AMERICAN SAVINGS, FSB
TRUST FOR THE
DIRECTOR DEFERRED COMPENSATION AGREEMENTS,
THE INDEPENDENT CONTRACTOR'S DEFERRED COMPENSATION
AGREEMENT,
THE RESTATED EXECUTIVE DEFERRED COMPENSATION AGREEMENTS,
AND THE
SECOND EXECUTIVE DEFERRED COMPENSATION AGREEMENT
AMERICAN SAVINGS, FSB
Munster, Indiana
JULY l, 1998
Financial Institution Consulting Corporation
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
XXXXX: 0-000-000-0000
FAX: (000) 000-0000
(000) 000-0000
AMERICAN SAVINGS, FSB
TRUST FOR THE
DIRECTOR DEFERRED COMPENSATION AGREEMENTS,
THE INDEPENDENT CONTRACTOR'S DEFERRED COMPENSATION
AGREEMENT,
THE RESTATED EXECUTIVE DEFERRED COMPENSATION AGREEMENTS,
AND THE
SECOND EXECUTIVE DEFERRED COMPENSATION AGREEMENT
This Trust Agreement, effective as of the lst day of July, 1998, is by
and between AMERICAN SAVINGS, FSB, a federal stock savings bank, (hereinafter
referred to as "Bank"), and HOME FEDERAL SAVINGS BANK, a banking corporation
with its principal place of business in the State of Indiana (hereinafter
referred to as "Trustee").
WITNESETH:
WHEREAS, Bank has adopted Director Deferred Compensation Agreements,
and an Independent Contractor's Deferred Compensation Agreements (hereinafter
referred to as "Benefit Plans"), such Benefit Plans have been made effective as
of the lst day of December, 1992, and constitute non-qualified deferred
compensation plans, copies of which are attached hereto as Exhibit A and B; the
Bank has also adopted Restated Executive Deferred Compensation Agreements, and a
Second Executive Deferred Compensation Plan, such Benefit Plans have been made
effective as of the lst day of July, 1998, and constitute non-qualified deferred
compensation plans, copies of which are attached hereto as Exhibit C and D.
WHEREAS, Bank has incurred or expects to incur liability under the
terms of the Benefit Plans with respect to the individual(s) participating in
such Benefit Plans;
WHEREAS, Bank wishes to establish a trust (hereinafter referred to as
("Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of Bank's creditors in the event of Bank's Insolvency, as
herein defined, until paid to Benefit Plan participants, and their beneficiaries
in such manner and at such times as specified in the Benefit Plans;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Benefit Plans as unfunded plans, maintained primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees, for purposes of Title I of the Employee Retirement Income
Security Act of 1974, as amended;
WHEREAS, it is the intention of Bank 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 Benefit Plans (hereinafter referred to as
"Contributions");
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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SECTION I
ESTABLISHMENT OF TRUST
(a) Bank hereby deposits with Trustee in trust, assets which shall
become the principal of the Trust to be held, administered and
disposed of by 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 Bank is
the grantor, within the meaning of subpart E, part 1,
subchapter J, chapter 1, subtitle A of the Internal Revenue
Code of 1986, as amended, 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 Bank and shall be
used exclusively for the uses and purposes of Benefit Plan
participants and general creditors as herein set forth.
Benefit Plan participants and their beneficiaries shall have
no preferred claim on, or any beneficial ownership interest
in, any assets of the Trust. Any rights created under the
Benefit Plans and this Trust Agreement shall be mere unsecured
contractual rights of Benefit Plan participants and their
beneficiaries against Bank. Any assets held by the Trust will
be subject to the claims of Bank's general creditors under
federal and state law in the event of Insolvency, as defined
in Section III(a) herein.
(e) The Trustee shall be accountable for all property and
Contributions received, but the Trustee shall have no duty to
see that the Contributions received are sufficient to provide
for the retirement, disability, or death benefits, nor shall
the Trustee be obligated to enforce or collect any
Contribution from the Bank. Notwithstanding the foregoing, in
the event of a Change in Control (as defined in Article XIII),
the
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Trustee shall have the right to monitor, enforce and/or
collect any Contributions due and owing from the Bank or to
give notice of any default in making Contributions to any
person.
