GS FINANCIAL CORP. AMENDED AND RESTATED
Exhibit
10.2
AMENDED
AND RESTATED
ARTICLE
I
ESTABLISHMENT
OF THE PLAN AND TRUST
1.01 GS
Financial Corp. (the "Corporation") hereby amends and restates its 1997
Recognition and Retention Plan (as amended and restated, the "Plan") and Trust
(the "Trust") upon the terms and conditions hereinafter stated in this amended
and restated 1997 Recognition and Retention Plan and Trust Agreement (the
"Agreement"), with the amendment and restatement effective as of November 18,
2008. The Plan is being amended and restated in order to comply with
Section 409A of the Code, as defined herein.
1.02 The
Trustee hereby accepts this Trust and agrees to hold the Trust assets existing
on the date of this Agreement and all additions and accretions thereto upon the
terms and conditions hereinafter stated.
ARTICLE
II
PURPOSE
OF THE PLAN
The
purpose of the Plan is to retain personnel of experience and ability in key
positions by providing Employees and Non-Employee Directors of the Corporation
and Guaranty Savings Bank (the "Bank") with a proprietary interest in the
Corporation as compensation for their contributions to the Corporation and the
Bank and as an incentive to make such contributions in the
future.
ARTICLE
III
DEFINITIONS
The
following words and phrases when used in this Agreement with an initial capital
letter, unless the context clearly indicates otherwise, shall have the meanings
set forth below. Wherever appropriate, the masculine pronouns shall
include the feminine pronouns and the singular shall include the
plural.
3.01 "Bank"
means Guaranty Savings Bank, the wholly-owned subsidiary of the
Corporation.
3.02 "Beneficiary"
means the person or persons designated by a Recipient to receive any benefits
payable under the Plan in the event of such Recipient's death. Such
person or persons shall be designated in writing on forms provided for this
purpose by the Committee and may be changed from time to time by similar written
notice to the Committee. In the absence of a written designation, the
Beneficiary shall be the Recipient's surviving spouse, if any, or if none, his
estate.
3.03 "Board"
means the Board of Directors of the Corporation.
3.04 "Change
in Control" shall mean a change in the ownership of the Corporation or the Bank,
a change in the effective control of the Corporation or the Bank, or a change in
the ownership of a substantial portion of the assets of the Corporation or the
Bank, in each case as provided under Section 409A of the Code and the
regulations thereunder.
3.05 "Code"
means the Internal Revenue Code of 1986, as amended.
3.06 "Committee"
means the committee appointed by the Board pursuant to Article IV
hereof.
3.07 "Common
Stock" means shares of the common stock, $.01 par value per share, of the
Corporation.
3.08 "Disability"
means the Recipient (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 continuous
period of not less than 12 months, or (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 of the
Corporation or the Bank (or would have received such benefits for at least three
months if he had been eligible to participate in such plan).
3.09 "Effective
Date" means the day upon which the Board originally adopted this
Plan.
3.10 "Employee"
means any person who is employed by the Corporation, the Bank or a Subsidiary,
or is an officer of the Corporation, the Bank or a Subsidiary, including
officers or other employees who may be directors of the Corporation or the
Bank.
3.11 "Exchange
Act" means the Securities Exchange Act of 1934, as amended.
3.12 "Non-Employee
Director" means a member of the Board of the Corporation or Board of Directors
of the Bank or any Subsidiary, including a Director Emeritus of the Board of
Directors of the Corporation or the Board of Directors of the Bank, who is not
an Officer or Employee of the Corporation or any Subsidiary.
3.13 "Plan
Shares" or "Shares" means shares of Common Stock held in the Trust which may be
distributed to a Recipient pursuant to the Plan.
3.14 "Plan
Share Award" or "Award" means a right granted under this Plan to receive a
distribution of Plan Shares upon completion of the service requirements
described in Article VII.
3.15 "Recipient"
means an Employee or a Non-Employee Director who receives a Plan Share Award
under the Plan.
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3.16 "Subsidiary"
means the Bank and any other subsidiaries of the Corporation or the Bank which,
with the consent of the Board, agree to participate in this
Plan.
3.17 "Trustee"
means such firm, entity or persons approved by the Board to hold legal title to
the Plan for the purposes set forth herein.
