TROY HILL BANCORP, INC. AMENDED AND RESTATED RECOGNITION AND RETENTION PLAN FOR DIRECTORS AND TRUST AGREEMENT
Exhibit 10.13
▇▇▇▇ ▇▇▇▇ BANCORP, INC.
AMENDED AND RESTATED RECOGNITION AND RETENTION
PLAN FOR DIRECTORS AND TRUST AGREEMENT
AMENDED AND RESTATED RECOGNITION AND RETENTION
PLAN FOR DIRECTORS AND TRUST AGREEMENT
ARTICLE I
ESTABLISHMENT OF THE PLAN AND TRUST
ESTABLISHMENT OF THE PLAN AND TRUST
1.01 ESB Financial Corporation (the “Corporation”) hereby amends and restates the ▇▇▇▇ ▇▇▇▇
Bancorp, Inc. Recognition and Retention Plan for Directors (the “Plan”) and Trust (the “Trust”)
upon the terms and conditions hereinafter stated in this amended and restated Recognition and
Retention Plan for Directors and Trust Agreement (the “Agreement”), with this amendment and
restatement effective as of November 21, 2006.
1.02 The Trustee(s) hereby accept this Trust and agrees to hold the Trust assets existing on
the date of this Agreement and all additions and accretions thereto upon the terms and conditions
hereinafter stated.
ARTICLE II
PURPOSE OF THE PLAN
PURPOSE OF THE PLAN
2.01 The purpose of the Plan is to improve the growth and profitability of the Corporation, as
successor to ▇▇▇▇ ▇▇▇▇ Bancorp, Inc., by providing non-employee directors with a proprietary
interest in the Corporation as compensation for their contributions to the Corporation and as an
incentive to make such contributions in the future.
ARTICLE III
DEFINITIONS
DEFINITIONS
The following words and phrases when used in this Agreement with an initial capital letter,
unless the context clearly indicates otherwise, shall have the meanings set forth below. Wherever
appropriate, the masculine pronouns shall include the feminine pronouns and the singular shall
include the plural.
3.01 “Bank” means ESB Bank, as the successor to ▇▇▇▇ ▇▇▇▇ Federal Savings Bank.
3.02 “Beneficiary” means the person or persons designated by a Recipient to receive any
benefits payable under the Plan in the event of such Recipient’s death. Such person or persons
shall be designated in writing on forms provided for this purpose by the Committee and may be
changed from time to time by similar written notice to the Committee. In the absence of a written
designation, the Beneficiary shall be the Recipient’s surviving spouse, if any, or if none, his
estate.
3.03 “Board” means the Board of Directors of the Corporation.
3.04 “Code” means the Internal Revenue Code of 1986, as amended.
3.05 “Committee” means the entire Board of Directors of the Corporation which administers the
Plan pursuant to Article IV hereof.
3.06 “Common Stock” means shares of the common stock, $.01 par value per share, of the
Corporation.
3.07 “Disability” means the Recipient (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period of not less than 12
months, or (ii) is, by reason of any medically determinable physical or mental impairment which can
be expected to result in death or can be expected to last for a continuous period of not less than
12 months, receiving income replacement benefits for a period of not less than three months under
an accident and health plan covering employees of the Corporation or the Bank (or would have
received such benefits for at least three months if he had been eligible to participate in such
plan).
3.08 “Effective Date” means the hour and day upon which Common Stock was initially sold
by ▇▇▇▇ ▇▇▇▇ Bancorp, Inc. in the Offering. The amendment and restatement of this Plan shall
be effective as of November 21, 2006.
3.09 “Employee” means any person who is employed by the Corporation or any Subsidiary,
including officers or other employees who may be directors of the Corporation.
3.10 “Exchange Act” means the Securities Exchange Act of 1934, as amended.
3.11 “Non-employee Director” means a member of the Board who is not an Employee.
3.12 “Offering” means the offering of Common Stock to the public pursuant to the Plan of
Conversion of ▇▇▇▇ ▇▇▇▇ Federal Savings and Loan Association.
3.13 “Plan Shares” or “Shares” means shares of Common Stock held in the Trust which may
be distributed to a Recipient pursuant to the Plan.
3.14 “Plan Share Award” or “Award” means a right granted under this Plan to receive a
distribution of Plan Shares upon completion of the service requirements described in Article
VII.
3.15 “Recipient” means a Non-employee Director who receives a Plan Share Award under the
Plan.
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3.16 “Retirement” means the later of (a) the attainment of age sixty-five (65) or such earlier
age as may be specified in a Recipient’s Plan Share Award, and (b) the one-year anniversary of the
grant of a Plan Share Award.
