Investment Fund, recording
each asset (including any contribution receivable from an Employer) and liability at its fair market value. Any liability with
respect to short positions or options and any item of accrued income or expense and unrealized appreciation or depreciation shall
be included; provided, however, that such an item may be estimated or excluded if it is not readily ascertainable unless estimating
or excluding it would result in a material distortion. The Committee shall then determine the net gain or loss of the Investment
Fund since the preceding Valuation Date, which shall mean the entire income of the Investment Fund, including realized and unrealized
capital gains and losses, net of any expenses to be charged to the general Investment Fund and excluding any contributions by the
Employer. The determination of gain or loss shall be consistent with the balance sheets of the Investment Fund for the current
and preceding Valuation Dates.
8.3
Adjustments
for Investment Experience
. Any net gain or loss of the Investment Fund during a Valuation Period, as determined pursuant
to Section 8.2, shall be allocated as of the last day of the Valuation Period among the Participants’ Accounts in proportion
to the opening balance in each Account, as adjusted for benefit payments and forfeitures during the Valuation Period, without regard
to whatever Stock may be credited to an Account. Any cash dividends received on Stock credited to Participant’s Accounts
shall be allocated as of the last day of the Valuation Period among the Participants’ Accounts based on the opening balance
in each Participant’s Stock Fund Account.
Section 9.
Vesting
of Participants’ Interests
.
9.1
Deferred
Vesting in Accounts
. A Participant’s vested interest in his Account shall be based on his Vesting Years in accordance
with the following table, subject to the balance of this Section 9:
|
Vesting
Years
|
|
Percentage
of
Interest
Vested
|
|
|
|
|
|
|
|
Fewer than 2
|
|
|
0
|
%
|
|
2
|
|
|
20
|
%
|
|
3
|
|
|
40
|
%
|
|
4
|
|
|
60
|
%
|
|
5
|
|
|
80
|
%
|
|
6 or more
|
|
|
100
|
%
|
Notwithstanding the
foregoing, to the extent that the Plan incurred a Stock Obligation for the purpose of acquiring “employer securities”
(as defined in Code Section 4975(e)(8)) prior to September 26, 2005, the vesting schedule described below shall apply to Plan Years
beginning before the earlier of the date on which such loan (a) was fully repaid; or (b) was, as of September 26, 2005, scheduled
to be fully repaid and further applies to the Account of any Participant who does not have one Hour of Service under the Plan in
or after the first Plan Year following the Plan Year in which such repayment was made.
|
Vesting
Years
|
|
Percentage
of
Interest
Vested
|
|
|
|
|
|
|
|
Fewer than 3
|
|
|
0
|
%
|
|
3
|
|
|
20
|
%
|
|
4
|
|
|
40
|
%
|
|
5
|
|
|
60
|
%
|
|
6
|
|
|
80
|
%
|
|
7 or more
|
|
|
100
|
%
|
9.2
Computation
of Vesting Years
. For purposes of this Plan, a “Vesting Year” means generally a Plan Year in which an Employee
has at least 1,000 Hours of Service, beginning with the first Plan Year in which the Employee has completed an Hour of Service
with the Employer, and including Service with other Employers as provided in the definition of “Service.” However,
a Participant’s Vesting Years shall be computed subject to the following conditions and qualifications:
9.2-1 A
Participant’s Vesting Years shall not include any Service prior to the date on which an Employee attains age 18.
9.2-2 A
Participant’s vested interest in his Account accumulated before five (5) consecutive Breaks in Service shall be determined
without regard to any Service after such five consecutive Breaks in Service. Further, if a Participant has five (5) consecutive
Breaks in Service before his interest in his Account has become vested to some extent, pre-Break years of Service shall not be
required to be taken into account for purposes of determining his post-Break vested percentage.
9.2-3 In
the case of a Participant who has 5 or more consecutive 1-year Breaks in Service, the Participant’s pre-Break Service will
count in vesting of the Employer-derived post-break accrued benefit only if either:
(i) such
Participant has any nonforfeitable interest in the accrued benefit attributable to Employer contributions at the time of separation
from Service, or
(ii) upon
returning to Service the number of consecutive 1-year Breaks in Service is less than the number of years of Service.
9.2-4 Unless
otherwise specifically excluded, a Participant’s Vesting Years shall include any period of active military duty to the extent
required by the Military Selective Service Act of 1967 (38 U.S.C. Section 2021). Notwithstanding any provision of the Plan to the
contrary, calculation of service for determining Vesting Years with respect to qualified military service will be provided in accordance
with Section 414(u) of the Code.
9.2-5 If any amendment changes
the vesting schedule, including an automatic change to or from a top-heavy vesting schedule, any Participant with three (3) or
more Vesting Years may, by filing a written request with the Employer, elect to have his vested percentage computed under the vesting
schedule in effect prior to the amendment. The election period must begin not later than the later of sixty (60) days after the
amendment is adopted, the amendment becomes effective, or the Participant is issued written notice of the amendment by the Employer
or the Committee.
9.3
Full
Vesting Upon Certain Events
.
9.3-1 Notwithstanding
Section 9.1, a Participant’s interest in his Account shall fully vest on the Participant’s Normal Retirement Date.
The Participant’s interest shall also fully vest in the event that his Service is terminated by Early Retirement, Disability
or by death. Effective January 1, 2007, for purposes of this Section 9.3-1, benefits payable in the event of a Participant’s
death or Disability while performing qualified military service shall be determined in accordance with Section 414(u)(9) of the
Code.
9.3-2 The
Participant’s interest in his Account shall also fully vest in the event of a “Change in Control” of the Bank,
or the Company. For these purposes, a “Change in Control” shall be defined as a change in control of the Bank or the
Company of a nature that: (i) would be required to be reported in response to Item 5.01 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 Bank or the Company within the meaning of the Home Owners’ Loan Act, as amended,
and applicable rules and regulations promulgated thereunder (collectively, the “HOLA”) as in effect at the time of
the Change in Control; 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 25% or more of the combined voting power of Company’s outstanding securities,
except for any securities purchased by the Bank’s employee stock ownership plan or trust; 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 Bank or Company or similar transaction in which the Bank or Company is not the surviving
institution occurs or is effected; or (d) a proxy statement soliciting proxies from stockholders of the Company, by someone
other than the current management of the Company is distributed, 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 exchanged for or converted into cash or property or securities not issued
by the Bank; or (e) a tender offer is made for 25% or more of the voting securities of the Company and the shareholders owning
beneficially or of record 25% or more of the outstanding securities of the Company have tendered or offered to sell their shares
pursuant to such tender offer and such tendered shares have been accepted by the tender offeror. Notwithstanding anything in this
subsection to the contrary, a Change in Control shall not be deemed to have occurred upon the conversion of the Company’s
mutual holding company parent to stock form, or in connection with any reorganization used to effect such a conversion.
9.4
Full
Vesting Upon Plan Termination
. Notwithstanding Section 9.1, a Participant’s interest in his Account shall fully vest
upon termination of this Plan or upon the permanent and complete discontinuance of contributions by his Employer. In the event
of a partial termination, the interest of each affected Participant shall fully vest with respect to that part of the Plan which
is terminated. For purposes of determining whether there has been a partial termination of the Plan under Code Section 411(d)(3),
such determination will be made consistent with Code Section 411(d)(3) and the regulations promulgated thereunder, and by applying
the principles set forth in Revenue Ruling 2007-43 and any subsequent authority issued by the Internal Revenue Service or Treasury
Department.
9.5
Forfeiture,
Repayment, and Restoral
. If a Participant’s Service terminates before his interest in his Account is fully vested,
that portion which has not vested shall be forfeited if he either (i) receives a distribution of his entire vested interest pursuant
to Section 10.1, or (ii) incurs five (5) consecutive one year Break in Service. If a Participant’s Service terminates prior
to having any portion of his Account become vested, such Participant shall be deemed to have received a distribution of his vested
interest as of the Valuation Date next following his termination of Service.
If a Participant who
has received his entire vested interest returns to Service before he has five (5) consecutive Breaks in Service, he may repay to
the Trustee an amount equal to the distribution. The Participant may repay such amount at any time within five years after he has
returned to Service. The amount shall be credited to his Account at the time it is repaid; an additional amount equal to that portion
of his Account which was previously forfeited shall be restored to his Account at the same time from other Employees’ forfeitures
and, if such forfeitures are insufficient, from a special contribution by his Employer for that year. A Participant who was deemed
to have received a distribution of his vested interest in the Plan shall have his Account restored as of the first day on which
he performs an Hour of Service after his return.
9.6
Accounting
for Forfeitures
. If a portion of a Participant’s Account is forfeited, Stock allocated to said Participant’s
Account shall be forfeited only after other assets are forfeited. If interests in more than one class of Stock have been allocated
to a Participant’s Account, the Participant must be treated as forfeiting the same proportion of each class of Stock. A forfeiture
shall be charged to the Participant’s Account as of the first day of the first Valuation Period in which the forfeiture becomes
certain pursuant to Section 9.5. Except as otherwise provided in that Section, a forfeiture shall be added to the contributions
of the terminated Participant’s Employer which are to be credited to other Participants pursuant to Section 4.1 as of the
last day of the Plan Year in which the forfeiture becomes certain.
9.7
Vesting
and Nonforfeitability
. A Participant’s interest in his Account which has become vested shall be nonforfeitable for
any reason.
Section 10.
Payment
of Benefits
.
10.1
Benefits
for Participants
. For a Participant whose Service ends for any reason, distribution will be made to or for the benefit
of the Participant or, in the case of the Participant’s death, his Beneficiary, by either, or a combination of the following
methods:
10.1-1 By
payment in a lump sum, in accordance with Section 10.2; or
10.1-2 By
payment in a series of substantially equal annual installments over a period not to exceed five (5) years, provided the maximum
period over which the distribution of a Participant’s Account may be made shall be extended by 1 year, up to five (5) additional
years, for each $205,000 (or fraction thereof) by which such Participant’s Account balance exceeds $1,035,000 (the aforementioned
figures are subject to cost-of-living adjustments prescribed by the Secretary of the Treasury pursuant to Section 409(o)(2) of
the Code).
The Participant shall
elect the manner in which his vested Account balance will be distributed to him. If a Participant so desires, he may direct how
his benefits are to be paid to his Beneficiary. If a deceased Participant did not file a direction with the Committee, the Participant’s
benefits shall be distributed to his Beneficiary in a lump sum. Notwithstanding any provision to the contrary, if the value of
a Participant’s vested Account balance at the time of any distribution, does not equal or exceed $5,000, then such Participant’s
vested Account shall be
distributed in a lump
sum within 60 days after the end of the Plan Year in which employment terminates. If the value of a Participant’s vested
Account balance is, or has ever been, in excess of $5,000, then his benefits shall not be paid prior to the later of the time he
has attained Normal Retirement or age 62 unless he elects an early payment date in a written election filed with the Committee.
A Participant may modify such an election at any time, provided any new benefit payment date is at least 30 days after a modified
election is delivered to the Committee. Failure of a Participant to consent to a distribution prior to the later of Normal Retirement
or age 62 shall be deemed to be an election to defer commencement of payment of any benefit under this section.
