Exhibit 10.9
EUREKA HOMESTEAD
DIRECTOR RETIREMENT PLAN
This
Director Retirement Plan (the “Agreement”) by
and between Eureka Homestead (the “Bank”), and Xxxx X. Xxxxxx, Xx. (the “Director”), effective as of the
1st day of January, 2015, formalizes the agreements and understanding between the Bank and the Director.
WITNESSETH:
WHEREAS,
the Director is a member of the Bank’s board of directors;
WHEREAS,
the Bank recognizes the valuable services the Director has performed for the Bank and wishes to encourage the Director continued
service and to provide the Director with additional incentive to achieve corporate objectives;
WHEREAS,
the Bank wishes to provide the terms and conditions upon which the Bank shall pay additional retirement benefits to the Director;
WHEREAS,
the Bank and the Director intend this Agreement shall at all times be administered and interpreted in compliance with Code Section
409A; and
NOW
THEREFORE, in consideration of the premises and of the
mutual promises herein contained, the Bank and the Director agree as follows:
ARTICLE 1
DEFINITIONS
For the purpose of
this Agreement, the following phrases or terms shall have the indicated meanings:
1.1 “Accrued
Benefit” means the dollar value of the liability that should be accrued by the Bank, under Generally Accepted Accounting
Principles, for the Bank’s obligation to the Director under this Agreement, calculated by applying Accounting Standards Codification
710-10.
1.2 “Administrator”
means the Board or its designee.
1.3 “Affiliate”
means any business entity with whom the Bank would be considered a single employer under Code Section 414(b) and 414(c). Such
term shall be interpreted in a manner consistent with the definition of “service recipient” contained in Code Section
409A.
1.4 “Beneficiary”
means the person or persons designated in writing by the Director to receive benefits hereunder in the event of the Director’s
death.
1.5 “Board”
means the Board of Directors of the Bank.
1.6 “Cause”
means any of the following acts or circumstances: gross negligence or gross neglect of duties to the Bank; conviction of a felony
or of a gross misdemeanor involving moral turpitude in connection with the Director’s service with the Bank; or fraud, disloyalty,
dishonesty or willful violation of any law or significant Bank policy committed in connection with the Director’s service
and resulting in a material adverse effect on the Bank.
1.7 “Change
in Control” means a change in the ownership or effective control of the Bank, or in the ownership of a substantial portion
of the assets of the Bank, as such change is defined in Code Section 409A and regulations thereunder.
1.8 “Claimant”
means a person who believes that he or she is being denied a benefit to which he or she is entitled hereunder.
1.9 “Code”
means the Internal Revenue Code of 1986, as amended.
1.10 “Disability”
means a condition of the Director whereby the Director either: (i) is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected
to last for a continuous period of not less than 12 months, or (ii) is, by reason of any medically determinable physical or mental
impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months,
receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees
of the Bank. The Administrator will determine whether the Director has incurred a Disability based on its own good faith determination
and may require the Director to submit to reasonable physical and mental examinations for this purpose. The Director will also
be deemed to have incurred a Disability if determined to be totally disabled by the Social Security Administration or in accordance
with a disability insurance program, provided that the definition of disability applied under such disability insurance program
complies with the initial sentence of this Section.
1.11 “Early
Involuntary Termination” means that the Director, prior to Normal Retirement Age, has experienced a Separation from Service,
following receipt of a written notification from the Bank that such Separation from Service has occurred for reasons other than
Cause, Disability or Early Voluntary Termination.
1.12 “Early
Voluntary Termination” means that the Executive, prior to Normal Retirement Age, voluntarily initiates a Separation from
Service for reasons other than Cause or Disability.
1.13 “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
1.14 “Normal
Benefit Age” means the later of (i) date the Director attains age seventy-five (75) and (ii) May 1, 2025.
