DEFERRED COMPENSATION AGREEMENT FOR KIRBY KING FIRST FEDERAL SAVINGS BANK EVANSVILLE, IN OCTOBER 1, 2005 Financial Institution Consulting Corporation Memphis, Tennessee 38117 WATS: 1-800-873-0089 FAX: (901) 684-7414
FOR
XXXXX
XXXX
FIRST
FEDERAL SAVINGS BANK
EVANSVILLE,
IN
OCTOBER
1, 2005
Financial
Institution Consulting Corporation
000
Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxx 00000
WATS:
0-000-000-0000
FAX:
(000) 000-0000
(000)
000-0000
FOR
XXXXX XXXX
This
Deferred Compensation Agreement (the "Agreement"), effective as of October1,
2005, formalizes the understanding by and between First Federal Savings Bank
(the "Bank"), a federal stock savings bank having its principal place of
business in Indiana, and Xxxxx Xxxx (hereinafter referred to as "Executive").
All prior non-qualified deferred compensation agreements, including any and
all
Joinder Agreements, with respect to Executive and First Federal Savings Bank,
are hereby superceded and replaced by this Agreement
W
I T N E S S E T H :
WHEREAS,
the
Executive serves the Bank as an officer; and
WHEREAS,
the
Bank recognizes the valuable services heretofore performed by the Executive
and
wishes to encourage his continued service; and
WHEREAS,
the
Executive wishes to be assured that he will be entitled to a certain amount
of
additional compensation for some definite period of time from and after
retirement from active service with the Bank or other termination of service
and
wishes to provide his beneficiary with benefits from and after death; and
WHEREAS,
the
Bank and the Executive wish to provide the terms and conditions upon which
the
Bank shall pay such additional compensation to the Executive after retirement
or
other termination of service and/or death benefits to his beneficiary after
death; and
WHEREAS,
the
Bank has adopted this Deferred Compensation Agreement which controls all issues
relating to benefits as described herein and;
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Executive agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
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1.1
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"Accrued
Benefit Account" shall be represented
by
the bookkeeping entries required to record the Executive=s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Executive or any
Beneficiary.
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1.2
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"Act"
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
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1.3
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AAdministrator@
means the Bank.
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1.4
|
"Bank"
means The First Federal Savings Bank and any successor
thereto.
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1.5
|
"Beneficiary"
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Executive=s
benefits are payable. If no Beneficiary is so designated, then the
Executive=s
Spouse, if living, will be deemed the Beneficiary. If the
Executive=s
Spouse is not living, then the Children of the Executive will be
deemed
the Beneficiaries and will take on a per stirpes basis. If there
are no
Children, then the Estate of the Executive will be deemed the
Beneficiary.
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1.6
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"Benefit
Age" means the Executive’s sixty-fifth (65th)
birthday.
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1.7
|
"Benefit
Eligibility Date" means the date on which the Executive is entitled
to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following the attainment of
the
Executives’ Benefit Age.
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1.8
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"Board
of Directors" means the board of Directors of the
Bank.
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1.9
|
"Cause"
means termination of the Executive=s
service to the Bank due to: (i) actions or inactions which constitute
a
breach of the bylaws of the Bank or (ii) the Executive=s
personal dishonesty, willful misconduct, willful malfeasance, breach
of
fiduciary duty involving personal profit, intentional failure to
perform
stated duties, willful violation of any law, rule, regulation (other
than
traffic violations or similar offenses), or final cease-and-desist
order,
material breach of any provision of this Plan, or gross negligence
in
matters of material importance to the
Bank.
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1.10
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AChange
in Control@
of
the Bank shall mean and include the
following:
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(1)
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a
Change in Control of a nature that would be required to be reported
in
response to Item 1(a) of the current report of Form 8-K, as in effect
on
the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the AExchange
Act@);
or
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(2)
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a
change in control of the Bank within the meaning of 12 C.F.R. 574.4;
or
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(3)
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a
Change in Control at such time
as
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(i)
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any
Aperson@
(as the term is used in sections 13(d) and 14(d) of the Exchange
Act) is
or becomes the Abeneficial
owner@
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Bank representing Twenty Percent (20.0%) or
more of
the combined voting power of the Bank=s
outstanding securities ordinarily having the right to vote at the
election
of Executives, except for (i) any stock of the Bank purchased by
the
Holding Company in connection with the conversion of the Bank to
stock
form, and (ii) any stock purchased by the Bank=s
Employee Stock Ownership Plan and/or trust;
or
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(ii)
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individuals
who constitute the board of directors on the date hereof (the AIncumbent
Board@)
cease for any reason to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the date hereof
whose
election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for
election
by the Bank=s
stockholders was approved by the Bank=s
Nominating Committee which is comprised of members of the Incumbent
Board,
shall be, for purposes of this clause (ii), considered as though
he were a
member of the Incumbent Board; or
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(iii)
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merger,
consolidation, or sale of all or substantially all of the assets
of the
bank occurs; or
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(iv)
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a
proxy statement is issued soliciting proxies from the members (or
stockholders) of the Bank by someone other than the current management
of
the Bank, seeking member (or stockholder) approval of a plan of
reorganization, merger, or consolidation of the Bank with one or
more
corporations as a result of which the outstanding shares of the class
of
the Bank=s
securities are exchanged for or converted into cash or property or
securities not issued by the Bank.
