EXHIBIT 10.56
BANK PLUS CORPORATION DEFERRED COMPENSATION PLAN
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1. Purpose. The purpose of the Bank Plus Corporation Deferred
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Compensation Plan (the "Plan") is to permit eligible officers and directors of
Bank Plus Corporation (the "Company") and its subsidiaries to defer the payment
of certain compensation payable to them for their services.
2. Definitions.
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(a) "Accounts" mean the Deferral Account, the Restricted Stock Award
Account and the Company Contribution Account established for a Participant
pursuant to Section 6.
(b) "Bank" means Fidelity Federal Bank, A Federal Savings Bank.
(c) "Base Salary" means the Participant's annual base salary from the
Company and its subsidiaries for any Plan Year, before reduction for deferrals
pursuant to this Plan, the 401(k) Plan, or a cafeteria plan under Section 125 of
the Internal Revenue Code of 1986, as amended.
(d) "Beneficiary" means the person(s) designated by a Participant to
receive payment of his or her Accounts in the event of his death pursuant to
Section 9.
(e) "Board" means the Board of Directors of the Company.
(f) "Bonus" means the incentive performance bonus which is payable to
Participant for his or her services for the Company or any of its subsidiaries.
(g) "Change in Control" shall be deemed to occur if (i) any "person"
(as such term is defined in Section 3(a) and as used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934 (the "Exchange Act"), excluding the
Company, the Bank or any of the Company's other subsidiaries, a trustee or any
fiduciary holding securities under an employee benefit plan of the Company, the
Bank or any of the Company's other subsidiaries, an underwriter temporarily
holding securities pursuant to an offering of such securities or a corporation
owned, directly or indirectly, by stockholders of the Company in substantially
the same proportion as their ownership of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 25% or more of the
combined voting power of the then outstanding securities ("Voting Securities of
the Company"); (ii) during any period of not more than two years, individuals
who constitute the Board as of the beginning of the period and any new director
(other than a director designated by a person who has
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entered into an agreement with the Company to effect a transaction described in
clause (i) or (ii) of this sentence) whose election by the Board or nomination
for election by the Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at
such time or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof; (iii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would
result in the Voting Securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least 60% of the
combined voting power of the Voting Securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation; (iv) the
stockholders of the Company approve a plan of complete liquidation of the
Company or any agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets, (v) a sale or sales or other
disposition or dispositions by the Company which results in the Company ceasing
to beneficially "own" (within the
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meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, more than
50% of the Voting Securities of the Bank; (vi) a sale or sales of all or
substantially all of the assets of the Bank, in a single transaction or series
of transactions, other than to a direct or indirect subsidiary of the Company;
or (vii) a merger or other combination involving the Bank as a result of which
the Company ceases to beneficially own, directly or indirectly, more than 50% of
the Voting Securities of the Bank or the successor to the Bank.
(h) "CIC Payment" means a payment of any cash amount to a Participant
due to a Change in Control pursuant to any plan, arrangement or agreement
maintained by, or entered into with the Company or the Bank.
(i) "Committee" means the Committee appointed to administer the Plan
pursuant to Section 11.
(j) "Company Contributions" mean amounts credited to Participants by
the Company pursuant to Sections 5(a) and (b).
(k) "Company Contributions Account" means an account established
pursuant to Section 6.
(l) "Deferral Account" means an account established pursuant to
Section 6.
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(m) "Director" means a member of the Board or the board of directors
of the Bank or any other subsidiary of the Company who is not an employee of any
Employer.
(n) "Director Fees" means a Director's annual retainer and fees for
service as a Director for a Plan Year.
(o) "Effective Date" means August 1, 1997.
(p) "Election Form" means a written election to defer compensation
under the Plan on a form approved by the Committee.
(q) "Eligible Employee" means an officer of an Employer who is
designated by the Committee to participate in the Plan.
