GENERAL DESCRIPTION

An employee stock ownership plan ("ESOP") is an employee benefit plan which is qualified for tax-favored treatment under the Internal Revenue Code of 1986, as amended (the "Code"). A plan is qualified if it complies with various participation, vesting, distribution and other rules established by the Code to protect the interests of employees. An ESOP is classified as a type of deferred compensation plan which invests primarily in stock of the corporation that sponsors the ESOP. An ESOP also must comply with various reporting and disclosure requirements and fiduciary responsibility rules of the Employee Retirement Income Security Act of 1974, as amended ("ERISA).

An ESOP is a "defined contribution plan." That is, the employer's contribution is defined and the employee's benefit is variable. Each participating employee's account is credited with an appropriate number of shares of company stock over the period of his employment. After retirement, death, disability or other termination of service, the employee's account is distributed to him (or his beneficiary) in shares of stock or in cash, the amount determined by applying the current fair market value of the company stock in his or her account to the number of shares. An employee's benefit, thus, is not defined - as with a pension plan - but is dependent upon the value of his stock.

WHAT DO EMPLOYEES RECEIVE FROM AN ESOP?

All ESOP assets (company stock and other investments) are allocated each year to the accounts of all employee participants in the ESOP, by a formula usually based on the proportion of an employee's salary to total covered payroll. Assets of the ESOP are held in an ESOP trust established under a written trust agreement and administered by a board of trustees responsible for protecting the interests of employees (and their beneficiaries).

An employee is not taxed on contributions to his or her ESOP account (or income earned in that account) until his or her benefits are actually received. Even then, "rollovers" (into an IRA, for example) or special averaging methods can reduce or defer the income tax consequences of distributions.

An ESOP, like most employee benefit plans, generally is designed to benefit employees who remain with the employer the longest and contribute most to the employer's success. Therefore, an employee's ownership interest (in company stock and other assets held in the ESOP trust) usually is based on his or her number of years of employment. The employee's ownership interest in the ESOP is called his "vested benefit," and the provisions which determine his vested benefit are called the "vesting schedule." Although there are various vesting schedules which may be used (extending for periods up to seven years), most are designed so that the longer the employee stays with the employer, the greater his vested benefit becomes.

If an employee terminates employment for any reason other than retirement, death or disability, his or her vested benefit under the ESOP will be determined by referring to the vesting schedule. All company stock in which the employee does not have a vested benefit (because he or she has not worked long enough) will be treated as a "forfeiture," which is allocated among the ESOP accounts of the remaining employees on the same basis as employer contributions. If an employee retires, dies or is disabled, he or she usually will be 100% vested in his or her total account balance.

After an employee's participation in the ESOP ends, he or she (or his or her beneficiary) is eligible to receive a distribution of his or her vested benefit. There are many permissible times and methods for making this distribution. For example, it may be made as soon as possible after an employee's termination of employment, or it may be deferred for a period of up to six years. However, distribution of a former employee's vested benefit must start in the year following his retirement, disability or death. Payment may be made in a lump sum or in installments over a period of up to five years. In a closely-held company, distributions are usually made in cash or in shares of company stock which may be sold back to the company.

HOW DOES AN ESOP BENEFIT EMPLOYERS?

As a technique of corporate finance, the ESOP can be used to raise new equity capital, to refinance outstanding debt or to acquire productive assets through leveraging with third-party lenders. Because contributions to an ESOP trust are fully tax deductible, an employer can fund both the principal and the interest payments on an ESOP's debt service obligations with pre-tax dollars.

FEDERAL INCOME TAX CONSEQUENCES OF AN ESOP FOR THE EMPLOYER

Employer contributions to an ESOP trust are tax deductible within the limitations of the Code. An employer may contribute to an ESOP trust and deduct up to 25% of covered payroll per taxable year. If the ESOP has borrowed and is leveraged, the employer may increase contributions beyond the 25% level to the extent that the excess is used to pay the ESOP's interest expense except in the case of an S corporation ESOP. In addition, cash dividends paid on ESOP stock are deductible by a C corporation if applied to the repayment of ESOP trust debt or if currently distributed in cash to ESOP participants. Under Section 415 of the Code, the "annual deductions" which may be allocated to the account of an individual ESOP participant each year normally may not exceed the lesser of 100% of his covered compensation or $40,000. The "annual additions" include employer contributions, any employee contributions and certain forfeitures which are allocated to the employee's account, although contributions used to pay loan interest will usually not be considered "annual additions."

TAX BENEFITS TO SELLING SHAREHOLDERS

An ESOP provides a market for stock of a closely-held company. The Code provides a special tax incentive for certain sales of stock to an ESOP, subject to satisfying a number of specific rules. Thus, a shareholder of a closely-held C corporation may be able to sell stock to an ESOP, reinvest the proceeds in other securities and defer taxation of any gain resulting from the sale (so long as a number of special requirements are satisfied).

VOTING RIGHTS

In a closely-held company, unless otherwise determined by the Board of Directors, employees have voting rights on allocated shares only with regard to certain major corporate issues, such as merger, certain sales or liquidation of the company and recapitalizations. On other matters, ESOP shares are usually voted by the ESOP's Board of Trustees which has been appointed by the company's Board of Directors. Many variations of this structure are used. In a publicly-traded company, employees have voting rights on all shares allocated to their accounts under the ESOP.

