As filed with the Securities and Exchange Commission on November 12, 1998
REGISTRATION NO.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
---------------
RFS BANCORP, INC.
(Exact name of registrant as specified in its charter)
UNITED STATES APPLICATION PENDING
State or other jurisdiction of incorporation or
organization) (I.R.S. Employer
Identification No.)
310 BROADWAY
REVERE, MASSACHUSETTS 02151
(781) 284-7777
(Address, including Zip Code, of principal executive offices)
---------------
REVERE FEDERAL SAVINGS & LOAN ASSOCIATION
EMPLOYEES' SAVINGS AND PROFIT SHARING PLAN AND TRUST
(Full title of the Plan)
---------------
James J. McCarthy
President, Chief Executive Officer and Director
RFS Bancorp, Inc.
310 Broadway
Revere, Massachusetts 02151
(781) 284-7777
Copy to:
Richard A. Schaberg, Esq.
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, Suite 800
Washington, D.C. 20006
(202) 347-8400
Name and address, including Zip Code, telephone number and area code, of agent
for service)
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of Securities to be Registered Amount to be Proposed Maximum Proposed Maximum Amount of
Registered(1) Offering Price Per Share(2) Aggregate Offering Price(2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 126,000 shares $10.00 $1,260,000 $351.00
- ------------------------------------------------------------------------------------------------------------------------------------
Plan Participation Interests(3) -- -- -- --
====================================================================================================================================
</TABLE>
(1) Based on the estimated number of shares of common stock of RFS Bancorp,
Inc. under the Revere Federal Savings & Loan Association Employees'
Savings and Profit Sharing Plan and Trust (the "Plan") that may be
purchased with the current assets of the Plan and the projected
contributions to the Plan through December 1, 2003.
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457(h) of the Securities Act of 1933, as amended
(the "Securities Act"), pursuant to which shares of common stock of RFS
Bancorp, Inc. ("RFS") offered pursuant to the Plan are deemed to be
offered at $10 per share, the price at which shares of RFS common stock
are being offered to the public pursuant to the Registration Statement
on Form SB-2 (Registration No. 333-63083).
(3) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests
to be offered pursuant to the employee benefit plan described herein.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
Note: The document containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such document
need not be filed with the Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this registration
statement pursuant to Item 3 of Part II of this form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended ("Securities Act").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with the
Commission by the Registrant (File No.333-63083) are incorporated by reference
in this registration statement:
(1) the Registrant's Registration Statement on Form SB-2 dated September 9,
1998, Registration No. 333-63083, as amended by Pre-Effective Amendment
No. 1 to Form SB-2 dated October 26, 1998, and any amendments thereto;
and
(2) the description of the Registrant's common stock (the "Common Stock")
contained in the Registrant's Registration Statement on Form SB-2 dated
September 9, 1998, Registration No. 333-63083, as amended by
Pre-Effective Amendment No. 1 to Form S-1 dated October 26, 1998, and
any amendments thereto.
All documents filed by the Registrant pursuant to Sections 13, 14, or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") subsequent to
the date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold are incorporated herein by reference, and such
documents shall be deemed to be a part hereof from the date of filing of such
documents.
<PAGE>
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
RFS Bancorp, Inc. will provide without charge to each person to who
this Prospectus is delivered, upon request of any such person, a copy of any or
all of the foregoing documents incorporated herein by reference (other than
exhibits to such documents). Written requests should be directed to: Ms. Judith
E. Tenaglia, Treasurer, Revere Federal Savings, 310 Broadway, Revere,
Massachusetts 02151. Telephone requests may be directed to Ms. Tenaglia at (781)
284-7777.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
12 C.F.R. Section 545.121 of the Regulations issued by the Office of Thrift
Supervision ("OTS Regulations") sets forth the ability of a federal savings &
loan association to indemnify its officers and directors. This section provides
that a savings association shall indemnify any person against whom an action is
brought or threatened because that person is or was a director, officer or
employee of the association for: (1) any amount for which that person become
liable under a judgment if such action; and (2) reasonable costs and expenses,
including reasonable attorney's fees paid or incurred by that person in
defending or settling such action, or in enforcing his or her rights under such
section if he or she attains a favorable judgment in such enforcement action.
Indemnification shall be made to such individuals if (1) final judgements
on the merits is in the individual's favor; or (2) in case of (i) settlement;
(ii) final judgement against the individual, or (iii) final judgement in the
individual's favor, other than on the merits, if a majority of the disinterested
directors determine that the individual was acting in good faith within the
scope of his or her employment or authority as he or she could have reasonable
perceived it under the circumstances and for a purpose her or she could
reasonably have believed under the
-3-
<PAGE>
circumstances was in the best interests of the savings association or its
members. The section also provides that no indemnification may be made unless
the association gives the OTS 60 days notice of its intention to make such
indemnification.
In addition to providing indemnification, under OTS Regulations, a savings
association may obtain insurance to protect in and its officers, directors and
employees from potential losses arising from claims against any of the for
alleged wrongful acts, or wrongful acts, committed in their capacity as
directors, officers or employees. However, the savings association may not
obtain insurance which provides for payment of losses of any person incurred as
a consequence of his or her willful or criminal misconduct.
Section 545.121 of OTS regulations is subject to and qualified by 12 U.S.C
ss. 1821(k) which provides in general that a director or officer of an insured
depository institution may be held personally liable for monetary damages by, on
behalf of, or at the request or direction of the Federal Deposit Insurance
Corporation in certain circumstances.
Article XIII of the Registrant's Bylaws provide that it shall indemnify any
person against whom an action is brought or threatened because that person is or
was a director, officer or employee of the Registrant for: (a) any amount for
which that person becomes liable under a judgment in such action; and (b)
reasonable costs and expenses, including reasonable attorneys' fees, actually
paid or incurred by that person in defending or settling such action, or in
enforcing his or her rights under the indemnification section of the bylaws if
he or she attains a favorable judgment in such enforcement action. These Bylaw
sections mirror OTS regulations as set forth above.
The Bank is party to an Employment Agreement with each of Mr. James J.
McCarthy, Mr. Anthony J. Patti and Ms. Judith Tenaglia ("Senior Executives").
These Employment Agreements provide for the Company to indemnify the Senior
Executives to the fullest extent permitted under federal law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. UNDERTAKINGS.
A. QUALIFICATION OF PLAN. The undersigned Registrant hereby undertakes to
submit the Plan and any amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and
-4-
<PAGE>
has made or will make all changes required by the IRS in order to qualify the
Plan under section 401(a) of the Internal Revenue Code of 1986, as amended.
B. RULE 415 OFFERING. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
C. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
-5-
<PAGE>
D. INCORPORATED ANNUAL AND QUARTERLY REPORTS. The undersigned registrant
hereby undertakes to deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
E. FILING OF REGISTRATION ON FORM S-8. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant for expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
-6-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Revere, Commonwealth of Massachusetts on the 10th day
of November, 1998.
RFS Bancorp, Inc.
(Registrant)
By:/s/ James J. McCarthy
---------------------
James J. McCarthy
President, Chief Executive Officer
and Director
-7-
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James J. McCarthy President, Chief Executive Officer November 10, 1998
- --------------------------- (Principal Executive Officer) and
James J. McCarthy Director
/s/ Anthony J. Patti Executive Vice President, Chief November 10, 1998
- --------------------------- Operating Officer (Principal Financial
Anthony J. Patti Officer) and Director
/s/ Arno P. Bommer Chairman of the Board and Director November 10, 1998
- ---------------------------
Arno P. Bommer
/s/ John J. Verrengia Director November 10, 1998
- ---------------------------
John J. Verrengia
/s/ Ernest F. Becker Director November 10, 1998
- ---------------------------
Ernest F. Becker
/s/Theodore E. Charles Director November 10, 1998
- ---------------------------
Theodore E. Charles
/s/ Anthony R. Conte Director November 10, 1998
- ---------------------------
Anthony R. Conte
/s/ Carmen R. Mattuchio Director November 10, 1998
- ---------------------------
Carmen R. Mattuchio
/s/ J. Michael O'Brien Director November 10, 1998
- ---------------------------
J. Michael O'Brien
/s/ Angelo A. Todisco Director November 10, 1998
- ---------------------------
Angelo A. Todisco
</TABLE>
-8-
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1933, the
directors (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Revere, Commonwealth of
Massachusetts, on November 10, 1998.
Revere Federal Savings & Loan Association
Employees' Savings and Profit Sharing Plan Committee
/s/ James J. McCarthy
----------------------------------------------------
James J. McCarthy
/s/ Anthony J. Patti
----------------------------------------------------
Anthony J. Patti
/s/ Judith E. Tenaglia
----------------------------------------------------
Judith E. Tenaglia
-9-
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1 Revere Federal Savings & Loan Association Employees' Savings and
Profit Sharing Plan, as amended and restated, effective as of
October 1, 1998.
4.2 Trust Agreement Revere Federal Savings and the Bank of New York,
dated effective as of October 1, 1998 for the Revere Federal Savings
& Loan Association Employees' Savings and Profit Sharing Plan.
4.3 Federal Stock Charter of RFS Bancorp, Inc., incorporated by
reference to the Registrant's Registration Statement on Form SB-2,
dated September 9, 1998, as amended, Registration No. 333-63083, and
any amendments thereto.
4.4 By-Laws of RFS Bancorp, Inc., incorporated by reference to the
Registrant's Registration Statement on Form SB-2, dated September 9,
1998, Registration No. 333-63083, and any amendments thereto.
5.1 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to
the legality of the securities being registered.
23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5.1 hereof).
23.2 Consent of Shatswell, MacLeod & Co., P.C.
-10-
EXHIBIT 4.1
-----------
Revere Federal Savings & Loan Association Employees' Savings and Profit Sharing
Plan, as amended and restated, effective as of October 1, 1998.