Notwithstanding the
foregoing, effective as of March 28, 2005, if a Participant’s vested Account balance does not exceed $1,000 and the Participant
fails to return his distribution election form, the Plan Administrator shall distribute the vested portion of his Account balance
to the Participant in a lump sum, in cash or stock or a combination of cash and stock, in the sole discretion of the Plan Administrator,
as soon as practicable but in no event later than 60 days after the end of the Plan Year in which employment terminates. If the
terminated Participant’s vested Account balance exceeds $1,000 but is not greater than $5,000, and the Participant fails
to consent to the distribution, then the Plan Administrator shall liquidate the Participant’s Stock Fund Account and pay
the Participant’s vested Account balance, in cash, in a direct rollover to an individual retirement plan designated by the
Plan Administrator in accordance with Code Section 401(a)(31)(B) and the regulations promulgated thereunder.
The Administrator shall
provide Participants or other distributees of mandatory distributions under Section 10.1 with a written notice designed to comply
with the requirements of Section 411(a)(11) of the Code. Such notice shall be provided within a reasonable time before such mandatory
distribution, and such notice may be provided up to 180 days before the first day of the first period for which an amount is payable.
10.2
Time
for Distribution
.
10.2-1 If
the Participant and, if applicable, with the consent of the Participant’s spouse, elects the distribution of the Participant’s
Account balance in the Plan, distribution shall commence as soon as practicable following his termination of Service, but no later
than one year after the close of the Plan Year:
(i) in
which the Participant separates from service by reason of attainment of Normal Retirement Age under the Plan, Disability, or death;
or
(ii) which
is the fifth Plan Year following the year in which the Participant resigns or is dismissed, unless he is reemployed before such
date.
10.2-2 Unless
the Participant elects otherwise, the distribution of the balance of a Participant’s Account shall commence not later than
the 60th day after the latest of the close of the Plan Year in which -
(i) the
Participant attains the age of 65;
(ii) occurs
the tenth anniversary of the year in which the Participant commenced participation in the Plan; or
(iii) the
Participant terminates his Service with the Employer.
10.2-3 Notwithstanding
anything to the contrary, (1) with respect to a 5-percent owner (as defined in Code Section 416), distribution of a Participant’s
Account shall commence (whether or not he remains in the employ of the Employer) not later than the April 1 of the calendar year
next following the calendar year in which the Participant attains age 70- ½, and (2) with respect to all other Participants,
payment of a Participant’s benefit will commence not later than April 1 of the calendar year following the calendar year
in which the Participant attains age 70-1/2, or, if later, the year in which the Participant retires. A Participant’s benefit
from that portion of his Account committed to the Investment Fund shall be calculated on the basis of the most recent Valuation
Date before the date of payment. All distributions under this Plan shall be determined and made in accordance with final and temporary
regulations Sections 1.401(a)(9)-1 through 1.401(a)(9)-9, as promulgated under Code Section 401(a)(9), including the minimum distribution
incidental benefit requirements of Code Section 401(a)(9)(G) and Section 1.401(a)(9)-2 of the regulations. These provisions override
any distribution options in the Plan inconsistent with Code Section 401(a)(9).
10.2-4 Distribution
of a Participant’s Account balance after his death shall comply with the following requirements:
(i) If
a Participant dies before his distributions have commenced, distribution of his Account to his Beneficiary shall commence not later
than one year after the end of the Plan Year in which the Participant died, however, if the Participant’s Beneficiary is
his surviving Spouse, distributions may commence on the date on which the Participant would have attained age 70-1/2. In either
case, distributions shall be completed within five years after they commence.
(ii) If
the Participant dies after distribution has commenced pursuant to Section 10.1-2 but before his entire interest in the Plan has
been distributed to him, then the remaining portion of that interest shall, in accordance with Section 401(a)(9) of the Code, be
distributed at least as rapidly as under the method of distribution being used under Section 10.1-2 at the date of his death.
(iii) If
a married Participant dies before his benefit payments begin, then unless he has specifically elected otherwise the Committee shall
cause the balance in his Account to be paid to his Spouse. No election by a married Participant of a different Beneficiary shall
be valid unless the election is accompanied by the Spouse’s written consent, which (i) must acknowledge the effect of the
election, (ii) must explicitly provide either that the designated Beneficiary may not subsequently be changed by the Participant
without the Spouse’s further consent, or that it may be changed without such consent, and (iii) must be witnessed by the
Committee, its representative, or a notary
public. (This
requirement shall not apply if the Participant establishes to the Committee’s satisfaction that the Spouse may not be located.)
10.2-5 Minimum
Distribution Requirements for Plan Years Beginning On or After January 1, 2003.
(i) General
Rules.
(A) Effective
Date. The provisions of this Section 10.2-5 will apply for purposes of determining required minimum distributions for calendar
years beginning with the 2003 calendar year.
(B) TEFRA
Section 242(b)(2) Elections. Notwithstanding the other provisions of this Section 10, 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.
(ii) Time
and Manner of Distribution.
(A) Required
Beginning Date. The Participant’s entire 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 interest
will be distributed, or begin to be distributed, no later than as follows:
(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 70½, 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 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 10.2-5(ii)(B), other
than Section 10.2.5(ii)(B)(I),
will apply if the surviving spouse were the Participant.
For purposes
of this Section 10.2-5(ii)(B) and Section 10.2-5(iv), unless Section 10.2-5(ii)(IV) applies, distributions are considered to begin
on the Participant’s Required Beginning Date. If Section 10.2-5(ii)(IV) applies, distributions are considered to begin on
the date distributions are required to begin to the surviving spouse under Section 10.2-5(ii)(B)(I).
(C) Forms
of Distribution. Unless the Participant’s interest is distributed in a lump sum on or before the Required Beginning Date,
as of the first distribution calendar year distributions will be made in accordance with Sections 10.2-5(iii) and Section 10.2-5(iv).
(iii) 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:
(I) the
quotient obtained by dividing the Participant’s 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 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 ages as of the Participant’s
and spouse’s birthdays in the Distribution Calendar Year.
(B) Lifetime
Required Minimum Distributions Continue through Year of Participant’s Death. Required minimum distributions will be determined
under this Section 10.2-5 beginning with the first Distribution Calendar Year and up to and including the Distribution Calendar
Year that includes the Participant’s date of death.
(iv) 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 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:
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.
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
birthday in the calendar year of the spouse’s death, reduced by one for each subsequent calendar year.
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
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 Account Balance by the remaining Life Expectancy of the Participant’s
Designated Beneficiary, determined as provided in Section 10.2-5(iv)(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 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 Section 10.2-5(ii)(B)(I), this Section 10.2-5(iv)(B)
will apply as if the surviving spouse were the Participant.
(iv) Definitions.
(A) “Designated
Beneficiary.” The individual who is designated as the Beneficiary under the Plan and is the Designated Beneficiary under
Section 401(a)(9) of the Code and Section 1.401(1)(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 10.2.5(ii)(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
Account Balance.” The Account balance 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 Account balance 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 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 Required Beginning Date shall be, with respect to a 5-percent owner (as defined in Code Section 416),
not later than April 1 of the calendar year next following the calendar year in which the Participant attains age 70½, and
(2) with respect to all other Participants, the Required Beginning Date shall be not later than April 1 of the calendar year following
the calendar year in which the Participant attains age 70½, or, if later, the year in which the Participant retires.
10.3
Marital
Status
. The Committee shall from time to time take whatever steps it deems appropriate to keep informed of each Participant’s
marital status. Each Employer shall provide the Committee with the most reliable information in the Employer’s possession
regarding its Participants’ marital status, and the Committee may, in its discretion, require a notarized affidavit from
any Participant as to his marital status. The Committee, the Plan, the Trustee, and the Employers shall be fully protected and
discharged from any liability to the extent of any benefit payments made as a result of the Committee’s good faith and reasonable
reliance upon information obtained from a Participant and his Employer as to his marital status.
10.4
Delay
in Benefit Determination
. If the Committee is unable to determine the benefits payable to a Participant or Beneficiary
on or before the latest date prescribed for payment pursuant to Section 10.1 or 10.2, the benefits shall in any event be paid within
60 days after they can first be determined, with whatever makeup payments may be appropriate in view of the delay.
10.5
Accounting
for Benefit Payments
. Any benefit payment shall be charged to the Participant’s Account as of the first day of the
Valuation Period in which the payment is made.
10.6
Options
to Receive and Sell Stock
. Unless ownership of virtually all Stock is restricted to active Employees and qualified retirement
plans for the benefit of Employees pursuant to the certificates of incorporation or by-laws of the Employers issuing Stock, a terminated
Participant or the Beneficiary of a deceased Participant may instruct the Committee to distribute the Participant’s entire
vested interest in his Account in the form of Stock or cash, or in a combination of Stock and cash. In the event the Participant
elects to receive his distribution in the form of Stock, the Committee shall apply the Participant’s vested interest in the
Investment Fund to purchase sufficient Stock from the Stock Fund or from any owner of Stock to make the required distribution.
If a Participant makes no election as to the form of distribution, the Participant’s vested interest in the Stock Fund shall
be distributed in shares of Stock, and his vested interest in the Investment Fund shall be distributed in cash.
Any Participant who
receives Stock pursuant to Section 10.1, and any person who has received Stock from the Plan or from such a Participant by reason
of the Participant’s death or incompetency, by reason of divorce or separation from the Participant, or by reason of a rollover
contribution described in Section 402(a)(5) of the Code, shall have the right to require the Employer which issued the Stock to
purchase the Stock for its current fair market value
(hereinafter referred
to as the “put right”). The put right shall be exercisable by written notice to the Committee during the first 60 days
after the Stock is distributed by the Plan, and, if not exercised in that period, during the first 60 days in the following Plan
Year after the Committee has communicated to the Participant its determination as to the Stock’s current fair market value.
However, the put right shall not apply to the extent that the Stock, at the time the put right would otherwise be exercisable,
may be sold on an established market in accordance with federal and state securities laws and regulations. Similarly, the put option
shall not apply with respect to the portion of a Participant’s Account which the Employee elected to have reinvested under
Code Section 401(a)(28)(B). If the put right is exercised, the Trustee may, if so directed by the Committee in its sole discretion,
assume the Employer’s rights and obligations with respect to purchasing the Stock. Notwithstanding anything herein to the
contrary, in the case of a plan established by a Bank (as defined in Code Section 581), the put option shall not apply if prohibited
by a federal or state law and Participants are entitled to elect their benefits be distributed in cash.
If a Participant elects
to receive his distribution in the form of a lump sum pursuant to Section 10.1-1 of the Plan, the Employer or the Trustee, as the
case may be, may elect to pay for the Stock in equal periodic installments, not less frequently than annually, over a period not
longer than five years from the day after the put right is exercised, with adequate security and interest at a reasonable rate
on the unpaid balance, all such terms to be set forth in a promissory note delivered to the seller with normal terms as to acceleration
upon any uncured default.
If a Participant elects
to receive his distribution in the form of an installment payment pursuant to Section 10.1-2 of the Plan, the Employer or the Trustee,
as the case may be, shall pay for the Stock distributed in the installment distribution over a period which shall not exceed 30
days after the exercise of the put right.
