THE BANK OF KENTUCKY, INC. CRESTVIEW, KENTUCKY EXECUTIVE DEFERRED CONTRIBUTION PLAN TRUST AGREEMENT
Exhibit 10.3
THE
BANK OF KENTUCKY, INC.
CRESTVIEW,
KENTUCKY
EXECUTIVE DEFERRED
CONTRIBUTION PLAN TRUST
AGREEMENT
THIS
TRUST AGREEMENT is made and entered into effective as of the 17th day of
November, 2010 by and between The Bank of Kentucky, Inc. (“Employer”)
which sponsors The Bank of Kentucky, Inc. Executive
Deferred Contribution Plan the “Plan”), and The Bank of Kentucky, Inc. Trust
Department (the “Trustee”).
WHEREAS ,
the Employer wishes to establish a trust (hereinafter called “Trust”) and to
contribute to the Trust assets that shall be held therein, subject to the claims
of Employer’s creditors in the event of Employer’s Insolvency, as herein
defined, until paid to Plan participants and their beneficiaries in such manner
and at such time as specified in the Plan;
WHEREAS,
it is the intention of the parties that this Trust shall constitute an unfunded
arrangement and shall not affect the status of the Plan as an unfunded plan
maintained for the purpose of providing deferred compensation for a select group
of management or highly compensated employees for purpose of Title I of the
Employee Retirement Income Security Act of 1974;
WHEREAS,
it is the intention of the Employer to make contributions to the Trust to
provide itself with a source of funds to assist in meeting its liabilities under
the Plan.
NOW,
THEREFORE, the parties do hereby establish the Trust and agree that the Trust
shall be comprised, held and disposed of as follows:
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ARTICLE I - ESTABLISHMENT OF
TRUST
1.1 TRUST
DEPOSITS. The Employer hereby deposits with Trustee, in trust
property as listed on Schedule 1, which shall become the principal of the Trust
to be held, administered, and disposed of by the Trustee as provided in this
Trust Agreement.
1.2 IRREVOCABILITY. The
Trust hereby established shall be irrevocable.
1.3 GRANTOR
TRUST. The Trust is intended to be a grantor trust, of which
the Employer is the grantor, within the meaning of subpart E, part 1, subchapter
J, chapter 1, subtitle A of the Internal Revenue Code, as amended, and shall be
construed accordingly.
1.4 PLAN
ASSETS. The principal of the Trust, and any earnings thereon,
shall be held separate and apart from the other funds of the Employer and shall
be used exclusively for the uses and purposes of the Plan and general creditors
of the Employer as herein set forth. The Plan participants and their
beneficiaries shall have no preferred claim on, or any beneficial interest in,
any assets of the Trust. Any rights created under the Plan and this
Trust Agreement shall be mere unsecured contractual rights of Plan participants
and beneficiaries against the Employer. Any assets held by the Trust
will be subject to the claims of the Employer’s general creditors under federal
and state law in the event of Insolvency, as defined herein.
1.5 ACCEPTANCE OF
TRUST. The Trustee accepts the Trust established under the
Trust Agreement on the terms and subject to the provisions set forth herein, and
it agrees to discharge and perform fully and faithfully all of the duties and
obligations imposed by it under this Trust Agreement.
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ARTICLE II - PLAN AS PART OF TRUST
AGREEMENT
2.1 INCORPORATION BY
REFERENCE. The Plan is expressly incorporated herein and made
a part hereof with the same force and effect as if the Plan had been fully set
forth herein. A copy of the Plan has been delivered to the
Trustee. All terms defined in the Plan shall have the same meanings
when used herein unless expressly provided to the contrary
herein. The Employer shall deliver to the Trustee copies of all
amendments to the Plan made after the date of this Trust Agreement.
2.2 BENEFIT
PROVISIONS. The terms of the Plan shall govern the amount,
form, and timing of benefit payments under the Plan to which a Plan participant
or beneficiary is entitled.
2.3 AMENDMENT OF PLAN. The
incorporation of the Plan into this Trust shall not affect the provisions of the
Plan concerning the amendment or termination thereof.
ARTICLE III - PAYMENTS TO
PLAN PARTICIPANTS AND THEIR BENEFICIARIES
3.1 PAYMENT DIRECTION AND
TAXES. Employer shall deliver to the Trustee a Schedule (the
“Payment Schedule”) that indicates the amounts payable in respect of each Plan
participant who becomes entitled to receive a distribution from the Plan (or his
or her beneficiaries), which distribution is of a benefit for which the Employer
has made contributions to the Trust, and that provides the time for the payment
of such amounts. Except as otherwise provided herein, the Trustee
shall make payments to a Plan participant or his or her 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 Plan and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by Employer.
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3.2 ENTITLEMENT TO
BENEFITS. The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be set forth in the Plan, and any
claim for such benefits shall be considered and reviewed under the procedures
set out in the Plan.
