Employee Ownership Legal Update [Executive Summary]

1. 18th Annual Ohio Employee Ownership Conference April 16, 2004, 10:30 am to 12:00 NoonAkron/Fairlawn Hilton, Akron, Ohio Employee Ownership Legal Update[Executive Summary] David R. Johanson Johanson Berenson LLP 707.226.8997 drj@esop-law.com Presented By: Joseph E. Marx The Principal Financial Group 877.262.4608 marx.joseph@principal.com James G. Steiker SES Advisors 866.316.ESOP(3767) x22 jim@sharedequity.com Moderator: Ed Schmitt, Riesbeck Food Markets, Inc.

2. Significant Areas of Attention During Past Several Years • “S” Corporation Anti-Abuse Regulations • “Abusive” “S” Corporation ESOPs • “S” Corporation Distributions and IRAs • Sarbanes Oxley Act of 2002 • The Jobs and Growth Tax Relief Reconciliation Act of 2003 • Proposed ADP/ACP Regulations • Scope of ESOP Fiduciary Duty • ESOP Loan Refinancing • Repayment of ESOP Loan • FASB Statement 150 • Payment of Plan Expenses • Unanswered Questions

3. What We Have Learned • “S” Corporation Anti-Abuse Regulations • Issued on July 21, 2003 • Extraordinarily broad definition of “Synthetic Equity” includes ordinary deferred compensation • Normal “buy-sell” arrangements among existing shareholders not synthetic equity

4. What We Have Learned • Any right to receive compensation for services performed for S corporation (or certain related entities) that is deferred beyond 2½ months after year in which services are performed is considered “synthetic equity”. • To determine synthetic equity equivalent of non-qualified deferred compensation, temporary regulations provide that present value of deferred compensation is converted into number of shares of stock in corporation based on fair market value of S corporation shares on determination date, which may be any date during plan year. This calculation must be made on annual basis.

5. What We Have Learned • By requiring a synthetic equity calculation of non-qualified deferred compensation on an annual basis, a company could unwittingly run afoul of Section 409(p) of IRC in year in which its stock price suffers substantial decline in value. • Non-qualified deferred compensation would equate to much larger number of shares that could push disqualified persons over the 50% limit.

6. What We Have Learned • Regulations also emphasize that right to acquire interests in “related entity” is deemed to be “synthetic equity”. An entity is considered “related entity” if it is only significant asset of S corporation and S corporation is only significant holder of stock of “related entity”. • “Synthetic equity” is counted only if it would cause individual to be “disqualified person”, or company to have “nonallocation year”.

7. What We Have Learned • Status of each individual tested without regard to other individuals’ synthetic equity holdings. • Regulations applicable for plan years ending after October 20, 2003. • Section 409(p) of IRC was grandfathered and is not applicable until plan years ending after December 31, 2004, for S corporation ESOPs in effect prior to March 14, 2001. • Regulations provide another grandfathering rule which provides that if any non-qualified deferred compensation is paid out by July 21, 2004, it will not be treated as synthetic equity for purposes of testing anti-abuse provision.

8. What We Have Learned • “Abusive” “S” Corporation ESOPs • On January 23, 2004, in Revenue Ruling 2004-4, U.S. Treasury Department and IRS issued comprehensive ruling to shut down certain identified abusive transactions involving S corporation ESOPs. • Revenue Ruling 2004-4 also makes these transactions “listed transactions” for tax-shelter disclosure purposes.

9. What We Have Learned • Benefit of “S” Corporation ESOPs cannot accrue primarily to shelter deferred executive compensation • IRS views “S” Corporation ESOPs as potential tax shelters that can be easily abused • Apparently, compliant arrangements at edge of line will be attacked • More than insubstantial benefits must be provided to ESOP participants

10. What We Have Learned • “S” Corporation Distributions and IRAs • IRS will permit “S” Corporation stock distribution to IRA and immediate sale back to company w/o endangering “S” Corporation Status • Revenue Procedure 2003-23 • Requirements • ESOP participant elects to have stock directly rolled over to IRA, • terms of ESOP require “S” Corporation to immediately repurchase stock from IRA, • “S” Corporation actually repurchases stock on same day as distribution, and • no income, loss, deduction or credit attributable to “S” corporation stock is attributed to IRA.

11. What We Have Learned • Structuring and Limiting Warrants For Sub Debt in an S Corporation Lenders that agree to be subordinated to company’s senior lender usually demand much higher interest rate on their loans. In addition, to enhance their rate of return on these loans, the sub debt lender usually demands an “equity kicker” for the extra risk they take. Often, the equity kicker is in form of warrant to buy stock for nominal purchase price ($0.01).

