RESTATED SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
FOR
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
RESTATED SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
FOR ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
This Restated Supplemental Retirement Income Agreement (the
"Agreement"), effective as of the 1st day of January, 1998, supercedes the
Supplemental Retirement Income Agreement, entered into the 28th day of
February, 1997, and formalizes the understanding by and between POCAHONTAS
FEDERAL SAVINGS AND LOAN ASSOCIATION (the "Bank"), a federally chartered
savings association, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, hereinafter referred to as
"Participant".
W I T N E S S E T H :
WHEREAS, the Participant is employed by the Bank and serves on the
board of directors; and
WHEREAS, the Bank recognizes the valuable services heretofore
performed by the Participant and wishes to encourage continued employment
as well as continued service on the board of directors; and
WHEREAS, the Participant 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 or other termination of
employment and wishes to provide his beneficiary with benefits from and
after death; and
WHEREAS, the Bank and the Participant wish to provide the terms and
conditions upon which the Bank shall pay such additional compensation to
the Participant after retirement or other termination of employment and/or
death benefits to his beneficiary after death; and
WHEREAS, the Bank has adopted this Restated Supplemental Retirement
Income Agreement which controls all issues relating to benefits as
described herein and which supercedes the Supplemental Retirement Income
Agreement entered into on the 28th day of February, 1997;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises herein contained, the Bank and the Participant agree as follows:
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SECTION I
DEFINITIONS
When used herein, the following words and phrases shall have the
meanings below unless the context clearly indicates otherwise:
1.1 "Accrued Benefit Account" shall be represented by the bookkeeping
entries required to record the Participant'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 Participant or any
Beneficiary.
1.2 "Act" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.3 "Bank" means POCAHONTAS FEDERAL SAVINGS AND LOAN ASSOCIATION and any
successor thereto.
1.4 "Beneficiary" means the person or persons (and their heirs)
designated as Beneficiary in Exhibit B of this Agreement to whom the
deceased Participant's benefits are payable. If no Beneficiary is so
designated, then the Participant's Spouse, if living, will be deemed
the Beneficiary. If the Participant's Spouse is not living, then the
Children of the Participant will be deemed the Beneficiaries and will
take on a per stirpes basis. If there are no Children, then the
Estate of the Participant will be deemed the Beneficiary.
1.5 "Benefit Age" means the later of: (i) Participant's sixtieth (60th)
birthday or (ii) the actual date the Participant's full-time
employment with the Bank terminates.
1.6 "Benefit Eligibility Date" means the date on which the Participant 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
month in which the Participant attains his Benefit Age.
1.7 "Benefit 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 two
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hundred forty (240) months. Should the Participant make a Timely
Election to receive a lump sum benefit payment, the Participant's
Benefit Period shall be deemed to be one (1) month.
1.8 "Board of Directors" means the board of directors of the Bank.
1.9 "Cause" means 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 Agreement, or gross negligence in matters of
material importance to the Bank.
1.10 "Change in Control" of the Bank shall mean and include the
following:
(1) a Change in Control of a nature that would be required to be
reported in response to Item 1(a) of the current report on Form
8-K, as in effect on the date hereof, pursuant to Section 13 or
15(d) of the Securities Exchange Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇
▇▇▇"); or
(2) a change in control of the Bank within the meaning of 12 C.F.R.
574.4; or
(3) a Change in Control at such time as
(i) any "person" (as the term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial
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
directors, except for any stock purchased by the Bank's
Employee Stock Ownership Plan and/or trust; or
(ii) individuals who constitute the Board of Directors on the
date hereof (the "Incumbent 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
(iii) merger, consolidation, or sale of all or substantially all
of the assets of the Bank occurs; or
(iv) a proxy statement is issued soliciting proxies from the
stockholders of the Bank by someone other than the current
management of the Bank, seeking member stockholder
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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.
1.11 "Children" means all natural or adopted children of the Participant,
and issue of any predeceased child or children.
1.12 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
1.13 "Contribution(s)" means those annual contributions which the Bank is
required to make to the Retirement Income Trust Fund on behalf of the
Participant in accordance with Subsection 2.1(a) and in the amounts
set forth in Exhibit A of the Agreement.
1.14 (a) "Disability Benefit" means the benefit payable to the Participant
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.
(b) "Disability Benefit-Supplemental" (if applicable) means the
benefit payable to the Participant's Beneficiary upon the
Participant's death, in accordance with Subsection 6.1(b).
1.15 "Effective Date" of this restatement shall be January 1, 1998. The
Agreement was initially adopted on February 28, 1997.
1.16 "Estate" means the estate of the Participant.
1.17 "Interest Factor" means monthly compounding, discounting or
annuitizing, as applicable, at a rate set forth in Exhibit A.
1.18 "Phantom Contributions" means those annual Contributions which the
Bank is no longer required to make on behalf of the Participant to
the Retirement Income Trust Fund. Rather, once the Participant 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 Participant's Accrued Benefit
Account, pursuant to Subsection 2.1.
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1.19 "Plan Year" shall mean February 28th, 1996 through December 31, 1996,
for the first Plan Year. Thereafter, the term shall mean the twelve
(12) month period commencing January 1, 1997 and each consecutive
twelve (12) month period thereafter.
1.20 "Retirement Age" means the Participant's sixtieth (60th) birthday
provided; however, that the Participant's actual retirement from
full-time employment may occur at any later date mutually agreed upon
by the parties.
1.21 "Retirement Income Trust Fund" means the trust fund account
established by the Participant and into which annual Contributions
will be made by the Bank on behalf of the Participant pursuant to
Subsection 2.1. The contractual rights of the Bank and the
Participant with respect to the Retirement Income Trust Fund shall be
outlined in a separate writing to be known as the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Grantor Trust agreement.
1.22 "Spouse" means the individual to whom the Participant is legally
married at the time of the Participant's death.
