Attached files
FORM
OF
ENFIELD
FEDERAL SAVINGS AND LOAN ASSOCIATION AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
AMENDED
AND RESTATED AS OF JANUARY 1, 2008
Enfield
Federal Savings and Loan Association
Amended
and Restated Supplemental Executive Retirement Plan
Table
of Contents
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Article
I
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Introduction
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1
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Article
II
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Definitions
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1
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Article
III
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-
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Participation
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5
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Article
IV
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-
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Benefits
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5
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Article
V
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Accounts
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7
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Article
VI
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Supplemental
Benefit Payments
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8
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Article
VII
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Claims
Procedures
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9
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Article
VIII
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Amendment
and Termination
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10
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Article
IX
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General
Provisions
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11
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Article
I
Introduction
Section
1.01 Purpose, Design and
Intent.
(a) The
purpose of the Enfield Federal Savings and Loan Association (“Association”)
Amended and Restated Supplemental Executive Retirement Plan (the “Plan”) is to
assist the Association and its Affiliates (as defined in Section 2.01(a) of the
Plan), in retaining the services of key employees, to induce such employees to
use their best efforts to enhance the business of the Association and its
Affiliates, and to provide certain supplemental retirement benefits to such
employees.
(b) The
Plan, in relevant part, is intended to constitute an unfunded “excess benefit
plan” as defined in Section 3(36) of the Employee Retirement Income Security Act
of 1974, as amended. The Plan is designed, in large part, to provide certain key
employees with retirement benefits that would have been payable under the
various tax-qualified retirement plans sponsored by the Association and/or its
Affiliates but for the limitations placed on the benefits and contributions
under such plans by the provisions of the Internal Revenue Code of 1986, as
amended.
(c) The
Association previously implemented a certain Supplemental Executive Retirement
Plan effective as of January 1, 2002 (the “Prior SERP”). This Plan
amends and restates the Prior SERP in its entirety as hereinafter set forth in
order to comply with the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”) and the final regulations issued by the
IRS, with none of the benefits payable under this Plan to be deemed
grandfathered for purposes of Section 409A of the Code. The Plan has
been and shall continue to be operated in compliance with Section 409A of the
Code. The provisions of the Plan shall be construed to effectuate
such intentions.
Article
II
Definitions
Section
2.01 Definitions. In
this Plan, whenever the context so indicates, the singular or the plural number
and the masculine or feminine gender shall be deemed to include the other, the
terms “he,” “his,” and “him,” shall refer to a Participant or Beneficiary, as
the case may be, and, except as otherwise provided, or unless the context
otherwise requires, the capitalized terms shall have the following
meanings:
(a) “Affiliate”
means any corporation, trade or business, which, at the time of reference, is
together with the Association, a member of a controlled group of corporations, a
group of trades or businesses (whether or not incorporated) under common
control, or an affiliated service group, as described in Sections 414(b),
414(c), and 414(m) of the Code, respectively, or any other organization treated
as a single employer with the Association under Section 414(o) of the Code;
provided, however, that, where the context so requires, the term “Affiliate”
shall be construed to give full effect to the provisions of Sections 409(1) (4)
and 415(h) of the Code.
(b) “Applicable
Limitations” means any of the following:
(i)
the maximum limitations on annual additions to a tax-qualified
defined contribution plan under Section 415(c) of the Code;
(ii)
the maximum limitation on the annual amount of
compensation that may, under Section 401(a)(17) of the Code, be taken into
account in determining contributions to and benefits under tax-qualified
plans;
(iii) the
maximum limitation on employee elective deferrals as a result of the application
of the discrimination standards under Section 401(k) of the Code;
and
(iv) the
maximum limitation on matching contributions as a result of the application of
the nondiscrimination test under Section 401(m) of the Code.
(c) “Association”
means Enfield Federal Savings and Loan Association, and its
successors.
(d) “Savings
Plan” means the Enfield Federal Savings and Loan Association Employees’ Savings
& Profit Sharing Plan, as amended from time to time.
(e) “Board
of Directors” means the Board of Directors of the Association.
