As filed with the Securities and Exchange Commission on February 12, 1999
Registration Statement No.:
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
Form S-8
REGISTRATION STATEMENT
Under
The Securities Act Of 1933
--------------------
WASHINGTON TRUST BANCORP, INC.
(Exact name of Registrant as specified in its Charter)
Rhode Island 05-0404671
(State or other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
23 Broad Street Westerly, Rhode Island 02891
(401) 348-1200
(Address of Registrant's principal executive offices)
THE WASHINGTON TRUST COMPANY
NONQUALIFIED DEFERRED COMPENSATION PLAN
(Full title of the Plan)
-----------------------------------
John C. Warren
President and Chief Executive Officer
WASHINGTON TRUST BANCORP, INC.
23 Broad Street
Westerly, Rhode Island 02891
(401) 348-1200
(Name, address, including zip code, and telephone number,
including area code, of Agent for Service)
Copy to:
Gregory J. Lyons, Esq.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
(617) 570-1329
-------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------- ------------------- --------------------------- -------------------------- -------------------
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Registered (1) Price Per Share(2) Aggregate Offering Registration Fee
Price(2)(3)
- ---------------------- ------------------- --------------------------- -------------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, $0.0625
par value 25,000 shares $19.2815 $482,037.50
Deferred
Compensation
Obligations $1,500,000.00
----------------
$1,982,038.50 $551.01
- ---------------------- ------------------- --------------------------- -------------------------- -------------------
<FN>
(1) Plus such additional number of shares as may be required pursuant to The
Washington Trust Company Nonqualified Deferred Compensation Plan (the
"Plan") as described herein in the event of a stock dividend, reverse
stock split, split-up, recapitalization or other similar event.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act of 1933, as amended, solely for the purpose of determining
the amount of the registration fee on February 8, 1999, utilizing the
average of the high and low sale prices reported on the Nasdaq National
Market System on that date.
(3) This estimate is made pursuant to Rule 457(h) under the Securities Act
of 1933, as amended, based on the estimated amount of compensation being
deferred under the Plan.
</FN>
</TABLE>
This Registration Statement, including exhibits (See Exhibit Index on Page 3),
consists of 67 pages.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in the requirements of Part I
are not required to be filed with the Securities and Exchange Commission as part
of this Registration Statement on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
Incorporated by reference in this Registration Statement are the documents
listed in (a) through (c) below, which have previously been filed by Washington
Trust Bancorp, Inc. (the "Registrant") with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, filed with the Commission on March 18,
1998, pursuant to the Exchange Act; and the Registrant's Annual
Report on Form 10-K/A for the fiscal year ended December 31,
1997, filed with the Commission on March 30, 1998, pursuant to
the Exchange Act.
(b) The Registrant's (i) Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998, filed on May 15, 1998; (ii)
Quarterly Report on Form 10-Q for the quarter ended June 30,
1998, filed on August 14, 1998; (iii) Quarterly Report on Form
10-Q for the quarter ended September 30, 1998, filed on November
13, 1998; (iv) Current Report on Form 8-K filed on January 2,
1998; and (v) Current Report on Form 8-K filed on June 19, 1998,
each of which has been filed with the Commission pursuant to the
Exchange Act.
(c) The description of the Registrant's Common Stock is contained in
the Registrant's Registration Statement filed pursuant to the
Exchange Act, including any amendments and reports filed for the
purpose of updating such description.
In addition, all documents subsequently filed by the Company or the Plan with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, 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, shall be deemed to be incorporated by reference in this
Registration Statement and to be part thereof from the date of filing of such
documents.
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 Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is incorporated or deemed to
be incorporated by reference herein modifies or superseded such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
<PAGE>
Item 4. Description of Securities.
The securities being registered represent obligations (the "Obligations") of the
Registrant to pay to directors of the Bancorp and of the Washington Trust
Company (the "Company"), a direct wholly-owned subsidiary of the Registrant, and
to certain designated Company employees, upon their retirement or the occurrence
of certain triggering events, compensation the receipt of which the participants
have elected to defer. The Obligations may also represent amounts that the
Registrant has elected to credit to a participant's account under the Plan.
Amounts credited to a participant's account are credited with earnings based on
a notional investment measurement, which may be shares of mutual funds, a fund
consisting primarily of shares of the Registrant's Common Stock or certificate
of deposit offered by the Company. The Obligations are payable in cash or in
shares of the Registrant's Common Stock upon retirement or the occurrence of a
specified triggering event in a lump sum distribution or in installments, at the
election of the participant made in accordance with the Plan. There is no
trading market for the Obligations.
The Obligations are unsecured general obligations of the Registrant and rank
pari passu with other unsecured and unsubordinated indebtedness of the
Registrant. The Obligations are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment. Any attempt by any person to transfer or assign benefits under the
Plan other than a claim for benefits by a participant or his or her
beneficiary(ies), will be null and void.
The Obligations are not convertible into any other security of the Registrant.
No trustee has been appointed to take action with respect to the Obligations and
each participant in the Plan will be responsible for enforcing his or own rights
with respect to the Obligations. The Company has established a "rabbi trust" to
serve as a source of funds from which it can satisfy the Obligations.
Participants in the Plan will have no rights to any assets held by the rabbi
trust, except as general creditors of the Registrant and the Company. Assets of
the rabbi trust will at all times be subject to the claims of the general
creditors of the Registrant and the Company.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant is a publicly-owned, registered bank holding company, organized
in 1984 under the laws of the State of Rhode Island, whose subsidiaries are
permitted to engage in banking and other financial services and businesses.
Rhode Island General Laws Section 7-1.1-4.1, as amended (the "Law"), provides
that a corporation generally has the power to indemnify directors, officers,
employees and agents against judgments, penalties, fines, settlements and
reasonable expenses, including attorneys' fees, actually incurred in connection
with any threatened, pending or contemplated action, suit, or proceeding,
whether civil, criminal, administrative or investigative, to which such
director, officer, employee or agent may be a party by reason of his being a
director, officer, employee or agent, provided that such director, officer,
employee or agent shall have acted in good faith and shall have reasonably
believed (a) in the case of conduct in his or her official capacity with the
corporation, that his or her conduct was in the corporation's best interests,
(b) in all other cases, that his or her conduct was at least not opposed to its
best interests, and (c) in the case of any criminal proceeding, he or she had no
reasonable cause to believe his or her conduct was unlawful.
<PAGE>
The Registrant's By-Laws provide for indemnification to the extent permitted
under the Law. Specifically, the Registrant's By-Laws provide that such rights
to indemnification are contract rights and that the expenses incurred by an
indemnified person shall be paid in advance of a final disposition of any
proceeding; provided, however, that if required under applicable law, such
person delivers a written affirmation that such person has met the standards of
care required under such provisions to be entitled to indemnification. With
respect to possible indemnification of directors, officers and controlling
person of the Registrant for liabilities arising under the Securities Act, as
amended, pursuant to such provisions, the Registrant is aware that the
Commission has publicly taken the position that such indemnification is against
public policy as expressed in Securities Act and is, therefore unenforceable.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed below represent a complete list of exhibits
filed or incorporated by reference as part of this Registration
Statement.
4.1 Restated Articles of Incorporation of the Registrant.*
4.2 Amendment to Restated Articles of Incorporation of the Registrant.**
4.3 Amended and Restated By-Laws of the Registrant.***
4.4 The Registrant's Amended and Restated Plan.
5.1 Legal opinion from Goodwin, Procter and Hoar LLP.
15.1 Letter regarding unaudited financial information from KPMG
LLP, as independent auditors.
23.1 Consent of KPMG LLP, as independent auditors.
23.2 Consent of Goodwin, Procter and Hoar LLP (contained in the opinion
filed as Exhibit 5.1 to this Registration Statement).
24.1 Power of attorney (included in the signatory page to this
Registration Statement).
- -------------------------
* Filed with the Commission pursuant to the Exchange Act as Exhibit 3.
(i) to the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994, and is incorporated herein by reference
thereto.
** Filed with the Commission pursuant to the Exchange Act as Exhibit 3.i
to the Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1997, and is incorporated herein by reference
thereto.
*** Filed with the Commission pursuant to the Exchange Act as Exhibit 3.c
to the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, and is incorporated herein by reference
thereto.
<PAGE>
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the 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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
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)
of this Item 9 do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission 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 any liability under
the Securities Act, 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.
(b) 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.
<PAGE>
(h) 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 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of 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 Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Town of Westerly, State of Rhode Island, on February 10,
1999.
WASHINGTON TRUST BANCORP, INC.
By: John C. Warren
-------------------------------------
John C. Warren
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and directors
of Washington Trust Bancorp, Inc., hereby severally constitute John C. Warren
and David V. Devault and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below and in such other capacities as the undersigned
may from time to time serve in the future, the Registration Statement filed
herewith and any and all amendments to said Registration Statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable Washington Trust Bancorp, Inc. to comply with the
provisions of the Securities Act of 1933, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------------------- ----------------------------- ------------------
John C. Warren President and Chief February 10, 1999
- --------------------- Executive Officer
John C. Warren (principal executive officer)
David V. Devault Executive Vice President, February 10, 1999
- --------------------- Treasurer and Chief Financial
David V. Devault Officer (principal financial
and accounting officer)
- --------------------- Director February __, 1999
Alcino G. Almeida
- --------------------- Director February __, 1999
Gary P. Bennett
- --------------------- Director February __, 1999
Steven J. Crandall
Richard A. Grills Director February 10, 1999
- ---------------------
Richard A. Grills
- --------------------- Director February __, 1999
Larry J. Hirsch
Katherine W. Hoxsie Director February 10, 1999
- ---------------------
Katherine W. Hoxsie
- --------------------- Director February __, 1999
Mary E. Kennard
Joseph J. Kirby Director February 10, 1999
- ---------------------
Joseph J. Kirby
James W. McCormick, Jr. Director February 11, 1999
- -----------------------
James W. McCormick, Jr.
- ----------------------- Director February __, 1999
Brendan P. O'Donnell
<PAGE>
Signature Title Date
- --------------------- ----------------------------- ------------------
- --------------------- Director February __, 1999
Victor J. Orsigner II
Anthony J. Rose, Jr. Director February 10, 1999
- ---------------------
Anthony J. Rose, Jr.
James P. Sullivan Director February 11, 1999
- ---------------------
James P. Sullivan
Neil H. Thorp Director February 10, 1999
- ---------------------
Neil H. Thorp
John C. Warren Director February 10, 1999
- ---------------------
John C. Warren
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
-------- ----------------------------------------------------------
4.1 Restated Articles of Incorporation of the Registrant.*
4.2 Amendment to Restated Articles of Incorporation of the Registrant.**
4.3 Amended and Restated By-Laws of the Registrant.***
4.4 The Registrant's Amended and Restated Plan.
5.1 Legal opinion from Goodwin, Procter and Hoar LLP.
15.1 Letter regarding unaudited financial information from KPMG LLP, as
independent auditors.
