TRUST AGREEMENT
FOR
JEFFERSON SAVINGS AND LOAN ASSOCIATION
SUPPLEMENTAL RETIREMENT AGREEMENT
This Trust Agreement made this 20th day of May, 1998, by
and between Jefferson Savings and Loan Association (the
"Association") and Mercantile Bank N.A. (the "Trustee");
WHEREAS, the Association has adopted the Jefferson Savings
and Loan Association Supplemental Retirement Agreement (the
"Supplemental Retirement Agreement"), effective November 9,
1993, providing for deferred compensation to Xxxxx X. XxXxx (the
"Executive").
WHEREAS, the Association has incurred or expects to incur
liability under the terms of the Supplemental Retirement
Agreement;
WHEREAS, the Association wishes to establish a trust
(hereinafter called the "Trust") and, in the event of a Change
in Control (as defined in the Supplemental Retirement
Agreement), to contribute to the Trust assets that shall be held
therein, subject to the claims of the Association's creditors in
the event of the Association's Insolvency (as herein defined)
until paid to the Executive or his beneficiaries in such manner
and at such times as specified in the Supplemental Retirement
Agreement;
WHEREAS, it is the intention of the parties that this
Trust shall constitute an unfunded arrangement and shall not
affect the status of the Supplemental Retirement Agreement as an
unfunded arrangement maintained for the purpose of providing
deferred compensation for the Executive, a key management
employee, for purposes of Title I of the Employee Retirement
Income Security Act of 1974, as amended;
WHEREAS, in the event of a Change in Control, it is the
intention of the Association to make contributions to the Trust
to provide itself with a source of funds to assist it in the
meeting of its liabilities under the Supplemental Retirement
Agreement;
NOW, THEREFORE, the parties do hereby establish the Trust
and agree that the Trust shall be comprised, held and disposed
of as follows:
Section 1. Establishment of Trust.
(a) The Association hereby deposits with the Trustee in
trust One Hundred Dollars ($100.00), which shall become the
principal of the Trust to be held, administered and disposed of
by the Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of
which the Association is the grantor, within the meaning of
subpart E, part I, subchapter J, chapter 1, subtitle A of the
Internal Revenue
Code of 1986, as amended (the "Code"), and shall be construed
accordingly.
(d) The principal of the Trust, and any earnings
thereon, shall be held separate and apart from other funds of
the Association and shall be used exclusively for the uses and
purposes of the Executive and general creditors as herein set
forth. The Executive and his beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any
assets of the Trust. Any rights created under the Supplemental
Retirement Agreement and this Trust Agreement shall be mere
unsecured contractual rights of the Executive and his
beneficiaries against the Association. Any assets held by the
Trust will be subject to the claims of the Association's general
creditors under federal and state law in the event of its
Insolvency.
(e) The Association, in its sole discretion, may at any
time, or from time to time, make additional deposits of cash or
other property in trust with Trustee to augment the principal to
be held, administered and disposed of by Trustee as provided in
this Trust Agreement. Neither the Trustee nor the Executive or
his beneficiaries shall have any right to compel such additional
deposits.
(f) Upon a Change in Control or upon Executive's
termination of employment for other than Just Cause, as defined
in the Supplemental Retirement Agreement, the Association shall,
as soon as possible, but in no event longer than ten (10) days
following such Change in Control or termination make an
irrevocable contribution to the Trust in an amount of cash equal
to the present value of the Executive's benefits under the terms
of the Supplemental Retirement Agreement as of the date on which
the Change in Control or termination occurred. Each calendar
year thereafter, the Association shall contribute such
additional amount actuarially determined to be necessary to fund
the benefits payable to the Executive or his beneficiaries under
the Supplemental Retirement Agreement.
Section 2. Payments to the Executive and His
Beneficiaries.