ARTICLE
IV
ADMINISTRATION
OF THE PLAN
4.01 Role
of the Committee. The Plan shall be administered and
interpreted by the Committee, which shall consist of two or more members of the
Board, each of whom shall be a Non-Employee Director, as defined in Rule
16b-3(b)(3)(i) of the Exchange Act, or any successor thereto. The
Committee shall have all of the powers allocated to it in this and other
Sections of the Plan. The interpretation and construction by the
Committee of any provisions of the Plan or of any Plan Share Award granted
hereunder shall be final and binding in the absence of action by the
Board. The Committee shall act by vote or written consent of a
majority of its members. Subject to the express provisions and
limitations of the Plan, the Committee may adopt such rules, regulations and
procedures as it deems appropriate for the conduct of its
affairs. The Committee shall report its actions and decisions with
respect to the Plan to the Board at appropriate times, but in no event less than
one time per calendar year.
4.02 Role
of the Board. The members of the Committee and the Trustee
shall be appointed or approved by, and will serve at the pleasure of, the
Board. The Board may in its discretion from time to time remove
members from, or add members to, the Committee, and may remove or replace the
Trustee, provided that any directors who are selected as members of the
Committee shall be Non-Employee Directors.
4.03 Limitation
on Liability. No
member of the Board or the Committee shall be liable for any determination made
in good faith with respect to the Plan or any Plan Shares or Plan Share Awards
granted under it. If a member of the Board or the Committee is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of anything done or not done by him in such capacity
under or with respect to the Plan, the Corporation shall, subject to the
requirements of applicable laws and regulations, indemnify such member against
all liabilities and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in the best interests of the Corporation and any
Subsidiaries and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
4.04 Compliance
with Laws and Regulations. All
Awards granted hereunder shall be subject to all applicable federal and state
laws, rules and regulations and to such approvals by any government or
regulatory agency or stockholders as may be required.
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4.05 No
Deferral of Compensation Under Section 409A of the Code. All
Awards granted under the Plan are designed to not constitute a deferral of
compensation for purposes of Section 409A of the Code. No Recipient
shall be permitted to defer the recognition of income beyond the date an Award
shall be deemed earned pursuant to Article VII of the Plan.
ARTICLE
V
CONTRIBUTIONS
5.01 Amount
and Timing of Contributions. The
Board shall determine the amount (or the method of computing the amount) and
timing of any contributions by the Corporation and any Subsidiaries to the Trust
established under this Plan. Such amounts may be paid in cash or in
shares of Common Stock and shall be paid to the Trust at the designated time of
contribution. No contributions by Employees or Non-Employee Directors
shall be permitted.
5.02 Investment
of Trust Assets; Number of Plan Shares. Subject
to Section 8.02 hereof, the Trustee shall invest all of the Trust's assets
primarily in Common Stock. The aggregate number of Plan Shares
available for distribution pursuant to this Plan shall be 137,540 shares of
Common Stock, subject to adjustment as provided in Section 9.01 hereof, which
shares shall be purchased (from the Corporation and/or, if permitted by
applicable regulations, from stockholders thereof) by the Trust with funds
contributed by the Corporation.
ARTICLE
VI
ELIGIBILITY;
ALLOCATIONS
6.01 Awards
to Non-Employee Directors. Plan
Share Awards to Non-Employee Directors shall be made to such persons and in such
amounts as determined by the Board or the Committee. Plan Share
Awards to Non-Employee Directors in the aggregate shall not exceed 41,262 shares
(30% of the number of shares available under this Plan) and no individual
Non-Employee Director may receive Plan Share Awards in excess of 6,877 shares
(5% of the number of shares available under this Plan).
6.02 Awards
to Employees. Plan Share Awards may be made to such Employees
as may be selected by the Board or the Committee. In selecting those
Employees to whom Plan Share Awards may be granted and the number of Shares
covered by such Awards, the Board or the Committee shall consider the duties,
responsibilities and performance of each respective Employee, his present and
potential contributions to the growth and success of the Corporation, his salary
or other compensation and such other factors as deemed relevant to accomplishing
the purposes of the Plan. The Board or the Committee may but shall
not be required to request the written recommendation of the Chief Executive
Officer of the Corporation other than with respect to Plan Share Awards to be
granted to him. Plan Share Awards to Employees shall not exceed
34,385 shares (25% of the shares of Common Stock available under the
Plan).
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6.03 Form
of Allocation. As promptly as practicable after an allocation
pursuant to Sections 6.01 or 6.02 that a Plan Share Award is to be issued, the
Board or the Committee shall notify the Recipient in writing of the grant of the
Award, the number of Plan Shares covered by the Award, and the terms upon which
the Plan Shares subject to the Award shall be distributed to the
Recipient. The date on which the Board or the Committee so notifies
the Recipient shall be considered the date of grant of the Plan Share
Award. The Board or the Committee shall maintain records as to all
grants of Plan Share Awards under the Plan.