Nothing contained herein
shall be deemed to obligate any Employer to register any Stock under any federal or state securities law or to create or maintain
a public market to facilitate the transfer or disposition of any Stock. The put right described herein may only be exercised by
a person described in the second preceding paragraph, and may not be transferred with any Stock to any other person. As to all
Stock purchased by the Plan in exchange for any Stock Obligation, the put right shall be nonterminable. The put right for Stock
acquired through a Stock Obligation shall continue with respect to such Stock after the Stock Obligation is repaid or the Plan
ceases to be an employee stock ownership plan. Notwithstanding anything in the Plan to the contrary, if securities acquired with
the proceeds of an exempt loan available for distribution consist of more than one class, a distributee must receive substantially
the same proportion of each such class, in accordance with Treasury Regulations Section 54.4975-11(f)(2).
10.7
Restrictions
on Disposition of Stock
. Except in the case of Stock which is readily tradable on an established securities market, a Participant
who receives Stock pursuant to Section 10.1, and any person who has received Stock from the Plan or from such a Participant by
reason of the Participant’s death or incompetency, by reason of divorce or separation from the Participant, or by reason
of a rollover contribution described in Section 402(a)(5) of the Code, shall, prior to any sale or other transfer of the Stock
to any other person, first offer the Stock to the issuing Employer and to the Plan at the greater of (i) its current fair market
value, or (ii) the
purchase price offered
in good faith by an independent third party purchaser. This restriction shall apply to any transfer, whether voluntary, involuntary,
or by operation of law, and whether for consideration or gratuitous. Either the Employer or the Trustee may accept the offer within
14 days after it is delivered. Any Stock distributed by the Plan shall bear a conspicuous legend describing the right of first
refusal under this Section 10.7, as well as any other restrictions upon the transfer of the Stock imposed by federal and state
securities laws and regulations.
10.8
Continuing
Loan Provisions; Creations of Protections and Rights
. Except as otherwise provided in Sections 10.6 and 10.7 and this Section,
no shares of Employer Stock held or distributed by the Trustee may be subject to a put, call or other option, or buy-sell arrangement.
The provisions of this Section shall continue to by applicable to such Stock even if the Plan ceases to be an employee stock ownership
plan under Section 4975(e)(7) of the Code.
10.9
Direct
Rollover of Eligible Distribution
. A Participant or distributee may elect, at the time and in the manner prescribed by
the Trustee or the Committee, to have any portion of an eligible rollover distribution paid directly to an eligible retirement
plan specified by the Participant or distributee in a direct rollover.
10.9-1 An
“eligible rollover” is any distribution that does not include: (i) 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 Participant and the Participant’s Beneficiary, or for a specified period of ten
years or more; (ii) any distribution to the extent such distribution is required under Code Section 401(a)(9); (iii) the portion
of any distribution that is not included in gross income (determined without regard to the exclusion for net unrealized appreciation
with respect to employer securities); or (iv) a hardship distribution described in Section 401(k)(2)(B)(i)(IV) of the Code. A portion
of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee
contributions which are not includible in gross income. However, such portion may be transferred only to an individual retirement
account or annuity described in Sections 408(a) or (b) of the Code, or to a qualified defined contribution plan described in Sections
401(a) or 403(a) of the Code that agrees to separately accounting for the portion of such distribution which is includible in gross
income and the portion of such distribution which is no so includible.
10.9-2 An
“eligible retirement plan” is an individual retirement account described in Code Section 401(a), an individual retirement
annuity described in Code Section 408(b), an annuity plan described in Code Section 403(a), or a qualified trust described in Code
Section 401(a), that accepts the distributee’s eligible rollover distribution. An eligible retirement plan shall also include
an annuity contract described in Section 403(b) of the Code and an eligible plan under Section 457(b) of the Code which is maintained
by a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account
for amounts transferred into such plan from this Plan. Effective January 1, 2008, an eligible retirement plan shall include a Roth
IRA described in Code Section 408A and a deemed individual retirement account pursuant to Section 408(q) of the Code.
10.9-3 A
“direct rollover” is a payment by the Plan to the eligible retirement plan specified by the distributee.
10.9-4 The
term “distributee” shall refer to a deceased Participant’s Spouse or a Participant’s former Spouse who
is the alternate payee under a qualified domestic relations order, as defined in Code Section 414(p). Effective January 1, 2007,
the term “distributee” shall also include a Participant’s non-spousal Beneficiary.
10.9-5 The
Administrator shall provide Participants or other distributees of eligible rollover distributions with a written notice designed
to comply with the requirements of Section 402(f) of the Code. Such notice shall be provided within a reasonable time before making
an eligible rollover distribution. Effective January 1, 2007, such notice may be provided up to 180 days before the first day of
the first period for which an amount is payable.
10.10
Waiver
of 30 Day Period After Notice of Distribution
. If a distribution is one to which Sections 401(a)(11) and 417 of the Code
do not apply, such distribution may commence less than 30 days after the notice required under Section 1.411(a)-11(c) of the Income
Tax Regulations is given, provided that:
(i) the
Trustee or Administrative Committee, as applicable, clearly informs the Participant that the Participant has a right to a period
of at least 30 days after receiving the notice to consider the decision of whether or not to elect a distribution (and, if applicable,
a particular option), and
(ii) the
Participant, after receiving the notice, affirmatively elects a distribution.
Section 11.
Rules
Governing Benefit Claims and Review of Appeals
.
11.1
Claim
for Benefits
. Any Participant or Beneficiary who qualifies for the payment of benefits shall file a claim for his benefits
with the Committee on a form provided by the Committee. The claim, including any election of an alternative benefit form, shall
be filed at least 30 days before the date on which the benefits are to begin. If a Participant or Beneficiary fails to file a claim
by the day before the date on which benefits become payable, he shall be presumed to have filed a claim for payment for the Participant’s
benefits in the standard form prescribed by Sections 10.1 or 10.2.
11.2
Notification
by Committee
. Within 90 days after receiving a claim for benefits (or within 180 days, if special circumstances require
an extension of time and written notice of the extension is given to the Participant or Beneficiary within 90 days after receiving
the claim for benefits), the Committee shall notify the Participant or Beneficiary whether the claim has been approved or denied.
If the Committee denies a claim in any respect, the Committee shall set forth in a written notice to the Participant or Beneficiary:
(i) each
specific reason for the denial;
(ii) specific
references to the pertinent Plan provisions on which the denial is based;
(iii) a
description of any additional material or information which could be submitted by the Participant or Beneficiary to support his
claim, with an explanation of the relevance of such information; and
(iv) an
explanation of the claims review procedures set forth in Section 11.3.
11.3
Claims
Review Procedure
. Within 60 days after a Participant or Beneficiary receives notice from the Committee that his claim for
benefits has been denied in any respect, he may file with the Committee a written notice of appeal setting forth his reasons for
disputing the Committee’s determination. In connection with his appeal the Participant or Beneficiary or his representative
may inspect or purchase copies of pertinent documents and records to the extent not inconsistent with other Participants’
and Beneficiaries’ rights of privacy. Within 60 days after receiving a notice of appeal from a prior determination (or within
120 days, if special circumstances require an extension of time and written notice of the extension is given to the Participant
or Beneficiary and his representative within 60 days after receiving the notice of appeal), the Committee shall furnish to the
Participant or Beneficiary and his representative, if any, a written statement of the Committee’s final decision with respect
to his claim, including the reasons for such decision and the particular Plan provisions upon which it is based.
Section 12.
The
Committee and Its Functions
.
12.1
Authority
of Committee
. The Committee shall be the “plan administrator” within the meaning of ERISA and shall have exclusive
responsibility and authority to control and manage the operation and administration of the Plan, including the interpretation and
application of its provisions, except to the extent such responsibility and authority are otherwise specifically (i) allocated
to the Bank, the Employers, or the Trustee under the Plan and Trust Agreement, (ii) delegated in writing to other persons by the
Bank, the Employers, the Committee, or the Trustee, or (iii) allocated to other parties by operation of law. The Committee shall
have exclusive responsibility regarding decisions concerning the payment of benefits under the Plan. The Committee shall have no
investment responsibility with respect to the Investment Fund except to the extent, if any, specifically provided in the Trust
Agreement. In the discharge of its duties, the Committee may employ accountants, actuaries, legal counsel, and other agents (who
also may be employed by an Employer or the Trustee in the same or some other capacity) and may pay their reasonable expenses and
compensation.
12.2
Identity
of Committee
. The Committee shall consists of three or more individuals selected by the Bank. Any individual, including
a director, trustee, shareholder, officer, or Employee of an Employer, shall be eligible to serve as a member of the Committee.
The Bank shall have the power to remove any individual serving on the Committee at any time without cause upon 10 days written
notice, and any individual may resign from the Committee at any time upon 10 days written notice to the Bank. The Bank shall notify
the Trustee of any change in membership of the Committee.
12.3
Duties
of Committee
. The Committee shall keep whatever records may be necessary to implement the Plan and shall furnish whatever
reports may be required from time to time by the Bank. The Committee shall furnish to the Trustee whatever information may be necessary
to properly administer the Trust. The Committee shall see to the filing with the appropriate government agencies of all reports
and returns required of the plan Committee under ERISA and other laws.
Further, the Committee
shall have exclusive responsibility and authority with respect to the Plan’s holdings of Stock and shall direct the Trustee
in all respects regarding the purchase, retention, sale, exchange, and pledge of Stock and the creation and satisfaction of Stock
Obligations. The Committee shall at all times act consistently with the Bank’s long-term intention that the Plan, as an employee
stock ownership plan, be invested primarily in Stock. Subject to the direction of the Board as to the application of Employer contributions
to Stock Obligations, and subject to the provisions of Sections 6.4 and 10.6 as to Participants’ rights under certain circumstances
to have their Accounts invested in Stock or in assets other than Stock, the Committee shall determine in its sole discretion the
extent to which assets of the Trust shall be used to repay Stock Obligations, to purchase Stock, or to invest in other assets to
be selected by the Trustee or an investment manager. No provision of the Plan relating to the allocation or vesting of any interests
in the Stock Fund or the Investment Fund shall restrict the Committee from changing any holdings of the Trust, whether the changes
involve an increase or a decrease in the Stock or other assets credited to Participants’ Accounts. In determining the proper
extent of the Trust’s investment in Stock, the Committee shall be authorized to employ investment counsel, legal counsel,
appraisers, and other agents to pay their reasonable expenses and compensation.
12.4
Valuation
of Stock
. If the Stock is not readily tradable on an established securities market, the valuation of such Stock shall be
determined by an independent appraiser. For purposes of the preceding sentence, the term “independent appraiser” means
any appraiser meeting requirements similar to the requirements of the regulations prescribed under Code Section 170(a)(1).
12.5
Compliance
with ERISA
. The Committee shall perform all acts necessary to comply with ERISA. Each individual member or employee of
the Committee shall discharge his duties in good faith and in accordance with the applicable requirements of ERISA.
12.6
Action
by Committee
. All actions of the Committee shall be governed by the affirmative vote of a number of members which is a
majority of the total number of members currently appointed, including vacancies. The members of the Committee may meet informally
and may take any action without meeting as a group.
12.7
Execution
of Documents
. Any instrument executed by the Committee shall be signed by any member or employee of the Committee.
12.8
Adoption
of Rules
. The Committee shall adopt such rules and regulations of uniform applicability as it deems necessary or appropriate
for the proper administration and interpretation of the Plan.
