FORM OF
RESTATED EXECUTIVE SUPPLEMENTAL RETIREMENT
INCOME AGREEMENT
This Restated Executive Supplemental Retirement Income Agreement (the
"Agreement"), effective as of the _____ day of ______________ 1996, amends and
restates the Executive Supplemental Retirement Income Agreement entered into on
October 1, 1993 and formalizes the understanding by and between MUTUAL FEDERAL
SAVINGS BANK (the "Bank"), a federally chartered savings institution, and
_________________, hereinafter referred to as "Executive".
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Bank; and
WHEREAS, the Bank recognizes the valuable services heretofore performed
by the Executive and wishes to encourage continued employment; and
WHEREAS, the Executive wishes to be assured that he will be entitled to
a certain amount of additional compensation for some definite period of time
from and after retirement from active service with the Bank or other termination
of employment and wishes to provide his beneficiary with benefits after his
death; and
WHEREAS, the Bank and the Executive wish to provide the terms and
conditions upon which the Bank shall pay such additional compensation to the
Executive after retirement or other termination of employment and/or death
benefits to his beneficiary after his death; and
WHEREAS, the Bank has adopted this Restated Executive Supplemental
Retirement Income Agreement which controls all issues relating to benefits as
described herein:
NOW, THEREFORE, in consideration of the premises and of the mutual
promises herein contained, the Bank and the Executive agree as follows:
SECTION I
DEFINITIONS
When used herein, the following words and phrases shall have the
meanings below unless the context clearly indicates otherwise:
1.1 "Accrued Benefit Account" shall be represented by the bookkeeping entries
required to record the Executive's (i) Phantom Contributions plus (ii) accrued
interest, equal to the Interest Factor, earned to date on such amounts. However,
neither the existence of such bookkeeping entries nor the Accrued Benefit
Account itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Executive or any Beneficiary.
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1.2 "Act" means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
1.3 "Bank" means Mutual Federal Savings Bank 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 Executive's
benefits are payable. If no Beneficiary is so designated, then the Executive's
Spouse, if living, will be deemed the Beneficiary. If the Executive's Spouse is
not living, then the Children of the Executive will be deemed the Beneficiaries
and will take on a per stirpes basis. If there are no Children, then the Estate
of the Executive will be deemed the Beneficiary.
1.5 "Benefit Age" means the later of: (i) the Executive's sixty-fifth (65th)
birthday or (ii) the actual date the Executive's full-time service with the Bank
terminates. The Board of Directors may, however, in its sole discretion, amend
clause (i) of this Subsection to lower the Executive's Benefit Age in any
instance in which the Executive's employment terminates prior to Retirement Age
and the Board of Directors determines that such an amendment is advisable, based
on the circumstances of such termination.
1.6 "Benefit Eligibility Date" means the date on which the Executive is entitled
to receive any benefit(s) pursuant to Section(s) III or V of this Agreement. It
shall be the first day of the month following the month in which the Executive
attains his Benefit Age.
1.7 "Board of Directors" means the board of directors of the Bank.
1.8 "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.
1.9 "Change in Control" shall mean and include the following with respect to the
Bank:
(1) a Change in Control of a nature that would be required to be reported
in response to Item I (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,
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of securities of the Bank representing Twenty Five Percent (25.0%) 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
stockholder approval of a plan of reorganization, merger, or consolidation of
the Bank with one or more corporations as a result of which the outstanding
shares of the class of the Bank's securities are exchanged for or converted into
cash or property or securities not issued by the Bank.
The term "person" includes an individual, a group acting in concert, a
corporation, a partnership, an association, a joint venture, a pool, a joint
stock company, a trust, an unincorporated organization or similar company, a
syndicate or any other group formed for the purpose of acquiring, holding or
disposing of securities. The term "acquire" means obtaining ownership, control,
power to vote or sole power of disposition of stock, directly or indirectly or
through one or more transactions or subsidiaries, through purchase, assignment,
transfer, exchange, succession or other means, including (1) an increase in
percentage ownership resulting from a redemption, repurchase, reverse stock
split or a similar transaction involving other securities of the same class; and
(2) the acquisition of stock by a group of persons and/or companies acting in
concert which shall be deemed to occur upon the formation of such group,
provided that an investment advisor shall not be deemed to acquire the voting
stock of its advisee if the advisor (a) votes the stock only upon instruction
from the beneficial owner and (b) does not provide the beneficial owner with
advice concerning the voting of such stock. The term "security" includes
nontransferable subscription rights issued pursuant to a plan of conversion, as
well as a "security," as defined in 15 U.S.C. ss. 78c(2)(1`); and the term
"acting in concert" means (1) knowing
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participation in a joint activity or interdependent conscious parallel action
towards a common goal whether or not pursuant to an express agreement, or (2) a
combination or pooling of voting or other interests in the securities of an
issuer for a common purpose pursuant to any contract, understanding,
relationship, agreement or other arrangement, whether written or otherwise.
Further, acting in concert with any person or company shall also be deemed to be
acting in concert with any person or company that is acting in concert with such
other person or company.
Notwithstanding the above definitions, the Board, in its absolute
discretion, may make a finding that a Change in Control of the Bank has taken
place without the occurrence of any or all of the events enumerated above.
1.10 "Children" means all natural or adopted children of the Executive, and
issue of any predeceased child or children.
1.11 "Code" means the Internal Revenue Code of 1986. as amended from time to
time.
1.12 "Contributions" means those annual contributions which the Bank is required
to make to the Retirement Income Trust Fund on behalf of the Executive in
accordance with Subsection 2.1(a) and in the amounts set forth in Exhibit A of
the Agreement.
1.13 (a) "Disability Benefit" means the benefit payable to the Executive
following a determination, in accordance with Subsection 6.1(a), that he is no
longer able, properly and satisfactorily, to perform his duties at the Bank.
(b) "Disability Benefit-Supplemental" (if applicable) means the benefit
payable to the Executive's Beneficiary upon the Executive's death in accordance
with Subsection 6.1(b).
1.14 "Effective Date" of this Agreement shall be _____________, 1996.
1.15 "Estate" means the estate of the Executive.
1.16 "Interest Factor" means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in Exhibit A.
1.17 "Payout Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly installments
commencing on the first day of the month following the occurrence of the event
which triggers distribution and continuing for a period of one hundred eighty
(180) months. Should the Executive make a Timely Election to receive a lump sum
benefit payment, the Executive's Payout Period shall be deemed to be one (1)
month.
1.18 "Phantom Contributions" means those annual Contributions which the Bank is
no longer required
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to make on behalf of the Executive to the Retirement Income Trust Fund. Rather,
once the Executive has exercised the withdrawal rights provided for in
Subsection 2.2, the Bank shall be required to record the annual amounts set
forth in Exhibit A of the Agreement in the Executive's Accrued Benefit Account,
pursuant to Subsection 2.1.
1.19 "Plan Administrator" or "Administrator" shall mean Financial Institution
Consulting Corporation, Memphis, Tennessee ("FICC") or its successor.
1.20 "Plan Year" shall mean _____________, 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.
1.21 "Retirement Age" means the Executive's sixty-fifth (65th) birthday
provided, however, that the Executive's actual retirement from full-time
employment may occur at any later date mutually agreed upon by the parties.
1.22 "Retirement Income Trust Fund" means the trust fund established by the
Executive and into which annual Contributions will be made by the Bank on behalf
of the Executive pursuant to Subsection 2.1. The contractual rights of the Bank
and the Executive with respect to the Retirement Income Trust Fund shall be
provided for in a separate writing to be known as the R. ▇▇▇▇ ▇▇▇▇▇▇▇ Grantor
Trust Agreement (the "Grantor Trust Agreement").
1.23 "Spouse" means the individual to whom the Executive is legally married at
the time of the Executive's death.
1.24 "Supplemental Retirement Income Benefit" means an annual amount (before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected pursuant to
the Agreement for the purpose of determining the Contributions to be made to the
Retirement Income Trust Fund (or Phantom Contributions to be recorded in the
Accrued Benefit Account).
The annual Contributions and Phantom Contributions have been actuarially
determined, using the assumptions set forth in Exhibit A, in order to fund for
the projected Supplemental Retirement Income Benefit. The Supplemental
Retirement Income Benefit for which Contributions (or Phantom Contributions) are
being made (or recorded) is set forth in Exhibit A.
1.25 "Timely Election" means the Executive 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). In the case of
benefits payable from the Accrued Benefit Account, such election shall have
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been made prior to the event which triggers distribution and at least two (2)
years prior to the Executive's Benefit Eligibility Date. In the case of benefits
payable from the Retirement Income Trust Fund, such election may be made at any
time.
SECTION II
BENEFITS - GENERALLY
2.1 (a) RETIREMENT INCOME TRUST FUND AND ACCRUED BENEFIT ACCOUNT. The Executive
shall establish the R. ▇▇▇▇ ▇▇▇▇▇▇▇ Grantor Trust (the "Grantor Trust") into
which the Bank shall be required to make annual Contributions on the Executive's
behalf, pursuant to Exhibit A and this Section II. A trustee shall be selected
by the Executive. The trustee shall maintain a trust fund, which shall
constitute the Retirement Income Trust Fund. The trustee shall be charged with
the responsibility of investing all contributed funds. Distributions from the
Grantor Trust may be made by the trustee to the Executive, for purposes of
payment of any income or employment taxes due and owing on any Contributions by
the Bank to the Retirement Income Trust Fund, and on any taxable earnings
associated with such Contributions which the Executive shall be required to pay
from year to year, under applicable law, prior to actual receipt of any benefit
payments from the Retirement Income Trust Fund. If the Executive exercises his
withdrawal rights pursuant to Subsection 2.2, the Bank's obligation to make
Contributions to the Retirement Income Trust Fund shall cease and the Bank's
obligation to record Phantom Contributions in the Accrued Benefit Account shall
immediately commence pursuant to Exhibit A and this Section II. To the extent
any provisions of this Agreement are inconsistent with the provisions of the
Grantor Trust Agreement, this Agreement shall control.
The annual Contributions (or Phantom Contributions) required to be made by
the Bank to the Retirement Income Trust Fund (or recorded by the Bank in the
Accrued Benefit Account) have been actuarially determined and are set forth in
Exhibit A which is attached hereto and incorporated herein by reference.
Contributions shall be made by the Bank to the Retirement Income Trust Fund (i)
within seventy-five (75) days of establishment of the Grantor Trust, and (ii)
within the first thirty (30) 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 thirty (30)
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 Payout Period until the balance of
the Accrued Benefit Account has been fully distributed. Interest on any Phantom
Contribution shall not commence until such Payout Period commences.
