EXHIBIT 10.09
FOURTH FINANCIAL CORPORATION
AMENDED AND RESTATED
NON-EMPLOYEE DIRECTORS DEFERRED FEE PLAN
FOURTH FINANCIAL CORPORATION
AMENDED AND RESTATED
NON-EMPLOYEE DIRECTORS DEFERRED FEE PLAN
Table of Contents
Page
PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . 2
ARTICLE II PARTICIPATION . . . . . . . . . . . . . . . . . . 4
Section 2.1. Participation . . . . . . . . . . . . . . 4
ARTICLE III DEFERRED FEE ACCOUNTS . . . . . . . . . . . . . 5
Section 3.1. Crediting Amounts to Deferred Fee
Accounts . . . . . . . . . . . . . . . . . . . . . 5
Section 3.2. Vesting of Deferred Fee Accounts . . . . 5
Section 3.3. Increases/Decreases of Account . . . . . 6
Section 3.4. Statement of Accounts . . . . . . . . . . 6
Section 3.5. Investment Direction . . . . . . . . . . 6
Section 3.6. Benefits Payable in Stock or Cash . . . . 7
Section 3.7. Dividend Reinvestment . . . . . . . . . . 8
Section 3.8. Number of Dividend Reinvestment Shares . 8
Section 3.9. Prior Deferral Agreements . . . . . . . . 8
Section 3.10. Administration of Prior Deferrals . . . . 9
ARTICLE IV DEATH BENEFITS . . . . . . . . . . . . . . . . . 9
Section 4.1. General . . . . . . . . . . . . . . . . . 9
Section 4.2. Beneficiary Designations . . . . . . . . 9
Section 4.3. Lump Sum Option . . . . . . . . . . . . . 10
ARTICLE V BENEFITS . . . . . . . . . . . . . . . . . . . . . 10
Section 5.1. Termination of Service . . . . . . . . . 10
ARTICLE VI SOURCE OF BENEFITS . . . . . . . . . . . . . . . 10
Section 6.1. Benefits Payable from General Assets . . 10
Section 6.2. Investments to Facilitate Payment of
Benefits . . . . . . . . . . . . . . . . . . . . . 11
Section 6.3. Ownership of Insurance Contracts . . . . 11
Section 6.4. Company Obligation . . . . . . . . . . . 11
Section 6.5. Multiple Companies . . . . . . . . . . . 11
ARTICLE VII ADMINISTRATION OF THIS PLAN . . . . . . . . . . 12
Section 7.1. Plan Appointment of Committee . . . . . . 12
Section 7.2. Committee Action . . . . . . . . . . . . 12
Section 7.3. Committee Rules and Plan Powers--
General . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.4. Reliance on Certificates, Etc . . . . . . 13
Section 7.5. Information to Committee . . . . . . . . 13
ARTICLE VIII AMENDMENT AND TERMINATION . . . . . . . . . . . 13
Section 8.1. Amendment . . . . . . . . . . . . . . . . 13
Section 8.2. Termination or Partial Termination of
the Plan . . . . . . . . . . . . . . . . . . . . . 13
Section 8.3. Liquidation or Reorganization of
Company . . . . . . . . . . . . . . . . . . . . . . 14
Section 8.4. Overriding Limitation . . . . . . . . . . 15
ARTICLE IX RESTRICTIONS ON ALIENATION OF BENEFITS . . . . . 15
ARTICLE X CLAIMS PROCEDURE . . . . . . . . . . . . . . . . . 15
Section 10.1. Initiation of Claim . . . . . . . . . . . 15
Section 10.2. Announcement of Initial Decision . . . . 15
Section 10.3. Review Appeal of Initial Decision . . . . 16
Section 10.4. Conduct of Appeal and Decision . . . . . 16
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . 16
Section 11.1. Execution of Receipts and Releases . . . 16
Section 11.2. No Guarantee of Interests . . . . . . . . 16
Section 11.3. Company Records . . . . . . . . . . . . . 17
Section 11.4. Evidence . . . . . . . . . . . . . . . . 17
Section 11.5. Notice . . . . . . . . . . . . . . . . . 17
Section 11.6. Change of Address . . . . . . . . . . . . 17
Section 11.7. Effect of Provisions . . . . . . . . . . 17
Section 11.8. Severability Clause . . . . . . . . . . . 17
Section 11.9. Minors and Incompetents . . . . . . . . . 17
Section 11.10. Indemnification . . . . . . . . . . . . 18
Section 11.11. Headings . . . . . . . . . . . . . . . . 18
Section 11.12. Governing Law . . . . . . . . . . . . . 18
FOURTH FINANCIAL CORPORATION
AMENDED AND RESTATED
NON-EMPLOYEE DIRECTORS DEFERRED FEE PLAN
WHEREAS, Fourth Financial Corporation has heretofore adopted
the Fourth Financial Corporation Amended and Restated Non-
Employee Directors Deferred Fee Plan; and
WHEREAS, it has become necessary and desirable to amend the
Plan in so many particulars that it is desirable to amend and
restate each and every section thereof.
