EXECUTIVE DEFERRED
COMPENSATION AGREEMENTS
Mutual Federal Savings Bank
Muncie, Indiana
Financial Institution Consulting Corporation
700 Colonial Road, Suite 260
Memphis, Tennessee 38117
WATS: 1-800-873-0089
FAX: (901) 684-7414
(901) 684-7400
EXECUTIVE DEFERRED COMPENSATION MASTER AGREEMENT
This Executive Deferred Compensation Master Agreement (the "Agreement"),
effective as of the lst day of October, 1993, by and between MUTUAL FEDERAL
SAVINGS BANK (the "Bank"), a federally chartered mutual association, and certain
key employees, hereinafter referred to as "Executive", who shall be approved by
the Bank to participate and who shall elect to become a party to this Executive
Deferred Compensation Master Agreement by execution of an Executive Deferred
Compensation Joinder Agreement ("Joinder Agreement") in a form provided by the
Bank.
W I T N E S S E T H:
WHEREAS, the Executives are employed by the Bank; and
WHEREAS, the Bank recognizes the valuable services heretofore performed for
it by such Executives and wishes to encourage continued employment; and
WHEREAS, the Executives wish to be assured that they 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 wish to provide their beneficiaries with benefits from and after
death; and
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WHEREAS, the Bank and the Executives wish to provide the terms and
conditions upon which the Bank shall pay such additional compensation to the
Executives after retirement or other termination of employment and/or death
benefits to their beneficiaries after death; and
WHEREAS, the Bank and the Executives intend this Agreement to be considered
an unfunded arrangement, maintained primarily to provide retirement income for
such Executives, members of a select group of management or highly compensated
employees of the Bank, for purposes of the Employee Retirement Income Security
Act of 1974, as amended; and
WHEREAS, the Bank has adopted this Executive Deferred Compensation Master
Agreement which controls all issues relating to Deferred Compensation 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:
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1.1 "Act" means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
1.2 "Bank" means Mutual Federal Savings Bank and any successor thereto.
1.3 "Beneficiary" means the person or persons (and their heirs) designated as
Beneficiary in the Executive's Joinder Agreement to whom the deceased
Executive's benefits are payable. If no Beneficiary is so designated, then
the Executive's Spouse, if living, will be deemed the Beneficiary. If the
Executive's Spouse is not living, then the Children of the Executive will
be deemed the Beneficiaries and will take on a per stirpes basis. If there
are no living Children, then the Estate of the Executive will be deemed the
Beneficiary.
1.4 "Benefit Age" shall be the birthday on which the Executive becomes eligible
to receive benefits under the Plan. Such birthday shall be designated in
the Executive's Joinder Agreement.
1.5 "Benefit Eligibility Date" shall be the date on which a Executive is
entitled to receive his Deferred Compensation Benefit. It shall be the 1st
day of the month coincident with or next following the month in which the
Executive attains the Benefit Age designated in his Joinder Agreement.
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1.6 "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.
1.7 "Children" means the Executive's children, both natural and adopted, then
living at the time payments are due the Children under this Agreement.
1.8 "Deferral Period" means the period of months designated in the Executive's
Joinder Agreement during which the Executive shall defer current
compensation. The Deferral Period shall commence on the date designated in
the Executive's Joinder Agreement.
1.9 "Deferred Compensation Benefit" means the annuitized value of the
Executive's Elective Contribution and Matching Contribution Accounts,
measured as of the Executive's Benefit Age, payable in monthly installments
throughout the Payout Period and commencing on the Executive's Benefit
Eligibility Date.
1.10 "Disability Benefit" means the benefit annuity payable to the Executive
following a determination, in accordance with Subsection 5.2, that he is no
longer able, properly and satisfactorily, to perform his duties as
Executive.
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1.11 "Effective Date" of this Agreement shall be October 1, 1993.
1.12 "Elective Contribution" shall refer to any bookkeeping entry required to
record an Executive's monthly pre-tax deferral of a percentage of his base
compensation which shall be made in accordance with the Executive's Joinder
Agreement.
1.13 "Elective Contribution Account" shall be represented by the bookkeeping
entries required to record (i) an Executive's Elective Contributions plus
(ii) accrued interest, equal to the Interest Factor, earned to date on such
amounts. However, neither the existence of such bookkeeping entries nor the
Elective Contribution Account itself shall be deemed to create either a
trust of any kind, or a fiduciary relationship between the Bank and the
Executive or any Beneficiary.
1.14 "Estate" means the estate of the Executive.
1.15 "Interest Factor" means monthly compounding at Ten (10%) Percent per annum.
1.16 "Matching Contribution" shall refer to all amounts credited on the
Executive's behalf, by the Bank, computed in accordance with the Matching
Formula designated in the Joinder Agreement and based on the amount of the
Executive's Elective Contributions. There shall be bookkeeping entries to
record all such amounts.
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1.17 "Matching Contribution Account" shall be represented by the bookkeeping
entries required to record (i) Matching Contributions plus (ii) accrued
interest, equal to the Interest Factor, earned to date on such amounts.
However, neither the existence of such bookkeeping entries nor the Matching
Contribution Account itself shall be deemed to create either a trust of any
kind, or a fiduciary relationship between the Bank and the Executive or any
Beneficiary.
1.18 "Matching Formula" shall be the computation required to determine the
amount of the Bank's Matching Contribution. The Matching Formula shall be
designated in the Joinder Agreement.
1.19 "Payout Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in equal monthly
installments commencing on the first day of the month coincident with or
next following the occurrence of the event which triggers distribution and
continuing for a period of months, as designated in the Executive's Joinder
Agreement.
1.20 "'Projected Deferral" is an estimate, determined upon execution of a
Joinder Agreement, of the total amount to be deferred by the Executive
during his Deferral Period, and so designated in the Executive's Joinder
Agreement.
1.21 "Spouse" means the individual to whom the Executive is legally married at
the time of the Executive's death.
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1.22 "Survivor's Benefit" means an annuity stream payable to the Beneficiary in
monthly installments throughout the Payout Period, equal to the amount
designated in the Joinder Agreement, and subject to Subsection 6.1.