12.9
Responsibilities
to Participants
. The Committee shall determine which Employees qualify to enter the Plan. The Committee shall furnish to
each eligible Employee whatever summary plan descriptions, summary annual reports, and other notices and information may be required
under ERISA. The Committee also shall determine when a Participant or his Beneficiary qualifies for the payment of benefits under
the Plan. The Committee shall furnish to each such Participant or Beneficiary whatever information is required under ERISA (or
is otherwise appropriate) to enable the Participant or Beneficiary to make whatever elections may be available pursuant to Sections
6 and 10, and the Committee shall provide for the payment of benefits in the proper form and amount from the assets of the Trust
Fund. The Committee may decide in its sole discretion to permit modifications of elections and to defer or accelerate benefits
to the extent consistent with applicable law and the Plan document and the best interests of all Participants and Beneficiaries
in a non-discriminatory manner.
12.10
Alternative
Payees in Event of Incapacity
. If the Committee finds at any time that an individual qualifying for benefits under this
Plan is a minor or is incompetent, the Committee may direct the benefits to be paid, in the case of a minor, to his parents, his
legal guardian, or a custodian for him under the Uniform Gifts to Minors Act, or, in the case of an incompetent, to his spouse,
or his legal guardian, the payments to be used for the individual’s benefit. The Committee and the Trustee shall not be obligated
to inquire as to the actual use of the funds by the person receiving them under this Section 12.10, and any such payment shall
completely discharge the obligations of the Plan, the Trustee, the Committee, and the Employers to the extent of the payment.
12.11
Indemnification
by Employers
. Except as separately agreed in writing, the Committee, and any member or employee of the Committee, shall
be indemnified and held harmless by the Employer, jointly and severally, to the fullest extent permitted by ERISA, and subject
to and conditioned upon compliance with 12 C.F.R. Section 545.121, to the extent applicable, against any and all costs, damages,
expenses, and liabilities reasonably incurred by or imposed upon it or him in connection with any claim made against it or him
or in which it or he may be involved by reason of its or his being, or having been, the Committee, or a member or employee of the
Committee, to the extent such amounts are not paid by insurance.
12.12
Nonparticipation
by Interested Member
. Any member of the Committee who also is a Participant in the Plan shall take no part in any determination
specifically relating to his own participation or benefits, unless his abstention would leave the Committee incapable of acting
on the matter.
Section 13.
Adoption,
Amendment, or Termination of the Plan
.
13.1
Adoption
of Plan by Other Employers
. With the consent of the Bank, any entity may become a participating Employer under the Plan
by (i) taking such action as shall be necessary to adopt the Plan, (ii) becoming a party to the Trust Agreement establishing the
Trust Fund, and (iii) executing and delivering such instruments and taking such other action as may be necessary or desirable to
put the Plan into effect with respect to the entity’s Employees.
13.2
Plan
Adoption Subject to Qualification
. Notwithstanding any other provision of the Plan, the adoption of the Plan and the execution
of the Trust Agreement are conditioned upon their being determined initially by the Internal Revenue Service to meet the qualification
requirements of Section 401(a) of the Code, so that the Employers may deduct currently for federal income tax purposes their contributions
to the Trust and so that the Participants may exclude the contributions from their gross income and recognize income only when
they receive benefits. In the event that this Plan is held by the Internal Revenue Service not to qualify initially under Section
401(a), the Plan may be amended retroactively to the earliest date permitted by U.S. Treasury Regulations in order to secure qualification
under Section 401(a). If this Plan is held by the Internal Revenue Service not to qualify initially under Section 401(a) either
as originally adopted or as amended, each Employer’s contributions to the Trust under this Plan (including any earnings thereon)
shall be returned to it and this Plan shall be terminated. In the event that this Plan is amended after its initial qualification
and the Plan as amended is held by the Internal Revenue Service not to qualify under Section 401(a), the amendment may be modified
retroactively to the earliest date permitted by U.S. Treasury Regulations in order to secure approval of the amendment under Section
401(a). In addition, reversions of Employer contributions (including earnings or losses attributable thereto) are permitted within
one year after the applicable determination date, if the reversion is due to a good faith mistake of fact.
13.3
Right
to Amend or Terminate
. The Bank intends to continue this Plan as a permanent program. However, each participating Employer
separately reserves the right to suspend, supersede, or terminate the Plan at any time and for any reason, as it applies to that
Employer’s Employees, and the Bank reserves the right to amend, suspend, supersede, merge, consolidate, or terminate the
Plan at any time and for any reason, as it applies to the Employees of each Employer. No amendment, suspension, supersession, merger,
consolidation, or termination of the Plan shall (i) reduce any Participant’s or Beneficiary’s proportionate interest
in the Trust Fund, (ii) reduce or restrict, either directly or indirectly, the benefit provided any Participant prior to the amendment,
or (iii) divert any portion of the Trust Fund to purposes other than the exclusive benefit of the Participants and their Beneficiaries
prior to the satisfaction of all liabilities under the Plan. Moreover, there shall not be any transfer of assets to a successor
plan or merger or consolidation with another plan unless, in the event of the termination of the successor plan or the surviving
plan immediately following such transfer, merger, or consolidation, each participant or beneficiary would be entitled to a benefit
equal to or greater than the benefit he would have been entitled to if the plan in which he was previously a participant or beneficiary
had terminated immediately prior to such transfer, merger, or consolidation. Following a termination of this Plan by the Bank,
the Trustee shall continue to administer the Trust and pay benefits in accordance with the Plan as amended from time to time and
the Committee’s instructions.
Section 14.
Miscellaneous
Provisions
.
14.1
Plan
Creates No Employment Rights
. Nothing in this Plan shall be interpreted as giving any Employee the right to be retained
as an Employee by an Employer, or as limiting or affecting the rights of an Employer to control its Employees or to terminate the
Service of any Employee at any time and for any reason, subject to any applicable employment or collective bargaining agreements.
14.2
Nonassignability
of Benefits
. No assignment, pledge, or other anticipation of benefits from the Plan will be permitted or recognized by
the Employer, the Committee, or the Trustee. Moreover, benefits from the Plan shall not be subject to attachment, garnishment,
or other legal process for debts or liabilities of any Participant or Beneficiary, to the extent permitted by law. This prohibition
on assignment or alienation shall apply to any judgment, decree, or order (including approval of a property settlement agreement)
which relates to the provision of child support, alimony, or property rights to a present or former spouse, child or other dependent
of a Participant pursuant to a state domestic relations or community property law, unless the judgment, decree, or order is determined
by the Committee to be a qualified domestic relations order within the meaning of Section 414(p) of the Code, as more fully set
forth in Section 14.2 hereof. Notwithstanding any provisions of this Section 14.2 to the contrary, an offset of a Participant’s
Account against an amount the Participant is ordered or required to pay the Plan with respect to a judgment, order or decree issued,
or a settlement entered into, on or after August 5, 1997, shall be permitted in accordance with Code Sections 401(a)(13)(C) and
(D).
14.3
Limit
of Employer Liability
. The liability of the Employer with respect to Participants under this Plan shall be limited to making
contributions to the Trust from time to time, in accordance with Section 4.
14.4
Treatment
of Expenses
. All expenses incurred by the Committee and the Trustee in connection with administering this Plan and Trust
Fund shall be paid by the Trustee from the Trust Fund to the extent the expenses have not been paid or assumed by the Employer
or by the Trustee.
14.5
Number
and Gender
. Any use of the singular shall be interpreted to include the plural, and the plural the singular. Any use of
the masculine, feminine, or neuter shall be interpreted to include the masculine, feminine, or neuter, as the context shall require.
14.6
Nondiversion
of Assets
. Except as provided in Sections 5.3 and 13.3, under no circumstances shall any portion of the Trust Fund be diverted
to or used for any purpose other than the exclusive benefit of the Participants and their Beneficiaries prior to the satisfaction
of all liabilities under the Plan.
14.7
Separability
of Provisions
. If any provision of this Plan is held to be invalid or unenforceable, the other provisions of the Plan shall
not be affected but shall be applied as if the invalid or unenforceable provision had not been included in the Plan.
14.8
Service
of Process
. The agent for the service of process upon the Plan shall be the chief executive officer of the Bank, or such
other person as may be designated from time to time by the Bank.
14.9
Governing
State Law
. This Plan shall be interpreted in accordance with the laws of the State of New Mexico to the extent those laws
are applicable under the provisions of ERISA.
14.10
Employer
Contributions Conditioned on Deductibility
. Employer Contributions to the Plan are conditioned on deductibility under Code
Section 404. In the event that the Internal Revenue Service shall determine that all or any portion of an Employer Contribution
is not deductible under that Section, the nondeductible portion shall be returned to the Employer within one year of the disallowance
of the deduction.
14.11
Unclaimed
Accounts
. Neither the Employer nor the Trustees shall be under any obligation to search for, or ascertain the whereabouts
of, any Participant or Beneficiary. The Employer or the Trustees, by certified or registered mail addressed to his last known address
of record with the Employer, shall notify any Participant or Beneficiary that he is entitled to a distribution under this Plan,
and the notice shall quote the provisions of this Section. If the Participant or Beneficiary fails to claim his benefits or make
his whereabouts known in writing to the Employer or the Trustees within seven (7) calendar years after the date of notification,
the benefits of the Participant or Beneficiary under the Plan will be disposed of as follows:
(a) If
the whereabouts of the Participant is unknown but the whereabouts of the Participant’s Beneficiary is known to the Trustees,
distribution will be made to the Beneficiary.
(b) If
the whereabouts of the Participant and his Beneficiary are unknown to the Trustees, the Plan will forfeit the benefit, provided
that the benefit is subject to a claim for reinstatement if the Participant or Beneficiary make a claim for the forfeited benefit.
Any payment made pursuant
to the power herein conferred upon the Trustees shall operate as a complete discharge of all obligations of the Trustees, to the
extent of the distributions so made.
14.12
Qualified
Domestic Relations Order
. Section 14.2 shall not apply to a “qualified domestic relations order” defined in
Code Section 414(p), and such other domestic relations orders permitted to be so treated under the provisions of the Retirement
Equity Act of 1984. Further, to the extent provided under a “qualified domestic relations order”, a former Spouse of
a Participant shall be treated as the Spouse or surviving Spouse for all purposes under the Plan.
In the case of any domestic relations order
received by the Plan:
(a) The
Employer or the Plan Committee shall promptly notify the Participant and any other alternate payee of the receipt of such order
and the Plan’s procedures for determining the qualified status of domestic relations orders, and
(b) Within
a reasonable period after receipt of such order, the Employer or the Plan Committee shall determine whether such order is a qualified
domestic relations order and notify the Participant and each alternate payee of such determination. The Employer or the Plan Committee
shall establish reasonable procedures to determine the qualified status of domestic relations orders and to administer distributions
under such qualified orders.