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For
purposes of this Subsection 1.10, the term Astockholder(s)@
and
Amembers@
shall be
considered one and the same. For purposes of this Subsection 1.10, the term
AHolding
Company@
shall
mean the holding company (including any successor thereto) organized to acquire
the capital stock of the Bank upon the Bank=s
conversion from mutual to stock form.
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1.11
|
"Children"
means all natural or adopted children of the Executive and issue
of any
predeceased child or children.
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1.12
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"Code"
means the Internal Revenue Code of 1986, as amended from time to
time.
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1.13
|
"Contribution(s)"
means those annual total contributions which the Bank is required
to make
to the Retirement Income Trust Fund on behalf of the Executive in
accordance with Subsection 2.1(a) and in the amounts set forth in
Exhibit
A of the Agreement. Such Contributions, for the first Plan Year,
shall
include any and all amounts accrued by the Bank to pay the benefits
promised to the Executive under any prior non-qualified deferred
compensation agreements including any Joinder Agreements previously
executed by the Bank and the Executive.
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1.14
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(a)
"Disability Benefit" means the benefit payable to the Executive following
a determination, in accordance with Subsection 6.1(a), that he is
no
longer able, properly and satisfactorily, to perform his duties at
the
Bank.
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(b)
"Disability Benefit-Supplemental" (if applicable) means the benefit
payable to the Executive=s
Beneficiary upon the Executive=s
death in accordance with Subsection 6.1(b).
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1.15
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"Effective
Date" of this Agreement shall be October 1,
2005.
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1.16
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"Estate"
means the estate of the Executive.
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1.17
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"Interest
Factor" means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
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1.18
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"Payout
Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing
for a
period of one hundred eighty (180) months.
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1.19
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"Phantom
Contributions" means those annual Contributions which the Bank is
no
longer required to make on behalf of the Executive to the Retirement
Income Trust Fund. Rather, once the Executive has exercised the withdrawal
rights provided for in Subsection 2.2, the Bank shall be required
to
record the annual amounts set forth in Exhibit A of the Agreement
in the
Executive=s
Accrued Benefit Account, pursuant to Subsection 2.1.
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1.20
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"Plan
Year" shall mean the twelve (12) month period commencing January
1 and
ending December 31.
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1.21
|
"Retirement
Income Trust Fund" means the trust fund account established by the
Executive and into which annual Contributions will be made by the
Bank on
behalf of the Executive pursuant to Subsection 2.1. The contractual
rights
of the Bank and the Executive with respect to the Retirement Income Trust
Fund shall be outlined in a separate writing to be known as the Xxxxx
Xxxx
Grantor Trust agreement.
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1.22
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ASpouse@
means the individual to whom the Executive is legally married at
the time
of the Executive=s
death, provided, however, that the term ASpouse@
shall not refer to an individual to whom the Executive is legally
married
at the time of death if the Executive and such individual have entered
into a formal separation agreement or initiated divorce
proceedings.
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1.23
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"Supplemental
Retirement Income Benefit" means an annual amount (before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom Contributions have been actuarially determined, using
the
assumptions set forth in Exhibit A, in order to fund for the projected
Supplemental Retirement Income Benefit. The Supplemental Retirement
Income
Benefit for which Contributions (or Phantom Contributions) are being
made
(or recorded) is set forth in Exhibit A.
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SECTION
II
BENEFIT
FUNDING
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2.1
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(a)
Retirement
Income Trust Fund and Accrued Benefit Account.
The Executive shall establish the Xxxxx Xxxx Grantor Trust into which
the
Bank shall be required to make annual Contributions on the
Executive=s
behalf, pursuant to Exhibit A and this Section II of the Agreement.
A
trustee shall be selected by the Executive. The trustee shall maintain
an
account, separate and distinct from the Executive=s
personal contributions, which account shall constitute the Retirement
Income Trust Fund. The trustee shall be charged with the responsibility
of
investing all contributed funds. Distributions from the Retirement
Income
Trust Fund of the Xxxxx Xxxx Grantor Trust may be made by the trustee
to
the Executive, for purposes of payment of any income or employment
taxes
due and owing on Contributions by the Bank to the Retirement Income
Trust
Fund and on any taxable earnings associated with such Contributions
which
the Executive shall be required to pay from year to year, under applicable
law, prior to actual receipt of any benefit payments from the Retirement
Income Trust Fund. If the Executive exercises his withdrawal rights
pursuant to Subsection 2.2, the Bank=s
obligation to make Contributions to the Retirement Income Trust Fund
shall
cease and the Bank=s
obligation to record Phantom Contributions in the Accrued Benefit
Account
shall immediately commence pursuant to Exhibit A and this Section
II of
the Agreement. To the extent this Agreement is inconsistent with
the Xxxxx
Xxxx Grantor Trust Agreement, the Xxxxx Xxxx Grantor Trust Agreement
shall
supersede this Agreement.