(f) “Change in Control”
shall mean (1) a change in ownership of the Company or the Association under
paragraph (i) below, or (2) a change in effective control of the Company or the
Association under paragraph (ii) below, or (3) a change in the ownership of a
substantial portion of the assets of the Company or the Association under
paragraph (iii) below:
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i.
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Change in the
ownership of the Company or Association. A change in
the ownership of the Company or Association shall occur on the date that
any one person, or more than one person acting as a group (as defined in
Treasury Regulation Section 1.409A-3(i)(5)(v)(B)), acquires ownership of
stock of the corporation that, together with stock held by such person or
group, constitutes more than 50% of the total fair market value or total
voting power of the stock of such corporation;
or
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ii.
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Change in the
effective control of the Company or Association. A change in the
effective control of the Company or Association shall occur on the date
that either (i) any one person, or more than one person acting as a
group (as defined in Treasury Regulation Section 1.409A-3(i)(5)(vi)(D)),
acquires (or has acquired during the 12-month period ending on the date of
the most recent acquisition by such person or persons) ownership of stock
of the Company or Association possessing 30% or more of the total voting
power of the stock of the Company or Association; or (ii) a majority of
members of the Company’s or Association’s board of Directors is replaced
during any 12-month period by Directors whose appointment or election is
not endorsed by a majority of the members of the corporation’s board of
Directors prior to the date of the appointment or election, provided that
this sub-section (ii) is inapplicable where a majority shareholder of the
Company or Association is another corporation;
or
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iii.
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Change in the
ownership of a substantial portion of the Company’s or Association’s
assets. A change in the ownership of a substantial
portion of the Company’s or Association’s assets shall occur on the date
that any one person, or more than one person acting as a group (as defined
in Treasury Regulation Section 1.409A-3(i)(5)(vii)(C)), acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by such person or persons) assets from the Company or
Association that have a total gross fair market value equal to or more
than 40% of the total gross fair market value of all of the assets of the
corporation immediately prior to such acquisition or
acquisitions. For this purpose, gross fair market value means
the value of the assets of the corporation, or the value of the assets
being disposed of, determined without regard to any liabilities associated
with such assets. There is no Change in Control event under
this paragraph (iii) when there is a transfer to an entity that is
controlled by the shareholders of the transferring corporation immediately
after the transfer.
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For all purposes hereunder, the
definition of Change in Control shall be construed to be consistent with the
requirements of Treasury Regulation Section 1.409A-3(i)(5), except to the extent
modified herein.
Notwithstanding
anything in this Plan to the contrary, in no event shall (1) the conversion of
the Association from mutual to stock form (including without limitation, through
the formation of a stock holding company), (2) the reorganization of the
Association into the mutual holding company form of organization, or (3) a
merger or combination of the Association with or into Valley Bank or any other
affiliate of the Company or a similar merger or combination of the Association
into Valley Bank or any of its affiliates, or any other type of corporate
reorganization involving the Association or any other affiliate of the Company
constitute a “Change in Control” for purposes of this Plan.
(g) “Code”
means the Internal Revenue Code of 1986, as amended.
(h)
“Committee” means the person(s) designated by the Board of Directors, pursuant
to Section 9.02 of the Plan, to administer the Plan.
(i)
“Common Stock” means the common stock of the
Company.
(j)
“Company” means New England Bancshares, Inc., a
federally chartered corporation and its successors.
(k) “Disability”
means the Participant (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (ii) is, by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a period of not less
than three months under an accident and health plan covering employees of the
Association.
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(l)
“Eligible Individual” means any Employee of the
Association or an Affiliate who participates in the ESOP, or the Savings Plan,
as the case may be, and whom the Board of Directors determines is one of a
“select group of management or highly compensated employees,” as such phrase is
used for purposes of Sections 101, 201 and 301 of ERISA.
(m) “Employee”
means any person employed by the Association or an Affiliate.
(n) “Employer”
means the Association or its Affiliate that employs the Employee.
(o) “ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended.
(p) “ESOP”
means the Enfield Federal Savings and Loan Association Employee Stock Ownership
Plan, as amended from time to time.