(f) Within 75 (seventy-five) days following the end of each
calender year, Bank shall, if necessary, be required to
irrevocably deposit additional cash or other property to the
Trust in an amount sufficient to pay each Benefit Plan
participant or beneficiary the benefits payable pursuant to
the terms of the Benefit Plan as of the close of such calendar
year(s).
(g) Upon (i) a Change in Control, (ii) the death of a Benefit Plan
participant, or (iii) termination of employment with respect
to a Benefit Plan participant, following a Change in Control,
Bank shall as soon as possible, but in no event longer than
seventy-five (75) days following such event, make an
additional irrevocable contribution to the Trust in an amount
that is sufficient to pay each Benefit Plan participant or
beneficiary the benefits to which such Benefit Plan
participants or his/her beneficiaries would be entitled
pursuant to the terms of the Benefit Plan as of the date such
event occurred.
SECTION II
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
(a) Bank shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of
each Benefit Plan participant (and his or her beneficiaries),
that provides a formula or other instructions acceptable to
Trustee for determining the amounts so payable, the form in
which such amount is to be paid (as
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provided for or available under the Benefit Plan), and the
time of commencement for payment of such amounts. Except as
otherwise provided herein, Trustee shall make payments to the
Benefit Plan participants and their beneficiaries in
accordance with such Payment Schedule. The Trustee shall, in
accordance with the written instructions of the Bank, or in
the event of a Change in Control of the Bank, the written
instructions of the Benefits Determiner (both of which are
defined in Section XIII ), withhold and report any federal,
state or local taxes that may be required to be withheld and,
reported with respect to the payment of benefits pursuant to
the terms of the Benefit Plan and shall pay amounts withheld
to the appropriate taxing authorities. In addition, the
Trustee shall be authorized to pay any federal, state or local
taxes to any governmental body that presents a tax deficiency
notice to the Trustee with respect to income or assets of the
Trust. The Bank shall deliver to the Trustee each year a
schedule which specifies the amount of taxes to be withheld,
if any, with respect to benefit payments to be made hereunder.
Trustee shall be entitled to rely conclusively on the written
instructions of Bank, or in the event of a Change in Control,
the Benefits Determiner, as to all tax reporting and
withholding requirements.
(b) The entitlement of a Benefit Plan participant or his or her
beneficiaries to benefits under the Benefit Plan shall be
determined by Bank or such party (other than the Trustee) as
it shall designate under the Benefit Plan, and any claim for
such benefits shall be considered and reviewed under the
procedures set out in the Benefit Plan.
(c) Bank may make payment of benefits directly to Benefit Plan
participants or their beneficiaries as they become due under
the terms of the Benefit Plan. Bank shall
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notify Trustee of its decision to make payment of benefits
directly, prior to the time amounts are payable to
participants or their 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 Benefit Plan, Bank shall make the balance of each
such payment as it falls due. Trustee shall notify Bank if and
when such principal and earnings are not sufficient to
discharge obligations currently due under the Payment Schedule
and shall have no further obligation hereunder to anyone
interested in the Trust.
(d) In the event of a Change in Control, Trustee shall rely on the
written direction of the Benefits Determiner who shall confirm
the accuracy of the Payment Schedule or who shall deliver to
Trustee a new Payment Schedule upon which Trustee may rely.
SECTION III
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO
TRUST BENEFICIARY WHEN BANK IS INSOLVENT
(a) Trustee shall cease payment of benefits to Benefit Plan
participants and their beneficiaries if the Bank is Insolvent.
Bank shall be considered "Insolvent" for purposes of this
Trust Agreement if (i) Bank states to it in writing that it is
unable to pay its debts as they become due, or (ii) Bank is
subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided
in Section I(d) hereof, the principal and income of the Trust
shall be subject to claims of general creditors of Bank under
federal and state law as set forth below.
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(1) The Board of Directors and the Chief Executive
Officer of Bank shall have the duty to inform Trustee
in writing of Bank's Insolvency. If a person claiming
to be a creditor of Bank alleges in writing to
Trustee that Bank has become Insolvent, Trustee shall
determine whether Bank is Insolvent and, pending such
determination, Trustee shall discontinue payment of
benefits to Benefit Plan participants or their
beneficiaries.