1.23 "Supplemental Retirement Income Benefit" means an annual amount
(before taking into account federal and state income taxes), payable
in monthly installments throughout the Benefit 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.
1.24 "Timely Election" means the Participant has made an election to
change the form of his benefit payment(s) by filing with the
Administrator a Notice of Election to Change Form of Payment (Exhibit
C of this Agreement), such election having been made prior to the
event which triggers distribution and at least two (2) years prior to
the Participant's Benefit Eligibility Date; provided however, that if
all payments to the participant shall be made from the Retirement
Income Trust Fund, then a Timely Election is an election made at any
time.
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SECTION II
BENEFITS - GENERALLY
2.1 (a) Retirement Income Trust Fund and Accrued Benefit Account. The
Participant shall establish the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Grantor Trust into
which the Bank shall be required to make annual Contributions on the
Participant's behalf, pursuant to Exhibit A and this Section II of
the Agreement. A trustee shall be selected by the Participant. The
trustee shall maintain an account, separate and distinct from the
Participant'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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Grantor
Trust shall be made by the trustee to the Participant, for purposes
of payment of any income taxes due and owing on Contributions by the
Bank to the Retirement Income Trust Fund, if any, and on any taxable
earnings associated with such Contributions which the Participant
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 Participant 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Grantor Trust agreement, this
Agreement shall supersede the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Grantor Trust agreement.
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 fixed and
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 thirty (30)
days of establishment of such trust, and (ii) within the first ten
(10) days of the beginning of each subsequent Plan Year, unless this
Section expressly provides otherwise. Phantom Contributions, if any,
shall be recorded in the Accrued Benefit Account within the first ten
(10) days of the beginning of each applicable Plan Year, unless this
Section expressly provides otherwise. Phantom Contributions shall
accrue interest at a rate equal to the Interest Factor during the
Benefit Period, until the balance of the Accrued Benefit Account has
been fully distributed. Interest on any and all Phantom
Contributions shall not commence until such Benefit Period commences.
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(b) Withdrawal Rights Not Exercised.
(1) Contributions Made Annually
If the Participant does not exercise any withdrawal rights pursuant
to Subsection 2.2, the annual Contributions to the Retirement Income
Trust Fund included on Exhibit A 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 Participant's
termination of employment.
(2) Termination Following a Change in Control
If the Participant does not exercise his withdrawal rights pursuant
to Subsection 2.2 and a Change in Control occurs at the Bank,
followed at any time by either (i) the Participant's involuntary
termination of employment, or (ii) the Participant's voluntary
termination of employment after: (A) a material change in the
Participant's function, duties, or responsibilities, which change
would cause the Participant's position to become one of lesser
responsibility, importance, or scope from the position the
Participant held at the time of the Change in Control, (B) a
relocation of the Participant's principal place of employment 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 Participant from those being provided at the time of the
Change in Control, the Contribution set forth below shall be required
of the Bank in addition to all previous Contributions. The Bank
shall be required to make a final Contribution to the Retirement
Income Trust Fund within ten (10) days of the Participant's
termination of employment. The amount of such final Contribution
shall be equal to (i) $2,700,000 less (ii) the sum of all prior
Contributions to the Retirement Income Trust Fund.
(3) Termination For Cause
If the Participant (i) does not exercise his withdrawal rights
pursuant to Subsection 2.2, and (ii) 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) Involuntary Termination of Employment.
If (i) the Participant does not exercise his withdrawal rights
pursuant to Subsection 2.2, and (ii) the Participant's employment
with the Bank is involuntarily terminated for any reason other than a
termination related to disability, termination for Cause or
termination following a Change in Control, the Contribution set forth
below shall be required of the Bank. The Bank shall be required to
make
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a final Contribution to the Retirement Income Trust Fund within ten
(10) days of the Participant's involuntary termination of employment.
The amount of such final Contribution shall be equal to (i)
$2,700,000 less (ii)the sum of all prior Contributions to the
Retirement Income Trust Fund.
(5) Voluntary Termination of Employment.
If (i) the Participant does not exercise his withdrawal rights
pursuant to Subsection 2.2, and (ii) the Participant voluntary
terminates employment with the Bank, for any reason other than a
voluntary termination as described in Subsection 2.1(b)(2), the
Participant shall not be entitled to any further Contributions to the
Retirement Income Trust Fund subsequent to the date of such voluntary
termination of employment.
(6) Death Prior to Retirement Age.
(A) Death During Employment.
If the Participant (i) does not exercise any withdrawal rights
pursuant to Subsection 2.2, and (ii) dies while employed by the Bank
(including employment following a Change in Control), the Bank shall
be required to make a final Contribution to the Retirement Income
Trust Fund within ten (10) days of the Participant's death. The
amount of such final Contribution shall be equal to: (i) $2,700,000
less (ii) the sum of all prior Contributions to the Retirement Income
Trust Fund.
(B) Death Following Termination of Employment But Prior to Retirement Age.
If the Participant (i) does not exercise any withdrawal rights
pursuant to Subsection 2.2 and (ii) dies after termination of
employment for any reason other than Cause, but prior to Retirement
Age, the Bank shall be required to make a final Contribution to the
Retirement Income Trust Fund equal to $500,000.00.
(7) Termination Due to Disability.
If the Participant (i) does not exercise any withdrawal rights pursuant to
Subsection 2.2, and (ii) terminates employment due to disability, no further
Contributions shall be made on behalf of the Participant until the
Participant's death. Upon the Participant's death, the Bank shall be
required to make a final Contribution to the Retirement Income Trust
Fund. Such Contribution shall be made within ten (10) days of the date on
which the Bank learns of the participant's death. The amount of such
final Contribution shall be equal to: (i) $2,700,000 less (ii) the sum of
all prior Contributions to the Retirement Income Trust Fund.
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(c) Withdrawal Rights Exercised.