NOW, THEREFORE, the previous Plan is hereby amended and
restated effective as of July 1, 1993, subject to shareholder
approval, which Plan shall be known as the Fourth Financial
Corporation Amended and Restated Non-Employee Directors Deferred
Fee Plan; and the rights, privileges, and obligations shall be
governed by the terms of this Plan from and after such effect
date.
PURPOSE
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The purpose of the Fourth Financial Corporation Amended and
Restated Non-Employee Directors Deferred Fee Plan shall be to
provide specified benefits for Directors of Fourth Financial
Corporation and its Subsidiary Banks. It is the intention of
Fourth Financial Corporation that this program be administered as
an unfunded employee benefit plan established and maintained
primarily for the purpose of providing deferred compensation for
a select group of management or highly-compensated employees
within the meaning of Section 201(2) of the Employee Retirement
Income Security Act of 1974.
ARTICLE I DEFINITIONS
For purposes of this Plan, the following phrases or terms
shall have the indicated meanings unless otherwise clearly
apparent from the context:
Beneficiary--means the person, persons, entity, or entities
entitled to receive any benefits under this Plan pursuant to the
designation of the Participant (or in default of such designation
as provided in ARTICLE IV hereof).
Change of Control--means the acquisition by any person,
entity, or group (as defined in the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Securities
and Exchange Commission adopted thereunder) of Common Stock of
the Company in a transaction or series of transactions which
results in such person, entity, or group owning beneficially 50%
or more of the outstanding Common Stock.
Code--means the Internal Revenue Code of 1986, as amended.
Committee--means the Committee described in ARTICLE VII
which is the named fiduciary with respect to this Plan. The
Committee shall manage and administer the Plan in accordance with
the provisions of said Article and as otherwise provided in this
Plan.
Common Stock--means Fourth Financial Corporation Common
Stock, par value $5.00 per share.
Company--means Fourth Financial Corporation and any of its
Subsidiary Banks. For purposes of this Plan, the term
"Subsidiary Bank" means a bank more than fifty percent (50%) of
the voting stock of which shall at the time be owned directly or
indirectly by the Company.
Credited Interest--means interest credited at a rate that is
the greater of (1) the rate of interest established by the
Committee prior to the beginning of the Plan Year to be credited
to a Participant's Credited Interest Account, or (2) the Prime
Interest Rate minus one percentage point. The rate in (2) above
shall be adjusted and determined as of the first business day of
each Plan Year quarter. It is intended that the two rates shall
be compared on a quarterly basis for purposes of determining the
rate of interest to be credited to a Participant's Credited
Interest Account for the upcoming Plan Year quarter. In the
event the Committee fails to establish a rate of interest prior
to the beginning of the Plan Year, the rate of interest last
established by the Committee shall apply.
Credited Interest Account--means the account established by
the Company in the name of a Director which utilizes the accrual
of Credited Interest as the method of computing gains
attributable to such account.
Deferred Fee Accounts--means a Director's Credited Interest
Account and Phantom Stock Account. The Deferred Fee Accounts are
the book entries established for each Director, which entries
represent the Company's unsecured and unfunded promise to pay the
amounts represented thereby.
Director--means (i) any active member of the Board of
Directors of Fourth Financial Corporation or (ii) any active or
advisory member of the Board of Directors of a Subsidiary Bank,
who is not otherwise an employee of the Company.
Fee or Fees--means any compensation earned by a Director for
services performed as a Director.
Participant--means a Director who elects to participate in
this Plan.
Phantom Stock Account--means the account established by the
Company in the name of a Director which utilizes the value of the
Common Stock, and any dividends attributable thereto, as the
method of computing the earnings or losses attributable to such
account.
Phantom Stock Units or Units--means a book entry
representing the Participant's right to receive benefits based
upon the performance of the Common Stock and any dividends
attributable thereto, with each Unit being equivalent, for
purposes of measuring performance, to one share of the Common
Stock.
Plan--means, unless the context otherwise requires, this
document, any amendment(s) hereto, and the participation
agreement of each Participant entered into pursuant to ARTICLE
II.
Plan Year--means the calendar year.
Prime Interest Rate--means the rate per annum announced by
Chemical Bank, N.A. from time to time as its prime rate in effect
at its principal office in the City of New York.
ARTICLE II PARTICIPATION
Section 2.1. Participation.
A. General. A Director may participate in this
Plan for a Plan Year by executing a participation agreement
providing for a deferral of 100% of his or her Fees earned
during the Plan Year and returning such agreement to the
Committee not later than the June 30th preceding the Plan
Year to which such agreement relates. Notwithstanding the
foregoing, a Director may elect to participate in this Plan
for the period beginning July 1, 1993 and ending December
31, 1993 by executing a participation agreement providing
for the deferral of 100% of his or her Fees earned during
such period and by returning it to the Committee during the
ten business-day period beginning on the third day after the
Company's release of its financial information for the first
quarter of 1993. A participation agreement made pursuant to
this exception shall be irrevocable during such period and
shall continue in effect after the expiration of such period
as provided in subsection B hereof.