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The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within
seventy-five (75) days of establishment of such trust, and (ii) within the
first
thirty (30) days of the beginning of each subsequent Plan Year. Phantom
Contributions, if any, shall be recorded in the Accrued Benefit Account within
the first thirty (30) days of the beginning of each applicable Plan Year.
Phantom Contributions shall accrue interest at a rate equal to the Interest
Factor, during the Payout Period, until the balance of the Accrued Benefit
Account has been fully distributed.
The
Administrator shall review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A (i) within thirty (30) days prior
to
the close of each Plan Year and (ii) if the Executive is employed by the Bank
until attaining Benefit Age, on or immediately before attainment of such Benefit
Age. Such review shall consist of an evaluation of the accuracy of all
assumptions used to establish the schedule of Contributions (or Phantom
Contributions). Provided that (i) the Executive has not exercised his withdrawal
rights pursuant to Subsection 2.2 and (ii) the investments contained in the
Retirement Income Trust Fund have been deemed reasonable by the Bank, the
Administrator shall prospectively amend or supplement the schedule of
Contributions provided for in Exhibit A should the Administrator determine
during any such review that an
increase
in or
supplement
to
the
schedule of Contributions is necessary in order to adequately fund the
Retirement Income Trust Fund so as to provide an annual benefit (or to provide
the lump sum equivalent of such benefit, as applicable) equal to the
Supplemental Retirement Income Benefit, on an after-tax basis, commencing at
Benefit Age and payable for the duration of the Payout Period.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually
If
the
Executive does not exercise any withdrawal rights pursuant to Subsection 2.2,
the annual Contributions to the Retirement Income Trust Fund shall continue
each
year, unless this Subsection 2.1(b) specifically states otherwise, until the
earlier of (i) the last Plan Year that Contributions are required pursuant
to
Exhibit A, or (ii) the Plan Year of the Executive's termination of
service.
(2)
Termination
Following a Change in Control
If
the
Executive does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within thirty-six (36) months
by either (i) the Executive's involuntary termination of service, or (ii)
Executive's voluntary termination of service after: (A) a material change in
the
Executive's function, duties, or responsibilities, which change would cause
the
Executive's position to become one of lesser responsibility, importance, or
scope from the position the Executive held at the time of the Change in Control,
(B) a relocation of the Executive's principal place of service by more than
thirty (30) miles from its location prior to the Change in Control, or (C)
a
material reduction in the benefits and perquisites to the Executive from those
being provided at the time of the Change in Control, the Contributions as set
forth on Schedule A shall continue to be required of the Bank. The Bank shall
be
required to make an immediate lump sum Contribution to the Executive's
Retirement Income Trust Fund in an amount equal to: (i) the full Contribution
required for the Plan Year in which such termination occurs, if not yet made,
plus (ii) the present value (computed using a discount rate equal to the
Interest Factor) of all remaining Contributions to the Retirement Income Trust
Fund; provided, however, if necessary an additional amount shall be contributed
to the Retirement Income Trust Fund which is sufficient to provide the Executive
with after-tax benefits (assuming a constant tax rate equal to the rate in
effect as of the date of Executive=s
termination) beginning at Benefit Age following such termination, equal in
amount to that benefit which would have been payable to the Executive if no
secular trust had been implemented and the benefit obligation had been accrued
under APB Opinion No. 12, as amended by FAS 106.
(3)
Termination
For Cause
If
the
Executive does not exercise his withdrawal rights pursuant to Subsection 2.2,
and is terminated for Cause pursuant to Subsection 5.2, no further
Contribution(s) to the Retirement Income Trust Fund shall be required of the
Bank, and if not yet made, no Contribution shall be required for the Plan Year
in which such termination for Cause occurs.
(4)
Voluntary or Involuntary Termination of Service.
If
the
Executive does not exercise his withdrawal rights pursuant to
Subsection 2.2, and the Executive's service with the Bank is voluntarily or
involuntarily terminated for any reason, (excluding termination under 2.1(b)(2)
or (3) above) no further Contribution(s) to the Retirement Income Trust Fund
shall be required of the Bank, and if not yet made, no Contribution shall be
required for the Plan Year in which such termination occurs; provided, however,
that, if necessary, an additional amount shall be contributed to the Retirement
Income Trust Fund which is sufficient to provide the Executive with after-tax
benefits (assuming a constant tax rate equal to the rate in effect as of the
date of Executive=s
termination) beginning at the Executive’s Benefit Age following such
termination, equal in amount to that benefit which would have been payable
to
the Executive if no secular trust had been implemented and the benefit
obligation had been accrued under APB Opinion No. 12, as amended by FAS 106.
The
additional contribution, if necessary, may be made by the Bank at any time
after
the Executive’s service is terminated but must be made prior to the Executive
reaching his or her Benefit Age.
(5)
Death
During Service.