(1) Phantom Contributions Made Annually.
If the Participant 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 Participant's Accrued
Benefit Account within ten (10) days of the beginning of each Plan
Year, commencing with the first Plan Year following the Plan Year in
which the Participant 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 Participant's
termination of employment.
(2) Termination Following a Change in Control
If the Participant exercises his withdrawal rights pursuant to
Subsection 2.2, Phantom Contributions shall commence in the Plan Year
following the Plan Year in which the Participant first exercises his
withdrawal rights. If a Change in Control occurs at the Bank,
followed by either (i) the participant's involuntary termination of
employment or (ii) the participant's voluntary termination of
employment after: (A) a material change in the Participant's
function, duties, or responsibilities, which change would cause the
Participant's position to become one of lesser responsibility,
importance, or scope from the position the Participant held at the
time of the Change in Control, (B) a relocation of the Participant's
principal place of employment 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 Participant from those being
provided at the time of the Change in Control, the Phantom
Contribution set forth below shall be required of the Bank in
addition to all previous annual Phantom Contributions or
Contributions (as applicable). The Bank shall be required to record
a final lump sum Phantom Contribution in the Accrued Benefit Account
within ten (10) days of the Participant's termination of employment.
The amount of such final Phantom Contribution shall be equal to (i)
$2,700,000 less (ii) the sum of all prior Phantom Contributions
recorded in the Accrued Benefit Account and Contributions made to the
Retirement Income Trust Fund.
(3) Termination For Cause
If the Participant is terminated for Cause pursuant to Subsection
5.2, the entire balance of the Participant's Accrued Benefit Account
at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus accrued interest, shall
be forfeited.
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(4) Involuntary Termination of Employment.
If (i) the Participant exercises his withdrawal rights pursuant to
Subsection 2.2, and (ii) the Participant's employment with the Bank
is involuntarily terminated for any reason other than a termination
related to disability, termination for Cause, or termination
following a Change in Control, the Phantom Contribution set forth
below shall be required of the Bank. The Bank shall be required to
record a final Phantom Contribution in the Accrued Benefit Account
within ten (10) days of the Participant's involuntary termination of
employment. The amount of such final Phantom Contribution shall be
equal to (i) $2,700,000 less (ii) the sum of all prior Phantom
Contributions recorded in the Accrued Benefit Account and
Contributions made to the Retirement Income Trust Fund.
(5) Voluntary Termination of Employment.
If (i) the Participant exercises his withdrawal rights pursuant to
Subsection 2.2, and (ii) the Participant voluntarily terminates
employment with the Bank, for any reason other than a voluntary
termination as described in Subsection 2.1(c)(2), the Participant shall
not be entitled to any further Phantom Contributions subsequent to the
date of such voluntary termination of employment.
(6) Death Prior to Retirement Age.
(A) Death During Employment
If the Participant (i) exercises his withdrawal rights pursuant to
Subsection 2.2, and (ii) dies while employed by the Bank (including
employment following a Change in Control), the Bank shall be required
to record a final Phantom Contribution in the Participant's Accrued
Benefit Account. Phantom Contributions shall commence in the Plan
Year following the Plan Year in which the Participant exercises his
withdrawal rights and shall continue through the Plan Year in which
the Participant dies. The final Phantom Contribution shall be equal
to: (i) $2,700,000 less (ii) the sum of the all prior Phantom
Contributions recorded in the Accrued Benefit Account and/or
Contributions made to the Retirement Income Trust Fund. Such final
Phantom Contribution shall be recorded in the Accrued Benefit Account
within ten (10) days of the Participant's death.
(B) Death Following Termination of Employment But Prior to Retirement Age.
If the Participant (i) exercises his withdrawal rights pursuant to
Subsection 2.2, and (ii) dies after termination of employment for any
reason other than Cause, but prior to Retirement Age, the Bank shall be
required to record a final Phantom Contribution in the Accrued Benefit
Account equal to
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$500,000.00. Such final Phantom Contribution shall be recorded in
the Accrued Benefit Account within ten (10) days of the date on
which the Bank learns of the Participant's death.
(7) Termination Due to Disability
If the Participant (i) exercises his withdrawal rights pursuant to
Subsection 2.2, and (ii) terminates employment due to disability, no
further Phantom Contributions shall be recorded on behalf of the
Participant until the Participant's death. Upon the participant's
death, the Bank shall be required to record a final Phantom
Contribution in the Accrued Benefit Account. The final Phantom
Contribution shall be recorded within ten (10) days of the date on
which the Bank learns of the Participant's death. The amount of such
final Contribution shall be equal to : (i) $2,700,000 less (ii) the
sum of all prior Phantom Contributions recorded in the Accrued
Benefit Account and Contributions made to the Retirement Income Trust
Fund.
2.2 Withdrawals From Retirement Income Trust Fund.
Exercise of withdrawal rights by the Participant pursuant to the
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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, "exercise of withdrawal rights" shall mean those
withdrawal rights to which the Participant is entitled under Article
III of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Grantor Trust agreement and shall exclude
any distributions made by the trustee of the Retirement Income Trust
Fund to the Participant for purposes of payment of income taxes in
accordance with Subsection 2.1 of this Agreement, or other trust
expenses properly payable from the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 with the Contributions to and, if
applicable, earnings of the Trust, and such life insurance policy is
intended to continue in force beyond the Benefit 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 to provide the disability or retirement benefits payable under
this Agreement, after taking into
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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 Participant and payment of death
benefits thereunder.
SECTION III
RETIREMENT BENEFIT
3.1 (a) Normal form of payment.
If (i) the Participant is employed with the Bank at least until
reaching his Retirement Age, including employment with the Bank
following a Change in Control, and (ii) the Participant has not made
a Timely Election to receive a lump sum benefit, this Subsection
3.1(a) shall be controlling with respect to retirement benefits.
