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General Laws

Section 39. Fifteen or more savings banks may form the Savings Banks Employees Retirement Association in this section, and in sections 40 and 41, called the association for the purpose of providing retirement benefits services through retirement plans that are qualified under section 401 of the federal Internal Revenue Code, to members of the association and their customers, as hereinafter provided. The association, in its name and by or through its authorized officers, may (a) make agreements and investments subject to limitations as from time to time may be prescribed by law or the by-laws of the association, (b) sue and be sued, plead and be impleaded, (c) enforce liens and other obligations and foreclose mortgages held by the association on or with respect to real or personal property situated in the commonwealth or in any state or territory of the United States, (d) adopt an official seal and alter the same at pleasure, and (e) do other acts and things necessary to carry out the powers conferred upon it by law and its by-laws.

Any bank or credit union chartered by the commonwealth, any such bank or credit union which has converted to federal charter and has its main office located in the commonwealth, any bank or credit union chartered by the federal government, by a state of the United States other than the commonwealth or by the District of Columbia and which has its main office or a branch office located in the commonwealth, the Massachusetts Bankers Association and its successors and any bank which is a voting member thereof, the Savings Banks Employees Retirement Association, the Depositors Insurance Fund, and other banking institutions with their main office or any branch office located in the commonwealth, as may from time to time be provided for in the by-laws of the association, and the respective employees of each of the foregoing, shall be eligible for membership in the association; but, no bank that was eligible to be a member of the association before January 1, 2004, shall be eligible to become a member of the Cooperative Banks Employees Retirement Association or the Credit Union Employees Retirement Association unless and until the Cooperative Banks Employees Retirement Association and the Credit Union Employees Retirement Association permits a member to transfer from any or all of the qualified plans provided by said association, assets and liabilities, attributed to the member’s employees, to 1 or more qualified plans not provided by said association. For the purposes of this section and sections 40 and 41, a reference to “bank” or “banks” shall, unless the context otherwise requires, mean any or all of the organizations named or referred to in this paragraph, a reference to “trustees” of a bank shall, unless the context otherwise requires, mean the governing body of any such organization, including, if applicable, the board of directors; and a reference to “customer” shall mean any person or business who has established a contractual relationship for banking business purposes with any banking institution located in the commonwealth which is a member of the association.

Eligible employees may contribute a portion of their salaries or wages, to be deducted by the employing banks and paid to the plans or the retirement association. A participating bank may contribute to or under plans of the retirement association for its employees to the extent determined by its board of trustees. Contributions and benefits under the plans of the retirement association shall not exceed the limits, if any, imposed on such plans by the Internal Revenue Code and the Employees Retirement Income Security Act of 1974, in this section called the Code and ERISA, respectively.

If the commissioner finds that the continuation of contributions by a participating bank subject to his authority may affect its safety and soundness, including reducing its risk-based capital ratio below any prescribed regulatory level, said commissioner may order the bank to (a) freeze its benefits and cease further funding for future benefit accruals under any plans qualified under section 401 of the federal Internal Revenue Code; (b) revise its benefits for future service under any such plans so that contributions on account of any employee will be limited to an appropriate percentage of compensation; or (c) terminate its participation in any such plans.

The funds contributed by participating banks and their employees shall be held or used by the trustees of the association for the purchase of annuities or payment of retirement benefits to eligible employees, for payments to beneficiaries or representatives of any member employee of the participating bank dying before reaching the age of retirement, and for the payment to any employee retiring from service before becoming entitled to a pension or annuity. Funds held under any of the said plans shall be held or used by the retirement association to the extent required by the Code and ERISA for the exclusive purpose of providing plan benefits to participating members; but, to the extent permitted by law, funds of the plans may be used to defray reasonable expenses of administering the retirement association and the plans, and expenses of investing the assets of the plans may be charged against the funds of the plans. To the extent that expenses of the retirement association or said plans are not otherwise paid, they shall be paid by participating banks on a proportionate basis, as provided in the by-laws of the retirement association. The association shall annually provide to each member a report of assets and liabilities attributable to its participants in any or all qualified plans adopted by a member.

A participating bank, by vote of its board of directors, and a customer may adopt 1 or more of the plans of the retirement association for the benefit of its employees. Any such bank which has adopted a plan of the retirement association for its employees may, if it is otherwise eligible, also establish an employee stock ownership plan.

In any calendar year, the association or bank by vote of its governing board, may directly supplement the retirement benefits being paid to retired employees or their beneficiaries on account of service; but, no supplement of a retirement benefit shall exceed the retirement benefit multiplied by the increase in the cost of living since the retirement began. The increase in the cost of living is the percentage by which the national monthly consumer price index for all urban consumers issued by the bureau of labor statistics of the United States Department of Labor for the last November before the year in which payment is made is greater than the beginning index figure. The beginning index figure is the average of such monthly consumer price index figures for the year in which a retirement benefit was first paid to or with respect to a former employee. No bank may become obligated to pay in future years any supplement authorized by this paragraph.

Membership in the association is voluntary and any bank may establish or provide qualified retirement plans for its employees independent of the association; but, nothing contained herein shall be construed so as to require any bank to provide qualified retirement plans to its employees.

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