23.1 Consent of KPMG LLP, as independent auditors.
23.2 Consent of Goodwin, Procter and Hoar LLP (contained in the opinion
filed as Exhibit 5.1 to this Registration Statement).
24.1 Power of attorney (included in the signatory page to this
Registration Statement).
- --------------------------
* Filed with the Commission pursuant to the Exchange Act as Exhibit 3.
(i) to the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994, and is incorporated herein by reference
thereto.
** Filed with the Commission pursuant to the Exchange Act as Exhibit 3.i
to the Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1997, and is incorporated herein by reference
thereto.
*** Filed with the Commission pursuant to the Exchange Act as Exhibit 3.c
to the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, and is incorporated herein by reference
thereto.
EXHIBIT 4.4
ADOPTION AGREEMENT
FOR
The Washington Trust Company
NONQUALIFIED DEFERRED COMPENSATION PLAN
As Amended and Restated As of January 1, 1999
This is the Adoption Agreement executed as of November 19, 1998, by The
Washington Trust Company (the "Company") for The Washington Trust Company
Nonqualified Deferred Compensation Plan, presented to the Company by Smith
Barney Inc.
Before executing this Adoption Agreement
and related documents, the Company should
obtain the advice of its own tax advisor
and/or attorney.
* * * * * * * *
The Company hereby restates its nonqualified deferred compensation plan
upon the terms and conditions contained in the annexed The Washington Trust
Company Nonqualified Deferred Compensation Plan, and the Trust Agreement. The
Plan shall be supplemented by the terms and conditions contained in this
Adoption Agreement.
A copy of the Plan and the Trust Agreement are annexed hereto as
Appendices A and B, respectively.
* * * * * * * *
<PAGE>
I. COMPANY DATA
A. The Washington Trust Company Nonqualified Deferred Compensation Plan
--------------------------------------------------------------------
Company Plan Name
B. The Washington Trust Company
----------------------------
Company Name
C. 23 Broad Street
---------------
Address
Westerly, RI 02891
-------------------
D. Rhode Island
------------------------------------------
State of Principal Place of Business
E. (401) 348-1200
----------------------
Telephone Number
F. (401) 348-1565
----------------------
Fax Number
G. 05-0235370
---------------------------------------
Company Tax Identification Number
H. December 31
---------------------------------
Company's Taxable Year Ends
I. January 1 - December 31
-----------------------
Plan Year
J. January 1, 1999
----------------------------
Effective Date of Plan
<PAGE>
II. ELIGIBILITY
An Employee shall be considered an Eligible Employee1 if he or she
falls into one or more of the following categories on any date when a
determination of Eligible Employees is made for purposes of the Plan :
[ ] A. Such Employee is designated as an Eligible Employee in writing
by the Company from time to time. The Eligible Employees as of
this date are listed in Appendix C.
[X] B. Such Employee is employed in the following positions or
job categories (fill in categories or positions as
appropriate):
President, Executive Vice President, Senior Vice President
-----------------------------------------------------------
[X] C. Directors
III. COMPENSATION
(Select only one):
[ ] A. The definition of Compensation (or a similar term) as used for
purposes of benefit accrual or contribution allocation in the
Company's retirement plan qualified under Section 401(a) of
the Internal Revenue Code of 1986, as amended (the "Code")
(or, alternatively, in the following plan:
_____________________________________________). A copy of the
relevant language is annexed hereto as Appendix D.
[X] B. The Participant's earned income, wages and salary from the
Company as reported on Form W-2 (or other appropriate form)
for federal income tax purposes, including only the following
(select all that apply):
[X] 1. Salary;
[X] 2. Bonuses;
[ ] 3. Commission income;
[X] 4. Other eligible income (specify):
Directors' Fees and Retainers
-------------------------------------------------
- ----------------
1 All Eligible Employees must be management or highly compensated employees
within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the
Employee Retirement Income Security Act of 1974 (ERISA), as amended.
- ----------------
For purposes of the Plan, Compensation will be determined
before giving effect to Compensation Deferrals and other
salary reduction amounts which are not included in the
Participant's gross income under Code Sections 125, 401(k),
402(h) or 403(b).
IV. CONTRIBUTIONS
(Select all that apply):
[X] A. Compensation Deferrals. Participants may elect to reduce their
Compensation and to have Compensation Deferrals credited to
their Accounts by making an election under the Plan (which may
be changed each year for later Plan Years as described in the
Plan). No Participant may defer more than the following
percentages of his or her Compensation for a Plan Year
(0%-100%). The annual minimum deferral amount is $1,000.00 per
Participant.
(Select all that apply):
1. 25 % of Salary
2. 100 % of Bonuses
3. ___ % of Commissions
4. 100 % of Other eligible income
(as specified in Item III.B.4, above)
[X] B. Matching Contributions.
The Company shall make a Matching Contribution equal to
(select or complete only one):
[ ] 1. __________ percent (_______%) of the Compensation Deferrals
contributed by the Participant.
[ ] 2. __________ percent (_______%) of the Compensation Deferrals
contributed by the Participant up to a maximum of ___________
(______%) of each Participant's Compensation.
[ ] 3. A percentage of each Participant's Compensation determined
annually by the Company, in its sole discretion.
[X] 4. The Company will not make Matching Contributions.
[X] C. Company Contributions.
The Company reserves the right to make discretionary contributions to
Participants' Accounts in such amount and in such manner as may be
determined by the Company.
V. BENCHMARK INVESTMENT FUNDS
The Plan offers the Benchmark Investment Funds as specified in writing
by the Administrator from time to time. The Benchmark Investment Funds
as of this date are listed in Appendix C.
VI. TIMING OF ACCOUNT CREDITING
A. Compensation Deferrals and Matching Contributions.
Compensation Deferrals and Matching Contributions shall be
credited to a Participant's Account and to the Trust, or to a
Company Account if a Trust is not established pursuant to
Section X below, as soon as administratively feasible
following:
[X] 1. Each payroll period for employees
[X] 2. The close of each month for directors
[ ] 3. The close of each calendar quarter
[ ] 4. The close of each Plan Year
B. Benchmark Returns. Benchmark Returns shall be credited to a
Participant's Account and to the Trust, or to a Company
Account if a Trust is not established pursuant to Section X
below, as soon as administratively feasible at least (select
only one):
[ ] 1. Quarterly
[ ] 2. Annually
[X] 3. Other: daily
VII. VESTING
(Select all that apply; if more than one alternative is indicated,
vesting shall occur on the earliest of such alternatives to be met):
[X] A. A Participant's Account attributable to Company Contributions
and Matching Contributions shall vest in accordance with the
following schedule (select only one):
[X] 1. 100% immediate vesting
[ ] 2. 100% vesting after ____ Years of Service
(a) Years of Service shall be measured by employment
during one of the following periods (select only one):
___ 12 month periods commencing with the
Participant's date of hire and
anniversaries thereof
___ Calendar year
___ 12 month periods beginning on _____
each year
[ ] 3. Graded vesting (fill in as appropriate):
Years of Service Incremental Vested
as defined above Percentage
___ but less than ___ ____%
___ but less than ___ ____%
___ but less than ___ ____%
___ but less than ___ ____%
___ but less than ___ ____%
The Total percent must add up to 100%.
[ ] B. A Participant who attains age ______ shall be fully vested in
the amounts credited to his or her Account, as defined in
the Plan.
[ ] C. A Participant shall be fully vested at death in the amounts
credited to his or her Account, as defined in the Plan.
[ ] D. A Participant shall be fully vested in the amounts credited to
his or her Account upon a Change of Control. (The conditions
constituting a Change of Control are determined by Company
election in Section XI of this Adoption Agreement).
[ ] E. A Participant shall be fully vested in the amounts credited to
his or her Account upon termination of employment due to Total
and Permanent Disability, as defined in the Plan.
VIII. ACCOUNTS
The following type(s) of Accounts will be available under the Plan
(select all that apply):
[ ] 1. Education Account
[ ] 2. Fixed Date Account
[ ] 3. Retirement Account
[X] 4. All of the above
IX. DISTRIBUTIONS AND WITHDRAWALS
(Select all that apply):
[X] A. Retirement Accounts. Retirement Accounts will be paid commencing
in the January immediately after the calendar year in which
the Participant (select only one):
[X] 1. With respect to Employees, attains retirement
eligibility as defined in the Company's qualified
retirement plan.
[X] 2. With respect to Directors, terminates directorship
after attaining age 55.
[X] B. Forfeiture for Early Distribution.
(Select only one):
[ ] 1. This provision does not apply
[X] 2. This provision does apply
Pursuant to Section 7.4 of the Plan, the Company will
distribute to the Participant upon an early distribution an
amount equal to 90% (percentage not to exceed 90%) of the
vested amounts in such Participant's Account.
[X] C. Withdrawals for Unforeseeable Emergency. If the Company checks
the first space below, Participants will be permitted to make
withdrawals while working in the event they encounter an
unforeseeable emergency (as defined in the Plan).
NOTE: Withdrawals are strictly limited as described in Plan
Section 7.3(b). It is the Administrator's responsibility to
ensure that the limits are being followed. Excess withdrawals
may result in loss of the tax deferral on all amounts credited
under the Plan for the benefit of all Participants.
Withdrawals of the vested portion of a Participant's Account for
unforeseeable emergencies (select only one):
[X] Are permitted to the full extent allowable under the Plan
[ ] Are not permitted
X. TRUST
(Select only one):
[ ] A trust will not be established in connection with the Plan.
[X] A trust will be established in connection with the Plan.
XI. CHANGE OF CONTROL
(Select A or B):
[ ] A. The following "Change of Control" provision applies
(select only one):
[ ] 1. The definition as set forth in the Plan.
[ ] 2. The definition annexed hereto as Appendix E, which
shall be deemed incorporated in the Plan as though set
forth in full therein.
[X] B. The "Change of Control" provisions in the Plan do not apply.
The "Change of Control" provisions of the Trust do apply.
However, the definition of "Change of Control" annexed hereto
as Appendix D shall be deemed incorporated in the Plan as
though set forth in full therein.
XII. EXPENSES
(For each category below, select only one after reading Section 9 of the
Trust Agreement):
A. Administrative fees and expenses shall be:
[X] 1. Paid by the Company
[ ] 2. Paid by the Trust
B. Trustee's fees and expenses shall be:
[X] 1. Paid by the Company
[ ] 2. Paid by the Trust
XIII. ADMINISTRATION
The Company will be deemed the Administrator of the Plan unless another
Administrator is designated below:
The Administrator shall be the following individual(s) or committee (by
name or position):
Compensation and Benefits Committee of the Board of Directors of the
--------------------------------------------------------------------
Company
--------------------------------------------------------------------
XIV. ADOPTION OF PLAN
The Company hereby adopts the Plan in the form annexed as Appendix A
hereto.