LEGISLATIVE ENVIRONMENT

ESOPs have existed since the 1950s, but were first formalized under federal law with the enactment of the Employee Retirement Income Security Act of 1974. Since that time, significant ESOP incentives have been included in numerous federal statutes, including:

• Tax Reduction Act of 1975
• Tax Reform Act of 1976
• Revenue Act of 1978
• Small Business Employee Ownership Act of 1980
• Economic Recovery Tax Act of 1981
• Deficit Reduction Act (Tax Reform Act) of 1984
• Tax Reform Act of 1986
• Small Business Jobs Protection Act of 1996
• Taxpayer Relief Act of 1997
• Economic Growth and Tax Relief Reconciliation Act of 2001

The preponderance of this legislation has been quite favorable for ESOPs and has served to expand rather than restrict their use. The intent of Congress was made abundantly clear when, in an unprecedented move, it included language in the Tax Reform Act of 1976 specifically endorsing the use of ESOPs as techniques of corporate finance. The Tax Reform Act of 1984 and the Tax Reform Act of 1986 included the most significant tax incentives ever provided for ESOPs and ESOP financing until the S corporation legislation of 1996 and 1997.

Under current law, as enacted in 1997 for years beginning on or after January 1, 1998, S corporation ESOPs are exempt from the unrelated business income tax (UBIT); thus, if an ESOP owns all of an S corporation, no current tax is imposed on the companyıs income. (That income is eventually taxed because ESOP participants in S corporations are taxed on ESOP distributions, just as C corporation ESOP participants are.) The Economic Growth and Tax Relief Reconciliation Act of 2001, signed into law on June 7, 2001, restricts the abuse of this provision by plans designed to benefit only a small number of employees, whether in a very small company or where a small number of employees try to set up an S corporation ESOP to benefit themselves while operating a larger company whose employees are not participating in the ESOP. The U.S. Treasury and the IRS issued Temporary and Proposed Regulations regarding S Corporation ESOPs on July 18, 2003.

The 2001 Act also includes the first expansion of an ESOP tax incentive for a C corporation (expansion of the deduction for reinvested dividends paid on company stock held by an ESOP) enacted by Congress in 15 years. The 2001 Act solidifies the legislative environment for S corporation ESOPs and will help ensure this significant tax incentive for ESOPs will make them attractive to a growing number of companies. This legislation also makes funding defined contribution plans more flexible and attractive to employers and permits substantially more dollars to be added to rank-and-file employeesı retirement plan accounts.

THE ESOP AS A FINANCING MECHANISM

INTRODUCTION

An ESOP is defined in the enabling legislation as a "technique of corporate finance." A company may make tax-deductible contributions in cash or stock to the ESOP trust. If this contribution is made in company stock, the resulting tax deduction increases the company's cash flow and the additional cash can be used for any corporate purpose. If the contribution is made in cash, the ESOP can use the cash to purchase stock from the company Itself, from existing shareholders or from retiring or terminated employees who have received distributions of stock from the ESOP.

Upon termination of employment, a participant's vested benefit may be paid from the ESOP in cash or in stock. While a participant may have the right to demand to receive his distribution in stock, to mitigate the problems associated with creating a group of outside shareholders through ESOP distributions, the corporate charter or bylaws of a closely-held company can often be modified to require that substantially all the company's stock be owned by employees. This will allow the ESOP to make distributions solely in cash.

CORPORATE FINANCE USES OF ESOPS

An ESOP is mandated by law to invest its contributions primarily in stock of the sponsoring employer. It also is the only qualified employee benefit plan which is permitted to borrow funds on employer credit in order to acquire company stock. These differences provide significant flexibility for a company using the ESOP as a tool of corporate finance and make possible its use to accomplish a variety of corporate and shareholder objectives not readily achievable through other methods. Some of these objectives include:

• Acquisition Financing: ESOP contributions allow the acquirer to amortize the principal payments on acquisition debt with pre-tax dollars. Because the ESOP thus generates more capital internally, the company enjoys a much healthier cash position and financing is easier to obtain for various transactions, including leveraged buyouts of publicly-traded and closely-held companies. In addition, lenders to ESOP companies are provided with special tax incentives which may reduce the interest costs to the borrower.

  After acquisition financing has been amortized, the ESOP can provide a market for stock of the founding shareholder group using pre-tax dollars. Without this market, it might be necessary to sell the company or take it public in order for the founders to obtain a return on their investment.

• Acquisition Of Assets Or General Business Financing Using Pre-tax Dollars: ESOP contributions can be used to shelter principal payments on normal corporate debt, effectively allowing the corporation to take tax deductions on principal payments, which can significantly reduce the after-tax cost of borrowing. In a leveraged ESOP transaction, the company may effectively amortize the loan out of pretax income of the business because the corporation's payments are treated as employee benefit plan contributions which are fully tax deductible. In a conventional loan, only interest is deductible by the borrowing corporation. Assuming a marginal income tax rate of 40%, a corporation would have to earn approximately $10 million pre-tax to provide funds to amortize principal on a $6 million loan. Pre-tax income of only $6 million is needed to generate funds to amortize the $6 million principal of an ESOP loan. Thus, cash flow to service acquisition debt is increased substantially in a properly structured ESOP.

• Purchase Of Stock From Major Shareholders: The ESOP can provide a market for stock of major shareholders and their estates. Using the ESOP to buy the shares of principal shareholders has advantages over direct redemption by the company. The company's contribution to the ESOP is tax deductible so that the stock purchase is accomplished with pretax dollars, thus conserving the company's cash and net worth. Controlling shareholders receive capital gains treatment on sales of their stock to an ESOP when selling only a small portion of their holdings. Conversely, if the shares were redeemed by the company, the distribution may be treated as a dividend to the selling shareholder. If certain conditions are met, selling shareholders may defer or avoid capital gains tax on sales of stock to an ESOP.

• An Alternative To Going Public: An ESOP can be used as a tool analogous to going public "internally." The ESOP can provide a market for stock of current shareholders or for the purchase of newly issued shares. This can be accomplished without the problems and expenses normally associated with being a publicly traded company. However, the ESOP does not prevent a future sale, merger or public offering of the company should that become desirable.