The Retirement Income Trust Fund, measured as of the Participant's
Benefit Age, shall be annuitized (using the Interest Factor) into
monthly installments and shall be payable for the Benefit Period.
Such benefit payments shall commence on the Participant's Benefit
Eligibility Date. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is
annuitized, which is less than the rate of return used to annuitize
the Retirement Income Trust Fund, no additional contributions to the
Retirement Income Trust Fund shall be required by the Bank in order
to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is greater than
the rate of return used to annuitize the Retirement Income Trust
Fund, the final benefit payment to the Participant (or his
Beneficiary) shall distribute the excess amounts attributable to the
greater-than-expected rate of return. In the event the Participant
dies at any time after attaining his Benefit Age, but prior to
commencement or completion of all the payments due and owing
hereunder, (i) the trustee of the Retirement Income Trust Fund shall
pay to the Participant'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 Benefit Period,
or (ii) the Participant's Beneficiary may request to receive the
unpaid balance of the Participant's Retirement Income Trust Fund in a
lump sum payment. If a lump sum payment is requested by the
Beneficiary, payment of the balance of the Retirement Income Trust
Fund in such lump sum form shall be made only if the Participant's
Beneficiary (i) obtains approval from the trustee of the ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Grantor Trust and (ii) notifies the Administrator in writing
of such election. Such lump sum payment, if approved by the trustee,
shall be payable within thirty (30) days of such trustee approval.
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The Participant's Accrued Benefit Account (if applicable), measured
as of the Participant's Benefit Age, shall be annuitized (using the
Interest Factor) into monthly installments and shall be payable for
the Benefit Period. Such benefit payments shall commence on the
Participant's Benefit Eligibility Date. In the event the Participant
dies at any time after attaining his Benefit Age, but prior to
commencement or completion of all the payments due and owing
hereunder, (i) the Bank shall pay to the Participant'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 Benefit Period, or (ii) the Participant's
Beneficiary may request to receive the remainder of any unpaid
benefit payments in a lump sum payment. If a lump sum payment is
requested by the Beneficiary, the amount of such lump sum payment
shall be equal to the unpaid balance of the Participant's Accrued
Benefit Account. Payment in such lump sum form shall be made only if
the Participant's Beneficiary (i) obtains Board of Director approval,
and (ii) notifies the Administrator in writing of such election.
Such lump sum payment, if approved by the Board of Directors, shall
be made within thirty (30) days of such Board of Director approval.
(b) Alternative payout option.
If (i) the Participant is employed with the Bank at least until
reaching his Retirement Age, including employment with the Bank
following a Change in Control, and (ii) the Participant has made a
Timely Election to receive a lump sum benefit, this Subsection 3.1(b)
shall be controlling with respect to retirement benefits.
The balance of the Retirement Income Trust Fund, measured as of the
Participant's Benefit Age, shall be paid to the Participant in a lump
sum on his Benefit Eligibility Date. In the event the Participant
dies after becoming eligible for such payment (upon attainment of his
Benefit Age), but before the actual payment is made, his Beneficiary
shall be entitled to receive the lump sum benefit in accordance with
this Subsection 3.1(b) within thirty (30) days of the date the
Administrator receives notice of the Participant's death.
The balance of the Participant's Accrued Benefit Account (if
applicable), measured as of the Participant's Benefit Age, shall be
paid to the Participant in a lump sum on his Benefit Eligibility
Date. In the event the Participant dies after becoming eligible for
such payment (upon attainment of his Benefit Age), but before the
actual payment is made, his Beneficiary shall be entitled to receive
the lump sum benefit in accordance with this Subsection 3.1(b) within
thirty (30) days of the date the Administrator receives notice of the
Participant's death.
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SECTION IV
PRE-RETIREMENT DEATH BENEFIT
4.1 (a) Normal form of payment.
If (i) the Participant dies while employed by the Bank, including
death during employment following a Change in Control, and (ii) the
Participant has not made a Timely Election to receive a lump sum
benefit, this Subsection 4.1(a) shall be controlling with respect to
pre-retirement death benefits.
The Participant's Retirement Income Trust Fund, measured as of the
later of (i) the Participant's death, or (ii) the date any final lump
sum Contribution is made pursuant to Subsection 2.1(b), shall be
annuitized (using the Interest Factor) into monthly installments and
shall be payable to the Participant's Beneficiary for the Benefit
Period. Such benefit payments shall commence within thirty (30) days
of the date the Administrator receives notice of the Participant's
death, or if later, within thirty (30) days after any final lump sum
Contribution is made to the Retirement Income Trust Fund in
accordance with Subsection 2.1(b). Should Retirement Income Trust
Fund assets actually earn a rate of return, following the date such
balance is annuitized, which is less than the rate of return used to
annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required
by the Bank in order to fund the final benefit payment(s) and make
up for any shortage attributable to the less-than-expected rate of
return. Should Retirement Income Trust Fund assets actually earn a
rate of return, following the date such balance is annuitized, which
is greater than the rate of return used to annuitize the Retirement
Income Trust Fund, the final benefit payment to the Participant's
Beneficiary shall distribute the excess amounts attributable to the
greater-than-expected rate of return. The Participant's Beneficiary
may request to receive the unpaid balance of the Participant's
Retirement Income Trust Fund in a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of
the Retirement Income Trust Fund in such lump sum form shall be made
only if the Participant's Beneficiary (i) obtains approval from the
trustee of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Grantor Trust and (ii) notifies the
Administrator in writing of such election. Such lump sum payment, if
approved by the trustee, shall be made within thirty (30) days of
such trustee approval.