<PAGE>
ADOPTION AGREEMENT
- --------------------------------------------------------------------------------
FOR REVERE FEDERAL SAVINGS & LOAN ASSOCIATION
EMPLOYEES' SAVINGS & PROFIT SHARING PLAN AND TRUST
CLIENT NO. A13.
[GRAPHIC OMITTED]
<PAGE>
ADOPTION AGREEMENT
FOR
REVERE FEDERAL SAVINGS & LOAN ASSOCIATION
EMPLOYEES' SAVINGS & PROFIT SHARING PLAN AND TRUST
Name of Employer: Revere Federal Savings & Loan Association
-------------------------------------------------------------
Address: 310 Broadway - P.O. Box 509, Revere, MA 02151-0005
-------------------------------------------------------------
Telephone Number: (781) 284-7777 FAX: (781) 289-8066
-------------------------------------------------------------
Contact Person: Mr. James J. McCarthy, President/CEO
-------------------------------------------------------------
Name of Plan: Revere Federal Savings & Loan Association Employees' Savings
------------------------------------------------------------
& Profit Sharing Plan and Trust
-------------------------------
THIS ADOPTION AGREEMENT, upon execution by the Employer and the Trustee, and
subsequent approval by a duly authorized representative of Pentegra Services,
Inc. (the "Sponsor"), together with the Sponsor's Employees' Savings & Profit
Sharing Plan and Trust Agreement (the "Agreement"), shall constitute the Revere
Federal Savings & Loan Association Employees' Savings & Profit Sharing Plan and
Trust (the "Plan"). The terms and provisions of the Agreement are hereby
incorporated herein by this reference; provided, however, that if there is any
conflict between the Adoption Agreement and the Agreement, this Adoption
Agreement shall control.
The elections hereinafter made by the Employer in this Adoption Agreement may be
changed by the Employer from time to time by written instrument executed by a
duly authorized representative thereof; but if any other provision hereof or any
provision of the Agreement is changed by the Employer other than to satisfy the
requirements of Section 415 or 416 of the Internal Revenue Code of 1986, as
amended (the "Code"), because of the required aggregation of multiple plans, or
if as a result of any change by the Employer the Plan fails to obtain or retain
its tax-qualified status under Section 401(a) of the Code, the Employer shall be
deemed to have amended the Plan evidenced hereby and by the Agreement into an
individually designed plan, in which event the Sponsor shall thereafter have no
further responsibility for the tax-qualified status of the Plan. However, the
Sponsor may amend any term, provision or definition of this Adoption Agreement
or the Agreement in such manner as the Sponsor may deem necessary or advisable
from time to time and the Employer and the Trustee, by execution hereof,
acknowledge and consent thereto. Notwithstanding the foregoing, no amendment of
this Adoption Agreement or of the Agreement shall increase the duties or
responsibilities of the Trustee without the written consent thereof.
1
<PAGE>
I. EFFECT OF EXECUTION OF ADOPTION AGREEMENT
The Employer, upon execution of this Adoption Agreement by a duly
authorized representative thereof, (choose 1 or 2):
1. Establishes as a new plan the Revere Federal Savings & Loan
---- Association Employees' Savings & Profit Sharing Plan and Trust,
effective _________________ , 19__ (the "Effective Date").
2. X Amends its existing defined contribution plan and trust (The
---- ---
Financial Institutions Thrift Plan as Adopted by Revere Federal
--------------------------------------------------------------------
Savings & Loan Association ) dated January 1, 1992, in its entirety
--------------------------- ----------------
into the Revere Federal Savings & Loan Association Employees'
Savings & Profit Sharing Plan and Trust, effective October 1, 1998,
-----------------
except as otherwise provided herein or in the Agreement (the
"Effective Date").
II. DEFINITIONS
A. Employer
1. "Employer," for purposes of the Plan, shall mean:
Revere Federal Savings & Loan Association
---------------------------------------------------------------
2. The Employer is (choose whichever may apply):
(a) X A member of a controlled group of corporations under
---- Section 414(b) of the Code.
(b) A member of a group of entities under common control
---- under Section 414(c) of the Code.
(c) A member of an affiliated service group under
---- Section 414(m) of the Code. (d) A corporation.
(e) A sole proprietorship or partnership.
----
(f) A Subchapter S corporation.
----
3. Employer's Taxable Year Ends on ________________.
4. Employer's Federal Taxpayer Identification Number is 04 -2195046.
------------
5. Employer's Plan Number is (enter 3-digit number) 002.
---
B. "Entry Date" means the first day of the (choose 1 or 2):
1. X Calendar month coinciding with or next following the
----- date the Employee satisfies the Eligibility
requirements described in Section III.
2. Calendar quarter (January 1, April 1, July 1, October
----- 1) coinciding with or next following the date the
Employee satisfies the Eligibility requirements
described in Section III.
2
<PAGE>
C. "Member" means an Employee enrolled in the membership of the Plan.
D. "Normal Retirement Age" means (choose 1 or 2):
1. X Attainment of age 65 (select an age not less than 55
----- --
and not greater than 65).
2. ----- Later of: (i) attainment of age 65 or (ii) the fifth
anniversary of the date the Member commenced
participation in the Plan.
E. "Normal Retirement Date" means the first day of the first calendar
month coincident with or next following the date upon which a Member
attains his or her Normal Retirement Age.
F. "Plan Year" means the twelve (12) consecutive month period ending on
12/31 (month/day).
-----
G. "Salary" for benefit purposes under the Plan means (choose 1, 2 or 3):
1. X Total taxable compensation as reported on Form W-2
----- (exclusive of any compensation deferred from a prior
year).
2. Basic Salary only.
-----
3. Basic Salary plus one or more of the following (if 3 is
----- chosen, then choose (a), (b), (c) or (d), whichever
shall apply):
(a) Commissions not in excess of $____________
---
(b) Commissions to the extent that Basic Salary
--- plus Commissions do not exceed $___________
(c) Overtime
---
(d) Overtime and bonuses
---
Note: Member pre-tax contributions to a Section 401(k) plan
are always included in Plan Salary.
Member pre-tax contributions to a Section 125 cafeteria
plan are also to be included in Plan Salary, unless the
Employer elects to exclude such amounts by checking
this line ____.
III. ELIGIBILITY REQUIREMENTS
A. All Employees shall be eligible to participate in the Plan in
accordance with the provisions of Article II of the Plan, except the
following Employees shall be excluded (choose whichever shall apply):
1. Employees who have not attained age 21.
-----
3
<PAGE>
2. X Employees who have not, during the ___ consecutive
----- month period (1-11, 12 or 24) beginning with an
Employee's Date of Employment, Date of Reemployment or
any anniversary thereof.
Note: Employers which permit Members to make pre-tax
elective deferrals to the Plan (see V.A.3.) may
not elect a 24 month eligibility period.
3. X Employees included in a unit of Employees covered by a
----- collective bargaining agreement, if retirement benefits
were the subject of good faith bargaining between the
Employer and Employee representatives.
4. X Employees who are nonresident aliens and who receive no
----- earned income from the Employer which constitutes
income from sources within the United States.
5. Employees included in the following job
----- classifications:
(a) Hourly Employees
----
(b) Salaried Employees
----
6. Employees of the following employers which are
----- aggregated under Section 414(b), 414(c) or 414(m) of
the Code:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
Note: If no entries are made above, all Employees shall be eligible to
participate in the Plan on the later of: (i) the Effective Date or
(ii) the first day of the calendar month or calendar quarter (as
designated by the Employer in Section II.D.) coinciding with or
immediately following the Employee's Date of Employment or, as
applicable, Date of Reemployment.
B. Such Eligibility Computation Period established above shall be
applicable to (choose 1 or 2):
1. X Both present and future Employees.
----
2. Future Employees only.
----
C. Such Eligibility requirements established above shall be (choose 1
or 2):
1. Applied to the designated Employee group on and after the
---- Effective Date of the Plan.
2. Waived for the _____ consecutive monthly period (may not
---- exceed 12) beginning on the Effective Date of the Plan.
4
<PAGE>
IV. HOURS OF EMPLOYMENT AND PRIOR EMPLOYMENT CREDIT
A. The number of Hours of Employment with which an Employee or Member
is credited shall be (choose 1 or 2):
1. X The actual number of Hours of Employment. (Hour of Service
---- Method)
2. 190 Hours of Employment for every month of Employment.
---- (Equivalency Method)
Note: This election is relevant if you selected an eligibility
requirement under III.A.2. or a vesting schedule under
VIII.A. other than immediate vesting.
B. Prior Employment Credit:
---- Employment with the following entity or entities shall be
included for eligibility and vesting purposes:
Note: If this Plan is a continuation of a Predecessor Plan,
service under the Predecessor Plan shall be counted as
Employment under this Plan.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
V. CONTRIBUTIONS
Note: Annual Member pre-tax elective deferrals, Employer matching
contributions, Employer basic contributions, Employer
supplemental contributions, Employer profit sharing contributions
and Employer Qualified Non-Elective contributions, in the
aggregate, may not exceed 15% of all Members' Salary (excluding
from Salary Member pre-tax elective deferrals).
A. Employee Contributions (fill in 1 and/or 6 if applicable; choose 2 or
3; 4 or 5):
1. X The maximum amount of monthly contributions a Member may make
---- to the Plan is 15 % (1-20) of the Member's monthly Salary.
----
2. X A Member may make pre-tax elective deferrals to the Plan,
---- based on multiples of 1% of monthly Salary.
3. A Member may not make pre-tax elective deferrals to the Plan.
----
4. A Member may make after-tax contributions to the Plan, based
---- on multiples of 1% of monthly Salary.
5. X A Member may not make after-tax contributions to the Plan.
----
6. X An Employee may allocate a rollover contribution to the Plan
---- prior to satisfying the Eligibility requirements described
above.