1.15 “Separation
from Service” means a termination of the Director’s service with the Bank and its Affiliates for reasons
other than death or Disability. A Separation from Service may occur as of a specified date for purposes of the Agreement even
if the Director continues to provide some services for the Bank or its Affiliates after that date, provided that the facts
and circumstances indicate that the Bank and the Director reasonably anticipated at that date that either no further services
would be performed after that date, or that the level of bona fide services the Director would perform after such date
(whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of
the average level of bona fide services performed over the immediately preceding thirty-six (36) month period (or the full
period during which the Director performed services for the Bank, if that is less than thirty-six (36) months). A Separation
from Service will not be deemed to have occurred while the Director is on military leave, sick leave, or other bona fide
leave of absence if the period of such leave does not exceed six (6) months or, if longer, the period for which a statute or
contract provides the Director with the right to reemployment with the Bank. If the Director’s leave exceeds six (6)
months but the Director is not entitled to reemployment under a statute or contract, the Director incurs a Separation of
Service on the next day following the expiration of such six (6) month period. In determining whether a Separation of Service
occurs the Administrator shall take into account, among other things, the definition of “service recipient” and
“employer” set forth in Treasury regulation §1.409A-l(h)(3). The Administrator shall have full and final
authority, to determine conclusively whether a Separation from Service occurs, and the date of such Separation from
Service.
1.16 “Specified
Employee” means an individual that satisfies the definition of a “key employee” of the Bank as such term
is defined in Code §416(i) (without regard to Code §416(i)(5)), provided that the stock of the Bank is publicly traded
on an established securities market or otherwise, as defined in Code §1.897-l(m). If the Director is a key employee at any
time during the twelve (12) months ending on December 31, the Director is a Specified Employee for the twelve (12) month period
commencing on the first day of the following April.
ARTICLE 2
PAYMENT OF BENEFITS
2.1 Suicide
or Misstatement. Notwithstanding anything to the contrary in this Article 2, no benefit shall be distributed hereunder if the
Director commits suicide within two (2) years following the date hereof or an insurance company which issued a life insurance policy
covering the Director and owned by the Bank denies coverage (i) for material misstatements of fact made by the Director on an application
for life insurance, or (ii) for any other reason.
2.2 Normal
Benefit. At Normal Benefit Age, the Bank shall pay the Director an annual benefit in the amount of Twelve Thousand Dollars
($12,000) in lieu of any other benefit hereunder. The annual benefit will be paid in equal monthly installments commencing the
month following Normal Benefit Age and continuing for ten (10) years.
2.3 Early
Voluntary Termination Benefit. If Early Voluntary Termination occurs, the Bank shall pay the Director an annual benefit in
the amount shown on the table below in lieu of any other benefit hereunder. The annual benefit will be paid in equal monthly installments
commencing the month following Normal Benefit Age and continuing for ten (10) years.
| Date of Early Termination | |
Amount of Benefit | |
| Before 2017 | |
$ | 0 | |
| 2018 | |
$ | 300 | |
| 2019 | |
$ | 450 | |
| 2020 | |
$ | 600 | |
| 2021 | |
$ | 750 | |
| 2022 | |
$ | 900 | |
| 2024 | |
$ | 1,050 | |
| January 1, 2025 to April 30, 2025 | |
$ | 1,200 | |
| May 1, 2025 or later | |
$ | 12,000 | |
2.4 Early
Involuntary Termination Benefit. If Early Involuntary Termination occurs, the Bank shall pay the Director the amount determined
in this Section 2.3 in lieu of any other benefit hereunder. If Early Involuntary Termination occurs prior to May 1, 2025, the Bank
shall pay the Director the Accrued Benefit in equal monthly installments commencing the month following Normal Benefit Age and
continuing for one hundred twenty (120) months. If Early Involuntary Termination occurs May 1, 2025 or later, the Bank shall pay
the Director an annual benefit in the amount of Twelve Thousand Dollars ($12,000). The annual benefit will be paid in equal monthly
installments commencing the month following Normal Benefit Age and continuing for ten (10) years.
