LAFAYETTE BANK & TRUST COMPANY
RESTATED DEFERRED FEE AGREEMENT
This restatement is made this ______ day of
___________________, 1994 by and between LAFAYETTE BANK
& TRUST COMPANY (the "Company"), and ________________
(the "Director").
INTRODUCTION
The Company and the Director are parties to the
Deferred Compensation Agreement dated ________________,
19______ ("Prior Agreement"). They desire to modify and
restate the terms of the Prior Agreement through this
restatement.
AGREEMENT
The Director and the Company agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. Whenever used in this
restatement, the following words and phrases shall have
the meanings specified:
1.1.1 "Change of Control" means the transfer
of 51% or more of the Company's outstanding voting
common stock followed within twelve (12) months by
termination of the Director's status as a member of
the Company's Board of Directors.
1.1.2 "Code" means the Internal Revenue Code
of 1986, as amended. References to a code section
shall be deemed to be to that section as it now
exists and to any successor provision.
1.1.3 "Disability" means, if the Director is
covered by a Company-sponsored disability insurance
policy, total disability as defined in such policy
without regard to any waiting period. If the
Director is not covered by such a policy,
Disability means the Director suffering a sickness,
accident or injury which, in the judgment of a
physician satisfactory to the Company, prevents the
Director from performing substantially all of the
normal duties of a Director. As a condition to any
benefits, the Company may require the Director to
submit to such physical or mental evaluations and
tests as the Company's Board of Directors deems
appropriate.
1.1.4 "Election Form" means the form attached
as Exhibit 1.
1.1.5 "Fees" means the total Directors Fees
payable to the Director.
1.1.6 "Normal Termination Date" means the
Director attaining age 70.
1.1.7 "Termination of Service" means the
Director's ceasing to be a member of the Company's
Board of Directors for any reason whatsoever.
ARTICLE 2
DEFERRAL ELECTION
2.1 Initial Election. The Director shall make a
deferral election under this agreement by filing with the
Company a signed Election Form within 30 days after the
date of this restatement. The Election Form shall set
forth the amount of Fees to be deferred and the form of
benefit payment. The Election Form shall be effective to
defer only Fees earned after the date the Election Form
is received by the Company.
2.2 Election Changes
2.2.1 Generally. The Director may modify the
amount of Fees to be deferred by filing a
subsequent signed Election Form with the Company.
The modified deferral shall not be effective until
the calendar year following the year in which the
subsequent Election Form is received by the
Company. The Director may not change the form of
benefit payment initially elected under Section
2.1.
2.2.2 Hardship. If an unforeseeable
financial emergency arising from the death of a
family member, divorce, sickness, injury,
catastrophe or similar event outside the control of
the Director occurs, the Director, by written
instructions to the Company may reduce future
deferrals under this agreement or may cease
deferrals under this agreement.
ARTICLE 3
DEFERRAL ACCOUNT
3.1 Establishing and Crediting. The Company shall
continue to maintain a deferral account on its books for
the Director, and shall continue to credit to the
deferral account the following amounts:
3.1.1 Initial Account Balance. The deferral
account balance on the date of this restatement
shall equal the balance credited to the Director's
deferred compensation agreement account under the
prior agreement, including interest accrued under
the prior agreement to the date of this
restatement.
3.1.2 Deferrals. The Fees deferred by the
Director as of the time the Fees would have
otherwise been paid to the Director.
3.1.3 Interest. On the first day of each
monthly anniversary of the date of this
restatement, and immediately prior to the payment
of any benefits, interest on the account balance
since the preceding credit under this section
3.1.3, at an annual rate, compounded monthly, equal
to an index determined to be the Wall Street prime
rate plus 150 basis points, adjusted on September
30 of each calendar year. This indexed rate shall
be determined by the Company's Board of Directors,
in its sole discretion.