6.04 Allocations
Not Required to any Specific Employee or Non-Employee
Director. Notwithstanding anything to the contrary in Sections
6.01 or 6.02 hereof, no Employee or Non-Employee Director shall have any right
or entitlement to receive a Plan Share Award hereunder, with such Awards being
at the total discretion of the Board or the Committee.
ARTICLE
VII
EARNING
AND DISTRIBUTION OF PLAN SHARES; VOTING RIGHTS
7.01 Earning
Plan Shares; Forfeitures.
(a) General
Rules. Subject to the terms hereof, Plan Share Awards shall be
earned by a Recipient at the rate no quicker than twenty percent (20%) of the
aggregate number of Shares covered by the Award as of each annual anniversary of
the date of grant of the Award, with such vesting rate to be determined by the
Committee. If the employment of an Employee or service as a
Non-Employee Director is terminated prior to the fifth (5th) annual anniversary
of the date of grant of a Plan Share Award for any reason (except as
specifically provided in subsections (b) and (c) below), the Recipient shall
forfeit the right to any Shares subject to the Award which have not theretofore
been earned. In the event of a forfeiture of the right to any Shares
subject to an Award, such forfeited Shares shall become available for allocation
pursuant to Sections 6.01 and 6.02 hereof as if no Award had been previously
granted with respect to such Shares. No fractional shares shall be
distributed pursuant to this Plan.
(b) Exception
for Terminations Due to Death or Disability. Notwithstanding
the general rule contained in Section 7.01(a), all Plan Shares subject to a Plan
Share Award held by a Recipient whose employment with the Corporation or any
Subsidiary or service as a Non-Employee Director terminates due to death or
Disability shall be deemed earned as of the Recipient's last day of employment
with or service to the Corporation or any Subsidiary and shall be distributed as
soon as practicable thereafter; provided, however, that Awards shall be
distributed in accordance with Section 7.03(a).
(c) Exception
for a Change in Control. Notwithstanding the general rule
contained in Section 7.01(a), all Plan Shares subject to a Plan Share Award held
by a Recipient shall be deemed to be earned in the event of a Change in Control
if, as of the date of such Change in Control, such treatment is either
authorized or is not prohibited by applicable laws and
regulations.
(d) Revocation
for Misconduct. Notwithstanding anything hereinafter to the
contrary, the Board may by resolution immediately revoke, rescind and terminate
any Plan Share Award, or portion thereof, previously awarded under this Plan, to
the extent Plan Shares have not been distributed hereunder to the Recipient,
whether or not yet earned, in the case of an Employee who is discharged from the
employ of the Corporation or any Subsidiary for cause (as hereinafter
defined). Termination for cause shall mean termination because of the
Employee's personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order. Plan
Share Awards granted to a Non-Employee Director who is removed for cause
pursuant to the Corporation's Articles of Incorporation and Bylaws or the Bank's
Charter and Bylaws shall terminate as of the effective date of such
removal.
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7.02 Distribution
of Dividends. Any
cash dividends or stock dividends declared in respect of each unvested Plan
Share Award will be held by the Trust for the benefit of the Recipient on whose
behalf such Plan Share Award is then held by the Trust and such dividends,
including any interest thereon, will be paid out proportionately by the Trust to
the Recipient thereof as soon as practicable after the Plan Share Awards become
earned. Any cash dividends or stock dividends declared in respect of
each vested Plan Share held by the Trust will be paid by the Trust, as soon as
practicable after the Trust's receipt thereof, to the Recipient on whose behalf
such Plan Share is then held by the Trust.
7.03 Distribution
of Plan Shares.
(a) Timing
of Distributions: General Rule. Plan Shares shall
be distributed to the Recipient or his Beneficiary, as the case may be, as soon
as practicable after they have been earned.
(b) Form
of Distributions. All Plan Shares, together with any Shares
representing stock dividends, shall be distributed in the form of Common
Stock. One share of Common Stock shall be given for each Plan Share
earned and distributable. Payments representing cash dividends shall
be made in cash.
(c) Withholding. The
Trustee may withhold from any cash payment or Common Stock distribution made
under this Plan sufficient amounts to cover any applicable withholding and
employment taxes, and if the amount of a cash payment is insufficient, the
Trustee may require the Recipient or Beneficiary to pay to the Trustee the
amount required to be withheld as a condition of delivering the Plan
Shares. The Trustee shall pay over to the Corporation or any
Subsidiary which employs or employed such Recipient any such amount withheld
from or paid by the Recipient or Beneficiary.