If
the
Executive does not exercise any withdrawal rights pursuant to
Subsection 2.2, and dies while employed by the Bank, and if, following the
Executive=s
death,
the assets of the Retirement Income Trust Fund are insufficient to provide
the
Supplemental Retirement Income Benefit to which the Executive is entitled,
the
Bank shall be required to make a Contribution to the Retirement Income Trust
Fund in an amount sufficient to provide the Executive’s beneficiary with
benefits equal to the Supplemental Retirement Income Benefit, after taking
into
consideration any payments under any life insurance policies that may have
been
obtained on the Executive=s
life by
the Retirement Income Trust Fund. Such final contribution shall be payable
in a
lump sum to the Retirement Income Trust Fund within thirty (30) days of the
Executive=s
death.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually.
If
the
Executive exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Executive's
Accrued Benefit Account within thirty (30) days of the beginning of each Plan
Year, commencing with the first Plan Year following the Plan Year in which
the
Executive exercises his withdrawal rights. Such Phantom Contributions shall
continue to be recorded annually, unless this Subsection 2.1(c) specifically
states otherwise, until the earlier of (i) the last Plan Year that Phantom
Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of
the
Executive's termination of service.
(2)
Termination
Following a Change in Control
If
the
Executive exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the Plan Year following the Plan Year in which
the Executive first exercises his withdrawal rights. If a Change in Control
occurs at the Bank, and within thirty-six (36) months of such Change in Control,
the Executive's service is either (i) involuntarily terminated, or (ii)
voluntarily terminated by the Executive after: (A) a material change in the
Executive's function, duties, or responsibilities, which change would cause
the
Executive's position to become one of lesser responsibility, importance, or
scope from the position the Executive held at the time of the Change in Control,
(B) a relocation of the Executive's principal place of service by more than
thirty (30) miles from its location prior to the Change in Control, or (C)
a
material reduction in the benefits and perquisites to the Executive from those
being provided at the time of the Change in Control, the Phantom Contribution
set forth below shall be required of the Bank. The Bank shall be required to
record a lump sum Phantom Contribution in the Accrued Benefit Account within
ten
(10) days of the Executive=s
termination of service equal to (i) the full Contribution required for the
Plan
Year in which such termination occurs, if not yet made, plus (ii) the present
value (computed using a discount rate equal to the Interest Factor) of all
remaining Contributions to the Retirement Income Trust Fund.. The amount of
such
final Phantom Contribution shall be actuarially determined based on the Phantom
Contribution required, at such time, in order to provide a benefit via this
Agreement equal in amount to that benefit which would have been payable to
the
Executive if no secular trust had been implemented and the benefit obligation
had been accrued under APB Opinion No. 12, as amended by FAS 106. (Such
actuarial determination shall reflect the fact that amounts shall be payable
from both the Accrued Benefit Account as well as the Retirement Income Trust
Fund and shall also reflect the amount and timing of any withdrawal(s) made
by
the Executive from the Retirement Income Trust Fund pursuant to Subsection
2.2.)
(3)
Termination
For Cause
If
the
Executive is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Executive=s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus interest accrued on such Phantom
Contributions, shall be forfeited.
(4)
Voluntary
and Involuntary
Termination of Service.
If
the
Executive exercises his withdrawal rights pursuant to Subsection 2.2, and the
Executive's service with the Bank is voluntarily or involuntarily terminated
for
any reason (excluding termination under 2.1(c)(2) or (3) above), within thirty
(30) days of such termination of service, no further Phantom Contributions
shall
be required of the Bank. Interest, at a rate equal to the Interest Factor,
shall
accrue on such Phantom Contributions until the Executive’s Benefit Eligibility
Date.
(5)
Death
During Service.
If
the
Executive exercises his withdrawal rights pursuant to Subsection 2.2, and
dies while employed by the Bank, Phantom Contributions included on Exhibit
A
shall be required of the Bank. Such Phantom Contributions shall commence in
the
Plan Year following the Plan Year in which the Executive exercises his
withdrawal rights and shall continue through the Plan Year in which the
Executive dies. The Bank shall also be required to record a final Phantom
Contribution within thirty (30) days of the Executive=s
death.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required at such time (if any), in order
to
provide a benefit via this Agreement equivalent to the Supplemental Retirement
Income Benefit commencing within thirty (30) days of the date the Administrator
receives notice of the Executive=s
death
and continuing for the duration of the Payout Period. (Such actuarial
determination shall reflect the fact that amounts shall be payable from the
Accrued Benefit Account as well as the Retirement Income Trust Fund and shall
also reflect the amount and timing of any withdrawal(s) made by the Executive
pursuant to Subsection 2.2.)
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2.2
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Withdrawals
From Retirement Income Trust Fund.