(2) Unless Trustee has actual knowledge of Bank's
Insolvency, or has received notice from Bank or a
person claiming to be a creditor alleging that Bank
is Insolvent, Trustee shall have no duty to inquire
whether Bank is Insolvent. Trustee may in all events
rely on such evidence concerning Bank's solvency as
may be furnished to Trustee and that provides Trustee
with a reasonable basis for making a determination
concerning Bank's solvency. Trustee shall have no
liability for any payments to Benefit Plan
participants or their beneficiaries after the
occurrence of an Insolvency but prior to its actual
knowledge thereof.
(3) If at any time Trustee has determined that Bank is
Insolvent, Trustee shall discontinue payments to
Benefit Plan participants or their beneficiaries and
shall hold the assets of the Trust for the benefit of
Bank's general creditors. Nothing in this Trust
Agreement shall in any way diminish any rights of
Benefit Plan participants or their beneficiaries to
pursue their rights as general creditors of Bank with
respect to benefits due under the Benefit Plans or
otherwise.
(4) Trustee shall resume the payment of benefits to
Benefit Plan participants or
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their beneficiaries in accordance with Section 11 of
this Trust Agreement only after Trustee has
determined that Bank is not (or is no longer)
Insolvent.
(c) Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant
to Section III(b) hereof and subsequently resumes such
payments, the first payment following such discontinuance
shall include the aggregate amount of all payments due to
Benefit Plan participants or their beneficiaries under the
terms of the Benefit Plans for the period of such
discontinuance, less the aggregate amount of any payments made
to Benefit Plan participants or their beneficiaries by Bank in
lieu of the payments provided for hereunder during any such
period of discontinuance.
SECTION IV
PAYMENTS TO BANK
Except as provided in Sections III or XII hereof, Bank shall have no
right or power to direct Trustee to return to Bank or to divert to others any of
the Trust assets before all payment of benefits have been made to Benefit Plan
participants and their beneficiaries pursuant to the terms of the Benefit Plans.
SECTION V
TRUSTEE'S POWERS
(a) All rights associated with assets of the Trust shall be
exercised by Trustee, and shall in no event be exercisable by
or rest with Benefit Plan participants. Bank shall have the
right at anytime, and from time to time in its sole
discretion, to substitute assets,
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acceptable to the Trustee, of equal fair market value for any
asset held by the Trust. This right is exercisable by the Bank
in a nonfiduciary capacity without the approval or consent of
any person in a fiduciary capacity.
(b) Subject to the foregoing, Trustee shall have the following
powers and authority in the administration of the assets of
the Trust, in addition to those vested in it elsewhere in this
Trust Agreement or by law:
(i) Subject to investment guidelines issued by Bank, to
invest and reinvest the assets of the Trust, without
distinction between principal and income, in any kind
of property, real, personal or mixed, tangible or
intangible, and in any kind of investment, security
or obligation suitable for the investment of Trust
assets, including federal, state and municipal
tax-free obligations and other tax-free investment
vehicles, insurance policies and annuity contracts,
and any common trust fund, group trust, pooled fund,
or other commingled investment fund maintained by the
Trustee or any other bank or entity for trust
investment purposes in which the Trust is eligible to
invest and the provisions governing such fund shall
be part of the Trust Agreement as though fully
restated herein;
(ii) To purchase, and maintain as owner, a life insurance
policy or policies with respect to participants;
provided, however, that the Trustee shall not be
required to purchase or take any action under a life
insurance policy or policies with respect to
participants unless directed to do so by the Bank,
which shall designate the face amount of said policy
or policies, the terms of the policy or policies and
the insurance company.