B. Other Conditions of the Agreement. A
participation agreement shall be irrevocable during the Plan
Year following its delivery to the Committee. A
participation agreement shall be effective for the Plan Year
specified in the agreement and for each subsequent Plan Year
unless prior to the June 30th preceding a Plan Year the
Participant revokes said agreement, with such revocation to
become effective as of the beginning of the subsequent Plan
Year. Revocation shall occur by giving written notice to
the Committee. Notwithstanding any other provision of this
Plan to the contrary, an agreement made under this Section
shall automatically terminate upon the termination of this
Plan under ARTICLE VIII, or upon a Director's termination of
service.
C. Investment Election. When a Director first
elects to defer Fees under Section 2.1.A, the Director shall
also irrevocably elect (in accordance with Section 3.5)
whether all future amounts which are deferred shall be
credited 100% to his or her Credited Interest Account, 100%
to his or her Phantom Stock Account, or 50% to each such
Account.
ARTICLE III DEFERRED FEE ACCOUNTS
Section 3.1. Crediting Amounts to Deferred Fee Accounts.
A. Credited Interest Account. When a Director
elects under Section 2.1.A to have deferred Fees credited to
his or her Credited Interest Account, the Company shall
credit the Participant's Credited Interest Account with the
amount of such deferred Fees as of the day such deferred
Fees would have been paid to the Director were they not
deferred under the Plan.
B.1. Phantom Stock Account. When a Director elects
under Section 2.1.A to have deferred Fees credited to his or
her Phantom Stock Account, the Company shall credit the
Participant's Phantom Stock Account with a number of Units
as of the day such deferred Fees would have been paid to the
Director were they not deferred under the Plan. The number
of Units credited to the Participant's Phantom Stock Account
shall be the quotient of (1) the amount of deferred Fees to
be credited to the Participant's Phantom Stock Account
divided by (2) the Fair Market Value of the Common Stock on
such date. No partial Units will be credited to the
Participant's Phantom Stock Account. All sums attributable
to partial Units will instead be credited to the Director's
Credited Interest Account.
B.2. Fair Market Value. For purposes of the Plan,
the term Fair Market Value means the mean between the
reported closing bid and asked prices of the Common Stock as
reported by the NASDAQ system.
B.3. Limitation on Investment Directions. If the
General Counsel of the Company, in his or her sole
discretion, determines that the Company is in possession of
material, undisclosed information about the Company, then a
Participant's election to modify his or her investment
direction pursuant to Section 3.5 shall not be effective
until the second day after public dissemination of such
information, and the price for Units to be credited to the
Director's Phantom Stock Account shall be determined by
reference to such later date.
Section 3.2. Vesting of Deferred Fee Accounts. A
Participant shall be 100% vested in his or her Deferred Fee
Accounts.
Section 3.3. Increases/Decreases of Account. A
Participant's Deferred Fee Accounts shall be increased or
decreased as follows:
A. Credited Interest Account. The Company shall
credit each Participant's Credited Interest Account with (1)
any Fees which are deferred by the Director under Section
2.1.A and directed into the Credited Interest Account
pursuant to Section 2.1.C; (2) any Prior Deferral Amounts
(other than such amounts which the Director elects to have
transferred to his or her Phantom Stock Account) pursuant to
Section 3.10; and (3) any Credited Interest. Credited
Interest shall be credited to each Director's Account, as of
the end of each calendar quarter. Interest shall be
credited during each quarter that a Director has any amount
credited to his or her Credited Interest Account under the
Plan.
B. Phantom Stock Account. The Company shall
credit each Participant's Phantom Stock Account with (1)
Units attributable to Fees which are deferred by the
Director under Section 2.1.A and directed into the Phantom
Stock Account under Section 2.1.C, (2) Units attributable to
Prior Deferral Amounts which the Director elects to have
transferred to the Phantom Stock Account pursuant to Section
3.10, and (3) Units attributable to dividends on Common
Stock under Section 3.7.
The Participant's Deferred Fee Accounts shall be decreased
by the amount of any distributions therefrom.
Section 3.4. Statement of Accounts. The Committee shall
submit to each Participant, within 120 days after the close of
each Plan Year, a statement in such form as the Committee
reasonably deems appropriate, setting forth the balances to the
credit of such Participant in his or her Deferred Fee Accounts.
Section 3.5. Investment Direction.
A. One-Time Election for Future Deferrals. A
Director may, as provided in 2.1.C, enter into a one-time
irrevocable election to invest his or her future deferred
Fees as follows:
(1) 100% in his or her Credited Interest
Account;
(2) 100% in his or her Phantom Stock
Account; or
(3) 50% in his or her Credited Interest
Account and 50% in his or her Phantom Stock
Account.