(r) "Employer" means the Company, the Bank and any other subsidiary of
the Company which has been designated by the Board.
(s) "Financial Hardship" means an unanticipated emergency caused by an
event which is beyond the Participant's control and which would result in severe
financial hardship to the Participant.
(t) "401(k) Plan" means the Fidelity Federal Bank 401(k) Savings and
Investment Plan.
(u) "In-Service Distribution" means a distribution that occurs while a
Participant remains in service with the Company.
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(v) "Investment Fund" means certain investment alternatives
designated by the Committee from time to time, in its sole discretion, for
determining adjustments of amounts credited to the Accounts of Participants.
(w) "Participant" means an Eligible Employee or Director who is
participating in the Plan pursuant to Section 3.
(x) "Plan Year" means the period beginning on August 1, 1997 and
ending on December 31, 1997 and each calendar year thereafter.
(y) "Post-Termination Distribution" means a distribution that occurs
after the Participant has separated from service with the Employer.
(z) "Restricted Stock Award" means the shares of restricted common
stock of the Company which would otherwise be granted to the Participant by the
Company.
(aa) "Restricted Stock Award Account" means an account established
pursuant to Section 6.
(bb) "Retirement" means termination of service on or after attaining
age 55.
(cc) "Stock Units" mean stock units representing Restricted Stock
Awards which may be deferred under this Plan. Each Stock Unit shall be the
equivalent of one share of the Company's common stock.
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3. Eligibility and Participation.
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(a) In order to participate in the Plan for any Plan Year, an Eligible
Employee or Director must file an Election Form with the Committee prior to the
beginning of the Plan Year. Notwithstanding the foregoing, an Eligible Employee
or Director may become a Participant for the first Plan Year by filing an
election form with the Committee no later than 30 days after the Effective Date.
(b) Participation in the Plan shall continue until the balance
credited to the Participant's Accounts has been paid in full to the Participant
or such Participant's Beneficiary.
4. Amount of Deferral; Time of Payment.
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(a) An Eligible Employee may elect on an Election Form to defer
payment of (i) up to 50% (in increments of 5%) of his Base Salary, (ii) up to
100% (in increments of 5%) of his Bonus, (iii) up to 100% (in whole shares) of
his Restricted Stock Awards and (iv) up to 100% (in increments of 5%) of his CIC
Payments. A Director may elect on an Election Form to defer payment of up to
100% (in increments of 5%) of his Director Fees. In no event may a deferral be
made of less than $2,000 for any Plan Year. Notwithstanding anything contained
herein to the contrary, deferrals for the first Plan Year with respect to Base
Salary and Director Fees shall not be applicable to Base Salary and Director
Fees payable for services rendered prior to the date an Election Form is
received by the Committee.
A Participant may change his or her deferral percentage(s) for any
Plan Year by filing a new Election Form with the Committee prior to the
beginning of such Plan Year. A Participant may discontinue deferrals at any
time during the Plan Year, provided, however, that such Participant shall not be
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permitted to resume participation in the Plan until the next following Plan
Year.
(b) The Election Form shall specify whether the Participant's Accounts
shall be paid in a Post-Termination Distribution or an In-Service Distribution.
In no event may
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an In-Service Distribution be made prior to one year after the end of the Plan
Year in which the amount deferred has been credited to the Participant's
Accounts.
In no event may Stock Units be distributed to a Participant until such
Stock Units are vested. A Participant shall become vested in Stock Units held
in the Plan at a rate of 33-1/3% on each of the first, second and third
anniversary of the date of deferral of the Restricted Stock Award; provided,
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that, the Participant has remained in employment with the Employer and its
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affiliates until such respective anniversary date; provided, further, that a
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Participant shall become 100% vested in Stock Units credited to his Restricted
Stock Award Account in the event of his termination of employment by reason of
death, disability or Retirement or upon the occurrence of a Change in Control.