3.2 Statement of Accounts. The Company shall
provide to the Director, within one hundred twenty (120)
days after each anniversary of this restatement, a
statement setting forth the deferral account balance.
3.3 Accounting Devise Only. The deferral account
is solely a device for measuring amounts to be paid under
this restatement. The deferral account is not a trust
fund of any kind. The Director is a general unsecured
creditor of the Company for the payment of benefits. The
benefits represent the mere Company promise to pay such
benefits. The Director's rights are not subject in any
manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or
garnishment by the Director's creditors.
ARTICLE 4
LIFETIME BENEFITS
4.1 Normal Termination Benefit. Upon the
Director's Termination of Service at the Normal
Termination Date, the Company shall pay to the Director
the benefit described in this section 4.1
4.1.1 Amount of Benefit. The benefit under
this Section 4.1 is the deferral account balance at
the Director's Termination of Service.
4.1.2 Payment of Benefit. The Company shall
pay the benefit to the Director in the form elected
by the Director on the Election Form. The Company
shall continue to credit interest under Section
3.1.2.
4.2 Early Termination Benefit. If the Director
terminates service as a director before the Normal
Termination Date, and for reasons other than death or
Disability, the Company shall pay to the Director the
benefit described in this Section 4.2.
4.2.1 Amount of Benefit. The benefit under
this Section 4.2 is equal to the Director's
deferred account balance on the date of the
Director's termination as a member of the board.
4.2.2 Payment of Benefit. The Company shall
pay the benefit to the Director in the form elected
by the Director on the Election Form. The Company
shall continue to credit interest under Section
3.1.2.
4.3 Disability Benefit. If the Director terminates
service as a director for Disability prior to the normal
retirement date, the Company shall pay to the Director
the benefit described in this Section 4.3.
4.3.1 Amount of Benefit. The benefit under
this Section 4.3 is the deferral account balance at
the Director's Termination of Service.
4.3.2 Payment of Benefit. The Company shall
pay the benefit to the Director in the form elected
by the Director on the Election Form. The Company
shall continue to credit interest under Section
3.1.3.
4.4 Change of Control Benefit. Upon a Change of
Control while the Director is in the active service of
the Company, the Company shall pay to the Director the
benefit described in this Section 4.4 in lieu of any
other benefit under this restatement.
4.4.1 Amount of Benefit. The benefit under
this Section 4.4 is the deferral account balance at
the date of the Director's Termination of Service.
4.4.2 Payment of Benefit. The Company shall
pay the benefit to the Director in a lump sum
within 30 days after the Director's Termination of
Service.
4.5 Hardship Distribution. Upon the Company's
determination (following petition by the Director) that
the Director has suffered an unforeseeable financial
emergency as described in Section 2.2.2, the Company
shall distribute to the Director all or a portion of the
deferral account balance as determined by the Company,
but in no event shall the distribution be greater than is
necessary to relieve the financial hardship.
ARTICLE 5
DEATH BENEFITS
5.1 Death During Active Service. If the Director
dies while in the active service of the Company, the
Company shall pay to the Director's beneficiary the
benefit described in this Section 5.1.
5.1.1 Amount of Benefit. The benefit under
Section 5.1 is $124,845 per year payable annually
for 5 years.
5.1.2 Payment of Benefit. The Company shall
begin the payments to the beneficiary within 60
days following the Director's death.
5.2 Death During Benefit Period. If the Director
dies after benefit payments have commenced under this
agreement but before receiving all such payments, the
Company shall pay the remaining benefits to the
Director's beneficiary at the same time and in the same
amounts they would have been paid to the Director had the
Director survived.
ARTICLE 6
BENEFICIARIES
6.1 Beneficiary Designations. The Director shall
designate a beneficiary by filing a written designation
with the Company. The Director may revoke or modify the
designation at any time by filing a new designation.