5
<PAGE>
B. A Member may change his or her contribution rate (choose 1, 2 or 3):
1. X 1 time per pay period.
----
2. 1 time per calendar month.
----
3. 1 time per calendar quarter.
----
C. Employer Matching Contributions (fill in 1 if applicable; and choose
2, 3, 4 or 5):
1. The Employer matching contributions under 2, 3 or 4 below shall be
based on the Member's contributions not in excess of 10% (1-20
---
but not in excess of the percentage specified in A.1. above) of
the Member's Salary.
2. X The Employer shall allocate to each contributing Member's
---- Account an amount equal to 50% (based on 1% increments not
---
to exceed 200%) of the Member's contributions for that month.
*Note: The Employer matching contributions can be made in
cash or in kind.
3. The Employer shall allocate to each contributing Member's
---- Account an amount determined in accordance with the following
schedule:
Years of Employment Matching %
------------------- ----------
Less than 3 50%
At least 3, but less than 5 75%
5 or more 100%
4. The Employer shall allocate to each contributing Member's
---- Account an amount determined in accordance with the following
schedule:
Years of Employment Matching %
------------------- ----------
Less than 3 100%
At least 3, but less than 5 150%
5 or more 200%
5. No Employer matching contributions will be made to the Plan.
----
D. Employer Basic Contributions (choose 1 or 2): N/A
1. The Employer shall allocate an amount equal to % (based on 1%
---- increments not to exceed 15%) of Member's Salary for the
month to (choose (a) or (b)):
(a) The Accounts of all Members
(b) The Accounts of all Members who were employed with the
Employer on the last day of such month.
2. No Employer basic contributions will be made to the Plan.
----
6
<PAGE>
E. Employer Supplemental Contributions:
The Employer may make supplemental contributions for any Plan Year in
accordance with Section 3.7 of the Plan.
F. Employer Profit Sharing Contributions (Choose 1, 2, 3, 4, or 5): N/A
1. ---- No Employer Profit Sharing Contributions will be made to the
Plan.
Non-Integrated Formula
----------------------
2. ---- Profit sharing contributions shall be allocated to each
Member in the same ratio as each Member's Salary during such
Contribution Determination Period bears to the total of such
Salary of all Members.
3. ---- Profit sharing contributions shall be allocated to each
Member in the same ratio as each Member's Salary for the
portion of the Contribution Determination Period during which
the Member satisfied the Employer's eligibility
requirement(s) bears to the total of such Salary of all
Members.
Integrated Formula
------------------
4. ---- Profit sharing contributions shall be allocated to each
Member's Account in a uniform percentage (specified by the
Employer as _______%) of each Member's Salary during the
Contribution Determination Period up to the Social Security
Taxable Wage Base as defined in Section _____ of the Plan
("Base Salary") for the Plan Year that includes such
Contribution Determination Period, plus a uniform
percentage(specified by the Employer as _______%) of each
Member's Salary for the Contribution Determination Period in
excess of the Social Security Taxable Wage Base ("Excess
Salary") for the Plan Year that includes such Contribution
Determination Period, in accordance with Article III of the
Plan.
5. ---- Profit sharing contributions shall be allocated to each
Member's Account in a uniform percentage (specified by the
Employer as _______%) of each Member's Salary for the portion
of the Contribution Determination Period during which the
Member satisfied the Employer's eligibility requirement(s),
if any, up to the Base Salary for the Plan Year that includes
such Contribution Determination Period, plus a uniform
percentage (specified by the Employer as _______%) of each
Member's Excess Salary for the portion of the Contribution
Determination Period during which the Member satisfied the
Employer's eligibility requirement(s) in accordance with
Article III of the Plan.
G. Allocation of Employer Profit Sharing Contributions: N/A
In accordance with Section V, G above, a Member shall be eligible to
share in Employer Profit Sharing Contributions, if any, as follows
(choose 1 or 2):
1. ---- A Member shall be eligible for an allocation of Employer
Profit Sharing Contributions for a Contribution Determination
Period in all events.
7
<PAGE>
2. ---- A Member shall be eligible for an allocation of Employer
Profit Sharing Contributions for a Contribution Determination
Period only if he or she (choose (a), (b) or (c) whichever
shall apply):
(a) ---- is employed on the last day of the Contribution
Determination Period or retired, died or became
totally and permanently disabled prior to the last
day of the Contribution Determination Period.
(b) ---- completed 1,000 Hours of Employment if the
Contribution Determination Period is a period of 12
months (250 Hours of Employment if the Contribution
Determination Period is a period of 3 months) or
retired, died or became totally and permanently
disabled prior to the last day of the Contribution
Determination Period.
(c) ---- is employed on the last day of the Contribution
Determination Period and, if such period is 12
months, completed 1,000 Hours of Employment (250
Hours of Employment if the Contribution
Determination Period is a period of 3 months) or
retired, died or became totally and permanently
disabled prior to the last day of the Contribution
Determination Period.
H. "Contribution Determination Period" for purposes of determining and
allocating Employer profit sharing contributions means (choose 1,2, 3
or 4): N/A
1. The Plan Year.
----
2. ---- The Employer's Fiscal Year (defined as the Plan's "limitation
year") being the twelve (12) consecutive month period
commencing _________________(month/day) and ending
_____________(month/day).
3. The three (3) consecutive monthly periods that comprise each
---- of the Plan Year quarters.
4. The three (3) consecutive monthly periods that comprise each
---- of the Employer's Fiscal Year quarters. (Employer's Fiscal
Year is the twelve (12) consecutive month period commencing
________________ (month/day) and ending
______________(month/day).)
I. Employer Qualified Nonelective Contributions:
The Employer may make qualified nonelective contributions for any
Plan Year in accordance with Section 3.9 of the Plan.
VI. INVESTMENT FUNDS
The Employer hereby appoints Barclays Global Investors, N.A. to serve as
Investment Manager under the Plan.
8
<PAGE>
The Employer hereby selects the following Investment Funds to be made
available under the Plan (choose whichever shall apply) and consent to the
lending of securities by such funds to brokers and other borrowers. The
Employer agrees and acknowledges that the selection of Investment Funds
made in this Section VI is solely its responsibility, and no other person,
including the Sponsor or Investment Manager, has any discretionary
authority or control with respect to such selection process. The Employer
hereby holds Investment Manager harmless from, and indemnifies it against,
any liability Investment Manager may incur with respect to such Investment
Funds so long as Investment Manager is not negligent and has not breached
its fiduciary duties.
1. X S&P 500 Stock Fund
----
2. X Stable Value Fund
----
3. X S&P MidCap Stock Fund
----
4. X Money Market Fund
----
5. X Government Bond Fund
----
6. X International Stock Fund
----
7. X Asset Allocation Funds (3)
----
o Income Plus
o Growth & Income
o Growth
8. X Revere Federal Savings & Loan Association Stock Fund (the
---- "Employer Stock Fund")
9. (Name of Employer) Certificate of Deposit Fund
----
VII. EMPLOYER SECURITIES
A. If the Employer makes available an Employer Stock Fund pursuant to
Section VI of this Adoption Agreement, then voting and tender offer
rights with respect to Employer Stock shall be delegated and
exercised as follows (choose 1 or 2):
1. X Each Member shall be entitled to direct the Plan
---- Administrator as to the voting and tender offer rights
involving Employer Stock held in such Member's Account, and
the Plan Administrator shall follow or cause the Trustee to
follow such directions. If a Member fails to provide the Plan
Administrator with directions as to voting or tender offer
rights, the Plan Administrator shall exercise those rights as
it determines in its discretion and shall direct the Trustee
accordingly.
2. ---- The Plan Administrator shall direct the Trustee as to the
voting of all Employer Stock and as to all rights in the
event of a tender offer involving such Employer Stock.
9
<PAGE>
VIII. INVESTMENT DIRECTION
A. Members shall be entitled to designate what percentage of employee
contributions and employer contributions made on their behalf will be
invested in the various Investment Funds offered by the Employer as
specified in Section VI of this Adoption Agreement; provided,
however, that the following portions of a Member's Account must be
invested in the Employer Stock Fund or, if applicable, the Employer
Certificate of Deposit Fund (choose whichever shall apply): N/A
1. Employer Profit Sharing Contributions
----
2. Employer Matching Contributions
----
3. Employer Basic Contributions
----
4. Employer Supplemental Contributions
----
5. Employer Qualified Nonelective Contributions
----
B. Amounts invested in the Employer Stock Fund or, if applicable, the
Employer Certificate of Deposit Fund may not be transferred to any
other Investment Fund.
1. Notwithstanding this election in B, a Member may transfer
---- such amounts upon (choose whichever may apply):
(a) the attainment of age _____ (insert 45 or greater)
----
(b) the completion of _____ (insert 10 or greater)years
---- of employment
(c) the attainment of age plus years of employment equal
---- to _____ (insert 55 or greater)
C. A Member may change his or her investment direction (choose 1,2, or
3):
1. X 1 time per business day.
----
2. 1 time per calendar month.
----
3. 1 time per calendar quarter.
----
D. If a Member fails to make an effective investment direction, the
Member's contributions and employer contributions made on the
Member's behalf shall be invested in Money Market Fund (insert one of
-----------------
the Investment Funds selected in Section VI of this Adoption
Agreement).