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The Administrator shall review the schedule of annual Contributions (or
Phantom Contributions) provided for in Exhibit A (i) within thirty (30) days
prior to the close of each Plan Year and (ii) if the Executive is employed by
the Bank until attaining Retirement Age, on or immediately before attainment of
such Retirement Age. Such review shall consist of an evaluation of the accuracy
of all assumptions used to establish the schedule of Contributions (or Phantom
Contributions). Provided that (i) the Executive has not exercised his withdrawal
rights pursuant to Subsection 2.2 and (ii) the investments contained in the
Retirement Income Trust Fund have been deemed reasonable by the Bank, the
Administrator shall prospectively amend or supplement the schedule of
Contributions provided for in Exhibit A should the Administrator determine
during any such review that an increase in or supplement to the schedule of
Contributions is necessary in order to adequately fund the Retirement Income
Trust Fund so as to provide an annual benefit (or to provide the lump sum
equivalent of such benefit, as applicable) equal to the Supplemental Retirement
Income Benefit on an after-tax basis, commencing at Benefit Age and payable for
the duration of the Payout Period.
(b) WITHDRAWAL RIGHTS NOT EXERCISED.
(1) CONTRIBUTIONS MADE ANNUALLY. If the Executive does not exercise any
withdrawal rights pursuant to Subsection 2.2, the annual Contributions to the
Retirement Income Trust Fund shall continue each year, unless this Subsection
2.1(b) specifically states otherwise, until the earlier of (i) the last Plan
Year that Contributions are required pursuant to Exhibit A, or (ii) the Plan
Year of the Executive's termination of employment.
(2) TERMINATION FOLLOWING A CHANGE IN CONTROL. If the Executive does not
exercise his withdrawal rights pursuant to Subsection 2.2 and a Change in
Control occurs at the Bank, followed within thirty-six (36) months by either (i)
the Executive's involuntary termination of employment, or (ii) Executive's
voluntary termination of employment after: (A) a material change in the
Executive's function, duties, or responsibilities, which change would cause the
Executive's position to become one of lesser responsibility, importance, or
scope from the position the Executive held at the time of the Change in Control,
(B) a relocation of the Executive's principal place of 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 Executive from those
being provided at the time of the Change in Control, the Contribution set forth
below shall be required of the Bank. The Bank shall be required to make a final
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Contribution to the Retirement Income Trust Fund within ten (10) days of the
Executive's termination of employment. The amount of such final Contribution
shall be equal to the present value (using the Interest Factor) of all remaining
Contributions which would have been required to be made on behalf of the
Executive if the Executive had remained in the employ of the Bank until Benefit
Age.
(3) TERMINATION FOR CAUSE. If the Executive (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 Contributions to the Retirement Income
Trust Fund shall be required of the Bank, and if not yet made, no Contribution
shall be required for the Plan Year in which such termination for Cause occurs.
(4) VOLUNTARY TERMINATION OF EMPLOYMENT. If (i) the Executive does not
exercise his withdrawal rights pursuant to Subsection 2.2, and (ii) the
Executive's employment with the Bank is voluntarily terminated for any reason
other than a termination related to disability, termination for Cause, or
termination following a Change in Control, the Executive shall not be entitled
to any Contributions to the Retirement Income Trust Fund attributable to any
Plan Years which commence subsequent to the date of termination, provided,
however, that, if necessary, an amount shall be contributed to the Retirement
Income Trust Fund which is sufficient to provide the Executive with after tax
benefits (assuming a constant tax rate equal to the rate in effect as of the
date of the Executive's termination) beginning at his Benefit Age, equal in
amount to that benefit which would have been payable to the Executive if no
secular trust had been implemented and the benefit obligation had been accrued
under APB Opinion No. 12, as amended by FAS 106.
(5) INVOLUNTARY TERMINATION OF EMPLOYMENT. If the Executive does not
exercise his withdrawal rights pursuant to Subsection 2.2, and the Executive's
employment with the Bank is involuntarily terminated for any reason, including a
termination due to disability of the Executive but excluding termination for
Cause, or termination following a Change in Control, within ten (10) days of
such involuntary termination of employment, the Bank shall be required to make
an immediate lump sum Contribution to the Executive's Retirement Income Trust
Fund in an amount equal to: (i) the full Contribution required for the Plan Year
in which such involuntary termination occurs, if not yet made, plus (ii) the
present value (computed using a discount rate equal to the Interest Factor) of
the lesser of (A) the next five (5) years Contributions to the Retirement Income
Trust Fund or (B) all remaining Contributions to the Retirement Income Trust
Fund.
(6) DEATH DURING EMPLOYMENT. If the Executive does not exercise any
withdrawal
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rights pursuant to Subsection 2.2, and dies while employed by the Bank, and if,
following the Executive's death, the assets of the Retirement Income Trust Fund
are insufficient to provide the Supplemental Retirement Income Benefit to which
the Executive is entitled, the Bank shall be required to make a Contribution to
the Retirement Income Trust Fund equal to the sum of the remaining Contributions
set forth on Exhibit A, reduced by any payments under any life insurance
policies that may have been obtained on the Executive's life by the Retirement
Income Trust Fund. Such final contribution shall be payable in a lump sum to the
Retirement Income Trust Fund within ten (10) days of the Executive's death.
(c) WITHDRAWAL RIGHTS EXERCISED.
(1) PHANTOM CONTRIBUTIONS MADE ANNUALLY. If the Executive exercises his
withdrawal rights pursuant to Subsection 2.2, no further Contributions to the
Retirement Income Trust Fund shall be required of the Bank. Thereafter, Phantom
Contributions shall be recorded annually in the Executive's Accrued Benefit
Account within thirty (30) days of the beginning of each Plan Year, commencing
with the first Plan Year following the Plan Year in which the Executive
exercises his withdrawal rights. Such Phantom Contributions shall continue to be
recorded annually, unless this Subsection 2.1(c) specifically states otherwise,
until the earlier of (1) the last Plan Year that Phantom Contributions are
required pursuant to Exhibit A, or (ii) the Plan Year of the Executive's
termination of employment.
(2) TERMINATION FOLLOWING A CHANGE IN CONTROL. If the Executive exercises
his withdrawal rights pursuant to Subsection 2.2, Phantom Contributions shall
commence in the Plan Year following the Plan Year in which the Executive first
exercises his withdrawal rights. If a Change in Control occurs at the Bank, and
within thirty-six (36) months of such Change in Control, the Executive's
employment is either (i) involuntarily terminated, or (ii) voluntarily
terminated by the Executive after: (A) a material change in the Executive's
function, duties, or responsibilities, which change would cause the Executive's
position to become one of lesser responsibility, importance, or scope from the
position the Executive held at the time of the Change in Control, (B) a
relocation of the Executive's principal place of 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 Executive from those being
provided at the time of the Change in Control, the Phantom Contribution set
forth below shall be required of the Bank. The Bank shall be required to record
a lump sum Phantom Contribution in the Accrued Benefit Account
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within thirty (30) days of the Executive's termination of employment. The amount
of such final Phantom Contribution shall be actuarially determined based on the
Phantom Contribution required, at such time, in order to provide a benefit via
this Agreement equivalent to the Supplemental Retirement Income Benefit, on an
after tax basis, commencing on the Executive's Benefit Eligibility Date and
continuing for the duration of the Payout Period. (Such actuarial determination
shall reflect the fact that amounts shall be payable from both the Accrued
Benefit Account as well as the Retirement Income Trust Fund and shall also
reflect the amount and timing of any withdrawal(s) made by the Executive from
the Retirement Income Trust Fund pursuant to Subsection 2.2.)
(3) TERMINATION FOR CAUSE. If the Executive is terminated for Cause
pursuant to Subsection 5.2, the entire balance of the Executive's Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus interest accrued on such Phantom
Contributions, shall be forfeited.
(4) VOLUNTARY TERMINATION OF EMPLOYMENT. If (i) the Executive exercises his
withdrawal rights pursuant to Subsection 2.2, and (ii) the Executive's
employment with the Bank is voluntarily terminated for any reason other than a
termination related to disability, termination for Cause, or termination
following a Change in Control, the Executive shall not be entitled to any
Phantom Contributions to the Retirement Income Trust Fund attributable to any
Plan Years which commence subsequent to the date of termination.
(5) INVOLUNTARY TERMINATION OF EMPLOYMENT. If the Executive exercises his
withdrawal rights pursuant to Subsection 2.2, and the Executive's employment
with the Bank is involuntarily terminated for any reason including termination
due to disability of the Executive, but excluding termination for Cause, or
termination following a Change in Control, within ten (10) days of such
involuntary termination of employment, the Bank shall be required to record a
final Phantom Contribution in an amount equal to: (i) the full Phantom
Contribution required for the Plan Year in which such involuntary termination
occurs, if not yet made, plus (ii) the present value (computed using a discount
rate equal to the Interest Factor) of the lesser of (A) the next five (5) years
Contributions to the Retirement Income Trust Fund or (B) all remaining Phantom
Contributions.
(6) DEATH DURING EMPLOYMENT. If the Executive (i) exercises his withdrawal
rights pursuant to Subsection 2.2, and (ii) dies while employed by the Bank,
Phantom Contributions included on Exhibit A shall be required of the Bank. Such
Phantom Contributions shall commence in the Plan
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Year following the Plan Year in which the Executive exercises his withdrawal
rights and shall continue through the Plan Year in which the Executive dies. The
Bank shall also be required to record a final Phantom Contribution within thirty
(30) days of the Executive's death. The amount of such final Phantom
Contribution shall be actuarially determined based on the Phantom Contribution
required at such time (if any), in order to provide a benefit via this Agreement
equivalent to the Supplemental Retirement Income Benefit commencing within
thirty (30) days of the date the Administrator receives notice of the
Executive's death and continuing for the duration of the Payout Period. (Such
actuarial determination shall reflect the fact that amounts shall be payable
from the Accrued Benefit Account as well as the Retirement Income Trust Fund and
shall also reflect the amount and timing of any withdrawal(s) made by the
Executive pursuant to Subsection 2.2.)
2.2 WITHDRAWALS FROM RETIREMENT INCOME TRUST FUND. Exercise of withdrawal rights
by the Executive 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
Executive is entitled under Section 3 of the Grantor Trust Agreement and shall
exclude any distributions made by the trustee of the Grantor Fund to the
Executive for purposes of payment of income taxes in accordance with Subsection
2.1 of this Agreement and the tax reimbursement provision contained in the
Grantor Trust Agreement, or other trust expenses properly payable from the
Grantor Trust pursuant to the provisions of the Grantor Trust Agreement.
2.3 BENEFITS PAYABLE FROM GRANTOR TRUST. Notwithstanding anything else to the
contrary in this Agreement, in the event that the trustee of the Grantor Trust
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 Payout Period for the disability or retirement benefits payable
from the Retirement Income Trust Fund pursuant to this Agreement, then the
Trustee shall be directed by the Administrator in determining 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 consideration the amounts reasonably believed
to be required in order to maintain the cash value of such policy to continue
such policy in effect until the death of the Executive and payment of death
benefits thereunder.