3.3 PAYMENTS BY EMPLOYER. The
Employer may make payment of benefits directly to the Plan participant or his or
her beneficiaries as they become due under the terms of the Plan. The
Employer shall notify the Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to a Plan participant or his or
her 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 Plan, Employer shall make the balance of each
such payment as it becomes due. Trustee shall notify Employer where
principal and earnings are not sufficient.
ARTICLE IV - TRUSTEE
RESPONSIBILITY WHEN THE EMPLOYER IS INSOLVENT
4.1 CESSATION OF PAYMENTS ON
EMPLOYER INSOLVENCY. The Trustee shall cease payment of
benefits to the Plan participant or his or her beneficiaries if the Employer is
Insolvent. The Employer shall be considered “Insolvent” for purposes
of this Trust Agreement if (i) the Employer is unable to pay its debts as they
become due, or (ii) the Employer is subject to a pending proceeding as a debtor
under the United States Bankruptcy Code.
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4.2 CLAIMS OF
CREDITORS. At all times during the continuance of this Trust,
the principal and income of the Trust shall be subject to claims of general
creditors of the Employer under federal and state law as set forth
below.
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(a)
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The
Board of Directors and the Chief Executive Officer of the Employer shall
have the duty to inform the Trustee in writing of the Employer’s
Insolvency. If a person claiming to be a creditor of the Employer alleges
in writing to the Trustee that the Employer has become Insolvent, the
Trustee shall determine whether the Employer is Insolvent and, pending
such determination, the Trustee shall discontinue payment of benefits to
Plan participants and beneficiaries.
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(b)
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Unless
the Trustee has actual knowledge of the Employer’s Insolvency or has
received notice from the Employer or a person claiming to be a creditor
alleging that the Employer is Insolvent, the Trustee shall have no duty to
inquire whether the Employer is Insolvent. The Trustee may in all events
rely on such evidence concerning the Employer’s solvency as may be
furnished to the Trustee and that provides the Trustee with a reasonable
basis for making a determination concerning the Employer’s
solvency.
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(c)
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If
at any time the Trustee has determined that the Employer is Insolvent, the
Trustee shall discontinue payments to Plan participants and beneficiaries
and shall hold the assets of the Trust for the benefit of the Employer’s
general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of any Plan participant or beneficiary to pursue his
rights as a general creditor of the Employer with respect to benefits due
under the Plan or otherwise.
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(d)
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The
Trustee shall resume the payment of benefits to the Plan participants and
beneficiaries in accordance with the terms of this Trust Agreement only
after the Trustee has determined that the Employer is not Insolvent (or is
no longer Insolvent).
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(e)
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Provided
that there are sufficient assets, if Trustee discontinues the payment of
benefits from the Trust pursuant to Section 3(a) hereof and subsequently
resumes such payments, the first payment following such discontinuance
shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan(s) for the
period of such discontinuance, less the aggregate amount of any payments
made to Plan participants or their beneficiaries by Company in lieu of the
payments provided for hereunder during any such period of
discontinuance.
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(f)
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Except
as provided in this Article IV, Employer shall have no right or power to
direct Trustee to return to Employer or to divert to others any of the
Trust assets before all payments of benefits have been made to Plan
participants and their beneficiaries pursuant to the terms of the
Plan.
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ARTICLE V - INVESTMENT
AUTHORITY
5.1 TRUSTEE AUTHORITY.
The Trustee may invest in securities (including stock or rights to acquire
stock) or obligations issued by the Employer or an affiliate
thereof. All
rights associated with the assets of the trust shall be exercised by the Trustee
or the person designated by the Trustee and shall in no event be exercisable by
or rest with the Plan participant or the Employer. The Trustee shall
have the following powers with respect to any and all moneys, securities, and
other assets at any time held by it and constituting part or all of the Trust,
subject to the Employer’s authority contained in Section 5.2:
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(a)
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To
hold life insurance and annuity contracts on participants in the Plan, and
to exercise any right with respect to such contracts otherwise held by the
Employer.
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(b)
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To
lend all or any portion of the trust funds to the Employer upon such terms
and conditions as to interest rates, maturities, and security as the
Employer may request.
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(c)
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To
invest and reinvest all or any portion of the trust in investments
permissible for a national bank.
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5.2 EMPLOYER
AUTHORITY. The Employer shall have the right at any time, and
from time to time in its sole discretion, to substitute assets of equal fair
market value for any asset held by the Trust. These rights are
exercisable by the Employer in a nonfiduciary capacity without the approval or
consent of any person in a fiduciary capacity. In addition, the
Employer may, from time to time and in its sole discretion, provide an
investment and/or allocation policy that the Trustee shall follow when making
investment decisions hereunder.