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Exercise
of withdrawal rights by the Executive pursuant to the Xxxxx Xxxx Grantor Trust
agreement shall terminate the Bank's obligation to make any further
Contributions to the Retirement Income Trust Fund, and the Bank=s
obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall
commence. For purposes of this Subsection 2.2, Aexercise
of withdrawal rights@
shall
mean those withdrawal rights to which the Executive is entitled under Article
III of the Xxxxx Xxxx Grantor Trust agreement and shall exclude any
distributions made by the trustee of the Retirement Income Trust Fund to the
Executive for purposes of payment of income taxes in accordance with Subsection
2.1 of this Agreement and the tax reimbursement formula contained in the trust
document, or other trust expenses properly payable from the Xxxxx Xxxx Grantor
Trust pursuant to the provisions of the trust document.
2.3
Benefits
Payable From Retirement Income Trust Fund
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy or annuity
with the Contributions to and, if applicable, earnings of the Trust, and such
life insurance policy or annuity is intended to continue in force beyond the
Payout Period for the disability or retirement benefits payable from the
Retirement Income Trust Fund pursuant to this Agreement, then the trustee shall
have discretion to determine the portion of the cash value of such policy
available for purposes of annuitizing the Retirement Income Trust Fund (it
being
understood that for purposes of this Section 2.3, Aannuitizing@
does not
mean surrender of such policy and annuitizing of the cash value received upon
such surrender) to provide the disability or retirement benefits payable under
this Agreement, after taking into consideration the amounts reasonably believed
to be required in order to maintain the cash value of such policy to continue
such policy in effect until the death of the Executive and payment of death
benefits thereunder.
SECTION
III
RETIREMENT
BENEFIT
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3.1
|
If
the Executive is employed with the Bank until reaching his Benefit
Age
this Subsection 3.1 shall be controlling with respect to retirement
benefits.
An
actuarial evaluation shall be undertaken at such time as the Executive
attains the Benefit Age for the purpose of determining the sufficiency
of
the Retirement Income Trust Fund Assets to provide the Executive
with the
Supplemental Retirement Income Benefit. If the assets are actuarially
determined to be insufficient to provide the Supplemental Retirement
Income Benefit, then a lump sum contribution will be made in an amount
actuarially sufficient to enable the Executive to receive the full
Supplemental Retirement Income Benefit. In no case will additional
contributions be required.
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In
the
event the Executive dies at any time after attaining his Benefit Age, but prior
to commencement or completion of all monthly payments due and owing hereunder
the trustee of the Retirement Income Trust Fund shall pay to the Executive's
Beneficiary the monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
The
Executive=s
Accrued
Benefit Account (if applicable), measured as of the Executive=s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Executive=s
Benefit
Eligibility Date. In the event the Executive dies at any time after attaining
his Benefit Age, but prior to commencement or completion of all the payments
due
and owing hereunder the Bank shall pay to the Executive=s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
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4.1
|
If
the Executive dies while employed by the Bank this Subsection 4.1
shall be
controlling with respect to pre-retirement death
benefits.
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The
balance of the Executive=s
Retirement Income Trust Fund, measured as of the later of (i) the
Executive=s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be used to provide the Executive’s beneficiary with benefits
actuarially determined to be equal in amount to those the Executive would have
received had the Executive lived until reaching the Benefit Age. Such benefits
shall commence within thirty (30) days of the date the Administrator receives
notice of the Executive=s
death.
The
Executive=s
Accrued
Benefit Account (if applicable), measured as of the later of (i) the
Executive's death or (ii) the date any final lump sum Phantom Contribution
is
recorded in the Accrued Benefit Account pursuant to Subsection 2.1(c), shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Executive's Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Executive=s
death,
or if later, within thirty (30) days after any final lump sum Phantom
Contribution is recorded in the Accrued Benefit Account in accordance with
Subsection 2.1(c).
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGE
|
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause.
In the event the Executive=s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age, for any reason, including a Change in Control, but excluding
(i) any disability related termination for which the Board of Executives
has approved early payment of benefits pursuant to Subsection 6.1,
(ii)
the Executive's pre-retirement death, which shall be covered in Section
IV, (iii) or termination for Cause, which shall be covered in Subsection
5.2, the Executive (or his Beneficiary) shall be entitled to receive
benefits in accordance with this Subsection 5.1. Payments of benefits
pursuant to this Subsection 5.1 shall be made in accordance with
Subsection 5.1 (a) or 5.1 (b) below, as
applicable.
|
(a)
Executive
Lives Until Benefit Age
If
after
such termination, the Executive lives until attaining his Benefit Age, this
Subsection 5.1(a) shall be controlling with respect to retirement
benefits.
An
actuarial evaluation shall be undertaken at such time as the Executive attains
the Benefit Age for the purpose of determining the sufficiency of the Retirement
Income Trust Fund Assets to provide the Executive with the Supplemental
Retirement Income Benefit. If the assets are actuarially determined to be
insufficient to provide the Supplemental Retirement Income Benefit, then a
lump
sum contribution will be made in an amount actuarially sufficient to enable
the
Executive to receive the full Supplemental Retirement Income Benefit. In no
case
will additional contributions be required.