3.17 “Subsidiary” means any subsidiaries of the Corporation, including the Bank, which,
with the consent of the Board, agree to participate in this Plan.
3.18 “Trustee” or “Trustees” means those person or persons (which may be members of the
Committee), or firm or other entity, nominated by the Committee and approved by the Board pursuant
to Sections 4.01 and 4.02 to hold legal title to the Plan assets for the purposes set forth herein.
ARTICLE IV
ADMINISTRATION OF THE PLAN
ADMINISTRATION OF THE PLAN
4.01 Role of the Committee. The Plan shall be administered and interpreted by the
Committee, which shall consist of the members of the entire Board. The Committee shall have all of
the powers allocated to it in this and other sections of the Plan. The interpretation and
construction by the Committee of any provisions of the Plan or of any Plan Share Award granted
hereunder shall be final and binding. The Committee shall act by vote or written consent of a
majority of its members. Subject to the express provisions and limitations of the Plan, the
Committee may adopt such rules, regulations and procedures as it deems appropriate for the conduct
of its affairs. The Committee shall report its actions and decisions with respect to the Plan to
the Board at appropriate times, but in no event less than one time per calendar year. The Committee
shall appoint one or more persons (which may be from among its members), or a firm or other entity,
to act as Trustee(s) in accordance with the provisions of this Plan and Trust and the terms of
Article VIII hereof.
4.02 Role of the Board. The Trustee or Trustees shall be appointed or approved
by, and will serve at the pleasure of, the Committee. The Committee may in its discretion
from time to time remove or replace the Trustees.
4.03 Limitation on Liability. No member of the Committee shall be liable for any
determination made in good faith with respect to the Plan or any Plan Shares or Plan Share
Awards granted under the Plan. If a member of the Committee is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of anything done or not done by
him in such capacity under or with respect to the Plan, the Corporation shall, subject to the
requirements of applicable laws and regulations, indemnify such member against all
liabilities and expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in the best
interests of the Corporation and any Subsidiaries and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
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4.04 Compliance with Laws and Regulations. All awards granted hereunder shall be
subject to all applicable federal and state laws, rules and regulations and to such approvals
by any government or regulatory agency or stockholders as may be required.
4.05 No Deferral of Compensation Under Section 409A of the Code. All Plan Share
Awards granted under the Plan are designed to not constitute a deferral of compensation for
purposes of Section 409A of the Code, in reliance upon the short-term deferral exception in the
proposed regulations. No Recipient shall be permitted to defer the recognition of income beyond
the date a Plan Share Award shall be deemed earned pursuant to Article VII of this Plan.
ARTICLE V
CONTRIBUTIONS
CONTRIBUTIONS
5.01 Amount and Timing of Contributions. The Board shall determine the amount
(or the method of computing the amount) and timing of any contributions by the Corporation to
the Trust established under this Plan. Such amounts may be paid in cash or in shares of
Common Stock and shall be paid to the Trust at the designated time of contribution. No
contributions by Non-employee Directors shall be permitted.
5.02 Investment of Trust Assets; Number of Plan Shares. Subject to Section 8.02
hereof, the Trustees shall invest all of the Trust’s assets primarily in Common Stock. The
aggregate number of Plan Shares initially available for distribution pursuant to this Plan,
subject to adjustment as provided in Section 9.01 hereof, shall be equal to 1.0% of the
shares of Common Stock which are issued by the Corporation in the Offering (rounded down to
the nearest whole number), which shares shall be purchased by the Trust in such Offering with
funds contributed by the Corporation. Subsequent to consummation of the Offering, the Trust
may purchase (from the Corporation and/or stockholders thereof) additional shares of Common
Stock for distribution pursuant to this Plan.
ARTICLE VI
ELIGIBILITY; ALLOCATIONS
ELIGIBILITY; ALLOCATIONS
6.01 Eligibility. Plan Share Awards shall be made to each Non-employee Director.
(a) Initial Allocation. A Plan Share Award shall be allocated to each Non-employee Director
as of the hour and day on which Common Stock is initially sold in the Offering. Specifically, each
Non-employee Director shall receive a Plan Share Award for the number of whole shares of Common
Stock determined by multiplying the number of shares of Common Stock which may be issued pursuant
to this Plan by 90% and dividing such product by the number of Non-employee Directors at such
time.
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(b) Subsequent Allocation. A Plan Share Award shall be allocated to each Non-employee
Director one year from the date on which Common Stock is initially sold in the Offering.