1.23 "Vested' means the non-forfeitable portion of Matching Contributions to
which the Executive is entitled. The Executive shall Vest in Matching
Contributions plus accrued interest earned or to be earned on such amounts,
in accordance with the Vesting schedule in his Joinder Agreement. The
Executive shall always be 100% Vested in all Elective Contributions.
1.24 "Year of Service" shall be earned upon completing twelve (12) months of
continuous service (including authorized leaves of absence), beginning from
the later of (i) the Effective Date of this Agreement or (ii) the execution
date of the Executive's Joinder Agreement.
SECTION II
DEFERRED COMPENSATION
Commencing on the Effective Date, and continuing through the end of the
Deferral Period, the Executive and the Bank agree that the Executive shall defer
into his Elective Contribution Account between one (1%) and fifteen (15%)
percent of monthly base compensation that the Executive would otherwise be
entitled to receive from the Bank for each month of the Deferral Period, with
the total deferral during the term of the Deferral Period not to exceed the
Executive's Projected Deferral. The specific amount of the Executive's monthly
deferred compensation shall be
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designated in the Executive's Joinder Agreement and shall apply only to
compensation attributable to services not yet performed.
SECTION III
SUPPLEMENTAL COMPENSATION
Commencing on the Effective Date, and continuing through the end of the
Deferral Period, the Executive and the Bank agree that the Bank shall make
Matching Contributions, based on (i) the amount of compensation deferred by the
Executive as an Elective Contribution and (ii) the Matching Formula included in
the Executive's Joinder Agreement. The Executive will Vest in Matching
Contributions in accordance with the Vesting schedule in the Executive's Joinder
Agreement.
SECTION IV
ADJUSTMENT OF DEFERRAL AMOUNT
Deferral of the specific amount of compensation designated in the
Executive's Joinder Agreement shall continue in effect pursuant to the terms of
this Agreement unless and until the Executive amends his Joinder Agreement by
filing with the Bank and the Administrator a Notice of Adjustment of Deferral
Amount (Exhibit B of the Joinder Agreement). A Notice of Adjustment of Deferral
Amount shall be effective if filed with the Bank and the Administrator, at least
thirty (30) days prior to any January lst during the Executive's Deferral
Period. Such Notice of Adjustment of
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Deferral Amount shall be effective commencing with the January lst following its
filing and shall be applicable only to compensation attributable to services not
yet performed by the Executive.
SECTION V
RETIREMENT BENEFIT
5.1 Retirement Benefit. Subject to Subsection 6.1, the Executive shall be
entitled to receive, upon his Benefit Eligibility Date, a monthly Deferred
Compensation Benefit determined by annuitizing the value of the Executive's
Elective Contribution Account plus the value of the Vested portion of the
Matching Contribution Account, both measured as of the Executive's Benefit
Age. Such annuity payments will be made over the term of the Payout Period.
In the event of the Executive's death after commencement of the Deferred
Compensation Benefit, but prior to completion of all such payments due and
owing hereunder, the Bank shall pay to the Executive's Beneficiary a
continuation of the annuity for the remainder of the Payout Period.
5.2 Disability Benefit. Notwithstanding any other provision hereof, if
requested by the Executive and approved by the Board, the Executive shall
be entitled to receive the Disability Benefit 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 the Executive's
service is terminated pursuant to this paragraph and Board
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approval is obtained, the Executive may elect to begin receiving the
Disability Benefit annuity in lieu of any Deferred Compensation Benefit,
which is not available prior to the Executive's Benefit Eligibility Date.
The annuity shall not begin more than thirty (30) days following the
above-mentioned disability determination. The amount of the monthly benefit
shall be the annuitized value of the Executive's Elective Contribution
Account plus the value of the Vested portion of the Matching Contribution
Account, both measured as of the date of such determination. The Elective
Contribution Account and the Vested portion of the Matching Contribution
Account shall be annuitized using the Interest Factor and shall be payable
over the Payout Period. The Executive shall be deemed to be 100% Vested in
all Matching Contributions for purposes of the annuitizing the Matching
Contribution Account. In the event the Executive dies while receiving
payments pursuant to this Subsection, or after becoming eligible for such
payments but before the actual commencement of such payments, his
Beneficiary shall be entitled to receive those benefits provided for in
Subsection 6.1(a) and the Disability Benefits provided for in this
Subsection shall terminate upon the Executive's death.
5.3 Termination For Cause. In the event the Executive is terminated for Cause
at anytime prior to reaching his Benefit Age, he shall be entitled to
receive the balance of his Elective Contribution Account, measured as of
the date of termination. Such amount shall be paid in a lump sum within
thirty (30) days of the Executive's date of termination. He shall not be
entitled to any portion of his Matching Contribution Account. All other
benefits provided
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for the Executive or his Beneficiary under this Agreement shall be
forfeited and the Agreement shall become null and void.
SECTION VI
DEATH BENEFITS
6.1 Death Benefit Prior to Commencement of Deferred Compensation Benefit. In
the event of the Executive's death prior to commencement of the Deferred
Compensation Benefit, the Bank shall pay the Executive's Beneficiary a
monthly amount for the Payout Period, commencing within thirty (30) days of
the Executive's death. The amount of such benefit payments shall be
determined as follows:
(a) In the event death occurs (i) while the Executive is receiving the
Disability Benefit provided for in Subsection 5.2 or (ii) after the
Executive has become eligible for such Disability Benefit payments but
before such payments have commenced, the Executive's Beneficiary shall
be entitled to receive a continuation of the Disability Benefit
annuity (computed in accordance with Subsection 5.2), reduced by the
number of months Disability Benefit payments were made to the
Executive.
(b) In the event death occurs (i) while the Executive is in the service
of the Bank, or (ii) following any voluntary or involuntary
termination, other than for Cause, the
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Executive's Beneficiary shall be paid the monthly benefit which can
be provided by annuitizing the balance of the Executive's Elective
Contribution Account and the Vested portion of the Executive's
Matching Contribution account, using the Interest Factor, and payable
over the Payout Period.
SECTION VII
BENEFICIARY DESIGNATION
The Executive shall make an initial designation of primary and secondary
Beneficiaries upon execution of his Joinder 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 Joinder
Agreement, a written designation of primary and secondary Beneficiaries. Any
Beneficiary designation made subsequent to execution of the Joinder Agreement
shall become effective only when receipt thereof is acknowledged in writing by
the Administrator.