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SECTION III
RETIREMENT BENEFIT
3.1 (a) NORMAL FORM OF PAYMENT. If (i) the Executive is employed with the Bank
until reaching his Retirement Age, and (ii) the Executive 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 Executive's Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Executive's Benefit Eligibility Date. 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 Executive (or his Beneficiary)
shall include the excess amounts attributable to the greater-than expected rate
of return. In the event the Executive dies at any time after attaining his
Benefit Age, but prior to commencement or completion of all the payments due and
owing hereunder, (i) the trustee of the Grantor Trust shall pay to the
Executive's Beneficiary the monthly installments (or a continuation of such
monthly installments if they have already commenced) for the balance of months
remaining in the Payout Period, or (ii) the Executive's Beneficiary may request
to receive the unpaid balance of the Executive'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 Executive's Beneficiary (i) obtains approval from the
trustee of the Grantor Trust and (ii) notifies the Administrator in writing of
such election within ninety (90) days of the Executive's death. Such lump sum
payment, if approved by the trustee, shall be payable within thirty (30) days of
such trustee approval.
The Executive's Accrued Benefit Account (if applicable), measured as of the
Executive's Benefit Age, shall be annuitized (using the Interest Factor) into
monthly installments and shall be payable for the Payout Period. Such benefit
payments shall commence on the Executive's Benefit Eligibility Date. In the
event the Executive dies at any time after attaining his Benefit Age, but prior
to commencement or
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completion of all the payments due and owing hereunder, (i) the Bank shall pay
to the Executive's Beneficiary the same monthly installments (or a continuation
of such monthly installments if they have already commenced) for the balance of
months remaining in the Payout Period, or (ii) the Executive'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 Executive's
Accrued Benefit Account. Payment in such lump sum form shall be made only if the
Executive's Beneficiary (i) obtains Board of Director approval, and (ii)
notifies the Administrator in writing of such election within ninety (90) days
of the Executive's death. Such lump sum payment shall be made within thirty (30)
days of approval by the Board of Directors.
(b) ALTERATIVE PAYOUT OPTION. If (i) the Executive is employed with the
Bank until reaching his Retirement Age, and (ii) the Executive 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 Executive's Benefit Age, shall be paid to
the Executive in a lump sum on his Benefit Eligibility Date. In the event the
Executive 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 Executive's death.
The balance of the Executive's Accrued Benefit Account (if applicable),
measured as of the Executive's Benefit Age, shall be paid to the Executive in a
lump sum on his Benefit Eligibility Date. In the event the Executive 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. I (b) within thirty
(30) days of the date the Administrator receives notice of the Executive's
death.
SECTION IV
PRE-RETIREMENT DEATH BENEFIT
4.1 (a) NORMAL FORM OF PAYMENT. If (i) the Executive dies while employed by the
Bank, and (ii) the Executive 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 Executive's Retirement Income Trust Fund, measured as of the
Executive's death, shall be annuitized (using the Interest Factor) into monthly
installments and shall be payable to the Executive's
13
Beneficiary for the Payout Period. Such benefit payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Executive's death. 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 Executive's Beneficiary shall include the excess amounts attributable to the
greater-thanexpected rate of return. The Executive's Beneficiary may request to
receive the unpaid balance of the Executive'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 Executive's Beneficiary (i) obtains approval from the
trustee of the Grantor Trust and (ii) notifies the Administrator in writing of
such election within ninety (90) days of the Executive's death. Such lump sum
payment, if approved by the trustee, shall be made within thirty (30) days of
such trustee approval.
The Executive's Accrued Benefit Account (if applicable), measured as of the
later of (i) the Executive's death or (ii) the date any final lump sum Phantom
Contribution is recorded in the Accrued Benefit Account pursuant to Subsection
2.1(c), shall be annuitized (using the Interest Factor) into monthly
installments and shall be payable to the Executive's Beneficiary for the Payout
Period. Such benefit payments shall commence within thirty (30) days of the date
the Administrator receives notice of the Executive's death, or if later, within
thirty (30) days after any final lump sum Phantom Contribution is recorded in
the Accrued Benefit Account in accordance with Subsection 2.1(c). The
Executive'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 unpaid balance of the Executive's
Accrued Benefit Account. Payment in such lump sum form shall be made only if the
Executive's Beneficiary (i) obtains Board of Director approval, and (ii)
notifies the Administrator in writing of such election within ninety (90) days
of the Executive's death. Such lump sum payment, if approved by the Board of
Directors, shall be payable within thirty (30) days of such Board approval.
(b) ALTERATIVE PAYOUT OPTION. If (i) the Executive dies while employed by
the Bank, and
14
(ii) the Executive 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 Executive's Retirement Income Trust Fund, measured as of
the later of (i) the Executive's death, or (ii) the date any final lump sum
Contribution is made pursuant to Subsection 2.1(b), shall be paid to the
Executive's Beneficiary in a lump sum within thirty (30) days of the date the
Administrator receives notice of the Executive's death.
The balance of the Executive's Accrued Benefit Account (if applicable),
measured as of the later of (i) the Executive's death, or (ii) the date any
final Phantom Contribution is recorded pursuant to Subsection 2.1(c), shall be
paid to the Executive's Beneficiary in a lump sum within thirty (30) days of the
date the Administrator receives notice of the Executive's death.
SECTION V
BENEFIT(S) IN THE EVENT OF TERMINATION OF SERVICE
PRIOR TO RETIREMENT AGE
5.1 VOLUNTARY OR INVOLUNTARY TERMINATION OF SERVICE OTHER THAN FOR CAUSE. In the
event the Executive's service with the Bank is voluntarily or involuntarily
terminated prior to Retirement Age for any reason, including a Change in
Control, but excluding (1) any disability related termination for which the
Board of Directors has approved early payment of benefits pursuant to Subsection
6. 1, (ii) the Executive's pre-retirement death, which is provided for in
Section IV, or (iii) termination for Cause, which is provided for in Subsection
5.2, the Executive (or his Beneficiary) shall be entitled to receive benefits in
accordance with this Subsection 5.1. Payments of benefits pursuant to this
Subsection 5.1 shall be made in accordance with Subsection 5.1 (a) or 5.1 (b)
below, as applicable.
(a) NORMAL FORM OF PAYMENT.
(1) Executive Lives Until Benefit Age. If (i) after such termination, the
Executive lives until attaining his Benefit Age, and (ii) the Executive has not
made a Timely Election to receive a lump sum benefit. This Subsection 5.1 (a)(1)
shall be controlling with respect to retirement benefits.
The Retirement Income Trust Fund, measured as of the Executive's Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such payments shall commence on the
Executive'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
15
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 Executive (or his Beneficiary) shall include the excess amounts attributable
to the greater-than expected rate of return. In the event the Executive dies at
any time after attaining his Benefit Age, but prior to commencement or
completion of all the payments due and owing hereunder, (i) the trustee of the
Grantor Trust shall pay to the Executive's Beneficiary the monthly installments
(or a continuation of the monthly installments if they have already commenced)
for the remaining months in the Payout Period, or (ii) the Executive's
Beneficiary may request to receive the unpaid balance of the Executive'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 Executive's
Beneficiary (i) obtains approval from the trustee of the Grantor Trust and (ii)
notifies the Administrator in writing of such election within ninety (90) days
of the Executive's death. Such lump sum payment, if approved by the trustee,
shall be made within thirty (30) days of such trustee approval.
The Executive's Accrued Benefit Account (if applicable), measured as of the
Executive's Benefit Age, shall be annuitized (using the Interest Factor) into
monthly installments and shall be payable for the Payout Period. Such benefit
payments shall commence on the Executive's Benefit Eligibility Date. In the
event the Executive dies at any time after attaining his Benefit Age, but prior
to commencement or completion of all the payments due and owing hereunder, (i)
the Bank shall pay to the Executive's Beneficiary the same monthly installments
(or a continuation of such monthly installments if they have already commenced)
for the balance of months remaining in the Payout Period, or (ii) the
Executive'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 Executive's Accrued Benefit Account. Payment in such lump
sum shall be made only if the Executive's Beneficiary (i) obtains Board of
Director approval, and (ii) notifies the Administrator in writing of such
election within ninety (90) days of the Executive's death. Such lump sum
payment, if approved by the Board of Directors, shall be made within thirty (30)
days of such Board of Director approval.
(2) EXECUTIVE DIES PRIOR TO BENEFIT AGE. If (i) after such termination, the
Executive dies prior to attaining his Benefit Age, and (ii) the Executive has
not made a Timely Election to receive a lump sum benefit, this Subsection
5.1(a)(2) shall be controlling with respect to retirement benefits.
The Retirement Income Trust Fund, measured as of the date of the
Executive's death, shall be
16
annuitized (using the Interest Factor) into monthly installments and shall be
payable for the Payout Period. Such benefit payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Executive's death. 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 as of the date of the
Executive's death, the final benefit payment to the Executive's Beneficiary
shall include the excess amounts attributable to the greater-than-expected rate
of return. The Executive's Beneficiary may request to receive the unpaid balance
of the Executive's Retirement Income Trust Fund in the form of 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 Executive's Beneficiary (i) obtains approval from the trustee of the
Grantor Trust and (ii) notifies the Administrator in writing of such election
within ninety (90) days of the Executive's death. Such lump sum payment, if
approved by the trustee, shall be made within thirty (30) days of such trustee
approval.
The Executive's Accrued Benefit Account (if applicable), measured as of the
Executive's Benefit Age, shall be annuitized (using the Interest Factor) into
monthly installments and shall be payable for the Payout Period. Such benefit
payments shall commence on the Executive's Benefit Eligibility Date. In the
event the Executive dies at any time after attaining his Benefit Age, but prior
to commencement or completion of all the payments due and owing hereunder, (i)
the Bank shall pay to the Executive's Beneficiary the same monthly installments
(or a continuation of such monthly installments if they have already commenced)
for the balance of months remaining in the Payout Period, or (ii) the
Executive'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 Executive's Accrued Benefit Account. Payment in such lump
sum fund shall be made only if the Executive's Beneficiary (i) obtains Board of
Director approval, and (ii) notifies the Administrator in writing of such
election within ninety (90) days of the Executive's death. 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.
(1) EXECUTIVE LIVES UNTIL BENEFIT AGE. If (i) after such termination, the
Executive lives until
17
attaining his Benefit Age, and (ii) the Executive 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
Executive's Benefit Age, shall be paid to the Executive in a lump sum on his
Benefit Eligibility Date. In the event the Executive 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 Executive's death.
The balance of the Executive's Accrued Benefit Account (if applicable),
measured as of the Executive's Benefit Age, shall be paid to the Executive in a
lump sum on his Benefit Eligibility Date. In the event the Executive 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 Executive's
death.