Except as provided in subsection B and Sections 3.9 and 3.10
with respect to Prior Deferral Amounts and the exception
provided under Section 2.1.A, no such election shall affect
amounts deferred in the calendar year in which the election
is executed or any prior year. The election shall be made
within the time period set forth in Section 2.1 and shall be
effective for all following calendar years in which the
Participant elects to defer Fees under the Plan. If a
Participant ceases to defer Fees into the Plan for any
reason, and if the Participant subsequently elects (pursuant
to Section 2.1) to enter into a participation agreement and
again defer Fees into the Plan, such Participant's one-time
irrevocable investment election shall continue to govern the
allocations of all amounts deferred under the Plan.
B. Prior Deferral Amounts. A Director who has
Prior Deferral Amounts (as described in Section 3.9) may
enter into a one-time irrevocable election, during the ten
business-day period beginning on the third day after the
Company's release of its financial information for the first
quarter of 1993, to have either all or 50% of such Amounts
converted into Units and transferred to his or her Phantom
Stock Account. Such election shall be made on a form
provided by the Company which shall specify the amount or
percentage authorized for transfer. The number of Units
credited to a Participant's Phantom Stock Account as a
result of such a transfer shall be the quotient of (1) the
amounts to be transferred divided by (2) the Fair Market
Value of the Common Stock on July 1, 1993.
C. Limitation on Investment Directions. If the
General Counsel of the Company, in his or her sole
discretion, determines that the Company is in possession of
material, undisclosed information about the Company, then a
Participant's investment election shall not be effective
until the second day after public dissemination of such
information, and the price shall be determined by reference
to such later date.
Section 3.6. Benefits Payable in Stock or Cash. Amounts
distributable under this Plan shall be paid at the time, and in
the manner, provided in Articles IV and V. The amounts
distributable under this Plan shall be the sum of the
Participant's Credited Interest Account and the value of the
Participant's Phantom Stock Account. The value of a
Participant's Phantom Stock Account is determined by multiplying
the number of Phantom Stock Units credited to such Account by the
Fair Market Value of the Common Stock at the end of the business
day next preceding the date of distribution.
Amounts distributable under this Plan shall, at the
recipient's election, be paid in cash, shares of Common Stock, or
a combination of the two. In the event a Participant elects to
receive all or a portion of his or her benefits in the form of
Common Stock, no partial shares will be issued and the
Participant shall receive a cash payment equal to the value of
the partial shares. The Committee shall have authority, in its
sole discretion, to approve or disapprove such Participant's
election, and the election shall be made on the first business
day following the expiration of the six month period which begins
on the last date that the Participant acquired any Phantom Stock
Units ("Election Date"). If a Participant fails to make a timely
election, the amounts due shall be paid in cash, provided,
however, that no amounts shall be payable under this Plan until
the Election Date has passed. To the extent that a Participant
elects to receive his or her benefits in the form of the Common
Stock, the number of shares of Common Stock which will be
distributable to such Participant shall be the quotient of (1)
the amount of benefits payable to the Participant which the
Participant has elected to receive in the form of shares of
Common Stock divided by (2) the Fair Market Value of the Common
Stock at the end of the business day next preceding the date of
distribution.
Section 3.7. Dividend Reinvestment. Additional Units
shall be credited to each Director's Phantom Stock Account, as of
each payment date for dividends on the Common Stock. The number
of additional Units shall be determined pursuant to Section 3.8,
on the basis of the number of Units credited to the Director's
Phantom Stock Account on the record date for such dividends.
Additional Units shall be credited for each record date that a
Director has any amount credited to his or her Phantom Stock
Account under the Plan.
Section 3.8. Number of Dividend Reinvestment Shares. The
number of additional Units credited to a Director's Phantom Stock
Account as of any dividend payment date shall be the quotient of
(1) the product of the number of Units credited to the Director's
Phantom Stock Account on the dividend record date for such
dividend multiplied by the per share dividend rate on the Common
Stock divided by (2) the Fair Market Value of the Common Stock on
the dividend payment date.
Section 3.9. Prior Deferral Agreements. Some Directors
have deferred their Fees earned prior to the effective date of
this Plan pursuant to participation agreements with the Company.
Such agreements are hereinafter referred to as "Prior Deferral
Agreements." Any Prior Deferral Agreements in effect on the
effective date of this Plan shall terminate as of such effective
date with respect to Fees earned thereafter. A Director desiring
to defer Fees earned after the effective date of this Plan shall
enter into a new participation agreement as provided in Section
2.1. However, the provisions of Prior Deferral Agreements
concerning the time and method of distribution of amounts
previously deferred ("Prior Deferral Amounts"), shall remain
fully effective with respect to such Amounts and shall also
govern all of the Participant's future deferrals under the Plan.
Section 3.10. Administration of Prior Deferrals. For
purposes of administration, Prior Deferral Amounts shall be
treated as a part of this Plan. Any Director who has Prior
Deferral Amounts shall be permitted to make a one-time
irrevocable election to have either all or 50% of such Amounts
converted into Units and credited to his or her Phantom Stock
Account in accordance with Section 3.5.B. Except to the extent
that a Director makes such an election, a Participant's Prior
Deferral Amounts shall be credited to his or her Credited
Interest Account.