SECTION VIII
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
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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 IX
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
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the Bank. If the Bank elects to invest in a life insurance, disability or
annuity policy upon the life of the Executive, then the Executive shall assist
the Bank by freely submitting to a physical examination and by supplying such
additional information necessary to obtain such insurance or annuities.
SECTION X
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 XI
ACT PROVISIONS
11.1 Named Fiduciary and Administrator. Financial Institution Consulting
Corporation, a Tennessee Corporation ("FICC") shall be the Named Fiduciary
and Administrator (the
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"Administrator") of this Agreement. As Administrator, FICC 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.
11.2 Claims Procedure and Arbitration. In the event that benefits under this
Agreement are not paid to the Executive (or to his Beneficiary in the case
of the Executive's death) and such claimants feel they are entitled to
receive such benefits, then a written claim must be made to the
Administrator within sixty (60) days from the date payments are refused.
The Bank and its Board 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 or the Joinder 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
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, the Joinder 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
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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 or the Joinder Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon completed
performance of this Agreement and the Joinder Agreement or the meaning and
effect of the terms and conditions thereof, then claimants may submit the
dispute to a Board of Arbitration for final arbitration. Said Board shall
consist of one member selected by the claimant, one member selected by the
Bank, and the third member selected by the first two members. The Board
shall operate under any generally recognized set of arbitration rules. The
parties hereto agree that they, their heirs, personal representatives,
successors and assigns shall be bound by the decision of such Board with
respect to any controversy properly submitted to it for determination.
SECTION XII
MISCELLANEOUS
12.1 No Effect on Employment Rights. Nothing contained herein will confer upon
the Executive the right to be retained in the service of the Bank nor limit
the right of the Bank to discharge or otherwise deal with the Executive
without regard to the existence of the Agreement. Pursuant to 12 C.F.R. ss.
563.39(b), the following conditions shall apply to this Agreement:
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(1) The Bank's Board of Directors may terminate the Executive at any time,
but any termination by the Bank's Board of Directors other than
termination for Cause shall not prejudice the Executive's vested right
to compensation or other benefits under the contract. As provided in
Section 5.3, the Executive shall be paid the balance of his Elective
Contribution Account in a lump sum within thirty (30) days of his
termination in the event he is terminated for Cause. He shall have no
right to receive additional compensation or other benefits for any
period after termination for Cause.
(2) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act
(12 U.S.C. 1818(e)(3) and (g)(1)) the Bank's obligations under the
contract shall be suspended (except vested rights) as of the date of
termination of service unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, the Bank may in its
discretion (i) pay the Executive all or part of the compensation
withheld while its contract obligations were suspended and (ii)
reinstate (in whole or in part) any of its obligations which were
suspended.
(3) If the Executive is terminated and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act
(12 U.S.C. 1818(e)(4) or (g)(1)), all non-vested obligations of the
Bank under the contract shall terminate as of the effective date of
the order, but vested rights of the Executive shall not be affected.
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(4) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), all non-vested obligations under the
contract shall terminate as of the date of default.
(5) All non-vested obligations under the contract shall be terminated,
except to the extent determined that continuation of the contract is
necessary for the continued operation of the Bank:
(i) by the Executive or his designee at the time the Federal Deposit
Insurance Corporation or the Resolution Trust Corporation enters
into an agreement to provide assistance to or on behalf of the
Bank under the authority contained in ss. 13(c) of the Federal
Deposit Insurance Act; or
(ii) by the Executive or his designee, at the time the Executive or
his designee approves a supervisory merger to resolve problems
related to operation of the Bank or when the Bank is determined
by the Executive to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, (i.e., the balance of
his Elective Contribution Account and the Vested portion of his Matching
Contribution Account), however, shall not be affected by such action.
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12.2 State Law. The Agreement is established under, and will be construed
according to, the laws of the State of Indiana, to the extent such laws are
not preempted by the Act and valid regulations published thereunder.
12.3 Severability. In the event that any of the provisions of this Agreement or
portion thereof, are held to be inoperative or invalid by any court of
competent jurisdiction, then: (1) insofar as is reasonable, effect will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected thereby.
12.4 Incapacity of Recipient. In the event the Executive is declared incompetent
and a conservator or other person legally charged with the care of his
person or Estate is appointed, any benefits under the Agreement to which
such Executive is entitled shall be paid to such conservator or other
person legally charged with the care of his person or Estate. Except as
provided above in this paragraph, when the Bank's Board of Directors, in
its sole discretion, determines that the Executive is unable to manage his
financial affairs, the Board may direct the Bank to make distributions to
any person for the benefit of the Executive.
12.5 Recovery of Estate Taxes. If the Executive's gross estate for federal
estate tax purposes includes any amount determined by reference to and on
account of this Agreement, and if the Beneficiary is other than the
Executive's estate, then the Executive's estate shall be entitled to
recover from the Beneficiary receiving such benefit under the terms of the
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Agreement, an amount by which the total estate tax due by Executive's
estate, exceeds the total estate tax which would have been payable if the
value of such benefit had not been included in the Executive's gross
estate. If there is more than one person receiving such benefit, the right
of recovery shall be against each such person. In the event the Beneficiary
has a liability hereunder, the Beneficiary may petition the Bank for a lump
sum payment in an amount not to exceed the Beneficiary's liability
hereunder.
12.6 Unclaimed Benefit. The Executive shall keep the Bank informed of his
current address and the current address of his Beneficiaries. If the
location of the Executive is not made known to the Bank within three (3)
years after the date on which any payment of the Deferred Compensation
Benefit may first be made, payment may be made as though the Executive had
died at the end of the three (3) year period. If, within one (1) additional
year after such three (3) year period has elapsed, or, within three (3)
years after the actual death of the Executive, whichever occurs first, the
Bank is unable to locate any Beneficiary of the Executive, the Bank may
fully discharge its obligation by payment to the Estate.
12.7 Limitations on Liability. Notwithstanding any of the preceding provisions
of the Agreement, neither the Bank, nor any individual acting as an
employee or agent of the Bank, or as a member of the Board of Directors
shall be liable to the Executive or any other person for any claim, loss,
liability or expense incurred in connection with the Agreement.
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12.8 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.