(q) “ESOP
Acquisition Loan” means a loan or other extension of credit incurred by the
trustee of the ESOP in connection with the purchase of Common Stock on behalf of
the ESOP.
(r)
“ESOP Restoration Benefit” means the benefit credited to a Participant’s
ESOP Restoration Benefit Account pursuant to Section 4.02 of the
Plan.
(s)
“ESOP Restoration Benefit Account” means the account
established by an Employer, pursuant to Section 5.02 of the Plan, with respect
to a Participant’s ESOP Restoration Benefit.
(t)
“ESOP Valuation Date” means any day as of which the investment
experience of the trust fund of the ESOP is determined and individuals’ accounts
under the ESOP are adjusted accordingly.
(u)
“Effective Date” means January 1, 2008.
(v)
“Participant” means an Eligible Individual who is entitled to
benefits under the Plan.
(w) “Plan”
means this Enfield Federal Savings and Loan Association Supplemental Executive
Retirement Plan.
(x)
“Separation from Service” means the Participant’s death, retirement
or other termination of employment with the Association within the meaning of
Code Section 409A. No Separation from Service shall be deemed to
occur due to military leave, sick leave or other bona fide leave of absence if
the period of such leave does not exceed six months or, if longer, so long as
the Participant’s right to reemployment is provided by law or
contract. If the leave exceeds six months and the Participant’s right
to reemployment is not provided by law or by contract, then the Participant
shall have a Separation from Service on the first date immediately following
such six-month period.
Whether a
termination of employment has occurred is determined based on whether the facts
and circumstances indicate that the Employer and Participant reasonably
anticipated that no further services would be performed after a certain date or
that the level of bona fide services the employee would perform after such date
(whether as an employee or as an independent contractor) would permanently
decrease to no more than 20% of the average level of bona fide
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services
performed over the immediately preceding 36 months (or such lesser period of
time in which the Participant performed services for the
Association). The determination of whether a Participant has had a
Separation from Service shall be made by applying the presumptions set forth in
the Treasury Regulations under Code Section 409A.
(y)
“Specified Employee” means any Participant who also
satisfies the definition of “key employee” as such term is defined in Code
Section 416(i) (without regard to paragraph 5 thereof). In the event
a Participant is a Specified Employee, no distribution shall be made to such
Participant upon Separation from Service (other than due to death or Disability)
prior to the first day of the seventh month following Separation from
Service.
(z)
“Supplemental ESOP Account” means an account
established by an Employer, pursuant to Section 5.01 of the Plan, with respect
to a Participant’s Supplemental ESOP Benefit.
(aa) “Supplemental
ESOP Benefit” means the benefit credited to a Participant’s Supplemental ESOP
Account pursuant to Section 4.01 of the Plan.
(bb) “Supplemental
Savings Account” means an account established by an Employer, pursuant to
Section 5.05 of the Plan, with respect to a Participant’s Supplemental Savings
Benefit.
(cc) “Supplemental
Savings Benefit” means the benefit credited to a Participant’s Supplemental
Savings Account pursuant to Section 4.05 of the Plan.
Article
III
Participation
Section
3.01 Participation.
(a) An
Eligible Individual shall become a Participant in the Plan upon designation as
such by the Board of Directors. An Eligible Individual whom the Board of
Directors designates as a Participant in the Plan shall commence participation
as of the date established by the Board of Directors. The Board of Directors
shall establish an Eligible Individual’s date of participation at the same time
it designates the Eligible Individual as a Participant in the Plan.
(b) The
Board of Directors may designate an Eligible Individual as a Participant with
respect to any or all supplemental benefits provided for under Article IV of the
Plan.
Article
IV
Benefits
Section
4.01 Supplemental ESOP
Benefit.