12. What We Have Learned • Synthetic Equity and S Corporation Single Class of Stock Use of warrant to enhance rate of return creates two planning challenges. First, structure must not create second class of stock for S corporation purposes. Second, structure must be designed to avoid IRC Section 409(p) excise tax.

13. What We Have Learned • Sarbanes Oxley Act • Corporate Governance for Private Companies • Public Companies going Private • Blackout Notice Requirements • Accelerated SEC Reporting Requirements (Public Companies Only)

14. What We Have Learned • The Jobs and Growth Tax Relief Reconciliation Act of 2003 • Reduced maximum income tax rate imposed on long-term capital gains • Applies to dividends paid by most domestic and foreign corporations • Exception for dividends described in Section 404(k) & dividends distributed from qualified retirement plans (e.g. 401(k) plans, IRAs, etc.) • These exceptions continue to be taxed at ordinary income tax rates • Generally, applies to taxable years beginning after December 31, 2002

15. What Have We Learned • Proposed ADP/ACP Treasury Regulations • Issued July 17, 2003 • Under present law ESOPs are required to be disaggregated • Proposed regulations eliminate required disaggregation for purposes of ADP/ACP testing. • Disaggregation still applies for other nondiscrimination testing • Effective no sooner than first plan year beginning 12 months after publication of final regulations

16. What We Have Learned • Scope of ESOP Fiduciary Duty – the Case Law • No general affirmative duty to diversify out of company stock • Unclear whether company officers or board members will be considered fiduciaries • Directed fiduciaries generally exculpated unless following instructions violates ERISA • Empty head and pure heart still not enough

17. What We Have Learned • Focus on process not taken under time or third-party pressure • Evolving law on duty of trustees with inside information – conflict between ERISA and SEC • Duty to follow plan terms • Duty to monitor actions of board of directors • Fiduciary status of independent appraisers, financial advisors & directed trustees

18. What We Have Learned • Existing case law generally protective of ESOP fiduciaries and directed fiduciaries • Post-Enron environment seems more hostile; cases pending may point the way in the future

19. What We Have Learned • ESOP Loan Refinancings • On September 26, 2002, U.S. Department of Labor (the “DOL”) released its first “Field Assistance Bulletin” (“FAB”), which addresses refinancing of ESOP loans. • The DOL announced that FABs would be used in future to publicize technical guidance that it provides to its field enforcement staff.

20. What We Have Learned • In FAB 2002-1 (the “FAB”), the DOL addressed obligations of plan fiduciary under Sections 404(a) and 408(b)(3) of Employee Retirement Income Security Act of 1974, as amended (“ERISA”), when considering refinancing of an ESOP’s existing securities acquisition loan. • DOL focuses on ensuring that ESOP loan refinancings benefit plan participants.

21. What We Have Learned • Loan extensions that delay stock allocations while good under traditional finance theory (longer loans are better for borrower) viewed as bad for ESOP participants because they reduce company contributions • Consider whether company has contribution obligation

22. What We Have Learned • The FAB identifies various inducements commonly offered in ESOP loan refinancings: (1) “event protection” which means that shares of company stock that are held in the ESOP loan suspense account longer than they would have under terms of original loan may not be sold and proceeds used to repay outstanding portion of ESOP refinanced loan if ESOP is terminated;

23. What We Have Learned (2) additional diversification rights to ESOP participants; (3) increased employer contribution to either ESOP or another employer plan; or (4) payment of “dividend make-whole” to compensate ESOPs participants and beneficiaries for dividends to repay ESOP loan after original maturity date of loan.

24. What We Have Learned • Repayment of ESOP Loan With Proceeds of Sale of Company Stock • Typically company stock purchased with exempt loan serves as collateral • Even if unallocated company stock is not collateral, the courts view is that can still repay ESOP loan with proceeds of sale of company stock that was purchased

25. What We Have Learned • FASB 150 • On May 15, 2003, the Financial Accounting and Standards Board (“FASB”) issued Statement No. 150 • Recently promulgated rules that thought might apply to ESOP puts • Liability vs. Equity • Generally does not apply to ESOP stock • Future rules may change this result

26. What We Have Learned • Payment of Plan Expenses • Field Assistance Bulletin 2003-3 • IRS Revenue Ruling 2004-10 • Proper & Reasonable Expense • What does the Plan Document & SPD say? • Individual vs. General Plan Expenses • Significant Detriment

27. Some Things We Would Like to Know • Scope of Prohibited Transaction Analysis when ESOP Acts as Shareholder • EGTRRA Determination Letter Applications • Effect of Cash Build-up on ESOP Status

28. Some Things We Would Like to Know • Boundaries on ESOP Loan Terms and Effect on Distributions • Diversification Time Frames and Compliance with Statutory Requirements • Segregation of Terminated Participant Accounts • Rebalancing of Participant Accounts