12.9 Affect 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.
12.10 Suicide. Notwithstanding anything to the contrary in this Agreement, the
benefits otherwise provided herein shall not be payable if the Executive's
death results from suicide, whether sane or insane, within twenty-six (26)
months after the execution of this Agreement. If the Executive dies during
this twenty-six (26) month period due to suicide, the balance of his
Elective Contribution Account will be paid to the Executive's Beneficiary
in a single payment. Payment is to be made within thirty (30) days after
the Executive's death is declared a suicide by competent legal authority.
Credit shall be given to the Bank for payments made prior to determination
of suicide.
12.11 Headings. Headings and subheadings in this Agreement are inserted for
reference and convenience only and shall not be deemed a part of this
Agreement.
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SECTION XIII
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 Bank, and
such mutual consent shall be required even if the Executive is no longer
employed by the Bank.
SECTION XIV
EXECUTION
14.1 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.
14.2 This Agreement shall be executed in triplicate, each copy of which, when so
executed and delivered, shall be an original, but all three copies shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed on
this __ day of ____________, 19__.
Mutual Federal Savings Bank:
By:
----------------------------------
-------------------------------------
(Title)
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FIRST AMENDMENT
TO THE
EXECUTIVE DEFERRED COMPENSATION MASTER AGREEMENT
OF
MUTUAL FEDERAL SAVINGS BANK
MUNCIE, INDIANA
This First Amendment ("Amendment"), dated the 15th day of November, 1996,
hereby amends the Executive Deferred Compensation Master Agreement ("Agreement")
of Mutual Federal Savings Bank ("Bank"), dated the 1st day of October, 1993, as
follows:
THE FOLLOWING LANGUAGE SHALL REPLACE SUBSECTION 1.9 OF THE AGREEMENT:
1.9 "Deferred Compensation Benefit" means the annuitized value (using the
Interest Factor) of the Executive's Elective Contribution and Matching
Contribution Accounts, measured as of the Executive's Benefit Age, payable
in monthly installments throughout the Payout Period, and commencing on the
Executive's Benefit Eligibility Date.
THE FOLLOWING LANGUAGE SHALL REPLACE SUBSECTION 6.1 OF THE AGREEMENT:
6.1 DEATH BENEFIT PRIOR TO COMMENCEMENT OF DEFERRED COMPENSATION BENEFIT. In
the event of the Executive's death prior to commencement of the Deferred
Compensation Benefit, the Bank shall pay the Executive's Beneficiary a
monthly amount for the Payout Period, commencing within thirty (30) days of
the Executive's death. The amount of such benefit payment shall be
determined as follows:
(a) In the event death occurs (i) while the Executive is receiving the
Disability Benefit provided for in Subsection 4.2, or (ii) after the
Executive has become eligible for such Disability Benefit payments but
before such payments have commenced, the Executive's Beneficiary shall
be entitled to receive a continuation of the Disability Benefit
annuity (computed in accordance with Subsection 4.2), reduced by the
number of months Disability Benefit payments were made to the
Executive.
(b) In the event death occurs while the Executive is (i) in the service of
the Bank, (ii) deferring compensation pursuant to Section II and (iii)
PRIOR to any reduction or discontinuance, via an effective filing of a
Notice of Adjustment of Deferral Amount, in the level of deferrals
reflected in the Executive's initial Joinder Agreement, for any period
during the Deferral Period, the Executive's Beneficiary shall be paid
the greater of: (i) the Survivor's Benefit, or (ii) the annuitized
value (using the Interest Factor) of the Executive's Elective
Contribution and Matching Contribution Accounts, measured as of the
date of the Executive's death.
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(c) In the event death occurs while the Executive is (i) in the service of
the Bank, (ii) deferring compensation pursuant to Section II and (iii)
AFTER any reduction or discontinuance, via an effective filing of a
Notice of Adjustment of Deferral Amount, in the level of deferrals
reflected in the Executive's initial Joinder Agreement, for any period
during the Deferral Period, the Executive's Beneficiary shall be paid
the greater of: (i) a reduced Survivor's Benefit, such amount being
determined by multiplying the monthly payment available as a
Survivor's Benefit by a fraction, the numerator of which is equal to
the total compensation actually deferred by the Executive plus
Matching Contributions made on his behalf as of his death and the
denominator of which is equal to the amount of compensation that would
have been deferred as of his death and Matching Contributions made on
his behalf if no reduction or discontinuance in the level of deferrals
had occurred at any time following execution of the Joinder Agreement
and during the Deferral Period, or (ii) the annuitized value (using
the Interest Factor) of the Executive's Elective Contribution and
Matching Contribution Accounts, measured as of the date of the
Executive's death.
(d) In the event the Executive completes less than one hundred percent
(100%) of his Projected Deferrals due to any voluntary or involuntary
termination other than removal for Cause, the Executive's Beneficiary
shall be paid the greater of: (i) a reduced Survivor's Benefit, such
amount being determined by multiplying the monthly payment available
as a Survivor's Benefit by a fraction, the numerator of which is equal
to the total compensation actually deferred by the Executive plus
Matching Contributions made on his behalf and the denominator of which
is equal to the Executive's Projected Deferral, or (ii) the annuitized
value (using the Interest Factor) of the Executive's Elective
Contribution and Matching Contribution Accounts, measured as of the
date of termination of the Executive's service.
THE FOLLOWING SECTION XV IS ADDED TO THE AGREEMENT:
SECTION XV
ESTABLISHMENT OF RABBI TRUST
The bank shall establish a rabbi trust into which the Bank shall contribute
assets which shall be held, managed and invested, pursuant to the agreement
which establishes such rabbi trust (the "rabbi trust agreement"). The Bank
intends to make a contribution or contributions to the rabbi trust to provide
the Bank with a source of funds to assist it in meeting obligations under this
Agreement. The trust assets shall be subject to the claims of the Bank's
creditors in the event of the Bank's "Insolvency" as defined in the rabbi trust
agreement, until the trust assets are paid to the Executive and his Beneficiary
in such manner and at such times as specified in this Agreement. Contribution(s)
to the rabbi trust shall be made in accordance with the rabbi trust agreement.