If a Participant terminates employment at any time prior to becoming 100%
vested, the unvested Stock Units shall be forfeited.
5. Company Contributions.
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(a) The Company may from time to time, in its discretion, credit
additional amounts to Participants which shall be allocated to their Company
Contributions Accounts in such manner as the Company shall determine in its sole
discretion.
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(b) As of the close of each calendar quarter, the Company may credit
the Company Contributions Account of each Participant who is an Eligible
Employee with a matching contribution. The amount of the matching contribution,
if any, shall be equal to such percentage of the Base Salary deferred by the
Participant under Section 4 for the calendar quarter, as determined by the
Company in its sole discretion.
(c) Amounts held in the Company Contributions Accounts shall be
distributed to a Participant only to the extent such amounts are vested. A
Participant shall become vested in Company Contributions made on his or her
behalf, and all earnings allocable thereunder, in accordance with the 401(k)
Plan vesting schedule in effect on the date of the Participant's termination of
employment. The balance, if any, of such Company Contributions Accounts shall
be forfeited upon termination of the Participant's employment to the extent not
vested.
(d) Notwithstanding the foregoing, upon the occurrence of a Change in
Control, Participants shall automatically become 100% vested in their Company
Contributions Accounts.
6. Accounts. The Company shall establish Accounts for each
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Participant on its books.
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(a) The Participant's deferrals of Base Salary, Bonus, Director Fees
and CIC Payments under Section 4 shall be credited to the Participant's Deferral
Account; Company Contributions made under Section 5 shall be credited to the
Participant's Company Contributions Account. The Participant's Deferral Account
and Company Contributions Account shall be allocated in multiples of 10% in
accordance with the Participant's investment election, among the Investment
Funds, as if invested in the applicable Investment Fund as of the last business
day of the month in which such deferrals and/or contributions are allocated to a
Participant's Accounts. Such investment election may be changed by written
notice to the Committee once each calendar quarter. The balance credited to
such Accounts shall be adjusted from time to time to reflect the equivalent
investment performance of the applicable Investment Fund.
(b) The Participant's deferrals of Restricted Stock Awards under
Section 4 shall be represented by Stock Units which shall be credited to the
Participant's Restricted Stock Award Account. If dividends are paid with
respect to the Company's common stock, the Participant's Deferral Account shall
be credited with an amount equal to the product of the per share dividend and
the number of
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Stock Units credited to the Participant's Restricted Stock Award Account. Such
amounts shall be allocated in accordance with the Participant's investment
election, among the Investment Funds, as provided by Section 6(a).
7. Payment of Accounts.
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(a) If a Participant separates from service with the Employer for
reasons other than death or Retirement, his or her Accounts shall be paid, in
the sole discretion of the Committee, in a lump sum within 90 days after the end
of the calendar year of such separation or in five annual installments beginning
within 90 days after the end of the calendar year of such separation; provided,
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however, that Stock Units held in the Restricted Stock Award Account shall be
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paid solely in whole shares of common stock of the Company. The amount of each
subsequent installment shall be adjusted to reflect investment performance in
accordance with Section 6.
(b) If a Participant separates from service with the Employer by
reason of Retirement, his or her Accounts shall be paid, as specified in his or
her Election Form, in a lump sum within 90 days following the end of the
calendar year of such Participant's Retirement, or in up to 15 annual
installments beginning within 90 days after the end of the calendar year of the
Participant's Retirement; provided,
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however, that Stock Units held in the Restricted Stock Award Account shall be
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paid solely in whole shares of common stock of the Company. The amount of each
subsequent installment shall be adjusted to reflect investment performance in
accordance with Section 6.
(c) If a Participant dies while in service with the Employer, his or
her Accounts shall be paid to his or her Beneficiary in a lump sum within 90
days following the date of death; provided, however, that Stock Units held in
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the Restricted Stock Award Account shall be paid solely in whole shares of
common stock of the Company.