In
the
event the Executive dies at any time after attaining his Benefit Age, but prior
to commencement or completion of all monthly payments due and owing hereunder
the trustee of the Retirement Income Trust Fund shall pay to the Executive's
Beneficiary the monthly installments (or a continuation of the monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
The
Executive=s
Accrued
Benefit Account (if applicable), measured as of the Executive=s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Executive=s
Benefit
Eligibility Date. In the event the Executive dies at any time after attaining
his Benefit Age, but prior to commencement or completion of all the payments
due
and owing hereunder the Bank shall pay to the Executive=s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Executive
Dies Prior to Benefit Age
If
after
such termination, the Executive dies prior to attaining his Benefit Age, this
Subsection 5.1(b) shall be controlling with respect to retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Executive's death,
shall be used to provide the Executive’s beneficiary with benefits actuarially
determined to be equal in amount to those the Executive would have received
had
the Executive lived until reaching the Benefit Age. Such payments shall commence
within thirty (30) days of the date the Administrator receives notice of the
Executive's death.
The
Executive=s
Accrued
Benefit Account (if applicable), measured as of the date of the
Executive=s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Executive=s
death.
|
5.2
|
Termination
For Cause.
|
If
the
Executive is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Executive shall be entitled to receive a benefit
in accordance with this Subsection 5.2.
The
balance of the Executive=s
Retirement Income Trust Fund shall be paid to the Executive in a lump sum on
his
Benefit Eligibility Date. In the event the Executive dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Executive's Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Executive's death.
SECTION
VI
OTHER
BENEFITS
|
6.1
|
(a)
Disability
Benefit.
|
If
the
Executive's service is terminated prior to Benefit Age due to a disability
which
meets the criteria set forth below, the Executive may request to receive the
Disability Benefit in lieu of the retirement benefits available pursuant to
Section 5.1 (which are not available prior to the Executive's Benefit
Eligibility Date).
In
any
instance in which: (i) it is determined by a duly licensed, independent
physician selected by the Bank, that the Executive is no longer able, properly
and satisfactorily, to perform his regular duties as an officer, because of
ill
health, accident, disability or general inability due to age, (ii) the Executive
requests payment under this Subsection in lieu of Subsection 5.1, and (iii)
Board of Executive approval is obtained to allow payment under this Subsection,
in lieu of Subsection 5.1, the Executive shall be entitled to the following
lump
sum benefit(s). The lump sum benefit(s) to which the Executive is entitled
shall
include: (i) the balance of the Retirement Income Trust Fund, plus (ii) the
balance of the Accrued Benefit Account (if applicable). The benefit(s) shall
be
paid within thirty (30) days following the date of the Executive's request
for
such benefit is approved by the Board of Directors. In the event the Executive
dies after becoming eligible for such payment(s) but before the actual
payment(s) is (are) made, his Beneficiary shall be entitled to receive the
benefit(s) provided for in this Subsection 6.1(a) within thirty (30) days of
the
date the Administrator receives notice of the Executive's death.
(b)
Disability
Benefit - Supplemental.
Furthermore,
if Board of Director approval is obtained within thirty (30) days of the
Executive=s
death,
the Bank shall make a direct, lump sum payment to the Executive's Beneficiary
in
an amount equal to the sum of all remaining Contributions (or Phantom
Contributions) set forth in Exhibit A, but not required pursuant to Subsection
2.1(b) (or 2.1(c)) due to the Executive's disability-related termination. Such
lump sum payment, if approved by the Board of Directors, shall be payable to
the
Executive=s
Beneficiary within thirty (30) days of such Board of Director
approval.
|
6.2
|
Additional
Death Benefit - Burial Expense.
|
Upon
the
Executive=s
death,
the Executive=s
Beneficiary shall also be entitled to receive a one-time lump sum death benefit
in the amount of Ten Thousand Dollars ($10,000). This benefit shall be paid
directly from the Bank to the Beneficiary and shall be provided specifically
for
the purpose of providing payment for burial and/or funeral expenses of the
Executive. Such death benefit shall be payable within thirty (30) days of the
date the Administrator receives notice of the Executive=s
death.
The Executive=s
Beneficiary shall not be entitled to such benefit if the Executive is terminated
for Cause prior to death.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Executive shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator, and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
EXECUTIVE'S
RIGHT TO ASSETS
The
rights of the Executive, any Beneficiary, or any other person claiming through
the Executive under this Agreement, shall be solely those of an unsecured
general creditor of the Bank. The Executive, the Beneficiary, or any other
person claiming through the Executive, shall only have the right to receive
from
the Bank those payments or amounts so specified under this Agreement. The
Executive 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 Agreement. Any asset used or acquired by the
Bank
in connection with the liabilities it has assumed under this Agreement shall
not
be deemed to be held under any trust for the benefit of the Executive or his
Beneficiaries, unless such asset is contained in the rabbi trust described
in
Section XII of this Agreement. Any such asset shall be and remain a general,
unpledged asset of the Bank in the event of the Bank=s
insolvency.
SECTION
IX
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 Agreement, other than those
Contributions required to be made to the Retirement Income Trust Fund. The
Executive, his Beneficiaries 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 Agreement 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 replace such assets from time to time or
to
terminate its investment in such assets at any time, in whole or in part. At
no
time shall the Executive 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
Executive, then the Executive 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
X
ACT
PROVISIONS
|
10.1
|
Named
Fiduciary and Administrator.