(2) EXECUTIVE DIES PRIOR TO BENEFIT AGE. If (i) after such termination, the
Executive dies prior to attaining his Benefit Age, and (ii) the Executive 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 Executive's death, shall be paid to the Executive's Beneficiary within
thirty (30) days of the date the Administrator receives notice of the
Executive's death.
The balance of the Executive's Accrued Benefit Account (if applicable),
measured as of the date of the Executive's death, shall be paid to the
Executive's Beneficiary within thirty (30) days of the date the Administrator
receives notice of the Executive's death. 5.2 Termination For Cause. If the
Executive is terminated for Cause, all benefits under this Agreement, other than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Executive shall be entitled to receive a benefit
in accordance with this Subsection 5.2.
The balance of the Executive's Retirement Income Trust Fund shall be paid
to the Executive in a lump sum on his Benefit Eligibility Date. In the event the
Executive dies prior to his Benefit Eligibility Date, his Beneficiary shall be
entitled to receive the balance of the Executive's Retirement Income Trust Fund
in a
18
lump sum within thirty (30) days of the date the Administrator receives notice
of the Executive's death.
SECTION VI
OTHER BENEFITS
6.1 (a) DISABILITY BENEFIT. If the Executive's service is terminated prior to
Retirement Age due to a disability which meets the criteria set forth below, the
Executive may request to receive the Disability Benefit in lieu of the
retirement benefit(s) available pursuant to Section 5.1 (which is (are) not
available prior to the Executive's Benefit Eligibility Date).
In any instance in which: (i) it is determined by a duly licensed,
independent physician selected by the Bank, that the Executive is no longer
able, properly and satisfactorily, to perform his regular duties as an officer,
because of ill health, accident, disability or general inability due to age,
(ii) the Executive requests payment under this Subsection in lieu of Subsection
5.1, and (iii) Board of Director approval is obtained to allow payment under
this Subsection, in lieu of Subsection 5.1, the Executive shall be entitled to
the following lump sum benefits: (i) the balance of the Retirement Income Trust
Fund, plus (ii) the balance of the Accrued Benefit Account (if applicable). The
benefits shall be paid within thirty (30) days following the date of the
Executive's request for such benefit is approved by the Board of Directors. In
the event the Executive dies after becoming eligible for such payments but
before the actual payments are made, his Beneficiary shall be entitled to
receive the benefits provided for in this Subsection 6.1 (a) within thirty (30)
days of the date the Administrator receives notice of the Executive's death.
(b) DISABILITY BENEFIT - SUPPLEMENTAL. Furthermore, if Board of Director
approval is obtained within thirty (30) days of the Executive's death, the Bank
shall make a direct, lump sum payment to the Executive's Beneficiary in an
amount equal to the sum of all remaining Contributions (or Phantom
Contributions) set forth in Exhibit A, but not required pursuant to Subsection
2.1(b) (or-2.1(c)) due to the Executive's disability-related termination. Such
lump sum payment, if approved by the Board of Directors, shall be payable to the
Executive's Beneficiary within thirty (30) days of such Board of Director
approval.
6.2 Additional Death Benefit - Funeral Expense. Upon the Executive's
death, the Executive's Beneficiary shall also be entitled to receive a one-time
lump sum death benefit in the amount of Thirty Thousand Dollars ($30,000.00).
This benefit shall be paid directly from the Bank to the Beneficiary and shall
be provided specifically for the purpose of providing payment for funeral
expenses of the Executive. Such death benefit shall be payable within thirty
(30) days from the date the Administrator receives notice of the Executive's
19
death. The Executive's Beneficiary shall not be entitled to such benefit if the
Executive 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 Executive
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 Executive further agrees that following his employment with the
Bank and continuing through the Payout 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 Executive 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 Executive 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 Executive 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, payable in a lump sum on his Benefit
Eligibility Date. In the event the Executive 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
Bank receives notice of the Executive's death. If, following such breach, the
Executive 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, payable in a lump sum within thirty
(30) days of the date the Bank receives notice of the Executive's death.
20
In the event (i) any breach by the Executive of the agreements and
covenants described in Subsection 7.1 occurs while the Executive is employed at
the Bank, and (ii) the Executive'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 Executive shall be paid in accordance with Subsection 5.2 of this
Agreement.
(b) BREACH FOLLOWING TERMINATION OF EMPLOYMENT. In the event the Executive
breaches Subsection 7.1 following the Executive'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 Executive is receiving benefits at such
time. If the Executive 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 the Executive's
death after attainment of his Benefit Age but before actual payment of such lump
sum, payment shall be made to the Executive's Beneficiary within thirty (30)
days of the date the Bank has received notice of the Executive's death). If the
Executive has not attained his Benefit Age at the time of the breach, and
following such breach, the Executive lives until attaining his Benefit Age, he
shall be entitled to receive a benefit from the Grantor Trust equal to the
balance of the Retirement Income Trust Fund, payable in a lump sum on his
Benefit Eligibility Date. In the event the Executive 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 Bank receives notice of the Executive's death. If the Executive has not
attained his Benefit Age at the time of the breach, and following such breach,
the Executive 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, payable in a lump sum within thirty
(30) days of the date the Bank receives notice of the Executive's death.
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)), Subsection 7.1 shall cease to be a
condition to the performance by the Bank of its obligations under this
Agreement.
SECTION VIII
BENEFICIARY DESIGNATION
The Executive shall make an initial designation of primary and secondary
Beneficiaries upon
21
execution of this Agreement and shall have the right to change such designation,
at any subsequent time, by submitting to (i) the Administrator, and (ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of this
Agreement shall become effective only when receipt thereof is acknowledged in
writing by the Administrator.
SECTION IX
EXECUTIVE'S RIGHT TO ASSETS
The rights of the Executive, any Beneficiary, or any other person claiming
through the Executive under this Agreement, shall be solely those of an
unsecured general creditor of the Bank. The Executive, the Beneficiary, or any
other person claiming through the Executive, shall only have the right to
receive from the Bank those payments or amounts so specified under this
Agreement. The Executive agrees that he, his Beneficiary, or any other person
claiming through him shall have no rights or interests whatsoever in any asset
of the Bank, including any insurance policies or contracts which the Bank may
possess or obtain to informally fund this Agreement. Any asset used or acquired
by the Bank in connection with the liabilities it has assumed under this
Agreement shall not be deemed to be held under any trust for the benefit of the
Executive or his Beneficiaries, unless such asset is contained in the rabbi
trust described in Section XII of this Agreement. Any such asset shall be and
remain, a general, unpledged asset of the Bank in the event of the Bank's
insolvency.
SECTION 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, other than
those Contributions required to be made to the Retirement Income Trust Fund. The
Executive, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as any
other creditor having a general claim for matured and unpaid compensation. The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to replace such assets from time to time or to
terminate its investment in such assets at any time, in whole or in part. At no
time shall the Executive be deemed to have any lien, right, title or interest in
or to any specific investment or to any assets of the Bank. If the Bank elects
to invest in a life insurance, disability or annuity policy upon the life of the
Executive, then the Executive shall assist the Bank by freely submitting to a
physical examination and by supplying such additional information necessary to
obtain such insurance or annuities.
22
SECTION XI
ACT PROVISIONS
11.1 NAMED FIDUCIARY AND ADMINISTRATOR. The Bank shall be the Named Fiduciary
and FICC shall be the Administrator of this Agreement. The Administrator shall
be responsible for the interpretation and administration of the Agreement as
established herein. The Bank 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 Executive (or to his Beneficiary in the
case of the Executive's death) and such claimant feels he is 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 claimant if an
additional review of the claim denial is desired.
If claimant desires a second review, they shall notify the Administrator in
writing within sixty (60) days of the first claim denial. Claimant may review
this Agreement or any documents relating thereto and submit any issues and
comments, in writing, he 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 claimant continues to dispute the benefit denial based upon completed
performance of this Agreement or the meaning and effect of the terms and
conditions thereof, then claimant may submit the dispute to an arbitration panel
for settlement. The arbitration panel shall consist of three members: one member
selected by the claimant, one member selected by the Bank, and the third member
selected by the first two members. The arbitration panel shall conduct the
arbitration in accordance with the applicable rules of the American Arbitration
Association. The arbitral award may grant any relief deemed by the arbitrators
to be just and equitable and shall state the reasons for the award and the
relief granted. The parties hereto agree that they, their heirs, personal
representatives, successors and assigns shall be bound by the decision of the
arbitration panel with respect to any controversy properly submitted
23
to it for determination. Any award rendered may be confirmed, judgment upon any
award rendered may be entered, and such award of the judgment thereon may be
enforced in any court of any state or country having jurisdiction over the
parties.
SECTION XII
MISCELLANEOUS
12.1 NO EFFECT ON EMPLOYMENT RIGHTS. Nothing contained herein will confer upon
the Executive the right to be retained in the service of the Bank nor limit the
right of the Bank to discharge or otherwise deal with the Executive without
regard to the existence of the Agreement. Pursuant to 12 C.F.R. ss. 563.39(b),
the following conditions shall apply to this Agreement:
(1) The Bank's Board of Directors may terminate the Executive at any time,
but any termination by the Bank's Board of Directors other than termination for
Cause shall not prejudice the Executive's vested right to compensation or other
benefits under the Agreement. As provided in Subsection 5.2, the Executive 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 Executive 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 Agreement shall be
suspended (except vested rights) as of the date of termination of service unless
stayed by appropriate proceedings. If the charges in the notice are dismissed,
the Bank may in its discretion (i) pay the Executive 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 Executive 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
Agreement 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 Agreement shall
terminate as of the date of default.
(5) All non-vested obligations under the Agreement shall be terminated,
except to the extent determined that continuation of the Agreement is necessary
for the continued operation of the Bank:
(i) by the Director [of the Federal Deposit Insurance Corporation] or his
designee at
24
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
ss. 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 Executive's Retirement Income Trust Fund and the balance of the Executive'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 Indiana, 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: (1) insofar as is reasonable, effect will be given to the
intent manifested in the provisions held invalid or inoperative, and (2) the
validity and enforceability of the remaining provisions will not be affected
thereby.
12.4 INCAPACITY OF RECIPIENT. In the event the Executive is declared incompetent
and a conservator or other person legally charged with the care of his person or
Estate is appointed, any benefits under the Agreement to which such Executive is
entitled shall be paid to such conservator or other person legally charged with
the care of his person or Estate.