IX. VESTING SCHEDULES; YEARS OF EMPLOYMENT FOR VESTING PURPOSES
A. (Choose 1, 2, 3, 4, 5, 6 or 7)
<TABLE>
<CAPTION>
Schedule Years of Employment Vested %
-------- ------------------- --------
<S> <C> <C>
1. X Immediate Upon Enrollment 100%
-----
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
Schedule Years of Employment Vested %
-------- ------------------- --------
<S> <C> <C>
2. 2-6 Year Graded Less than 2 0%
----- 2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 but less than 6 80%
6 or more 100%
3. 5-Year Cliff Less than 5 0%
5 or more 100%
-----
4. 3-Year Cliff Less than 3 0%
3 or more 100%
-----
5. 4-Year Graded Less than 1 0%
1 but less than 2 25%
----- 2 but less than 3 50%
3 but less than 4 75%
4 or more 100%
6. 3-7 Year Graded Less than 3 0%
----- 3 but less than 4 20%
4 but less than 5 40%
5 but less than 6 60%
6 but less than 7 80%
7 or more 100%
7. Other Less than 0%
----- -----
but less than %
----- ----- -----
but less than %
----- ----- -----
but less than %
----- ----- -----
but less than %
----- ----- -----
or more 100%
-----
</TABLE>
B. With respect to the schedules listed above, the Employer elects
(choose 1, 2, 3 and 4; or 5):
<TABLE>
<S> <C>
1. Schedule A-1 solely with respect to Employer matching contributions.
---
2. Schedule solely with respect to Employer basic contributions.
---
3. Schedule solely with respect to Employer supplemental contributions.
---
4. Schedule solely with respect to Employer profit sharing contributions.
---
5. Schedule with respect to all Employer contributions.
---
</TABLE>
11
<PAGE>
NOTE: Notwithstanding any election by the Employer to the contrary,
each Member shall acquire a 100% vested interest in his Account
attributable to all Employer contributions made to the Plan upon the
earlier of (i) attainment of Normal Retirement Age, (ii) approval for
disability or (iii) death. In addition, a Member shall at all times
have a 100% vested interest in the Employer Qualified Non-Elective
Contributions, if any, and in the pre-tax elective deferrals and
nondeductible after-tax Member Contributions.
C. Years of Employment Excluded for Vesting Purposes
The following Years of Employment shall be disregarded for vesting
purposes (choose whichever shall apply):
1. X Years of Employment during any period in which neither the
----- Plan nor any predecessor plan was maintained by the Employer.
2. Years of Employment of a Member prior to attaining age 18.
-----
X. WITHDRAWAL PROVISIONS
A. The following portions of a Member's Account will be eligible for
in-service withdrawals, subject to the provisions of Article VII of
the Plan (choose whichever shall apply):
1. Employee after-tax contributions and the earnings thereon. N/A
----
In-service withdrawals permitted only in the event of (choose
whichever shall apply):
(a) Hardship.
----
(b) Attainment of age 59 1/2.
----
2. X Employee pre-tax elective deferrals and the earnings thereon.
----
Note: In-service withdrawals of all employee pre-tax
elective deferrals and earnings thereon as of
December 31, 1988 are permitted only in the event of
hardship or attainment of age 59 1/2. In-service
withdrawals of earnings after December 31, 1988 are
permitted only in the event of attainment of age 59
1/2.
3. X Employee rollover contributions and the earnings thereon.
----
In-service withdrawals permitted only in the event of (choose
whichever shall apply):
(a) Hardship.
----
(b) Attainment of age 59 1/2.
----
12
<PAGE>
4. X Employer matching contributions and the earnings thereon.
---- In-service withdrawals permitted only in the event of (choose
whichever shall apply):
(a) Hardship.
----
(b) Attainment of age 59 1/2.
----
5. Employer basic contributions and the earnings thereon.
----
In-service withdrawals permitted only in the event of (choose
whichever shall apply):
(a) Hardship.
----
(b) Attainment of age 59 1/2.
----
6. Employer supplemental contributions and the earnings thereon.
----
In-service withdrawals permitted only in the event of (choose
whichever shall apply):
(a) Hardship.
----
(b) Attainment of age 59 1/2.
----
7. Employer profit sharing contributions and the earnings
---- thereon.
In-service withdrawals permitted only in the event of (choose
whichever shall apply):
(a) Hardship.
----
(b) Attainment of age 59 1/2.
----
8. Employer qualified nonelective contributions and earnings
---- thereon.
Note: In-service withdrawals of all employer qualified
nonelective contributions and earnings thereon are
permitted only in the event of attainment of age 59 1/2
9.---- No in-service withdrawals shall be allowed.
B. Notwithstanding any elections made in Subsection A of this Section X
above, the following portions of a Member's Account shall be excluded
from eligibility for in-service withdrawals (choose whichever shall
apply): N/A
1. Employer contributions, and the earnings thereon, credited to
---- the Employer Stock Fund or, if applicable, the Employer
Certificate of Deposit Fund.
2. All contributions and/or deferrals, and the earnings thereon,
---- credited to the Employer Stock Fund or, if applicable, the
Employer Certificate of Deposit Fund.
3. Other:________________________________________________________
----
13
<PAGE>
XI. DISTRIBUTION OPTION (CHOOSE WHICHEVER SHALL APPLY)
1. Lump Sum and partial lump sum payments only.
----
2. X Lump Sum and partial lump sum payments plus one or more of the
---- following (choose (a) and /or (b)):
(a) X Installment payments.
----
(b) Annuity payments.
----
3. X Distributions in kind of Employer Stock.
----
XII. LOAN PROGRAM (CHOOSE 1, 2 OR 3)
1. No loans will be permitted from the Plan.
----
2. X Loans will be permitted from the Member's Account.
----
3. Loans will be permitted from the Member's Account, EXCLUDING
---- (choose whichever shall apply):
<TABLE>
<S> <C>
(a) Employer Profit sharing contributions and the earnings thereon.
----
(b) Employer matching contributions and the earnings thereon.
----
(c) Employer basic contributions and the earnings thereon.
----
(d) Employer supplemental contributions and the earnings thereon.
----
(e) Employee after-tax contributions and the earnings thereon.
----
(f) Employee pre-tax elective deferrals and the earnings thereon.
----
(g) Employee rollover contributions and the earnings thereon.
----
(h) Employer qualified nonelective contributions and the earnings thereon.
----
(i) Any amounts to the extent invested in the Employer stock fund.
----
</TABLE>
XIII. ADDITIONAL INFORMATION
If additional space is needed to select or describe an elective feature of
the Plan, the Employer should attach additional pages and use the
following format:
The following is hereby made a part of Section ___ of the Adoption
Agreement and is thus incorporated into and made a part of the Revere
Federal Savings & Loan Association Employees' Saving & Profit Sharing Plan
and Trust.
Signature of Employer's Authorized Representative ________________________
Signature of Trustee______________________________
Supplementary Page ____ of [total number of pages].
14
<PAGE>
XIV. PLAN ADMINISTRATOR
The Named Plan Administrator under the Plan shall be the (choose 1, 2, 3
or 4):
Note: Pentegra Services, Inc. may not be appointed Plan Administrator.
1. X Employer
----
2. Employer's Board of Directors
----
3. Plan's Administrative Committee
----
4. Other (if chosen, then provide the following information)
----
Name: _______________________________________________________
Address: _______________________________________________________
Tel No: _______________________________________________________
Contact: _______________________________________________________
NOTE: IF NO NAMED PLAN ADMINISTRATOR IS DESIGNATED ABOVE, THE EMPLOYER
SHALL BE DEEMED THE NAMED PLAN ADMINISTRATOR.
XV. TRUSTEE
The Employer hereby appoints The Bank of New York to serve as Trustee for
all Investment Funds under the Plan except the Employer Stock Fund.
The Employer hereby appoints the following person or entity to serve as
Trustee under the Plan for the Employer Stock Fund.*
Name: THE BANK OF NEW YORK
--------------------------------------------------------------------
Address: 1 WALL ST, NEW YORK, N.Y 10286
-----------------------------------------------------------------
Telephone No: Contact: CHAD KANHAI
------------------------ ----------------------------
-------------------------------------------------------------
Signature of Trustee
(Required only if the Employer is serving as its own Trustee)
* Subject to approval by The Bank of New York, if The Bank of New York is
appointed as Trustee for the Employer Stock Fund.
The Employer hereby appoints The Bank of New York to serve as Custodian
under the Plan for the Employer Stock Fund in the event The Bank of New
York does not serve as Trustee for such Fund.
15
<PAGE>
EXECUTION OF ADOPTION AGREEMENT
By execution of this Adoption Agreement by a duly authorized representative of
the Employer, the Employer acknowledges that it has established or, as the case
may be, amended a tax-qualified retirement plan into the Revere Federal Savings
& Loan Association Employees' Savings & Profit Sharing Plan and Trust (the
"Plan"). The Employer hereby represents and agrees that it will assume full
fiduciary responsibility for the operation of the Plan and for complying with
all duties and requirements imposed under applicable law, including, but not
limited to, the Employee Retirement Income Security Act of 1974, as amended, and
the Internal Revenue Code of 1986, as amended. In addition, the Employer
represents and agrees that it will accept full responsibility of complying with
any applicable requirements of federal or state securities law as such laws may
apply to the Plan and to any investments thereunder. The Employer further
acknowledges that any opinion letter issued with respect to the Adoption
Agreement and the Agreement by the Internal Revenue Service ("IRS") to Pentegra
Services, Inc., as sponsor of the Employees' Savings & Profit Sharing Plan, does
not constitute a ruling or a determination with respect to the tax-qualified
status of the Plan and that the appropriate application must be submitted to the
IRS in order to obtain such a ruling or determination with respect to the Plan.
THE FAILURE TO PROPERLY COMPLETE THE ADOPTION AGREEMENT MAY RESULT IN
DISQUALIFICATION OF THE PLAN AND TRUST EVIDENCED THEREBY.
The Sponsor will inform the Employer of any amendments to the Plan or Trust
Agreement or of the discontinuance or abandonment of the Plan or Trust.
Any inquiries regarding the adoption of the Plan should be directed to the
Sponsor as follows:
Pentegra Services, Inc.
108 Corporate Park Drive
White Plains, New York 10604
(914) 694-1300
IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be
executed by its duly authorized officer this 21 day of October, 1998.