As of the
last day of each plan year of the ESOP, the Employer shall credit a
Participant’s Supplemental ESOP Account with a Supplemental ESOP Benefit equal
to the excess of (a) over (b), where:
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(a) equals
the annual contributions made by the Employer and/or the number of shares of
Common Stock released for allocation in connection with the repayment of an ESOP
Acquisition Loan, together with any forfeitures, earnings or dividends, that
would otherwise be allocated to the accounts of the Participant under the ESOP
for the applicable plan year if the provisions of the ESOP were administered
without regard to any of the Applicable Limitations; and
(b) equals
the annual contributions made by the Employer and/or the number of shares of
common stock released for allocation in connection with the repayment of an ESOP
Acquisition Loan, together with any forfeitures, earnings or dividends, that are
actually allocated to the accounts of the Participant under the ESOP for that
particular plan year after giving effect to any reduction of such benefits
required by, or as the result of, the limitations imposed by any of the
Applicable Limitations.
Section
4.02 ESOP Restoration
Benefit.
(a) Upon
a Change in Control, the Employer shall credit to the Participant’s ESOP
Restoration Benefit Account an ESOP Restoration Benefit equal to (i) less (ii),
the result of which is multiplied by (iii), where:
(i)
Equals the total number of shares of Common Stock
acquired with the proceeds of all ESOP Acquisition Loans (together with any
dividends, cash proceeds, or other medium related to such ESOP Acquisition
Loans) that would have been allocated or credited for the benefit of the
Participant under the ESOP and/or this Plan, as the case may be, had the
Participant continued in the employ of the Employer through the first ESOP
Valuation Date following the last scheduled payment of principal and interest on
all ESOP Acquisition Loans outstanding at the time of the Change in Control;
and
(ii) Equals
the total number of shares of Common Stock acquired with the proceeds of all
ESOP Acquisition Loans (together with any dividends, cash proceeds, or other
medium related to such ESOP acquisition Loans) and allocated for the benefit of
the Participant under the ESOP and/or this Plan as of the first ESOP Valuation
Date following the Change in Control; and
(iii) Equals
the fair market value of the Common Stock immediately preceding the Change in
Control:
(b) For
purposes of clause (i) of subsection (a) of this Section 4.02, the total number
of shares of Common Stock shall be determined by multiplying the sum of (i) and
(ii) by (iii), where:
(i)
equals the average of the total shares of Common
Stock acquired with the proceeds of an ESOP Acquisition Loan and allocated for
the benefit of the Participant under the ESOP as of three most recent ESOP
Valuation Dates preceding the Change in Control (or lesser number if the
Participant has not participated in the ESOP for three full years),
(ii)
equals the average number of shares of
Common Stock credited to the Participant’s Supplemental ESOP Account for the
three most recent plan years of the
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ESOP
(such that the three recent plan years coincide with the three most recent ESOP
Valuation Dates referred to in (i) above); and
(iii)
equals the original number of scheduled annual payments on the ESOP Acquisition
Loans.
Section
4.03 Supplemental Savings
Benefit.
A
Participant’s Supplemental Savings Benefit under the Plan shall be equal to the
excess of (a) over (b), where:
(a) equals
the matching contributions that would otherwise be allocated to an account of
the Participant under the Savings Plan for a particular year if the Participant
were deferring the maximum amount permissible under the Savings Plan (either by
operation or by the terms of the plan) and the provisions of the Savings Plan
were administered without regard to any of the Applicable Limitations;
and
(b) equals
the matching contributions made by the Employer that are actually allocated to
an account of the Participant under the provisions of the Savings Plan for that
particular year after giving effect to any reduction of such allocation required
by any of the Applicable Limitations.
The
Employer shall credit the Participant’s Supplemental Savings Benefit to a
Supplemental Savings Benefit Account pursuant to Section 5.03 of the
Plan.
Article
V
Accounts
Section
5.01 Supplemental ESOP Benefit
Account.
For each
Participant who is credited with a benefit pursuant to Section 4.01 of the Plan,
the Employer shall establish, as a memorandum account on its books, a
Supplemental ESOP Account. Each year, the Committee shall credit to the
Participant’s Supplemental ESOP Account the amount of benefits determined under
Section 4.01 of the Plan for that year. The Employer shall credit the account
with an amount equal to the appropriate number of shares of Common Stock or
other medium of contribution that would have otherwise been made to the
Participant’s accounts under the ESOP but for the Applicable Limitations. Shares
of Common Stock shall be valued under this Plan in the same manner as under the
ESOP. Cash and other (non-stock) contributions credited to a Participant’s
Supplemental ESOP Account shall be credited annually with interest at a rate
equal to the investment rate of return provided to the Participant’s non-stock
accounts under the ESOP.
