Exhibit 10(23)
FIRST FEDERAL SAVINGS BANK OF XXXXXX
DIRECTOR EMERITUS PLAN
This Director Emeritus Plan (the "Plan"), effective as of the 1st day
of March, 1996, formalizes the understanding by and between FIRST FEDERAL
SAVINGS BANK OF XXXXXX (the "Bank"), a federally chartered savings bank, and
XXXX X. XXXXXX, hereinafter referred to as "Participant."
SECTION I
PURPOSE
The purpose of the Plan is (i) to honor, reward and recognize directors
who have provided long and faithful service to the Bank, (ii) to ensure
continued service on the board by such directors until retirement age, (iii) to
encourage such long-term directors to relinquish their formal positions on the
board, upon reaching retirement age, and instead to provide on-going Advisory
Services to the Bank via their role as Emeritus Directors and (iv) generally, to
create a structure which will facilitate orderly transitions as new directors
replace retiring directors.
SECTION II
DEFINITIONS
2.1 "Advisory Services" means (i) advice and consultation provided to the
Bank by the Director Emeritus, as requested from time to time by the
Board of Directors or by any officer designated by the Board of
Directors and (ii) attendance at a minimum of four formal meetings held
by the Board of Directors during each consecutive twelve (12) month
period following commencement of his Advisory Services. A Participant
shall commence providing Advisory Services upon the later of: (i) the
first day of the month following the date of the Participant's
designation as Director Emeritus or (ii) the first day of April, 1998
and shall continue for the remainder of the Participant's life, unless
such Participant becomes unwilling or unable to provide such Advisory
Services.
2.2 "Bank" means FIRST FEDERAL SAVINGS BANK OF XXXXXX or any company
successor or predecessor thereto by merger, consolidation, liquidation
or other reorganization.
23 "Beneficiary" means the individual(s) (and their heirs) or entity(ies)
designated as Beneficiary in Exhibit A of the Plan to whom certain
benefits are payable under this Plan. The Beneficiary designation may
be changed at any time by submitting to the Administrator, in
substantially the form attached hereto as Exhibit A, a written
designation of the primary and/or secondary Beneficiaries to whom
payment shall be made under the Plan. If no Beneficiary is so
designated, then the Participant's Spouse, if living, will be deemed
the Beneficiary. If the Participant's Spouse is not living, then the
Children of the Participant will
-1-
be deemed the Beneficiaries and will take on a per stirpes basis. If
there are no Children, then the Estate of the Participant will be
deemed the Beneficiary.
2.4 "Benefit Period" shall mean the period of time during which the
Director Emeritus shall be entitled to receive Director Emeritus Fees.
Benefit payments shall be made in equal monthly installments,
commencing on the date the Participant begins providing Advisory
Services and ceasing on the date the Participant discontinues his
Advisory Services.
2.5 "Burial Benefit" means a one-time lump sum death benefit in the amount
of Ten Thousand ($10,000.00) Dollars. This benefit is specifically for
the purpose of providing payment for burial and/or funeral expenses of
the Participant. Such benefit shall be payable to the Participant's
Beneficiary within thirty (30) days of the Participant's death.
2.6 "Children" means all natural or adopted children of the Participant,
and issue of any predeceased child or children.
2.7 "Director Emeritus" means a Participant who (i) has terminated service
on the Board of Directors (for any reason other than Removal For
Cause), (ii) has attained the eligibility requirements set forth in
Section III of the Plan, and (iii) shall serve as an adviser and
consultant to the Board of Directors following designation as a
Director Emeritus by the Board of Directors. In providing Advisory
Services to the Board of Directors, it is acknowledged that the
Director Emeritus is not bound by the fiduciary duties of a director,
but rather to the lesser duties required of an adviser or consultant.
2.8 "Director Emeritus Fee" means Fifty Percent (50%) of the monthly Board
fee which the Participant was receiving most recently prior to his
designation as a Director Emeritus. The Director Emeritus Fee shall be
paid annually, in equal monthly installments, and shall be payable for
the Benefit Period.
2.9 "Effective Date" of the Plan is March 1st, 1996.
2.10 "Estate" means the estate of the Participant.
2.11 "Participant" means any director who is a member of the Board of
Directors of the Bank on the Effective Date of this Plan and who is
designated by the Board of Directors to participate in the Plan. Any
Participant subject to a Removal For Cause from the Board of Directors
shall no longer be a Participant in the Plan and shall have no rights
to any benefits covered by this Agreement.
2.12 "Removal For Cause" shall mean termination of the Participant's service
on the Board of Directors prior to his designation as a Director
Emeritus, due to the Participant's personal dishonesty, willful
misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any
law, rule, regulation (other than
-2-
traffic violations or infractions), or final cease-and-desist order, or
gross negligence in matters of material importance to the Bank.