ARTICLE IV DEATH BENEFITS
Section 4.1. General. In the event of a Participant's
death while a Director, the value of Participant's Deferred Fee
Accounts shall be paid to the Beneficiary or Beneficiaries of the
Participant. Unless the lump sum settlement option has been
elected under Section 4.3, and subject to the limitations of
Section 3.6, benefits shall be payable in five annual
installments with the first payment commencing as soon as
administratively practicable following the date specified in
Section 3.6; provided, that, if the value of a Participant's
Deferred Fee Accounts is $50,000 or less at the time payment is
to commence, a lump sum distribution shall be made.
Section 4.2. Beneficiary Designations. The Beneficiary or
Beneficiaries of a Participant shall be the person, persons,
entity, or entities designated by the Participant on a
Beneficiary Designation provided by the Committee. If more than
one Beneficiary is named, the shares and/or precedence of each
Beneficiary shall be indicated. A Participant shall have the
right to change the Beneficiary by submitting to the Committee a
change of Beneficiary on forms provided by the Committee;
provided, however, that no change of Beneficiary shall be
effective until received by the Committee. If a Participant
fails to file a Beneficiary Designation with the Committee (or
revokes a Designation without providing a new one) or if the
Beneficiary (should only one be designated) predeceases or ceases
to exist or all Beneficiaries designated predecease or cease to
exist or cannot be found upon the death of Participant, then and
in such events the amounts otherwise payable to such Beneficiary
or Beneficiaries shall be paid to Participant's estate. If the
Committee has any doubt as to the proper Beneficiary to receive
payments hereunder, the Committee shall have the right to
withhold such payments until the matter is finally adjudicated or
is otherwise resolved. Any payment made by the Committee in good
faith and in accordance with the provisions of this Plan and the
Participant's Beneficiary Designation Form shall fully discharge
the Company, the Committee, and all Employers from all further
obligations with respect to such payments.
Section 4.3. Lump Sum Option. A Participant may, on
delivery of his or her participation agreement to the Committee,
prior to the first Plan Year in which that Participant elects to
participate in this Plan, elect to have Death Benefits payable in
one lump sum to the Participant's Beneficiary. The Participant
shall make this election in his or her participation agreement
and said election shall be irrevocable from and after delivery of
that agreement. The failure to make an election by the time
prescribed shall require payment to be made over the regular
five-year period.
ARTICLE V BENEFITS
Section 5.1. Termination of Service.
A. General. A Participant who ceases to be a
member of the Board of Directors shall become entitled to
receive the value of the Participant's Deferred Fee
Accounts. Unless the lump sum option has been elected under
Section 5.1.B, benefits shall be payable in ten annual
installments with the first payment commencing as soon as
administratively practicable after the date specified in
Section 3.6, provided, that, if the value of a Participant's
Deferred Fee Accounts is $50,000 or less at the time payment
is to commence, a lump sum distribution shall be made.
B. Lump Sum Option. A Participant may, on
delivery of his or her participation Agreement to the
Committee, prior to the first Plan Year in which that
Participant elects to have fee reductions made under this
Plan, elect to have benefits payable in one lump sum. The
Participant shall make this election in his or her
participation agreement, and said election shall be
irrevocable from and after delivery of that agreement. The
failure to make an election by the time prescribed shall
require payment to be made over the regular ten-year period.
ARTICLE VI SOURCE OF BENEFITS
Section 6.1. Benefits Payable from General Assets.
Amounts payable hereunder shall be paid exclusively from the
general assets of the relevant Company, and no person entitled to
payment hereunder shall have any claim, right, security interest,
or other interest in any fund, trust, account, insurance
contract, or asset of the relevant Company which may be looked to
for such payment. The relevant Company's liability for the
payment of benefits hereunder shall be evidenced only by this
Plan and each participation agreement entered into between the
relevant Company and a Participant. All Fees deferred hereunder
shall at all times remain an unrestricted asset of the relevant
Company, and Participants are general unsecured creditors of the
relevant Company to the extent of their benefits under this Plan.
Section 6.2. Investments to Facilitate Payment of
Benefits. Although the Company is not obligated to invest in any
specific asset or fund, or purchase any insurance contract, in
order to provide the means for the payment of any liabilities
under this Plan, the Company may elect to do so and, in such
event, no Participant shall have any interest whatever in such
asset, fund, or insurance contract. In the event the Company
elects to purchase insurance contracts on the life of a
Participant as a means for making, offsetting, or contributing to
any benefits, which may become due and payable by the Company
under this Plan, such Participant agrees to cooperate in the
securing of life insurance on his or her life by furnishing such
information as the Company and the insurance carrier may require,
including the results and reports of previous employer and other
insurance carrier physical examinations, taking such additional
physical examinations as may be requested, and taking any other
action which may be requested by the Company and the insurance
carrier to obtain such insurance coverage. If a Participant does
not cooperate in the securing of such life insurance, the Company
shall have no further obligation to such Participant under this
Plan and may terminate such individual's participation in this
Plan as provided in Section 2.1.