2.5 Disability
Benefit. In the event the Director suffers a Disability prior to Normal Retirement Age the Bank shall pay the Director an annual
benefit in the amount of Twelve Thousand Dollars ($12,000) in lieu of any other benefit hereunder. The annual benefit will be paid
in equal monthly installments commencing the month following Normal Benefit Age and continuing for ten (10) years.
2.6 Death
Prior to Commencement of Benefit Payments. In the event the Director dies prior to Separation from Service, the Bank shall
pay the Beneficiary a benefit of One Hundred Twenty Thousand Dollars ($120,000) in lieu of any other benefit hereunder. The benefit
will be paid in a lump sum within ninety (90) days following the Director’s death.
2.7 Death
Subsequent to Commencement of Benefit Payments. In the event the Director dies while receiving payments, but prior to receiving
all payments due and owing hereunder, the Employer shall pay the Beneficiary the sum of the remaining payments, in lieu of any
other benefit hereunder. The benefit will be paid in a lump sum within ninety (90) days following the Director’s death.
2.8 Termination
for Cause. If the Bank terminates the Director’s service for Cause, then the Director shall not be entitled to any benefits
under the terms of this Agreement.
2.9 Restriction
on Commencement of Distributions. Notwithstanding any provision of this Agreement to the contrary, if the Director is
considered a Specified Employee at the time of Separation from Service, the provisions of this Section shall govern all
distributions hereunder. Distributions which would otherwise be made to the Director due to Separation from Service shall not
be make during the first six (6) months following Separation from Service. Rather, any distribution which would otherwise be
paid to the Director during such period shall be accumulated and paid to the Director in a lump sum on the first day of the
seventh month following Separation from Service, or if earlier, upon the Director’s death. All subsequent distributions
shall be paid as they would have had this Section not applied.
2.10 Acceleration
of Payments. Except as specifically permitted herein, no acceleration of the time or schedule of any payment may be made hereunder.
Notwithstanding the foregoing, payments may be accelerated, in accordance with the provisions of Treasury Regulation §1.409A-3(j)(4)
in the following circumstances: (i) as a result of certain domestic relations orders; (ii) in compliance with ethics agreements
with the federal government; (iii) in compliance with the ethics laws or conflicts of interest laws; (iv) in limited cashouts (but
not in excess of the limit under Code §402(g)(1)(B)); (v) to pay employment-related taxes; or (vi) to pay any taxes that may
become due at any time that the Agreement fails to meet the requirements of Code Section 409A.
2.11 Delays
in Payment by Bank. A payment may be delayed to a date after the designated payment date under any of the circumstances described
below, and the provision will not fail to meet the requirements of establishing a permissible payment event. The delay in the payment
will not constitute a subsequent deferral election, so long as the Bank treats all payments to similarly situated Participants
on a reasonably consistent basis.
(a) Payments
subject to Code Section 162(m). If the Bank reasonably anticipates that the Bank’s deduction with respect to any distribution
under this Agreement would be limited or eliminated by application of Code Section 162(m), then to the extent deemed necessary
by the Bank to ensure that the entire amount of any distribution from this Agreement is deductible, the Bank may delay payment
of any amount that would otherwise be distributed under this Agreement. The delayed amounts shall be distributed to the Director
(or the Beneficiary in the event of the Director’s death) at the earliest date the Bank reasonably anticipates that the deduction
of the payment of the amount will not be limited or eliminated by application of Code Section 162(m).
(b) Payments
that would violate Federal securities laws or other applicable law. A payment may be delayed where the Bank reasonably anticipates
that the making of the payment will violate Federal securities laws or other applicable law provided that the payment is made at
the earliest date at which the Bank reasonably anticipates that the making of the payment will not cause such violation. The making
of a payment that would cause inclusion in gross income or the application of any penalty provision of the Internal Revenue Code
is not treated as a violation of law.
(c) Solvency.
Notwithstanding the above, a payment may be delayed where the payment would jeopardize the ability of the Bank to continue as
a going concern.