12.5 UNCLAIMED BENEFIT. The Executive shall keep the Bank informed of his
current address and the current address of his Beneficiaries. The Bank shall not
be obligated to search for the whereabouts of any person. If the location of the
Executive is not made known to the Bank as of the date upon which any payment of
any benefits from the Accrued Benefit Account may first be made, the Bank shall
delay payment of the Executive's benefit payment(s) until the location of the
Executive is made known to the Bank; however, the Bank shall only be obligated
to hold such benefit payment(s) for the Executive until the expiration of
thirty-six (36) months. Upon expiration of the thirty-six (36) month period, the
Bank may discharge its obligation by payment to the Executive's Beneficiary. If
the location of the Executive'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
Executive's Estate. If there is no Estate in existence at such time or if such
fact cannot be determined by
25
the Bank, the Executive and his Beneficiary(ies) shall thereupon forfeit any
rights to the balance, if any, of the Executive's Accrued Benefit Account
provided for such Executive 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
Executive or any other person for any claim. loss. liability or expense incurred
in connection with the Agreement.
12.7 GENDER AND NUMBER. 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. Similarly,
words in the plural shall be construed in the singular and vice versa, whenever
applicable.
12.8 EFFECT ON OTHER CORPORATE BENEFIT AGREEMENTS. Nothing contained in this
Agreement shall affect the right of the Executive to participate in or be
covered by any qualified or non-qualified pension, profit sharing, group, bonus
or other supplemental compensation plan 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
Executive's death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of this Agreement, all further
Contributions to the Retirement Income Trust Fund (or Phantom Contributions
recorded in the Accrued Benefit Account) shall thereupon cease, and no
Contribution (or Phantom Contribution) shall be made by the Bank to the
Retirement Income Trust Fund (or recorded in the Accrued Benefit Account) in the
year such death resulting from suicide occurs (if not yet made). All benefits
other than those available from previous Contributions to the Retirement Income
Trust Fund under this Agreement shall be forfeited, and this Agreement shall
become null and void. The balance of the Retirement Income Trust Fund, measured
as of the Executive's date of death, shall be paid to the Beneficiary within
thirty (30) days of the date the Administrator receives notice of the
Executive's death.
12.10 INUREMENT. This Agreement shall be binding upon and shall inure to the
benefit of the Bank, its successors and assigns, and the Executive, his
successors, heirs, executors, administrators, and Beneficiaries.
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.
26
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 Executive and/or his Beneficiary in such manner and at such times as
specified in this Agreement. It is the intention of the Bank that the
contribution or contributions to the rabbi trust shall provide the Bank with a
source of funds to assist it in meeting the liabilities of this Agreement.
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
pursuant 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 Executive'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
Executive of all or any portion of the Executive's Retirement Income Trust Fund
(and Accrued Benefit Account, if applicable) as of the effective date of the
resolution amending or terminating the Agreement.
13.2 EXECUTIVE'S RIGHT TO PAYMENT FOLLOWING PLAN TERMINATION. In the event of a
termination of the Agreement, the Executive shall be entitled to the balance, if
any, of his Retirement Income Trust Fund and Accrued Benefit Account, if
applicable. However, if such termination is done in anticipation of or pursuant
to a "Change in Control," such balances shall include the final Contribution (or
final Phantom Contribution) made (or recorded) pursuant to Subsection 2.1(b)(2)
(or 2.1(c)(2)). Payment of the balances of the Executive'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 balances of the Executive's Retirement Income
Trust Fund and Accrued Benefit Account, if applicable, shall be made in a lump
sum within thirty (30) days of the date of termination of the Agreement.
27
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.
[Remainder of Page Intentionally Left Blank]
28
IN WITNESS WHEREOF, the Bank and the Executive have caused this Agreement
to be executed on the day and date first above written.
ATTEST: MUTUAL FEDERAL SAVINGS BANK
(Bank)
By:
--------------------------------
------------------------ -----------------------------------
Secretary (Title)
WITNESS: EXECUTIVE:
------------------------ -----------------------------------
29
CONDITIONS, ASSUMPTIONS,
AND
SCHEDULE OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1. Interest Factor - for purposes of:
a. the Accrued Benefit Account - shall be Eight percent (8%) per annum,
compounded monthly.
b. the Retirement Income Trust Fund - for purposes of annuitizing the
balance of the Retirement Income Trust Fund over the Payout Period,
the trustee of the 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 incremental accounting accruals which would be required of the
Bank through the earlier of the Executive's death or Retirement Age, (i)
pursuant to APB Opinion No. 12, as amended by FAS 106 and (ii) assuming a
discount rate equal to Eight percent (8%) per annum, in order to provide
the unfunded, non-qualified Supplemental Retirement Income Benefit.
3. Supplemental Retirement Income Benefit means an actuarially determined
annual amount equal to _________________________ ($_________).
The Supplemental Retirement Income Benefit:
o 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).
30
4. Schedule of Annual Gross Contributions/Phantom Contributions
Plan Year Amount
--------- ------
1996 $
1997 $
1998 $
1999 $
2000 $
2001 $
2002 $
2003 $
Exhibit A
31
RESTATED EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
BENEFICIARY DESIGNATION
The Executive, under the terms of the Restated Executive Supplemental
Retirement Income Agreement executed by the Bank, dated the ______ day of
__________________, 19__, hereby designates the following Beneficiary to receive
any guaranteed payments or death benefits under such Agreement, following his
death:
PRIMARY BENEFICIARY: _________________________________
SECONDARY BENEFICIARY: _________________________________
This Beneficiary Designation hereby revokes any prior Beneficiary
Designation which may have been in effect.
This Beneficiary Designation is revocable.
DATE:___________________ , 19___
------------------------------------ ------------------------------------
(WITNESS) EXECUTIVE
Exhibit B
32
RESTATED EXECUTIVE 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 EXECUTIVE SUPPLEMENTAL RETIREMENT
INCOME AGREEMENT.
|_| I hereby elect to change the form of payment of my benefits
from monthly installments throughout my Payout 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 Payout Period. Such election hereby revokes my
previous notice of election to receive a lump sum form of
benefit payments.
----------------------------------
Executive
----------------------------------
Date
Acknowledged
By:
-------------------------------
Title:
----------------------------
----------------------------------
Date
Exhibit C
33
MUTUAL FEDERAL SAVINGS BANK
RABBI TRUST FOR THE
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT(S)
-------------------------------------------------------------------
This Agreement is made this 15th day of November, 1996 by and between
MUTUAL FEDERAL SAVINGS BANK, a federally chartered savings institution, having
its principal place of business in Munice, Indiana, (the "Bank"), and Indiana
Federal Bank for Savings, a banking organization organized under the laws of the
state of Indiana (the "Trustee").
WHEREAS, the Bank has adopted Restated Executive Supplement Retirement
Income Agreement(s)(the "Plan"), effective as of the 15th day of November, 1996,
which constitutes a non-qualified deferred compensation plan, a copy of which is
attached hereto as Appendix A.
WHEREAS, Bank has incurred or expects to incur liability under the terms of
the Plan with respect to the individual(s) participating in the Plan;
WHEREAS, Bank wishes to establish a trust (the "Trust") and to contribute
to the Trust assets that shall be held therein, subject to the claims of Bank's
creditors in the event of Bank's Insolvency, as herein defined, until paid to
Plan participants and their beneficiaries in such manner and at such times as
specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan, maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees,
for purposes of Title I of the Employee Retirement Income Security Act of 1974,
as amended;
WHEREAS, it is the intention of Bank to make contributions to the Trust to
provide itself with a source of funds to assist it in the meeting of its
liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
1
1. ESTABLISHMENT OF TRUST.
(a) Bank hereby deposits with Trustee in trust assets which shall become
the principal of the Trust to be held, administered and disposed of by
Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Bank is grantor,
within the meaning of subpart E. part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall
be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Bank and shall be used
exclusively for the uses and purposes of Plan participants and general
creditors as herein set forth. Plan participants and their
beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created
under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries
against Bank. Any assets held by the Trust will be subject to the
claims of Bank's general creditors under federal and state law in the
event of Insolvency, as defined in Section 3(a) herein.
(e) Within seventy-five (75) days following the end of each calender year,
Bank shall be required to irrevocably deposit additional cash or other
property to the Trust in an amount sufficient to pay each Plan
participant or beneficiary the benefits payable pursuant to the terms
of the Plan as of the close of the calendar year.
(f) Upon (i) a Change in Control (as defined herein) or (ii) the death of
a participant during service but prior to "Benefit Age" (as such term
is defined in the Plan), Bank shall as soon a possible, but in no
event longer than seventy-five (75) days following such event, make an
additional irrevocable contribution to the Trust in
2
an amount that is sufficient to pay each Plan participant or
beneficiary the benefits to which Plan participants or their
beneficiaries would be entitled pursuant to the terms of the Plan as
of the date such event occurred.
2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.
(a) Bank shall deliver to Trustee a schedule (the "Payment Schedule") that
indicates the amounts payable in respect of each Plan participant (and
his or her beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so
payable, the form in which such amount is to be paid (as provided for
or available under the Plan), and the time of commencement for payment
of such amounts. Except as otherwise provided herein, Trustee shall
make payments to the Plan participants and their beneficiaries in
accordance with such Payment Schedule. The Trustee shall make
provision for the reporting and withholding of any federal, state, or
local taxes that may be required to be withheld with respect to the
payment of benefits pursuant to the terms of the Plan and shall pay
amounts withheld to the appropriate taxing authorities or determine
that such amounts have been reported, withheld and paid by Bank.
(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plan shall be determined by Bank or such party as
it shall designate under the Plan, and any claim for such benefits
shall be considered and reviewed under the procedures set out in the
Plan.
(c) Bank may make payment of benefits directly to Plan participants or
their beneficiaries as they become due under the terms of the Plan.
Bank shall notify Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or
their beneficiaries. In addition, if the principal of the Trust, and
any earnings thereon, are not sufficient to make payments of benefits
in accordance with the terms of the Plan, Bank shall make
3
the balance of each such payment as it falls due. Trustee shall notify
Bank where principal and earnings are not sufficient.
3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY WHEN BANK IS
INSOLVENT.
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Bank is Insolvent. Bank shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Bank is unable
to pay its debts as they become due, (ii) Bank is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code, or
(iii) Bank is determined to be insolvent by the Director of the
Federal Deposit Insurance Corporation or the Resolution Trust
Corporation.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be
subject to claims of general creditors of Bank under federal and state
law as set forth below.
(1) The Board of Directors and the Chief Executive Officer of Bank
shall have the duty to inform Trustee in writing of Bank's
Insolvency. If a person claiming to be a creditor of Bank alleges
in writing to Trustee that Bank has become Insolvent, Trustee
shall determine whether Bank is Insolvent and, pending such
determination, Trustee shall discontinue payment of benefits to
Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Bank's Insolvency, or has
received notice from Bank or person claiming to be a creditor
alleging that Bank is Insolvent, Trustee shall have no duty to
inquire whether Bank is Insolvent. Trustee may in all events rely
on such evidence concerning Bank's solvency as may be furnished
to Trustee and that provides Trustee with a reasonable basis for
making a determination concerning Bank's solvency.