(d) Restrictions
on Selling of Plan Shares. Plan
Share Awards may not be sold, assigned, pledged or otherwise disposed of prior
to the time that they are earned and distributed pursuant to the terms of this
Plan. Following distribution, the Board or the Committee may require
the Recipient or his Beneficiary, as the case may be, to agree not to sell or
otherwise dispose of his distributed Plan Shares except in accordance with all
then applicable federal and state securities laws, and the Board or the
Committee may cause a legend to be placed on the stock certificate(s)
representing the distributed Plan Shares in order to restrict the transfer of
the distributed Plan Shares for such period of time or under such circumstances
as the Board or the Committee, upon the advice of counsel, may deem
appropriate.
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7.04 Voting
of Plan Shares. All Plan Share Awards which have not yet been
earned and distributed pursuant to Section 7.03, and all shares of Common Stock
held by the Trust which have not been awarded under a Plan Share Award shall be
voted by the Trustee in its sole discretion.
ARTICLE
VIII
TRUST
8.01 Trust. The
Trustee shall receive, hold, administer, invest and make distributions and
disbursements from the Trust in accordance with the provisions of the Plan and
Trust and the applicable directions, rules, regulations, procedures and policies
established by the Board or the Committee pursuant to the
Plan.
8.02 Management
of Trust. It is the intent of this Plan and Trust that the
Trustee shall have complete authority and discretion with respect to the
arrangement, control and investment of the Trust, and that the Trustee shall
invest all assets of the Trust in Common Stock to the fullest extent
practicable, except to the extent that the Trustee determines that the holding
of monies in cash or cash equivalents is necessary to meet the obligations of
the Trust. In performing its duties, the Trustee shall have the power
to do all things and execute such instruments as may be deemed necessary or
proper, including the following powers:
(a) To
invest up to one hundred percent (100%) of all Trust assets in Common Stock
without regard to any law now or hereafter in force limiting investments for
trustees or other fiduciaries. The investment authorized herein may
constitute the only investment of the Trust, and in making such investment, the
Trustee is authorized to purchase Common Stock from the Corporation or from any
other source, and such Common Stock so purchased may be outstanding, newly
issued, or treasury shares.
(b) To
invest any Trust assets not otherwise invested in accordance with (a) above, in
such deposit accounts, and certificates of deposit, obligations of the United
States Government or its agencies or such other investments as shall be
considered the equivalent of cash.
(c) To
sell, exchange or otherwise dispose of any property at any time held or acquired
by the Trust.
(d) To
cause stocks, bonds or other securities to be registered in the name of a
nominee, without the addition of words indicating that such security is an asset
of the Trust (but accurate records shall be maintained showing that such
security is an asset of the Trust).
(e) To
hold cash without interest in such amounts as may in the opinion of the Trustee
be reasonable for the proper operation of the Plan and
Trust.
(f) To
employ brokers, agents, custodians, consultants and
accountants.
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(g) To
hire counsel to render advice with respect to its rights, duties and obligations
hereunder, and such other legal services or representation as it may deem
desirable.
(h) To
hold funds and securities representing the amounts to be distributed to a
Recipient or his Beneficiary as a consequence of a dispute as to the disposition
thereof, whether in a segregated account or held in common with other assets of
the Trust.
Notwithstanding anything herein contained to the
contrary, the Trustee shall not be required to make any inventory, appraisal or
settlement or report to any court, or to secure any order of a court for the
exercise of any power herein contained, or give bond.
8.03 Records
and Accounts. The Trustee shall maintain accurate and detailed
records and accounts of all transactions of the Trust, which shall be available
at all reasonable times for inspection by any legally entitled person or entity
to the extent required by applicable law, or any other person determined by the
Board or the Committee.
8.04 Expenses. All
costs and expenses incurred in the operation and administration of this Plan
shall be borne by the Corporation or, in the discretion of the Corporation, the
Trust.
8.05 Indemnification. Subject
to the requirements of applicable laws and regulations, the Corporation shall
indemnify, defend and hold the Trustee harmless against all claims, expenses and
liabilities arising out of or related to the exercise of the Trustee's powers
and the discharge of its duties hereunder, unless the same shall be due to its
gross negligence or willful misconduct.