Section
5.02 ESOP Restoration Benefit
Account.
The
Employer shall establish, as a memorandum account on its books, an ESOP
Restoration Benefit Account. In the event of a Change in Control, the Committee
shall credit to the Participant’s ESOP Restoration Benefit Account the amount of
benefits determined under Section 4.02 of the Plan. The Committee shall credit
the account with an amount equal to the appropriate number of shares of Common
Stock or other medium of contribution that would have otherwise been made to the
Participant’s accounts under the ESOP but for the occurrence of the Change in
Control. Shares of Common Stock shall be valued under this Plan in the same
manner as under the ESOP. Cash and other (non-stock) contributions credited to a
Participant’s ESOP Restoration Benefit Account shall be credited annually with
interest at a rate equal to the investment rate of return provided to the
Participant’s non-stock accounts under the ESOP.
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Section
5.03 Supplemental Savings
Account.
For each
Participant who is credited with a benefit pursuant to Section 4.03 of the Plan,
the Employer shall establish, as a memorandum account on its books, a
Supplemental Savings Account. Each year the Employer will credit to the
Participant’s Supplemental Savings Account the amount of benefits determined
under Section 4.03 of the Plan. Contributions credited to a Participant’s
Supplemental Savings Account shall be credited monthly with interest at a rate
equal to the investment rate of return provided to the Participant’s matching
contribution account under the Basic Savings Plan.
Article
VI
Supplemental
Benefit Payments
Section
6.01 Incidents of Supplemental
Benefit Payments. Benefits under this Section 6.01 shall be payable to
the Participant in a lump sum within 90 days following the first to occur
of:
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(a)
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the
Participant’s “Separation from Service,” other than due to death or
Disability;
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(b)
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the
Participant’s Disability;
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(c)
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the
Participant’s death; or
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(d)
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a
Change in Control of the Association or the
Company.
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Notwithstanding
anything herein to the contrary, if the Participant is a Specified Employee and
the distribution under this Article VI is due to the Participant’s Separation
from Service, solely to the extent necessary to avoid penalties under Code
Section 409A, the distribution (or any part thereof) shall be delayed until the
first day of the seventh month following Separation from Service.
Section
6.02 Vesting.
(a) A
Participant shall have a non-forfeitable right to the Supplemental ESOP Benefit
credited to him under this Plan in the same percentage as he has to benefits
allocated to him under the ESOP at the time the benefits become distributable to
him under the ESOP.
(b) A
Participant shall always have a fully non-forfeitable right to the ESOP
Restoration Benefit credited to him under this Plan.
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(c) Participant
shall have a non-forfeitable right to his Supplemental Savings Benefit under
this Plan in the same percentage as he has to his benefits under the Savings
Plan at the time the benefits become distributable to him under the Savings
Plan.
Section
6.03 Hardships.
Notwithstanding
the foregoing, the Committee may, at its sole discretion, allow for the early
payment of a Participant’s Supplemental ESOP Benefit and/or Supplemental Savings
Account in the event of an “unforeseeable emergency.” An “unforeseeable
emergency” means a severe financial hardship to the Participant resulting from
(1) an illness or accident of the Participant, the Participant's spouse, or a
dependent of the Participant (within the meaning of Section 152(a) of the Code),
(2) loss of the Participant's property due to casualty, or (3) other
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Participant. The amount of such
distribution may not exceed the amounts necessary to satisfy the
emergency. The circumstances that will constitute an “Unforeseeable
Emergency” will depend on the facts of each case, but, in any case, payment may
not be made in the event that such hardship is or may be relieved:
(a) through
reimbursement or compensation by insurance or otherwise;
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(b)
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by
liquidation of the Participant’s assets, to the extent that liquidation of
such assets would not itself cause severe financial hardship;
or
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(c) by
cessation of deferrals under the Plan.