Section 6.3. Ownership of Insurance Contracts. In the
event the Company elects to purchase insurance, the Company shall
be the sole owner of any insurance contract(s) acquired on the
life of a Participant, with all incidents or ownership therein,
including, but not limited to, the right to cash and loan values,
dividends, if any, death benefits, and the right of termination
thereof, and a Participant shall have no interest whatsoever in
such contract(s) and shall exercise none of the incidents of
ownership thereof.
Section 6.4. Company Obligation. Except as otherwise
expressly provided herein, the Company shall have no obligation
of any nature to a Participant under this Plan.
Section 6.5. Multiple Companies. In furtherance of the
provisions of Section 6.1, in the event that a single Participant
enters into participation agreements under Section 2.1 with more
than one Company while a Participant in this Plan, the liability
for payment of such Participant's benefits under this Plan shall
be apportioned among the Companies based upon a formula that the
Committee shall develop to equitably apportion the cost of the
benefits based upon the years of participation with each Company
and the amounts of deferrals made while the Participant was a
Director of that Company. The apportionment of benefits between
Companies shall be set forth in writing and delivered to the
Director, and the Director and all Companies shall be bound by
the apportionment. In no event, will the Companies be jointly
and severally liable for any amount. A Participant may only
receive benefits under the Plan from the Company to whom the
Committee has apportioned liability for the benefits.
Notwithstanding the foregoing, in the event that a Participant
consents, a Company may transfer to the accepting Company such
assets as the accepting Company will require in exchange for the
acceptance by the accepting Company of the full liability for
payment of the transferred Director's full benefits. Thereafter
the Participant shall look solely to the accepting Company for
payment of all benefits under this Plan (unless and until a
further transfer occurs, in which case, the provisions of this
Section shall apply following such transfer).
ARTICLE VII ADMINISTRATION OF THIS PLAN
Section 7.1. Plan Appointment of Committee. This Plan
shall be administered by a Committee of the Board of Directors of
Fourth Financial Corporation. All members of the Committee shall
serve at the pleasure of the Board of Directors of Fourth
Financial Corporation, which may, from time to time, remove
members from, or add members to, the Committee.
Section 7.2. Committee Action. All acts of a majority of
the members of the Committee attending a meeting at which a
quorum is present, or acts reduced to or approved in writing by a
majority of the members of the Committee, shall be the valid acts
of the Committee.
Section 7.3. Committee Rules and Plan Powers--General.
Subject to the provisions of this Plan, the Committee shall from
time to time establish rules, forms, and procedures for the
administration of this Plan. Except as herein otherwise
expressly provided, the Committee, in its sole discretion, shall
have the exclusive right to interpret this Plan and to decide any
and all matters arising thereunder or in connection with the
administration of this Plan, and it shall endeavor to act,
whether by general rules or by particular decisions, so as not to
discriminate in favor of or against any person. Such decisions,
actions, and records of the Committee shall be conclusive and
binding upon the Company, Directors, and all persons having or
claiming to have any right or interest in or under this Plan.
The Committee shall also have the power to employ or solicit
assistance from any individual who, in the opinion of the
Committee, is necessary or helpful in assisting the Committee in
the proper administration of this Plan. In addition, the
Committee shall have the power to delegate to the appropriate
officers of Fourth Financial Corporation such items as may be
necessary or appropriate under the circumstances, including the
computation and certification of the amount and form of benefits
payable to Participants (Beneficiaries) under the terms of this
Plan.
Section 7.4. Reliance on Certificates, Etc. The members
of the Committee and the officers and directors of the Company
shall be entitled to rely on all certificates and reports made by
any duly appointed accountants and on all opinions given by any
duly appointed legal counsel. Such legal counsel may be counsel
for the Company.
Section 7.5. Information to Committee. To enable the
Committee to perform its functions, the Company shall supply full
and timely information to the Committee on all matters relating
to the Fees of all Directors, their retirements, deaths, or other
causes for termination, and such other pertinent facts as the
Committee may require.
ARTICLE VIII AMENDMENT AND TERMINATION
Section 8.1. Amendment. The Board of Directors of Fourth
Financial Corporation reserves the right (on behalf of all
participating Companies) to amend this Plan at will and at any
time and from time to time; provided, that, no amendment will
reduce the benefits to which a Participant is then entitled or
modify or change the manner or rate of crediting interest set
forth herein without the express written consent of the
Participant affected. This power to amend shall include, but
shall not be limited to, the right to make retroactive any
amendments necessary to keep this Plan an unfunded employee
benefit plan described in Section 201(2) of ERISA or to preserve
or obtain anticipated tax consequences for Participants (subject
to the proviso of the first sentence of this Section). An
amendment revising the price, date of purchase, or number of
Units which are the subject of this Plan shall not be made more
frequently than every six months unless necessary to comply with
the Internal Revenue Code of 1986, as amended, or with the
Employer Retirement Income Security Act of 1974, as amended.