During any period in
which the issue of whether a domestic relations order is a qualified domestic relations order is being determined (by the Employer
or Plan Committee, by a court of competent jurisdiction, or otherwise), the Employer or the Plan Committee shall segregate in a
separate account in the Plan or in an escrow account the amounts which would have been payable to the alternate payee during such
period if the order had been determined to be a qualified domestic relations order. If within eighteen (18) months the order (or
modification thereof) is determined to be a qualified domestic relations order, the Employer or the Plan Committee shall pay the
segregated amounts (plus any interest thereon) to the person or persons entitled thereto. If within eighteen (18) months it is
determined that the order is not a qualified domestic relations order, or the issue as to whether such order is a qualified domestic
relations order is not resolved, then the Employer or the Plan Committee shall pay the segregated amounts (plus any interest thereon)
to the person or persons who would have been entitled to such amounts if there had been no order. Any determination that an order
is a qualified domestic relations order which is made after the close of the eighteen (18) month period shall be applied prospectively
only. The term “alternate payee” means any Spouse, former Spouse, child or other dependent of a Participant who is
recognized by a domestic relations order as having a right to receive all, or a portion of, the benefit payable under a Plan with
respect to such Participant.
14.13
Use
of Electronic Media to Provide Notices and Make Participant Elections
. Pursuant to Treasury Regulations Section 1.401(a)-21,
the Plan may elect to use electronic media to provide notices required to be provided to Participants under the Plan and will accept
elections from Participants communicated to the Plan using such electronic media.
14.14
Acquisition
of Securities
. Notwithstanding any other provision of the Plan to the contrary, at no time shall the Plan be obligated
to acquire securities from a particular security holder at an indefinite time determined upon the happening of an event such as
the death of the security holder, pursuant to Treasury Regulations Section 54.4975-11(a)(7)(i).
Section 15.
Top-Heavy
Provisions
.
15.1
Top-Heavy
Plan
. For any Plan Year beginning after December 31, 1983, this Plan is top-heavy if any of the following conditions exist:
(a) If
the top-heavy ratio for this Plan exceeds sixty percent (60%) and this Plan is not part of any required aggregation group or permissive
aggregation group;
(b) If
this Plan is a part of a required aggregation group (but is not part of a permissive aggregation group) and the aggregate top-heavy
ratio for the group of Plans exceeds sixty percent (60%); or
(c) If
this Plan is a part of a required aggregation group and part of a permissive aggregation group and the aggregate top-heavy ratio
for the permissive aggregation group exceeds sixty percent (60%).
15.2
Definitions
.
In making this determination, the Committee
shall use the following definitions and principles:
15.2-1 The
“Determination Date”, with respect to the first Plan Year of any plan, means the last day of that Plan Year, and with
respect to each subsequent Plan Year, means the last day of the preceding Plan Year. If any other plan has a Determination Date
which differs from this Plan’s Determination Date, the top-heaviness of this Plan shall be determined on the basis of the
other plan’s Determination Date falling within the same calendar years as this Plan’s Determination Date.
15.2-2 A
“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 $165,000 (as adjusted
under section 416(i)(1) of the Code), 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.
15.2-3 A
“Non-key Employee” means an Employee who at any time during the five years ending on the top-heavy Determination Date
for the Plan Year has received compensation from an Employer and who has never been a Key Employee, and the Beneficiary of any
such Employee.
15.2-4 A
“required aggregation group” includes (a) each qualified Plan of the Employer in which at least one Key Employee participates
in the Plan Year containing the Determination Date and any of the four (4) preceding Plan Years, and (b) any other qualified Plan
of the Employer which enables a Plan described in (a) to meet the requirements of Code Sections 401(a)(4) and 410. For purposes
of the preceding sentence, a qualified Plan of the Employer includes a terminated Plan maintained by the Employer within the five
(5) year period ending on the Determination Date. In the case of a required aggregation group, each Plan in the group will be considered
a top-heavy Plan if the required aggregation group is a top-heavy group. No Plan in the required aggregation group will be considered
a top-heavy Plan if the required aggregation group is not a top-heavy group. All Employers aggregated under Code Sections 414(b),
(c) or (m) or (o) (but only after the Code Section 414(o) regulations become effective) are considered a single Employer.
15.2-5 A
“permissive aggregation group” includes the required aggregation group of Plans plus any other qualified Plan(s) of
the Employer that are not required to be aggregated but which, when considered as a group with the required aggregation group,
satisfy the requirements of Code Sections 401(a)(4) and 410 and are comparable to the Plans in the required aggregation group.
No Plan in the permissive aggregation group will be considered a top-heavy Plan if the permissive aggregation group is not a top-heavy
group. Only a Plan that is part of the required aggregation group will be considered a top-heavy Plan if the permissive aggregation
group is top-heavy.
15.3
Top-Heavy
Rules of Application
.
For purposes of determining
the value of Account balances and the present value of accrued benefits the following provisions shall apply:
15.3-1 The
value of Account balances and the present value of accrued benefits will be determined as of the most recent Valuation Date that
falls within or ends with the twelve (12) month period ending on the Determination Date.
15.3-2 For
purposes of testing whether this Plan is top-heavy, the present value of an individual’s accrued benefits and an individual’s
Account balances is counted only once each year.
15.3-3 The
Account balances and accrued benefits of a Participant who is not presently a Key Employee but who was a Key Employee in a Plan
Year beginning on or after January 1, 1984 will be disregarded.
15.3-4 For
years beginning after December 31, 1984, Employer contributions attributable to a salary reduction or similar arrangement will
be taken into account.
15.3-5 When
aggregating Plans, the value of Account balances and accrued benefits will be calculated with reference to the Determination Dates
that fall within the same calendar year.
15.3-6 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 “five (5) year period” for “one (1) year period.”
15.3-7 Accrued
benefits and Account balances of an individual shall not be taken into account for purposes of determining the top-heavy ratios
if the individual has performed no services for the Employer during the one (1) year period ending on the applicable Determination
Date. Compensation for purposes of this subparagraph shall not include any payments made to an individual by the Employer pursuant
to a qualified or non-qualified deferred compensation plan.
15.3-8 Accrued
benefits and Account balances of an individual shall not be taken into account for purposes of determining the top-heavy ratios
if the individual has performed no services for the Employer during the five (5) year period ending on the applicable Determination
Date. Compensation for purposes of this subparagraph shall not include any payments made to an individual by the Employer pursuant
to a qualified or non-qualified deferred compensation plan.
15.3-9 The
present value of the accrued benefits or the amount of the Account balances of any Employee participating in this Plan shall not
include any rollover contributions or other transfers voluntarily initiated by the Employee except as described below. If this
Plan transfers or rolls over funds to another Plan in a transaction voluntarily initiated by the Employee after December 31, 1983,
then this Plan shall count the distribution for purposes of determining Account balances or the present value of accrued benefits.
A transfer incident to a merger or consolidation of two or more Plans of the Employer (including Plans of related Employers treated
as a single Employer under Code Section 414), or a transfer or rollover between Plans of the Employer, shall not be considered
as voluntarily initiated by the Employee.
15.4
Top-Heavy
Ratio
. If the Employer maintains one (1) or more defined contribution plans (including any simplified Employee pension
plan) and the Employer has never maintained any defined benefit plans which have covered or could cover a Participant in this Plan,
the top-heavy ratio is a fraction, the numerator of which is the sum of the Account balances of all Key Employees as of the Determination
Date, and the denominator of which is the sum of the Account balances of all Employees as of the Determination Date. Both the numerator
and denominator of the top-heavy ratio shall be increased to reflect any contribution which is due but unpaid as of the Determination
Date.
If the Employer maintains
one (1) or more defined contribution plans (including any simplified Employee pension plan) and the Employer maintains or has maintained
one (1) or more defined benefit plans which have covered or could cover a Participant in this Plan, the top-heavy ratio is a fraction,
the numerator of which is the sum of Account balances under the defined contribution plans for all Key Employees and the present
value of accrued benefits under the defined benefit plans for all Key Employees, and the denominator of which is the sum of the
Account balances under the defined contribution plans for all Employees and the present value of accrued benefits under the defined
benefit plans for all Employees.
For these purposes,
the accrued benefit of a Participant other than a Key Employee in a defined benefit plan shall be determined under (a) the method,
if any, that uniformly applies for accrual purposes under all defined benefit plans maintained by the Employer, or (b) if there
is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional rule
of Section 411(b)(1)(C).
15.5
Minimum
Contributions
. For any Top-Heavy Year, each Employer shall make a special contribution on behalf of each Participant to
the extent that the total allocations to his Account pursuant to Section 4 is less than the lesser of:
(i) three
percent of his 415 Compensation for that year, or
(ii) the
highest ratio of such allocation to 415 Compensation received by any Key Employee for that year. For purposes of the special contribution
of this Section 15.2, a Key Employee’s 415 Compensation shall include amounts the Key Employee elected to defer under a
qualified 401(k) arrangement.
Such a special contribution shall be made on behalf of each Participant who is employed by an Employer on the last day of the Plan
Year, regardless of the number of his Hours of Service, and shall be allocated to his Account.
If the Employer maintains
a qualified plan in addition to this Plan and more than one such plan is determined to be Top-Heavy, a minimum contribution or
a minimum benefit shall be provided in one of such other plans, including a plan that consists solely of a cash or deferred arrangement
which meets the requirements of Section 401(k)(2) of the Code and matching contributions with respect to which the requirements
of Section 401(m)(11) of the Code are met. If the Employer has both a Top-Heavy defined benefit plan and a Top-Heavy defined contribution
plan and a minimum contribution is to be provided only in the defined contribution plan, then the sum of the Employer contributions
and forfeitures allocated to the Account of each Non-key Employee shall be equal to at least five percent (5%) of such Non-key
Employee’s 415 Compensation for that year.
15.6
Minimum
Vesting
. For any Plan Year in which this Plan is Top-Heavy, a Participant’s vested interest in his Account shall
be based on the following “top-heavy table”:
|
Vesting Years
|
|
Percentage of Interest Vested
|
|
|
Fewer than 2
|
|
|
0
|
%
|
|
2
|
|
|
20
|
%
|
|
3
|
|
|
40
|
%
|
|
4
|
|
|
60
|
%
|
|
5
|
|
|
80
|
%
|
|
6 or more
|
|
|
100
|
%
|
15.7
Top-Heavy
Provisions Control in Top-Heavy Plan
. In the event this Plan becomes top-heavy and a conflict arises between the top-heavy
provisions herein set forth and the remaining provisions set forth in this Plan, the top-heavy provisions shall control.
Exhibit 10.11
DIRECTOR DEFERRED FEE PLAN
THIS DIRECTOR DEFERRED
FEE PLAN (this “Plan”), adopted this 6th day of September, 2013, by Bank ‘34 located in Alamogordo, New Mexico
(the “Bank”).
WITNESSETH
:
WHEREAS, the Bank recognizes
the valuable services the Participants have performed for the Bank and wishes to encourage the Participants’ continued service
and to provide the Participants with additional incentive to achieve corporate objectives;
WHEREAS, the Bank wishes
to provide the terms and conditions upon which the Bank shall pay additional retirement benefits to the Participants;
WHEREAS, the Bank and the
Participants intend this Plan shall at all times be administered and interpreted in compliance with Code Section 409A; and
WHEREAS, the Bank intends
this Plan shall at all times be administered and interpreted in such a manner as to constitute an unfunded nonqualified deferred
compensation arrangement, maintained primarily to provide supplemental retirement benefits for the Participants, members of select
group of management or highly compensated employees of the Bank;
NOW THEREFORE, in consideration
of the premises forgoing the Bank hereby creates the following:
ARTICLE 1
DEFINITIONS
For the purpose of this
Plan, the following phrases or terms shall have the indicated meanings:
1.1
“Administrator”
means the Board or its designee.