Article
VII
Claims
Procedures
Section
7.01 Claims
Reviewer.
For
purposes of handling claims with respect to this Plan, the “Claims Reviewer”
shall be the Committee, unless the Committee designates another person or group
of persons as Claims Reviewer.
Section
7.02 Claims
Procedure.
(a) An
initial claim for benefits under the Plan must be made by the Participant or his
beneficiary or beneficiaries in accordance with the terms of this Section
7.02.
(b) Not
later than ninety (90) days after receipt of such a claim, the Claims Reviewer
will render a written decision on the claim to the claimant, unless special
circumstances require the extension of such 90-day period. If such extension is
necessary, the Claims Reviewer shall provide the Participant or the
Participant’s beneficiary or beneficiaries with written notification of such
extension before the expiration of the initial 90-day period. Such notice shall
specify the reason or reasons for the extension and the date by which a final
decision can be expected. In no event shall such extension exceed a period of
ninety (90) days from the end of the initial 90-day period.
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(c) In
the event the Claims Reviewer denies the claim of a Participant or any
beneficiary in whole or in part, the Claims Reviewer’s written notification
shall specify, in a manner calculated to be understood by the claimant, the
reason for the denial; a reference to the Plan or other document or form that is
the basis for the denial; a description of any additional material or
information necessary for the claimant to perfect the claim; an explanation as
to why such information or material is necessary; and an explanation of the
applicable claims procedure.
(d) Should
the claim be denied in whole or in part and should the claimant be dissatisfied
with the Claims Reviewer’s disposition of the claimant’s claim, the claimant may
have a full and fair review of the claim by the Committee upon written request
submitted by the claimant or the claimant’s duly authorized representative and
received by the Committee within sixty (60) days after the claimant receives
written notification that the claimant’s claim has been denied. In connection
with such review, the claimant or the claimant’s duly authorized representative
shall be entitled to review pertinent documents and submit the claimant’s views
as to the issues, in writing. The Committee shall act to deny or accept the
claim within sixty (60) days after receipt of the claimant’s written request for
review unless special circumstances require the extension of such 60-day period.
If such extension is necessary, the Committee shall provide the claimant with
written notification of such extension before the expiration of such initial
60-day period. In all events, the Committee shall act to deny or accept the
claim within 120 days of the receipt of the claimant’s written request for
review. The action of the Committee shall be in the form of a written notice to
the claimant and its contents shall include all of the requirements for action
on the original claim.
(e) In
no event may a claimant commence legal action for benefits the claimant believes
are due the claimant until the claimant has exhausted all of the remedies and
procedures afforded the claimant by this Article VII.
Article
VIII
Amendment
and Termination
Section
8.01 Amendment of the
Plan.
The
Company may from time to time and at any time amend the Plan; provided, however,
that such amendment may not adversely affect the rights of any Participant or
beneficiary with respect to any benefit under the Plan to which the Participant
or beneficiary may have previously become entitled prior to the effective date
of such amendment without the consent of the Participant or beneficiary. The
Committee shall be authorized to make minor or administrative changes to the
Plan, as well as amendments required by applicable federal or state law (or
authorized or made desirable by such statutes); provided, however, that such
amendments must subsequently be ratified by the Board of Directors.
Section
8.02 Plan Termination.
Subject to the requirements of Code Section 409A, in the event of complete
termination of the Plan, the Plan shall cease to operate and the Employer shall
pay out to the Participant his benefit as if the Participant had terminated
employment as of the effective date of the complete termination. Such
complete termination of the Agreement shall occur only under the following
circumstances and conditions:
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(i)
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The
Employer may terminate the Plan within 12 months of a corporate
dissolution taxed under Code Section 331, or with approval of a bankruptcy
court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the amounts
deferred under the Plan are included in the Participant’s gross income in
the latest of (i) the calendar year in which the Plan terminates; (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.