ARTICLE
IX
MISCELLANEOUS
9.01 Adjustments
for Capital Changes. The aggregate number of Plan Shares
available for distribution pursuant to the Plan Share Awards and the number of
Shares to which any Plan Share Award relates shall be proportionately adjusted
for any increase or decrease in the total number of outstanding shares of Common
Stock issued subsequent to the Effective Date of the Plan resulting from any
split, subdivision or consolidation of shares or other capital adjustment, or
other increase or decrease in such shares effected without receipt or payment of
consideration by the Corporation. If, upon a merger, consolidation,
reorganization, liquidation, recapitalization or the like of the Corporation or
of another corporation, the shares of the Corporation's Common Stock shall be
exchanged for other securities of the Corporation or of another corporation,
each Recipient of a Plan Share Award shall be entitled, subject to the
conditions herein stated, to receive such number of shares of Common Stock or
amount of other securities of the Corporation or such other corporation as were
exchangeable for the number of shares of Common Stock of the Corporation which
such Recipients would have been entitled to receive except for such
action.
9.02 Amendment
and Termination of Plan. The Board may, by resolution, at any
time amend or terminate the Plan and the Trust (including amendments which may
result in the merger of the Plan or the Trust with and into other plans or
trusts of the Corporation or successor thereto), subject to any applicable
regulatory requirement, any required stockholder approval or any stockholder
approval which the Board may deem to be advisable for any reason, such as for
the purpose of obtaining or retaining any statutory or regulatory benefits under
tax, securities or other laws or satisfying any applicable stock exchange
listing requirements. The Board may not, without the consent of the
Recipient, alter or impair his Plan Share Award except as specifically
authorized herein. Notwithstanding any other provision of this Plan,
this Plan may not be terminated prior to such time as all outstanding Plan Share
Awards granted to recipients have been earned or forfeited in accordance with
the Plan.
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9.03 Nontransferable. During
the lifetime of the Recipient, Plan Shares may only be earned by and paid to the
Recipient who was notified in writing of the Award pursuant to Section 6.02,
provided that Plan Share Awards and rights to Plan Shares shall be transferable
by a Recipient to his or her spouse, lineal ascendants, lineal descendants, or
to a duly established trust. Plan Share Awards so transferred may not
again be transferred other than to the Recipient who originally received the
grant of Plan Share Award or to an individual or trust to whom such Recipient
could have transferred Plan Share Awards pursuant to this Section
9.03. Plan Share Awards which are transferred pursuant to this
Section 9.03 shall be subject to the same terms and conditions as would have
applied to such Plan Share Awards in the hands of the Recipient who originally
received the grant of such Plan Share Award. No Recipient or
Beneficiary shall have any right in or claim to any assets of the Plan or Trust,
nor shall the Corporation or any Subsidiary be subject to any claim for benefits
hereunder.
9.04 Employment
or Service Rights. Neither the Plan nor any grant of a Plan
Share Award or Plan Shares hereunder nor any action taken by the Trustee, the
Committee or the Board in connection with the Plan shall create any right on the
part of any Employee or Non-Employee Director to continue in such
capacity.
9.05 Voting
and Dividend Rights. No Recipient shall have any voting or
dividend rights or other rights of a stockholder in respect of any Plan Shares
covered by a Plan Share Award, except as expressly provided in Sections 7.02 and
7.04 above, prior to the time said Plan Shares are actually earned and
distributed to him.
9.06 Governing
Law. To the extent not governed by federal law, the Plan and
Trust shall be governed by the laws of the State of
Louisiana.
9.07 Effective
Date. This Plan as originally adopted became effective as of
the Effective Date, and Awards may be granted hereunder no earlier than the date
the Plan was approved by the requisite vote of the holders of outstanding voting
shares of the Corporation at a meeting of Stockholders of the Corporation, and
no later than the termination of the Plan. The Plan, as originally
adopted, was approved by the stockholders at a meeting
thereof. Notwithstanding the foregoing or anything to the contrary in
this Plan, the implementation of this Plan and any Awards granted pursuant
hereto was subject to the receipt of any applicable regulatory approvals or
non-objections and approval of the Corporation's stockholders, which have been
received. The amendment and restatement of the Plan shall be
effective as of the date set forth in Section 1.01 above.
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9.08 Term
of Plan. This Plan shall remain in effect until the earlier of
(1) ten (10) years from the Effective Date, (2) termination by the Board, or (3)
the distribution to Recipients and Beneficiaries of all assets of the
Trust.
9.09 Tax
Status of Trust. It is intended that the trust established
hereby be treated as a Grantor Trust of the Corporation under the provisions of
Section 671 et
seq.
of the Code, as the same may be amended from time to time.
[signature
page follows]
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IN WITNESS
WHEREOF, the Corporation has caused this amended and restated Agreement
to be executed by its duly authorized officers and the corporate seal to be
affixed and duly attested, and the Trustees of the Trust established pursuant
hereto have duly and validly executed this Agreement, all on this 20th day
of November 2008.
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