2
IN WITNESS WHEREOF, the Bank has caused this Amendment to be executed in
triplicate, the day and year written here below:
MUTUAL FEDERAL SAVINGS BANK
By:
- -------------------------- ------------------------------------
------------------------------------
Title
In accordance with Section XIII of the Agreement, the following Executives
hereby give their written consent to such Amendment:
- -------------------------- ------------------------------------
- -------------------------- ------------------------------------
- -------------------------- ------------------------------------
3
FORM OF
RESTATED AND AMENDED
EXECUTIVE DEFERRED COMPENSATION JOINDER AGREEMENT
I, _____________________, and MUTUAL FEDERAL SAVINGS BANK, (the "Bank")
hereby agree for good and valuable consideration, the value of which is hereby
acknowledged, that I shall participate in the Executive Deferred Compensation
Master Agreement ("Master Agreement") established on October 1, 1993 and
subsequently amended, by the Bank, as said Master Agreement may now exist or
hereafter be amended or modified, and do further agree to the terms and
conditions thereof.
I understand that I must execute this Executive Deferred Compensation
Joinder Agreement ("Joinder Agreement") as well as notify the Administrator of
such execution, in order to participate in the plan. This Joinder Agreement
amends and restates my previous Joinder Agreement dated October 1, 1993. I
understand that my election to defer hereunder shall apply only with respect to
services not yet performed.
I hereby elect to irrevocably reduce my compensation, monthly, by
_________%. Such deferrals shall commence on , 1996 and shall continue for a
period of (36 to 120) months known as the "DEFERRAL PERIOD", and will result in
a "PROJECTED DEFERRAL" in the amount of $_________.
I understand that my election to defer shall continue in accordance with
this Joinder Agreement until such time as I submit a "NOTICE OF ADJUSTMENT OF
DEFERRAL AMOUNT" (Exhibit B, hereto) to the Administrator, at least thirty (30)
days prior to any January 1st of my Deferral Period. A Notice of Adjustment of
Deferral Amount can be used to adjust the percentage of compensation to be
deferred or to discontinue deferrals altogether.
I hereby elect a "BENEFIT AGE" of ________ and a "PAYOUT PERIOD" of (120 or
180) months.
IN GENERAL, I understand that my designated Beneficiary shall be entitled
to a "SURVIVOR'S BENEFIT" monthly payment in the amount of $_________, pursuant
to Subsection 6.1 of the Master Agreement and subject to all relevant
Subsections of the Master Agreement.
I understand that the Bank will make "MATCHING CONTRIBUTIONS" computed in
accordance with the following "MATCHING FORMULA":
for every dollar of base compensation I defer as an Elective Contribution,
the Bank will make a Matching Contribution of _____________(enter 25, 50,
75, or 100) cents for up to ______________ (enter % or $ amount) of base
compensation.
1
I understand that I will Vest in Matching Contributions, as well as in the
accrued interest earned or to be earned on such amounts, in accordance with the
following Vesting schedule:
Vesting in
Year(s) of Service Matching Contributions
1 20%
2 40%
3 60%
4 80%
5 100%
Interpolation shall be made for partial years. For example, 3.5 Years of
Service would result in Vesting of 70%. No Vesting shall occur, however,
until one (1) full Year of Service has been completed.
I hereby designate the following as my "BENEFICIARY." I am aware that I can
subsequently change this designation by submitting to the Administrator, at any
subsequent time and in substantially the form attached hereto as Exhibit A, a
written designation of the primary and secondary Beneficiaries to whom payment
under the Master Agreement shall be made in the event of my death prior to
complete distribution of the benefits due and payable under the Master
Agreement. I understand that any Beneficiary designation made subsequent to
execution of the Joinder Agreement shall become effective only when receipt
thereof is acknowledged in writing by the Administrator.
PRIMARY BENEFICIARY --------------------------------------
SECONDARY BENEFICIARY --------------------------------------
I understand that my deferral of compensation is intended to satisfy the
elective deferral requirements existing under federal income tax laws. A private
letter ruling has not been obtained from the Internal Revenue Service. In the
event that any portion of my deferral is subject to an adverse determination
regarding the deferral of such compensation as well as the deferral of the
corresponding tax liability by the Internal Revenue Service, such portion of my
compensation shall be excepted from the Plan and returned to me at my request.
I further understand that I am entitled to review or obtain a copy of the
Master Agreement, at any time, and may do so by contacting either the Bank or
the Administrator.
This Joinder Agreement shall become effective upon execution (below) by
both the Executive and a duly authorized officer of the Bank.
Dated this day of , 19 .
-------- -------------------------------- ----
MUTUAL FEDERAL SAVINGS BANK
By:
- ---------------------------- ----------------------------------
(Executive)
-------------------------------------
(Title)
2
EXECUTIVE DEFERRED COMPENSATION JOINDER AGREEMENT
BENEFICIARY DESIGNATION
Under the terms of the Executive Deferred Compensation Master Agreement
executed by the Bank, dated , 1996, I hereby designate the following Beneficiary
to receive any death benefits under said Agreement:
PRIMARY BENEFICIARY --------------------------------------
SECONDARY BENEFICIARY --------------------------------------
This Beneficiary Designation hereby revokes any prior Beneficiary
Designation which may have been in effect.
DATE: 19 .
-----------------------, --
--------------------------------------
EXECUTIVE
ACKNOWLEDGED
BY:
-----------------------------------
TITLE:
--------------------------------
Exhibit A
EXECUTIVE DEFERRED COMPENSATION JOINDER AGREEMENT
NOTICE OF ADJUSTMENT OF DEFERRAL AMOUNT
TO: Bank
Attention:
I hereby give notice of my election to adjust the amount of my compensation
deferral in accordance with my Executive Deferred Compensation Joinder
Agreement, dated the ____ day of __________, 19__. This notice is submitted at
least thirty (30) days prior to January 1st, and shall become effective January
1st, as specified below.
Adjust deferral as of: January 1st, 19__
Previous Deferral Amount ____________ per month
New Deferral Amount ____________ per month
(to discontinue deferral, enter 0%)
------------------------------------
EXECUTIVE
------------------------------------
DATE
ACKNOWLEDGED
BY:
---------------------------------
TITLE:
------------------------------
------------------------------------
DATE
3
MUTUAL FEDERAL SAVINGS BANK
RABBI TRUST FOR THE
EXECUTIVE DEFERRED COMPENSATION MASTER AGREEMENT
This Agreement is made this 15th day of November, 1996 by and between
MUTUAL FEDERAL SAVINGS BANK, a federally chartered savings bank, having its
principal place of business in Muncie, Indiana, (the "Bank"), and INDIANA
FEDERAL BANK FOR SAVINGS, a banking organization organized under the laws of the
state of Indiana, (the "Trustee").