4
(3) If at any time Trustee has determined that Bank is Insolvent,
Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the
benefit of Bank's general creditors. Nothing in this Trust
Agreement shall in any way diminish any rights of Plan
participants or their beneficiaries to pursue their rights as
general creditors of Bank with respect to benefits due under the
Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after Trustee has determined that Bank is not
Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due
to Plan participants or their beneficiaries under the terms of the
Plan for the period of such discontinuance, less the aggregate amount
of any payments made to Plan participants or their beneficiaries by
Bank in lieu of the payments provided for hereunder during any such
period of discontinuance.
4. PAYMENTS TO BANK.
Except as provided in Sections 3 or 12 hereof, after the Trust has become
irrevocable, Bank shall have no right or power to direct Trustee to return to
Bank or to divert to others any of the Trust assets before all payment of
benefits have been made to Plan participants and their beneficiaries pursuant to
the terms of the Plan.
5
5. INVESTMENT AUTHORITY.
Trustee shall maintain all investments deposited upon establishment of the
trust (and listed on Exhibit A), until such time as the investments reach
maturity. Liquidation of such investments prior to maturity shall only be
allowable by the Trustee if (i) there is insufficient cash in the trust at the
time a benefit payment is due under the Plan and (ii) with knowledge of such
insufficiency, the Bank affirmatively chooses not to pay any or all of the
benefit payment due from Bank assets held outside the trust itself. As the
investments listed on Exhibit A mature, the Trustee's investment authority, with
respect to the proceeds from such investments, shall be subject to the
following:
(a) In no event may Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by Bank, other than a
de minimis amount held in common investment vehicles in which Trustee
invests, except where such de minimis investment is prohibited by
applicable banking regulations. All rights associated with assets of
the Trust shall be exercised by Trustee or the person designated by
Trustee, and shall in no event be exercisable by or rest with Plan
participants.
(b) Trustee shall have the following powers and authority in the
administration of the assets of Trust, in addition to those vested in
it elsewhere in this Trust or by law:
(i) To invest and reinvest the assets of Trust, without distinction
between principal and income, in any kind of property, real,
personal or mixed, tangible or intangible, and in any kind of
investment, security or obligation suitable for the investment of
Trust assets, including federal, state and municipal tax-free
obligations and other tax-free investment vehicles, insurance
policies and annuity contracts, and any common trust fund, group
trust, pooled fund, or other commingled investment fund
maintained by the Trustee or any other bank or entity for trust
investment purposes;
(ii) To purchase, and maintain as owner, life insurance policies with
respect to participants;
6
(iii) To sell for cash or on credit, to grant options, convert,
redeem, exchange for other securities or other property, or
otherwise to dispose of, any security or other property at any
time held;
(iv) To settle, compromise or submit to arbitration, any claims, debts
or damages, due or owing to or from the Trust, to commence or
defend suits or legal proceedings and to represent the Trust in
all suits or legal proceedings;
(v) To exercise any conversion privilege and/or subscription right
available in connection with securities or other property at any
time held, to oppose or to consent to the reorganization,
consolidation, merger or readjustment of the finances of any
corporation, Bank or association or to the sale, mortgage, pledge
or lease of the property of an corporation, Bank or association
any of the securities of which may at any time be held and to do
any act with reference thereto, including the exercise of
options, the making of agreement or subscription, which may be
deemed necessary or advisable in connection therewith, and to
hold and retain any securities or other properties so acquired;
(vi) To hold cash uninvested for a reasonable period of time (not in
excess of ten (10) days) under the circumstances without
liability for interest, pending investment thereof or the payment
of expenses or making distributions therewith;
(vii) To form corporations and to create trusts to hold title to any
securities or other property, all upon such terms and conditions
as may be deemed advisable;
(viii) To register any securities held hereunder in the name of the
Trustee or in the name of a nominee with or without the addition
of words indicating that such securities are held in a fiduciary
capacity and to hold any securities in bearer form;
7
(ix) To make, execute and deliver, as Trustee, any and all
conveyances, contracts, waivers, releases or other instruments in
writing necessary or proper for the accomplishment of any of the
foregoing powers;
(x) To employ suitable agents and counsel and to pay their reasonable
expenses and compensation; and
(xi) To have any and all other power of authority, under the laws of
the state in which the Trustee's principal executive offices are
located, relevant to performance in the capacity as Trustee.
6. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
7. ACCOUNTING BY TRUSTEE.
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between Bank
and Trustee. Within ninety (90) days following the close of each calendar year
and within sixty (60) days after the removal or resignation of Trustee, Trustee
shall deliver to Bank a written account of its administration of the Trust
during such year or during the period from the close of the last preceding year
to the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it, including a
description of all securities and investments purchased and sold with the cost
or net proceeds of such purchases or sales (accrued interest paid or receivable
being shown separately), and showing all cash, securities and other property
held in the Trust at the end of such year or as of the date of such removal or
resignation, as the case may be.
8
8. RESPONSIBILITY OF TRUSTEE.
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however,
that Trustee shall incur no liability to any person for any action
taken pursuant to a direction, request or approval given by Bank which
is contemplated by, and in conformity with, the terms of the Plan or
this Trust and is given in writing by Bank. In the event of a dispute
between Bank and a party, Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in connection
with this Trust, except litigation arising out of the Trustee's
negligence or breach of fiduciary duty, Bank agrees to indemnify
Trustee against Trustee's costs, expenses and liabilities (including,
without limitation, attorney's fees and expenses) relating thereto and
to be primarily liable for such payments. If Bank does not pay such
costs, expenses and liabilities in a reasonable manner, Trustee may
obtain payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for
Bank generally) with respect to any of its duties or obligations
hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment advisors,
financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
(e) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise
herein, provided, however, that if an insurance policy is held as an
asset of the Trust, Trustee shall have no power to name a beneficiary
of the policy other than the Trust, to assign the policy (as distinct
from conversion of the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of any
borrowing against such policy.
9
(f) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that
could give this Trust the objective of carrying on a business and
dividing the gains therefrom, within the meaning of section 301.7701-2
of the Procedure and Administrative Regulations promulgated pursuant
to the Internal Revenue Code.
9. FEES AND EXPENSES OF TRUSTEE.
Bank shall pay all administrative and Trustee's fees and expenses. If not
so paid, the fees and expenses shall be paid from the Trust.
10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) Trustee may resign at any time by written notice to Bank, which shall
be effective sixty (60) days after receipt of such notice unless Bank
and Trustee agree otherwise.
(b) Trustee may be removed by Bank on sixty (60) days prior written notice
or upon shorter notice accepted by Trustee.
(c) Upon a Change of Control, as defined herein, Trustee may not be
removed by Bank for two (2) years following the date of such Change in
Control, nor may such Trustee be removed by Bank in anticipation of a
Change of Control.
(d) If Trustee resigns at any time following a Change in Control, or if
Trustee is removed by Bank at any time following the expiration of the
two (2) year period (as described in Subpart (c) above) following a
Change in Control, Trustee shall select a successor Trustee in
accordance with the provisions of 11(a) hereof prior to the effective
date of Trustee's resignation or removal. In all other instances of
resignation or removal, Bank shall select a successor Trustee in
accordance with the provisions of 11(a) hereof prior to the effective
date of Trustee's resignation or removal.
10
(e) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred
to the successor Trustee. The transfer shall be completed within
fifteen (15) days after receipt of notice of resignation, removal
or transfer, unless Bank extends the time limit.
(f) If Trustee resigns or is removed under paragraph (a), (b), or (d)
of this Section 10, a successor shall be appointed in accordance
with Section 11 hereof, by the effective date of resignation or
removal. If no such appointment has been made, Trustee or Bank
(as specified above) may apply to a court of competent
jurisdiction for appointment of a successor or for instructions.
Should the Trustee be required to apply to a court of competent
jurisdiction for such purpose, all expenses of Trustee in
connection with the proceeding shall be allowed as administrative
expenses of the Trust.
11. APPOINTMENT OF SUCCESSOR.
(a) If Trustee resigns or is removed pursuant to the provisions of
Section 10 hereof, Bank or Trustee (as specified above) may
appoint any third party, such as a bank trust department or other
party that may be granted corporate trustee powers under state
law, as a successor to replace Trustee upon resignation or
removal. The appointment of a successor Trustee shall be
effective when accepted in writing by the new Trustee. The new
Trustee shall have all of the rights and powers of the former
Trustee, including ownership rights in the Trust assets. The
former Trustee shall execute any instrument necessary or
reasonably requested by the successor Trustee to evidence the
transfer.
(b) The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust
assets, subject to Sections 7 and 8 hereof. The successor Trustee
shall not be responsible for and Bank shall indemnify and defend
the successor Trustee from any claim or liability resulting
11
from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it
becomes successor Trustee.
12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and Bank. Notwithstanding the foregoing, no
such amendment shall conflict with the terms of the Plan or shall
make the Trust revocable after it has become irrevocable in
accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan. Upon termination of
the Trust any assets remaining in the Trust shall be returned to
Bank.
(c) Upon written approval of participants or beneficiaries entitled
to payment of benefits pursuant to the terms of the Plan, Bank
may terminate this Trust prior to the time all benefit payments
under the Plan have been made. All assets in the Trust at
termination shall be returned to Bank.
(d) Sections 1(one), 2 (two), 6 (six), 10 (ten) and 12 (twelve) of
this Trust Agreement may not be amended by Bank (i) in
anticipation of or (ii) for two (2) years following a Change of
Control, as defined herein.
13. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned
(either at law or in equity), alienated,
12
pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the state in which the Trustee's
principal executive offices are located.
(d) For purposes of this Trust, Change of Control shall mean;
(1) a change of control of a nature that would be required to be
reported in response to Item 1 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 1934 (hereinafter
the "Exchange Act"); or
(2) a change of control of the Bank within the meaning of 12
C.F.R. 4\574.4; or
(3) a Change of 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%) or more of
the combined voting power of the Bank's outstanding
securities ordinarily having the right to vote at the
elections of Directors except for (i) any stock of the
Bank purchased by the Holding Company in connection
with the conversion of the Bank to stock form, and (ii)
any stock purchased by any Employee Stock Ownership
Plan and/or trust sponsored by the Bank; or
(ii) individuals who constitute the Board of Directors on
the date hereof (hereinafter 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
13
by the Bank's members (or 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 the assets of the Bank occurs; or
(iv) a proxy statement is issued soliciting proxies from the
members (or stockholders) of the Bank by someone other
than the current management of the Bank, seeking member
(or stockholder) approval of a plan of reorganization,
merger, or consolidation of the Bank with one or more
corporations as a result of which the outstanding
shares of the class of the Bank's securities are
exchanged for or converted into cash or property or
securities not issued by the Bank.