1.2
“Affiliate”
means any business entity with whom the Bank would be considered a single employer under Section 414(b) and 414(c) of the Code.
Such term shall be interpreted in a manner consistent with the definition of “service recipient” contained in Code
Section 409A.
1.3
“Beneficiary”
means the person or persons designated in writing by the Participant to receive benefits hereunder in the event of the Participant’s
death.
1.4
“Beneficiary
Designation Form”
means the form established from time to time by the Administrator that the Participant completes signs
and returns to the Administrator to designate one or more Beneficiaries.
1.5
“Board”
means the Board of Directors of the Bank.
1.6
“Cause”
means any of the following acts or circumstances: gross negligence or gross neglect of duties to the Bank; conviction of a felony
or of a gross misdemeanor involving moral turpitude in connection with the Participant’s service with the Bank; or fraud,
disloyalty, dishonesty or willful violation of any law or significant Bank policy committed in connection with the Participant’s
service and resulting in a material adverse effect on the Bank.
1.7
“Change
in Control”
means a change in the ownership or effective control of the Bank, or in the ownership of a substantial portion
of the assets of the Bank, as such change is defined in Code Section 409A and regulations thereunder.
1.8
“Contribution”
means the amount the Bank contributes to the Deferral Account, calculated according to the provisions of Article 2.
1.9
“Crediting
Rate”
means five percent (5%). Notwithstanding the foregoing, the Board may prospectively increase or decrease the Crediting
Rate by providing written notice of such change to the Participants.
1.10
“Claimant”
means a person who believes that he or she is being denied a benefit to which he or she is entitled hereunder.
1.11
“Code”
means the Internal Revenue Code of 1986, as amended.
1.12
“Deferral
Account”
means the Bank’s accounting of the accumulated Deferrals and Contributions plus accrued interest.
1.13
“Deferral
Election Form”
means each form established from time to time by the Administrator that the Participant completes, signs
and returns to the Administrator to designate the amount of Deferrals.
1.14
“Deferrals”
means the amount of Fees the Participant elects to defer according to this Plan.
1.15
“Disability”
means a condition of the Participant whereby the Participant either: (i) is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment that 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 that 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 Bank. The Administrator will determine whether the Participant has incurred a Disability based on its own good faith determination
and may require the Participant to submit to reasonable physical and mental examinations for this purpose. The Participant will
also be deemed to have incurred a Disability if determined to be totally disabled by the Social Security Administration or in accordance
with a disability insurance program, provided that the
definition of disability applied under such
disability insurance program complies with the initial sentence of this Section.
1.16
“Early
Termination”
means Separation from Service before Normal Retirement Age except when such Separation from Service occurs
following a Change in Control or due to termination for Cause.
1.17
“Effective
Date”
means ____________________, 2013.
1.18
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
1.19
“Fees”
means the total amount of fees payable to a member of the Board.
1.20
“Normal
Retirement Age”
means the Participant attaining age seventy (70).
1.21
“Participant”
means a director of the Bank (i) who is selected to participate in the Plan, (ii) who elects to participate in the Plan, (iii)
who signs a Participation Agreement, (iv) whose Participation Agreement, Beneficiary Designation Form and Deferral Election Form
are accepted by the Administrator, (v) who commences participation in the Plan, and (vi) whose participation has not terminated.
1.22
“Participation
Agreement”
means the form established by the Administrator that the Participant completes, signs and returns to the Administrator
to acknowledge participation in the Plan.
1.23
“Plan
Year”
means each twelve (12) month period commencing on January 1 and ending on December 31 of each year. The initial
Plan Year shall commence on the Effective Date and end on the following December 31.
1.24
“Separation
from Service”
means, with respect to any Participant, a termination of the Participant’s service with the Bank
and its Affiliates for reasons other than death or Disability. A Separation from Service may occur as of a specified date for purposes
of the Plan even if the Participant continues to provide some services for the Bank or its Affiliates after that date, provided
that the facts and circumstances indicate that the Bank and the Participant reasonably anticipated at that date that either no
further services would be performed after that date, or that the level of bona fide services the Participant would perform after
such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%)
of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period (or the full period
during which the Participant performed services for the Bank, if that is less than thirty-six (36) months). A Separation from Service
will not be deemed to have occurred while the Participant is on military leave, sick leave, or other bona fide leave of absence
if the period of such leave does not exceed six (6) months or, if longer, the period for which a statute or contract provides the
Participant with the right to reemployment with the Bank. If the Participant’s leave exceeds six (6) months but the Participant
is not entitled to reemployment under a statute or contract, the Participant
incurs a Separation of Service on the next
day following the expiration of such six (6) month period. In determining whether a Separation of Service occurs the Administrator
shall take into account, among other things, the definition of “service recipient” and “employer” set forth
in Treasury regulation §1.409A-1(h)(3). The Administrator shall have full and final authority, to determine conclusively whether
a Separation from Service occurs, and the date of such Separation from Service.
1.25
“Specified
Employee”
means an individual that satisfies the definition of a “key employee” of the Bank as such term
is defined in Code §416(i) (without regard to Code §416(i)(5)), provided that the stock of the Bank is publicly traded
on an established securities market or otherwise, as defined in Code §1.897-1(m). If a Participant is a key employee at any
time during the twelve (12) months ending on December 31, the Participant is a Specified Employee for the twelve (12) month period
commencing on the first day of the following April.
ARTICLE 2
ELIGIBILITY AND PARTICIPATION
2.1
Selection
by Administrator
. Participation in the Plan shall be limited to those directors of the Bank selected by the Administrator,
in its sole discretion, to participate in the Plan. Participation in the Plan shall be limited to a select group of management
or highly compensated individuals employed by or providing services to the Bank.
2.2
Enrollment
Requirements
. As a condition to participation, and in addition to the requirements in Section 2.1, each selected individual
shall complete, execute and return to the Administrator (i) a Participation Agreement Form, (ii) a Beneficiary Designation Form
and (iii) a Deferral Election Form. In addition, the Administrator may establish such other enrollment requirements as it determines
are necessary.
2.3
Eligibility;
Commencement of Participation
. Provided an individual selected to participate in the Plan has met all enrollment requirements
set forth in this Plan and required by the Administrator, that individual will become a Participant, be covered by the Plan and
will be eligible to receive benefits at the time and in the manner provided hereunder, subject to the provisions of the Plan.
2.4
Termination
of Participation
. If the Administrator determines that a Participant no longer qualifies as a member of a select group of management
or highly compensated employees as such group is determined according to ERISA, the Administrator shall have the right to prevent
the Participant from accruing additional benefits hereunder.
ARTICLE
3
DEFERRALS
3.1
Elections
Generally
. Each Participant may annually file a Deferral Election Form with the Administrator no later than the end of the
Plan Year preceding the Plan Year in which services leading to the compensation to be deferred will be performed.
3.2
Initial
Election.
After being notified by the Administrator of becoming eligible to participate in this Plan, each Participant may
make an initial deferral election by delivering to the Administrator a signed Deferral Election Form within thirty (30) days of
becoming eligible. The Deferral Election Form shall set forth the amount Fees to be deferred. However, if the Participant was eligible
to participate in any other account balance plans (as referenced in Code Section 409A) sponsored by the Bank prior to becoming
eligible to participate in this Plan, the initial election to defer under this Plan shall not be effective until the Plan Year
following the Plan Year in which the Participant became eligible to participate in this Plan.
3.3
Election
Changes.
The Participant may modify the amount of Deferrals annually by filing a new Deferral Election Form with the Bank.
The modified deferral shall not be effective until the calendar year following the year in which the subsequent Deferral Election
Form is received by the Bank.
3.4
Bank
Contributions.
In addition to any Deferrals, the Bank may, at any time, make a Contribution to the Deferral Account.
Article
4
DEFFERAL
ACCOUNT
4.1
Establishing
and Crediting
. The Bank shall establish a Deferral Account on its books for the Participant and shall credit to the Deferral
Account the following amounts:
(a) Any
Deferrals or Contributions hereunder; and
(b) Interest
as follows:
(i) On
the last day of each month during and immediately prior to the distribution of any benefits, but only until commencement of benefit
distributions under this Plan, interest shall be credited on the Deferral Account balance at an annual rate equal to
the
Crediting Rate; and
(ii) On
the last day of each month during any installment period, interest shall be credited on the unpaid Deferral Account balance at
an annual rate equal to the Crediting Rate, compounded monthly.
4.2
Recordkeeping
Device Only
. The Deferral Account is solely a device for measuring amounts to be paid under this Plan and is not a trust fund
of any kind.
ARTICLE 5
PAYMENT OF BENEFITS
5.1
Normal
Retirement Benefit
. Upon Separation from Service on or after Normal Retirement Age, the Bank shall pay the Participant the
Deferral Account balance calculated at Separation from Service. This benefit shall be paid as elected by the Participant on the
Participant’s Participation Agreement, commencing the month following Separation from Service.
5.2
Early
Termination Benefit
. If Early Termination occurs, the Bank shall pay the Participant the Deferral Account balance calculated
at Separation from Service in lieu of any other benefit hereunder. This benefit shall be paid as elected by the Participant on
the Participant’s Participation Agreement, commencing the month following Separation from Service.
5.3
Disability
Benefit
. If the Participant experiences a Disability
p
rior to Normal Retirement Age, the
Bank shall pay the Participant the Deferral Account balance calculated as of the date of Disability in lieu of any other benefit
hereunder. This benefit shall be paid as elected by the Participant on the Participant’s Participation Agreement, commencing
the month following Disability.
5.4
Change
in Control Benefit
. If a Change in Control occurs, followed within twenty-four (24) months by Separation from Service prior
to Normal Retirement Age, the Bank shall pay the Participant the Deferral Account balance calculated as of the date of Separation
from Service in lieu of any other benefit hereunder. This benefit shall be paid as elected by the Participant on the Participant’s
Participation Agreement, commencing the month following Separation from Service.
5.5
Death
Prior to Commencement of Benefit Payments
. In the event the Participant dies prior to Separation from Service and Disability,
the Bank shall pay the Beneficiary the Deferral Account balance calculated as of the date of the date of the Participant’s
death. This benefit shall be paid as elected by the Participant on the Participant’s Participation Agreement, commencing
the month following Participant’s death.
5.6
Death
Subsequent to Commencement of Benefit Payments
. In the event the Participant dies while receiving payments, but prior to receiving
all payments due and owing hereunder, the Bank shall pay the Beneficiary the same amounts at the same time as the Bank would have
paid to the Participant had the Participant survived.
5.7
Termination
for Cause
. If the Bank terminates a Participant’s service for Cause, then the Participant shall forfeit all amounts credited
to the Deferral Account except the Deferrals.
5.8
Restriction
on Commencement of Distributions
. Notwithstanding any provision of this Plan to the contrary, if the Participant is considered
a Specified Employee at the time of Separation from Service, the provisions of this Section shall govern all distributions hereunder.