2.13 "Spouse" means the individual to whom the Participant is legally
married at the time of the Participant's death.
SECTION III
BENEFITS
3.1 Director Emeritus. A Participant shall become a Director Emeritus if
such Participant retires from service on the Board of Directors after
having attained the eligibility requirements of sixty (60) years of age
with twenty (20) years of continuous service on the Board of Directors.
Such Director Emeritus shall be entitled to receive the Director
Emeritus Fee during the Benefit Period in exchange for his Advisory
Services. The Beneficiary of a Director Emeritus shall receive the
Burial Benefit on behalf of the Director Emeritus. No other benefits
shall be due to the Participant (or his Beneficiary) under this
Agreement.
3.2 Participant. A Participant not receiving benefits under Subsection 3.1
above, shall be covered by this Subsection 3.2. The Beneficiary of such
Participant shall receive the Burial Benefit on the Participant's
behalf. No other benefits shall be due to the Participant (or his
Beneficiary) under this Agreement.
SECTION IV
ADMINISTRATION
The Board of Directors of the Bank shall be the Administrator of the
Plan. All answers to questions of interpretation regarding the Plan which are
issued by the Board of Directors shall be final and binding upon all persons
having an interest in the Plan.
SECTION V
REGULATORY EXCLUSIONS
Notwithstanding anything herein to the contrary, any payments made
hereunder pursuant to the Plan, or otherwise, shall be subject to and
conditioned upon compliance with 12 X.X.X.xx. 1828(k) and any regulations
promulgated thereunder.
Notwithstanding any other provision, any non-vested Director Emeritus
Fees shall not be paid to a Participant who has been removed from the Board of
Directors pursuant to 12 X.X.X.xx. 1818(e).
-3-
SECTION VI
PARTICIPANT'S RIGHT TO ASSETS
The rights of the Participant, any Beneficiary, or any other person
claiming through the Participant under this Plan, shall be solely those of an
unsecured general creditor of the Bank. The Participant, him Beneficiary, or any
other person claiming through the Participant, shall only have the right to
receive from the Bank those payments so specified under this Plan. The
Participant agrees that he, his Beneficiary, or any other person claiming
through him shall have no rights or interests whatsoever in any asset of the
Bank, including any insurance policies or contracts, which the Bank may possess
or obtain to informally fund this Plan. Any asset used or acquired by the Bank
in connection with the liabilities it has assumed under this Plan, unless
expressly provided herein, shall not be deemed to be held under any trust for
the benefit of the Participant or his Beneficiaries, nor shall any asset be
considered security for the performance of the obligations of the Bank. Any such
asset shall be and remain, a general, unpledged, and unrestricted asset of the
Bank.
SECTION VII
RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any
fund or money with which to pay its obligations under this Plan. The
Participant, his Beneficiary or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as any
other creditor having a general claim for matured and unpaid compensation. The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Plan or to refrain from the
same and to determine the extent, nature, and method of such asset purchases.
Should the Bank decide to purchase assets such as life insurance, mutual funds,
disability policies or annuities, the Bank reserves the absolute right, in its
sole discretion, to terminate such assets at any time, in whole or in part. At
no time shall the Participant be deemed to have any lien, right, title or
interest in or to any specific investment or to any assets of the Bank. If the
Bank elects to invest in a life insurance, disability or annuity policy upon the
life of the Participant, then the Participant shall assist the Bank by freely
submitting to a physical examination and by supplying such additional
information necessary to obtain such insurance or annuities.
SECTION VIII
ALIENABILITY AND ASSIGNMENT PROHIBITION
Neither the Participant nor any Beneficiary under this Plan shall have
any power or right to transfer, assign, anticipate, hypothecate, mortgage,
commute, modify or otherwise encumber in advance any of the benefits payable
hereunder, nor shall any of said benefits be subject to seizure for the payment
of any debts, judgments, alimony or separate maintenance owed by the Participant
or his Beneficiary, nor be transferable by operation of law in the event of
bankruptcy, insolvency or otherwise. In the event the Participant or any
Beneficiary attempts assignment, communication,
-4-
hypothecation, transfer or disposal of the benefits hereunder, the Bank's
liabilities shall forthwith cease and terminate.
SECTION IX
CLAIMS PROCEDURE AND ARBITRATION
In the event that benefits under this Plan are not paid to the
Participant (or to his Beneficiary in the case of the Participant's death) and
such claimants feel they are entitled to receive such benefits, then a written
claim must be made to the Administrator within sixty (60) days from the date
payments are refused. The Administrator shall review the written claim and, if
the claim is denied, in whole or in part, it shall provide in writing, within
ninety (90) days of receipt of such claim, the specific reasons for such denial,
reference to the provisions of this Plan upon which the denial is based, and any
additional material or information necessary to perfect the claim. Such writing
by the Administrator shall further indicate the additional steps which must be
undertaken by claimants if an additional review of the claim denial is desired.