The Bank, as Administrator, shall be the Named Fiduciary of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein. The Administrator may delegate to others certain aspects
of the
management and operational responsibilities of the Agreement, including
the employment of advisors and the delegation of ministerial duties
to
qualified individuals.
|
|
10.2
|
Claims
Procedure and Arbitration.
In the event that benefits under this Agreement are not paid to the
Executive (or to his Beneficiary in the case of the Executive'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,
its
specific reasons for such denial, reference to the provisions of
this
Agreement 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
Agreement or 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 Agreement upon which the decision is based.
If
claimants continue to dispute the benefit denial based upon completed
performance of this Plan and the Agreement or the meaning and effect of the
terms and conditions thereof, then claimants may submit the dispute to
mediation, administered by the American Arbitration Association (AAAA@)
(or a
mediator selected by the parties) in accordance with the AAA=s
Commercial Mediation Rules. If mediation is not successful in resolving the
dispute, it shall be settled by arbitration administered by the AAA under its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
SECTION
XI
MISCELLANEOUS
|
11.1
|
No
Effect on Employment Rights.
Nothing contained herein will confer upon the Executive the right
to be
retained in the service of the Bank nor limit the right of the Bank
to
discharge or otherwise deal with the Executive without regard to
the
existence of the Agreement.
|
|
11.2
|
State
Law.
The Agreement is established under, and will be construed according
to,
the laws of the state of Indiana, to the extent such laws are not
preempted by the Act and valid regulations published
thereunder.
|
|
11.3
|
Severability.
In the event that any of the provisions of this Agreement or portion
thereof, are held to be inoperative or invalid by any court of competent
jurisdiction, then: (1) insofar as is reasonable, effect will be
given to
the intent manifested in the provisions held invalid or inoperative,
and
(2) the validity and enforceability of the remaining provisions will
not
be affected thereby.
|
|
11.4
|
Incapacity
of Recipient.
In the event the Executive is declared incompetent and a conservator
or
other person legally charged with the care of his person or Estate
is
appointed, any benefits under the Agreement to which such Executive
is
entitled shall be paid to such conservator or other person legally
charged
with the care of his person or Estate.
|
|
11.5
|
Unclaimed
Benefit.
The Executive shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Executive
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Executive's benefit payment(s) until the
location of the Executive is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the Executive
until the expiration of thirty-six (36) months.
|
|
11.6
|
Limitations
on Liability.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a member
of
the Board of Executives shall be personally liable to the Executive
or any
other person for any claim, loss, liability or expense incurred in
connection with the Agreement.
|
|
11.7
|
Gender.
Whenever in this Agreement 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.
|
|
11.8
|
Effect
on Other Corporate Benefit Agreements.
Nothing contained in this Agreement shall affect the right of the
Executive to participate in or be covered by any qualified or
non-qualified pension, profit sharing, group, bonus or other supplemental
compensation or fringe benefit agreement constituting a part of the
Bank's
existing or future compensation
structure.
|
|
11.9
|
Suicide.
Notwithstanding anything to the contrary in this Agreement, if the
Executive's death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of this Agreement, all further
Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon
cease, and no Contribution (or Phantom Contribution) shall be made
by the
Bank to the Retirement Income Trust Fund (or recorded in the Accrued
Benefit Account) in the year such death resulting from suicide occurs
(if
not yet made). All benefits other than those available from previous
Contributions to the Retirement Income Trust Fund under this Agreement
shall be forfeited, and this Agreement shall become null and void.
The
balance of the Retirement Income Trust Fund, measured as of the
Executive's date of death, shall be paid to the Beneficiary within
thirty
(30) days of the date the Administrator receives notice of the Executive's
death.
|
|
11.10
|
Inurement.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Executive, his successors,
heirs, executors, administrators, and
Beneficiaries.
|
|
11.11
|
Headings.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
|
11.12
|
Establishment
of a Rabbi Trust.
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held therein, subject to the claims
of
the Bank's creditors in the event of the Bank's "Insolvency" (as
defined
in such rabbi trust agreement), until the contributed assets are
paid to
the Executive and/or his Beneficiary in such manner and at such times
as
specified in this Agreement. It is the intention of the Bank that
the
contribution or contributions to the rabbi trust shall provide the
Bank
with a source of funds to assist it in meeting the liabilities of
this
Agreement.
|
11.13
Source
of Payments.
All
payments provided in this Agreement shall be timely paid in cash or check from
the general funds of the Bank or the assets of the rabbi trust, to the extent
made from the Accrued Benefit Account.
SECTION
XII
AMENDMENT/PLAN
TERMINATION
|
12.1
|
Amendment
or Plan Termination.