IN WITNESS WHEREOF, the Company has caused this Adoption Agreement to
be executed this 19th day of November 1998.
Attest: The Washington Trust Company
Harvey C. Perry By: John C. Warren
- --------------- --------------------------------
Secretary Name
President and Chief Executive Officer
-------------------------------------
Title
<PAGE>
ADOPTION AGREEMENT
List of Appendices
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Appendix A Nonqualified Deferred Compensation Plan
Appendix B Trust Agreement
Appendix C List of Benchmark Investment Funds
Appendix D Definition of Change of Control
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Appendix A
Nonqualified Deferred Compensation Plan
THE WASHINGTON TRUST COMPANY
NONQUALIFIED DEFERRED COMPENSATION PLAN
Amended and Restated as of January 1, 1999
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The Washington Trust Company
NONQUALIFIED DEFERRED COMPENSATION PLAN
Amended and Restated as of January 1, 1999
TABLE OF CONTENTS
ARTICLE I...................................................................1
Definitions........................................................1
1.1 Definitions..........................................1
1.2 Terms................................................4
1.3 Trust References.....................................4
ARTICLE II..................................................................4
Purpose............................................................4
2.1 Purpose.....................................................4
ARTICLE III.................................................................5
Participation......................................................5
3.1 Commencement of Participation........................5
3.2 Continuation of Participation........................5
ARTICLE IV..................................................................5
Contributions......................................................5
4.1 Compensation Deferrals...............................5
4.2 Matching Contributions...............................6
4.3 Company Contribution.................................6
4.4 Time and Form of Contributions.......................6
ARTICLE V...................................................................7
Vesting............................................................7
5.1 Vesting.....................................................7
ARTICLE VI..................................................................8
Accounts...........................................................8
6.1 Accounts.............................................8
6.2 Benchmark Investment Elections.......................9
6.3 Forfeitures..........................................9
ARTICLE VII.................................................................9
Distributions......................................................9
7.1 Distribution Election................................9
7.2 Payment Options......................................10
7.3 Commencement of Payment.............................10
7.4 Effect of Early Distribution.........................11
7.5 Changes Affecting an Education Account...............11
ARTICLE VIII................................................................12
Beneficiaries......................................................12
8.1 Beneficiaries........................................12
8.2 Lost Beneficiary.....................................12
8.3 Individuals Designated in Connection with Education
Accounts.........................................12
8.4 Enforceability of Beneficiary Designations...........13
ARTICLE IX..................................................................13
Funding............................................................13
9.1 Prohibition Against Funding..........................13
9.2 Deposits in Trust....................................13
9.3 Withholding of Employee Contributions................13
ARTICLE X...................................................................14
Administration.....................................................14
10.1 Plan Administration..................................14
10.2 Administrator........................................14
10.3 Claims Procedures....................................14
ARTICLE XI..................................................................15
General Provisions.................................................15
11.1 No Assignment......................................15
11.2 No Employment Rights...............................15
11.3 Incompetence.......................................16
11.4 Identity...........................................16
11.5 Other Benefits.....................................16
11.6 No Liability.......................................16
11.7 Expenses...........................................16
11.8 Amendment and Termination..........................17
11.9 Company Determinations.............................17
11.10 Construction.......................................17
11.11 Governing Law......................................17
11.12 Severability.......................................17
11.13 Headings...........................................17
11.14 Approval of IRS....................................18
11.15 Disclaimer.........................................18
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THE WASHINGTON TRUST COMPANY
NONQUALIFIED DEFERRED COMPENSATION PLAN
Amended and Restated as of January 1, 1999
WHEREAS, the Washington Trust Bancorp, Inc. (the "Bancorp") and The
Washington Trust Company (the "Company") (collectively, the "Corporation")
established the Washington Trust Bancorp, Inc. and The Washington Trust Company
Plan for Deferral of Director's Fees (the "Plan") on February 11, 1988 for the
purpose of permitting the members of the Board of Directors of the Corporation
to defer receipt of all or any part of their retainer and fees for services as a
Director in order to provide supplemental retirement and tax benefits for such
individuals; and
WHEREAS, the Company desires to amend and restate the Plan to, among
others, extend the provision of such supplemental retirement and tax benefits to
a select group of management or highly compensated employees; and
WHEREAS, the Company wishes to rename the Plan as The Washington Trust
Company Nonqualified Deferred Compensation Plan; and
WHEREAS, the Plan provides that the Company may amend the Plan at any
time.
NOW, THEREFORE, the Company hereby amends and restates the Plan as
follows, effective as of January 1, 1999.
ARTICLE I
Definitions
1.1 Definitions. The following terms have the meanings set forth
herein, unless the context otherwise requires:
Account.
The bookkeeping account established for each Participant as provided in Section
6.1 hereof. The term includes Education Accounts, Fixed Date Accounts and
Retirement Accounts to the extent permitted under the Adoption Agreement, unless
the context otherwise requires.
Administrator.
The person, persons, or entity designated in the Adoption Agreement to
administer the Plan. If no such person or entity is selected, the Administrator
shall be deemed to be the Company.
Adoption Agreement.
The Adoption Agreement for the nonqualified deferred compensation plan executed
by the Company to establish the Plan, in the form annexed hereto.
Benchmark Investment Fund.
The investment fund or funds selected by the Administrator from time to time.
Benchmark Return.
The amount of any increase or decrease in the balance of a Participant's Account
reflecting the gain or loss, net of any expenses, on the assets deemed invested
in each Benchmark Investment Fund by the Participant from time to time.
Change of Control.
If the Company has designated a specific definition of "Change of Control" as
annexed to its Adoption Agreement, such definition shall apply for purposes of
the Plan.
Claims Notice.
Defined in Section 10.3 hereof.
Code.
The Internal Revenue Code of 1986, as amended.
Company.
The business entity that adopts the Plan by execution of the Adoption Agreement.
Company Account.
The account established by the Company for the purpose of investing the Plan
assets.
Company Contribution.
A discretionary contribution that is credited to one or more of a Participant's
Accounts in accordance with the terms of Section 4.3 hereof and the Adoption
Agreement.
Compensation.
Compensation shall have the meaning specified in the Adoption Agreement.
Compensation Deferrals.
The portion of Compensation that a Participant elects to defer in accordance
with Section 4.1 hereof.
Director.
Any director of the Company or the Bancorp.
Education Account.
An Account established for a Participant with distribution to be made when the
Participant incurs expenses associated with college, postgraduate or
professional education, with the timing of distribution from such Account based
upon the age of a specifically designated person.
Effective Date.
The date specified by the Company in the Adoption Agreement as the date the Plan
becomes effective.
Eligible Employee.
An Employee of the Company who satisfies the eligibility requirements specified
in the Adoption Agreement.
Employee.
Any person employed by the Company or any subsidiaries.
ERISA.
Employee Retirement Income Security Act of 1974, as amended.
Fixed Date Account.
An Account established for a Participant with distributions to be made on a date
certain determined in accordance with the Adoption Agreement.
Matching Contribution.
A contribution that is credited to one or more of a Participant's Accounts in
accordance with the terms of Section 4.2 hereof and the Adoption Agreement.
Participant.
An Eligible Employee or Director who has submitted a Participation Election Form
agreeing to participate in the Plan and whose Account has not been fully paid
out.
Participation Election Form.
The separate written agreement, submitted to the Administrator, by which an
Eligible Employee agrees to participate in the Plan and indicates all necessary
information to establish the Account(s) for such Eligible Employee as a
Participant under the Plan, including, but not limited to, the amount of
Compensation Deferral, and the designation of his or her Account(s) as
Education, Retirement or Fixed Date.
Plan.
The nonqualified deferred compensation plan adopted by the Company pursuant to
the Adoption Agreement and any amendments thereto, which shall incorporate this
Nonqualified Deferred Compensation Plan.
Plan Year.
The twelve (12) consecutive month period designated by the Company in the
Adoption Agreement.
Retirement Account.
An Account established for a Participant from which distributions are to be made
following retirement in accordance with the Adoption Agreement.
Rollover Contributions.
Rollover Contributions will equal account balances in The Washington Trust
Bancorp, Inc. and The Washington Trust Company Plan for Deferral of Directors'
Fees, as amended, as of the Effective Date, which are credited to this Plan as
beginning balances on the Effective Date.
Total and Permanent Disability.
Any medically determinable physical or mental disorder that renders a
Participant incapable of continuing employment with the Company and is expected
to continue for the remainder of a Participant's life.
Trust.
The agreement between the Company and the Trustee under which the assets of the
Plan are held, administered and managed.
Trustee.
The Trustee designated in the Adoption Agreement, including any and all
successor trustees to the Trust.
Unforeseeable Emergency.
Defined in Section 7.3 hereof, and subject to interpretation in accordance with
regulations governing such definition promulgated under the Code.
Years of Plan Service.
Defined in Section 5.1(a)(3) hereof.
Years of Service.
Defined in Section 5.1(a)(2) hereof.
1.2 Terms. Capitalized terms shall have meanings as defined herein.
Singular nouns shall be read as plural, and masculine pronouns shall be read as
feminine, and vice versa, where appropriate.
1.3 Trust References. Any references to the operation of a Trust
contained in this Plan shall only be given effect if and to the extent the
Company has elected in the Adoption Agreement to establish such a Trust in
connection with the Plan.
ARTICLE II
Purpose
2.1 Purpose. The purpose of this Plan is to provide key Employees and
Directors supplemental retirement and tax benefits through the deferral of
Compensation and Directors' retainers and fees. The Plan is intended to be a
"plan which is unfunded and is maintained by an employer primarily for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees" within the meaning of Sections 201(2), 301(a)(3)
and 401(a)(1) of ERISA, and shall be interpreted and administered to the extent
possible in a manner consistent with that intent.
ARTICLE III
Participation
3.1 Commencement of Participation. Each Eligible Employee or Director
shall become a Participant at the earlier of the date on which his or her
Participation Election Form first becomes effective or the date on which a
Company Contribution is first credited to his or her Account.
3.2 Continuation of Participation. Each Eligible Employee or Director
shall remain a Participant hereunder until all amounts credited to his or her
Account are distributed in full. No Compensation Deferrals are permitted in any
Plan Year in which an Employee or Director no longer satisfies the criteria for
eligibility set forth in the Adoption Agreement.
ARTICLE IV
Contributions
4.1 Compensation Deferrals.
(a) The Company shall credit to the Account of a Participant
an amount equal to the amount designated in the Participant's Participation
Election Form for that Plan Year. Such amounts shall not be made available to
such Participant, except as provided in ARTICLE VII hereof, and, as Compensation
Deferrals, shall reduce such Participant's Compensation from the Company in
accordance with the provisions of the applicable Participation Election Form;
provided, however, that all such amounts shall be subject to the rights of the
general creditors of the Company as provided in ARTICLE IX hereof.