Section 8.2. Termination or Partial Termination of the
Plan. In addition to all other rights granted the Board of
Directors of Fourth Financial Corporation under this Plan, the
Board of Directors of Fourth Financial Corporation shall possess
the right to terminate, in whole or in part, this Plan at any
time. Such right to terminate shall be exercised by the Board of
Directors of Fourth Financial Corporation (and with Board of
Directors' permission by any other Company as to that Company's
Directors, a partial termination) subject to the following
limitations:
A. No action to terminate or partially terminate
this Plan shall be taken except upon written notice to each
Participant to be affected thereby, which notice shall be
given not less than 30 days prior to the effective date of
such termination;
B. In terminating the Plan, the Committee shall
determine in a uniform and consistent manner when affected
Participants shall be paid their benefits from this Plan,
including the possibility that payment shall be delayed
until the Participant's termination of service as a
Director.
In all events, the Committee, in the event of a termination
or partial termination, shall have substantial discretion in
making all necessary determinations.
Section 8.3. Liquidation or Reorganization of Company.
A. Complete Liquidation. If the stockholders of a
Company, other than Fourth Financial Corporation, adopt a
plan of complete liquidation (other than a plan which is
part of a plan or reorganization described in Subsection B
hereof), the Plan shall be deemed to have been terminated as
to that Company as of the date the plan of liquidation is
adopted. The adoption of a plan of complete liquidation by
Fourth Financial Corporation will be deemed effective to
terminate this Plan as to all Companies. The rights of
affected Participants upon such a liquidation under this
Subsection A shall be determined under provisions of Section
8.2 relative to a complete termination.
B. Change in Control and Reorganizations. At any
time after the occurrence of a Change in Control, or if
Company effectuates a merger, consolidation, or other
transition constituting a reorganization with another
corporation or corporations pursuant to which the shares of
common stock of Company will be surrendered for stock of
another corporation without any provision having been made
for the continuance of this Plan, then this Plan shall be
deemed to be terminated. If, however, provisions are made
for the continuance of this Plan which expressly provide
that:
(1) this Plan shall be continued; and
(2) the rights of each Participant in this
Plan will continue in accordance with the terms
hereof;
then, in that event, the Plan shall not be terminated, but
shall continue in accordance with the terms hereof and the
terms of the reorganization plans and agreement(s), and all
Participants and the surviving corporation shall be bound
thereby.
Section 8.4. Overriding Limitation. In the event of any
amendment or termination under Sections 8.1, 8.2, or 8.3, all
Participants and Beneficiaries shall be bound by the good faith
determinations of the Board as to the benefits to be received
which are attributable to the period prior to such amendment or
termination.
ARTICLE IX RESTRICTIONS ON ALIENATION OF BENEFITS
Section 9.1. Benefits Not Assignable. No right or benefit
under this Plan shall be subject to anticipation, alienation,
sale, assignment, transfer, pledge, encumbrance, or charge, and
any attempt to anticipate, alienate, sell, assign, transfer,
pledge, encumber, or charge the same shall be void. No right or
benefit hereunder shall in any manner be liable for or subject to
the debts, contracts, liabilities, engagements, or torts of the
person entitled to such benefit, and, to the extent permitted by
law, the rights of any Participant or Beneficiary shall not be
subject in any manner to attachment of other legal process for
the debts of such Participant or Beneficiary.
ARTICLE X CLAIMS PROCEDURE
Section 10.1. Initiation of Claim. In the event that any
Participant or Beneficiary disagrees with any decision (including
any claim for benefits) made by the Committee or other agent of
the Plan, the Participant or Beneficiary may make a written
request for a redetermination under this Plan. This written
claim shall be mailed or delivered to the Committee. The claim
shall be considered by the Committee.
Section 10.2. Announcement of Initial Decision. If the
claim is denied, in full or in part, the Committee shall provide
a written notice within 90 days of receipt of the written claim
setting forth the specific reasons for denial, specific reference
to the provisions of this Plan upon which the denial is based,
and any additional information necessary to perfect the claim,
and an explanation of why such material or information is
necessary, and appropriate information and explanation of the
steps to be taken if a review of the denial is desired. If the
claim is granted, the decision shall also be communicated to the
Participant or Beneficiary within 90 days of receipt.
Section 10.3. Review Appeal of Initial Decision. If the
claim is denied, in whole or in part, and a review is desired,
the Participant or Beneficiary shall notify the Committee in
writing within 60 days (a claim shall be deemed denied if the
Committee does not take any action within the aforesaid 60-day
period) after receipt of the written notice of denial. In
requesting a review, the Participant or Beneficiary may request a
review of the Plan document and other pertinent documents with
regard to the Plan, may submit any written issues and comments,
may request an extension of time for such written submission of
issues and comments (of not more than 60 days) and may request
that a hearing be held. If a hearing is held, the Participant or
Beneficiary shall have the right to be represented by counsel of
his or her choice and to have them participate at the hearing.
Section 10.4. Conduct of Appeal and Decision. The decision
on the review of the denied claim shall be rendered by the
Committee within 60 days after receipt of the request for review
is received or if a hearing is held, the hearing shall be held
within 60 days after review is requested. In the latter event,
the decision shall be rendered within 60 days after the hearing
is held. The decision shall be written stating the specific
reasons for the decision and shall include reference to specific
provisions of the Plan on which the decision is based.