The Participant's Accrued Benefit Account (if applicable), measured
as of the later of (i) the Participant'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 Participant's Beneficiary for the Benefit Period. Such
14
benefit payments shall commence within thirty (30) days of the date
the Administrator receives notice of the Participant'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). The Participant's Beneficiary may request to
receive the remainder of any unpaid monthly benefit payments due from
the Accrued Benefit Account in a lump sum payment. If a lump sum
payment is requested by the Beneficiary, the amount of such lump sum
payment shall be equal to the balance of the Participant's Accrued
Benefit Account. Payment in such lump sum form shall be made only if
the Participant's Beneficiary (i) obtains Board of Director approval,
and (ii) notifies the Administrator in writing of such election.
Such lump sum payment, if approved by the Board of Directors, shall
be payable within thirty (30) days of such Board of Director
approval.
(b) Alternative payout option.
If (i) the Participant dies while employed by the Bank, including
death during employment following a Change in Control, and (ii) the
Participant has made a Timely Election to receive a lump sum benefit,
this Subsection 4.1(b) shall be controlling with respect to
pre-retirement death benefits.
The balance of the Participant's Retirement Income Trust Fund,
measured as of the later of (i) the Participant's death, or (ii) the
date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be paid to the Participant's Beneficiary in a lump sum
within thirty (30) days of the date the Administrator receives notice
of the Participant's death.
The balance of the Participant's Accrued Benefit Account (if
applicable), measured as of the later of (i) the Participant's death,
or (ii) the date any final Phantom Contribution is recorded pursuant
to Subsection 2.1(c), shall be paid to the Participant's Beneficiary
in a lump sum within thirty (30) days of the date the Administrator
receives notice of the Participant's death.
SECTION V
BENEFIT(S) IN THE EVENT OF TERMINATION OF EMPLOYMENT
PRIOR TO RETIREMENT AGE
5.1 Voluntary or Involuntary Termination of Employment Other Than for
Cause. In the event the Participant's employment with the Bank is
voluntarily or involuntarily terminated prior to Retirement
15
Age, for any reason including a Change in Control, but excluding (i)
the Participant's pre-retirement death, which shall be covered in
Section IV, (ii) termination for Cause, which shall be covered in
Subsection 5.2, or (iii) termination due to disability, which shall
be covered in Section VI, the Participant (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) Normal form of payment.
(1) Participant Lives Until Benefit Age
If (i) after such termination, the Participant lives until attaining
his Benefit Age, and (ii) the Participant has not made a Timely
Election to receive a lump sum benefit, then payments made under this
Subsection 5.1(a)(1) shall be made in the same manner as under
Subsection 3.1(a).
(2) Participant Dies Prior to Benefit Age
If (i) after such termination, the Participant dies prior to
attaining his Benefit Age, and (ii) the Participant has not made a
Timely Election to receive a lump sum benefit, then payments made
under this Subsection 5.1(a)(2) shall be made in the same time and
manner as under Subsection 4.1(a).
(b) Alternative Payout Option.
(1) Participant Lives Until Benefit Age
If (i) after such termination, the Participant lives until attaining
his Benefit Age, and (ii) the Participant has made a Timely Election
to receive a lump sum benefit, this Subsection 5.1(b)(1) shall be
controlling with respect to retirement benefits.
The balance of the Retirement Income Trust Fund, measured as of the
Participant's Benefit Age, shall be paid to the Participant in a lump
sum on his Benefit Eligibility Date. In the event the Participant
dies after becoming eligible for such payment (upon attainment of his
Benefit Age), but before the actual payment is made, his Beneficiary
shall be entitled to receive the lump sum benefit in accordance with
this Subsection 5.1(b)(1) within thirty (30) days of the date the
Administrator receives notice of the Participant's death.
The balance of the Participant's Accrued Benefit Account (if
applicable), measured as of the Participant's Benefit Age, shall be
paid to the Participant in a lump sum on his Benefit Eligibility
Date. In the event the Participant dies after becoming eligible for
such payment (upon attainment of his
16
Benefit Age), but before the actual payment is made, his Beneficiary
shall be entitled to receive the lump sum benefit in accordance with this
Subsection 5.1(b)(1) within thirty (30) days of the date the
Administrator receives notice of the Participant's death.
(2) Participant Dies Prior to Benefit Age
If (i) after such termination, the Participant dies prior to
attaining his Benefit Age, and (ii) the Participant has made a Timely
Election to receive a lump sum benefit, this Subsection 5.1(b)(2)
shall be controlling with respect to retirement benefits.
The balance of the Retirement Income Trust Fund, measured as of the
date of the Participant's death, shall be paid to the Participant's
Beneficiary within thirty (30) days of the date the Administrator
receives notice of the Participant's death.
The balance of the Participant's Accrued Benefit Account (if
applicable), measured as of the date of the Participant's death,
shall be paid to the Participant's Beneficiary within thirty (30)
days of the date the Administrator receives notice of the
Participant's death.
5.2 Termination For Cause.
If the Participant 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 Participant shall be entitled to
receive a benefit in accordance with this Subsection 5.2.
The balance of the Participant's Retirement Income Trust Fund shall
be paid to the Participant in a lump sum on his Benefit Eligibility
Date. In the event the Participant dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the
balance of the Participant's Retirement Income Trust Fund in a lump
sum within thirty (30) days of the date the Administrator receives
notice of the Participant's death.
17
SECTION VI
OTHER BENEFITS
6.1 (a) Disability Benefit.
If the Participant's employment terminates prior to Retirement Age
due to a disability which meets the criteria set forth below, the
Participant shall be entitled to receive the Disability Benefit in
lieu of the retirement benefit(s) available pursuant to Section 5.1
(which is (are) not available prior to the Participant's Benefit
Eligibility Date).