(b) Each Eligible Employee or Director shall deliver a
Participation Election Form to the Company before any Compensation Deferrals can
become effective. Such Participation Election Form shall be void with respect to
any Compensation Deferral unless submitted before the beginning of the calendar
year during which the amount to be deferred will be earned; provided, however,
that in the year in which the Plan is first adopted or an Employee or Director
is first eligible to participate, such Participation Election Form shall be
filed within thirty (30) days of the date on which the Plan is adopted or the
date on which an Employee or Director is first eligible to participate,
respectively, with respect to Compensation earned during the remainder of the
calendar year. Notwithstanding the foregoing, a Participant may cease
Compensation Deferrals upon thirty (30) days advanced written notice to the
Administrator.
(c) The Participation Election Form shall, subject to the
limitations set forth in this Section 4.1, designate the amount of Compensation
deferred by each Participant, the beneficiary or beneficiaries of the
Participant and such other items as the Administrator may prescribe. Such
designations shall remain effective unless amended as provided in subsection
(d), below.
(d) A Participant may amend his or her Participation Election
Form from time to time; provided, however, that any amendment to the amount of a
Participant's Compensation Deferrals shall comply with the provisions of
subsection (b), above.
4.2 Matching Contributions. If elected by the Company in the
Adoption Agreement, the Company shall also credit to the Account of each
Participant who makes Compensation Deferrals a Matching Contribution in an
amount equal to the amount specified in the Adoption Agreement. If a Trust has
been elected by the Company in the Adoption Agreement, the Company shall
contribute to the Trust for the Participant's benefit the amount of such
Matching Contributions in accordance with the Adoption Agreement and this Plan.
If a Trust has not been elected by the Company in the Adoption Agreement, the
Company shall contribute to the Company Account the amount of such Matching
Contributions in accordance with the Adoption Agreement and this Plan.
4.3 Company Contribution. If elected by the Company in the
Adoption Agreement, the Company may from time to time make a discretionary
contribution to the Account of a Participant. If a Trust has been elected by the
Company in the Adoption Agreement, the Company shall contribute to the Trust for
the Participant's benefit the amount of such Company Contributions in accordance
with the Adoption Agreement and this Plan. If a Trust has not been elected by
the Company in the Adoption Agreement, the Company shall contribute to the
Company Account the amount of such Company Contributions in accordance with the
Adoption Agreement and this Plan.
4.4 Time and Form of Contributions.
(a) If the Company has elected a Trust in the Adoption Agreement:
(i) Compensation Deferrals and Matching Contributions shall be
transferred to the Trust as soon as administratively feasible for the Company
following the close of the period selected in the Adoption Agreement. The
Company shall also provide at that time any necessary instructions regarding the
allocation of such amounts among the Accounts of Participants.
(ii) Company Contributions shall be transferred to the Trust
at such time as the Company shall determine. The Company shall also transmit at
that time any necessary instructions regarding the allocation of such amounts
among the Accounts of Participants.
(iii) All Compensation Deferrals, Matching Contributions and
Company Contributions to the Trust shall be made in the form of cash, cash
equivalents of U.S. currency, shares of common stock of the Bancorp, or other
property acceptable to the Trustee.
(b) If the Company has not elected a Trust in the Adoption
Agreement:
(i) Compensation Deferrals and Matching Contributions shall be
transferred to the Company Account as soon as administratively feasible for the
Company following the close of the period selected in the Adoption Agreement.
The Company shall also provide at that time any necessary instructions regarding
the allocation of such amounts among the Accounts of Participants.
(ii) Company Contributions shall be transferred to the Company
Account at such time as the Company shall determine. The Company shall also
transmit at that time any necessary instructions regarding the allocation of
such amounts among the Accounts of Participants.
(iii) All Compensation Deferrals, Matching Contributions and
Company Contributions to the Company Account shall be made in the form of cash,
cash equivalents of U.S. currency or other property acceptable to the Trustee.
ARTICLE V
Vesting
5.1 Vesting.
(a) (1) Except as otherwise provided herein, a Participant
shall have a vested right to the portion of his or her Account attributable to
Compensation Deferrals and any Benchmark Returns on such Compensation Deferrals.
Except as otherwise provided herein, Matching Contributions and Company
Contributions, and any amounts attributable to Benchmark Returns on such
contributions, shall vest in accordance with the provisions set forth in the
Adoption Agreement; provided, however, that all such amounts shall be subject to
the rights of the general creditors of the Company as provided in ARTICLE IX
hereof.
(2) For purposes of this ARTICLE, a Participant's
"Years of Service" shall be determined by the twelve (12) month period (as
defined in the Adoption Agreement) of his or her employment with the Company.
(3) For purposes of this ARTICLE, a Participant's
"Years of Plan Service" shall include Plan Years specified in the Adoption
Agreement during which the Participant continues his or her employment with the
Company for the entire Plan Year.
(b) If elected by the Company in the Adoption Agreement, then,
notwithstanding Section 5.1 hereof, a Participant who attains the age specified
in the Adoption Agreement shall be fully vested in amounts credited to his or
her Account, regardless of his or her Years of Service or Years of Plan Service.
(c) If elected by the Company in the Adoption Agreement, a
Participant who has a termination of employment due to Total and Permanent
Disability shall be fully vested in the amounts credited to his or her Account
regardless of his or her Years of Service or Years of Plan Service.
(d) If elected by the Company in the Adoption Agreement, a
Participant shall be fully vested in the amounts credited to his or her Account
upon a Change of Control, regardless of his or her Years of Service or Years of
Plan Service.
(e) If elected by the Company in the Adoption Agreement, a
Participant shall be fully vested in the amounts credited to his or her Account
upon such Participant's death, regardless of his or her Years of Service or
Years of Plan Service.
(f) Any amounts credited to a Participant's Account that are not
vested at the time of his or her termination of employment with the Company
shall be forfeited as provided in Section 6.3 hereof.
ARTICLE VI
Accounts
6.1 Accounts.
(a) The Administrator shall establish and maintain a
bookkeeping Account in the name of each Participant. The Administrator may also
establish any subaccounts that it feels may be appropriate, including
designation of a portion of a Participant Account as a Fixed Date, Education or
Retirement Account.
(b) Each Participant's Account shall be credited with
Compensation Deferrals, any Matching Contributions allocable thereto, any
Company Contributions, any Rollover Contributions, and any amounts attributable
to Benchmark Returns. Each Participant's Account shall be reduced by any gross
amounts distributed from the Account pursuant to ARTICLE VII hereof and any
other appropriate adjustments. Such adjustments shall be made as frequently as
is administratively feasible.
6.2 Benchmark Investment Elections.
(a) The Administrator shall from time to time select
types of Benchmark Investment Funds and specific Benchmark Investment Funds for
deemed investment designation by Participants with respect to Accounts. The
Administrator shall notify the Participants of the types of Benchmark Investment
Funds and the specific Benchmark Investment Funds selected from time to time. On
the Participation Election Form, the Participant shall designate the specific
Benchmark Investment Funds in which the Account of the Participant will be
deemed to be invested in for purposes of determining the Benchmark Return to be
credited to the Account. In making the designation, the Participant may specify
that all or any percentage of his/her Account be deemed to be invested in one or
more of the available types of Benchmark Investment Funds. The Administrator
from time to time will determine the minimum percentage allocation per
investment fund and the frequency that allocations may be changed.
(b) If a Trust has been chosen in the Adoption Agreement,
Trust assets shall be invested as provided in the Trust Agreement.
6.3 Forfeitures. Any forfeitures from a Participant's Account may be
used to reduce succeeding Matching Contributions, Company Contributions or, if
applicable, administrative expenses and trustee fees and expenses, until such
forfeitures have been entirely so applied.
ARTICLE VII
Distributions
7.1 Distribution Election.
(a) Each Participant shall designate in his or her
Participation Election Form the manner in which payments shall be made from the
choices available under Section 7.2 hereof and the date on which payment shall
begin as provided in Section 7.3 hereof. Such designation shall apply to all
amounts distributed from such Participant's Account.
(b) A Participant may modify the election made under Section
7.1(a) by submitting to the Administrator a completed and executed form provided
for such purpose, provided, however, that such change shall not be given any
effect unless a full calendar year passes between the calendar year in which
such election form is submitted and the calendar year in which the distribution
date designated in such form occurs.
7.2 Payment Options.
(a) Unless otherwise provided in Section 7.3, benefits shall
be payable in accordance with the election made by the Participant in his or her
Participation Election Form in one of the following forms:
(i) in a lump-sum payment; or
(ii) in annual installments over a period of four
(4) years, payable in January of each year;
or
(iii) in annual installments over a period of five
(5) years, payable in January of each year;
or
(iv) in annual installments over a period of ten
(10) years, payable in January of each
year.
(b) The Company from time to time will determine which
payment options will be available under the Education Account, Fixed Date
Account and Retirement Account.
(c) Any distribution made under this Section 7.2 or Section
7.3 shall be in cash, except to the extent that a Participant's Education
Account, Fixed Date Account and/or Retirement Account is invested in common
stock of the Bancorp and such Participant requests a distribution in kind of
such amount.
7.3 Commencement of Payment.
(a) Except as otherwise provided herein, payments to a
Participant shall commence in the January immediately after the calendar year in
which the Participant has satisfied the criteria set forth in the Adoption
Agreement for a distribution hereunder.
(b) If the Company has elected this option in the Adoption
Agreement, the Administrator may permit an early distribution of part or all of
any deferred amounts; provided, however, that such distribution shall be made
only if the Administrator, in its sole discretion, determines that the
Participant has experienced an "unforeseeable emergency" if early distribution
were not permitted. "Unforeseeable emergency" shall mean any severe financial
hardship to the Participant resulting from a sudden and unexpected illness or
accident of the Participant or a dependent (as defined in Section 152(a) of the
Code) of the Participant, loss of the Participant's property due to casualty, or
other similar extraordinary and unforeseen circumstances arising as a result of
events beyond the control of the Participant. Any distribution pursuant to this
provision is limited to the amount necessary to meet the emergency, and any
amounts necessary to pay any federal, state or local income taxes or penalties
reasonably anticipated to result from such distribution. The distribution may
not exceed the then vested portion of the Participant's Account. The
circumstances that will constitute an unforeseeable emergency will depend upon
the facts of each case, but, in any case, payment may not be made to the extent
that such hardship is or may be relieved (i) through reimbursement or
compensation by insurance or otherwise; (ii) by liquidation of the Participant's
assets, to the extent the liquidation of such assets would not itself cause
severe financial hardship; or (iii) by cessation of deferrals under the Plan.
