SECOND RESTATED
EXECUTIVE SUPPLEMENTAL
RETIREMENT INCOME AGREEMENT
LARRY G. PHILLIPS
FIRST FEDERAL SAVINGS BANK
Marion, Indiana
February 29, 2000
Financial Institution Consulting Corporation
700 Colonial Road, Suite 260
Memphis, Tennessee 38117
WATS: 1-800-873-0089
FAX: (901) 684-7414
(901) 684-7400
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SECOND RESTATED EXECUTIVE SUPPLEMENTAL
RETIREMENT INCOME AGREEMENT
LARRY G. PHILLIPS
This Second Restated Executive Supplemental Retirement Income Agreement
(the "Agreement"), effective as of the 29th day of February, 2000, formalizes
the understanding by and between FIRST FEDERAL SAVINGS BANK (the "Bank"), a
federally chartered stock savings bank, and LARRY G. PHILLIPS (hereinafter
referred to as "Executive"). Any reference herein to the "Holding Company" shall
mean Marion Capital Holdings, Inc.
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 such 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 beneficiaries with benefits from and
after 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 beneficiaries after death; and
WHEREAS, the Bank and the Executive intend this Agreement to be
considered an unfunded arrangement, maintained primarily to provide supplemental
retirement income for such Executive, a member of a select group of management
or highly compensated employees of the Bank, for tax purposes and for purposes
of the Employee Retirement Income Security Act of 1974, as amended; and
WHEREAS, the Bank has previously adopted the Restated Executive
Supplemental Retirement Income Agreement dated December 1, 1996 and intends this
Second Restated Executive Supplemental Retirement Income Agreement to control
all issues relating to Supplemental Retirement Income 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" means that portion of the Supplemental Retirement
Income Benefit which is required to be expensed and accrued under
generally accepted accounting principles (GAAP) by any appropriate
method which the Bank's Board of Directors may require in the exercise
of its sole discretion.
1.2 "Act" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.3 "Bank" means FIRST FEDERAL SAVINGS BANK and any successor thereto.
1.4 "Beneficiary" means the person or persons (and their heirs) designated
in writing to the Bank 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
living Children, then the Estate of the Executive will be deemed the
Beneficiary.
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1.5 "Benefit Age" shall be the birthday on which the Executive becomes
eligible to receive the maximum Supplemental Retirement Income Benefit
under the Plan.
1.6 "Benefit Eligibility Date" shall be the date on which an Executive is
entitled to receive the maximum Supplemental Retirement Income Benefit
available under the Plan. It shall be the 1st day of the month
following the month in which the Executive attains the age sixty-five
(65).
1.7 "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.
1.8 "Change in Control" shall mean and include the following with respect
to the Bank or the Holding Company:
(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 1934 (the
"Exchange Act"); or
(2) a change in control of the Bank within the meaning of 12
C.F.R. 574.4; or
(3) a Change in Control at such time as
(i) any "person" (as the term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of
securities of the Bank representing Twenty 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
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(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
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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
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.
1.9 "Children" means the Executive's children, or the issue of any deceased
Children, then living at the time payments are due the Children under
this Agreement. The term "Children" shall include both natural and
adopted Children.
1.10 "Disability Benefit" means the monthly benefit payable to the Executive
following a determination, in accordance with Subsection 3.2, that he
is no longer able, properly and satisfactorily, to perform his duties
as Executive.
1.11 "Effective Date" of this Agreement shall be February 29, 2000.
1.12 "Estate" means the estate of the Executive.
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1.13 "Holding Company" means Marion Capital Holdings, Inc.
1.14 "Interest Factor" means monthly compounding or discounting, as
applicable, at 7.89% percent per annum.
1.15 "Payout Period" means the time frame during which certain benefits
payable hereunder shall be distributed. Payments shall be made in equal
monthly installments commencing within thirty (30) days following the
occurrence of the event which triggers distribution and continuing for
One Hundred Eighty (180) months. For purposes of the Survivor's Benefit
payable hereunder, the Payout Period shall be One Hundred Eighty (180)
consecutive months.
1.16 "Plan Year" shall mean the calendar year.
1.17 "Spouse" means the individual to whom the Executive is legally married
at the time of the Executive's death.
1.18 "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. The Supplemental Retirement
Income Benefit payable to the Executive shall be $106,782.
1.19 "Survivor's Benefit" means $106, 782 payable to the Beneficiary in
monthly installments throughout the Payout Period, subject to
Subsection 2.1.
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SECTION II
PRE RETIREMENT AND POST RETIREMENT DEATH BENEFITS
2.1 Death Prior to Termination of Employment. If Executive dies prior to
termination of employment with the Bank (but before commencement of
payment of the Supplemental Retirement Income Benefit to Executive),
his Beneficiary shall be entitled to the Survivor's Benefit. The first
installment shall begin within thirty (30) days after the date of death
of Executive and each succeeding installment shall be paid on the next
succeeding month thereof during the Payout Period.
2.2 Death Subsequent to Retirement. In the event of Executive's death while
receiving monthly benefits under this Agreement (including early
retirement pursuant to Section 3.1) or after retirement but before
commencement of payment of the Supplemental Retirement Income Benefit
to Executive then the unpaid balance of such monthly payments remaining
to be paid at that time shall continue to be paid monthly for the
remainder of the Payout Period to Executive's Beneficiary.
2.3 Death After Voluntary Termination of Employment Prior to Benefit Age.
In the event of Executive's death following a voluntary termination of
employment with the Bank prior to his Benefit Age, for any reason other
than Cause, following a Change in Control, or an election of early
retirement pursuant to Section 3.1, the Executive's Beneficiary shall
be entitled to his Accrued Benefit determined as of the date of death
and annuitized using the Interest Factor commencing within thirty (30)
days and payable in monthly installments over the Payout Period.
2.4 Death After Involuntary Termination of Employment Prior to Benefit Age.
In the event of Executive's death following an involuntary termination
of employment with the Bank prior to attaining age fifty-five (55), for
any reason other than Cause or following a Change in Control, the
Executive's Beneficiary shall be entitled to the
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Accrued Benefit determined as of the date of death and annuitized
using the Interest Factor commencing within thirty (30) days and
payable in monthly installments over the Payout Period.
SECTION III
SUPPLEMENTAL RETIREMENT INCOME BENEFITS
AND DISABILITY BENEFITS
3.1 Retirement Benefit. If the Executive is in service with the Bank until
reaching his Benefit Age, the Executive shall be entitled to the
Supplemental Retirement Income Benefit. Such benefit shall commence on
the Executive's Benefit Eligibility Date and shall be payable in
monthly installments throughout the Payout Period.
The Executive may, upon proper notice, reduce his Benefit Age so long
as his Benefit Age, as modified, is not less than age fifty-five (55).
The Executive must give notice in writing at least twelve (12) months
prior to attaining his new Benefit Age, provided that such notice is
given no later than the calendar year prior to attainment of the new
Benefit Age. If the Executive makes such an election, the Executive
shall be entitled to the annuitized value of the Accrued Benefit (using
the Interest Factor) payable in monthly installments over the Payout
Period commencing within thirty (30) days of the Executive's attainment
of the new Benefit Age. In the event that the Executive dies after
having given notice of electing to retire at the new Benefit Age but
before leaving the service of the Bank or attaining the new Benefit
Age, the Executive's Beneficiary shall be entitled to the benefit the
Executive would otherwise have received had he lived until the new
Benefit Age.
3.2 Disability Benefit. Notwithstanding any other provision hereof, if
requested by the Executive and approved by the Board of Directors
(which approval shall not be unreasonably withheld), the Executive
shall be entitled to receive the Disability Benefit
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hereunder, in any case in which it is determined by a duly licensed
physician selected by the Bank, that the Executive is no longer able,
properly and satisfactorily, to perform his regular duties as an
Executive, because of ill health, accident, disability or general
inability due to age. If Board of Director approval is obtained, the
Executive may elect to begin receiving the Disability Benefit in lieu
of his Supplemental Retirement Income Benefit. The Disability Benefit
shall not begin more than thirty (30) days following the
above-mentioned disability determination. The Disability Benefit shall
be the Supplemental Retirement Income Benefit reduced by three per cent
(3%) per year for each year that the disability precedes the
Executive's Benefit Age and shall be payable in monthly installments
over the Payout Period. Such benefit shall be further reduced by any
disability benefit payments received by the Executive from any policy
whose premiums were paid by the Bank. Such payments shall cease on the
earliest occurrence of:
(1) return to active employment, or
(2) a determination by a physician of the Bank's choice
that the Executive is no longer disabled as defined
in the Section.
In the event the Executive dies at any time after becoming disabled but
prior to commencement or completion of all payments due and owing
hereunder, the Bank shall pay to the Executive's Beneficiary a
continuation of the monthly installments for the remainder of the
Payout Period.
3.3 Voluntary Termination of Employment. If the Executive's employment with
the Bank is voluntarily terminated prior to his Benefit Age, for any
reason other than for Cause, the Executive's death, disability or
Change in Control, the Executive (or his Beneficiary) shall be entitled
to his Accrued Benefit as of the date of such termination, increased
monthly using the Interest Factor from the date of termination until
the Executive's Benefit Age and annuitized at the Executive's Benefit
Age into monthly installments using the Interest Factor and payable
over the Payout Period.
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3.4 Involuntary Termination of Employment. In the event the Executive is
involuntarily terminated for any reason other than willful misconduct
or a following a Change in Control prior to reaching his Benefit Age,
then the Executive will immediately become entitled to receive benefits
set forth hereunder upon reaching age fifty-five (55), that being
annualized compensation of $106,782 a year for a period of 15 years.
Payments are to be made monthly for a total of 180 payments.
3.5 Termination of Service Related to a Change in Control.
If a Change in Control occurs at the Bank, and thereafter the
Executive's employment is terminated, voluntarily or involuntarily, the
Executive shall be entitled to receive benefits provided in this
Subsection 3.5.
(a) Executive lives until Benefit Age. If after such termination
Executive lives until his Benefit Age the secular trust provided in
Subsection 9.14 shall be annuitized using the Interest Factor into
monthly installments and shall be payable to the Executive over the
Payout Period. Such payments shall commence on the Executive's Benefit
Eligibility Date. The Executive may at any time during the Payout
Period request in writing to receive the unpaid balance of his secular
trust in a lump sum payment. Such lump sum payment shall be payable
within thirty (30) days of such notice.
(b) Executive dies prior to Benefit Age. If after such termination the
Executive dies prior to attaining his Benefit Age the secular trust
provided in Subsection 9.14 shall be annuitized using the Interest
Factor into monthly installments and shall be payable to the
Executive's Beneficiary over the Payout Period. Such payments shall
commence within thirty (30) days of the date the secular trustee
receives notice of the Executive's death. The Executive's Beneficiary
may at any time request in writing to receive the unpaid balance of the
secular trust in a lump sum payment. Such lump sum payment shall be
payable within thirty (30) days of such notice.
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3.6 Termination for Cause. If the Executive is terminated for Cause, all
benefits under this Agreement shall be forfeited and this Agreement
shall become null and void.
3.7 Non-Competition During and After Employment.
(a) 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, so 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.
(b) The Executive expressly agrees that, as consideration for the
covenants of the Bank contained herein and as a condition to
the performance by the Bank of its obligations hereunder, from
and after any voluntary or involuntary termination of service,
other than a termination of service pursuant to Subsection
3.5, and continuing throughout the entire Payout Period, as
provided herein, he will not, without the prior written
consent of the Bank, engage in, become interested, directly or
indirectly, as a sole proprietor, as a partner in a
partnership, or as a substantial shareholder in a corporation,
nor become associated with, in the capacity of an employee,
director, officer, principal, agent, trustee or in any other
capacity whatsoever, any enterprise conducted in the trading
area of the business of the Bank which enterprise is, or may
be deemed to be, competitive with any business carried on by
the Bank as of the date of the termination of the Executive's
employment or his retirement.
(c) In the event of a termination of the Executive's service
related to a Change in Control pursuant to Subsection 3.5,
paragraph (b) of this Subsection 3.7 shall cease to be a
condition to the performance by the Bank of its obligations
under this Agreement.
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3.8 Breach. In the event of any breach by the Executive of the agreements
and covenants contained herein, the Board of Directors of the Bank
shall direct that any unpaid balance of any payments to the Executive
under this Agreement be suspended, and shall thereupon notify the
Executive of such suspensions, in writing. Thereupon, if the Board of
Directors of the Bank shall determine that said breach by the Executive
has continued for a period of one (1) month following notification of
such suspension, all rights of the Executive and his Beneficiaries
under this Agreement, including rights to further payments hereunder,
shall thereupon terminate.
3.9 Additional Death Benefit - Burial Expense. In addition to the
above-described death benefits, upon the Executive's death, the
Executive's Beneficiary shall be entitled to receive a one-time lump
sum death benefit in the amount of Ten Thousand ($10,000.00) Dollars.
This benefit shall be provided specifically for the purpose of
providing payment for burial and/or funeral expenses of the Executive.
Such death benefit shall be payable within thirty (30) days of the
Executive's death. The Executive's Beneficiary shall not be entitled to
such benefit if the Executive is terminated for Cause.
SECTION IV
BENEFICIARY DESIGNATION
The Executive shall make an initial designation of primary and
secondary Beneficiaries upon execution of the Agreement and shall have the right
to change such designation, at any subsequent time, by submitting to the
Administrator in substantially the form attached as Exhibit A to the Agreement,
a written designation of primary and secondary Beneficiaries. Any Beneficiary
designation made subsequent to execution of the Agreement shall become effective
only when receipt thereof is acknowledged in writing by the Administrator.
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SECTION V
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 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, unless
expressly provided herein, shall not be deemed to be held under any trust for
the benefit of the Executive or his Beneficiaries, nor shall any asset be
considered security for the performance of the obligations of the Bank. Any such
asset shall be and remain, a general, unpledged, and unrestricted asset of the
Bank.
SECTION VI
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. 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 terminate 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
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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.
SECTION VII
ALIENABILITY AND ASSIGNMENT PROHIBITION
Neither the Executive nor any Beneficiary under this Agreement
shall have any power or right to transfer, assign, anticipate, hypothecate,
mortgage, commute, modify or otherwise encumber in advance any of the benefits
payable hereunder, nor shall any of said benefits be subject to seizure for the
payment of any debts, judgments, alimony or separate maintenance owed by the
Executive or his Beneficiary, nor be transferable by operation of law in the
event of bankruptcy, insolvency or otherwise. In the event the Executive or any
Beneficiary attempts assignment, communication, hypothecation, transfer or
disposal of the benefits hereunder, the Bank's liabilities shall forthwith cease
and terminate.
SECTION VIII
ACT PROVISIONS
8.1 Named Fiduciary and Administrator. The Bank shall be the Named
Fiduciary and Administrator (the "Administrator") of this Agreement. As
Administrator, the Bank shall be responsible for the management,
control and administration of the Agreement as established herein. The
Administrator may delegate to others certain aspects of the management
and operational responsibilities of the Agreement, including the
employment of advisors and the delegation of ministerial duties to
qualified individuals.
8.2 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 claimants feel they are
entitled to receive such benefits, then a written claim must
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be made to the Administrator within sixty (60) days from the date
payments are refused. The Bank and its Board of Directors shall review
the written claim and, if the claim is denied, in whole or in part,
they shall provide in writing, within ninety (90) days of receipt of
such claim, their 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 Bank and its Board of Directors shall further indicate
the additional steps which must be undertaken by claimants if an
additional review of the claim denial is desired.
If claimants desire a second review, they shall notify the
Administrator in writing within sixty (60) days of the first claim
denial. Claimants may review this Agreement or any documents relating
thereto and submit any issues and comments, in writing, they may feel
appropriate. In its sole discretion, the Administrator shall then
review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the
specific reasons for the decision and shall include reference to
specific provisions of this Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon
completed performance of this Agreement or the meaning and effect of
the terms and conditions thereof, then claimants may submit the dispute
to mediation, administered by the American Arbitration Association
("AAA") (or a mediator selected by the parties) in accordance with the
AAA's Commercial Mediation Rules. If mediation is not successful in
resolving the dispute, it shall be settled by arbitration administered
by the AAA under its Commercial Arbitration Rules, and judgment on the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
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SECTION IX
MISCELLANEOUS
9.1 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.
9.2 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.
9.3 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.
9.4 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.
9.5 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 may first be made, the Bank
shall delay payment of the Executive's
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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 the Bank, the Executive and his Beneficiary(ies) shall
thereupon forfeit any rights to the balance, if any, of any benefits
provided for such Executive and/or Beneficiary under this Agreement.
9.6 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.
9.7 Gender. Whenever in this Agreement words are used in the masculine or
neuter gender, they shall be read and construed as in the masculine,
feminine or neuter gender, whenever they should so apply.
9.8 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 or fringe benefit
agreement constituting a part of the Bank's existing or future
compensation structure.
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9.9 Suicide. Notwithstanding anything to the contrary in this Agreement,
the benefits otherwise provided herein shall not be payable and this
Agreement shall become null and void if the Executive's death results
from suicide, whether sane or insane, within twenty-four (24) months
after the execution of his Agreement.
9.10 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.
9.11 Tax Withholding. The Bank may withhold from any benefits payable under
this Agreement all federal, state, city, or other taxes as shall be
required pursuant to any law or governmental regulation then in effect.
9.12 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.
9.13 Rabbi Trust. The Bank intends to incorporate this Agreement into the
First Federal Savings Bank of Marion Rabbi Trust for the Executive
Supplemental Retirement Income Plans and Excess Benefit Plans, dated
December 1, 1996, into which the Bank intends to 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 the
agreement which establishes such rabbi trust, until the contributed
assets are paid to the Executives and their Beneficiaries in such
manner and at such times as specified in this Agreement. It is the
intention of the Bank to make contributions to the rabbi trust to
provide the Bank with a source of funds to assist it in meeting the
liabilities of this Agreement. The rabbi trust and any assets held
therein shall conform to the terms of the rabbi trust agreement which
has been established in conjunction with this Agreement. To the extent
the language in this Agreement is modified by the language in the rabbi
trust agreement, the rabbi trust agreement shall supersede this
Agreement. Any contributions to the rabbi trust shall be made during
each year of the Plan in
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accordance with the rabbi trust agreement. The amount of such
contribution(s) shall be equal to the full present value of all
benefit accruals under this Plan, if any, less: (i) previous
contributions made on behalf of the Executive to the rabbi trust,
and (ii) earnings to date on all such previous contributions.
9.14 Secular Trust. A secular trust called the Larry Phillips Grantor
Trust shall be established in the event of a Change in Control,
into which the Bank shall make a contribution only in such event.
If the Executive dies prior to this contribution being made, then
the Executive's Beneficiary is entitled to the Survivor's Benefit
beginning within thirty (30) days payable over the Payout Period.
The contribution shall be the full present value, using an
appropriate discount rate, of the retirement benefit specified in
Subsection 1.18; provided, however, in no event shall the
contribution be less than an amount 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 Change in Control) 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. In the event that such contribution is made
to the secular trust, Executive, at his sole discretion, shall
have the right to receive the funds at such time and in such
manner as can be supported by the contributed amount.
SECTION X
AMENDMENT/REVOCATION
This Agreement shall not be amended, modified or revoked at any
time, in whole or part, without the mutual written consent of the Executive and
the Bank, and such mutual consent shall be required even if the Executive is no
longer employed by the Bank.
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SECTION XI
EXECUTION
11.1 This Agreement sets 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.
11.2 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.
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IN WITNESS WHEREOF, the Bank and the Holding Company have caused this
Agreement to be executed on this 29th day of February, 2000.
WITNESS: FIRST FEDERAL SAVINGS BANK
/s/ William J. Landers By: /s/ Steven L. Banks
President
(Title)
WITNESS: EXECUTIVE
/s/ William J. Landers /s/ Larry G. Phillips
- --------------------------- ---------------------------------
Larry G. Phillips
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SECOND RESTATED EXECUTIVE SUPPLEMENTAL
RETIREMENT INCOME AGREEMENT
BENEFICIARY DESIGNATION
The Executive, under the terms of the Second Restated Executive
Supplemental Retirement Income Agreement executed by the Bank and dated February
29, 2000 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.
Such Beneficiary Designation is revocable.
DATE: ______________________, 2000
- ---------------------------------- -----------------------------
(WITNESS) EXECUTIVE
Exhibit A
1