Distributions which would otherwise be made to the Participant due to Separation from Service shall not be made during the first
six (6) months following Separation from Service. Rather, any distribution which would otherwise be paid to the Participant during
such period shall be accumulated and paid to the Participant in a lump sum on the first day of the seventh month following Separation
from Service, or if earlier, upon the Participant’s death. All subsequent distributions shall be paid as they would have
had this Section not applied.
5.9
Acceleration
of Payments
. Except as specifically permitted herein, no acceleration of the time or schedule of any payment may be made hereunder.
Notwithstanding the foregoing, payments may be accelerated, in accordance with the provisions of Treasury Regulation §1.409A-3(j)(4)
in the following circumstances: (i) as a result of certain domestic relations orders; (ii) in compliance with ethics agreements
with the federal government; (iii) in compliance with the ethics laws or conflicts of interest laws; (iv) in limited cashouts (but
not in excess of the limit under Code §402(g)(1)(B)); (v) to pay employment-related taxes; or (vi) to pay any taxes that may
become due at any time that the Plan fails to meet the requirements of Code Section 409A.
5.10
Delays
in Payment by Bank
. A payment may be delayed to a date after the designated payment date under any of the circumstances described
below, and the provision will not fail to meet the requirements of establishing a permissible payment event. The delay in the payment
will not constitute a subsequent deferral election, so long as the Bank treats all payments to similarly situated Participants
on a reasonably consistent basis.
(a)
Payments
subject to Code Section 162(m)
. If the Bank reasonably anticipates that the Bank’s deduction with respect to any distribution
under this Plan would be limited or eliminated by application of Code Section 162(m), then to the extent deemed necessary by the
Bank to ensure that the entire amount of any distribution from this Plan is deductible, the Bank may delay payment of any amount
that would otherwise be distributed under this Plan. The delayed amounts shall be distributed to the Participant (or the Beneficiary
in the event of the Participant’s death) at the earliest date the Bank reasonably anticipates that the deduction of the payment
of the amount will not be limited or eliminated by application of Code Section 162(m).
(b)
Payments
that would violate Federal securities laws or other applicable law
. A payment may be delayed where the Bank reasonably anticipates
that the making of the payment will violate Federal securities laws or other applicable law provided that the payment is made at
the earliest date at which the Bank reasonably anticipates that the making of the payment will not cause such violation. The making
of a payment that would cause inclusion in gross income or the application of any penalty provision of the Internal Revenue Code
is not treated as a violation of law.
(c)
Solvency
.
Notwithstanding the above, a payment may be delayed where the payment would jeopardize the ability of the Bank to continue as a
going concern.
5.11
Treatment
of Payment as Made on Designated Payment Date
. Solely for purposes of determining compliance with Code Section 409A, any payment
under this Plan made after the required payment date shall be deemed made on the required payment date provided that such payment
is made by the latest of: (i) the end of the calendar year in which the payment is due; (ii) the 15
th
day of the third
calendar month following the payment due date; (iii) if Bank cannot calculate the payment amount on account of administrative impracticality
which is beyond the Participant’s control, the end of the first
calendar year which payment calculation is
practicable; and (iv) if Bank does not have sufficient funds to make the payment without jeopardizing the Bank’s solvency,
in the first calendar year in which the Bank’s funds are sufficient to make the payment.
5.12
Facility
of Payment
. If a distribution is to be made to a minor, or to a person who is otherwise incompetent, then the Administrator
may make such distribution: (i) to the legal guardian, or if none, to a parent of a minor payee with whom the payee maintains his
or her residence; or (ii) to the conservator or administrator or, if none, to the person having custody of an incompetent payee.
Any such distribution shall fully discharge the Bank and the Administrator from further liability on account thereof.
5.13
Excise
Tax Limitation
. Notwithstanding any provision of this Plan to the contrary, if any benefit payment hereunder would be treated
as an “excess parachute payment” under Code Section 280G, the Bank shall reduce such benefit payment to the extent
necessary to avoid treating such benefit payment as an excess parachute payment. The Participant shall be entitled to only the
reduced benefit and shall forfeit any amount over and above the reduced amount.
5.14
Changes
in Form of Timing of Benefit Payments
. The Bank and the Participant may, subject to the terms hereof, amend this Plan to delay
the timing or change the form of payments. Any such amendment:
(a) must
take effect not less than twelve (12) months after the amendment is made;
(b) must,
for benefits distributable due solely to the arrival of a specified date, or on account of Separation from Service or Change in
Control, delay the commencement of distributions for a minimum of five (5) years from the date the first distribution was originally
scheduled to be made; and
(c) must,
for benefits distributable due solely to the arrival of a specified date, be made not less than twelve (12) months before distribution
is scheduled to begin.
Article
6
Beneficiaries
6.1
Designation
of Beneficiaries
. The Participant may designate any person to receive any benefits payable under the Plan upon the Participant’s
death, and the designation may be changed from time to time by the Participant by filing a new designation. Each designation will
revoke all prior designations by the Participant, shall be in the form prescribed by the Administrator and shall be effective only
when filed in writing with the Administrator during the Participant’s lifetime. If the Participant names someone other than
the Participant’s spouse as a Beneficiary, the Administrator may, in its sole discretion, determine that spousal consent
is required to be provided in a form designated by the Administrator, executed by the Participant’s spouse and returned to
the Administrator. The Participant’s beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases
the Participant or if the Participant names a spouse as Beneficiary and the marriage is subsequently dissolved.
6.2
Absence
of Beneficiary Designation
. In the absence of a valid Beneficiary designation, or if, at the time any benefit payment is due
to a Beneficiary, there is no living Beneficiary validly named by the Participant, the Bank shall pay the benefit payment to the
Participant’s spouse. If the spouse is not living then the Bank shall pay the benefit payment to the Participant’s
living descendants
per stirpes
, and if there no living descendants, to the Participant’s estate. In determining the
existence or identity of anyone entitled to a benefit payment, the Bank may rely conclusively upon information supplied by the
Participant’s personal representative, executor, or administrator.
Article
7
ADMINISTRATION
7.1
Administrator
Duties
. The Administrator shall be responsible for the management, operation, and administration of the Plan. When making a
determination or calculation, the Administrator shall be entitled to rely on information furnished by the Bank, Participant or
Beneficiary. No provision of this Plan shall be construed as imposing on the Administrator any fiduciary duty under ERISA or other
law, or any duty similar to any fiduciary duty under ERISA or other law.
7.2
Administrator
Authority
. The Administrator shall enforce this Plan in accordance with its terms, shall be charged with the general administration
of this Plan, and shall have all powers necessary to accomplish its purposes.
7.3
Binding
Effect of Decision
. The decision or action of the Administrator with respect to any question arising out of or in connection
with the administration, interpretation or application of this Plan and the rules and regulations promulgated hereunder shall be
final, conclusive and binding upon all persons having any interest in this Plan.
7.4
Compensation,
Expenses and Indemnity
. The Administrator shall serve without compensation for services rendered hereunder. The Administrator
is authorized at the expense of the Bank to employ such legal counsel and recordkeeper as it may deem advisable to assist in the
performance of its duties hereunder. Expense and fees in connection with the administration of this Plan shall be paid by the Bank.
7.5
Bank
Information
. The Bank shall supply full and timely information to the Administrator on all matters relating to the Participant’s
compensation, death, Disability or Separation from Service, and such other information as the Administrator reasonably requires.
7.6
Termination
of Participation
. If the Administrator determines in good faith that the Participant no longer qualifies as a member of a select
group of management or highly compensated employees, as determined in accordance with ERISA, the Administrator shall have the right,
in its sole discretion, to prohibit the Participant from making any additional Deferrals hereunder.
7.7
Compliance
with Code Section 409A
. The Bank and the Participants intend that the Plan comply with the provisions of Code Section 409A
to prevent the inclusion in gross income of any amounts deferred hereunder in a taxable year prior to the year in which amounts
are actually paid to the Participant or Beneficiary. This Plan shall be construed, administered and governed in a manner that affects
such intent, and the Administrator shall not take any action that would be inconsistent therewith.
Article
8
Claims
and Review Procedures
8.1
Claims
Procedure
. A Claimant who has not received benefits under this Plan that he or she believes should be distributed shall make
a claim for such benefits as follows.
(a)
Initiation
– Written Claim
. The Claimant initiates a claim by submitting to the Administrator a written claim for the benefits.
If such a claim relates to the contents of a notice received by the Claimant, the claim must be made within sixty (60) days
after such notice was received by the Claimant. All other claims must be made within one hundred eighty (180) days of the
date on which the event that caused the claim to arise occurred. The claim must state with particularity the determination desired
by the Claimant.
(b)
Timing
of Administrator Response
.
The Administrator shall respond to such Claimant within ninety (90) days after receiving
the claim. If the Administrator determines that special circumstances require additional time for processing the claim, the Administrator
can extend the response period by an additional ninety (90) days by notifying the Claimant in writing, prior to the end of the
initial ninety (90) day period, that an additional period is required. The notice of extension must set forth the special circumstances
and the date by which the Administrator expects to render its decision.
(c)
Notice
of Decision
. If the Administrator denies part or all of the claim, the Administrator shall notify the Claimant in writing of
such denial. The Administrator shall write the notification in a manner calculated to be understood by the Claimant. The notification
shall set forth: (i) the specific reasons for the denial; (ii) a reference to the specific provisions of this Plan on which the
denial is based; (iii) a description of any additional information or material necessary for the Claimant to perfect the claim
and an explanation of why it is needed; (iv) an explanation of this Plan’s review procedures and the time limits applicable
to such procedures; and (v) a statement of the Claimant’s right to bring a civil action under ERISA Section 502(a) following
an adverse benefit determination on review.
8.2
Review
Procedure
. If the Administrator denies part or all of the claim, the Claimant shall have the opportunity for a full and fair
review by the Administrator of the denial as follows.
(a)
Initiation
– Written Request
. To initiate the review, the Claimant, within sixty (60) days after receiving the Administrator’s
notice of denial, must file with the Administrator a written request for review.
(b)
Additional
Submissions – Information Access
. The Claimant shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim. The Administrator shall also provide the Claimant, upon request and free of
charge, reasonable access to, and copies of, all documents, records and other information relevant (as defined in applicable ERISA
regulations) to the Claimant’s claim for benefits.
(c)
Considerations
on Review
. In considering the review, the Administrator shall take into account all materials and information the Claimant
submits relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.
(d)
Timing
of Administrator Response
. The Administrator shall respond in writing to such Claimant within sixty (60) days after receiving
the request for review. If the Administrator determines that special circumstances require additional time for processing the claim,
the Administrator can extend the response period by an additional sixty (60) days by notifying the Claimant in writing, prior to
the end of the initial sixty (60) day period, that an additional period is required. The notice of extension must set forth the
special circumstances and the date by which the Administrator expects to render its decision.
(e)
Notice
of Decision
. The Administrator shall notify the Claimant in writing of its decision on review. The Administrator shall write
the notification in a manner calculated to be understood by the Claimant. The notification shall set forth: (a) the specific reasons
for the denial; (b) a reference to the specific provisions of this Plan on which the denial is based; (c) a statement that the
Claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and
other information relevant (as defined in applicable ERISA regulations) to the Claimant’s claim for benefits; and (d) a statement
of the Claimant’s right to bring a civil action under ERISA Section 502(a).