Furthermore, examples of events that would not be considered unforeseeable
emergencies include the need to send a Participant's child to college or the
desire to purchase a home.
(c) Upon the death of a Participant, all vested amounts shall be
paid in a lump sum, as soon as administratively feasible, to his or her
beneficiary or beneficiaries, as determined in accordance with ARTICLE VIII
hereof.
(d) Upon a determination of a Participant's Total and Permanent
Disability, all vested amounts shall be paid in a lump sum, as soon as
administratively feasible, to the Participant.
(e) Upon termination of employment for any reason other than
attaining retirement (as defined in the Adoption Agreement), Total and Permanent
Disability or death, all vested amounts shall be paid in a lump sum, as soon as
administratively feasible, to the Participant.
7.4 Effect of Early Distribution. If the Company has so indicated in the
Adoption Agreement, if a Participant elects to receive a distribution of vested
amounts in his or her Account on a date prior to that established under the
Plan, including the Adoption Agreement and the Participant's Participation
Election Form, the amount distributed shall equal that percentage (established
by the Company in the Adoption Agreement) of the Participant's vested amounts
and the balance shall be treated as forfeited by the Participant.
7.5 Changes Affecting an Education Account. In the event of the death of
the individual whose age is used for purposes of the timing of a distribution
from an Education Account, the Education Account associated with the deceased
person shall be treated for all purposes as a Retirement Account of the
Participant under the Plan.
ARTICLE VIII
Beneficiaries
8.1 Beneficiaries. Each Participant may from time to time designate one
or more persons (who may be any one or more members of such person's family or
other persons, administrators, trusts, foundations or other entities) as his or
her beneficiary under the Plan. Such designation shall be made on a form
prescribed by the Administrator. Each Participant may at any time and from time
to time, change any previous beneficiary designation, without notice to or
consent of any previously designated beneficiary, by amending his or her
previous designation on a form prescribed by the Administrator. If the
beneficiary does not survive the Participant (or is otherwise unavailable to
receive payment) or if no beneficiary is validly designated, then the amounts
payable under this Plan shall be paid to the Participant's surviving spouse, if
any, and, if none, to his or her surviving issue per stirpes, if any, and, if
none, to his or her estate and such person shall be deemed to be a beneficiary
hereunder. (For purposes of this ARTICLE, a per stirpes distribution to
surviving issue means a distribution to such issue as representatives of the
branches of the descendants of such Employee; equal shares are allotted for each
living child and for the descendants as a group of each deceased child of the
deceased Employee). If more than one person is the beneficiary of a deceased
account, each such person shall receive a pro rata share of any death benefit
payable unless otherwise designated on the applicable form. If a beneficiary who
is receiving benefits dies, all benefits that were payable to such beneficiary
shall then be payable to the estate of that beneficiary.
8.2 Lost Beneficiary.
(a) All Participants and beneficiaries shall have the obligation
to keep the Administrator informed of their current address until such time as
all benefits due have been paid.
(b) If a Participant or beneficiary cannot be located by the
Administrator exercising due diligence, then, in its sole discretion, the
Administrator may presume that the Participant or beneficiary is deceased for
purposes of the Plan and all unpaid amounts (net of due diligence expenses) owed
to the Participant or beneficiary shall be paid accordingly or, if a beneficiary
cannot be so located, then such amounts may be forfeited in accordance with
Section 6.3 hereof. Any such presumption of death shall be final, conclusive and
binding on all parties.
8.3 Individuals Designated in Connection with Education Accounts. In
establishing an Education Account, a Participant shall name a specific living
person whose age shall trigger distribution of amounts in such Education
Account. The distribution shall be made to the Participant, not the person so
designated.
8.4 Enforceability of Beneficiary Designations. Any beneficiary
designation form is only a generalized, suggested form. At the time of the
Participant's death and under the laws of the jurisdiction applicable to the
Participant at the time of death, the form may not be considered legally
effective to transfer the amounts from the Participant's Account(s) to the
beneficiary so designated.
ARTICLE IX
Funding
9.1 Prohibition Against Funding. Should any investment be acquired in
connection with the liabilities assumed under this Plan, it is expressly
understood and agreed that the Participants and beneficiaries shall not have any
right with respect to, or claim against, such assets nor shall any such purchase
be construed to create a trust of any kind or a fiduciary relationship between
the Company and the Participants, their beneficiaries or any other person. Any
such assets (including any amounts deferred by a Participant or contributed by
the Company pursuant to ARTICLE IV hereof) shall be and remain a part of the
general, unpledged, unrestricted assets of the Company, subject to the claims of
its general creditors. Each Participant and beneficiary shall be required to
look to the provisions of this Plan and to the Company itself for enforcement of
any and all benefits due under this Plan, and to the extent any such person
acquires a right to receive payment under this Plan, such right shall be no
greater than the right of any unsecured general creditor of the Company. The
Company (or the Trust, if any) shall be designated owner and beneficiary of
investments acquired in connection with the Company's obligations under this
Plan.
9.2 Deposits in Trust. Subject to Section 9.1, and notwithstanding any
other provision of this Plan to the contrary, the Company may deposit into the
Trust any amounts it deems appropriate to pay the benefits under this Plan. The
amounts so deposited may include all Compensation Deferrals made pursuant to a
Participation Election Form by a Participant, any Company Contributions and any
Matching Contributions. Notwithstanding deposit of assets into a Trust, the
Company reserves the right at any time and from time to time to pay benefits to
Plan Participants or their beneficiaries in whole or in part from sources other
than the Trust.
9.3 Withholding of Employee and Director Contributions. The
Administrator is authorized to make any and all necessary arrangements with the
Company in order to withhold the Participant's Compensation Deferrals under
Section 4.1 hereof from his or her pay or fees. The Administrator shall
determine the amount and timing of such withholding.
ARTICLE X
Administration
10.1 Plan Administration. The Administrator shall have complete control
and authority to determine the rights and benefits and all claims arising under
the Plan of any Participant, beneficiary, deceased Participant, or other person
claiming to have any interest under the Plan. When making a determination or
calculation, the Administrator shall be entitled to rely on information
furnished by a Participant, a beneficiary, the Company or the Trustee, if
applicable. The Administrator shall have the responsibility for complying with
any applicable reporting and disclosure requirements of ERISA.
10.2 Administrator.
(a) The Administrator is expressly empowered to limit the
amount of Compensation that may be deferred; to deposit amounts into trust in
accordance with Section 9.2 hereof and the Adoption Agreement; to interpret the
Plan, and to determine all questions arising in the administration,
interpretation and application of the Plan; to employ actuaries, accountants,
counsel, and other persons it deems necessary in connection with the
administration of the Plan; and to take all other necessary and proper actions
to fulfill its duties as Administrator.
(b) The Administrator shall not be liable for any actions by it
hereunder, unless due to its own negligence, willful misconduct or lack of good
faith.
(c) The Administrator shall be indemnified and held harmless by
the Company from and against all personal liability to which it may be subject
by reason of any act done or omitted to be done in its official capacity as
Administrator in good faith in the administration of the Plan, including all
expenses reasonably incurred in its defense in the event the Company fails to
provide such defense upon the request of the Administrator. The Administrator is
relieved of all responsibility in connection with its duties hereunder to the
fullest extent permitted by law, short of breach of duty to the Participants and
their beneficiaries.
10.3 Claims Procedures.
(a) In the event a Participant requests payment hereunder
and the Administrator has determined that the Participant is not entitled to all
or some portion of such payment, the Administrator shall, within 60 days
following receipt of such request from the Participant, provide to the
Participant a written statement (a "Claims Notice"), stating the specific reason
or reasons for such denial, in language calculated to be understood by the
Participant. The Claims Notice shall also refer to the Plan provision on which
such denial is based, and, where appropriate, an explanation of what the
Participant may do to perfect his or her claim. In addition, the Participant
shall be furnished with an explanation of the Plan's claims review procedures.
(b) Any Participant who has been denied a benefit by a
decision of the Administrator pursuant to Section 10.3(a) shall be entitled to
request that the Administrator give further consideration to his or her claim by
filing with the Administrator a request for a hearing, together with a written
statement of the reasons why the Participant believes his claim should be paid
and any documents pertinent to such consideration. Such materials shall be filed
with the Administrator no later than 60 days after receipt by the Participant of
the Claims Notice. The Administrator will notify the Participant of the hearing
date, time and location, and give the Participant and his or her representative
the opportunity to review all documents in the possession of the Administrator
that are pertinent to the denial of the Participant's claim. The Participant
shall be responsible for all expenses incurred in connection with this review
process. A final decision shall be rendered in writing with respect to the claim
no later than 60 days following the hearing, in language calculated to be
understood by the Participant, and setting forth the reasons for the disposition
and specific references to Plan provisions on which the decision is based.
ARTICLE XI
General Provisions
11.1 No Assignment. Benefits or payments under this Plan shall not be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, garnishment or charge, whether voluntary or
involuntary, and any attempt to so anticipate, alienate, sell, transfer, assign,
pledge, encumber or charge the same shall not be valid, nor shall any such
benefit or payment be in any way liable for or subject to the debts, contracts,
liabilities, engagement or torts of any Participant or beneficiary, or any other
person entitled to such benefit or payment pursuant to the terms of this Plan,
except to such extent as may be required by law. If any Participant or
beneficiary or any other person entitled to a benefit or payment pursuant to the
terms of this Plan becomes bankrupt or attempts to anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge any benefit or payment under this
Plan, in whole or in part, or if any attempt is made to subject any such benefit
or payment, in whole or in part, to the debts, contracts, liabilities,
engagements or torts of the Participant or beneficiary or any other person
entitled to any such benefit or payment pursuant to the terms of this Plan, then
such benefit or payment, in the discretion of the Administrator, shall cease and
terminate with respect to such Participant or beneficiary, or any other such
person.
11.2 No Employment Rights. Participation in this Plan shall not be
construed to confer upon any Participant the legal right to be retained as a
Director or in the employ of the Company, or give a Participant or beneficiary,
or any other person, any right to any payment whatsoever, except to the extent
of the benefits provided for hereunder. Each Participant shall remain subject to
discharge or termination to the same extent as if this Plan had never been
adopted.
11.3 Incompetence. If the Administrator determines that any person to
whom a benefit is payable under this Plan is incompetent by reason of physical
or mental disability, the Administrator shall have the power to cause the
payments becoming due to such person to be made to another for his or her
benefit without responsibility of the Administrator or the Company to see to the
application of such payments. Any payment made pursuant to such power shall, as
to such payment, operate as a complete discharge of the liabilities of the
Company, the Administrator and the Trustee.