(a) The Association shall deliver to the Trustee a
schedule (the "Payment Schedule") that indicates the amounts
payable in respect of the Executive (and his beneficiaries),
that provides a formula or other instructions acceptable to the
Trustee for determining the amount so payable, the form in which
such amount is to be paid (as provided for or available under
the Supplemental Retirement Agreement), and the time of
commencement for payment of such amounts. Except as otherwise
provided herein, the Trustee shall make payments to the
Executive and his beneficiaries in accordance with such Payment
Schedule. The Trustee shall make provision for the reporting
and withholding of any federal, state or local taxes that may be
required to be withheld with respect to the payment of benefits
pursuant to the terms of the Supplemental Retirement Agreement
and shall pay amounts withheld to the appropriate taxing
authorities or determine that such amounts have been reported,
withheld and paid by the Association.
(b) The entitlement of the Executive or his
beneficiaries to benefits under the Supplemental Retirement
Agreement shall be determined by the Association or such party
as it shall designate under the Supplemental Retirement
Agreement, and any claim for such benefits shall be
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considered and reviewed under the procedures set out in the
Supplemental Retirement Agreement.
(c) The Association may make payment of benefits
directly to the Executive or his beneficiaries as they become
due under the terms of the Supplemental Retirement Agreement.
The Association shall notify the Trustee of its decision to make
payment of benefits directly prior to the time amounts are
payable to the Executive or his beneficiaries. In addition, if
the principal of the Trust, and any earnings thereon, are not
sufficient to make payments of benefits in accordance with the
terms of the Supplemental Retirement Agreement, the Association
shall make the balance of each such payment as it falls due.
The Trustee shall notify the Association when principal and
earnings are not sufficient.
Section 3. Trustee Responsibility Regarding Payments to
Trust Beneficiary When Association Is Insolvent.
(a) The Trustee shall cease payment of benefits to the
Executive or his beneficiaries if the Association is Insolvent.
The Association shall be considered "Insolvent" for purposes of
this Trust Agreement if (i) the Association is unable to pay its
debts as they become due, or (ii) the Association is subject to
a receivership proceeding or other similar proceeding under
applicable federal or state law.
(b) At all times during the continuance of this Trust,
as provided in Section 1(d) hereof, the principal and income of
the Trust shall be subject to claims of general creditors of the
Association under federal and state law as set forth below.
(1) The Board of Directors and the Chief Executive
Officer of the Association shall have the duty to inform
the Trustee in writing of the Association's Insolvency.
If a person claiming to be a creditor of the Association
alleges in writing to the Trustee that the Association has
become Insolvent, the Trustee shall determine whether the
Association is Insolvent and, pending such determination,
the Trustee shall discontinue payment of benefits to the
Executive or his beneficiaries.
(2) Unless the Trustee has actual knowledge of the
Association's Insolvency or has received notice from the
Association or a person claiming to be a creditor alleging
that the Association is Insolvent, the Trustee shall have
no duty to inquire whether the Association is Insolvent.
The Trustee may in all events rely on such evidence
concerning the Association's solvency as may be furnished
to the Trustee and that provides the Trustee with a
reasonable basis for making a determination concerning the
Association's solvency.
(3) If at any time the Trustee has determined that
the Association is Insolvent, the Trustee shall
discontinue payments to the Executive or his beneficiaries
and shall hold the assets of the Trust for the benefit of
the Association's general creditors. Nothing in this
Trust Agreement shall in any way diminish any rights of
the Executive or his beneficiaries to pursue their right
as general creditors of the Association with respect to
benefits due under the Supplemental Retirement Agreement or
otherwise.
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(4) The Trustee shall resume the payment of
benefits to the Executive or his beneficiaries in
accordance with Section 2 of this Trust Agreement only
after the Trustee has determined that the Association is
not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the
Trustee discontinues the payment of benefits from the Trust
pursuant to Section 3(b) hereof and subsequently resumes such
payments, the first payment following such discontinuance shall
include the aggregate amount of all payments due to the
Executive or his beneficiaries under the terms of the
Supplemental Retirement Agreement for the period of such
discontinuance, less the aggregate amount of any payments made
to the Executive or his beneficiaries by the Association in lieu
of the payments provided for hereunder during any such period of
discontinuance.
Section 4. Payments to Association.