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(iii) To sell for cash or on credit, to grant options,
convert, redeem, exchange for other securities or
other property, or otherwise to dispose of, any
security or other property at any time held except
that the Trustee shall have no right or obligation to
take any action with respect to any insurance
contract or policy unless so directed by the Bank, or
in the event of a Change in Control, by the Benefits
Determiner;
(iv) At the direction of the Bank, to settle, compromise
or submit to arbitration, any claims, debts or
damages, due or owning to or from the Trust, to
commence or defend suits or legal proceedings and to
represent the Trust in all suits or legal proceedings
provided, however, the Trustee shall not be expected
or required to undertake any of the foregoing unless
there are sufficient assets in the Trust with which
to do so, or the Trustee has received assurances by a
party to this Trust, satisfactory to the Trustee, of
the payment or reimbursement of the expenses
connected therewith;
(v) To exercise any conversion privilege (other than
conversion privileges with respect to any insurance
policy, which shall be exercised only upon direction
of the Bank, or in the event of a Change in Control,
by the Benefits Determiner) and/or subscription right
available in connection with securities or other
property at any time held, to oppose or to consent to
the reorganization, consolidation, merger or
readjustment of the finances of any corporation, bank
or association or to the sale, mortgage, pledge or
lease of the property of any corporation, bank or
association any of the securities of which may at any
time be held and to do any act with reference
thereto,
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including the exercise of options, the making of
agreement or subscription, which may be deemed
necessary or advisable in connection therewith, and
to hold and retain any securities or other properties
so acquired;
(vi) To hold cash uninvested for a reasonable period of
time under the circumstances without liability for
interest, pending investment thereof or the payment
of expenses or making distributions therewith;
(vii) To form corporations and to create trusts to hold
title to any securities or other property, all upon
such terms and conditions as may be deemed advisable;
(viii) To employ suitable agents and counsel and to pay
their reasonable expenses and compensation;
(ix) To register any securities held hereunder in the name
of the Trustee or in the name of a nominee with or
without the addition of words indicating that such
securities are held in a fiduciary capacity and to
hold any securities in bearer form and to combine
certificates representing such securities with
certificates of the same issue held by Trustee in
other fiduciary or representative capacities, or to
deposit securities in any qualified central
depository where such securities may be held in bulk
in the name of the nominee of such depository with
securities deposited by other depositors, or deposit
securities issued by the United States Government, or
any agency or instrumentalities thereof, with a
Federal Reserve Bank;
(x) To make, execute and deliver, as trustee, any and all
conveyances, contracts, waivers, releases or other
instruments in writing necessary or proper for the
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accomplishment of any of the foregoing powers;
(xi) To have any and all other powers or authority, under
the laws of the state in which the Trustee's
principal executive offices are located, relevant to
performance in the capacity as Trustee; and
(xii) To settle, compromise or submit to arbitration, any
claims, debts or damages, due or owing to or from the
Trust, to commence or defend suits or legal
proceedings and to represent the Trust in all suits
or legal proceedings; provided, however, the Trustee
shall not be expected or required to undertake any of
the foregoing unless there are sufficient assets in
the Trust with which to do so, or the Trustee has
received assurances by a party to this Trust,
satisfactory to the Trustee, of the payment or
reimbursement of the expenses connected therewith.
SECTION VI
DISPOSITION OF INCOME
During the term of this Trust, all income received by the Trust, net of
distributions, expenses and taxes, shall be accumulated and reinvested.
SECTION VII
ACCOUNTING BY TRUSTEE
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 Bank
and Trustee. Within ninety (90) days following the close of each
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calendar year and within sixty (60) days after the removal or resignation of
Trustee, Trustee shall deliver to Bank 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.
SECTION VIII
RESPONSIBILITY OF TRUSTEE
(a) 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 Trustee shall incur no liability to any person for any action
taken pursuant to a direction, request or approval given by Bank which
is contemplated by, and in conformity with, the terms of the Benefit
Plans or this Trust and is given in writing by Bank. In the event of a
dispute between Bank and a party, Trustee may apply at the expense of
the Trust to a court of competent jurisdiction located in the State of
Indiana to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in connection
with this Trust, except where it is finally determined by a court of
competent jurisdiction that the Trustee breached its duties under this
Agreement, Bank agrees to indemnify Trustee against Trustee's costs,
expenses and liabilities (including, without limitation, attorneys'
fees and expenses) relating
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thereto and to be primarily liable for such payments. If Bank does not
pay such costs, expenses and liabilities in a reasonably timely manner,
Trustee may obtain payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for
Bank generally) with respect to any of its duties or obligations
hereunder and charge their fees to the Trust if they are not paid in a
timely manner by Bank.