ARTICLE XI MISCELLANEOUS
Section 11.1. Execution of Receipts and Releases. Any
payment to any Participant, a Participant's legal representative,
or Beneficiary in accordance with the provisions of this Plan
shall, to the extent thereof, be in full satisfaction of all
claims hereunder against the relevant Company. The Company may
require such Participant, legal representative, or Beneficiary,
as a condition precedent to such payment, to execute a receipt
and release therefor in such form as it may determine.
Section 11.2. No Guarantee of Interests. Neither the
Committee nor any of its members may guarantee the payment of any
amounts which may be or becomes due to any person or entity under
this Plan. The liability of the Participant's relevant Company
to make any payment under this Plan is limited to the then
available assets of the Company.
Section 11.3. Company Records. Records of the Company as
to a Participant's service so a Director, and Director's Fees
paid by the Company shall be conclusive as to all persons and
entities, unless determined to be incorrect.
Section 11.4. Evidence. Evidence required of anyone under
this Plan may be by certificate, affidavit, document, or other
information which the person or entity acting on it considers
pertinent and reliable, and signed, made, or presented by the
proper party or parties.
Section 11.5. Notice. Any notice which shall be or may be
given under this Plan shall be in writing and shall be mailed by
United States mail, postage prepaid. If notice is to be given to
any Company, such notice shall be addressed to the Company at
Fourth Financial Center, Wichita, Kansas 67202, marked to the
attention of Manager of Human Resources, Fourth Financial
Corporation Amended and Restated Non-Employee Directors Deferred
Fee Plan; or, if notice to a Participant, addressed to the
address shown on such Participant's latest participation
agreement.
Section 11.6. Change of Address. Any party may, from time
to time, change the address to which notices shall be mailed by
giving written notice of such new address.
Section 11.7. Effect of Provisions. The provisions of
this Plan shall be binding upon the Company and its successors
and assigns, and upon a Participant, his or her Beneficiary,
assigns, heirs, executors, and administrators.
Section 11.8. Severability Clause. If any provision of
this Plan is held to be invalid or unenforceable, this
determination shall not affect the validity of this Plan or the
other provisions of this Plan. In such event, this Plan shall be
construed and endorsed as if such provision had not been included
therein; provided, that, nothing shall increase the Company's
liability for payment of benefits in any amount beyond the
amounts specified in this Plan.
Section 11.9. Minors and Incompetents. If any person to
whom a benefit is payable is legally incompetent, either by
reason of age or by reason of mental or physical disability,
Company (and the Committee hereunder) is authorized to cause the
payments becoming due to such person to be made to another for
his or her benefit without responsibility of the Company, the
Committee, or any fiduciary of this Plan to see to the
application of such payments. Payments made pursuant to this
authority shall constitute a complete discharge of Company's and
Committee's duty.
Section 11.10. Indemnification. The Company shall indemnify
and save harmless each member of the Board of Directors, each
member of the Committee, and employees of the Company or any of
its subsidiaries from and against any loss resulting from
liability which they may be subjected by reason of any act or
conduct (except wilful or wanton misconduct) in their official
capacities in the administration of this Plan. Expenses shall
include the amount of any settlement or judgment, costs, counsel
fees, and related charges reasonably incurred in connection with
a claim asserted, or a proceeding brought in settlement thereof.
The foregoing right of indemnification shall be in addition to
any other rights to which any such person may be entitled as a
matter of law.
Section 11.11. Headings. The titles and heading of Articles
and Sections are included for convenience of reference only and
are not to be considered in the construction of the provisions of
this Plan.
Section 11.12. Governing Law. All questions arising with
respect to this Plan shall be determined by reference to the laws
of the State of Kansas.
Section 11.13. Government and Other Regulations. The
obligations of the Company to permit a Participant to invest in
Phantom Stock Units or to provide benefits by delivering shares
of Common Stock shall be subject to all applicable laws, rules,
and regulations and such approvals by any governmental agencies
as may be required, including, without limitation, the
effectiveness of a registration statement under the Securities
Act of 1933, as deemed necessary or appropriate by counsel for
the Company.
Section 11.14. Compliance with SEC Regulations. It is the
Company's intent that this Plan comply in all respects with Rule
16b-3 of the Securities Exchange Act of 1934, as amended, and any
successor thereto. If any provision of this Plan is found not to
be in compliance with such Rule, the provisions thereof shall be
null and void. All elections to invest in Phantom Stock Units or
receive benefits under the Plan in the form of Company Common
Stock shall be made and executed in compliance with the
provisions of Section 16 of the Securities Exchange Act of 1934,
as amended, and any regulations promulgated thereunder.
Adopted, subject to stockholder approval, as of this ______
day of __________________, 1993.
FOURTH FINANCIAL CORPORATION
By
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/s/ Darrell G. Knudson
Chairman of the Board
ATTEST:
----------------
/s/ John C. Maloney
Senior Vice President,
Secretary, and General Counsel