-- ------- --
Revere Federal Savings & Loan Association
By: /s/ JAMES J.MCCARTHY
----------------------------
Name: JAMES J. MCCARTHY
----------------------------
Title: President/CEO
----------------------------
6/19/98
16
EXHIBIT 4.2
-----------
Trust Agreement between Revere Federal Savings and the Bank of New York, dated
effective as of October 1, 1998, for the Revere Federal Savings & Loan
Association Employees' Savings and Profit Sharing Plan.
<PAGE>
================================================================================
TRUST AGREEMENT
by and between
REVERE FEDERAL SAVINGS & LOAN ASSOCIATION
and
THE BANK OF NEW YORK
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1 - GENERAL........................................................ 1
1.1 Definitions ........................................................ 1
1.2 Compliance With Law ................................................ 2
SECTION 2 - ESTABLISHMENT OF TRUST.......................................... 2
2.1 Appointment and Acceptance of Trustee.............. ................ 2
2.2 Trustee Responsibilities ........................................... 3
2.3 Contributions ...................................................... 3
2.4 Exclusive Benefit .................................................. 3
2.5 Return of Contributions ............................................ 3
2.6 Distributions ...................................................... 4
SECTION 3 - AUTHORITIES..................................................... 4
3.1 Authorized Parties ................................................. 4
3.2 Authorized Instructions ............................................ 5
SECTION 4 - INVESTMENT AND ADMINISTRATION OF THE FUND....................... 5
4.1 Investment Funds.................................................... 5
4.2 Discretionary Powers and Duties of Trustee.......................... 6
4.3 Directed Powers of Trustee.......................................... 8
4.4 Standard of Care.................................................... 10
4.5 Force Majeure....................................................... 10
SECTION 5 - APPOINTMENT AND AUTHORITY OF PENTAGRA........................... 10
5.1 Appointment and Delegation ......................................... 10
5.2 Allocation and Investment Directions to Trustee..................... 10
5.3 Custody of Participant Loan Documents............................... 11
5.4 Designation for Authorized Instructions ............................ 11
5.5 Resignation or Removal of Pentegra.................................. 11
SECTION 6 - REPORTING AND RECORDKEEPING..................................... 11
6.1 Records and Accounts................................................ 11
6.2 Non-Fund Assets..................................................... 12
SECTION 7 - COMPENSATION, EXPENSES, TAXES, INDEMNIFICATION.................. 12
7.1 Compensation and Expenses........................................... 12
7.2 Tax Obligations..................................................... 13
7.3 Indemnification..................................................... 13
SECTION 8 - AMENDMENT, TERMINATION, RESIGNATION, REMOVAL.................... 14
8.1 Amendment........................................................... 14
8.2 Removal or Resignation of Trustee................................... 14
8.3 Property Not Transferred............................................ 14
-i-
<PAGE>
SECTION 9 - ADDITIONAL PROVISIONS........................................... 15
9.1 No Merger, Consolidation or Transfer of Plan Assets or Liabilities.. 15
9.2 Assignment or Alienation............................................ 15
9.3 Successors and Assigns.............................................. 15
9.4 Governing Law....................................................... 15
9.5 Necessary Parties................................................... 15
9.6 No Third Party Beneficiaries........................................ 16
9.7 Execution in Counterparts........................................... 16
9.8 No Additional Rights................................................ 16
-ii-
<PAGE>
TRUST AGREEMENT
THIS TRUST AGREEMENT, effective as of October 1, 1998 by and between REVERE
FEDERAL SAVINGS & LOAN ASSOCIATION (the "Company") and THE BANK OF NEW YORK (the
"Company") and THE BANK OF NEW YORK (the "Trustee").
W I T N E S S E T H:
WHEREAS, pursuant to an Adoption Agreement, the Company has adopted a
qualified retirement plan for the benefit of its employees and the employees of
certain of the Company's affiliates which have heretofore or may hereafter adopt
such plan (such plan, as amended from time to time, is referred to herein as the
"Plan");
WHEREAS, the Company has established or desires to establish a trust
constituting a part of the Plan, pursuant to which assets will be held to
provide for the funding of, and payment of benefits under, the Plan (the
"Trust");
WHEREAS, the Company desires to appoint the Trustee as trustee of the Trust
and the Trustee is willing to accept such appointment; and
WHEREAS, the Plan provides for one or more fiduciaries named in the Plan
having the power to manage and control the assets of the Plan (the "Named
Fiduciary");
NOW, THEREFORE, the Company and the Trustee, each intending to be legally
bound, agree as follows:
SECTION I
GENERAL
1.1 DEFINITIONS. The terms used herein shall have the following meanings:
(a) "Agreement" means this instrument, including all amendments thereto.
(b) "Code" means the INTERNAL Revenue Code of 1986, as amended.
(c) "Employer" means the Company and any affiliate of the Company which has
heretofore adopted, or may hereafter adopt,
<PAGE>
the Plan. Each affiliate of the Company adopting the Plan appoints the company
as its agent for purposes of this Agreement and agrees that it shall be bound by
the decisions, actions and directions of the Company and the Named Fiduciary
Under this Agreement and that the Trustee shall be fully protected in relying
upon such decisions, actions and directions and shall in no event be required to
give notice to or otherwise deal with such affiliate except by dealing with the
Company as agent of such affiliate.
(d) "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
(e) "Fund" means the assets held pursuant to this Agreement as such assets
shall exist from time to time.
(f) "Tax Obligations" means the responsibility for payment of taxes,
withholding, certification and reporting requirements, claims for exemptions or
refund, interest, penalties and other related expenses of the Fund.
1.2 COMPLIANCE WITH LAW. The Plan and Trust are intended to comply with
ERISA and to be tax-exempt under Section 501 (a) of the Code. The Company
assumes full responsibility to establish and maintain the Plan as a plan meeting
the qualification requirements of Section 401(a) of the Code and shall
immediately notify the Trustee if the Plan ceases to be qualified.
SECTION 2
ESTABLISHMENT OF TRUST
2.1 APPOINTMENT AND ACCEPTANCE OF TRUSTEE. Company hereby appoints THE BANK
0F NEW YORK as Trustee of the Trust with respect to the Fund. The Company shall
provide to Trustee a resolution of its Board of Directors (which may include a
resolution authorizing one or more officers authorized to act on its behalf)
certified by the Secretary or any Assistant Secretary of the Company ("Certified
Resolutions") appointing The Bank of Now York as Trustee hereunder. The Fund
shall consist of all monies and other property acceptable to the Trustee in its
sole discretion as may be paid or delivered to the Trustee from time to time,
together with any and all increments thereto, proceeds and reinvestment thereof,
and income thereon, less payments and distributions therefrom. The Fund shall be
held by the Trustee in trust and dealt with in accordance with the provisions of
this Agreement without distinction between principal and income. The Trustee
hereby accepts its appointment as trustee, acknowledges that it assumes the
duties established by this Agreement and agrees to be bound by the terms
contained herein.
-2-
<PAGE>
2.2 TRUSTEE RESPONSIBILITIES. The Trustee shall hold the assets of, and
collect the income and make payments from the Fund, all as hereinafter provided.
Except to the extent that assets of the Fund have been deposited in a collective
investment fund maintained by the Trustee, the Trustee shall not be responsible,
directly or indirectly, for the investment or reinvestment of the assets of the
Fund, which shall be the sole responsibility of the Named Fiduciary. The Trustee
is not a party to, and has no duties or responsibilities under, the Plan other
than those that may be expressly contained in this Agreement. As to the
responsibilities of the Trustee, in any case in which a provision of this
Agreement conflicts with any provision in the Plan, this Agreement shall
control. The Trustee shall have no duties, responsibilities or liability with
respect to the acts or omissions of any prior trustee.
2.3 CONTRIBUTIONS. The Trustee shall have no authority or duty to determine
the adequacy of or enforce the collection of contributions under the Plan, shall
not be responsible for the adequacy of the Trust to meet and discharge any
liabilities under the Plan and shall have no responsibility for any property
until such cash or property is received and accepted by the Trustee. The
Employer and the Named Fiduciary shall have the sole duty and responsibility for
ensuring the adequacy of the Trust to discharge the liabilities under the Plan,
determining the adequacy of the contributions to be made under the Plan,
transmitting the contributions to the Trustee and ensuring compliance with any
statute, regulation or rule applicable to contributions.
2.4 EXCLUSIVE BENEFIT. Except as may be permitted by law or by the terms of
the Plan or this Agreement, at no time prior to the satisfaction of all
liabilities with respect to participants and their beneficiaries under the Plan
shall any part of the Trust be used for or diverted to any purpose other than
for the exclusive benefit of the participants and their beneficiaries. The
assets of the Trust shall be held for the exclusive purposes of providing
benefits to participants of the Plan and their beneficiaries and defraying the
reasonable expenses of administering the Plan and the Trust.
2.5 RETURN OF CONTRIBUTIONS. Notwithstanding any other provision of this
Agreement: (I) if a contribution is conditioned upon a favorable determination
as to the qualified status of the Plan under code Section 401 and the Plan
receives an adverse determination with respect to its initial qualification,
then any such contribution may be returned to the Employer within one year after
the date of determination; (ii) a contribution made by the Employer based upon
mistake of fact may be returned to the Employer within one year after the date
of such contribution; and (iii) if a contribution to the Plan is conditioned
upon its deductibility under the Code and a deduction for such a contribution is
disallowed, such contribution may be
-3-
<PAGE>
returned to the Employer within one year after the date of the disallowance of
such deduction.
In the case of the return of a contribution due to mistake of fact or the
disallowance of a deduction, the amount which may be returned is the excess of
the amount contributed over the amount that would have been contributed had
there not been a mistake or disallowance. Earnings attributable to the excess
contributions may not be returned to the Employer but losses attributable
thereto must reduce the amount to be so returned. Any return of contribution
made by the Trustee pursuant to this Section shall be made only upon the
direction of the Named Fiduciary, which shall have exclusive responsibility for
determining whether the conditions of such return have been satisfied and for
the amount to be returned.