Except as provided in Section 3 hereof, the Association
shall have no right or power to direct the Trustee to return to
the Association or to divert to others any of the Trust assets
before all payments of benefits have been made to the Executive
and his beneficiaries pursuant to the terms of the Supplemental
Retirement Agreement.
Section 5. Investment Authority.
The Trustee may invest only in one or a combination of the
following: (i) United States government securities, money
market instruments, savings accounts, certificates of deposit,
or other similar accounts which would have no loss of principal;
(ii) bonds, notes, debentures, mortgages, contracts or other
evidence of indebtedness issued by either: (a) the United
States government, including its agencies and instrumentalities,
or (b) corporations, provided that the debt instrument issued by
the corporation is rated at least "AA" or its equivalent by at
least two nationally recognized credit quality rating agencies
(including, by way of example and not of limitation, Xxxxx'x
Investors Service and Standard & Poor's) and maturing not later
than five years from the date of purchase; provided, however,
that in no event may the Trustee purchase "derivative
securities," provided further, however, that, for purposes of
this Trust Agreement, the term "derivative securities" shall not
include mortgage pass-through certificates issued by the
Government National Mortgage Association ("GNMA"), the Federal
National Mortgage Association ("FNMA"), or the Federal Home Loan
Mortgage Association ("FHLMC").
Section 6. Disposition of Income.
During the term of this Trust Agreement, all income
received by the Trust, net of expenses and taxes, shall be
accumulated and reinvested.
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Section 7. Accounting by Trustee
The Trustee shall keep accurate and detailed records of
all investments, receipts, disbursements, and all other
transactions required to be made, including such specific
records as shall be agreed upon in writing between the
Association and the Trustee. Within sixty (60) days following
the close of each calendar year and within sixty (60) days after
the removal or resignation of the Trustee, the Trustee shall
deliver to the Association a written account of its
administration of the Trust during such year or during the
period from the close of the past preceding year to the date of
such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it,
including a description of all securities and investment
purchased and sold with the cost or net proceeds of such
purchases or sales (accrued interest paid or receivable being
shown separately), and showing all cash, securities and other
property held in the Trust at the end of such year or as of the
date of such removal or resignation, as the case may be.
Section 8. Responsibility of Trustee.
(a) The Trustee shall act with the care, skill, prudence
and diligence under the circumstances then prevailing that a
prudent person acting in like capacity and familiar with such
matters would use in the conduct of an enterprise of a like
character and with like aims; provided, however, that the
Trustee shall incur no liability to any person for any action
taken pursuant to a direction, request or approval given by the
Association which is contemplated by, and in conformity with,
the terms of the Supplemental Retirement Agreement or this Trust
Agreement and is given in writing by the Association. In the
event of a dispute between the Association and any other party,
the Trustee may apply to a court of competent jurisdiction to
resolve the dispute.
(b) If the Trustee undertakes or defends any litigation
arising in connection with this Trust Agreement, the Association
agrees to indemnify the Trustee against the Trustee's costs,
expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be
primarily liable for such payments. If the Association does not
pay such costs, expenses and liabilities in a reasonably timely
manner, the Trustee may obtain payments from the Trust property.
(c) The Trustee may consult with legal counsel (who may
also be counsel for the Association generally) with respect to
any of its duties or obligations hereunder.
(d) The Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other
professionals to assist it in performing any of its duties or
obligations hereunder.
(e) The Trustee shall have, without exclusion, all
powers conferred on trustees by applicable law, unless expressly
provided otherwise herein; provided, however, that if an
insurance policy is held as an asset of the Trust, the Trustee
shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from
conversion of the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of any
borrowing against such policy.
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(f) Notwithstanding any powers granted to the Trustee
pursuant to this Trust Agreement or to applicable law, the
Trustee shall not have any power that could give this Trust
Agreement or the Trust created hereby the objective of carrying
on a business and dividing the gains therefrom, within the
meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Code.
Section 9. Compensation and Expenses of Trustee.
The Association shall pay all administrative and Trustee's
fees and expenses. If not so paid, the fees and expenses shall
be paid from the Trust property.