(d) 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) 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 acquired or held at
the direction of Bank as an asset of the Trust, Trustee shall have no
power to name a beneficiary of the policy other than the Trust, to
assign the policy other than to a successor trustee, or to loan to any
person (including Bank) the proceeds of any borrowing against such
policy.
(f) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, 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 Administrative Regulations promulgated pursuant to
the Internal Revenue Code.
(g) Trustee shall be entitled to conclusively rely upon any written notice,
direction, instruction, certificate or other communication believed by
it to be genuine and to be signed by the proper person or persons.
(h) Nothing contained in this Trust Agreement shall require Trustee to risk
or expend its own
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funds in the performance of its duties hereunder. In the acceptance and
performance of its duties hereunder, Trustee acts solely as trustee of
the Trust and not in its individual capacity, and all persons, other
than Bank, having any claim against Trustee related to this Trust
Agreement or the actions or agreements of Trustee contemplated hereby
shall look solely to the Trust for the payment or satisfaction thereof,
except to the extent that Trustee has engaged in willful misconduct or
gross negligence, or Trustee has willfully breached its obligation
under this Trust Agreement.
(i) Trustee shall not be responsible for determining whether a Change in
Control (as hereinafter defined) has occurred. Bank will notify Trustee
of the occurrence of a Change in Control, and Trustee shall be entitled
to rely conclusively upon such notification for all purposes of a
Change in Control hereunder without any liability or further duty with
respect thereto.
(j) Any amendment or amendments that are or may be made to the Benefit
Plan(s) shall not increase the Trustee's duties hereunder without the
express written consent of the Trustee.
SECTION IX
COMPENSATION AND EXPENSES OF TRUSTEE
Bank shall pay all administrative and Trustee's fees and expenses. If
not paid by Bank, the fees and expenses shall be paid from the Trust.
SECTION X
RESIGNATION AND REMOVAL OF TRUSTEE
(a) Trustee may resign at any time by written notice to Bank, which shall
be effective sixty (60) days after receipt of such notice unless Bank
and Trustee agree otherwise, whether or not a
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successor has been appointed and qualifies. Trustee shall pay or
deliver property to the successor trustee or Bank (in further trust,
pending the appointment of a successor) as the case may be, at the end
of such period.
(b) Trustee may be removed by Bank on sixty (60) days notice to Trustee or
upon shorter notice accepted by Trustee. A successor trustee may be
removed by Bank on ninety (90) days notice to such successor trustee or
upon shorter notice accepted by the successor trustee.
(c)(1) If, at the time of a Change in Control (as defined herein), the then
acting trustee is an individual or entity, not independent of the Bank,
the Board of Directors of the Bank, as in existence immediately prior
to the Change in Control, shall designate an independent third party
with corporate trustee powers to act as successor trustee and upon such
appointment, the trustee acting prior to such Change in Control shall
resign. The successor trustee appointed by the Board of Directors may
not be removed by the Bank for two (2) years following the date of such
Change in Control.
(2) If, at the time of a Change in Control (as defined in Section XIII),
the trustee is, other than serving as trustee hereunder, an independent
party with respect to the Bank, Trustee may not be removed by Bank for
two (2) years following the date of such Change in Control. Such
trustee also may not be removed by Bank in anticipation of a Change in
Control.
(d) If Trustee resigns at any time following a Change in Control, or if
Trustee is removed by Bank at any time following the expiration of the
two (2) year period (as described in Subpart (c) above) following a
Change in Control, the President of the Bank, as in existence
immediately prior to a Change in Control, or in the event such person
is deceased, the Benefits Determiner, shall select a successor trustee
in accordance with the provisions of
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XI(a) hereof and such selection shall be made on or before the
effective date of Trustee's resignation or removal. In all other
instances of resignation or removal, Bank shall select a successor
trustee in accordance with the provisions of XI(a) hereof, with such
selection being made on or before the effective date of Trustee's
resignation or removal.
(e) Upon resignation or removal of Trustee and appointment of a successor
trustee, all assets shall subsequently be promptly transferred to the
successor trustee, in accordance with subsection (a) hereof.