WHEREAS, the Bank has adopted the Executive Deferred Compensation Master
Agreement (the "Plan"), effective as of the 15th day of November, 1996, which
constitutes a non-qualified deferred compensation plan, a copy of which is
attached hereto as Appendix A.
WHEREAS, Bank has incurred or expects to incur liability under the terms of
the Plan with respect to the individual(s) participating in the Plan;
WHEREAS, Bank wishes to establish a trust (the "Trust") and to contribute
to the Trust assets that shall be held therein, subject to the claims of Bank's
creditors in the event of Bank's Insolvency, as herein defined, until paid to
Plan participants and their beneficiaries in such manner and at such times as
specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan, maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees,
for purposes of Title I of the Employee Retirement Income Security Act of 1974,
as amended;
WHEREAS, it is the intention of Bank to make contributions to the Trust to
provide itself with a source of funds to assist it in the meeting of its
liabilities under the Plan;
1
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
1. ESTABLISHMENT OF TRUST.
(a) Bank hereby deposits with Trustee in trust assets which shall become
the principal of the Trust to be held, administered and disposed of by
Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Bank is grantor,
within the meaning of subpart E. part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall
be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Bank and shall be used
exclusively for the uses and purposes of Plan participants and general
creditors as herein set forth. Plan participants and their
beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created
under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries
against Bank. Any assets held by the Trust will be subject to the
claims of Bank's general creditors under federal and state law in the
event of Insolvency, as defined in Section 3(a) herein.
(e) Within seventy-five (75) days following the end of each calender year,
Bank shall be required to irrevocably deposit additional cash or other
property to the Trust in an amount sufficient to pay each Plan
participant or beneficiary the benefits payable pursuant to the terms
of the Plan as of the close of the calendar year.
(f) Upon (i) a Change in Control (as defined herein) or (ii) the death of
a participant during service but prior to "Benefit Age" (as such term
is defined in the Plan), Bank shall as soon a possible, but in no
event longer than seventy-five (75) days following such event, make an
additional irrevocable contribution to the Trust in
2
an amount that is sufficient to pay each Plan participant or
beneficiary the benefits to which Plan participants or their
beneficiaries would be entitled pursuant to the terms of the Plan as
of the date such event occurred.
2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.
(a) Bank shall deliver to Trustee a schedule (the "Payment Schedule") that
indicates the amounts payable in respect of each Plan participant (and
his or her beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so
payable, the form in which such amount is to be paid (as provided for
or available under the Plan), and the time of commencement for payment
of such amounts. Except as otherwise provided herein, Trustee shall
make payments to the Plan participants and their beneficiaries in
accordance with such Payment Schedule. The Trustee shall make
provision for the reporting and withholding of any federal, state, or
local taxes that may be required to be withheld with respect to the
payment of benefits pursuant to the terms of the Plan and shall pay
amounts withheld to the appropriate taxing authorities or determine
that such amounts have been reported, withheld and paid by Bank.
(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plan shall be determined by Bank or such party as
it shall designate under the Plan, and any claim for such benefits
shall be considered and reviewed under the procedures set out in the
Plan.
(c) Bank may make payment of benefits directly to Plan participants or
their beneficiaries as they become due under the terms of the Plan.
Bank shall notify Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or
their beneficiaries. In addition, if the principal of the Trust, and
any earnings thereon, are not sufficient to make payments of benefits
in accordance with the terms of the Plan, Bank shall make
3
the balance of each such payment as it falls due. Trustee shall notify
Bank where principal and earnings are not sufficient.
3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY WHEN BANK IS
INSOLVENT.
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Bank is Insolvent. Bank shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Bank is unable
to pay its debts as they become due, (ii) Bank is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code, or
(iii) Bank is determined to be insolvent by the Director of the
Federal Deposit Insurance Corporation or the Resolution Trust
Corporation.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be
subject to claims of general creditors of Bank under federal and state
law as set forth below.
(1) The Board of Directors and the Chief Executive Officer of Bank
shall have the duty to inform Trustee in writing of Bank's
Insolvency. If a person claiming to be a creditor of Bank alleges
in writing to Trustee that Bank has become Insolvent, Trustee
shall determine whether Bank is Insolvent and, pending such
determination, Trustee shall discontinue payment of benefits to
Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Bank's Insolvency, or has
received notice from Bank or person claiming to be a creditor
alleging that Bank is Insolvent, Trustee shall have no duty to
inquire whether Bank is Insolvent. Trustee may in all events rely
on such evidence concerning Bank's solvency as may be furnished
to Trustee and that provides Trustee with a reasonable basis for
making a determination concerning Bank's solvency.
(3) If at any time Trustee has determined that Bank is Insolvent,
Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall
4
hold the assets of the Trust for the benefit of Bank's general
creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan participants or their beneficiaries
to pursue their rights as general creditors of Bank with respect
to benefits due under the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after Trustee has determined that Bank is not
Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due
to Plan participants or their beneficiaries under the terms of the
Plan for the period of such discontinuance, less the aggregate amount
of any payments made to Plan participants or their beneficiaries by
Bank in lieu of the payments provided for hereunder during any such
period of discontinuance.
4. PAYMENTS TO BANK.
Except as provided in Sections 3 or 12 hereof, after the Trust has become
irrevocable, Bank shall have no right or power to direct Trustee to return to
Bank or to divert to others any of the Trust assets before all payment of
benefits have been made to Plan participants and their beneficiaries pursuant to
the terms of the Plan.