Section 10. Resignation and Removal of Trustee.
(a) The Trustee may resign at any time by written notice
to the Association, which shall be effective thirty (30) days
after receipt of such notice unless the Association and the
Trustee agree otherwise.
(b) The Trustee may be removed by the Association on
thirty (30) days' notice or upon shorter notice accepted by the
Trustee; provided, however, that any Trustee appointed by the
Executive pursuant to Section 10(c) or 10(d) may be removed only
by the Executive.
(c) Upon the occurrence of an event described in Section
1(f), the Executive, in his sole discretion, may remove the
Trustee and replace it with an independent bank trust department
or another independent party that has been granted corporate
trustee powers under applicable state law, which entity shall
thereafter serve as Trustee hereunder.
(d) If the Trustee appointed by the Executive pursuant
to Section 10(c) resigns within two (2) years after such
appointment, the Executive shall select a successor Trustee in
accordance with the provisions of Section 10(c) hereof prior to
the effective date of the Trustee's resignation or removal.
(e) Upon resignation or removal of the Trustee and
appointment of a successor Trustee, all assets shall
subsequently be transferred to the successor Trustee. The
transfer shall be completed within thirty (30) days after
receipt of notice of resignation, removal or transfer, unless
the Association and the Executive mutually agree to extend the
time limit.
(f) If the Trustee resigns or is removed, a successor
shall be appointed, in accordance with Section 11 hereof, by the
effective date of resignation or removal under paragraph (a) or
(b) of this Section 10. If no such appointment has been made,
the Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of
the Trustee in connection with the proceeding shall be allowed
as administrative expenses of the Trust.
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Section 11. Appointment of Successor.
If the Trustee resigns or is removed in accordance with
Section 10, the Association or the Executive, whichever shall
have the right under Section 10 to appoint a trustee under the
circumstances, may appoint any independent third party, such as
a bank trust department or other party that has been granted
corporate trustee powers under applicable state law, as a
successor to replace the Trustee upon resignation or removal.
The appointment shall be effective when accepted in writing by
the new Trustee, who shall have all of the rights and powers of
the former Trustee, including ownership rights in the Trust
assets. The former Trustee shall execute any instrument
necessary or reasonably requested by the Association or the
successor Trustee to evidence the transfer.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written
instrument executed by the Trustee and the Association.
Notwithstanding the foregoing, no such amendment shall conflict
with the terms of the Supplemental Retirement Agreement or shall
make the Trust revocable after it has become irrevocable in
accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on
which the Executive and his beneficiaries are no longer entitled
to benefits pursuant to the terms of the Supplemental Retirement
Agreement. Upon termination of the Trust any assets remaining
in the Trust shall be returned to the Association.
(c) Upon written approval of the Executive or
beneficiaries entitled to payment of benefits pursuant to the
terms of the Supplemental Retirement Agreement, the Association
may terminate this Trust prior to the time all benefit payments
under the Supplemental Retirement Agreement have been made. All
assets in the Trust at termination shall be returned to the
Association.
(d) Sections 1(c), 1(e), 1(f), 2, 3, 4, 5, 10(b), 10(c),
10(d), 11(a), 11(b), 12(a), 12(b) and 12(d) of this Trust
Agreement may not be amended by the Association for two (2)
years following a Change in Control, as defined in the
Supplemental Retirement Agreement.
Section 13. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by
law shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provision hereof.
(b) Benefits payable to the Executive and his
beneficiaries under this Trust Agreement may not be anticipated,
assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy,
execution or other legal or equitable process.
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(c) This Trust Agreement shall be governed by and
construed in accordance with the laws of the state of Missouri.
(d) This Trust Agreement shall be binding upon the
Association and its successors and upon the Trustee and its
successors.
Section 14. Effective Date.
The effective date of this Trust Agreement shall be May
20, 1998.
JEFFERSON SAVINGS AND LOAN ASSOCIATION
By: /s/ Xxxxx X. Xxxx
------------------------
MERCANTILE BANK N.A.
By: /s/ Xxxxx Xxxxxxxx
-------------------------
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