2.12 Treatment
of Payment as Made on Designated Payment Date. Solely for purposes of determining compliance with Code Section 409A, any payment
under this Agreement made after the required payment date shall be deemed made on the required payment date provided that such
payment is made by the latest of: (i) the end of the calendar year in which the payment is due; (ii) the 15th day of the third
calendar month following the payment due date; (iii) if Bank cannot calculate the payment amount on account of administrative impracticality
which is beyond the Director’s control, the end of the first calendar year which payment calculation is practicable; and
(iv) if Bank does not have sufficient funds to make the payment without jeopardizing the Bank’s solvency, in the first calendar
year in which the Bank’s funds are sufficient to make the payment.
2.13 Facility
of Payment. If a distribution is to be made to a minor, or to a person who is otherwise incompetent, then the Administrator
may make such distribution: (i) to the legal guardian, or if none, to a parent of a minor payee with whom the payee maintains his
or her residence; or (ii) to the conservator or administrator or, if none, to the person having custody of an incompetent payee.
Any such distribution shall fully discharge the Bank and the Administrator from further liability on account thereof.
2.14 Changes
in Form or Timing of Benefit Payments. The Bank and the Director may, subject to the terms hereof, amend this Agreement to
delay the timing or change the form of payments. Any such amendment:
(a) must
take effect not less than twelve (12) months after the amendment is made;
(b) must, for benefits
distributable due solely to the arrival of a specified date, or on account of Separation from Service or Change in Control,
delay the commencement of distributions for a minimum of five (5) years from the date the first distribution was originally
scheduled to be made;
(c) must, for benefits
distributable due solely to the arrival of a specified date, be made not less than twelve (12) months before distribution is
scheduled to begin; and
(d) may not accelerate the time or schedule of any distribution.
ARTICLE
3
BENEFICIARIES
3.1 Designation
of Beneficiaries. The Director may designate any person to receive any benefits payable under the Agreement upon the Director’s
death, and the designation may be changed from time to time by the Director by filing a new designation. Each designation will
revoke all prior designations by the Director, shall be in the form prescribed by the Administrator, and shall be effective only
when filed in writing with the Administrator during the Director’s lifetime. If the Director names someone other than the
Director’s spouse as a Beneficiary, the Administrator may, in its sole discretion, determine that spousal consent is required
to be provided in a form designated by the Administrator, executed by the Director’s spouse and returned to the Administrator.
The Director’s beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases
the Director or if the Director names a spouse as Beneficiary and the marriage is subsequently dissolved.
3.2 Absence
of Beneficiary Designation. In the absence of a valid Beneficiary designation, or if, at the time any benefit payment is due
to a Beneficiary, there is no living Beneficiary validly named by the Director, the Bank shall pay the benefit payment to the Director’s
estate.
ARTICLE 4
ADMINISTRATION
4.1 Administrator
Duties. The Administrator shall be responsible for the management, operation, and administration of the Agreement. When making
a determination or calculation, the Administrator shall be entitled to rely on information furnished by the Bank, Director or Beneficiary.
No provision of this Agreement shall be construed as imposing on the Administrator any fiduciary duty under ERISA or other law,
or any duty similar to any fiduciary duty under ERISA or other law.
4.2 Administrator
Authority. The Administrator shall enforce this Agreement in accordance with its terms, shall be charged with the general administration
of this Agreement, and shall have all powers necessary to accomplish its purposes.
4.3 Binding
Effect of Decision. The decision or action of the Administrator with respect to any question arising out of or in connection
with the administration, interpretation or application of this Agreement and the rules and regulations promulgated hereunder shall
be final, conclusive and binding upon all persons having any interest in this Agreement.
4.4 Compensation,
Expenses and Indemnity. The Administrator shall serve without compensation for services rendered hereunder. The Administrator
is authorized at the expense of the Bank to employ such legal counsel and/or recordkeeper as it may deem advisable to assist in
the performance of its duties hereunder. Expense and fees in connection with the administration of this Agreement shall be paid
by the Bank.
4.5 Bank
Information. The Bank shall supply full and timely information to the Administrator on all matters relating to the Director's
compensation, death, Disability or Separation from Service, and such other information as the Administrator reasonably requires.
4.6 Compliance
with Code Section 409A. The Bank and the Director intend that the Agreement comply with the provisions of Code Section 409A
to prevent the inclusion in gross income of any amounts deferred hereunder in a taxable year prior to the year in which amounts
are actually paid to the Director or Beneficiary. This Agreement shall be construed, administered and governed in a manner that
affects such intent, and the Administrator shall not take any action that would be inconsistent therewith.
ARTICLE 5
CLAIMS AND REVIEW PROCEDURES
5.1 Claims
Procedure. A Claimant who has not received benefits under this Agreement that he or she believes should be distributed shall
make a claim for such benefits as follows.
(a) Initiation
- Written Claim. The Claimant initiates a claim by submitting to the Administrator a written claim for the benefits. If such
a claim relates to the contents of a notice received by the Claimant, the claim must be made within sixty (60) days after such
notice was received by the Claimant. All other claims must be made within one hundred eighty (180) days of the date on which the
event that caused the claim to arise occurred. The claim must state with particularity the determination desired by the Claimant.
(b) Timing of Administrator
Response. The Administrator shall respond to such Claimant within ninety (90) days after receiving the claim. If the
Administrator determines that special circumstances require additional time for processing the claim, the Administrator can
extend the response period by an additional ninety (90) days by notifying the Claimant in writing, prior to the end of the
initial ninety (90) day period, that an additional period is required. The notice of extension must set forth the special
circumstances and the date by which the Administrator expects to render its decision.
(c) Notice of Decision. If
the Administrator denies part or all of the claim, the Administrator shall notify the Claimant in writing of such denial. The
Administrator shall write the notification in a manner calculated to be understood by the Claimant. The notification shall
set forth: (i) the specific reasons for the denial; (ii) a reference to the specific provisions of this Agreement on which
the denial is based; (iii) a description of any additional information or material necessary for the Claimant to perfect the
claim and an explanation of why it is needed; (iv) an explanation of this Agreement’s review procedures and the time
limits applicable to such procedures; and (v) a statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on review.
5.2 Review
Procedure. If the Administrator denies part or all of the claim, the Claimant shall have the opportunity for a full and fair
review by the Administrator of the denial as follows.
(a) Initiation
Written Request. To initiate the review, the Claimant, within sixty (60) days after receiving the Administrator’s notice
of denial, must file with the Administrator a written request for review.
(b) Additional Submissions -
Information Access. The Claimant shall then have the opportunity to submit written comments, documents, records and other
information relating to the claim. The Administrator shall also provide the Claimant, upon request and free of charge,
reasonable access to, and copies of, all documents, records and other information relevant (as defined in applicable ERISA
regulations) to the Claimant’s claim for benefits.
(c) Considerations on Review. In considering the review, the
Administrator shall take into account all materials and information the Claimant submits relating to the claim, without
regard to whether such information was submitted or considered in the initial benefit determination.
(d) Timing of Administrator
Response. The Administrator shall respond in writing to such Claimant within sixty (60) days after receiving the request
for review. If the Administrator determines that special circumstances require additional time for processing the claim, the
Administrator can extend the response period by an additional sixty (60) days by notifying the Claimant in writing, prior to
the end of the initial sixty (60) day period, that an additional period is required. The notice of extension must set forth
the special circumstances and the date by which the Administrator expects to render its decision.
(e) Notice of Decision. The
Administrator shall notify the Claimant in writing of its decision on review. The Administrator shall write the notification
in a manner calculated to be understood by the Claimant. The notification shall set forth: (a) the specific reasons for the
denial; (b) a reference to the specific provisions of this Agreement on which the denial is based; (c) a statement that the
Claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records
and other information relevant (as defined in applicable ERISA regulations) to the Claimant’s claim for benefits; and
(d) a statement of the Claimant’s right to bring a civil action under ERISA Section 502(a).
ARTICLE 6
AMENDMENT AND TERMINATION
6.1 Agreement
Amendment Generally. Except as provided in Section 6.2, this Agreement may be amended only by a written agreement signed by
both the Bank and the Director.
6.2 Amendment
to Insure Proper Characterization of Agreement. Notwithstanding anything in this Agreement to the contrary, the Agreement may
be amended by the Bank at any time, if found necessary in the opinion of the Bank, (i) to ensure that the Agreement is characterized
as plan of deferred compensation maintained for a select group of management or highly compensated employees as described under
ERISA, (ii) to conform the Agreement to the requirements of any applicable law or (iii) to comply with the written instructions
of the Bank’s auditors or banking regulators.
6.3 Agreement
Termination Generally. Except as provided in Section 6.4, this Agreement may be terminated only by a written agreement signed
by the Bank and the Director. Such termination shall not cause a distribution of benefits under this Agreement. Rather, upon such
termination benefit distributions will be made at the earliest distribution event permitted under Article 2.
6.4 Effect
of Complete Termination. Notwithstanding anything to the contrary in Section 6.3, and subject to the requirements of Code Section
409A and Treasury Regulations §1.409A-3(j)(4)(ix), at certain times the Bank may completely terminate and liquidate the Agreement.
In the event of such a complete termination, the Bank shall pay the Director One Hundred Twenty Thousand Dollars ($120,000). Such
complete termination of the Agreement shall occur only under the following circumstances and conditions.
(a) Corporate
Dissolution or Bankruptcy. The Bank may terminate and liquidate this Agreement within twelve (12) months of a corporate
dissolution taxed under Code Section 331, or with the approval of a bankruptcy court pursuant to 11 U.S.C.
§503(b)(1)(A), provided that all benefits paid under the Agreement are included in the Director’s gross income in
the latest of: (i) the calendar year which the termination occurs; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar year in which the payment is administratively
practicable.
(b) Change
in Control. The Bank may terminate and liquidate this Agreement by taking irrevocable action to terminate and liquidate
within the thirty (30) days preceding or the twelve (12) months following a Change in Control. This Agreement will then be
treated as terminated only if all substantially similar arrangements sponsored by the Bank which are treated as deferred
under a single plan under Treasury Regulations §1.409A-1(c)(2) are terminated and liquidated with respect to each
participant who experienced the Change in Control so that the Director and any participants in any such similar arrangements
are required to receive all amounts of compensation deferred under the terminated arrangements within twelve (12) months of
the date the Bank takes the irrevocable action to terminate the arrangements.
(c) Discretionary
Termination. The Bank may terminate and liquidate this Agreement provided that: (i) the termination does not occur
proximate to a downturn in the financial health of the Bank; (ii) all arrangements sponsored by the Bank and Affiliates that
would be aggregated with any terminated arrangements under Treasury Regulations §1.409A-1(c) are terminated; (iii) no
payments, other than payments that would be payable under the terms of this Agreement if the termination had not occurred,
are made within twelve (12) months of the date the Bank takes the irrevocable action to terminate this Agreement; (iv) all
payments are made within twenty-four (24) months following the date the Bank takes the irrevocable action to terminate and
liquidate this Agreement; and (v) neither the Bank nor any of its Affiliates adopt a new arrangement that would be aggregated
with any terminated arrangement under Treasury Regulations §1.409A-1(c) if the Director participated in both
arrangements, at any time within three (3) years following the date the Bank takes the irrevocable action to terminate this
Agreement.
ARTICLE
7
MISCELLANEOUS
7.1 No
Effect on Other Rights. This Agreement constitutes the entire agreement between the Bank and the Director as to the subject
matter hereof. No rights are granted to the Director by virtue of this Agreement other than those specifically set forth herein.
Nothing contained herein will confer upon the Director 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 Director without regard to the existence hereof.
7.2 State
Law. To the extent not governed by ERISA, the provisions of this Agreement shall be construed and interpreted according to
the internal laws of the State of Louisiana without regard to its conflicts of laws principles.
7.3 Validity.
In case any provision of this Agreement shall be illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining parts hereof, but this Agreement shall be construed and enforced as if such illegal or invalid provision had
never been inserted herein.
7.4 Nonassignability.
Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached or encumbered in any manner.
7.5 Unsecured
General Creditor Status. Payment to the Director or any Beneficiary hereunder shall be made from assets which shall continue,
for all purposes, to be part of the general, unrestricted assets of the Bank and no person shall have any interest in any such
asset by virtue of any provision of this Agreement. The Bank’s obligation hereunder shall be an unfunded and unsecured promise
to pay money in the future. In the event that the Bank purchases an insurance policy insuring the life of the Director to recover
the cost of providing benefits hereunder, neither the Director nor the Beneficiary shall have any rights whatsoever in said policy
or the proceeds therefrom.
7.6 Life
Insurance. if the Bank chooses to obtain insurance on the life of the Director in connection with its obligations under this
Agreement, the Director hereby agrees to take such physical examinations and to truthfully and completely supply such information
as may be required by the Bank or the insurance company designated by the Bank.
7.7 Unclaimed
Benefits. The Director shall keep the Bank informed of the Director’s current address and the current address of the
Beneficiary. If the location of the Director is not made known to the Bank within three years after the date upon which any payment
of any benefits may first be made, the Bank shall delay payment of the Director’s benefit payment(s) until the location of
the Director is made known to the Bank; however, the Bank shall only be obligated to hold such benefit payment(s) for the Director
until the expiration of three (3) years. Upon expiration of the three (3) year period, the Bank may discharge its obligation by
payment to the Beneficiary. If the location of the Beneficiary is not made known to the Bank by the end of an additional two (2)
month period following expiration of the three (3) year period, the Bank may discharge its obligation by payment to the Director’s
estate. If there is no estate in existence at such time
or if such fact cannot be determined by the Bank, the Director and Beneficiary shall thereupon forfeit all rights to any benefits
provided under this Agreement.
7.8 Removal.
Notwithstanding anything in this Agreement to the contrary, the Bank shall not distribute any benefit
under this Agreement if the Director is subject to a final removal or prohibition order issued pursuant to Section 8(e) of the
Federal Deposit Insurance Act. Furthermore, any payments made to the Director pursuant to this Agreement shall, if required, comply
with 12 U.S.C. 1828, FDIC Regulation 12 CFR Part 359 and any other regulations or guidance promulgated thereunder.
7.9 Notice. Any
notice, consent or demand required or permitted to be given to the Bank or Administrator under this Agreement shall
be sufficient if in writing and hand delivered or sent by registered or certified mail to the Bank’s principal business
office. Any notice or filing required or permitted to be given to the Director or Beneficiary under this Agreement shall be
sufficient if in writing and hand-delivered or sent by mail to the last known address of the Director or Beneficiary, as
appropriate. Any notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date
shown on the postmark or on the receipt for registration or certification.
7.10 Headings
and Interpretation. Headings and sub-headings in this Agreement are inserted for reference and convenience only and shall not
be deemed part of this Agreement. Wherever the fulfillment of the intent and purpose of this Agreement requires, and the context
will permit, the use of the masculine gender includes the feminine and use of the singular includes the plural.
7.11 Alternative
Action. In the event it becomes impossible for the Bank or the Administrator to perform any act required by this Agreement
due to regulatory or other constraints, the Bank or Administrator may perform such alternative act as most nearly carries out the
intent and purpose of this Agreement and is in the best interests of the Bank, provided that such alternative act does not violate
Code Section 409A.
7.12 Coordination
with Other Benefits. The benefits provided for the Director or the Beneficiary under this Agreement are in addition to any
other benefits available to the Director under any other plan or program for employees of the Bank. This Agreement shall supplement
and shall not supersede, modify, or amend any other such plan or program except as may otherwise be expressly provided herein.
7.13 lnurement.
This Agreement shall be binding upon and shall inure to the benefit of the Bank, its successor and assigns, and the Director,
the Director’s successors, heirs, executors, administrators, and the Beneficiary.
7.14 Tax
Withholding. The Bank may make such provisions and take such action as it deems necessary or appropriate for the withholding
of any taxes which the Bank is required by any law or regulation to withhold in connection with any benefits under the Agreement.
The Director shall be responsible for the payment of all individual tax liabilities relating to any benefits paid hereunder.
7.15 Aggregation
of Agreement. If the Bank offers other deferred compensation plans, this Agreement and those plans shall be treated as a single
plan to the extent required under Code Section 409A.
IN
WITNESS WHEREOF, the Director and a representative of the Bank have executed this
Agreement document as indicated below:
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Bank: |
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/s/ Xxxx X.
Xxxxxx, Xx.
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Its: |
Chairman of the Board |
First
Amendment
to
Director
Retirement Plan
(Nick
0. Xxxxxx, Jr.)
This
First Amendment (“Amendment”) is entered into this 19th day of February, 2019, by and between Eureka
Homestead (the “Bank”) and Nick 0. Xxxxxx, Jr. (the “Director”).
WHEREAS,
the Bank and the Director entered into a Director Retirement Plan (the “Agreement”), effective as of the 1st
day of May, 2015;
WHEREAS,
Section 6.1 of the Agreement provides that the Agreement may be amended by a written agreement signed by both the Bank and
the Director; and
WHEREAS,
Bank and the Director desire to amend Sections 1.7, 2.3 and 2.4 of the Agreement to clarify the benefits paid following a
Change in Control.
NOW,
THEREFORE, in consideration of the foregoing, the Agreement is hereby amended as follows:
1. Section
1.7 of the Agreement is amended by adding the following sentence to the end thereof:
“Notwithstanding
the foregoing, the conversion of the Bank from the mutual-to-stock form and the issuance of shares of common stock by any holding
company of the Bank shall not constitute a Change in Control for purposes of this Agreement.”
2. Section
2.3 is amended by deleting the first sentence thereof and replacing it with the following new sentence:
“If
Early Voluntary Termination occurs, the Bank shall pay the Director an annual benefit shown on the table below in lieu of any
other benefit hereunder; provided, however, that if Early Voluntary Termination occurs at any time following a Change in Control,
the annual benefit shall equal Twelve Thousand Dollars ($12,000).”
3. Section
2.4 is amended by deleting the paragraph in its entirety and replacing it with the following new paragraph:
“2.4
Early Involuntary Termination Benefit. If Early Involuntary Termination occurs, the Bank shall pay the Director the amount
determined in this Section 2.4 in lieu of any other benefit hereunder. If Early Involuntary Termination occurs prior to May 1,
2025, the Bank shall pay the Director the Accrued Benefit in equal monthly installments commencing the month following Normal
Benefit Age and continuing for one hundred twenty (120) months; provided, however, that if Early Involuntary Termination occurs
at any time following a Change in Control, the annual benefit shall equal Twelve Thousand Dollars ($12,000). If Early Involuntary
Termination occurs on May 1, 2025 or later, the Bank shall pay the Director an annual benefit in the amount of Twelve Thousand
Dollars ($12,000). The annual benefit will be paid in equal monthly installments commencing the month following Normal Benefit
Age and continuing for ten (10) years.”
IN
WITNESS WHEREOF, the Bank, through it designated officer, and the Director have executed this First Amendment as of the date
indicated above.
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Bank: |
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/s/ Xxxxx X. Xxxxxxx,
Xx. |
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By: Xxxxx X. Xxxxxxx, Xx., President |
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Director |
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/s/
Xxxx X. Xxxxxx, Xx. |
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By: Xxxx
X. Xxxxxx, Xx. |