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(ii)
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The
Board may terminate the Plan by Board action taken within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Plan shall only be treated as terminated if all
substantially similar arrangements sponsored by the Employer are
terminated so that the Participant and all participants under
substantially similar arrangements are required to receive all amounts of
compensation deferred under the terminated arrangements within 12 months
of the date of the termination of the arrangements. For these
purposes, “Change in Control” shall be defined in accordance with the
Treasury Regulations under Code Section
409A.
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(iii)
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The
Board may terminate the Plan provided that (A) the termination and
liquidation does not occur proximate to a downturn in the financial health
of the Association or Company, (B) all arrangements sponsored by the
Association that would be aggregated with this Plan under Treasury
Regulations Section 1.409A-1(c) if the Participant covered by this Plan
was also covered by any of those other arrangements are also terminated;
(C) no payments other than payments that would be payable under the terms
of the arrangement if the termination had not occurred are made within 12
months of the termination of the arrangement; (D) all payments are made
within 24 months of the termination of the arrangements; and (E) the
Association does not adopt a new arrangement that would be aggregated with
any terminated arrangement under Treasury Regulations Section 1.409A-1(c)
if the Participant participated in both arrangements, at any time within
three years following the date of termination of the
arrangement.
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Article
IX
General
Provisions
Section
9.01 Unfunded, Unsecured Promise
to Make Payments in the Future.
The right
of a Participant or any beneficiary to receive a distribution under this Plan
shall be an unsecured claim against the general assets of the Company or its
Affiliates and neither a Participant nor his designated beneficiary or
beneficiaries shall have any rights in or against any amount credited to any
account under this Plan or any other assets of the Company or an Affiliate. The
Plan at all times shall be considered entirely unfunded both for tax purposes
and for purposes of Title I of ERISA. Any funds invested hereunder shall
continue for all purposes to
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be part
of the general assets of the Company or an Affiliate and available to its
general creditors in the event of bankruptcy or insolvency. Accounts under this
Plan and any benefits which may be payable pursuant to this Plan are not subject
in any manner to anticipation, sale, alienation, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors of a Participant or a
Participant’s beneficiary. The Plans constitute a mere promise by the Company or
Affiliate to make benefit payments in the future. No interest or right to
receive a benefit may be taken, either voluntarily or involuntarily, for the
satisfaction of the debts of, or other obligations or claims against, such
Participant or beneficiary, including claims for alimony, support, separate
maintenance and claims in bankruptcy proceedings.
Section
9.02 Committee as Plan
Administrator.
(a) The
Plan shall be administered by the Committee designated by the Board of
Directors.
(b) The
Committee shall have the authority, duty and power to interpret and construe the
provisions of the Plan as it deems appropriate. The Committee shall have the
duty and responsibility of maintaining records, making the requisite
calculations and disbursing the payments hereunder. In addition, the Committee
shall have the authority and power to delegate any of its administrative duties
to employees of the Association or Affiliate, as they may deem appropriate. The
Committee shall be entitled to rely on all tables, valuations, certificates,
opinions, data and reports furnished by any actuary, accountant, controller,
counsel or other person employed or retained by the Company with respect to the
Plan. The interpretations, determination, regulations and calculations of the
Committee shall be final and binding on all persons and parties
concerned.
Section
9.03 Expenses.
Expenses
of administration of the Plan shall be paid by the Company or an
Affiliate.
Section
9.04 Statements.
The
Committee shall furnish individual annual statements of accrued benefits to each
Participant, or current beneficiary, in such form as determined by the Committee
or as required by law.
Section
9.05 Rights of Participants and
Beneficiaries.
(a) The
sole rights of a Participant or beneficiary under this Plan shall be to have
this Plan administered according to its provisions, to receive whatever benefits
he or she may be entitled to hereunder.
(b) Nothing
in the Plan shall be interpreted as a guaranty that any funds in any trust which
may be established in connection with the Plan or assets of the Company or an
Affiliate will be sufficient to pay any benefit hereunder.
(c) The
adoption and maintenance of this Plan shall not be construed as creating any
contract of employment or service between the Company or an Affiliate and any
Participant or other individual. The Plan shall not affect the right of the
Company or an Affiliate to deal with any
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Participants
in employment or service respects, including their hiring, discharge,
compensation, and conditions of employment or other service.