11.4 Identity. If, at any time, any doubt exists as to the identity of
any person entitled to any payment hereunder or the amount or time of such
payment, the Administrator shall be entitled to hold such sum until such
identity or amount or time is determined or until an order of a court of
competent jurisdiction is obtained. The Administrator shall also be entitled to
pay such sum into court in accordance with the appropriate rules of law. Any
expenses incurred by the Company, the Administrator, and the Trust incident to
such proceeding or litigation will be deemed a distribution from the Account
pursuant to ARTICLE VII hereof and will be deducted from the balance in the
Account of the affected Participant.
11.5 Other Benefits. The benefits of each Participant or beneficiary
hereunder shall be in addition to any benefits paid or payable to or on account
of the Participant or beneficiary under any other pension, disability, annuity
or retirement plan or policy whatsoever.
11.6 No Liability. No liability shall attach to or be incurred by the
Company, the Trustee or any Administrator under or by reason of the terms,
conditions and provisions contained in this Plan, or for the acts or decisions
taken or made thereunder or in connection therewith; and as a condition
precedent to the establishment of this Plan or the receipt of benefits
thereunder, or both, such liability, if any, is expressly waived and released by
each Participant and by any and all persons claiming under or through any
Participant or any other person. Such waiver and release shall be conclusively
evidenced by any act or participation in or the acceptance of benefits or the
making of any election under this Plan.
11.7 Expenses. Except as otherwise provided herein or in the Adoption
Agreement, all expenses incurred in the administration of the Plan, whether
incurred by the Company or the Plan, shall be paid by the Company. Any
investment-related expenses shall be charged directly to the Account for which
such investments were made.
11.8 Amendment and Termination.
(a) Except as otherwise provided in this section, the Company shall
have the sole authority to modify, amend or terminate this Plan; provided,
however, that any modification or termination of this Plan shall not reduce,
alter or impair, without the consent of a Participant, a Participant's right to
any amounts already credited to his or her Account on the day before the
effective date of such modification or termination; provided further, however,
that if the Company makes any modification or amendment that is not permitted
under the terms of the Adoption Agreement, the Company will no longer be
considered to have adopted this Plan. Following such termination, payment of
such credited amounts may be made in a single-sum payment if the Company so
designates. Any such decision to pay in a single lump sum shall apply to all
Participants.
(b) The Company reserves the right to make any modification or
amendment to the Plan or the Adoption Agreement that it deems necessary to
comply with any requirements of law or to insure favorable tax treatment under
the Plan.
11.9 Company Determinations. Any determinations, actions or decisions of
the Company (including, but not limited to, Plan amendments and Plan
termination) shall be made by the board of directors of the Company in
accordance with its established procedures or by such other individuals, groups
or organizations that have been properly delegated by the board of directors to
make such determination or decision.
11.10 Construction. All questions of interpretation, construction or
application arising under or concerning the terms of this Plan shall be decided
by the Administrator, in its sole and final discretion, whose decision shall be
final, binding and conclusive upon all persons.
11.11 Governing Law. This Plan shall be governed by, construed and
administered in accordance with the applicable provisions of ERISA, and any
other applicable federal law, provided, however, that to the extent not
preempted by federal law this Plan shall be governed by construed and
administered under the laws of the state in which the Company maintains its
principal place of business, other than its laws respecting choice of law.
11.12 Severability. If any provision of this Plan is held invalid or
unenforceable, its invalidity or unenforceability shall not affect any other
provision of this Plan and this Plan shall be construed and enforced as if such
provision had not been included therein. If the inclusion of any Employee (or
Employees) as a Participant under this Plan would cause the Plan to fail to
comply with the requirements of Sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA, then the Plan shall be severed with respect to such Employee or
Employees, who shall be considered to be participating in a separate
arrangement.
11.13 Headings. The ARTICLE headings contained herein are inserted only
as a matter of convenience and for reference and in no way define, limit,
enlarge or describe the scope or intent of this Plan nor in any way shall they
affect this Plan or the construction of any provision thereof.
11.14 Approval of IRS. If the Company seeks a private letter ruling from
the Internal Revenue Service and the Internal Revenue Service does not issue a
ruling acceptable to the Company regarding the Plan, then the Plan (and the
Trust, if applicable), at the election of the Company, shall be void ab initio
and all Compensation Deferrals shall be returned to the Employees and Directors
who made such contributions and all Company Contributions and Matching
Contributions shall be returned to the Company.
11.15 Disclaimer. Neither Smith Barney Inc. nor any of its subsidiaries,
affiliates or employees can provide any assurances as to the tax consequences
that may be obtained for the Company or any particular Participant, nor does it
assume any legal responsibility in this regard. The Company acknowledges and
agrees that it has consulted its own tax adviser and legal counsel regarding
both the legal and tax consequences of entering into this Plan, and is therefore
responsible for making any decisions as to filings under the Code or ERISA that
may be required in connection herewith.
<PAGE>
Appendix B
TRUST AGREEMENT UNDER
THE WASHINGTON TRUST COMPANY
NONQUALIFIED DEFERRED COMPENSATION PLAN
AS AMENDED AND RESTATED AS OF JANUARY 1, 1999
This Agreement made this 1ST day of January 1999, by and between The
Washington Trust Company (hereinafter referred to as the "Company") and Smith
Barney Private Trust Company, a State trust company, trust bank, or federal
savings bank (hereinafter referred to as the "Trustee");
WHEREAS, the Company has adopted the nonqualified deferred compensation
plan (hereinafter referred to as the "Plan") attached as Appendix A;
WHEREAS, the Company has incurred or expects to incur liability under
the terms of such Plan with respect to the individuals participating in such
Plan;
WHEREAS, the Company wishes to establish a trust (hereinafter referred
to as the "Trust") and to contribute to the Trust assets that shall be held
therein, subject to the claims of the Company's creditors in the event of the
Company's Insolvency, as herein defined, until paid to the Plan participants and
their beneficiaries in such manner and at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974,
as amended;
WHEREAS, it is the intention of the Company to make contributions to
the Trust to provide itself with a source of funds to assist it in meeting its
liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of the Trust.
(a) The Company hereby deposits with the Trustee in trust at least one
dollar ($1.00), which shall become the principal of the Trust to
be held, administered and disposed of by the Trustee as provided
in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which the Company
is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code
of 1986, as amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon, shall be
held separate and apart from other funds of the Company and shall
be used exclusively for the uses and purposes of Plan participants
and general creditors as herein set forth. Plan participants and
their beneficiaries shall have no preferred claim on, or any
beneficial ownership interest in, any assets of the Trust. Any
rights created under the Plan and this Trust Agreement shall be
mere unsecured contractual rights of Plan participants and their
beneficiaries against the Company. Any assets held by the Trust
will be subject to the claims of the Company's general creditors
under federal and state law in the event of Insolvency, as defined
in Section 3(a) herein.
(e) The Company, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property
in trust with the Trustee to augment the principal to be held,
administered and disposed of by the Trustee as provided in this
Trust Agreement. Neither the Trustee nor any Plan participant or
beneficiary shall have any right to compel such additional
deposits.
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) The Company shall deliver to the Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable with respect to
each Plan participant (and his or her beneficiaries), that
provides a formula or other instructions acceptable to the
Trustee for determining the amounts so payable, the form in
which such amount is to be paid (as provided for or available
under the Plan), and the time of commencement for payment of
such amounts. Except as otherwise provided herein, the Trustee
shall make payments to the Plan participants and their
beneficiaries in accordance with such Payment Schedule. The
Trustee shall make provisions for the reporting and withholding
of any federal, state or local taxes that may be required to be
withheld with respect to the payment of benefits pursuant to
the terms of the Plan and shall pay amounts withheld to the
appropriate taxing authorities or determine that such
amounts have been reported, withheld and paid by the Company.
(b) The entitlement of a Plan participant or his or her beneficiaries
to benefits under the Plan shall be determined by the Company or
such party as it shall designate under the Plan, and any claim for
such benefits shall be considered and reviewed under the
procedures set out in the Plan.
(c) The Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the
terms of the Plan. The Company shall notify the Trustee of its
decision to make payment of benefits directly prior to the time
amounts are payable to participants or their beneficiaries. In
addition, if the principal of the Trust, and any earnings thereon,
are not sufficient to make payments of benefits in accordance with
the terms of the Plan, the Company shall make the balance of each
such payment as it falls due. The Trustee shall notify the Company
where principal and earnings are not sufficient.
Section 3. Trustee Responsibility Regarding Payments to the Trust
Beneficiary When the Company Is Insolvent.
(a) The Trustee shall cease payment of benefits to Plan participants
and their beneficiaries if the Company is Insolvent. The Company
shall be considered "Insolvent" for purposes of this Trust
Agreement if:
(i) the Company is unable to pay its debts as they become due, or
(ii) the Company is subject to a pending proceeding as a debtor
under the United States Bankruptcy Code, or
(iii)the Company is determined to be Insolvent by the Federal
Deposit Insurance Corporation or the State of Rhode Island
Department of Business Regulation, Division of Banking or
their successors.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall
be subject to claims of general creditors of the Company under
federal and state law as set forth below:
(1) The Board of Directors and the Chief Executive Officer
(or, if there is no Chief Executive Officer, the highest
ranking officer of the Company) of the Company shall have the
duty to inform the Trustee in writing of the Company's
Insolvency. If a person claiming to be a creditor of the
Company alleges in writing to the Trustee that the Company
has become Insolvent, the Trustee shall determine whether the
Company is Insolvent and, pending such determination, the
Trustee shall discontinue payment of benefits to Plan
participants or their beneficiaries.
(2) Unless the Trustee has actual knowledge of the Company's
Insolvency or has received notice from the Company or a person
claiming to be a creditor alleging that the Company is
Insolvent, the Trustee shall have no duty to inquire whether
the Company is Insolvent. The Trustee may in all events rely
on such evidence concerning the Company's solvency as may be
furnished to the Trustee and that provides the Trustee with a
reasonable basis for making a determination concerning the
Company's solvency.
(3) If at any time the Trustee has determined that the Company is
Insolvent, the Trustee shall discontinue payments to Plan
participants or their beneficiaries and shall hold the assets
of the Trust for the benefit of the Company's general
creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan participants or their
beneficiaries to pursue their rights as general creditors of
the Company with respect to benefits due under the Plan or
otherwise.
(4) The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section
2 of this Trust Agreement only after the Trustee has
determined that the Company is not Insolvent (or is no longer
Insolvent).
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to
Section 3(b) hereof and subsequently resumes such payments, the
first payment following such discontinuance shall include the
aggregate amount of all payments due to Plan participants or their
beneficiaries under the terms of the Plan for the period of such
discontinuance, less the aggregate amount of any payments made to
Plan participants or their beneficiaries by the Company in lieu of
the payments provided for hereunder during any such period of
discontinuance.
Section 4. Payments to Company.
Except as provided in Section 3 hereof, after the Trust has become
irrevocable, the Company shall have no right or power to direct the
Trustee to return to the Company or to divert to others any of the
Trust assets before all payment of benefits have been made to Plan
participants and their beneficiaries pursuant to the terms of the Plan.