ARTICLE 9
AMENDMENT AND TERMINATION
9.1
Plan
Amendment Generally
. This Plan may be amended only by a written document executed by the Bank, provided that such amendment
does not reduce or eliminate any vested benefit hereunder.
9.2
Amendment
to Insure Proper Characterization of Plan.
Notwithstanding anything in this Plan to the contrary, the Plan may be amended by
the Bank at any time, if found necessary in the opinion of the Bank, i) to ensure that the Plan is characterized as plan of deferred
compensation maintained for a select group of management or highly compensated employees as described under ERISA, ii) to conform
the Plan to the requirements of any applicable law or iii) to comply with the written instructions of the Bank’s auditors
or banking regulators.
9.3
Plan
Termination Generally
. This Plan may be terminated only by a written document executed by the Bank. In case of such termination,
the benefit to be paid to each Participant hereunder shall be the Participant’s Deferral Account balance. However, except
as provided in Section 9.4, Plan termination
shall not cause a distribution of benefits hereunder. Rather, upon termination benefit distributions will be made at the earliest
distribution event permitted under Article 4.
9.4
Effect
of Complete Termination
. Notwithstanding anything to the contrary in Section 9.3, and subject to the requirements of Code Section
409A and Treasury Regulations §1.409A-3(j)(4)(ix), at certain times the Bank may completely terminate and liquidate the Plan.
In the event of such a complete termination, the Bank shall pay the Deferral Account balances to the Participants. Such complete
termination of the Plan shall occur only under the following circumstances and conditions.
(a)
Corporate
Dissolution or Bankruptcy
. The Bank may terminate and liquidate this Plan within twelve (12) months of a corporate dissolution
taxed under Code Section 331, or with the approval of a bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that
all benefits paid under the Plan are included in the Participant’s gross income in the latest of: (i) the calendar year which
the termination occurs; (ii) the calendar year in which the amount is no longer subject to a substantial risk of forfeiture; or
(iii) the first calendar year in which the payment is administratively practicable.
(b)
Discretionary
Termination
. The Bank may terminate and liquidate this Plan provided that: (i) the termination does not occur proximate to
a downturn in the financial health of the Bank; (ii) all arrangements sponsored by the Bank and Affiliates that would be aggregated
with any terminated arrangements under Treasury Regulations §1.409A-1(c) are terminated; (iii) no payments, other than payments
that would be payable under the terms of this Plan if the termination had not occurred, are made within twelve (12) months of the
date the Bank takes the irrevocable action to terminate this Plan; (iv) all payments are made within twenty-four (24) months following
the date the Bank takes the irrevocable action to terminate and liquidate this Plan; and (v) neither the Bank nor any of its Affiliates
adopt a new arrangement that would be aggregated with any terminated arrangement under Treasury Regulations §1.409A-1(c) if
the Participants participated in both arrangements, at any time within three (3) years following the date the Bank takes the irrevocable
action to terminate this Plan.
(c)
Change
in Control
. The Bank may terminate and liquidate this Agreement by taking irrevocable action to terminate and liquidate within
the thirty (30) days preceding or the twelve (12) months following a Change in Control. This Agreement will then be treated as
terminated only if all substantially similar arrangements sponsored by the Bank which are treated as deferred under a single plan
under Treasury Regulations §1.409A-1(c)(2) are terminated and liquidated with respect to each Participant who experienced
the Change in Control so that the Director and any participants in any such similar arrangements are required to receive all amounts
of compensation deferred under the terminated arrangements within twelve (12) months of the date the Bank takes the irrevocable
action to terminate the arrangements.
Article
10
MISCELLANEOUS
10.1
No
Effect on Other Rights
. This Plan, and each Participant’s Participation Agreement constitute the entire agreement between
the Bank and the Participant as to the subject matter hereof. No rights are granted to the Participants by virtue of this Plan
other than those specifically set forth herein. Nothing contained herein will confer upon any Participant the right to be retained
in the service of the Bank nor limit the right of the Bank to discharge or otherwise deal with the Participant without regard to
the existence hereof.
10.2
State
Law
. To the extent not governed by ERISA, the provisions of this Plan shall be construed and interpreted according to the internal
law of the State of New Mexico without regard to its conflicts of laws principles.
10.3
Validity
.
In case any provision of this Plan shall be illegal or invalid for any reason, said illegality or invalidity shall not affect the
remaining parts hereof, but this Plan shall be construed and enforced as if such illegal or invalid provision had never been inserted
herein.
10.4
Nonassignability
.
Benefits under this Plan cannot be sold, transferred, assigned, pledged, attached or encumbered in any manner.
10.5
Unsecured
General Creditor Status
. Payment to the Participant or any Beneficiary hereunder shall be made from assets which shall continue,
for all purposes, to be part of the general, unrestricted assets of the Bank and no person shall have any interest in any such
asset by virtue of any provision of this Plan. The Bank’s obligation hereunder shall be an unfunded and unsecured promise
to pay money in the future. In the event that the Bank purchases an insurance policy insuring the life of the Participant to recover
the cost of providing benefits hereunder, neither the Participant nor the Beneficiary shall have any rights whatsoever in said
policy or the proceeds therefrom.
10.6
Unclaimed
Benefits
. The Participant shall keep the Bank informed of the Participant’s current address and the current address of
the Beneficiary. If the location of the Participant is not made known to the Bank within three years after the date upon which
any payment of any benefits may first be made, the Bank shall delay payment of the Participant’s benefit payment(s) until
the location of the Participant is made known to the Bank; however, the Bank shall only be obligated to hold such benefit payment(s)
for the Participant until the expiration of three (3) years. Upon expiration of the three (3) year period, the Bank may discharge
its obligation by payment to the Beneficiary. If the location of the Beneficiary is not made known to the Bank by the end of an
additional two (2) month period following expiration of the three (3) year period, the Bank may discharge its obligation by payment
to the Participant’s estate. If there is no estate in existence at such time or if such fact cannot be determined by the
Bank, the Participant and Beneficiary shall thereupon forfeit all rights to any benefits provided under this Plan.
10.7
Removal
.
Notwithstanding anything in this Plan to the contrary, the Bank shall not distribute any benefit under this Plan if the Participant
is subject to a final
removal or prohibition order issued pursuant
to Section 8(e) of the Federal Deposit Insurance Act. Furthermore, any payments made to the Participant pursuant to this Plan shall,
if required, comply with 12 U.S.C. 1828, FDIC Regulation 12 CFR Part 359 and any other regulations or guidance promulgated thereunder.
10.8
Notice
.
Any notice, consent or demand required or permitted to be given to the Bank or Administrator under this Plan shall be sufficient
if in writing and hand-delivered or sent by registered or certified mail to the Bank’s principal business office. Any notice
or filing required or permitted to be given to the Participant or Beneficiary under this Plan shall be sufficient if in writing
and hand-delivered or sent by mail to the last known address of the Participant or Beneficiary, as appropriate. Any notice shall
be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark or on the receipt
for registration or certification.
10.9
Headings
and Interpretation
. Headings and sub-headings in this Plan are inserted for reference and convenience only and shall not be
deemed part of this Plan. Wherever the fulfillment of the intent and purpose of this Plan requires and the context will permit,
the use of the masculine gender includes the feminine and use of the singular includes the plural.
10.10
Alternative
Action
. In the event it becomes impossible for the Bank or the Administrator to perform any act required by this Plan due to
regulatory or other constraints, the Bank or Administrator may perform such alternative act as most nearly carries out the intent
and purpose of this Plan and is in the best interests of the Bank, provided that such alternative act does not violate Code Section
409A.
10.11
Coordination
with Other Benefits
. The benefits provided for the Participant or the Beneficiary under this Plan are in addition to any other
benefits available to the Participant under any other plan or program of the Bank. This Plan shall supplement and shall not supersede,
modify, or amend any other such plan or program except as may otherwise be expressly provided herein.
10.12
Inurement
.
This Plan shall be binding upon and shall inure to the benefit of the Bank, its successor and assigns, and the Participant, the
Participant’s successors, heirs, executors, administrators, and the Beneficiary.
10.13
Tax
Withholding
. The Bank may make such provisions and take such action as it deems necessary or appropriate for the withholding
of any taxes which the Bank is required by any law or regulation to withhold in connection with any benefits under the Plan. The
Participant shall be responsible for the payment of all individual tax liabilities relating to any benefits paid hereunder.
10.14
Aggregation
of Plan
. If the Bank offers other account balance deferred compensation arrangements in addition to this Plan, this Plan and
those arrangements shall be treated as a single plan to the extent required under Code Section 409A.
IN WITNESS WHEREOF, a representative
of the Bank has executed this Plan as indicated below:
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Bank:
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By:
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/s/
Randal L. Rabon
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Its:
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Chairman
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BANK ‘34
DIRECTOR DEFERRED FEE PLAN
fEE
Deferral Election form
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Amount of Deferral
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Duration
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[Initial and Complete One]
____ I elect
to defer ______% of my Fees.
____ I elect
to defer $______________ of my Fees.
____ I elect
not to defer any of my Fees.
|
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[Initial and Complete One]
____ For ____ year(s)
____ For all future
Plan Years
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Signature: ________________________________
Printed Name: ________________________________
Date: ________________________________
Received by the Administrator this _____ day of ____________________,
201__.
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By:
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_________________________________
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Title:
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_________________________________
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BANK ‘34
DIRECTOR DEFERRED FEE PLAN
Beneficiary Designation
I designate the following
as Beneficiary under this Plan:
Primary
____________________________________________________________________________________ _______%
____________________________________________________________________________________ _______%
Contingent
____________________________________________________________________________________ _______%
____________________________________________________________________________________ _______%
I understand that I
may change this beneficiary designation by delivering a new written designation to the Administrator, which shall be effective
only upon receipt by the Administrator prior to my death. I further understand that the designation will be automatically revoked
if the Beneficiary predeceases me or if I have named my spouse as Beneficiary and our marriage is subsequently dissolved.
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Signature:
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_______________________________
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Date:
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_______
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SPOUSAL CONSENT (Required only if Administrator
requests and someone other than spouse is named Beneficiary)
I consent to the beneficiary designation
above. I also acknowledge that if I am named Beneficiary and my marriage is subsequently dissolved, the beneficiary designation
will be automatically revoked.
Spouse Name: _______________________________
Signature: _______________________________ Date:
________
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Received by the Administrator this ________ day of ___________________,
20__
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By:
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_________________________________
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Title:
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_________________________________
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BANK ‘34
DIRECTOR DEFERRED FEE PLAN
Distribution Election Form
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Method of Payment
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Benefit
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Lump Sum
(Initial)
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Equal Monthly Installments for the
number of months shown
(initial and indicate number of months)
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Normal Retirement Benefit
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Early Termination Benefit
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Disability Benefit
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Change in Control Benefit
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NOTE: Changes made to the distribution
methods originally selected are discouraged. Any changes to the elections made on this form are subject to the restrictions found
in Section 409A of the Internal Revenue Code and detailed in Section 5.14 of the Plan.
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Signature:
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________________________________
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Name:
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________________________________
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Date:
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________________________________
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Received by the Administrator this _____ day of ____________________,
201__.
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By:
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_________________________________
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Title:
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_________________________________
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