2.6 DISTRIBUTIONS. The Trustee shall make distributions and payments out of
the Fund as directed by the Named Fiduciary and amounts distributed or paid
pursuant to such direction thereafter no longer shall constitute a part of the
Fund. The Named Fiduciary may direct such distributions and payments to be made
to any person, including the Named Fiduciary or an Employer, or to any paying
agent designated by the Named Fiduciary, in such amounts and in such form and
for such purposes as the Named Fiduciary shall direct. Any such order shall
constitute a certification that the payment is one the Named Fiduciary is
authorized to direct. The Named Fiduciary shall have the exclusive
responsibility, and the Trustee shall not have any responsibility or duty under
this Agreement, for ensuring that any payment made from the Fund at the
direction of the Named Fiduciary does not constitute a diversion of the assets
of the Fund and for determining that any such distribution is in accordance with
the terms of the Plan and applicable law, including, without limitation,
determining the amount, timing or method of payment and the identity of each
person to whom such payments shall be made. The Trustee shall have no
responsibility or duty to determine the tax effect of any payment or to see to
the application of any payment. The Trustee shall not be required to make any
payment from the Fund in excess of the net realizable value of the assets of the
Fund or to make any payment in cash unless there is sufficient cash in the Fund
or the Named Fiduciary has provided written instructions as to the assets to be
converted to cash for the purpose of making the distribution. If a dispute
arises as to who is entitled to or should receive any benefit or payment, the
Trustee may withhold or cause to be withhold such payment until the dispute is
resolved.
SECTION 3
AUTHORITIES
3.1 AUTHORIZED PARTIES. The Company shall identify the Named Fiduciary to
the Trustee and shall furnish the Trustee
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with a written list of the names, signatures and extent of authority of all
persons authorized to direct the Trustee and otherwise act on behalf of the
company under the terms of this Agreement. The Named Fiduciary will Provide the
Trustee with a written list of the names, signatures and extent of authority of
all persons authorized to act on behalf of the Named Fiduciary. The Trustee
shall be entitled to rely on and shall be fully protected in acting upon
direction from an authorized party until notified in writing by the company or
the Named Fiduciary, as appropriate, of a change of the identity of an
authorized party.
3.2 AUTHORIZED INSTRUCTIONS. All directions and instructions to the Trustee
from a party who has been authorized to act on behalf of the Company or the
Named Fiduciary pursuant to Section 3.1 or from Pentegra (as provided for in
Section 5.4)shall be in writing, transmitted by mail or by facsimile or shall be
an electronic transmission, provided the Trustee may, in its discretion, accept
oral directions and instructions and may require confirmation 'in writing' of
any such oral directions and instructions. The Trustee shall be entitled to rely
on and shall be fully protected in acting in accordance with all such directions
and instructions which the Trustee reasonably believes to have been given by a
party who has been authorized to act on behalf of the Company or the Named
Fiduciary pursuant to Section 3.1 or by Pentegra (pursuant to Section 5.4) and
in failing to act in the absence thereof.
SECTION 4
INVESTMENT AND ADMINISTRATION OF THE FUND
4.3 INVESTMENT FUNDS . The Named Fiduciary, from time to time and in
accordance with the provisions of the Plan, shall direct the Trustee to
establish one or more separate investment accounts under the Trust (each such
separate account hereinafter referred to as an "Investment Fund"). The Trustee
shall transfer to each such Investment Fund such portion of the assets of the
Fund as the Named Fiduciary directs. The assets which have been allocated to an
Investment Fund shall be invested and reinvested in accordance with the
instructions of the Named Fiduciary, which shall have exclusive responsibility
therefor. The Trustee shall be under no duty to question, and shall not incur
any liability on account of following, the instructions of the Named Fiduciary,
with respect to any Investment Fund or the investment or reinvestment of any
assets of the Fund or any Investment Fund, nor to make suggestions to the Named
Fiduciary in connection therewith or to determine the compliance of such
instructions with the Plan or applicable law, including, without limitation, the
requirements of Sections 406 and 407 of ERISA. The Trustee shall not be liable
for any losses, costs or expenses (including, without limitation, any
opportunity costs) resulting from any investment directions given or omitted by
the Named Fiduciary and the Trustee shall not be liable for any losses, cost or
expenses
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associated with the investment decisions of the Named Fiduciary, including,
without limitation, any losses, costs or expenses associated with the selection
of investments by the Named Fiduciary, actual investments directed by the Named
Fiduciary and the market risks associated with such selections and directions.
If the Trustee is directed to deliver property against payment, the Trustee
shall have no liability for non-receipt of such payment.
Unless the Trustee is otherwise directed by the Named Fiduciary, all
interest, dividends and other income received with respect to, and all proceeds
received from the sale or other disposition of, assets of an Investment Fund
shall be credited to and reinvested in such investment Fund, and all expenses of
the Fund which are properly allocable to a particular Investment Fund shall be
so allocated and charged. Subject to the provisions of the Plan, the Named
Fiduciary may direct the Trustee to eliminate an Investment Fund or Funds,, and
the Trustee thereupon shall dispose of the assets of such Investment Fund or
Funds and reinvest the proceeds thereof in accordance with the instructions of
the Named Fiduciary.
4.2 DISCRETIONARY POWERS AND DUTIES OF TRUSTEE. Subject to the provisions
and limitations contained elsewhere herein, in administering the Trust, the
Trustee shall be specifically authorized in its sole administrative discretion
to:
(a) Appoint subtrustees or depositories, domestic or foreign (including
affiliates of the Trustee), as to part or all of the Fund, except that the
indicia of ownership of any asset of the Fund shall not be held outside the
jurisdiction of the district courts of the United States unless in compliance
with Section 404(b) of ERISA and regulations thereunder;
(b) Appoint one or more individuals or corporations as a custodian of any
property of the Fund and, as part of its reimbursable expenses under this
Agreement to pay the reasonable compensation and expenses of any such custodian;
(c) Hold property in nominee name, IN bearer form, or in book entry form,
in a clearinghouse corporation or in a depository (including an affiliate of the
Trustee), so long as the Trustee's records clearly indicate that the assets held
are a part of the Fund;
(d) Collect income payable to and distributions due to the Fund and sign on
behalf of the Trust any declarations, affidavits, certificates of ownership and
other documents required to collect income and principal payments, including but
not limited to, tax reclamations, rebates and other withheld amounts;
(e) Collect proceeds from securities, certificates of deposit or other
investments which may mature or be called and
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surrender such securities at maturity or when called; provided, however, that
the Trustee shall not be liable for failure to surrender any security for
redemption prior to maturity or take other action if notice of such redemption
or other action was not provided to the Trustee by the issuer, the Named
Fiduciary or one of the nationally recognized bond or corporate action services
to which the Master Trustee subscribes;
(f) Exchange securities in temporary form for securities in definitive
form, and to effect an exchange of shares where the par value of stock is
changed;
(g) Submit or cause to be submitted to the Named Fiduciary, on a best
efforts basis, all information received by the Trustee regarding ownership
rights pertaining to property held in the Fund;
(h) Attend to involuntary corporate actions;
(i) Determine, or cause to be determined, the fair market value of the Fund
daily, or for such other period as may be mutually agreed upon in accordance
with methods consistently followed and uniformly applied;
(j) Render periodic statements for property held hereunder;
(k) Commence or defend suits or legal proceedings and represent the Fund in
all suits or legal proceedings in any court or before any other body or tribunal
as the Trustee shall deem necessary to protect the Fund (provided, however, that
the Trustee shall have no obligation to take any legal action for the benefit of
the Fund unless it shall first be indemnified for all expenses in connection
therewith, including, without limitation, counsel fees);
(l) Employ suitable agents and legal counsel, who may be counsel for an
Employer, and, as a part of its reimbursable expenses under this Agreement, to
pay their reasonable compensation and expenses. The Trustee shall be entitled to
rely on and may act upon advice of counsel on all matters, and shall be without
liability for any action reasonably taken or omitted pursuant to such advice.
(m) Subject to the requirements of applicable law, take all action
necessary to settle authorized transactions;
(n) Form corporations and create trusts under the laws of any state for the
purpose of acquiring and holding title to any securities or other property, all
on such terms and conditions as the Trustee deems advisable;
(o) Make, execute and deliver any and all documents, agreements or other
instruments in writing as are necessary or
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desirable for the accomplishment of any of the powers and duties in this
Agreement; and
(p) Generally take all action, whether or not expressly authorized, which
the Trustee may deem necessary or desirable for the fulfillment of its duties
hereunder.
4.3 DIRECTED POWERS OF TRUSTEE. In addition to the powers enumerated in
Section 4.2, the Trustee shall have the following powers and authority in the
administration of the Fund to be exercised solely as directed by the Named
Fiduciary:
(a) Invest and reinvest in property, provided that in no case without the
consent of the Trustee will the assets of the Fund be invested in assets other
than units of collective investment funds;
(b) Settle purchases and sell, exchange, convey, transfer or otherwise
dispose of any property at any time held by the Trustee, by private contract or
at public auction, for cash or on credit, upon such conditions, at such prices
and in the same manner as the Named Fiduciary, shall direct, and no person
dealing with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the validity, expediency or propriety of any
such sale or other disposition;
(c) Engage in other transactions including free receipts and deliveries,
exchanges and other voluntary corporate actions, with respect to property
received by the trustee.