5. INVESTMENT AUTHORITY.
Trustee shall maintain all investments deposited upon establishment of the
trust (and listed on Exhibit A), until such time as the investments reach
maturity. Liquidation of such investments prior to maturity shall only be
allowable by the Trustee if (i) there is insufficient
5
cash in the trust at the time a benefit payment is due under the Plan and (ii)
with knowledge of such insufficiency, the Bank affirmatively chooses not to pay
any or all of the benefit payment due from Bank assets held outside the trust
itself. As the investments listed on Exhibit A mature, the Trustee's investment
authority, with respect to the proceeds from such investments, shall be subject
to the following:
(a) In no event may Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by Bank, other than a
de minimis amount held in common investment vehicles in which Trustee
invests, except where such de minimis investment is prohibited by
applicable banking regulations. All rights associated with assets of
the Trust shall be exercised by Trustee or the person designated by
Trustee, and shall in no event be exercisable by or rest with Plan
participants.
(b) Trustee shall have the following powers and authority in the
administration of the assets of Trust, in addition to those vested in
it elsewhere in this Trust or by law:
(i) To invest and reinvest the assets of Trust, without distinction
between principal and income, in any kind of property, real,
personal or mixed, tangible or intangible, and in any kind of
investment, security or obligation suitable for the investment of
Trust assets, including federal, state and municipal tax-free
obligations and other tax-free investment vehicles, insurance
policies and annuity contracts, and any common trust fund, group
trust, pooled fund, or other commingled investment fund
maintained by the Trustee or any other bank or entity for trust
investment purposes;
(ii) To purchase, and maintain as owner, life insurance policies with
respect to participants;
(iii) To sell for cash or on credit, to grant options, convert,
redeem, exchange for other securities or other property, or
otherwise to dispose of, any security or other property at any
time held;
6
(iv) To settle, compromise or submit to arbitration, any claims, debts
or damages, due or owing to or from the Trust, to commence or
defend suits or legal proceedings and to represent the Trust in
all suits or legal proceedings;
(v) To exercise any conversion privilege and/or subscription right
available in connection with securities or other property at any
time held, to oppose or to consent to the reorganization,
consolidation, merger or readjustment of the finances of any
corporation, Bank or association or to the sale, mortgage, pledge
or lease of the property of an corporation, Bank or association
any of the securities of which may at any time be held and to do
any act with reference thereto, including the exercise of
options, the making of agreement or subscription, which may be
deemed necessary or advisable in connection therewith, and to
hold and retain any securities or other properties so acquired;
(vi) To hold cash uninvested for a reasonable period of time (not in
excess of ten (10) days) under the circumstances without
liability for interest, pending investment thereof or the payment
of expenses or making distributions therewith;
(vii) To form corporations and to create trusts to hold title to any
securities or other property, all upon such terms and conditions
as may be deemed advisable;
(viii) To register any securities held hereunder in the name of the
Trustee or in the name of a nominee with or without the addition
of words indicating that such securities are held in a fiduciary
capacity and to hold any securities in bearer form;
(ix) To make, execute and deliver, as Trustee, any and all
conveyances, contracts, waivers, releases or other instruments in
writing necessary or proper for the accomplishment of any of the
foregoing powers;
7
(x) To employ suitable agents and counsel and to pay their reasonable
expenses and compensation; and
(xi) To have any and all other power of authority, under the laws of
the state in which the Trustee's principal executive offices are
located, relevant to performance in the capacity as Trustee.
6. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
7. ACCOUNTING BY TRUSTEE.
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between Bank
and Trustee. Within ninety (90) days following the close of each calendar year
and within sixty (60) days after the removal or resignation of Trustee, Trustee
shall deliver to Bank a written account of its administration of the Trust
during such year or during the period from the close of the last preceding year
to the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it, including a
description of all securities and investments purchased and sold with the cost
or net proceeds of such purchases or sales (accrued interest paid or receivable
being shown separately), and showing all cash, securities and other property
held in the Trust at the end of such year or as of the date of such removal or
resignation, as the case may be.
8. RESPONSIBILITY OF TRUSTEE.
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like
8
character and with like aims, provided, however, that Trustee shall
incur no liability to any person for any action taken pursuant to a
direction, request or approval given by Bank which is contemplated by,
and in conformity with, the terms of the Plan or this Trust and is
given in writing by Bank. In the event of a dispute between Bank and a
party, Trustee may apply to a court of competent jurisdiction to
resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in connection
with this Trust, except litigation arising out of the Trustee's
negligence or breach of fiduciary duty, Bank agrees to indemnify
Trustee against Trustee's costs, expenses and liabilities (including,
without limitation, attorney's fees and expenses) relating thereto and
to be primarily liable for such payments. If Bank does not pay such
costs, expenses and liabilities in a reasonable manner, Trustee may
obtain payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for
Bank generally) with respect to any of its duties or obligations
hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment advisors,
financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
(e) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise
herein, provided, however, that if an insurance policy is held as an
asset of the Trust, Trustee shall have no power to name a beneficiary
of the policy other than the Trust, to assign the policy (as distinct
from conversion of the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of any
borrowing against such policy.
(f) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that
could give this Trust the objective of carrying on a business and
dividing the gains therefrom, within
9
the meaning of section 301.7701-2 of the Procedure and Administrative
Regulations promulgated pursuant to the Internal Revenue Code.
9. FEES AND EXPENSES OF TRUSTEE.
Bank shall pay all administrative and Trustee's fees and expenses. If not
so paid, the fees and expenses shall be paid from the Trust.
10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) Trustee may resign at any time by written notice to Bank, which shall
be effective sixty (60) days after receipt of such notice unless Bank
and Trustee agree otherwise.
(b) Trustee may be removed by Bank on sixty (60) days prior written notice
or upon shorter notice accepted by Trustee.
(c) Upon a Change of Control, as defined herein, Trustee may not be
removed by Bank for two (2) years following the date of such Change in
Control, nor may such Trustee be removed by Bank in anticipation of a
Change of Control.
(d) If Trustee resigns at any time following a Change in Control, or if
Trustee is removed by Bank at any time following the expiration of the
two (2) year period (as described in Subpart (c) above) following a
Change in Control, Trustee shall select a successor Trustee in
accordance with the provisions of 11(a) hereof prior to the effective
date of Trustee's resignation or removal. In all other instances of
resignation or removal, Bank shall select a successor Trustee in
accordance with the provisions of 11(a) hereof prior to the effective
date of Trustee's resignation or removal.
(e) Upon resignation or removal of Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer
10
shall be completed within fifteen (15) days after receipt of notice of
resignation, removal or transfer, unless Bank extends the time limit.