(d) If a Participant has elected to receive an In-Service
Distribution, payment of his or her Accounts shall be made in a lump sum on the
date specified on the Participant's Election Form; provided, however, that Stock
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Units held in the Restricted Stock Award Account shall be paid solely in whole
shares of common stock of the Company, provided, further, that in the event of
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the Participant's separation from service for any reason, distribution of any
remaining amounts credited to his or her Accounts shall be made in accordance
with the applicable provisions of paragraph (a), (b) or (c) of this Section.
(e) Notwithstanding the foregoing, a Participant may specify a
different method of payment of his or her
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Accounts pursuant to paragraph (b) of this Section by filing a new Election Form
with the Company prior to the beginning of the year of the Participant's
Retirement or death.
8. Financial Hardship and Other Distributions.
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(a) In the event of a Participant's Financial Hardship, the Committee
may determine, in its sole discretion, to pay the Participant the amount
necessary to relieve such Financial Hardship.
(b) Upon at least 10 days' prior written notice to the Company, a
Participant may elect to receive from the Participant's Accounts the amount
specified in the notice, reduced by a penalty equal to ten percent of such
amount, which penalty shall be forfeited to the Company. A Participant who has
received a distribution under this paragraph may not make additional deferrals
under the Plan for a period of twelve months following such distribution.
9. Designation of Beneficiary. Each Participant may designate or
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change the designation of a Beneficiary or Beneficiaries to receive any payments
due hereunder upon his death by filing a designation form with the Committee, on
a form approved by it, at any time prior to his death. The Committee shall be
bound by the last designation form filed with it by the Participant prior to his
death. In the absence of such designation of a Beneficiary by a
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Participant, or if no Beneficiary shall survive him, the Participant's
Beneficiary shall be his estate.
10. Contractual Obligation. The obligations of the Company to make
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payments hereunder shall be contractual only and all such payments shall be made
from the general assets of the Company. Each Participant, Beneficiary and any
other person or persons having or claiming a right to payments hereunder shall
rely solely on the unsecured promise of the Company, and nothing herein shall be
construed to give a Participant, Beneficiary or any other person or persons any
right, title, interest or claim in or to any specific asset, fund, reserve,
account or property of any kind whatsoever owned by the Company or in which it
may have any right, title or interest now or in the future. The Company may, in
its sole discretion, establish a grantor trust for the payment of benefits under
the Plan. The assets of such trust, if any, will be subject to the claims of
the Company's general creditors. To the extent that benefits are paid by the
trust, the Company shall have no further obligation to pay such benefits.
11. Administration. The Plan shall be administered by a committee
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(the "Committee") of at least three persons appointed by the Board. The
Committee shall have the authority to establish, amend and revoke from time
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to time rules and regulations relating to the Plan and to decide all questions
involving the administration, interpretation or application of the Plan. Any
decision by the Committee concerning the Plan shall be final and binding on all
persons participating in the Plan and their Beneficiaries. No member of the
Committee shall be personally liable for any action or determination under the
Plan.
12. No Assignment. No right or benefit or payment under the Plan
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shall be subject to assignment, sale or other transfer nor shall it be liable or
subject in any manner to attachment, garnishment or execution.
13. No Right to Continued Service. Neither the provisions of the
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Plan nor any action taken thereunder shall be construed to give any Participant
any right to be retained in the service of the Company, an Employer or any other
subsidiary of the Company.
14. Taxes. The Company shall have the right to withhold from any
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payment made under the Plan any taxes required by law to be withheld with
respect to the payment.
15. Amendment or Termination. The Board may amend or terminate the
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Plan at any time in its discretion, provided that any amendment of the Plan may
not adversely affect the rights of any Participant to receive benefits
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under the Plan in accordance with its terms in effect prior to such amendment.
16. Governing Law. The Plan shall be governed by and construed in
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accordance with the laws of the State of California, without reference to rules
relating to conflicts of law.
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