The Bank intends this Agreement to be permanent, and the Agreement
may not
be amended or terminated without the express written consent of the
parties. Any amendment or termination of the Agreement shall be made
pursuant to a resolution of the Board of Directors of the Bank and
shall
be effective as of the date of such resolution. No amendment or
termination of the Agreement shall directly or indirectly deprive
the
Executive of all or any portion of the Executive's Retirement Income
Trust
Fund (and Accrued Benefit Account, if applicable) as of the effective
date
of the resolution amending or terminating the
Agreement.
|
Notwithstanding
the above, if the Executive does not exercise any withdrawal rights pursuant
to
Subsection 2.2, and if at any time after the final Contribution immediately
prior to Executive’s Benefits Eligibility Date or the date that triggers
distribution is made to the Retirement Income Trust Fund the Executive elects
to
terminate the Retirement Income Trust Fund and receive a distribution of the
assets of the Retirement Income Trust Fund, then upon such distribution this
Agreement shall terminate.
|
12.2
|
Executive's
Right to Payment Following Plan Termination.
In the event of a termination of the Agreement, the Executive shall
be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and
Accrued Benefit Account, if applicable). However, if such termination
is
done in anticipation of or pursuant to a AChange
in Control,@
such balance(s) shall include the final Contribution (or final Phantom
Contribution) made (or recorded) pursuant to Subsection 2.1(b)(2)
(or
2.1(c)(2)). Payment of the balance(s) of the Executive's Retirement
Income
Trust Fund (and Accrued Benefit Account, if applicable) shall not
be
dependent upon his continuation of service with the Bank following
the
termination date of the Agreement. Payment of the balance(s) of the
Executive's Retirement Income Trust Fund (and Accrued Benefit Account,
if
applicable) shall be made in a lump sum within thirty (30) days of
the
date of termination of the
Agreement.
|
SECTION
XIII
EXECUTION
|
13.1
|
This
Agreement and the Xxxxx Xxxx Grantor Trust Agreement set 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 Agreement and the Xxxxx Xxxx Grantor Trust Agreement.
|
|
13.2
|
This
Agreement shall be executed in triplicate, each copy of which, when
so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
|
IN
WITNESS WHEREOF, the Bank and the Executive have caused this Agreement to be
executed on the day and date first above written.
| ATTEST: |
|
|
(BANK):
|
|
| /s/ Xxxx Xxxxx |
|
By:
|
/s/ Xxxxxxx X. Head | |
|
|
Title:
|
President and CEO | ||
| WITNESS: |
EXECUTIVE:
|
|||
| /s/ Xxxx Xxxxx | /s/ Xxxxx Xxxx |
CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
Interest
Factor - for purposes of:
|
a.
|
the
Accrued Benefit Account - shall be seven percent (7%) per annum,
compounded monthly.
|
|
b.
|
the
Retirement Income Trust Fund - for purposes of annuitizing the balance
of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the Xxxxx
Xxxx Grantor Trust
shall exercise discretion in selecting the appropriate rate given
the
nature of the investments contained in the Retirement Income Trust
Fund
and the expected return associated with the investments. For these
purposes, if the trustee of the Retirement Income Trust Fund has
purchased
a life insurance policy, the trustee shall have the discretion to
determine the portion of the cash value of such policy available
for
purposes of annuitizing the Retirement Income Trust Fund, in accordance
with Section 2.3 of the Agreement.
|
|
2.
|
The
amount of the annual Contributions (or Phantom Contributions) to
the
Retirement Income Trust Fund (or Accrued Benefit Account) has been
based
on the annual incremental accounting accruals which would be required
of
the Bank through the earlier of the Executive=s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to seven percent
(7%);
provided, however, that if there is a Change in Control, the following
formulae shall be used: In the event a life insurance product is
purchased, 150 basis points less than the then current crediting
rate on
the policy or in the event an annuity product is purchased, 200 basis
points less than the then current mean crediting rate on the annuity,
in
order to provide the unfunded, non-qualified Supplemental Retirement
Income Benefit.
|
|
3.
|
Supplemental
Retirement Income Benefit means an actuarially determined annual
amount
equal to Seventy Thousand Seven Hundred and Four Dollars ($70,704)
at age
65 if paid entirely from the Accrued Benefit Account or Forty-Eight
Thousand and Seventy-Nine Dollars ($48,079) at age 65 if paid from
the
Retirement Income Trust Fund.
|
The
Supplemental Retirement Income Benefit:
|
!
|
the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The amount
of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount and
timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
|
Exhibit
A
4.
Schedule
of Annual Gross Contributions/Phantom Contributions
(Xxxxx Xxxx)
|
Plan
Year
|
Amount
|
|||
|
2005
|
58,592
|
|||
|
2006
|
20,990
|
|||
|
2007
|
23,717
|
|||
|
2008
|
26,729
|
|||
|
2009
|
30,058
|
|||
|
2010
|
33,722
|
|||
|
2011
|
37,762
|
|||
|
2012
|
42,211
|
|||
|
2013
|
47,100
|
|||
|
2014
|
52,478
|
|||
|
2015
|
58,387
|
|||
|
2016
|
64,883
|
|||
|
2017
|
72,006
|
|||
|
2018
|
79,819
|
|||
|
2019
|
48,414
|
Exhibit
A
- Cont=d
