1. L AS V EGAS C ONFERENCE November 8-9, 2012 Las Vegas, NV Daniel M. Reser Fiduciary Services, Inc. Patrick De Craene GreatBanc Trust Company Michael R. Holzman Dickinson Wright PLLC

2. 2 The objectives of this session are:  Overview of the duties and responsibilities as an ESOP Fiduciary/Trustee  Discuss practical situations and “best practices”  Share experiences

3.  Anyone who has discretion or control over Plan Assets:  Plan Sponsor/Board of Directors: appoint/remove other fiduciaries; oversight  Trustee (directed or discretionary): Record owner of shares held by ESOP; must act for the “exclusive benefit” of participants; votes shares (but may be directed as to voting)  ESOP Committee (if any): interprets plan; reviews claim appeals; may direct trustee as to how to vote shares; may be Plan Administrator also  Plan Administrator/Plan Committee  Valuation Firm: annually appraises ESOP shares; may perform valuation of, or financial advisory service for, specific transactions? (Are they a “fiduciary” and are they “independent”) 3

4.  Individual Internal Trustees  Frequently officers/employees of the Company  Pros and Cons  Independent Trustees  Could be an independent individual, however, Institutions usually fill this role (banks, trust companies, etc.)  Limited transactional vs. ongoing  Pros and Cons  Directed Trustees  Receives direction from insider fiduciaries or independent fiduciaries  Similarities and Differences  Responsibilities  Risks  Judicial deference  Duties and responsibilities of the “Fiduciary” are defined in Plan and Trust documents 4

5.  A Fiduciary must:  Discharge duties solely in the interests of the Plan Participants  Discharge duties with care, skill, prudence and diligence  Under the circumstances then prevailing  That a prudent person acting in a like capacity and familiar with such matters would use  In the conduct of an enterprise of a like character and with like aims  Act in accordance with plan documents  Insofar as such documents are consistent with ERISA and other applicable law  Steer clear of prohibited transactions  Related-party sales  Loans 5

6. 6 Plan Sponsor/Administrator Trustee Purchases and Sales of Company Stock Invest trust assets Determine value of company stock Repurchase liability Executive Compensation Actions of Prior Fiduciary Vote Shares held within ESOP Process Distributions Non-routine Events

7. 7  Prudence and the exclusive benefit rule  Is the purchase a prohibited transaction?  Conduct Due-Diligence Investigation  Financial matters (Adequate Consideration)  Legal matters  Consider impact on existing shares held by the ESOP  Negotiate Price – Adequate Consideration  Fairness  Documentation  Role of Conflicts  Highly Scrutinized  Plaintiffs’ Bar  DOL

8. 8  Prudence and the exclusive benefit rule  Investment Policy Statement  Review of risk and return Characteristics  Duty of Diversification  Trustee  Plan Administrator (if the Trustee is Directed)  Investment Advisor

9. 9  Determining Value/Stock Price – The Trustee is responsible.  What should the Trustee do with the valuation report ?  Process for accepting the report from valuation firm  Is appraiser independent?  Review the report  Ask questions  Review the approaches  Unique circumstances  Have questions been answered and documented?  Need to understand the valuation

10. 10  Overall solvency of the Company  Necessity of the Trustee to discuss issues with management  Repurchase Liability

11. 11  Plan Sponsor must meet the obligation  Internal versus External studies  Sustainability  Effect on Valuation  Cash Flow  Balance Sheet  What happens when you fail to plan?

12. 12  Board of Directors  Fair and Reasonable  Trustee Duty to monitor Board actions  Dilutive effects of equity compensation  409(p)  Effect on valuation - Delta Star, Inc. vs. Patton 76 F. Supp. 2d 617 (W.D. Pa. 1999); Johnson vs. Couturier 2009 WL 2216805 (9th Cir. July 27, 2009)

13. 13  Duty to Investigate Barker v. American Mobile Power Corp. (9 th Cir.)  Department of Labor view, DOL 1976 Advisory Opinion  In Fernandez v. K-M Indus. Holding Co. (9 th Cir.), the Court relied upon a Department of Labor opinion and the common law of trusts and held that while the Successor Trustee could not be held vicariously liable for the breaches of fiduciary duty by Moore, it was potentially liable under §1005 for its failure to remedy the alleged breaches of fiduciary duty that took place before it was appointed trustee if it failed to act despite its knowledge of the breaches  Co-fiduciary liability Silverman v. Mutual Benefit Life Insurance Co. (2 nd Cir.)

14. 14  Trustee Votes  Is the Trustee directed?  Investigation and documentation  Pass-Through Vote to Participants  Merger, consolidation, liquidation, sale of substantially all company assets, “organic changes”  Voluntary Participant Voting for Board of Directors  Adequacy of information provided to participants  Ensure Voting Safeguards, confidentiality  Potential for Conflicts  Voting for yourself  Should you abstain?

15. 15  Recordkeeping Trust/Accounting  Payment of the ESOP loan  Notify the Company of pending loan payments due  Collect the loan payments from the company and make the necessary payments to the bank or back to the company (DOL)  All loan payments need to be run through the trust even if the loan is from the company (IRS and DOL)  Working with TPA, calculate the release of the shares as per the loan documents and make sure that all covenants have not been violated (DOL)

16. 16  Allocations/5500/Annual Audit:  Who should check the Allocation Reports to insure that they are correct ?  Verify the release of shares  Spot check the allocations  Verify the number of shares on the reports to the Trust  Statements for both the allocated and unallocated shares  Look at the results of the 409(p) test for Sub S ESOPS. Is there a non-allocation year?

17. 17  Distributions:  The Trustee makes the distributions to the plan participants as directed by the Plan Administrator.  The distributions should be verified to the allocation reports before checks are issued.  Prepare the check or stock certificates (if shares are to be paid out).  Compute income tax withholding. Prepare the appropriate tax reporting forms and send withholding timely to the IRS.

18. 18  If the Company purchases distributed ESOP shares, is it a Fiduciary decision?  If the ESOP purchases distributed ESOP shares, is it a Fiduciary decision?  What if Company offers to repurchase ESOP shares from the ESOP so that the ESOP can distribute cash in lieu of shares?  If stock is sold by the ESOP to the Company, the sale is a party-in-interest transaction and must be done at or below fair market value as determined at time of the sale, not as of last annual valuation date.

19. 19  Sale of Company  Asset sale or merger  Stock sale  Acquisitions of other companies  Refinancing of ESOP loan balance(s)

20. 20  Liability for Breach of Duty  ERISA Section 409(b)  Penalties for Violation of Prohibited Transaction Rules  Indemnification  Liability for Breach of a Co-Fiduciary

21. 21  Review indemnification agreements  Review level of ERISA fiduciary liability coverage for adequacy; take defense costs into account  Board of Directors – annual review of actions of ESOP Trustee (including stock valuations); seek independent, competent advice of executive compensation and board fees

22. Daniel M. Reser F IDUCIARY S ERVICES, I NC. 369-B Third Street, #543 San Rafael, CA 94901-3581 Tel: 415-482-9513 Fax: 415-276-1736 dreser@fiservinc.com Patrick J. De Craene G REAT B ANC T RUST C OMPANY 801 Warrenville Road Suite 500 Lisle, Illinois 60532 Tel: 630-810-4500 Fax: 630-810-4501 pdecraene@greatbanctrust.com Michael R. Holzman D ICKINSON WRIGHT PLLC 1875 Eye Street NW, Washington, DC 20006 Tel: 202-659-6931 mholzman@dickinsonwright.com