Notwithstanding any other provision hereof, if requested by the
Participant and approved by the Board of Directors, the Participant
shall receive a lump sum disability benefit hereunder, in any case in
which it is determined by a duly licensed independent physician
selected by the Bank, that the Participant is no longer able,
properly and satisfactorily, to perform his regular duties as an
officer and director, because of ill health, accident disability or
general ability due to age. The lump sum benefit(s) to which the
Participant is entitled shall include: (i) the balance of the
Retirement Income Trust Fund, plus (ii) the balance of the Accrued
Benefit Account (if applicable), both measured as of the date of the
disability determination. The benefit(s) shall be paid within thirty
(30) days following the date of the Participant's request for such
benefit. In the event the Participant dies after becoming eligible
for such payment(s) but before the actual payment(s) is (are) made,
his Beneficiary shall be entitled to the benefit(s) provided for in
this Subsection 6.1(a) within thirty (30) days of the date the
Administrator receives notice of the Participant's death.
(b) Disability Benefit-Supplemental
Within thirty (30) days of the Participant's death, the Bank shall
pay a direct, lump sum payment to the Participant's Beneficiary equal
to the sum of all prior Contributions to the Retirement Income Trust
Fund and/or Phantom Contributions recorded in the Accrued Benefit
Account, after taking into consideration the final Contribution or
Phantom Contribution recorded pursuant to subsections 2(b)(7) and
2(c)(7). Such lump sum payment, shall be payable within thirty (30)
days of the date the Administrator receives notice of the
Participant's death.
6.2 Additional Death Benefit - Burial Expense.
Upon the Participant's death, the Participant's Beneficiary shall also be
entitled to receive a one-time lump sum death benefit in the amount of
Fifteen Thousand Dollars ($15,000.00). 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
18
the Participant. Such death benefit shall be payable within thirty (30)
days from the date the Administrator receives notice of the Participant's
death. The Participant's Beneficiary shall not be entitled to such
benefit if the Participant is terminated for Cause prior to death.
SECTION VII
NON-COMPETITION
7.1 Non-Competition
In consideration of the agreements of the Bank contained herein and
of the payments to be made by the Bank pursuant hereto, the
Participant hereby agrees that, for as long as he remains employed by
the Bank, he will devote substantially all of his time, skill,
diligence and attention to the business of the Bank, and will 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. The Participant further agrees that following his
employment with the Bank and continuing through the Benefit Period
he will 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 Bank,
unless the Participant has the prior express written consent of the
Board of Directors of the Bank.
7.2 Breach of Non-Competition Clause.
(a) During Employment.
In the event the Participant breaches Subsection 7.1 while employed
at the Bank, all further Contributions to the Retirement Income Trust
Fund (or Phantom Contributions to the Accrued Benefit Account) shall
immediately cease, and 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. If, following such breach, the Participant lives until
attaining his Benefit Age, he shall be entitled to receive a benefit
from the Retirement Income Trust Fund equal to the balance of the
Retirement Income Trust Fund, measured as of the Participant's
Benefit Age, payable in a lump sum on his Benefit Eligibility Date.
In the event the Participant dies after attaining his Benefit Age but
before actual payment is made, his Beneficiary shall be entitled to
receive the lump sum benefit payable within thirty (30) days of the
date of the Administrator receives notice of the Participant's death.
If, following such breach, the Participant dies prior to attaining
his Benefit Age, his Beneficiary shall be entitled to receive a
benefit from the Retirement Income Trust Fund equal to the balance of
the Retirement Income Trust Fund, measured as of the date of the
Participant's death,
19
payable in a lump sum within thirty (30) days of the date the
Administrator receives notice of the Participant's death.
In the event (i) any breach by the Participant of the agreements and
covenants described in Subsection 7.1 occurs, and (ii) the
Participant's employment with the Bank is terminated due to such
breach, such termination shall be deemed to be for Cause and the
benefits payable to the Participant shall be paid in accordance with
Subsection 5.2 of this Agreement.
(b) Breach Following Termination of Employment.
In the event the Participant breaches Subsection 7.1 following the
Participant's termination of employment with the Bank, all benefits
under this Agreement, other than those which can be paid from
previous Contributions to the Retirement Income Trust Fund shall be
forfeited, regardless of whether the Participant is receiving
benefits at such time. If the Participant has attained his Benefit
Age and is receiving a benefit at the time of such breach, his
remaining balance in the Retirement Income Trust Fund shall be paid
to him in a lump sum within thirty (30) days of the date the Bank
has received notice of such breach (or in the event of his death
prior to payment of such lump sum, to his Beneficiary). If the
Participant has not attained his Benefit Age, and following such
breach, the Participant lives until his Benefit Age, he (or his
Beneficiary, in the event of his death prior to payment of his
benefit) shall receive a benefit payable in a lump sum from the
Retirement Income Trust Fund in the same manner as set forth above in
Subsection 7.2(a).
In the event of a termination related to a Change in Control as
described in Subsection 2.1(b)(2) (or 2.1(c)(2)), paragraph (b) of
this Subsection shall cease to be a condition to the performance by
the Bank of its obligations under this Agreement.
SECTION VIII
BENEFICIARY DESIGNATION
The Participant 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.
20
SECTION IX
PARTICIPANT'S RIGHT TO ASSETS
The rights of the Participant, any Beneficiary, or any other person
claiming through the Participant under this Agreement, shall be
solely those of an unsecured general creditor of the Bank, unless
this Agreement provides otherwise. The Participant, the
Beneficiary, or any other person claiming through the Participant,
shall only have the right to receive from the Bank those payments so
specified under this Agreement. The Participant agrees that he, his
Beneficiary, or any other person claiming through him shall have no
rights or interests whatsoever in any asset of the Bank, including
any insurance policies or contracts which the Bank may possess or
obtain to informally fund this Agreement. Any asset used or acquired
by the Bank in connection with the liabilities it has assumed under
this Agreement, unless expressly provided herein, shall not be deemed
to be held under any trust for the benefit of the Participant or his
Beneficiaries, nor shall any asset be considered security for the
performance of the obligations of the Bank. Any such asset shall be
and remain, a general, unpledged, and unrestricted asset of the Bank.