ARTICLE VI - DISPOSITION OF
INCOME
6.1 DISPOSITION OF
INCOME. During the term of this Trust, all income received by
the Trust shall be accumulated and reinvested.
ARTICLE VII - ACCOUNTING BY
TRUSTEE
7.1 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 Employer and the Trustee. Within ninety (90)
days following the close of each calendar year and within ninety (90) days after
the removal of resignation of the Trustee, the Trustee shall deliver to the
Employer a written account of its administration of the Trust during such year
or during the period from the close of the last 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 investments 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.
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ARTICLE VIII -
RESPONSIBILITY OF THE TRUSTEE
8.1 PRUDENT
PERSON. 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 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 Employer that is contemplated
by, and in conformity with, the terms of the Plan or this Trust and is given in
writing by the Employer. In the event of a dispute between the
Employer and a party, the Trustee may apply to a court of competent jurisdiction
to resolve the dispute.
8.2 TRUSTEE
INDEMNIFICATION. If the Trustee undertakes or defends any
litigation arising in connection with this Trust (except an action by the
Employer or any Plan participant or beneficiary for the Trustee’s breach of duty
hereunder), the Employer agrees to indemnify the Trustee against the Trustee’s
costs, expenses, and liabilities (including, without limitation, attorney’s fees
and expenses) relating thereto and to be primarily liable for such
payments. If the Employer does not pay such costs, expenses, and
liabilities in a reasonable and timely manner, the Trustee may obtain payment
from the Trust.
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8.3 LEGAL
COUNSEL. The Trustee may consult with legal counsel (who may
also be counsel for Employer generally) with respect to any of its duties or
obligations hereunder.
8.4 HIRING
AGENTS. 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.
8.5 TRUSTEE
POWERS. 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 .
8.6 LIMITATION ON
POWERS. 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 the objective of carrying
on a business and dividing the gains therefrom within the meaning of Section
301.7701-2 of the Procedure and Administration Regulations promulgated pursuant
to the Internal Revenue Code.
ARTICLE IX - FEES AND
EXPENSES OF THE TRUSTEE
9.1 TRUSTEE EXPENSES AND
FEES. Employer shall pay all administrative and Trustee’s fees
and expenses. If not so paid, the fees and expenses shall be paid from the
trust.
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ARTICLE X - RESIGNATION AND
REMOVAL OF THE TRUSTEE
10.1 TRUSTEE
RESIGNATION. The Trustee may resign at any time by written
notice to the Employer, which shall be effective thirty (30) days after receipt
of such notice unless the Employer and the Trustee agree otherwise.
10.2 TRUSTEE
REMOVAL. The Trustee may be removed by the Employer on thirty
(30) days notice or upon shorter notice accepted by the Trustee.
10.3 TRANSFER OF
ASSETS. 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
sixty (60) days after receipt of the notice of resignation, removal, or
transfer, unless the Employer extends the time limit.
10.4 APPOINTMENT OF
SUCCESSOR. If the Trustee resigns or is removed, a successor
shall be appointed, in accordance with the following section, by the effective
date of resignation or removal. 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.
ARTICLE XI - APPOINTMENT OF
SUCCESSOR
11.1 APPOINTMENT OF
SUCCESSOR. If the Trustee resigns or is removed in accordance
with Section 10.1 or 10.2 hereof, the Employer may appoint any third party, such
as a bank trust department or other party that may be granted corporate trust
powers under 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, which shall have all of the rights and powers of the
of the former Trustee, including ownership rights in the Trust
assets. The former Trustee shall execute any instrument necessary or
reasonably requested by the Employer or the successor Trustee to evidence the
transfer.
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ARTICLE XII - AMENDMENT OR
TERMINATION
12.1. AMENDMENT. This
Trust Agreement may be amended by a written instrument executed by the Trustee
and the Employer. Notwithstanding the foregoing, no such amendment
shall conflict with the terms of the Plan, or shall make the Trust revocable
after it has become irrevocable in accordance herewith.
12.2 TERMINATION. The
Trust shall not terminate until the date on which all Plan participants and
beneficiaries are no longer entitled to benefits pursuant to the terms of the
Plan. Upon termination of the Trust, any assets remaining in the
Trust shall be returned to the Employer.
ARTICLE XIII -
MISCELLANEOUS
13.1 VALIDITY OF
PROVISIONS. Any provision of this Trust Agreement prohibited
by law shall be ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
13.2 NO ASSIGNMENT OF
BENEFITS. Benefits payable to a Plan participant and his or
her 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.
13.3 GOVERNING
LAW. This Trust Agreement shall be governed by and construed
in accordance with the laws of the state of Kentucky.
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ARTICLE XIV - EFFECTIVE
DATE
14.1 EFFECTIVE
DATE. The effective date of this Trust Agreement is November
17, 2010.
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