(f) If Trustee resigns or is removed under paragraph (a), (b), or (d) of
this Section X, a successor shall be appointed in accordance with
Section XI hereof, with such selection being made on or before the
effective date of resignation or removal. If no such appointment has
been made, Bank or Trustee (as applicable) may apply to a court of
competent jurisdiction for appointment of a successor or for
instructions. Should the Trustee be required to apply to a court of
competent jurisdiction for such purpose, all expenses of Trustee in
connection with the proceeding shall be allowed as administrative
expenses of the Trust.
SECTION XI
APPOINTMENT OF SUCCESSOR
(a) If Trustee resigns or is removed pursuant to the provisions of Section
X hereof, Bank may appoint any third party, such as a bank trust
department or other party that may be granted corporate trustee powers
under state law, to serve as successor trustee hereunder. The
appointment of a successor trustee shall be effective when accepted in
writing by the new trustee. The new trustee 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
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instrument necessary or reasonably requested by the successor trustee
to evidence the transfer.
(b) The successor trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections VII and VIII hereof The successor trustee shall not
be responsible for and Bank shall indemnify and defend the successor
trustee from any claim or liability resulting from any action or
inaction of any prior trustee or from any other past event, or any
condition existing at the time it becomes successor trustee.
SECTION XII
AMENDMENT OR TERMINATION
(a) This Trust Agreement may be amended by a written instrument executed by
Trustee and Bank. Notwithstanding the foregoing, no such amendment
shall conflict with the terms of the Benefit Plan or shall make the
Trust revocable.
(b) The Trust shall not terminate until Benefit Plan participants and their
beneficiaries are no longer entitled to any benefits pursuant to the
terms any Benefit Plan. The Trust shall not terminate until the earlier
of the following: (i) all Benefit Plan participants and their
beneficiaries are no longer entitled to any benefits pursuant to the
terms of the Benefit Plan or (ii) all Benefit Plan participants and
their beneficiaries are no longer entitled to any lump sum burial or
disability benefits pursuant to the terms of the Benefit Plans and the
Bank has fully complied with all provisions of the Benefit Plan. Upon
termination of the Trust any assets remaining in the Trust shall be
returned to Bank. Notwithstanding the foregoing, if at any time prior
to the termination of the Trust pursuant to the provisions set forth
herein,
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the Trust has distributed its entire corpus, the Trust shall terminate
unless within sixty (60) days of notification to the Bank by Trustee
that all assets of the Trust have been distributed, the Bank makes
additional contributions to the Trust for purposes of paying the
benefits set forth herein.
(c) Upon written approval of Benefit Plan participants or beneficiaries
entitled to payment of benefits pursuant to the ten-ns of the Benefit
Plan, Bank may terminate this Trust prior to the time all benefit
payments under the Benefit Plan have been made. All assets in the Trust
at termination shall, after payment of all amounts due to Trustee and
all fees, taxes, expenses chargeable to the Trust, be returned to Bank.
(d) Section(s) I (one), II (two), VI (six), X (ten) and XII (twelve) of
this Trust Agreement may not be amended by Bank (i) in anticipation of
or (ii) for two (2) years following a Change of Control, as defined
herein.
SECTION XIII
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 provisions hereof.
(b) Benefits payable to Benefit Plan participants and their 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.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of the State of Indiana. Nothing in this Trust Agreement
shall be construed to subject the Trust to
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the Employee Retirement Income Security Act of 1974, as amended.
(d) For purposes of this Trust,"Change in Control" of the Holding Company
(defined herein in subsection (j)) or the Bank shall mean the first to
occur of any of the following events:
(1) Any person or entity or group of affiliate persons or entities
(other than the Holding Company) becomes a beneficial owner,
directly or indirectly, of 25% or more of the Holding
Company's and/or the Bank's voting securities or all or
substantially all of the assets of Holding Company and/or the
Bank.