For these purposes, the terms "stockholders(s)" and "member(s)"
shall be considered one and the same. The term "Holding Company"
shall mean the holding company (including any successor thereto)
organized to acquire the capital stock of the Bank upon the
Bank's conversion from mutual to stock form.
14. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be the 15th day of
November, 1996.
14
IN WITNESS WHEREOF, this instrument has been executed as of the day and
year first written above.
MUTUAL FEDERAL SAVINGS BANK
(Bank)
Attest: By:
----------------------------------------
--------------------------- --------------------------------------------
(Title)
--------------------------------------------
(Trustee)
Attest: By:
----------------------------------------
--------------------------- --------------------------------------------
(Title)
15
FIRST
AMENDMENT
TO THE
MUTUAL FEDERAL SAVINGS BANK
RABBI TRUST FOR THE
RESTATED
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT(S)
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This Agreement is made this 19th day of October, 1999 by and between MUTUAL
FEDERAL SAVINGS BANK, a federally chartered savings institution, having its
principal place of business in Munice, Indiana, (the "Bank"), and SECURITY
FEDERAL SAVINGS BANK, a federally chartered savings institution, with its
principal place of business in the state of Indiana, (the "Trustee").
WHEREAS, the Bank has adopted a restated Executive Supplemental Retirement
Income Agreement, effective as of the 15th day of November, 1996, which
constitutes a non-qualified deferred compensation plan;
WHEREAS, the Bank has adopted an Executive Deferred Compensation Master
Agreement, effective as of the 15th day of November, 1996, which constitutes a
non-qualified deferred compensation plan;
WHEREAS, the Bank has adopted a Director Deferred Compensation Master
Agreement (the "Plans"), effective as of the 15th day of November, 1996, which
constitutes a non-qualified deferred compensation plan;
WHEREAS, it is the parties intention to merge and consolidate all of the
assets of the Mutual Federal Savings Bank Rabbi Trust for the Restated Executive
Supplemental Retirement Income Agreement(s) ("the Trust"), the Mutual Federal
Savings Bank Rabbi Trust for the Executive Deferred Compensation Master
Agreement, and the Mutual Federal Savings Bank Rabbi Trust for the Director
Deferred Compensation Master Agreement;
NOW, THEREFORE, the parties do hereby amend and rename the Trust the
"Mutual Federal Savings Bank Rabbi Trust for the Restated Executive Supplemental
Retirement Income Agreement(s), the Director Deferred Compensation Master
Agreement, and the Executive Deferred Compensation Master Agreement."
1
IN WITNESS WHEREOF, this instrument has been executed as of the day and
year first written above.
MUTUAL FEDERAL SAVINGS BANK
(Bank)
Attest: By:
----------------------------------------
--------------------------- --------------------------------------------
(Title)
SECURITY FEDERAL SAVINGS BANK
(Trustee)
Attest: By:
----------------------------------------
--------------------------- --------------------------------------------
(Title)
2
FORM OF
GRANTOR TRUST AGREEMENT
This Trust Agreement is made this 15th day of November, 1996, by and
among _______________ (the "Grantor"), MUTUAL FEDERAL SAVINGS BANK, a state
chartered mutual savings bank having its principal place of business in MUNCIE,
INDIANA, (the "Bank"), and Indiana Federal Bank for Savings (the "Trustee").
RECITALS:
WHEREAS, the Bank has entered into a certain Restated Executive
Supplemental Retirement Income Agreement, effective as of the 15th day of
November, 1996, (the "Agreement") with Grantor, a copy of which is attached
hereto as Exhibit A; and
WHEREAS, the Agreement provides for certain payments of benefits to be paid
to the Grantor or his designated Beneficiary in accordance with the terms and
provisions of the Agreement, (the "Benefits"); and
WHEREAS, Grantor and the Bank desire to establish an irrevocable trust fund
for the purpose of accumulating funds to provide the Benefits under the
Agreement; and
WHEREAS, Grantor and the Bank desire the Trustee to hold all funds
contributed by the Bank, and the Trustee is willing to hold and administer such
funds in trust, pursuant to the terms of the Agreement and this Trust.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, Grantor, Bank and Trustee do hereby covenant and agree as
follows:
1. ESTABLISHMENT OF TRUST.
Grantor hereby establishes the Trust and does hereby transfer, assign,
convey and grant to the Trustee, the property listed on Exhibit B attached
hereto and made a part hereof for Grantor's benefit and the benefit of any
Beneficiary named hereunder. The Trustee agrees to hold said property and such
additional property as may be hereafter acquired by Trustee under the provisions
of this Trust. The Trust established by this Trust Agreement is intended to be a
"Grantor Trust", treated as established by the Grantor, with the result that the
principal and income of the Trust are
1
treated for tax purposes as assets and income of the Grantor pursuant to
Sections 671 through 679 of the Internal Revenue Code of 1986, as amended. Any
capitalized terms set forth in this Trust that are not specifically defined
herein shall have the same meaning as set forth in the Agreement.
2. ACCEPTANCE OF TRUST.
The Trustee hereby accepts this Trust as evidenced by the Trustee's
execution of this Trust Agreement. The Bank hereby represents and warrants that
is has the full power, authority, and capacity to execute this Trust and perform
its obligation hereunder. This Trust constitutes a legal, valid and binding
obligation of the Bank, and is enforceable against the Bank in accordance with
its terms.
3. TRUST FUND PROVISIONS.
The Trustee shall receive any property from the Grantor and Contributions
paid to it in cash, or in other property acceptable to it, which shall from time
to time be transferred to the Trust by the Bank. The Trustee shall be
accountable for all property and Contributions received, but the Trustee shall
have no duty to see that the Contributions received are sufficient to provide
the Benefits, nor shall the Trustee be obligated or have any right to enforce or
collect any Contributions from the Bank. All property and Contributions so
received together with the income therefrom and any other increment thereon
shall be held, managed and administered by the Trustee pursuant to the terms of
the Agreement and this Trust.
The Trustee shall establish and maintain a separate Trust Fund for the
benefit of the Grantor to which shall be credited all Contributions by the Bank,
and other property conveyed to the Trust, and all earnings and profits thereon,
and from which shall be deducted all distributions of Benefits and charges
authorized herein.
The Bank shall make Contributions to the Trust each year at the time and in
the manner and amount specified in the Agreement. As of the end of each calendar
year the Trustee shall determine the fair market value of the Trust Fund, after
adding any Contributions made to the Trust and deducting distributions and any
expenses of administration paid out of the Trust during such year. All income of
the Trust earned during each calendar year shall be added to principal as of the
end of such year.
2
The Bank shall notify Grantor, as soon as reasonably practicable, after
each Contribution to the Trustee on behalf of the Grantor. The form of such
notice shall be by mutual agreement between the Grantor and Bank.
Any and all Contributions, as well as earnings thereon, made on behalf of
Grantor shall be deemed to be the sole and exclusive property of the Grantor.
The Grantor may withdraw, either in whole or in part, any and all amounts
contributed on behalf of the Grantor by Bank, including earnings thereon, at any
time and from time to time within thirty (30) days after the date of such
Contribution to the Trust, as determined in the sole and exclusive discretion of
the Grantor. Withdrawal instructions shall be given to the Trustee in writing,
and signed by the Grantor. Such withdrawal instructions must be delivered to the
Trustee on or before midnight of the thirtieth (30th) day after the date of each
Contribution. All withdrawals shall be deducted from Contributions on a first in
first out basis in the event of more than one Contribution within a thirty (30)
day period. The lapse of or failure to properly execute the withdrawal right for
each separate Contribution shall be final and conclusive with respect to that
particular withdrawal right and such withdrawal right or rights shall not be
cumulative and shall not be carried forward from year to year. No further claim
or right of withdrawal exists in favor of Grantor or any person, except those
claims as set forth and specified by the terms of the Agreement and this Trust
relating to Benefits.
Exercise of such withdrawal rights shall terminate Bank's obligation to
make future Contributions to the Trust.
To the extent the Grantor does not exercise his withdrawal rights with
respect to the Contributions, the Contributions shall be used by the Trustee:
(i) to provide retirement benefits or disability benefits payable to the
Grantor pursuant to the Agreement;
(ii) to provide the pre-retirement death benefit payable to the Beneficiary
pursuant to the Agreement;
(iii) to provide the Grantor with sufficient funds to pay any income taxes
owed by Grantor as the result of Grantor's interest in the Trust, to
the extent such taxes have not been withheld and paid by the Bank; and
(iv) for the reasonable compensation of, and reasonable expenses incurred
by, the Trustee in connection with the administration of the Trust, to
the extent such compensation and expenses are not paid directly by the
Bank.
3
The assets of the Trust Fund shall at no time be subject to the rights or
claims of any creditors of the Bank, Grantor or Beneficiary.
Grantor shall have the right to direct the Trustee as to the investment of
the Trust Fund. Such investment direction and instruction shall be delivered to
the Trustee in writing by the Grantor. In the absence of specific instruction,
the Trustee shall invest and reinvest the Trust Fund pursuant to the terms
hereof.
All amounts contributed by the Bank on behalf of the Grantor are intended
to be taxable compensation to Grantor. All earnings on the Contributions, to the
extent Contributions are invested in taxable investments, are intended to be
taxable to the Grantor in accordance with the grantor trust rules under Sections
671 through 679 of the Internal Revenue Code of 1986. No part of the Trust Fund
shall at any time or under any circumstances revert to the Bank.
The Grantor may direct the Trustee in writing to make distributions from
the Trust to the Grantor in an amount sufficient to satisfy the Grantor's
federal and state income tax liability attributable to amounts contributed to
the Trust and to earnings on the Trust's assets. The Grantor shall provide the
Trustee such information as the Trustee may require to determine the amount
needed for such purpose.
4. PAYMENTS FROM THE TRUST FUND.
The Trustee shall make distributions from the Trust Fund to pay the
Benefits at the time and in the manner provided for in the Agreement. The Bank
or its duly authorized representative, shall deliver instructions to the Trustee
as to the amounts payable, the form in which such amounts are to be paid, and
the time payment is to commence. Other payments authorized under Section 3 to be
made by Trustee shall also be made from the Trust Fund as appropriate.
Nothing in this Trust Agreement shall relieve the Bank of its obligation to
pay the Benefits provided to Grantor or Beneficiary under the Agreement except
to the extent such obligation is met by the application of the Trust Fund or by
any direct payments expressly required by the Agreement. In all instances, if
the language in the Agreement conflicts with the language in this Trust, the
Agreement shall be controlling.
4
5. NON-ALIENATION.
Except to the extent otherwise specifically required by law, (i) no amount
payable at any time under the Trust shall be subject in any manner to alienation
by anticipation, sale, transfer, assignment, bankruptcy, pledge, attachment,
charge or encumbrance of any kind, and any attempt to so alienate, sell,
transfer, assign, pledge, attach, charge or otherwise encumber any such amount,
whether presently or thereafter payable, shall be void; and (ii) the Trust Fund
shall in no manner be liable for or subject to the debts or liabilities of or
claims against the Bank, Grantor or Beneficiary.