SECTION X
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, unless this Agreement provides otherwise. Except as
otherwise provided for in this Agreement, the Participant, 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 terminate such assets
at any time, in whole or in part. At no time shall the Participant
be deemed to have any lien, right, title or interest in or to any
specific investment or to any assets of the Bank. If the Bank
elects to invest in a life insurance, disability or annuity policy
upon the life of the Participant, then the Participant shall assist
the Bank by freely submitting to a physical examination and by
supplying such additional information necessary to obtain such
insurance or annuities.
21
SECTION XI
ACT PROVISIONS
11.1 Named Fiduciary and Administrator. The Bank shall be the
Administrator (the "Administrator") 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.
11.2 Claims Procedure and Arbitration. In the event that benefits under
this Agreement are not paid to the Participant (or to his Beneficiary
in the case of the Participant's death) and such claimants feel they
are entitled to receive such benefits, then a written claim must be
made to the Administrator within sixty (60) days from the date
payments are refused. The Administrator shall review the written
claim and, if the claim is denied, in whole or in part, it shall
provide in writing, within ninety (90) days of receipt of such claim,
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 Agreement or the meaning and effect of
the terms and conditions thereof, then claimants may submit the
dispute to a Board of Arbitration for final arbitration. Said Board
of Arbitration shall consist of one member selected by the claimant,
one member selected by the Bank, and the third member selected by the
first two members. The Board of Arbitration shall operate under any
generally recognized set of arbitration rules. The parties hereto
agree that they, their heirs, personal representatives, successors
and assigns shall be bound by the decision of such Board of
Arbitration with respect to any controversy properly submitted to it
for determination.
22
SECTION XII
MISCELLANEOUS
12.1 No Effect on Employment Rights. Nothing contained herein will confer
upon the Participant the right to be retained in the employ of the
Bank nor limit the right of the Bank to discharge or otherwise deal
with the Participant without regard to the existence of the
Agreement. Pursuant to 12 C.F.R. Section 563.39(b), the following
conditions shall apply to this Agreement:
(1) The Bank's Board of Directors may terminate the Participant
at any time, but any termination by the Bank's Board of
Directors other than termination for Cause shall not
prejudice the Participant's vested right to compensation or
other benefits under the contract. As provided in
Subsection 5.2, the Participant shall have no right to
receive additional compensation or other benefits, other
than those provided for in Subsection 5.2, after
termination for Cause.
(2) If the Participant is suspended and/or temporarily
prohibited from participating in the conduct of the Bank's
affairs by a notice served under Section 8(e)(3) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)(3)
and (g)(1)) the Bank's obligations under the contract shall
be suspended (except vested rights) as of the date of
termination of employment unless stayed by appropriate
proceedings. If the charges in the notice are dismissed,
the Bank may in its discretion (i) pay the Participant all
or part of the compensation withheld while its contract
obligations were suspended and (ii) reinstate (in whole or
in part) any of its obligations which were suspended.
(3) If the Participant is terminated and/or permanently
prohibited from participating in the conduct of the Bank's
affairs by an order issued under Section 8(e)(4) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)(4)
or (g)(1)), all non-vested obligations of the Bank under
the contract shall terminate as of the effective date of
the order.
(4) If the Bank is in default (as defined in Section 3(x)(1)
of the Federal Deposit Insurance Act), all non-vested
obligations under the contract shall terminate as of the
date of default.
23
(5) All non-vested obligations under the contract shall be
terminated, except to the extent determined that
continuation of the contract is necessary for the continued
operation of the Bank:
(i) by the Director of the Federal Deposit Insurance
Corporation or his designee at the time the Federal
Deposit Insurance Corporation enters into an agreement
to provide assistance to or on behalf of the Bank
under the authority contained in Section 13(c) of the
Federal Deposit Insurance Act; or
(ii) by the Director of the Federal Deposit Insurance
Corporation or his designee, at the time the Director
or his designee approves a supervisory merger to
resolve problems related to operation of the Bank or
when the Bank is determined by the Director to be in
an unsafe or unsound condition.
Any rights of the parties that have already vested, (i.e., the
balance of the Participant's Retirement Income Trust Fund and the
balance of the Participant's Accrued Benefit Account, if applicable),
however, shall not be affected by such action.
12.2 State Law. The Agreement is established under, and will be construed
according to, the laws of the state of Arkansas, to the extent such
laws are not preempted by the Act and valid regulations published
thereunder.
12.3 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: (i) insofar as is
reasonable, effect will be given to the intent manifested in the
provisions held invalid or inoperative, and (ii) the validity and
enforceability of the remaining provisions will not be affected
thereby.
12.4 Incapacity of Recipient. In the event the Participant 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 Participant is entitled shall be paid to such
conservator or other person legally charged with the care of his
person or Estate.
12.5 Unclaimed Benefit. The Participant 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
24
of any person. If the location of the Participant 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 Participant's benefit payment(s) until the location of the
Participant is made known to the Bank; however, the Bank shall only be
obligated to hold such benefit payment(s) for the Participant until the
expiration of thirty-six (36) months. Upon expiration of the thirty-six
(36) month period, the Bank may discharge its obligation by payment to
the Participant's Beneficiary. If the location of the Participant's
Beneficiary is not made known to the Bank by the end of an additional
two (2) month period following expiration of the thirty-six (36) month
period, the Bank may discharge its obligation by payment to the
Participant's Estate. If there is no Estate in existence at such time
or if such fact cannot be determined by the Bank, the Participant and
his Beneficiary(ies) shall thereupon forfeit any rights to the balance,
if any, of the Participant's Accrued Benefit Account provided for such
Participant and/or Beneficiary under this Agreement.
12.6 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 Directors shall be
personally liable to the Participant or any other person for any
claim, loss, liability or expense incurred in connection with the
Agreement.
12.7 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.