However, designations will only be effective if signed by
the Director and accepted by the Company during the
Director's lifetime. The Director's beneficiary
designation shall be deemed automatically revoked if the
beneficiary predeceases the Director, or if the Director
names a spouse as beneficiary and the marriage is
subsequently dissolved. If the Director dies without a
valid beneficiary designation, all payments shall be made
to the Director's surviving spouse, if any, and if none,
to the Director's surviving children and the descendants
of any deceased child by right of representation, and if
no children or descendants survive, to the Director's
estate.
6.2 Facility of Payment. If a benefit is payable
to a minor, to a person declared incompetent, or to a
person incapable of handling the disposition of his or
her property, the Company may pay such benefit to the
guardian, legal representative or person having the care
or custody of such minor, incompetent person or incapable
person. The Company may require proof of incompetency,
minority or guardianship as it may deem appropriate prior
to distribution of the benefit. Such distribution shall
completely discharge the Company from all liability with
respect to such benefit.
ARTICLE 7
GENERAL LIMITATIONS
7.1 Suicide. Notwithstanding any provision of this
restatement to the contrary, the Company shall not pay
any benefit under this restatement except for the
deferral account balance if the Director commits suicide
within two (2) years after the date of this restatement,
or if the Director has made any material misstatement of
fact on any application for life insurance purchased by
the Company. The Company shall begin the payments within
sixty (60) days following the Director's death. The
Company shall pay the benefit according to the method
elected by the Director on the Election Form. The
Company shall continue to credit interest under Section
3.1.3.
ARTICLE 8
CLAIMS AND REVIEW PROCEDURES
8.1 Claims Procedure. The Company shall notify the
Director or the Director's beneficiary (the Director or
Director's beneficiary being hereafter referred to as the
"Beneficiary") in writing, within ninety (90) days of his
or her written application for benefits, of his or her
eligibility or non-eligibility for benefits under the
restatement. If the Company determines that the
Beneficiary is not eligible for benefits or full
benefits, the notice shall set forth (l) the specific
reasons for such denial, (2) a specific reference to the
provisions of the restatement on which the denial is
based, (3) a description of any additional information or
material necessary for the claimant to perfect his or her
claim, and a description of why it is needed, and (4) an
explanation of the restatement's claims review procedure
and other appropriate information as to the steps to be
taken if the Beneficiary wishes to have the claim
reviewed. If the Company determines that there are
special circumstances requiring additional time to make
a decision, the Company shall notify the Beneficiary of
the special circumstances and the date by which a
decision is expected to be made, and may extend the time
for up to an additional ninety-day period.
8.2 Review Procedure. If the Beneficiary is
determined by the Company not to be eligible for
benefits, or if the Beneficiary believes that he or she
is entitled to greater or different benefits, the
Beneficiary shall have the opportunity to have such claim
reviewed by the Company by filing a petition for review
with the Company within sixty (60) days after receipt of
the notice issued by the Company. Said petition shall
state the specific reasons which the Beneficiary believes
entitle him or her to benefits or to greater or different
benefits. Within sixty (60) days after receipt by the
Company of the petition, the Company shall afford the
Beneficiary (and counsel, if any) an opportunity to
present his or her position to the Company orally or in
writing, and the Beneficiary (or counsel) shall have the
right to review the pertinent documents. The Company
shall notify the Beneficiary of its decision in writing
within the sixty-day period, stating specifically the
basis of its decision, written in a manner calculated to
be understood by the Beneficiary and the specific
provisions of the restatement on which the decision is
based. If, because of the need for a hearing, the sixty-
day period is not sufficient, the decision may be
deferred for up to another sixty-day period at the
election of the Company, but notice of this deferral
shall be given to the Beneficiary.
ARTICLE 9
AMENDMENTS AND TERMINATION
9.1 Termination. The Company may amend or
terminate this restatement at any time if, pursuant to
legislative, judicial or regulatory action, continuation
of the agreement would (I) cause benefits to be taxable
to the Director prior to actual receipt, or (II) result
in significant financial penalties or other significantly
detrimental ramifications to the Company (other than the
financial impact of paying the benefits). In no event
shall this restatement be terminated without payment to
the Director of the deferral account balance attributable
to the Director's deferrals and interest credited on such
amounts.