(2) Holding Company and/or the Bank enters into a definitive
agreement which contemplates the merger, consolidation or
combination of either Holding Company or the Bank with an
unaffiliated entity in which either or both of the following
is to occur: (i) the directors of Holding Company and/or Bank,
as applicable, immediately prior to such merger, consolidation
or combination will constitute less than a majority of the
board of directors of the surviving, new or combined entity;
or (ii) less than 75% of the outstanding voting securities of
the surviving, new or combined entity will be beneficially
owned by the stockholders of Holding Company immediately prior
to such merger, consolidation or combination; provided,
however, that if any definitive agreement to merge,
consolidate or combine is terminated without consummation of
the transaction, then no Change in Control shall be deemed to
have occurred pursuant to this paragraph (2).
(3) Holding Company and/or the Bank enters into a definitive
agreement which contemplates the transfer of all or
substantially all of Holding Company's and/or the Bank's
assets, other than to a wholly-owned subsidiary of Holding
Company; provided, however, that if any definitive agreement
to transfer assets is terminated
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without communication of the transfer, then no Change in
Control shall be deemed to have occurred pursuant to this
paragraph (3).
(4) A majority of the members of the Board of Directors of either
Holding Company or the Bank shall be persons who: (i) were not
members of such Board on the date hereof ("current members");
and (ii) were not nominated by a vote of the Board which
included the affirmative vote of a majority of the current
members on the Board at the time of their nomination ("future
designees") and (iii) were not nominated by a vote of the
Board which included the affirmative vote of a majority of the
current members and future designees, taken as a group, on the
Board at the time of their nomination.
(e) The Bank shall be required to notify the Trustee of a Change in Control
or imminent Change in Control (for these purposes, a Change in Control
shall be imminent if it shall occur within sixty (60) days from the
date of said notice). The Trustee shall not be charged with actual
knowledge of a Change in Control until it has received notice, in
writing, of such Change in Control or imminent Change in Control.
(f) Every direction or notice authorized hereunder shall be deemed
delivered to the Bank or the Trustee as the case may be:
(i) on the date it is personally delivered to the Bank or the
Trustee at its respective principal executive offices, or
(ii) three (3) business days after it is sent by registered or
certified mail, postage prepaid, addressed to the Bank, the
Trustee or the benefits determiner at such principal executive
offices.
(g) The Trustee shall be fully protected in relying upon a certification of
an authorized
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representative of the Bank with respect to any instruction, direction
or approval of the Bank required or permitted hereunder, and protected
also in relying upon the certification until a subsequent certification
is filed with the Trustee. The Trustee shall be fully protected in
acting upon any instrument, certificate, or paper believed by it to be
genuine and to be signed or presented by the proper person or persons,
and the Trustee shall be under no duty to make any investigation or
inquiry as to any statement contained in any such writing, but may
accept the same as conclusive evidence of the trust and accuracy
contained therein.
(h) The Bank has appointed Financial Institution Consulting Corporation as
the 'Benefits Determiner" to determine the manner and amount of
payments to be made to the participant and/or the beneficiary under the
Agreement in the event of any dispute. In the event that the Benefits
Xxxxxxxxxx fails to act or resigns, a successor benefits determiner
shall be:
(i) selected by the Bank, if no Change in Control has occurred at
the Bank, or,
(ii) selected jointly by the participant (or beneficiary, if the
participant is deceased) and the Trustee, if a Change in
Control has occurred at the Bank.
(i) Communications under this Trust Agreement shall be in writing and shall
be sent to the following addresses:
Trustee: Home Federal Savings Bank
000 Xxxxxxxxxx Xx.
Xxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Vice President
and Senior Trust Officer
Telecopier: (000) 0000000
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Bank: American Savings Bank, FSB
0000 Xxxxxx Xxx
X.X. Box 3198
Munster, Indiana 46321-0198
Attention: Xxxxxxx Xxxxx, President
Telecopier: (000) 000-0000
(j) "Holding Company" shall mean AMB Financial, located in Munster,
Indiana.
(k) This Trust Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which shall
together constitute only one agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this instrument has been executed as of the day and
year first above written.
ATTEST: AMERICAN SAVINGS, FSB
By:
Secretary Title:
ATTEST: AMERICAN SAVINGS, FSB
By:
Secretary Title:
ATTEST: AMERICAN SAVINGS, FSB
______________________, Secretary Title:
