CINCINNATI FEDERAL SAVINGS & LOAN ASSOCIATION DIRECTOR RETIREMENT PLAN Cincinnati, Ohio Effective July 1, 2014
Exhibit 10.3
CINCINNATI FEDERAL SAVINGS & LOAN ASSOCIATION
Cincinnati, Ohio
Effective July 1, 2014
CINCINNATI FEDERAL SAVINGS & LOAN ASSOCIATION
This Cincinnati Federal Savings & Loan Association Director Retirement Plan (the “Plan”), initially effective as of the 1st day of July, 2014, formalizes the understanding by and between Cincinnati Federal Savings & Loan Association (the “Bank”), a Federally chartered mutual savings and loan association, and its non-employee directors, hereinafter referred to as “Director(s)”, who shall be eligible to participate in this Plan by execution of a Director Retirement Plan Joinder Agreement (“Joinder Agreement”) in a form provided by the Bank.
W I T N E S S E T H :
WHEREAS, the Directors serve the Bank as members of the Board of Directors (“Board”); and
WHEREAS, the Bank wishes to provide the terms and conditions upon which the Bank shall pay such additional compensation to the Directors after retirement or other Separation from Service and/or death benefits to their beneficiaries after death; and
WHEREAS, this Plan shall be an unfunded arrangement, maintained primarily to provide supplemental retirement income for such Directors; and
WHEREAS, Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) requires that certain types of deferred compensation arrangements comply with its terms or be subject to current taxes and penalties.
NOW, THEREFORE, in consideration of the premises and of the mutual promises herein contained, the Bank and the Directors agree as follows:
ARTICLE 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 | “Accrued Benefit” means, with respect to a Director, that portion of the Retirement Benefit which is expensed and accrued under generally accepted accounting principles (GAAP). |
| 1.2 | “Act” means the Employee Retirement Income Security Act of 1974, as amended from time to time. |
| 1.3 | “Administrator” means the Board of Directors of the Bank. |
| 1.4 | “Average Annual Fees” means the average annual fees paid to Directors of the Bank for the five (5) calendar years (not necessarily consecutive) during which the Director received the highest annual fees. |
| 1.5 | “Bank” means Cincinnati Federal Savings & Loan Association and any successor thereto. |
| 1.6 | “Beneficiary” means the person or persons (and their heirs) designated as Beneficiary in the Director’s Joinder Agreement to whom the deceased Director’s benefits are payable. If no Beneficiary is so designated, then the Director’s Spouse, if living, will be deemed the Beneficiary. If the Director’s Spouse is not living, then the Children of the Director will be deemed the Beneficiaries and will take on a per stirpes basis. If there are no living Children, then the Estate of the Director will be deemed the Beneficiary. |
| 1.7 | “Benefit Age” shall mean age 75, the age for mandatory retirement from the Board. |
| 1.8 | “Benefit Eligibility Date” shall be the date on which a Director is entitled to receive a benefit under the Plan. Unless otherwise set forth in another Section of this Plan, a Director’s “Benefit Eligibility Date” shall occur following the earlier of: (i) the date on which the Director has a Separation from Service on or after attainment of the Director’s Benefit Age; (ii) if Separation from Service occurs prior to Benefit Age (other than due to death or Disability or within 24 months following a Change in Control), the later of the date on which Separation from Service or attainment of age 70 occurs; (iii) the date on which a Disability determination is made; (iv) the date on which the Director dies; or (v) the date on which the Director has a Separation from Service (either voluntarily or involuntarily) within 24 months following a Change in Control. |
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| 1.9 | “Board” means the Board of Directors of the Bank. |
| 1.10 | “Cause” shall mean termination because of a Director’s personal dishonesty, incompetence, willful misconduct, any breach of fiduciary duty involving personal profit, intentional failure to perform stated duties, willful violation of any law, rule, or regulation (other than minor traffic violations or similar offenses) or final cease-and-desist order, or material breach of any provision of this Agreement. In determining incompetence, the acts or omissions shall be measured against standards generally prevailing in the savings institutions industry. |
| 1.11 | “Change in Control” shall mean (i) a change in ownership of the Bank under paragraph (a) below, or (ii) a change in effective control of the Bank under paragraph (b) below, or (iii) a change in the ownership of a substantial portion of the assets of the Bank under paragraph (c) below: |
| (a) | Change in the ownership of the Bank. A change in the ownership of the Bank shall occur on the date that any one person, or more than one person acting as a group (as defined in paragraph (b)), acquires ownership of stock of the corporation that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of such corporation. However, if any one person or more than one person acting as a group, is considered to own more than 50 percent of the total fair market value or total voting power of the stock of a corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the corporation (or to cause a change in the effective control of the corporation (within the meaning of paragraph (b) below). An increase in the percentage of stock owned by any one person, or persons acting as a group, as a result of a transaction in which the corporation acquires its stock in exchange for property will be treated as an acquisition of stock for purposes of this Section. This paragraph (a) applies only when there is a transfer of stock of a corporation (or issuance of stock of a corporation) and stock in such corporation remains outstanding after the transaction. |
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| (b) | Change in the effective control of the Bank. A change in the effective control of the Bank shall occur on the date that either (i) any one person, or more than one person acting as a group (as determined below), acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the corporation possessing 30 percent or more of the total voting power of the stock of such corporation; or (ii) a majority of members of the corporation’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the corporation’s board of directors prior to the date of the appointment or election, provided that for purposes of this paragraph (b)(ii), the term corporation refers solely to a corporation for which no other corporation is a majority shareholder. In the absence of an event described in paragraph (i) or (ii), a change in the effective control of a corporation will not have occurred. If any one person, or more than one person acting as a group, is considered to effectively control a corporation (within the meaning of this paragraph (b)), the acquisition of additional control of the corporation by the same person or persons is not considered to cause a change in the effective control of the corporation (or to cause a change in the ownership of the corporation within the meaning of paragraph (a)). Persons will not be considered to be acting as a group solely because they purchase or own stock of the same corporation at the same time, or as a result of the same public offering. |
| (c) | Change in the ownership of a substantial portion of the Bank’s assets. A change in the ownership of a substantial portion of the Bank’s assets shall occur on the date that any one person, or more than one person acting as a group (as determined below), acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the corporation that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the corporation |
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| immediately prior to such acquisition or acquisitions. For this purpose, gross fair market value means the value of the assets of the corporation, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. There is no Change in Control event under this paragraph (c) when there is a transfer to an entity that is controlled by the shareholders of the transferring corporation immediately after the transfer. |
| (d) | Each of the sub-paragraphs (a) through (c) above shall be construed and interpreted consistent with the requirements of Code Section 409A and any Treasury regulations or other guidance issued thereunder. |
| (e) | Notwithstanding anything herein to the contrary, the reorganization of the Bank as the wholly-owned subsidiary of a holding company in a standard conversion or mutual holding company reorganization shall not be deemed to be a Change in Control. Further, in the event of the reorganization of the Bank as a wholly-owned subsidiary of a stock holding company in a standard conversion or as a wholly-owned or majority owned subsidiary in a mutual holding company reorganization, then this Section 1.11 shall apply equally to a Change in Control of the Bank or the holding company of the Bank (or to a change in control of the mutual holding company in the event the Bank is owned by a mid-tier holding company that is the majority-owned or wholly owned subsidiary of the mutual holding company). |
| 1.12 | “Children” means the Director’s children, or the issue of any deceased Children, then living at the time payments are due the Children under this Plan. The term “Children” shall include both natural and adopted Children. |
| 1.13 | “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder. |
| 1.14 | “Disability” means any case in which a Director: (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a |
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| continuous period of not less than 12 months; (ii) is, by reason of any medically determinable physical or mental impairment which 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 or non-employee directors of the Bank; or (iii) is determined to be disabled by the Social Security Administration. |
| 1.15 | “Disability Benefit” means the benefit payable to the Director following a determination of the Director’s Disability. If a Director has less than 15 Years of Service with the Bank when the Director is determined to be Disabled, the Disability Benefit shall equal the Director’s Accrued Benefit at the time of the Disability determination. If a Director has 15 Years of Service or more with the Bank when the Director is determined to be Disabled, the Disability Benefit shall be equal to the Present Value of the Retirement Benefit the Director would have received if the Director had continued in service of the Bank until attainment of the Director’s Benefit Age and had become Disabled immediately after attainment of the Benefit Age. |
| 1.16 | “Effective Date” of this Plan is July 1, 2014. |
| 1.17 | “Estate” means the estate of the Director. |
| 1.18 | “Joinder Agreement” means the agreement entered into by a Director on initial participation in the Plan. It is intended that the Joinder Agreement shall be consistent with the Plan in all respects, however, in the event of an inconsistency between the Joinder Agreement and the Plan, the Plan shall control. |
| 1.19 | “Payout Period” means the time frame during which certain benefits payable hereunder shall be distributed. |
| (a) | Except as set forth in Sections 1.19(b) and (c) below, payments shall be made in 10 equal annual installments commencing within 30 days following the Director’s attainment of the Benefit Eligibility Date and continuing until the ninth (9th) annual anniversary of said initial installment. |
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| (b) | If the Director has a Separation from Service from the Board prior to attainment of his Benefit Age due to death or voluntary or has an involuntary Separation from Service within 24 months following a Change in Control, the Payout Period shall be a single lump sum distribution, unless, in the case of a benefit payable within 24 months following a Change in Control, the Director has elected 10 equal annual installment payments in his Joinder Agreement. In either case, payments shall commence within 30 days following the Benefit Eligibility Date and in the case of installment distributions, shall be made in the same manner as set forth above in Section 1.19(a). For these purposes, an election will be deemed timely if made in accordance with the requirements of Code Section 409A. |
| (c) | If the Director is determined to be Disabled prior to attainment of the Benefit Age, the Director’s Disability Benefit shall be paid in a lump sum within 30 days following the Disability determination. |
| 1.20 | “Plan Year” shall mean the calendar year. |
| 1.21 | “Present Value” shall be determined by using the Citigroup Pension Discount Curve or if no longer in existence, a similar index. |
| 1.22 | “Retirement Benefit” means, generally, an annual amount payable to a Director who retires from or otherwise has a Separation from Service with the Board (other than for Cause) after attainment of the Director’s Benefit Age. The annual Retirement Benefit shall be 50% of the Directors Average Annual Fees paid for his service as a non-employee Director prior to the Director’s Separation from Service from the Board. The Retirement Benefit shall be paid over the applicable Payout Period set forth in Section 1.19. |
| 1.23 | “Separation from Service” or “Separate from Service” shall mean, consistent with Code Section 409A(2)(a)(i), the Director’s death, Disability, retirement or Separation from Service (involuntary or voluntary) from the Board following a resignation from the Board or failure to be reappointed or reelected to the Board. For these purposes, a Director shall not be deemed to have a “Separation from Service” if the Director serves |
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| on the Board of the Bank or any member of a controlled group of corporations with the Bank within the meaning of Treasury Regulation 1.409A-1(a)(3). |
| 1.24 | “Spouse” means the individual to whom the Director is legally married at the time of the Director’s death. |
| 1.25 | “Survivor’s Benefit” means the benefit payable to the Director’s Beneficiary following the Director’s pre-retirement death. If a Director has less than 15 Years of Service with the Bank at the Director’s date of death, the Survivor’s Benefit shall equal the Director’s Accrued Benefit on the date of death. If a Director has 15 Years of Service or more with the Bank at the Director’s date of death, the Survivor’s Benefit shall be equal to the Retirement Benefit the Director would have received if the Director had continued in service of the Bank until attainment of the Director’s Benefit Age and died immediately thereafter. |
| 1.26 | “Treasury Regulations” means the regulations promulgated under the Code. |
| 1.27 | “Year of Service” means each 12-month period commencing on a Director’s initial appointment or election to the Board and continuing on each anniversary thereof. Notwithstanding the foregoing, a Director who joins the Board in connection with the merger of the Bank or any holding company of the Bank with another institution or holding company (where the Bank or its holding company are the surviving entity or entities), will be entitled to credit for service with the acquired institution and/or holding company if the Board approves by such service credit by a written resolution. The name of any such director who receives credit for prior service with another institution or holding company shall be set forth on Exhibit B to this Plan. |
ARTICLE II
ESTABLISHMENT OF RABBI TRUST
The Bank may establish a rabbi trust into which the Bank may 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 the plan which establishes such rabbi trust, until the contributed assets are paid to the Directors and their Beneficiaries in such manner and at such times as specified in
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this Plan. Should the Bank establish a rabbi trust, the Bank may make contributions to the rabbi trust to provide the Bank with a source of funds to assist it in meeting the liabilities of this Plan. The rabbi trust and any assets held therein shall conform to the terms of the rabbi trust agreement which may be established in conjunction with this Plan. To the extent the language in this Plan is modified by the language in the rabbi trust agreement, the rabbi trust agreement shall supersede this Plan. Any contributions to the rabbi trust shall be made during each Plan Year in accordance with the rabbi trust agreement.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
Participation in this Plan is limited to the non-employee Directors of the Bank. All non-employee directors of the Bank on the Effective Date of the Plan shall be admitted to the Plan upon execution of a Joinder Agreement. A non-employee Director who becomes a Director of the Bank after the Effective Date of the Plan shall not enter the Plan until the later of the date on which (i) the Director has twelve (12) Years of Service on the Board and (ii) the Director enters into a Joinder Agreement. If a non-employee Director becomes an employee (or an employee Director), the non-employee Director’s benefit under this Plan shall be frozen from the date of such change in status and shall remain frozen unless and until such individual’s status is returned to that of a non-employee Director.
ARTICLE IV
BENEFITS
| 4.1 | Retirement Benefit. A Director who remains in the service of the Board until attainment of his Benefit Age shall be entitled to the Retirement Benefit. Such Retirement Benefit shall commence on the Benefit Eligibility Date, and shall be payable in annual installments throughout the Payout Period set forth in Section 1.19(a). In the event a Director dies after commencement of the Retirement Benefit payments but before completion of all such payments due and owing hereunder (or after Separation from Service but before the commencement of the payments required hereunder), the Bank shall pay to the Director’s Beneficiary a continuation of the annual installments for the remainder of the Payout Period. |
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| 4.2 | Death During Service on the Board. If the Director who has not attained his or her Benefit Age dies while in the service of the Bank, the Director’s Beneficiary shall be entitled to the Survivor’s Benefit. The Survivor’s Benefit shall commence on the Benefit Eligibility Date and shall be payable in a lump sum as specified in Section 1.19(b). |
| 4.3 | Voluntary or Involuntary Termination Prior to Benefit Age. |
| If the Director’s service with the Bank is voluntarily or involuntarily terminated prior to the attainment of his Benefit Age, for any reason other than for Cause, the Director’s death, Disability, or within 24 months following a Change in Control, the Director (or his Beneficiary) shall be entitled to the Director’s Accrued Benefit, determined as of the date of Executive’s Separation from Service, payable at the Director’s Benefit Eligibility Date in installments over the Payout Period specified in Section 1.19(a). Any payment made under this Section 4.3 shall only be made if the Director’s termination from the Board constitutes a Separation from Service. If, after such Separation from Service, the Director dies prior to commencement of the benefit payable hereunder, the Director’s Beneficiary shall be entitled to the Director’s Accrued Benefit which shall commence on the Director’s Benefit Eligibility Date (as if the Director had lived) and shall be payable in annual installments over the Payout Period. In the event a Director dies after commencement of the benefit payments under this Section 4.3 but before completion of all such payments due and owing hereunder, the Bank shall pay to the Director’s Beneficiary a continuation of the annual installments for the remainder of the Payout Period. |
| 4.4 | Separation from Service Following a Change in Control. In the event of a Change in Control, each Director who is a participant in the Plan shall be entitled to his or her Retirement Benefit, payable in accordance with 4.4(a) or 4.4(b) below, as applicable. |
| (a) | If Change in Control occurs at the Bank, and thereafter the Director’s has a voluntary or involuntary Separation from Service within 24 months following such Change in Control, other than due to termination for Cause, the Director shall be entitled to the Retirement Benefit, payable on his Benefit Eligibility Date. Such benefit shall commence within 30 days following his Separation from |
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| Service, and shall be payable in a lump sum as specified in Section 1.19(b), unless the Director has made a timely election in his Joinder Agreement to receive the Retirement Benefit in the manner specified in Section 1.19(a). |
| (b) | If the Director has a Separation from Service more than 24 months following the effective date of the Change in Control (other than due to death, Disability or for Cause), such Retirement Benefit shall commence on the Director’s Benefit Eligibility Date as determined under Section 4.1 or 4.3, and shall be payable in annual installments throughout the Payout Period specified in Section 1.19(a) hereof. In the event that the Director dies at any time after commencement of the payments, but prior to completion of all such payments due and owing hereunder, the Bank, or its successor, shall pay to the Director’s Beneficiary a continuation of the annual installments for the remainder of the Payout Period. |
| 4.5 | Termination for Cause. If the Director is terminated for Cause, all benefits under this Plan shall be forfeited and this Plan shall become null and void as to the Director. |
| 4.6 | Disability Benefit. Notwithstanding any other provision hereof (other than Section 4.5), a Director who has not attained his or her Benefit Age shall be entitled to receive the Disability Benefit hereunder, in any case in which it is determined that the Director has incurred a Disability. The Director’s Disability Benefit shall be payable commencing on the Benefit Eligibility Date and shall be payable in a lump sum as set forth in Section 1.19(c). The Director shall receive the Disability Benefit in lieu of any benefit available under Section 4.3. In the event the Director dies prior to the payment of the Disability Benefit, such benefit shall be paid to the Director’s Beneficiary at the same time and in the same form that it would have been paid to the Director under this paragraph. |
| 4.7 | Non-Competition During and After Service on the Board. |
| (a) | In order to be eligible for the benefits hereunder the Director shall not actively engage, either directly or indirectly, in any business or other activity which is or may be deemed to be in any way competitive with or adverse to the best interests of the business of the Bank so long as he remains in the service of the Bank and |
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| for two (2) years following Separation from Service, unless the Director’s participation therein has been consented to, in writing, by the Board of Directors. In the event a Director violates this Section 4.7(a) within two (2) years of Separation from Service, any benefits being paid to the Director shall cease being paid unless or until the Director ceases violation of this Section 4.7(a) upon, and within 30 days of, written notice from the Board to cease such activity, or the Director is the successful party in a claims or arbitration proceeding brought under Section 9.2 hereof. |
| (b) | In order to receive or continue receiving benefits under this Plan, the Director shall not, without the prior written consent of the Bank, become associated with, in the capacity of an employee, director, officer, principal, agent, trustee or in any other capacity whatsoever, any enterprise conducted in the trading area of the business of the Bank which enterprise is, or may be deemed to be, competitive with any business carried on by the Bank either during service with the Bank or, as of the date of the termination of the Director’s service or his retirement, for a period of two (2) years following Separation from Service. In the event the Director violates this Section 4.7(b), any benefits being paid to the Director shall cease being paid unless or until the Director ceases violation of this Section 4.7(b) upon, and within thirty (30) days of, written notice from the Board to cease such activity or affiliation, or the Director is the successful party in a claims or arbitration proceeding brought under Section 9.2 hereof. |
| (c) | In the event of a termination of the Director’s service following a Change in Control pursuant to Section 4.4, this Section 4.7 shall cease to be a condition to the performance by the Bank of its obligations under this Plan. |
| 4.8 | Breach. In the event of any breach by the Director of the agreements and covenants contained herein, the Board of Directors of the Bank shall direct that any unpaid balance of any payments to the Director under this Plan be suspended, and shall thereupon notify the Director of such suspensions, in writing. Thereupon, if the Board of Directors of the Bank shall determine that said breach by the Director has continued for a period of one (1) month following notification of such suspension, all rights of the Director and his Beneficiaries under this Plan, including rights to further payments hereunder, shall thereupon terminate. |
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ARTICLE V
BENEFICIARY DESIGNATION
The Director shall make an initial designation of primary and secondary Beneficiaries upon execution of his Joinder Agreement and shall have the right to change such designation, at any subsequent time, by submitting to the Administrator in substantially the form attached as Exhibit A to the Joinder Agreement, a written designation of primary and secondary Beneficiaries. Any Beneficiary designation made subsequent to execution of the Joinder Agreement shall become effective only when receipt thereof is acknowledged in writing by the Administrator.
ARTICLE VI
DIRECTOR’S RIGHT TO ASSETS
The rights of the Director, any Beneficiary, or any other person claiming through the Director under this Plan, shall be solely those of an unsecured general creditor of the Bank. The Director, the Beneficiary, or any other person claiming through the Director, shall only have the right to receive from the Bank those payments so specified under this Plan. The Director agrees that he, his Beneficiary, or any other person claiming through him shall have no rights or interests whatsoever in any asset of the Bank, including any insurance policies or contracts which the Bank may possess or obtain to informally fund this Plan. Any asset used or acquired by the Bank in connection with the liabilities it has assumed under this Plan, unless expressly provided herein, shall not be deemed to be held under any trust for the benefit of the Director or his Beneficiaries, nor shall any asset be considered security for the performance of the obligations of the Bank. Any such asset shall be and remain, a general, unpledged, and unrestricted asset of the Bank.
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ARTICLE VII
RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any fund or money with which to pay its obligations under this Plan. The Director, 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 Plan or to refrain from the same and to determine the extent, nature, and method of such asset purchases. Should the Bank decide to purchase assets such as life insurance, mutual funds, disability policies or annuities, the Bank reserves the absolute right, in its sole discretion, to terminate such assets at any time, in whole or in part. At no time shall the Director 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 Director, then the Director shall assist the Bank by freely submitting to a physical examination and by supplying such additional information necessary to obtain such insurance or annuities.
ARTICLE VIII
ALIENABILITY AND ASSIGNMENT PROHIBITION
Neither the Director nor any Beneficiary under this Plan shall have any power or right to transfer, assign, anticipate, hypothecate, mortgage, commute, modify or otherwise encumber in advance any of the benefits payable hereunder, nor shall any of said benefits be subject to seizure for the payment of any debts, judgments, alimony or separate maintenance owed by the Director or his Beneficiary, nor be transferable by operation of law in the event of bankruptcy, insolvency or otherwise. In the event the Director or any Beneficiary attempts assignment, communication, hypothecation, transfer or disposal of the benefits hereunder, the Bank’s liabilities shall forthwith cease and terminate.
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ARTICLE IX
ACT PROVISIONS
| 9.1 | Named Fiduciary and Administrator. The Board, as Administrator, shall be the “Named Fiduciary” of this Plan, as defined under the Act. As Administrator, the Board shall be responsible for the management, control and administration of the Plan as established herein. The Board may delegate the administration of the Plan to its executive committee or to a pension committee appointed by the Board (“Committee”). The Board of Directors, or any duly appointed Committee shall have authority to interpret the terms of the Plan and any such interpretation shall be final and binding on all parties. The Board or any Committee so delegated shall be entitled to employ advisors and delegate ministerial duties to qualified individuals. |
| 9.2 | Claims Procedure and Arbitration. In the event that benefits under this Plan are not paid to the Director (or to his Beneficiary in the case of the Director’s death) or the payment of benefits is curtailed for reasons set forth in Sections 4.7(a) or 4.7(b) and such claimant feels that he or she is entitled to receive such benefits, then a written claim must be made to the Administrator within 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, they shall provide in writing, within 90 days of receipt of such claim, their specific reasons for such denial, reference to the provisions of this Plan or the Joinder 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 60 days of the first claim denial. Claimants may review this Plan, the Joinder 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 60 days of receipt of such claim. This decision shall state the specific reasons for the decision and shall include reference to specific provisions of this Plan or the Joinder Agreement upon which the decision is based. |
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| If claimants continue to dispute the benefit denial based upon completed performance of this Plan and the Joinder 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 (“AAA”) (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. |
ARTICLE X
MISCELLANEOUS
| 10.1 | No Effect on Director’s Rights. 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 deal with the Director without regard to the existence of the Plan. |
| 10.2 | State Law. The Plan is established under, and will be construed according to, the laws of the State of Ohio, to the extent such laws are not preempted by the Federal law, the Act and valid regulations published thereunder. |
| 10.3 | Construction and Severability. This Plan is adopted following the enactment of Code Section 409A and is intended to be construed consistent with the requirements of that Section, the Treasury regulations and other guidance issued thereunder. If any provision of the Plan shall be determined to be inconsistent therewith for any reason, then the Plan shall be construed, to the maximum extent possible, to give effect to such provision in a manner that is consistent with Code Section 409A, and if such construction is not possible, as if such provision had never been included. In the event that any of the provisions of this Plan 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 to be invalid or inoperative, and (2) the |
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| validity and enforceability of the remaining provisions will not be affected thereby. If required by Code Section 409A, a Director’s Separation from Service on the Board shall be deemed to be defined in accordance with the definition of Separation from Service set forth thereunder. |
| 10.4 | Incapacity of Recipient. In the event the Director 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 Plan to which such Director is entitled shall be paid to such conservator or other person legally charged with the care of his person or Estate. |
| 10.5 | Unclaimed Benefit. The Director shall keep the Administrator informed of his current address and the current address of his Beneficiaries. The Administrator shall not be obligated to search for the whereabouts of any person. If the location of the Director is not made known to the Administrator as of the date upon which any payment of any benefits may first be made, the Administrator shall delay payment of the Director’s benefit payment(s) until the location of the Director is made known to the Administrator; however, the Administrator shall only be obligated to hold such benefit payment(s) for the Director until the expiration of thirty-six (36) months. Upon expiration of the thirty-six (36) month period, the Administrator may discharge its obligation by payment to the Director’s Beneficiary. If the location of the Director’s Beneficiary is not made known to the Administrator by the end of an additional two (2) month period following expiration of the thirty-six (36) month period, the Administrator 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 Administrator, the Director and his Beneficiary(ies) shall thereupon forfeit any rights to the balance, if any, of any benefits provided for such Director and/or Beneficiary under this Plan. |
| 10.6 | Limitations on Liability. Notwithstanding any of the preceding provisions of the Plan, no individual acting as an employee or agent of the Bank, or as a member of the Board of Directors shall be personally liable to the Director or any other person for any claim, loss, liability or expense incurred in connection with the Plan. |
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| 10.7 | Gender. Whenever in this Plan words are used in the masculine or neuter gender, they shall be read and construed as in the masculine, feminine or neuter gender, whenever they should so apply. |
| 10.8 | Effect on Other Corporate Benefit Plans. Nothing contained in this Plan shall affect the right of the Director to participate in or be covered by any other corporate benefit available to Directors of the Bank constituting a part of the Bank’s existing or future compensation structure. |
| 10.9 | Suicide. Notwithstanding anything to the contrary in this Plan, the benefits otherwise provided herein shall not be payable and this Plan shall become null and void with respect to the Director if the Director’s death results from suicide, whether sane or insane, within twenty-four (24) months after the execution of his Joinder Agreement. |
| 10.10 | Inurement. This Plan shall be binding upon and shall inure to the benefit of the Bank, its successors and assigns, and the Director, his successors, heirs, executors, administrators, and Beneficiaries. |
| 10.11 | Headings. Headings and sub-headings in this Plan are inserted for reference and convenience only and shall not be deemed a part of this Plan. |
| 10.12 | Payment of Code Section 409A Taxes. This Plan shall permit the acceleration of the time or schedule of a payment to pay any taxes that may become due at any time that the arrangement fails to meet the requirements of Code Section 409A and the regulations and other guidance promulgated thereunder. Such payments shall not exceed the amount required to be included in income as the result of the failure to comply with the requirements of Code Section 409A. |
| 10.13 | Acceleration of Benefit Payments. Except as specifically permitted herein or in other sections of this Plan, no acceleration of the time or schedule of any payment may be made hereunder. Notwithstanding the foregoing, payments may be accelerated hereunder by the Bank, in accordance with the provisions of Treasury Regulation 1.409A-3(j)(4) and any subsequent guidance issued by the United States Treasury Department. Accordingly, payments may be accelerated, in accordance with requirements and |
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| conditions of the Treasury Regulations (or subsequent guidance) 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 ethics laws or conflicts of interest laws; (iv) in limited cash-outs (but not in excess of the limit under Code Section 402(g)(1)(B)); or (v) for any other purpose set forth in the Treasury Regulations and subsequent guidance. |
ARTICLE XI
AMENDMENT/TERMINATION
| 11.1 | This Plan shall not be amended or modified at any time, in whole or part, as to any Director, without the mutual written consent of the Director and the Bank, and such mutual consent shall be required even if the Director is no longer in the service of the Bank. |
| 11.2 | Complete Termination. The Board may completely terminate the Plan, subject to the requirements of Code Section 409A. In the event of complete termination, the Plan shall cease to operate and the Employer shall pay out to each Director his Account as if that Director had a Separation from Service as of the effective date of the complete termination. Such complete termination of the Plan shall occur only under the following circumstances and conditions: |
| (a) | The Board may terminate the Plan within 12 months of a corporate dissolution taxed under Code Section 331, or with approval of a bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the amounts deferred under the Plan are included in each Director’s gross income in the latest of (i) the calendar year in which the Plan terminates; (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) | The Board may take irrevocable action to terminate the Plan within the 30 days preceding a Change in Control (but not following a Change in Control), provided that (i) the termination shall take effect no earlier than the occurrence of the |
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| Change in Control, (ii) the Plan shall only be treated as terminated if all substantially similar arrangements sponsored by the Employer are terminated so that the Directors and all participants under substantially similar arrangements are required to receive all amounts of compensation deferred under the terminated arrangements within 12 months of the date of the termination of the arrangements; and (iii) all Directors who are participants in this Plan receive their full Retirement Benefit following such termination. |
| (c) | The Board may terminate the Plan provided that (i) the termination and liquidation does not occur proximate to a downturn in the financial health of the Bank, (ii) all arrangements sponsored by the Bank that would be aggregated with this Plan under Treasury Regulation 1.409A-1(c) if the Director covered by this Plan was also covered by any of those other arrangements are also terminated; (iii) no payments other than payments that would be payable under the terms of the arrangement if the termination had not occurred are made within twelve (12) months of the termination of the arrangement; (iv) all payments are made within twenty-four (24) months of the termination of the arrangements; and (v) the Bank does not 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 years following the date of termination of the arrangement. |
| (d) | The Board may terminate the Plan pursuant to such other terms and conditions as the Internal Revenue Service may permit from time to time. Any such termination shall comply with the requirements of Code Section 409A, to the extent applicable. |
ARTICLE XII
EXECUTION
| 12.1 | This Plan sets forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby, and any previous agreements or understandings between the parties hereto regarding the subject matter hereof are merged into and superseded by this Plan. |
| 12.2 | This Plan shall be executed in triplicate, each copy of which, when so executed and delivered, shall be an original, but all three copies shall together constitute one and the same instrument. |
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IN WITNESS WHEREOF, the Bank has caused this Plan to be executed and effective as of July 1, 2014.
| ATTEST: | CINCINNATI FEDERAL SAVINGS & LOAN ASSOCIATION | |||||
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
By: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||||
| Its: | Chairman | |||||
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