ARTICLE 10
MISCELLANEOUS
10.1 Binding Effect. This restatement shall bind
the Director and the Company, and their beneficiaries,
survivors, executors, administrators and transferees.
10.2 No Guaranty of Employment. This restatement
is not a contract for services. It does not give the
Director the right to remain a Director of the Company,
nor does it interfere with the shareholders' rights to
replace the Director. It also does not require the
Director to remain a Director nor interfere with the
Director's right to terminate services at any time.
10.3 Non-Transferability. Benefits under this
restatement cannot be sold, transferred, assigned,
pledged, attached or encumbered in any manner.
10.4 Tax Withholding. The Company shall withhold
any taxes that are required to be withheld from the
benefits provided under this restatement.
10.5 Applicable Law. The restatement and all
rights hereunder shall be governed by the laws of
Indiana, except to the extent preempted by the laws of
the United States of America
10.6 Unfunded Arrangement. The Director and
Beneficiary are general unsecured creditors of the
Company for the payment of benefits under this
restatement. The benefits represent the mere promise by
the Company to pay such benefits. The rights to benefits
are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors.
Any insurance on the Director's life is a general asset
of the Company to which the Director and Beneficiary have
no preferred or secured claim.
10.7 Prior Agreements. This restatement sets forth
the entire understanding of the parties hereto with
respect to the transactions contemplated hereby, and any
previous agreements or understandings between the parties
hereto regarding the subject matter hereof are merged
into and superseded by this restatement.
In witness whereof, the Director and a duly authorized
Company officer have signed this agreement.
DIRECTOR: COMPANY:
LAFAYETTE BANK & TRUST
COMPANY
_________________________ BY________________________
TITLE: CHAIRMAN, PRESIDENT
AND CEO
EXHIBIT I
TO
DEFERRED COMPENSATION AGREEMENT
DEFERRAL ELECTION
I ELECT TO DEFER COMPENSATION UNDER MY DEFERRED
COMPENSATION AGREEMENT WITH THE COMPANY, AS FOLLOWS:
Frequency of
Amount of Deferral Deferral Duration
[Initial and [Initial One] [Initial One]
Complete One]
___ I elect to ___ Beginning ___ This year
defer ____% of year only
of salary
___ Each pay ___ For _____
___ I elect to period [insert
defer number]
$_______ ___ Monthly years
of salary
___ Quarterly ___ Until the
___ I elect not early
to defer ___ Semi-annually retirement
salary date
___ End of year
___ Until the
normal
retirement
date
I understand that I may change the amount, frequency and
duration of my deferrals by filing a new Election Form
with the Company; provided, however, that any subsequent
election will not be effective until the calendar year
following the year in which the new election is received
by the Company.
FORM OF BENEFIT
I elect to receive benefits under the agreement in the
following form:
[Initial one]
___ Lump Sum
___ Equal monthly installments for ____ [insert number
of months] months.
I understand that I may not change the form of benefit
elected, even if I later change the amount of my
deferrals under the agreement.
BENEFICIARY DESIGNATION
I designate the following as beneficiary of benefits
under the deferred compensation agreement payable
following my death:
Primary:______________________________________
Contingent:___________________________________
NOTE: To name a trust as beneficiary, please provide the
name of the trustee and the exact date of the trust
agreement.
I understand that I may change these beneficiary
designations by filing a new written designation with the
Company. I further understand that the designations will
be automatically revoked if the beneficiary predeceases
me, or, if I have named my spouse as beneficiary, in the
event of the dissolution of our marriage.
Signature__________________________
___________________________________
Date_______________________________
Accepted by the Company this ______ day of ____________,
19_____.
By_________________________________
Title______________________________
