EMPLOYEE STOCK OWNERSHIP PLANS

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1 EMPLOYEE STOCK OWNERSHIP PLANS Donald C. Hess Taft, Stettinius & Hollister Cincinnati, Ohio I. What is an ESOP? A. An employee stock ownership plan ("ESOP") is a form of tax-qualified defined contribution retirement plan under Internal Revenue Code 401(a), which is designed to invest primarily in employer securities. B. Kinds of ESOPs. 1. Non-leveraged ESOP (stock bonus plan). This is a plan which is very similar to a profit-sharing plan, except that it invests primarily in employer securities. 2. Leveraged ESOP. This plan differs from a non-leveraged ESOP in that it is authorized to borrow money to purchase a large block of employer stock, with the shares being allocated to plan participants over a period of years as the loan is repaid. 3. Tax credit ESOP (PAYSOP). This plan is funded with a special income tax credit equal to one-half percent of the earnings of plan participants. This credit was repealed effective December 31, C. An existing profit-sharing plan may be converted into an ESOP. If this is done, participants probably should be permitted to elect whether to have their existing account balances invested in company stock. II. How an ESOP works. A. An ESOP is established by the company's adopting a plan and establishing a trust under a trust agreement to hold the plan assets. B. Participation. 1. Minimum participation standards. All qualified plans, including ESOPs, must meet one of two statutory coverage tests under the Code, which are designed to ensure that the plan does not discriminate in favor of officers, shareholders, or highly compensated employees. a. Percentage test. The coverage test is satisfied if the plan covers either 70% or more of all employees, or 80% or more of all eligible employees provided that 70% or more of all the employees are actually eligible to benefit under the plan. b. Non-discriminatory classification test. The coverage test may also be satisfied even if the above percentage tests are not satisfied, if the plan covers an employee classification which is found not to be discriminatory

2 in favor of employees who are officers, shareholders, or highly compensated. 2. Allowable exclusions. The following employees may be excluded from the plan under either of the above tests: a. Employees who have not attained at least age 21; b. Employees who have not completed at least one year of service with the employer; c. Employees who are not employed on the last day of the plan year, unless this provision operates in a discriminatory manner; and d. Employees who are members of a collective bargaining unit. C. Benefit vesting schedule. 1. Non-top-heavy plans. The plan may utilize any of the following vesting schedules, or a schedule which provides for more rapid vesting: a. Ten-year vesting. b. Five-fifteen graded vesting. c. Four-forty vesting. 2. Top-heavy plans. All top-heavy plans must provide for vesting at least as rapid as 20% vesting after two years of service increasing 20% per year there- after, to full vesting after six years of service. D. Employer contributions. 1. Form of contributions. a. Cash b. Employer stock 2. Deductions for employer contributions. a. General rule. An employer may deduct contributions to an ESOP up to a maximum of 15% of the compensation paid to all plan participants during the year. If the plan includes a money purchase pension plan, the deduction limitation is 25%. b. Special rule for ESOPs. Employer contributions used to pay ESOP loan interest are fully deductible, and contributions used to repay loan principal are deductible up to 25% of the participants' compensation.

3 E. Allocation of contributions and forfeitures. 1. Method of allocation. The employer's annual contribution to the plan and all forfeitures are generally allocated to each participant pro rata based on his compensation for the year. A leveraged ESOP may not be integrated with Social Security. 2. Individual allocation limits. F. Distributions. a. General rule. In general, Code 415 limits the amount of annual contributions and forfeitures which may be allocated to each participant's account each year to the lesser of (a) 25% of his compensation, or (b) $30,000. b. Special rule for ESOPs. The regular Code 415 limits are increased for allocations to participants' ESOP accounts by an amount equal to the lesser of (a) $30,000, or (b) the amount of employer stock contributed to the ESOP, or purchased with cash contributed to the ESOP. 1. Timing. Distributions from an ESOP are generally made upon the retirement, death, disability, or termination of employment of the participant. 2. Form. Distributions may be made either in cash or in company stock. However, the participant has the right to require that the distribution be made in company stock. G. Use of exempt loan to purchase company stock. 1. A leveraged ESOP may borrow funds and use the proceeds to purchase a block of company stock. The ESOP loan may be guaranteed by the company. 2. The shares initially will be held in a "suspense" account. As the loan is repaid, the shares will be released from the suspense account and allocated to participants' accounts. H. Special requirements for leveraged ESOPs. 1. Voting. If the company is closely-held, the plan must provide that each participant shall have the right to direct the voting of all shares which have been allocated to his account under the plan on all matters which require more than a majority vote, such as a merger or sale of substantially all of the company's assets. If the company is an SEC reporting company, the participants must be entitled to vote the shares on all matters. 2. Put option. A participant receiving stock in a distribution from an ESOP that is not readily traded on an established market has the right for two 60-day periods

4 (at the time of distribution and in the subsequent plan year) to require the plan and/or the employer to purchase his stock at its fair market value. 3. Valuation of company stock. If the shares are not readily traded on an established market, the value must be established at least annually by an independent appraiser. I. Tax treatment. 1. The company will receive a tax deduction for the amount of its annual contribution to the ESOP, including that portion of the contribution which is used to pay principal and interest on an exempt loan. 2. There are no tax consequences to a participant in the plan until a distribution is made to him. At that time the distribution will be taxed, subject to possible favorable taxation under the income averaging rules, unless the distribution is rolled over into an IRA. III. Uses of ESOPs. A. Employee stock ownership. ESOPs have the obvious effect of making the employees stockholders of the company, theoretically giving them an increased stake and interest in the success of the company. B. Creation of a market for company stock. For most small companies there is little or no market for its stock. An ESOP may purchase company stock, thereby providing a market to enable a controlling shareholder to sell a portion of his stock, or to eliminate a minority shareholder. C. Financing vehicle. The ESOP may use the proceeds of an exempt loan to purchase newly issued or treasury shares from the company. In this case the company has effectively borrowed the money, but it will receive a tax deduction for its contributions to the ESOP which are used to make principal payments on the loan. IV. Special Tax Incentives for ESOPs. A. Interest exclusion on ESOP loans. Banks, insurance companies and other commercial lenders may exclude from income 50% of the interest they receive on ESOP loans. B. Deduction for dividends paid. A company may receive a tax deduction for dividends paid on company stock held in ESOP if the dividends are: 1. Paid directly to the plan participants or paid to the plan and distributed to plan participants within 90 days, or 2. Effective in 1987, used to pay principal and/or interest on an exempt loan. C. Income tax deferral on sale to an ESOP.

5 1. In limited cases, if a person who sells stock to an ESOP reinvests the proceeds in securities of another domestic corporation, he may defer the payment of income tax on his gain until the substitute property is sold. If the substitute property is held until death, no income tax will ever be paid on this gain. 2. This special tax benefit is available only if the ESOP owns at least 30% of the company stock immediately after the sale. D. Estate tax deduction on sale to an ESOP. 1. This provision, added by the Tax Reform Act of 1986, has generated a substantial amount of attention in the press. It permits an estate to obtain an estate, tax deduction for 50% of the proceeds it receives from the sale of stock to an ESOP. 2. The provision as drafted by Congress was unintentionally broad, and corrective legislation will be forthcoming. E. Assumption of estate tax by ESOP. An ESOP may purchase company stock from an estate and assume the estate's Federal estate tax liability.