Section 5. Investment Authority.
(a) The Trustee may invest in securities (including stock or rights
to acquire stock) or obligations issued by the Company or the
Washington Trust Bancorp, Inc. All rights associated with assets
of the Trust shall be exercised by the Trustee or the person
designated by the Trustee, and shall in no event be exercisable
by or rest with the Plan participants.
The Company shall have the right at any time, and from time to
time in its sole discretion, to substitute assets of equal fair
market value for any asset held by the Trust. This right is
exercisable by the Company in a nonfiduciary capacity without the
approval or consent of any person in a fiduciary capacity.
(b) The Trustee is authorized and empowered
(i) to invest and reinvest Trust assets, together with the
income therefrom, in all or any type of property whether
real, personal or mixed and whether tangible or intangible
including but not limited to
(1) stock, whether common, preferred or convertible preferred;
(2) evidence of indebtedness including bonds, debentures,
notes, mortgages and commercial paper (including those
issued by the Trustee or an affiliate of the Trustee);
(3) shares issued by registered investment companies
(including those which are sponsored or offered by the
Trustee or an affiliate or to which services are rendered
by the Trustee or an affiliate for which the Trustee or an
affiliate is compensated by the registered investment
company);
(4) bank investment contracts;
(5) guaranteed investment contracts, life insurance policies
and annuity policies or contracts (including those issued
by an affiliate of the Trustee); and
(6) options to buy or sell securities or other assets;
(ii)to deposit or invest all or any part of the assets of the
Trust in savings accounts or certificates of deposit or
other deposits in a bank or savings and loan association
or other depository institution, including the Trustee or
any of its affiliates, provided that with respect to such
deposits with the Trustee or an affiliate, the deposits
shall bear a reasonable interest rate;
(iii)to hold, manage, improve, repair and control all property,
real or personal, forming part of the Trust, and to sell,
convey, transfer, exchange, partition, lease for any term,
even extending beyond the duration of this Trust, and
otherwise dispose of the same from time to time;
(iv)to hold in cash, without liability for interest, such
portion of the Trust as is pending investment, or payment
of expenses, or the distribution of benefits;
(v)to take such actions as may be necessary or desirable to
protect the Trust from loss due to the default on any
evidence of indebtedness held in the Trust including the
appointment of agents or trustees in such other
jurisdictions as it may seem desirable, to transfer
property to such agents with such powers as are necessary
or desirable to protect the Trust, to direct such agent or
trustee, or to delegate such power to direct and to remove
such agent or trustee;
(vi)to settle, compromise or abandon all claims and demands
in favor of or against the Trust;
(vii)to exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees
generally under the laws of the state in which the Trustee
incorporated as set forth above, so that the powers
conferred upon the Trustee herein shall be in addition
thereto;
(viii)to borrow money from any source and to execute promissory
notes, mortgages or other obligations and to pledge or
mortgage any Trust assets as security; and
(ix)to maintain accounts at, execute transactions through, and
lend on an adequately secured basis stocks, bonds, or
other securities to, any brokerage or other firm,
including any firm which is an affiliate of the Trustee.
(c) To the extent that it deems necessary or appropriate to
implement its powers under this Section 5 or otherwise fulfill
any of its duties and responsibilities as trustee of the
Trust, the Trustee shall have the following additional powers
and authority:
(i)to register securities, or any other property, in its name
or in the name of any nominee, including the name of any
affiliate or the nominee name designated by any affiliate,
with or without indication of the capacity in which
property shall be held, or to hold securities in bearer
form and to deposit any securities or other property in a
depository or clearing corporation;
(ii)to designate and engage the services of and to delegate
powers and responsibilities to, such agents,
representatives, advisers, counsel and accountants as the
Trustee considers necessary or appropriate, any of whom
may be an affiliate of the Trustee or a person who renders
services to such an affiliate, and, as a part of its
expenses under this Trust Agreement, to pay their
reasonable expenses and compensation;
(iii)to make, execute and deliver, as Trustee, any and all
deeds, leases, mortgages, conveyances, waivers, releases
or other instruments in writing necessary or appropriate
for the accomplishment of any of the powers listed in this
Trust Agreement; and
(iv)generally to do all other acts which the Trustee deems
necessary or appropriate for the protection of the Trust.
Section 6. Disposition of Income.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
Section 7. Accounting by Trustee.
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions
required to be made, which are outlined in periodic statements rendered
by the Trustee. The purpose and intention of the Company is that the
rendering of such statements by the Trustee shall be deemed an account
stated and is binding upon the Company and its successors. Each such
statement shall be considered as having been approved and accepted by
the Company, unless the Company shall give written notice to the
Trustee of any objection thereto, within sixty (60) days of the mailing
of each statement by the Trustee. Within sixty (60) days following the
close of each calendar year and within sixty (60) days after the
removal or resignation of the Trustee, the Trustee shall deliver to the
Company a written account of its administration of the Trust during
such year or during the period from the close of the last preceding
year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions effected by
it, including a description of all securities and investments purchased
and sold with the cost or net proceeds of such purchases or sales
(accrued interest paid or receivable being shown separately), and
showing all cash, securities and other property held in the Trust at
the end of such year or as of the date of such removal or resignation,
as the case may be.
Section 8. Responsibility of Trustee.
(a) The Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a
prudent person acting in like capacity and familiar with such
matters would use in the conduct of an enterprise of a like
character and with like aims, provided, however, that the
Trustee shall incur no liability to any person for any action
taken pursuant to a direction, request or approval given by
the Company which is contemplated by, and in conformity with,
the terms of the Plan or this Trust and is given in writing by
the Company. In the event of a dispute between the Company and
a party, the Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
(b) If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify
the Trustee against the Trustee's reasonable costs, expenses
and liabilities (including, without limitation, reasonable
attorneys' fees and expenses) relating thereto and to be
primarily liable for such payments. If the Company does not
pay such costs, expenses and liabilities in a reasonably
timely manner, the Trustee may obtain payment from the Trust.
(c) The Trustee may consult with legal counsel (who may also be
counsel for the Company generally) with respect to any of its
duties or obligations hereunder.
(d) The Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other
professionals to assist it in performing any of its duties or
obligations hereunder.
(e) The Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law, unless expressly
provided otherwise herein, provided, however, that if an
insurance policy is held as an asset of the Trust, the Trustee
shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from
conversion of the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of
any borrowing against such policy.
(f) Notwithstanding any powers granted to the Trustee pursuant to
this Trust Agreement or to applicable law, the Trustee shall
not have any power that could give this Trust the objective of
carrying on a business and dividing the gains therefrom,
within the meaning of Section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the
Internal Revenue Code.
Section 9. Compensation and Expenses of the Trustee.
The Company shall pay all reasonable administrative and reasonable
Trustee's fees and expenses. If not so paid, such fees and expenses
shall be paid from the Trust.
Section 10. Resignation and Removal of the Trustee.
a) The Trustee may resign at any time by written notice to the
Company, which shall be effective thirty (30) days after
receipt of such notice unless the Company and the Trustee
agree otherwise.
(b) The Trustee may be removed by the Company upon thirty (30)
days' notice or upon shorter notice accepted by the Trustee.
(c) Upon a Change of Control, as defined in the Plan, the Trustee
may not be removed by the Company for five (5) year(s).
(d) If the Trustee resigns within five (5) year(s) after a Change
of Control, as defined in the Plan, the Company shall apply to
a court of competent jurisdiction for the appointment of a
successor Trustee or for instructions.
(e) Upon resignation or removal of the Trustee and appointment of
a successor Trustee, all assets shall subsequently be
transferred to the successor Trustee. The transfer shall be
completed within sixty (60) days after receipt of notice of
resignation, removal or transfer, unless the Company extends
the time limit.
(f) If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the
effective date of the resignation or removal under
paragraph(s) (a) or (b) of this Section. If no such
appointment has been made, the Trustee may apply to a court of
competent jurisdiction for appointment of a successor or for
instructions. All reasonable expenses of the Trustee in
connection with the proceeding shall be allowed as
administrative expenses of the Trust.
Section 11. Appointment of Successor.
(a) If the Trustee resigns (or is removed) in accordance with
Section 10(a) or (b) hereof, the Company may appoint any third
party, such as a bank trust department or other party that may
be granted corporate trustee powers under state law, as a
successor to replace the Trustee upon resignation or removal.
The appointment shall be effective when accepted in writing by
the new Trustee, who shall have all of the rights and powers
of the former Trustee, including ownership rights in the Trust
assets. The former Trustee shall execute any instrument
necessary or reasonably requested by the Company or the
successor Trustee to evidence the transfer.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Notwithstanding the
foregoing, no such amendment shall conflict with the terms of
the Plan or shall make the Trust revocable after it has become
irrevocable in accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan. Upon termination
of the Trust any assets remaining in this Trust shall be
returned to the Company.
(c) Upon written approval of all participants or beneficiaries
entitled to payment of benefits pursuant to the terms of the
Plan, the Company may terminate this Trust prior to the time
all benefit payments under the Plan have been made. All assets
in the Trust at termination shall be returned to the Company.
(d) Section(s) 9, 10(c) and 10(d) of this Trust Agreement may not
be amended by Company for five (5) year(s) following a Change
of Control as defined in the Plan.
Section 13. Miscellaneous.
(a) Any provision of this Trust prohibited by law shall be
ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries
under this Trust may not be anticipated, assigned (either at
law or in equity), alienated, pledged, encumbered or subjected
to attachment, garnishment, levy, execution or other legal or
equitable process.
(c) This Trust shall be governed by and construed in accordance
with the laws of Rhode Island.
(d) If the third alternative under Section 1(b) is selected then
for purposes of this Trust, Change of Control shall have the
same meaning as the term is defined in the Plan.
Section 14. Administrative Provisions; Indemnification.
(a) Whenever the Trustee must determine the insolvency or solvency
of the Company under the provisions of Section 3, the Trustee
is authorized to request and obtain an opinion as to the
Company's insolvency or solvency from the external
financial auditors of the Company. If the Company's external
financial auditors are unable to or decline to render such an
opinion to the Trustee, the Trustee may obtain such opinion
from an independent auditing firm of the Trustee's choice
and the Company shall cooperate with such auditing firm to
enable such auditing firm to render such an opinion. The
reasonable expense and fees of an auditing firm in providing
such service and opinion shall be an administrative expense of
the Trust and unless paid by the Company shall be paid from
the Trust. The Trustee may rely on such opinion in taking or
refraining from taking action under the terms of this Trust
Agreement.