6. TRUSTEE'S POWERS.
The Trustee shall have the following powers and authority in the
administration of the Trust Fund, in addition to those vested in it elsewhere in
this Trust Agreement or by law:
(a) Subject to the Grantor's right to direct the investment of the Trust
Fund, as provided in Section 3, to invest and reinvest the Trust Fund,
without distinction between principal and income, in any kind of
property, real, personal or mixed, tangible or intangible, and in any
kind of investment, security or obligation suitable for the investment
of trust funds, including federal, state and municipal tax-free
obligations and other tax-free investment vehicles, insurance policies
and annuity contracts, and any common trust fund, group trust, pooled
fund, or other commingled investment fund maintained by the Trustee or
any other bank or entity for trust investment purposes; provided,
however, that it is the desire of the Grantor, which shall be
precatory and not binding, that the Trustee invest the Trust Fund, in
the absence of specific investment direction from the Grantor, to the
extent possible, in tax- deferred investment vehicles, such as life
insurance or annuity products.
(b) To purchase, and maintain as owner, a life insurance policy on the
life of Grantor;
(c) To sell for cash or on credit, to grant options, convert, redeem,
exchange for other securities or other property, or otherwise to
dispose of, any security or other property at any time held;
(d) To settle, compromise or submit to arbitration, any claims, debts or
damages, due or owing to or from the Trust, to commence or defend
suits or legal proceedings and to represent the Trust in all suits or
legal proceedings;
(e) To exercise any conversion privilege and/or subscription right
available in connection with securities or other property at any time
held, to oppose or to consent
5
to the reorganization, consolidation, merger or readjustment of the
finances of any corporation, company or association or to the sale,
mortgage, pledge or lease of the property of any corporation, company
or association any of the securities of which may at any time be held
in the Trust Fund and to do any act with reference thereto, including
the exercise of options, the making of agreements or subscriptions,
which may be deemed necessary or advisable in connection therewith,
and to hold and retain any securities or other properties so acquired;
(f) To hold cash uninvested for a reasonable period of time (not in excess
of ten (10) days without the express written consent of the Grantor)
without liability for interest, pending investment thereof or the
payment of expenses or making distributions therewith;
(g) To form corporations and to create trusts to hold title to any
securities or other property, all upon such terms and conditions as
may be deemed advisable;
(h) To employ suitable agents and counsel and to pay their reasonable
expenses and compensation;
(i) To register any securities held hereunder in the name of the Trustee
or in the name of a nominee with or without the addition of words
indicating that such securities are held in a fiduciary capacity and
to hold any securities in bearer form;
(j) To make, execute and deliver, as Trustee, any and all conveyances,
contracts, waivers, releases or other instruments in writing necessary
or proper for the accomplishment of any of the foregoing powers; and
(k) To have any and all other powers or authority, under the laws of the
state in which the Trustee's principal executive offices are located,
relevant to performance in the capacity as Trustee.
7. FEES AND EXPENSES OF TRUSTEE.
The Trustee shall be paid such reasonable compensation as shall from time
to time be agreed upon by the Bank and the Trustee. Such compensation and all
reasonable costs, charges and expenses incurred by the Trustee in connection
with the administration of the Trust, including
6
counsel fees, shall be withdrawn by the Trustee out of the Trust Fund unless
paid or advanced by the Bank.
8. ACCOUNTING BY TRUSTEE.
The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements and other transactions with respect to the Trust. The
Trustee shall make available such records for inspection by the Bank or Grantor
or Beneficiary. Within thirty (30) days following the close of each calendar
year and within thirty (30) days after the removal or resignation of Trustee,
Trustee shall deliver to Grantor (or in the event of Grantor's death, the
Beneficiary) and to Bank a written account of its administration of the Trust
during such year or during the period from the close of the last preceding year
to the date of such removal or resignation, setting forth all investments,
receipts, and disbursements and other transactions effected by it, including a
description of all securities and investments purchased and sold with the cost
or net proceeds of such purchases or sales (accrued interest paid or receivable
being shown separately), and showing all cash, securities and other property
held in the Trust at the end of such year or as of the date of such removal or
resignation, as the case may be.
9. PROTECTION OF THE TRUSTEE.
The Trustee shall be fully protected in relying upon a certification of an
authorized representative of the Bank with respect to any instruction, direction
or approval of the Bank required or permitted hereunder, and protected also in
relying upon the certification until a subsequent certification is filed with
the Trustee.
The Trustee shall be fully protected in acting upon any instrument,
certificate, or paper believed by it to be genuine and to be signed or presented
by the proper person or persons, and the Trustee shall be under no duty to make
any investigation or inquiry as to any statement contained in any such writing,
but may accept the same as conclusive evidence of the trust and accuracy
contained therein.
The Trustee shall not be liable for following any direction or instruction
of the Bank or its duly authorized representative, or for the proper application
of any part of the Trust Fund if distributions are made in accordance with the
directions of the Bank or its duly authorized representative. The Trustee shall
not be liable hereunder for any loss or diminution of the Trust Fund resulting
from any reasonable action taken or omitted.
7
The Trustee's obligations hereunder shall be determined solely by the terms
of this Trust Agreement and the directions of the Bank or its duly authorized
representative given to it pursuant to the terms of this Trust.
10. RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE.
The Trustee may resign at any time by giving at least sixty (60) days
written notice to the Grantor and the Bank. The Grantor and the Bank may remove
the Trustee at any time by giving at least sixty (60) days prior written notice
to the Trustee or upon shorter notice accepted by Trustee. The Grantor and the
Bank shall appoint a successor trustee to fill any vacancy in the office of
Trustee, howsoever caused, which successor trustee shall be a bank or trust
company (with a combined capital and surplus in excess of one hundred million
dollars) located in the continental United States and independent of and not
providing services to the Grantor or Bank.
Each successor trustee shall succeed to the title to the Trust Fund vested
in its predecessor, without the signing or filing of any further instrument, but
any resigning or removed trustee shall execute all documents and do any acts
necessary to vest such title of record in any successor trustee. Each successor
trustee shall have and enjoy all powers, both discretionary and ministerial, of
its predecessor. No successor trustee shall be liable for any act or failure to
act of any predecessor trustee; and, with the approval of the Grantor and Bank,
a successor trustee may accept the account rendered and the property delivered
to it by its predecessor trustee as a full and complete discharge of the
predecessor trustee without incurring any liability or responsibility for so
doing.
11. IRREVOCABILITY.
This Trust is irrevocable. This Trust Agreement may only be amended with
the unanimous consent of the Trustee, the Bank, and Grantor (or if applicable,
the Beneficiary).
8
12. TERMINATION OF TRUST.
The Trust shall continue throughout the life of the Grantor until all
retirement or disability benefits payable from the Trust Fund are paid, and if
necessary, the Trust shall continue throughout the life of Beneficiary until any
remaining retirement or disability benefits are paid or until any pre-retirement
death benefits payable from the Trust Fund are paid. The Trust shall terminate
only upon:
(i) the complete satisfaction of all Benefit obligations of the Bank to
Grantor or Beneficiary payable from the Trust Fund pursuant to the
Agreement, or
(ii) the complete distribution of all of the assets of the Trust Fund
pursuant to the terms of the Agreement.
Upon termination of the Trust, any assets remaining in the Trust shall be
distributed to the Grantor or Beneficiary.
13. FIDUCIARY RESPONSIBILITY AND LIABILITY.
In carrying out its responsibilities under the Trust, the Trustee and any
other fiduciary hereunder shall act solely in the interest of the Grantor and
Beneficiary and with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims.
The Bank shall, to the extent permitted by law, indemnify the Trustee and
hold it harmless from and against any claims or liabilities, losses, costs or
expenses (including reasonable attorney's fees) of whatsoever kind and nature
that may be asserted against or incurred by the Trustee by reason
9
of its taking or refraining from taking action hereunder, except to the extent
due to the Trustee's gross negligence or willful misconduct.
14. NOTICE.
Every direction, revocation or notice authorized or required hereunder
shall be deemed delivered to the Bank or the Trustee as the case may be:
(i) on the date it is personally delivered to the Bank or the Trustee at
its respective principal executive offices, or
(ii) three business days after it is sent by registered or certified mail,
postage prepaid, addressed to the Bank or the Trustee at such
principal executive offices.
Every direction, revocation or notice authorized or required hereunder
shall be deemed delivered to the Grantor or Beneficiary as the case may be:
(i) on the date it is personally delivered to him, or
(ii) three business days after it is sent by registered or certified mail,
postage prepaid, addressed to him at the last address shown on the
records of the Bank.
Grantor shall keep the Bank and the Trustee informed of his current address
and the current address of the Beneficiary. Neither the Bank nor the Trustee
shall be obligated to search for the whereabouts of any person. If the location
of Grantor is not made known to the Bank or the Trustee within one (1) year
after the date on which distribution of retirement benefits from the Account is
to first be made per the Agreement, distribution may be made as though Grantor
had died at the end of the one (1) year period.
10
15. MISCELLANEOUS.
(a) This Trust Agreement and the Trust created herein shall be construed
and administered under the laws of the state in which the Trustee's principal
executive offices are located.
(b) Any notice required hereunder may be waived by the person entitled
thereto.
(c) Where the context permits, words in the masculine gender shall include
the feminine and neuter genders, the singular shall include the plural, and the
plural shall include the singular.
(d) The headings of Sections of this Trust Agreement are for convenience of
reference only and shall have no substantive effect on the provisions of this
Trust Agreement.
(e) In the event any provision of this Trust Agreement shall be held
illegal or invalid for any reason, such illegality or invalidity shall not
affect the remaining provisions of the Trust Agreement, and the Trust Agreement
shall be construed and enforced as if such illegal or invalid provision had
never been contained herein.
(f) In the event of the merger or consolidation of the Bank with or into
any other corporation, or in the event substantially all of the assets of the
Bank shall be transferred to another corporation, the successor corporation
resulting from the merger or consolidation, or the transferee of such assets, as
the case may be, shall, as a condition to the consummation of the merger,
consolidation or sale, assume the obligations of the Bank hereunder and shall be
substituted for the Bank hereunder.
(g) This Trust Agreement shall extend to and be binding upon the successors
of the parties hereto.
11
IN WITNESS WHEREOF, this Trust Agreement has been executed as of the day
and year first above written.
Attest: By:
----------------------------------
Grantor
----------------------------------
(Trustee)
Attest: By:
----------------------------------
Title:
-------------------------------
MUTUAL FEDERAL SAVINGS BANK
(Bank)
Attest: By:
---------------------------------
Title:
------------------------------