12.8 Effect on Other Corporate Benefit Agreements. Nothing contained in
this Agreement shall affect the right of the Participant 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.
12.9 Suicide. Notwithstanding anything to the contrary in this Agreement,
if the Participant'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
25
Retirement Income Trust Fund, measured as of the Participant's date
of death, shall be paid to the Beneficiary within thirty (30) days of
the date the Administrator receives notice of the Participant's
death.
12.10 Inurement. This Agreement shall be binding upon and shall inure
to the benefit of the Bank, its successors and assigns, and the
Participant, his successors, heirs, executors, administrators,
and Beneficiaries.
12.11 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.
12.12 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 Participant 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.
SECTION XIII
AMENDMENT/PLAN TERMINATION
13.1 Amendment or Plan Termination. The Bank intends this Agreement to
be permanent, but reserves the right to amend or terminate the
Agreement when, in the sole opinion of the Bank, such amendment or
termination is advisable. However, any termination of the Agreement
which is done in anticipation of or following to a "Change in
Control", as defined in Subsection 1.9, shall be deemed to trigger
Subsection 2.1(b)(2) (or 2.1(c)(2), as applicable) of the Agreement
notwithstanding the Participant's continued employment, and
benefit(s) shall be paid from the Retirement Income Trust Fund (and
Accrued Benefit Account, if applicable) in accordance with Subsection
13.2 below and with Subsections 2.1(b)(2) (or 2.1(c)(2), as
applicable). 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 Participant of all or any portion of the
Participant's Retirement Income Trust Fund (and Accrued Benefit
Account, if applicable) as of the effective date of the resolution
amending or terminating the Agreement.
26
13.2 Participant's Right to Payment Following Plan Termination. In the
event of a termination of the Agreement, the Participant shall be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and Accrued Benefit Account, if applicable), measured as of the date
of plan termination. However, if such termination is done in
anticipation of or pursuant to a "Change in Control," such balance(s)
shall be measured as of the date the final Contribution (or Phantom
Contribution) is made (or recorded) pursuant to Subsection 2.1(b)(2)
(or 2.1(c)(2)). Payment of the balance(s) of the Participant's
Retirement Income Trust Fund (and Accrued Benefit Account, if
applicable) shall not be dependent upon his continuation of
employment with the Bank following the termination date of the
Agreement. Payment of the balance(s) of the Participant'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 XIV
EXECUTION
14.1 This Agreement and the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Grantor Trust agreement.
14.2 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.
27
IN WITNESS WHEREOF, the Bank and the Participant have caused this
Agreement to be executed on the day and date first above written.
POCAHONTAS FEDERAL SAVINGS AND
LOAN ASSOCIATION:
ATTEST:
By:
--------------------------------
---------------------- --------------------------------
Secretary (Title)
WITNESS: PARTICIPANT:
---------------------- ------------------------------------
28
CONDITIONS, ASSUMPTIONS,
AND
SCHEDULE OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1. Interest Factor - for purposes of:
a. the Accrued Benefit Account - shall be equal to Six and
One-Half Percent (6 1/2%), compounded monthly.
b. the Retirement Income Trust Fund - shall be Four percent (4%)
per annum, compounded monthly, provided, however, that for
purposes of annuitizing the balance of the Retirement Income
Trust Fund over the Benefit Period, the trustee of the ▇▇▇▇▇
▇▇▇▇▇▇▇▇ 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.
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 straight-line accounting accruals which
would be required of the Bank until the Participant's Retirement Age,
assuming a discount rate equal to the Interest Factor (for the
Accrued Benefit Account), in order to fully record the present value
of the unfunded, non-qualified Supplemental Retirement Income Benefit
as of the Participant's Retirement Age.
3. Supplemental Retirement Income Benefit means an actuarially
determined annual amount equal to One Hundred Forty-Seven Thousand
One Hundred and Forty-Three Dollars ($147,143) at age 60 if paid
entirely from the Accrued Benefit Account or One Hundred and Three
Thousand Dollars ($103,000) 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
Plan Year Amount
--------- ---------
1996 $ 122,405
1997 $ 107,459
1998 $ 143,299
1999 $ 143,299
2000 $ 143,299
2001 $ 143,299
2002 $ 143,299
2003 $ 143,299
2004 $ 143,299
2005 $ 143,299
2006 $ 143,299
2007 $ 143,299
2008 $ 143,299
2009 $ 143,299
2010 $ 143,299
RESTATED SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
BENEFICIARY DESIGNATION
The Participant, under the terms of the Restated Supplemental
Retirement Income Agreement executed by the Bank, dated the 1st day of
January,1998, hereby designates the following Beneficiary(ies) to receive
any guaranteed payments or death benefits under such Agreement, following
his death:
PRIMARY BENEFICIARY: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
SECONDARY BENEFICIARY: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
equally
This Beneficiary Designation hereby revokes any prior Beneficiary
Designation which may have been in effect.
Such Beneficiary Designation is revocable.
DATE: ______________________, 19____
___________________________________
______________________________
(WITNESS) PARTICIPANT
___________________________________
(WITNESS)
Exhibit B
RESTATED SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
NOTICE OF ELECTION TO CHANGE FORM OF PAYMENT
TO: Bank
Attention:
I hereby give notice of my election to change the form of payment of
my Supplemental Retirement Income Benefit, as specified below. I
understand that such notice, in order to be effective, must be submitted
in accordance with the time requirements described in my Restated
Supplemental Retirement Income Agreement.
/ / I hereby elect to change the form of payment of my benefits from
monthly installments throughout my Benefit Period to a lump sum
benefit payment.
/ / I hereby elect to change the form of payment of my benefits from
a lump sum benefit payment to monthly installments throughout my
Benefit Period. Such election hereby revokes my previous notice
of election to receive a lump sum form of benefit payments.
PARTICIPANT
Date
Acknowledged
By:
Title:
Date