(d) Hold any part of the Fund in cash or cash balances and the Trustee
shall not be responsible for the payment of interest on such balances;
(e) Make loans from the Fund to participants in the Plan, which shall be
secured by the participants account balance; however, the Named Fiduciary shall
have full and exclusive responsibility for loans made to participants,
including, without limitation, full and exclusive responsibility for the
following: development of procedures and documentation for such loans;
acceptance of loan applications; approval of loan applications; disclosure of
interest rate information required by Regulation Z of the Federal Reserve Board
promulgated pursuant to the Truth in Lending Act, 15 U.S.C. ss. 1601 et seq.;
ensuring that such loans shall bear a reasonable rate of interest (within the
meaning of Regulation ss. 2550.408(b)(1) promulgated by the Department of
Labor); acting as agent of the Trustee for the physical custody and safekeeping
of the promissory notes and other loan documents; performing necessary and
appropriate record keeping and accounting functions with respect to loan
transactions; enforcement of promissory note terms including, but not limited
to, directing the Trustee to take specified actions to enforce its rights under
the documents relating to plan loans, including, without limitation, the
occurrence of events of default and maintenance
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of accounts and records regarding interest and principal payments on notes. The
Trustee shall not in any way be responsible for holding or reviewing such
documents, records and procedures and shall be entitled to rely upon such
information as is provided by the Named Fiduciary or its own sub-agent or
recordkeeper without any requirement or responsibility to inquire as to the
completeness or accuracy thereof, but may from time to time examine such
documents, records and procedures as it deems appropriate. Unless otherwise
instructed in writing by the Named Fiduciary, the Trustee shall have no duty or
responsibility to file a UCC-1 form or take other action in order to perfect its
security interest in the accounts of a Participant to whom a loan is made. The
Company shall indemnify and hold the Trustee and its directors, officers and
employees harmless from all claims, liabilities, losses, damages, costs and
expenses, including reasonable attorneys' fees, arising out of any action or
inaction of the Named Fiduciary with respect to its agency responsibilities
described herein with respect to participant loans and this indemnification
shall survive the termination of this Agreement;
(f) Deposit cash in interest bearing accounts in the banking department of
the Trustee, the Company (provided that the Company meets the requirements of
ss. 408(b)(4) of ERISA) or an affiliated banking organization of the Trustee or
the Company; and
(g) Invest in any collective investment fund, including any collective
investment fund maintained by the Trustee or an affiliate. The Trustee shall
have no responsibility for the custody or safekeeping of assets transferred to
any collective investment trust not maintained by the Trustee. To the extent
that any investment is made in any such collective investment fund, the terms of
the collective trust indenture shall solely govern the investment duties,
responsibilities and powers of the trustee of such collective investment fund
and, to the extent required by law or by such indenture, such terms,
responsibilities and powers shall be incorporated herein by reference and shall
be a part of this Agreement. For purposes of valuation, the value of the
interest maintained by the Fund in any such collective investment fund shall be
the fair market value of the collective investment fund units held, determined
in accordance with generally recognized valuation procedures. The Company
expressly understands and agrees that any such collective investment fund may
provide for the lending of its securities by the collective investment fund
trustee and that such collective investment fund trustee will receive
compensation from the borrowers for the lending of securities that is separate
from any compensation of the Trustee hereunder, or any compensation of the
collective investment fund trustee for the management of such fund;
(h) For the purposes of the fund, to borrow money from any person or
persons, including The Bank of New York, to issue
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the Fund's promissory note or notes therefor, and to secure the repayment
thereof by pledging, mortgaging or otherwise encumbering any property in its
possession.
4.4 STANDARD OF CARE. The Trustee shall discharge its duties under this
Agreement with the care and skill required under ERISA with respect to its
duties. The Trustee shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement and shall be held harmless in acting
upon any notice, request, direction, instruction, consent, certification or
other instrument believed by it to be genuine and delivered by the proper party
or parties. The duties of the Trustee shall only be those specifically
undertaken pursuant to this Agreement or by separate written agreement.
4.5 FORCE MAJEURE. The Trustee shall not be responsible or liable for any
losses to the Fund resulting from nationalization, expropriation, devaluation,
seizure, or similar action by any governmental authority, de facto or de jure;
or enactment, promulgation, imposition or enforcement by any such governmental
authority of currency restrictions, exchange controls, levies or other charges
affecting the Fund's property; or acts of war, terrorism, insurrection or
revolution; or acts of God; or any other similar event beyond the control of the
Trustee or its agents. This Section shall survive the termination of this
Agreement.
SECTION 5
APPOINTMENT AND AUTHORITY OF PENTAGRA
5.1 APPOINTMENT AND DELEGATION. The Company hereby certifies to the Trustee
that Pentegra Services, Inc. ("Pentegra") is the third party administrator
appointed by the Named Fiduciary or the Company to receive, cumulate and
communicate investment and distribution directions of the participants and
beneficiaries of the Plan with respect to the Fund or the Investment Funds, and
the Named Fiduciary has delegated such responsibility and authority exclusively
to Pentegra. For purposes of this Agreement, Pentegra shall be a delegee of the
Named Fiduciary in accordance with Section 405(c)(1)(B) of ERISA. Except as
provided in Section 5.5, the Trustee shall act solely on the directions and
instructions communicated to the Trustee by Pentegra and the Trustee shall not
be liable for any failure to act on any direction or instruction of any other
party.
5.2 ALLOCATION AND INVESTMENT DIRECTIONS TO TRUSTEE. Pentegra shall direct
the Trustee with respect to the allocation of assets to the investment Funds,
transfers among the Investment Funds and investment and reinvestment of the
assets of the Fund and each Investment Fund. The Trustee shall have no duty to
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invest, and shall not be liable for any interest on, any assets it holds
uninvested pending receipt of directions from Pentegra to invest or reinvest
assets of the Fund.
5.3 CUSTODY OF PARTICIPANT LOAN DOCUMENTS. Pentegra is further authorized
and is hereby appointed by the Named Fiduciary and the Company to act as
custodian for the Trustee of all original promissory notes and security
agreements which shall be held subject to the order of the Trustee. In the event
that such custodianship is terminated by Pentegra, the Named Fiduciary of the
Trustee, the Named Fiduciary shall retain the originals of all promissory notes
and security agreements as custodian for the Trustee.
5.4 DESIGNATION FOR AUTHORIZED INSTRUCTIONS. Pentegra shall furnish the
Trustee with a written list of the names, signatures and extent of authority of
all persons authorized to act on behalf of Pentegra. The Trustee shall be
entitled to rely on and shall be fully protected in acting upon direction
reasonably believed by it to be from an authorized party (or omitting to act in
the absence of direction) until notified in writing by Pentegra, of a change in
the identity of an authorized party. Directions of an authorized party shall be
governed by Section 3.2 of this Agreement.
5.5 RESIGNATION OR REMOVAL OF PENTEGRA. In the event Pentegra resigns or is
removed as third party administrator under the Plan, or Pentegra's authority is
circumscribed in any manner, the Company shall promptly notify the Trustee of
such resignation, removal or circumscription of authority and shall furnish the
Trustee with Certified Resolutions identifying the Named Fiduciary and any other
persons authorized to assume the duties and responsibilities of Pentegra with
respect to the Plan. The Trustee shall not have or be deemed to have any
responsibility to assume the functions and duties of Pentegra, shall have no
duty or responsibility to invest or reinvest the assets of the Fund and shall
not be liable for any losses to the Fund (including any opportunity costs) as a
result of its failure to act prior to receiving the foregoing Certified
Resolution.
SECTION 6
REPORTING AND RECORD KEEPING
6.1 RECORD'S AND ACCOUNTS. The Trustee shall keep full and accurate records
of all receipts, investments, disbursements, and other transactions hereunder,
including such specific records as may be agreed upon in writing between the
Company and the Trustee. Within ninety (90) days after the end of each fiscal
year of the Trust or within ninety (90) days after its removal or resignation or
the termination of this Agreement, the Trustee shall file with the Company a
written account of the administration of the Fund showing all transactions
effected by
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the Trustee and all property held by the Fund at its fair market value for the
accounting period. If, within ninety (90)days after the Trustee mails such
account to the Company, the Company has not given the Trustee written notice of
any exception or objection thereto, the statement shall be deemed to have been
approved, and in such case, the Trustee shall not be liable for any matters in
such statements. Upon prior written notice, the Company or its agent shall have
the right at its own expense to inspect the Trustee's books and records directly
relating to the Fund during normal business hours. If for any reason the Trustee
fails to file an account required of the Trustee within the applicable times
specified hereunder, such account shall be filed by the Trustee after the
expiration of such time as soon as is reasonably practicable. To the extent that
the Trustee shall be required to value the assets of the Fund, the Trustee may
rely for all purposes of this Agreement upon any certified appraisal or other
form of valuation submitted by the Named Fiduciary, Pentegra, any investment
manager or other third party appointed by the Named Fiduciary. Nothing in this
Section shall impair Trustee's right to judicial settlement of any account
rendered by it. In any such proceeding the only necessary parties shall be the
Trustee, the Company and any other party whose participation is required by law,
and any judgment, decree or final order entered shall be conclusive on all
persons having an interest in the trust.
The fiscal year of the Trust shall be the plan year as established under
the terms of the Plan.
6.2 NON-FUND ASSETS. The duties of the Trustee shall be limited to the
assets held in the Fund, and the Trustee shall have no duties with respect to
assets held by any other person including, without limitation, any other trustee
for the Plan unless otherwise agreed in writing. The company hereby agrees that
the Trustee shall not serve as, and shall not be deemed to be, a co-trustee
under any circumstances. The Named Fiduciary may request the Trustee to perform
a record keeping service with respect to property held by others and not
otherwise subject to the terms of this Agreement. To the extent the Trustee
shall agree to perform this service, its sole responsibility shall be to
accurately reflect information on its books which it has received from the Named
Fiduciary.
SECTION 7
COMPENSATION, EXPENSES, TAXES, INDEMNIFICATION
7.1 COMPENSATION AND EXPENSES. The Trustee shall be entitled to
compensation for services under this Agreement as mutually agreed by the Company
and the Trustee. The Trustee shall also be entitled to reimbursement for
reasonable expenses incurred by it in the discharge of its duties under this
Agreement. The Trustee is authorized to charge and collect from
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the Fund any and all such fees and expenses to the extent such fees and expenses
are not paid directly by the Company, another Employer or by Pentegra (acting on
behalf of the company or such other Employer).