Specifically, each Non-employee Director shall receive a Plan Share Award for the number of whole
shares of Common Stock determined by dividing the remaining number of shares of Common Stock which
may be issued pursuant to this Plan by the number of Non-employee Directors at such time. In the
event of a forfeiture of the right to any Shares subject to an Award, pursuant to Section 7.01
hereof, such forfeited Shares shall be reallocated one month following such forfeiture to the
remaining Non-employee Directors by dividing the number of forfeited shares of Common Stock by the
remaining number of Non-employee Directors at such time.
6.02 Form of Allocation. As promptly as practicable after a Plan Share Award is to be
issued, the Committee shall notify the Recipient in writing of the grant of the Award, the number
of Plan Shares covered by the Award, and the terms upon which the Plan Shares subject to the Award
shall be distributed to the Recipient. Such terms shall be reflected in a written agreement with
the Recipient. The date on which the Committee so notifies the Recipient shall be considered the
date of grant of the Plan Share Award. The Committee shall maintain records as to all grants of
Plan Share Awards under the Plan.
ARTICLE VII
EARNING AND DISTRIBUTION OF PLAN SHARES; VOTING RIGHTS
EARNING AND DISTRIBUTION OF PLAN SHARES; VOTING RIGHTS
7.01 Earning Plan Shares; Forfeitures.
(a) General Rules. Subject to the terms hereof, Plan Shares covered by the Award
shall be earned by the Recipient at the rate of twenty percent (20%) of the aggregate number of
Shares covered by the Award as of each annual anniversary of the date of grant of the Award. If
service as a director by a Recipient is terminated prior to the fifth (5th) anniversary of the
date of grant of an Award for any reason (except as specifically provided in subsections (b), (c)
and (d) below), the Recipient shall forfeit the right to any Shares subject to the Award which
have not theretofore been earned. No fractional shares shall be distributed pursuant to this Plan.
(b) Exception for Terminations Due to Death or Disability. Notwithstanding the
general rule contained in Section 7.01(a), all Plan Shares subject to a Plan Share Award held by a
Recipient whose service as a director of the Corporation terminates due to death or Disability
shall be deemed earned as of the Recipient’s last day of service with the Corporation and shall be
distributed as soon as practicable thereafter; provided, however, that no Awards shall be
distributed prior to six months from the date of grant of the Plan Share Award.
(c) Exception for Change in Control and Retirement. Notwithstanding the general rule
contained in Section 7.01(a), all Plan Shares subject to a Plan Share Award held by a Recipient
shall be deemed to be earned in the event of a “change in control” or the date the Recipient
becomes eligible for Retirement. A “change in control” shall mean a change in the ownership of
the Corporation or the Bank, a change in the effective control of the Corporation or the Bank or a
change in the ownership of a substantial portion of the assets of the Corporation or the Bank, in
each case as provided under Section 409A of the Code and the regulations
thereunder.
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(d) Revocation for Misconduct. Notwithstanding anything hereinafter to the contrary,
the Board may by resolution immediately revoke, rescind and terminate any Plan Share Award, or
portion thereof, previously awarded under this Plan, to the extent Plan Shares have not been
distributed hereunder to the Recipient, whether or not yet earned, in the case of any Non-employee
Director who is removed from service as a director of the Corporation for cause (as hereinafter
defined). Removal shall be deemed to be for cause if the Non-employee Director has been convicted
of a felony by a court of competent jurisdiction or has been adjudged by a court of competent
jurisdiction to be liable for gross negligence or misconduct in the performance of his duties to
the Corporation or any Subsidiary.
7.02 Distribution of Dividends. Any cash dividends declared in respect of each Plan
Share held by the Trust will be paid by the Trust, as soon as practicable after the Trust’s
receipt thereof, to the Recipient on whose behalf such Plan Share is then held by the Trust.
7.03 Distribution of Plan Shares.
(a) Tuning of Distributions: General Rule. Plan Shares shall be distributed to a
Recipient or his Beneficiary, as the case may be, as soon as practicable after they have been
earned; provided, however, that no Plan Shares shall be distributed to a Recipient or Beneficiary
pursuant to a Plan Share Award within six months from the date on which that Plan Share Award was
granted to such person; provided further, however, in the case of a Plan Share Award granted prior
to the date this Plan is approved by stockholders of the Corporation if presented to stockholders
in accordance with Section 4.04 hereof, no Plan Shares shall be distributed to a Recipient or
Beneficiary pursuant to such Plan Share Award within six months from the date on which such
shareholder approval of the Plan was obtained.
(b) Form of Distributions. All Plan Shares, together with any Shares representing
stock dividends, shall be distributed in the form of Common Stock. One share of Common Stock shall
be given for each Plan Share earned and distributable. Payments representing cash dividends shall
be made in cash.
(c) Withholding. The Trustees may withhold from any cash payment or Common Stock
distribution made under this Plan sufficient amounts to cover any applicable withholding and
employment taxes, and if the amount of a cash payment is insufficient, the Trustees may require
the Recipient or Beneficiary to pay to the Trustees the amount required to be withheld as a
condition of delivering the Plan Shares. The Trustees shall pay over to the Corporation or any
Subsidiary which employs or employed such Recipient any such amount withheld from or paid by the
Recipient or Beneficiary.
(d) Restrictions on Selling of Plan Shares. Plan Share Awards may not be sold,
assigned, pledged or otherwise disposed of prior to the time that they are earned and distributed
pursuant to the terms of this Plan. Following distribution, the Committee may require the
Recipient or his Beneficiary, as the case may be, to agree not to sell or otherwise dispose of his
distributed Plan Shares except in accordance with all then applicable Federal and state
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securities laws, and the Committee may cause a legend to be placed on the stock
certificate(s) representing the distributed Plan Shares in order to restrict the transfer of the
distributed Plan Shares for such period of time or under such circumstances as the Committee, upon
the advice of counsel, may deem appropriate.
7.04 Voting of Plan Shares. After a Plan Share Award has been made, the Recipients
shall be entitled to direct the Trustees as to the voting of the Plan Shares which are covered by
the Plan Share Award and which have not yet been earned and distributed to them pursuant to
Section 7.03, subject to rules and procedures adopted by the Committee for this purpose. Provided
that the Recipients inform the Trustees how the Recipients voted Plan Shares which have been
earned and distributed for and against proposals to stockholders, the Trustees shall vote all Plan
Shares which have not yet been earned and distributed pursuant to Section 7.03 in the same
proportion for and against proposals to stockholders as the Recipients actually vote Plan Shares
which have been earned and distributed pursuant to Section 7.03. If the Recipients do not provide
the Trustees with such information, Plan Shares which have not yet been earned and distributed
pursuant to Section 7.03 shall not be voted by the Trustees. In the event a tender offer is made
for Plan Shares, the Trustees shall tender Plan Shares held by it which have not yet been earned
and distributed in the same proportion in which the Recipients actually tender Plan Shares which
have been earned and distributed.
ARTICLE VIII
TRUST
TRUST
8.01 Trust. The Trustees shall receive, hold, administer, invest and make
distributions and disbursements from the Trust in accordance with the provisions of the Plan and
Trust and the applicable directions, rules, regulations, procedures and policies established by
the Committee pursuant to the Plan.
8.02 Management of Trust. It is the intent of this Plan and Trust that the Trustees
shall have complete authority and discretion with respect to the arrangement, control and
investment of the Trust, and that the Trustees shall invest all assets of the Trust in Common
Stock to the fullest extent practicable, except (i) to the extent that the Trustees determine that
the holding of monies in cash or cash equivalents is necessary to meet the obligations of the
Trust and (ii) contributions to the Trust by the Corporation prior to the Offering may be
temporarily invested in such interest-bearing account or accounts as the Trustees shall determine
to be appropriate. In performing its duties, the Trustees shall have the power to do all things
and execute such instruments as may be deemed necessary or proper, including the following powers:
(a) To invest up to one hundred percent (100%) of all Trust assets in Common Stock without
regard to any law now or hereafter in force limiting investments for trustees or other
fiduciaries. The investment authorized herein may constitute the only investment of the Trust, and
in making such investment, the Trustees are authorized to purchase Common Stock from the
Corporation or from any other source, and such Common Stock so purchased may be outstanding, newly
issued, or treasury shares.
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(b) To invest any Trust assets not otherwise invested in accordance with (a) above, in such
deposit accounts, and certificates of deposit, obligations of the United States Government or its
agencies or such other investments as shall be considered the equivalent of cash.
(c) To sell, exchange or otherwise dispose of any property at any time held or acquired by
the Trust.
(d) To cause stocks, bonds or other securities to be registered in the name of a nominee,
without the addition of words indicating that such security is an asset of the Trust (but accurate
records shall be maintained showing that such security is an asset of the Trust).
(e) To hold cash without interest in such amounts as may in the opinion of the Trustees be
reasonable for the proper operation of the Plan and Trust.
(f) To employ brokers, agents, custodians, consultants and accountants.
(g) To hire counsel to render advice with respect to their rights, duties and obligations
hereunder, and such other legal services or representation as they may deem desirable.
(h) To hold funds and securities representing the amounts to be distributed to a Recipient or
his Beneficiary as a consequence of a dispute as to the disposition thereof, whether in a
segregated account or held in common with other assets of the Trust.
Notwithstanding anything herein contained to the contrary, the Trustees shall not be required
to make any inventory, appraisal or settlement or report to any court, or to secure any order of
court for the exercise of any power herein contained, or give bond.
8.03 Records and Accounts. The Trustees shall maintain accurate and detailed records
and accounts of all transactions of the Trust, which shall be available at all reasonable times for
inspection by any legally entitled person or entity to the extent required by applicable law, or
any other person determined by the Committee.
8.04. Expenses. All costs and expenses incurred in the operation and administration of
this Plan shall be borne by the Corporation.
this Plan shall be borne by the Corporation.
8.05 Indemnification. Subject to the requirements of applicable laws and regulations,
the Corporation shall indemnify, defend and hold the Trustees harmless against all claims, expenses
and liabilities arising out of or related to the exercise of the Trustees’ powers and the discharge
of their duties hereunder, unless the same shall be due to their gross negligence or willful
misconduct.
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ARTICLE IX
MISCELLANEOUS
MISCELLANEOUS
9.01 Adjustments for Capital Changes. The aggregate number of Plan Shares available
for distribution pursuant to the Plan Share Awards and the number of Shares to which any Plan Share
Award relates shall be proportionately adjusted for any increase or decrease in the total number of
outstanding shares of Common Stock issued subsequent to the effective date of the Plan resulting
from any split, subdivision or consolidation of shares or other capital adjustment, or other
increase or decrease in such shares effected without receipt or payment of consideration by the
Corporation.
9.02 Amendment and Termination of Plan. The Board may, by resolution, at any time
amend or terminate the Plan, subject to any required stockholder approval or any stockholder
approval which the Board may deem to be advisable for any reason, such as for the purpose of
obtaining or retaining any statutory or regulatory benefits under tax, securities or other laws or
satisfying any applicable stock exchange listing requirements. The Board may not, without the
consent of the holder of a Plan Share Award, alter or impair any Plan Share Award previously
granted under this Plan as specifically authorized herein. Notwithstanding anything contained in
this Plan to the contrary, the provisions of Articles VI and VII of this Plan shall not be amended
more than once every six months, other than to comport with changes in the Code, the Employee
Retirement Income Security Act of 1974, as amended, or the rules and regulations promulgated under
such statutes.
9.03 Nontransferable. Plan Share Awards and rights to Plan Shares shall not be
transferable by a Recipient, and during the lifetime of the Recipient, Plan Shares may only be
earned by and paid to a Recipient who was notified in writing of an Award by the Committee pursuant
to Section 6.02. No Recipient or Beneficiary shall have any right in or claim to any assets of the
Plan or Trust, nor shall the Corporation or any Subsidiary be subject to any claim for benefits
hereunder.
9.04 Service Rights. Neither the Plan nor any grant of a Plan Share Award or Plan
Shares hereunder nor any action taken by the Trustees, the Committee or the Board in connection
with the Plan shall create any right on the part of any Non-employee Director to continue as such.
9.05 Voting and Dividend Rights. No Recipient shall have any voting or dividend rights
or other rights of a stockholder in respect of any Plan Shares covered by a Plan Share Award,
except as expressly provided in Sections 7.02 and 7.04 above, prior to the time said Plan Shares
are actually earned and distributed to him.
9.06 Governing Law. The Plan and Trust shall be governed by the laws of the
Commonwealth of Pennsylvania.
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9.07 Effective Date. This Plan as originally adopted was effective as of the Effective
Date, and Awards may be granted hereunder as of or after the Effective Date and as long as the Plan
remains in effect. The amendment and restatement of this Plan shall be effective as of November
21, 2006.
9.08 Term of Plan. This Plan shall remain in effect until the earlier of (1) ten (10)
years from the Effective Date, (2) termination by the Board, or (3) the distribution to Recipients
and Beneficiaries of all assets of the Trust.
9.09 Tax Status of Trust. It is intended that the trust established hereby be treated
as a Grantor Trust of the Corporation under the provisions of Section 671 et seq.
of the Code, as the same may be amended from time to time.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed by its duly
authorized officers and the corporate seal to be affixed and duly attested, and the Trustees of
the Trust have duly and validly executed this Agreement, all on this 21st day of
November 2006.
| ESB FINANCIAL CORPORATION | ||||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||||
| President and Chief Executive Officer | ||||||
ATTEST: |
||||||
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ |
||||||
Group Senior Vice President of
Operations and Secretary |
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| TRUSTEES: | ||||||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||||||
| /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
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