Section
9.06 Incompetent
Individuals.
The
Committee may from time to time establish rules and procedures which it
determines to be necessary for the proper administration of the Plan and the
benefits payable to a Participant or beneficiary in the event that such
Participant or beneficiary is declared incompetent and a conservator
or other person legally charged with that Participant’s or beneficiary’s care is
appointed. Except as otherwise provided herein, when the Committee determines
that such Participant or beneficiary is unable to manage his or her financial
affairs, the Committee may pay such Participant’s or beneficiary’s benefits to
such conservator, person legally charged with such Participant’s or
beneficiary’s care or institution then contributing toward or providing for the
care and maintenance of such Participant or beneficiary. Any such payment shall
constitute a complete discharge of any liability of the Company or an Affiliate
and the Plan for such Participant or beneficiary.
Section
9.07 Sale, Merger, or
Consolidation of the Employer.
The Plan
shall be continued after a sale of assets of the Company or the Association or a
merger or consolidation of the Company or the Association into or with another
corporation or entity until all benefits have been paid pursuant to the Plan.
Additionally, upon a merger, consolidation or other Change in Control any
amounts credited to Participant’s accounts under the Plan shall be placed in a
grantor trust to the extent not already in such a trust. Any legal fees incurred
by a Participant in determining benefits to which he is entitled under the Plan
following a sale, merger, consolidation or other Change in Control of the
Company or the Association shall be paid by the resulting or succeeding
entity.
Section
9.08 Location of
Participants.
Each
Participant shall keep the Company informed of his current address and the
current address of his designated beneficiary or beneficiaries. The Company
shall not be obligated to search for any person. If such person is not located
within three (3) years after the date on which payment of the Participant’s
benefits payable under this Plan may first be made, payment may be made as
though the Participant or his beneficiary had died at the end of such three-year
period.
Section
9.09 Liability of the Association
and its Affiliates.
Notwithstanding
any provision herein to the contrary, neither the Association nor any individual
acting as an employee or agent of the Association shall be liable to any
Participant, former Participant, beneficiary, or any other person for any claim,
loss, liability or expense incurred in connection with the Plan, unless
attributable to fraud or willful misconduct on the part of the Association or
any such employee or agent of the Association.
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Section
9.10 Governing
Law.
All
questions pertaining to the construction, validity and effect of the Plan shall
be determined in accordance with the laws of the United States and to the extent
not preempted by such laws, by the laws of the State of
Connecticut.
Section
9.11 Required
Provisions.
(a) An
Employer may terminate a Participant’s employment at any time, but any
termination by the Employer, other than Termination for Cause, shall not
otherwise prejudice the participant’s right to compensation or other benefits
under this Plan.
(b) If
a Participant is suspended and/or temporarily prohibited from participating in
the conduct of the Association’s affairs by a notice served under Section
8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. (§)
1818(e)(3) or (g)(1), the Association’s obligations under this Plan shall be
suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the
Association may in its discretion (i) pay the Participant all or part of the
compensation withheld while the obligations were suspended and (ii) reinstate
(in whole or in part) any of the obligations which were suspended.
(c) If
a Participant is removed and/or permanently prohibited from participating in the
conduct of the Association’s affairs by an order issued under Sections 8(e)(4)
or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. (§) 1818(e)(4) or
(g)(1), all obligations of the Association under this Plan shall terminate as of
the effective date of the order.
(d) If
the Association is in default, as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. (§) 1813(x)(1), all obligations of the
Association under this Plan shall terminate as of the date of default; provided,
however, that this paragraph shall not affect any vested rights of the parties
to this Plan.
(e) Any
payments made to a Participant pursuant to this Plan, or otherwise, are subject
to and conditioned upon their compliance with 12 U.S.C. (§) 1828(k) and any
regulations promulgated thereunder.
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Enfield
Federal Savings and Loan Association has adopted this Plan, to be executed by a
designee of the Board and duly attested, on this the 8th day
of December, 2008.
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ENFIELD
FEDERAL SAVINGS AND LOAN
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ASSOCIATION
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For
the Entire Board of Directors
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