All amounts (including taxes) paid from the Fund which are allocable to an
Investment Fund shall be charged to such Investment Fund in accordance with
Section 4.1 of this Agreement. All such expenses which are not so allocable
shall be charged against each of the Investment Funds in the same proportion as
the value of the total assets held in such Investment Fund bears to the value of
the total assets in the Fund.
To the extent the Trustee advances funds to the Fund for disbursements or
to effect the settlement of purchase transactions, the Trustee shall be entitled
to collect from the Fund an amount equal to what would have been earned on the
sums advanced (an amount approximating the "federal funds" interest rate).
7.2 TAX OBLIGATIONS. To the extent that the company or Named Fiduciary has
provided necessary information to the Trustee, the Trustee shall use reasonable
efforts to assist the Company or the Named Fiduciary with respect to any Tax
obligations. The Company or Named Fiduciary shall notify the Trustee of any Tax
Obligations. Notwithstanding the foregoing, the Trustee shall have no
responsibility or liability for any Tax Obligations now or hereafter imposed on
any Employer or the Fund by any taxing authorities, domestic or foreign, except
as provided by applicable law.
To the extent the Trustee is responsible under any applicable law for any
Tax obligation, the Company or the Named Fiduciary shall inform the Trustee of
all Tax Obligations, shall direct the Trustee with respect to the performance of
such Tax Obligations, and shall provide the Trustee with all information
required by the Trustee to meet such Tax Obligations. ALL such Tax Obligations
shall be paid from the Fund unless paid BY the Company or another Employer.
7.3 INDEMNIFICATION. The company shall indemnify and hold harmless the
Trustee and its directors, officers and employees from all claims, liabilities,
losses, damages and expenses, including reasonable attorneys' fees and expenses,
incurred by the Trustee in connection with this Agreement, except those
resulting from the Trustee's gross negligence, bad faith or willful misconduct.
This indemnification (as well as any other indemnification in this Agreement)
shall survive the termination of this Agreement. If the Trustee is acting as a
successor trustee or succeeds to responsibilities hereunder for trusteeship of
plan assets with respect to the Fund (or any portion thereof), the Company
hereby agrees to hold the Trustee harmless from and against any tax, claim,
liability, loss, damage or expense incurred by or assessed against it as such
successor as a direct
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or indirect result of any act or omission of a predecessor trustee or any other
person charged under any agreement affecting Fund assets with investment
responsibility with respect to such assets, except for such taxes, claims,
liabilities, losses, damages or expenses attributable to the Trustee's own gross
negligence, bad faith or willful misconduct.
SECTION 8
AMENDMENT, TERMINATION, RESIGNATION, REMOVAL
8.1 AMENDMENT. This Agreement may be amended by written agreement signed by
the Company and the Trustee. This Agreement may be terminated at any time by the
Company by written instrument delivered to the Trustee. Thereafter, the Trustee
shall distribute all assets of the Fund, less any fees and expenses payable from
the Fund with respect to the Plan, pursuant to instructions of the Named
Fiduciary. The Trustee may condition its delivery, transfer or distribution of
any assets upon the Trustee's receiving assurances reasonably satisfactory to it
that the approval of appropriate governmental or other authorities has been
secured and that all notices and other procedures required by applicable law
have been complied with. The Trustee shall be entitled to assume that such
distributions are in full compliance with and not in violation of the terms of
the Plan or any applicable law.
8.2 REMOVAL OR RESIGNATION OF TRUSTEE. The Trustee may be removed with
respect to all or part of the Fund upon receipt of sixty (60) days' written
notice (unless a shorter or longer period is agreed upon) from the Company. The
Trustee may resign as Trustee hereunder upon sixty (60) days' written notice
(unless a shorter or longer period is agreed upon) delivered to the Company. In
the event of such removal or resignation, a successor trustee will be appointed
and the retiring Trustee shall transfer the Fund, less such amounts as may be
reasonable and necessary to cover its compensation and expenses. In the event
the Company fails to appoint a successor trustee within sixty (60) days of
receipt of written notice of resignation, the Trustee reserves the right to seek
the appointment of a successor trustee from a court of competent jurisdiction.
The Trustee shall have no duties, responsibilities or liability with respect to
the acts or omissions of any successor trustee.
8.3 PROPERTY NOT TRANSFERRED. The Trustee reserves the right to retain such
property as is not suitable for distribution or transfer at the time of the
termination of a Plan or this Agreement and shall hold such property for the
benefit of those persons or other entities entitled to such property until such
time as the Trustee is able to make distribution. Upon the appointment and
acceptance of a successor trustee, the Trustee's sole duties shall be those of a
custodian with respect to any property not transferred to the successor trustee.
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SECTION 9
ADDITIONAL PROVISIONS
9.1 NO MERGER, CONSOLIDATION OR TRANSFER OF PLAN ASSETS OR TRANSFER OF PLAN
ASSETS OR LIABILITIES. Notwithstanding anything to the contrary contained
herein, no merger, consolidation or transfer of the assets or liabilities of the
Plan with or to any other plan shall be permitted, except in compliance with the
provisions of ERISA and the Code which are applicable to such mergers,
consolidations or transfers, including, without limitation, Sections 208 and
4043(b)(8) of ERISA and Sections 401(a)(12), 414(l), and 6058(b) of the Code,
and the regulations thereunder.
9.2 ASSIGNMENT OR ALIENATION. Except as may be required by law or permitted
by the Plan, the Fund shall not be subject to any form of attachment,
garnishment, sequestration or other actions of collection afforded creditors of
the Employer, participants or beneficiaries under the Plan. The Trustee shall
not recognize any permitted assignment or alienation of benefits unless directed
to do so by the Named Fiduciary or required to do so by applicable law.
9.3 SUCCESSORS AND ASSIGNS. Neither the company nor the Trustee may assign
this Agreement without the prior written consent of the other, except that the
Trustee may assign its rights and delegate its duties hereunder to any
corporation or entity which directly or indirectly is controlled by, or is under
common control with, the Trustee. This Agreement shall be binding upon, and
inure to the benefit of, the Company and the Trustee and their respective
successors and permitted assigns. Any entity which shall by merger,
consolidation, purchase, or otherwise, succeed to substantially all the trust
business of the Trustee shall, upon such succession and without any appointment
or other action by the Company, be and become successor trustee hereunder, upon
notification to the Company.
9.4 GOVERNING LAW. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York (without giving effect to conflict
of law principles thereof) to the extent not preempted by Federal law.
9.5 NECESSARY PARTIES. The Trustee reserves the right to seek a judicial or
administrative determination as to its proper course of action under this
Agreement. Nothing contained herein will be construed or interpreted to deny the
Trustee or the Company the right to have the Trustee's account judicially
determined. To the extent permitted by law, only the Trustee and the Company
shall be necessary parties in any application to the courts for an
interpretation of this Agreement or for an accounting by the Trustee, and no
participant or beneficiary under the Plan or other person having an interest in
the Fund shall be entitled to any notice or service of process. Any final
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judgment entered in such an action or proceeding shall, to the extent permitted
by law, be conclusive upon all persons.
9.6 NO THIRD PARTY BENEFICIARIES. The provisions of this Agreement are
intended to benefit only the parties hereto, their respective successors and
assigns, and participants and their beneficiaries under the Plan. There are no
other third party beneficiaries.
9.7 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, and said
counterparts shall constitute but one and the same instrument and may be
sufficiently evidenced by one counterpart.
9.8 NO ADDITIONAL RIGHTS. Neither the establishment of the Fund nor this
Agreement shall be considered as giving any Plan participant or any other person
any legal or equitable rights against the Employer, the Named Fiduciary, the
Trustee or the assets, whether corpus or income, of the Fund unless such right
is specifically provided for in this Agreement or the Plan, nor shall it be
considered as giving any Plan participant or other employee of the Employer the
right to continue in the service of the Employer in any capacity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the effective date set forth above.
Authorized signer of: Authorized Officer of:
REVERE FEDERAL SAVINGS & LOAN THE BANK OF NEW YORK
ASSOCIATION
By: /s/ JAMES J. MCCARTHY By:
------------------------- ------------------------
Name: JAMES J. MCCARTHY Name:
Title: President/CEO Title:
Date: 10-21-98 Date:
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EXHIBIT 4.3
-----------
Federal Stock Charter of RFS Bancorp, Inc., incorporated by reference to the
Registrant's Registration Statement on Form SB-2, dated September 9, 1998, as
amended, Registration No. 333-63083, and any amendments thereto.
EXHIBIT 4.4
-----------
By-Laws of RFS Bancorp, Inc., incorporated by reference to the Registrant's
Registration Statement on Form SB-2, dated September 9, 1998, Registration No.
333-63083, and any amendments thereto.
EXHIBIT 5./EXHIBIT 23.1
-----------------------
Opinion of Thacher Proffitt & Wood, counsel for Registrant,
as to the legality of the securities being registered
Consent of Thacher Proffitt & Wood
EXHIBIT 23.2
------------
[Letterhead of Shatswell, MacLeod and Company, P.C.]
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in the Registration Statement on Form S-8 of our report dated October
17, 1997, except for Note 12, as to which the date is January 21, 1998 (and to
all references to our Firm) relating to the consolidated financial statements of
Revere Federal Savings and Loan Association and Subsidiary as of September 30,
1997 and 1996, and for each of the years in the three-year period ended
September 30, 1997, which report is included in the Registration Statement on
Form SB-2 filed by RFS Bancorp, Inc. (Registration No. 333-63083) and
incorporated herein by reference.
/s/ Shatswell, MacLeod and Company, P.C.
----------------------------------------
SHATSWELL, MacLEOD and COMPANY, P.C.
West Peabody, Massachusetts
November 9, 1998