(b) In the exercise of the Trustee's investment authority under
Section 5 the Trustee will be directed by the Company as to
choice of investments and allocation of Trust assets among
investments or by a designee of the Company which may include
the plan administrator or the plan recordkeeper. In accordance
with this provision the Trustee is hereby directed to invest
all Trust assets in one or more money market funds unless or
until other directions are received by the Trustee from the
Company or from the Company's designee. In accordance with
Section 8(a) as long as such directions are given in
conformity with the Plan and are in writing, the Trustee shall
incur no liability to any person for any action taken pursuant
to such directions.
(c) The reasonable fees and expenses of legal counsel referred to
in Section 8(c) and the reasonable fees and expenses of the
agents, accountants, actuaries, investment advisers, financial
consultants of other professionals in Section 8(d) shall be
administrative expenses of the Trust and unless paid by the
Company shall be paid from the Trust. Those agents, investment
advisers, financial consultant and other professionals which
the Trustee may hire pursuant to Section 8(d) may include
affiliates of the Trustee.
(d) In addition to and not in derogation of any other
indemnification and hold harmless provisions in this Trust
Agreement, the Company agrees to indemnify and hold the
Trustee harmless from and against any liability, loss or
claim that the Trustee may incur or which may be assessed
or made against the Trustee in the administration of the
Trust, including, without limitation, liability for reasonable
legal and other professional fees ("Liabilities"), unless
arising from the Trustee's own negligence or willful
misconduct, or except to the extent such indemnification may
be prohibited by applicable law. With respect to such
aforementioned Liabilities or the Trustee's own fees from the
Trust, should the Trust prove insufficient or it is held by a
court of competent jurisdiction that such Liabilities and/or
fees are not properly payable from the Trust, the Company
shall remain liable to indemnify the Trustee against such
Liabilities and to pay the Trustee such fees. This
indemnification and hold harmless provision as well as all
other such indemnification and hold harmless provisions in
this Trust Agreement shall survive the term of the Trustee
acting as such under this Trust Agreement and shall survive
the term of this Trust Agreement.
(e) With respect to Section 2(a) as it relates to the withholding
and payment of applicable payroll taxes, the Company shall
certify to the Trustee the types and amount of taxes to be
withheld from each payment hereunder. The Trustee shall
forward to the Company a check for taxes withheld from each
such payment. The Company shall deposit such withheld taxes
with the appropriate taxing authorities and report such
deposits to the taxing authorities and to the Plan
participants and/or beneficiaries.
(f) In the event that Change of Control provisions are applicable
to this Trust, the Trustee shall have no responsibility to
inquire or to determine if a Change of Control of the Company
has occurred, but shall be entitled to rely upon written
notice from the Company.
Section 15. Effective Date.
The effective date of this Trust shall be January 1, 1999.
Attest: THE WASHINGTON TRUST COMPANY
Harvey C. Perry By: John C. Warren
- ------------------------ -------------------------------------
Secretary John C. Warren, President and CEO
<PAGE>
Appendix C
List of Benchmark Funds
1. Smith Barney Cash Portfolio - Money Market Fund
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2. Washington Trust Bancorp, Inc. Common Stock Fund
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3. MFS Massachusetts Investors Growth Stock Fund
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4. MFS Research Fund
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5. MFS Capital Opportunities Fund
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6. MFS Global Equity Fund
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7. MFS Emerging Growth Fund
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8. MFS Massachusetts Investors Trust Fund
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9. MFS Bond Fund
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<PAGE>
Appendix D
Definition of Change of Control
The term "Change of Control" shall mean:
a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the then
outstanding shares of common stock of Washington Trust Bancorp, Inc. (the
"Bancorp") (the "Outstanding Corporation Common Stock"); provided, however, that
any acquisition by the Bancorp or its subsidiaries, or any employee benefit plan
(or related trust) of the Bancorp or its subsidiaries of 20% or more of
Outstanding Corporation Common Stock shall not constitute a Change of Control;
and provided, further, that any acquisition by a corporation with respect to
which, following such acquisition, more than 50% of the then outstanding shares
of common stock of such corporation, is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who were
the beneficial owners of the Outstanding Corporation Common Stock immediately
prior to such acquisition in substantially the same proportion as their
ownership, immediately prior to such acquisition, of the Outstanding Corporation
Common Stock, shall not constitute a Change of Control; or
b) Individuals who constitute the Board of Directors of the Bancorp
(the "Board") as of the date of the Adoption Agreement (the "Incumbent Board"),
cease for any reason to constitute at least a majority of the Board, provided
that any individual becoming a director subsequent to the date of this Adoption
Agreement whose election, or nomination for election by the Bancorp's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office is in connection
with either an actual or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on behalf of a
person other than the Board; or
c) Consummation by the Bancorp of (i) a reorganization, merger or
consolidation, in each case, with respect to which all or substantially all of
the individuals and entities who were the beneficial owners of the Outstanding
Corporation Common Stock immediately prior to such reorganization, merger or
consolidation do not, following such reorganization, merger or consolidation,
beneficially own, directly or indirectly, more than 40% of the then outstanding
shares of common stock of the corporation resulting from such a reorganization,
merger or consolidation; (ii) a reorganization, merger or consolidation, in each
case, (A) with respect to which all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Corporation Common
Stock immediately prior to such reorganization, merger or consolidation,
following such reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 40% but less than 50% of the then outstanding
shares of common stock of the corporation resulting from such a reorganization,
merger or consolidation, (B) at least a majority of the directors then
constituting the Incumbent Board do not approve the transaction and do not
designate the transaction as not constituting a Change of Control, and (C)
following the transaction members of the then Incumbent Board do not continue to
comprise at least a majority of the Board; or (iii) the sale or other
disposition of all or substantially all of the assets of the Bancorp, excluding
a sale or other disposition of assets to a subsidiary of the Bancorp; or
d) Consummation by The Washington Trust Company (the "Company") of (i) a
reorganization, merger or consolidation, in each case, with respect to which,
following such reorganization, merger or consolidation, the Bancorp does not
beneficially own, directly or indirectly, more than 50% of the then outstanding
shares of common stock of the corporation or bank resulting from such a
reorganization, merger or consolidation or (ii) the sale or other disposition of
all or substantially all of the assets of the Company, excluding a sale or other
disposition of assets to the Bancorp or a subsidiary of the Bancorp.
EXHIBIT 5.1
[LETTERHEAD OF GOODWIN, PROCTER AND HOAR LLP]
February 3, 1999
Washington Trust Bancorp, Inc.
23 Broad Street
Westerly, Rhode Island 02891
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
In accordance with Item 601(b)(5) of Regulation S-K, we are furnishing
this opinion to you in our capacity as special counsel to Washington Trust
Bancorp, Inc. (the "Bancorp") in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement"), to be filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, and relating to the registration of 25,000 of shares of the Bancorp's
common stock, par value $0.0625 per share (the "Registered Shares") and of
deferred compensation obligations (the "Obligations") of the Bancorp. The
Registered Shares and the Obligations will be offered and sold under the
Nonqualified Deferred Compensation Plan (the "Plan") to directors of the Bancorp
and of Washington Trust Company of Westerly, a direct wholly-owned subsidiary of
the Bancorp, and to certain designated Company employees.
In connection with the opinions expressed below, we have been furnished
with and have examined originals, or copies certified or otherwise identified to
our satisfaction, of the (i) the Plan, as amended and restated; (ii) the
Bancorp's Amended and Restated Articles of Incorporation; and (iii) the
Bancorp's Amended and Restated By-Laws, each as presently in effect, and such
records, certificates and other documents of the Bancorp as we have deemed
necessary or appropriate for the purpose of this opinion.
For purposes of our examination, we have assumed and have not
independently verified the legal capacity of all natural persons, the
genuineness of all signatures, the conformity to originals of all documents
submitted to us as certified or photostatic copies and the authenticity of all
documents submitted to us as originals or used as a basis for certified or
photostatic copies. In examining documents executed by persons or entities other
than the Bancorp, we have assumed that each such other person or entity had the
power or legal capacity to enter into and perform all its obligations thereunder
and that all such documents have been duly authorized, executed and delivered by
each such person or entity and constitute valid and binding obligations of such
person or entity, enforceable against them in accordance with their terms, and
we have made no attempt to consider the effect of any federal or state law or
regulation upon any such other person or entity.
Members of our firm are admitted to the Bar of the Commonwealth of
Massachusetts and certain other jurisdictions; however, we express no opinion as
to the laws of any other jurisdiction other than the federal laws of the United
States of America and the Commonwealth of Massachusetts. We note that the
Bancorp is organized under the laws of the State of Rhode Island. Accordingly,
we have assumed that the law of that state is identical to the law of the
Commonwealth of Massachusetts in all relevant respects and the opinions
expressed below are subject to such assumption.
Based on the foregoing, we are of the opinion that the (i) Registered
Shares are duly authorized and, when issued in accordance with the provisions of
the Plan, the Registered Shares will be validly and legally issued, fully paid
and non-assessable by the Bancorp under the applicable laws of the State of
Rhode Island; and (ii) Obligations, when established pursuant to the terms of
the Plan, will be valid and binding obligations of the Bancorp and the Company,
enforceable against the Bancorp and the Company in accordance with their terms
and the terms of the Plan, except as enforceability (a) may be limited by
bankruptcy, insolvency, reorganization or other similar law affecting creditors'
rights generally, and (b) is subject to general principals of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
The opinions expressed herein are being furnished to you solely for your
benefit in connection with the Registration Statement, and may not be used or
relied upon by you for any other purpose, nor may this opinion be quoted from,
circulated, relied upon or otherwise referred to, by any other person or entity
without our prior written consent. This opinion is given as of the date first
set forth above, and we assume no obligation to update this opinion. We hereby
consent to the inclusion of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Goodwin, Procter & Hoar LLP
-----------------------------
GOODWIN, PROCTER AND HOAR LLP
EXHIBIT 15.1
Washington Trust Bancorp, Inc.
Westerly, Rhode Island
Ladies and Gentlemen:
Re: S-8 Registration Statement
With respect to the subject registration statement, we acknowledge our awareness
of the use therein of our reports dated July 17, 1998 and October 13, 1998
related to our reviews of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of the registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of sections 7 and 11 of the Act.
Very truly yours,
KPMG LLP
Providence, Rhode Island
February 12, 1999
EXHIBIT 23.1
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
Washington Trust Bancorp, Inc.:
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Washington Trust Bancorp, Inc. of our audit report dated January 12, 1998
relating to the consolidated balance sheets of Washington Trust Bancorp, Inc.
and its subsidiaries as of December 31, 1997 and 1996 and the related
consolidated statements of income, changes in shareholders' equity and cash
flows for each of the years in the three-year period ended December 31, 1997,
which report appears in the Washington Trust Bancorp, Inc.'s Annual Report on
Form 10-K, as amended by Form 10-K/A for the year ended December 31, 1997.
KPMG LLP
Providence, Rhode Island
February 12, 1999