If claimants desire a second review, they shall notify the
Administrator in writing within sixty (60) days of the first claim denial.
Claimants may review this Plan, any documents relating thereto and submit any
issues and comments, in writing, they may feel appropriate. In its sole
discretion, the Administrator shall then review the second claim and provide a
written decision within sixty (60) days of receipt of such claim. This decision
shall state the specific reasons for the decision and shall include reference to
specific provisions of this Plan upon which the decision is based. If such
determination is favorable to the claimant, it shall be binding and conclusive.
If such determination is adverse to such claimant, it shall be binding and
conclusive unless the claimant (i) notifies the Administrator within 90 days
after receipt by the claimant of the Administrator's determination, that the
claimant intends to institute legal proceedings challenging the determination of
the Administrator, and (ii) actually institutes such legal proceedings within
180 days of receipt by the claimant of the Administrator's determination.
SECTION X
LIMITATIONS ON LIABILITY
Notwithstanding any of the preceding provisions of the Plan, no
individual acting as an employee or agent of the Bank, or as a member of the
Board of Directors, shall be liable to the Participant or any other person for
any claim, loss, liability or expense incurred in connection with the Plan,
except that in the event that the Bank denies a claim for a benefit hereunder
and it is later determined that such benefit is due and payable to Participant,
either under the procedures provided for herein or by a court of appropriate
jurisdiction or otherwise, then Participant shall be entitled to reimbursement
by the Bank of any cost incurred by Participant in obtaining such benefit,
including reasonable attorneys' fees.
-5-
SECTION XI
SUCCESSORS AND ASSIGNS
This Plan shall be a contractual obligation of any successor(s) to the
Bank and shall be legally enforceable as if it were in force by the Bank at all
times.
SECTION XII
GOVERNING LAW
This Plan shall be governed and construed in accordance with the laws
of the state of Indiana.
SECTION XIII
SEVERABILITY
In the event any provision of this Plan shall be held illegal, invalid
or unenforceable such holding or determination shall not invalidate or render
unenforceable any other provision herein.
SECTION XIV
GENDER
Whenever in this Plan words are used in the masculine or neuter gender,
they shall be read and construed as in the masculine, feminine, or neuter
gender, whenever they should so apply.
SECTION XV
HEADING
Headings and sub-headings in this Plan are inserted for reference and
convenience only and shall not be deemed a part of this Plan.
SECTION XVI
AMENDMENT/TERMINATION
The Board of Directors may amend, modify, suspend or terminate this
Plan at any time, provided, however, that any amendment, modification,
suspension or termination shall not affect the rights of participants to
payments to which they are otherwise entitled pursuant to Section III of the
Plan.
-6-
SECTION XVII
EXECUTION
17.1 This Plan 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 Plan.
17.2 This Plan shall be executed in triplicate, each copy of which, when so
executed and delivered, shall be an original, but all three copies
together shall constitute one and the same instrument.
[Remainder of page intentionally left blank]
-7-
IN WITNESS WHEREOF, the Bank and the Participant have caused this Plan
to be executed on this 18th day of March, 1996.
FIRST FEDERAL SAVINGS BANK OF XXXXXX
By: /s/ Xxxxxx X. Xxxxx
President
(Title)
Date
By: /s/ Xxxx Xxxxxx
Participant
March 18, 1997
Date
-8-
FIRST AMENDMENT
TO THE
DIRECTOR EMERITUS AGREEMENT
OF
FIRST FEDERAL SAVINGS BANK OF MARION
MARION, INDIANA
This First Amendment ("Amendment"), dated the 1st day of December, 1996, hereby
amends the Director Emeritus Agreement ("Agreement") dated March 1, 1996,
between First Federal Savings Bank of Xxxxxx and Xxxx X. Xxxxxx as follows:
The following Section II is added to the Agreement with all subsequent sections
renumbered accordingly:
SECTION II
ESTABLISHMENT OF RABBI TRUST
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held, managed and invested, pursuant to the
agreement which establishes such rabbi trust (the "rabbi trust agreement"). The
Bank intends to make a contribution or contributions to the rabbi trust to
provide the Bank with a source of funds to assist it in meeting obligations
under this Agreement. The trust assets shall be subject to the claims of the
Bank's creditors in the event of the Bank's "Insolvency" as defined in the rabbi
trust agreement, until the trust assets are paid to the Director and his
Beneficiary in such manner and at such times as specified in this Agreement.
Contribution(s) to the rabbi trust shall be made in accordance with the rabbi
trust agreement.
IN WITNESS WHEREOF, the Bank has caused this Amendment to be executed
in triplicate, the day and year written here above:
FIRST FEDERAL SAVINGS BANK OF XXXXXX
By: /s/ Xxxxxx X. Xxxxx
Title: Executive Vice President
-9-