(f) If Trustee resigns or is removed under paragraph (a), (b), or (d) of
this Section 10, a successor shall be appointed in accordance with
Section 11 hereof, by the effective date of resignation or removal. If
no such appointment has been made, Trustee or Bank (as specified
above) may apply to a court of competent jurisdiction for appointment
of a successor or for instructions. Should the Trustee be required to
apply to a court of competent jurisdiction for such purpose, all
expenses of Trustee in connection with the proceeding shall be allowed
as administrative expenses of the Trust.
11. APPOINTMENT OF SUCCESSOR.
(a) If Trustee resigns or is removed pursuant to the provisions of Section
10 hereof, Bank or Trustee (as specified above) may appoint any third
party, such as a bank trust department or other party that may be
granted corporate trustee powers under state law, as a successor to
replace Trustee upon resignation or removal. The appointment of a
successor Trustee shall be effective when accepted in writing by the
new Trustee. The new Trustee shall have all of the rights and powers
of the former Trustee, including ownership rights in the Trust assets.
The former Trustee shall execute any instrument necessary or
reasonably requested by the successor Trustee to evidence the
transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections 7 and 8 hereof. The successor Trustee shall not be
responsible for and Bank shall indemnify and defend the successor
Trustee from any claim or liability resulting from any action or
inaction of any prior Trustee or from any other past event, or any
condition existing at the time it becomes successor Trustee.
11
12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written instrument executed
by Trustee and Bank. Notwithstanding the foregoing, no such amendment
shall conflict with the terms of the Plan or shall make the Trust
revocable after it has become irrevocable in accordance with Section
1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan. Upon termination of the
Trust any assets remaining in the Trust shall be returned to Bank.
(c) Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plan, Bank may
terminate this Trust prior to the time all benefit payments under the
Plan have been made. All assets in the Trust at termination shall be
returned to Bank.
(d) Sections 1(one), 2 (two), 6 (six), 10 (ten) and 12 (twelve) of this
Trust Agreement may not be amended by Bank (i) in anticipation of or
(ii) for two (2) years following a Change of Control, as defined
herein.
13. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law
or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable
process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of the state in which the Trustee's principal executive
offices are located.
(d) For purposes of this Trust, Change of Control shall mean;
12
(1) a change of control of a nature that would be required to be
reported in response to Item 1 of the current report on Form 8-K,
as in effect on the date hereof, pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 (hereinafter the "Exchange
Act"); or
(2) a change of control of the Bank within the meaning of 12
C.F.R.ss.303. 4; or
(3) a Change of Control at such time as
(i) any "person" (as the term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Bank
representing Twenty Percent (20%) or more of the combined
voting power of the Bank's outstanding securities ordinarily
having the right to vote at the elections of Directors
except for (i) any stock of the Bank purchased by the
Holding Company in connection with the conversion of the
Bank to stock form, and (ii) any stock purchased by any
Employee Stock Ownership Plan and/or trust sponsored by the
Bank; or
(ii) individuals who constitute the Board of Directors on the
date hereof (hereinafter the "Incumbent Board") cease for
any reason to constitute at least a majority thereof,
provided that any person becoming a Director subsequent to
the date hereof whose election was approved by a vote of at
least three-quarters of the Directors comprising the
Incumbent Board, or whose nomination for election by the
Bank's members (or stockholders) was approved by the Bank's
Nominating Committee which is comprised of members of the
Incumbent Board, shall be, for purposes of this clause (ii),
considered as though he were a member of the Incumbent
Board; or
(iii) merger, consolidation, or sale of all or substantially all
the assets of the Bank occurs; or
13
(iv) a proxy statement is issued soliciting proxies from the
members (or stockholders) of the Bank by someone other than
the current management of the Bank, seeking member (or
stockholder) approval of a plan of reorganization, merger,
or consolidation of the Bank with one or more corporations
as a result of which the outstanding shares of the class of
the Bank's securities are exchanged for or converted into
cash or property or securities not issued by the Bank.
For these purposes, the terms "stockholders(s)" and "member(s)" shall
be considered one and the same. The term "Holding Company" shall mean
the holding company (including any successor thereto) organized to
acquire the capital stock of the Bank upon the Bank's conversion from
mutual to stock form.
14. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be the 15th day of
November, 1996.
IN WITNESS WHEREOF, this instrument has been executed as of the day and
year first written above.
MUTUAL FEDERAL SAVINGS BANK
(Bank)
Attest: By:
----------------------------------------
- --------------------------- --------------------------------------------
(Title)
INDIANA FEDERAL BANK FOR SAVINGS
(Trustee)
Attest: By:
----------------------------------------
- --------------------------- --------------------------------------------
(Title)
14
FIRST AMENDMENT TO THE
MUTUAL FEDERAL SAVINGS BANK RABBI TRUST
FOR THE EXECUTIVE DEFERRED COMPENSATION MASTER AGREEMENT
This First Amendment to the Mutual Federal Savings Bank Rabbi Trust For the
Executive Deferred Compensation Master Agreement is for the purpose of amending
the Agreement as follows:
The second paragraph of page one (1) of the Rabbi Trust for the Executive
Deferred Compensation Master Agreement is hereby deleted and replaced with the
following provision:
WHEREAS, the Bank has adopted the Restated Executive Supplemental
Retirement Income Agreement(s) (the "Plan"), effective as of the 1st
day of October, 1993, which constitutes a non-qualified deferred
compensation plan, a copy of which is attached hereto as Appendix A.
The Trustee, formerly doing business as Indiana Federal Bank for Savings,
has merged into Pinnacle Bank. The Mutual Federal Savings Bank Rabbi Trust for
the Executive Deferred Master Agreement and Amendments thereo shall be binding
upon Pinnacle Bank of St. Joseph, Michigan, and its successors or assigns.
Remainder of page intentionally left blank.
Page 1 of 2
IN WITNESS WHEREOF, the Bank has caused this First Amendment to be executed
on this 13th day of May, 1998.
MUTUAL FEDERAL SAVINGS BANK
(Bank)
Attest: By:
----------------------------------------
- --------------------------- --------------------------------------------
(Title)
PINNACLE BANK
(Trustee)
Attest: By:
----------------------------------------
- --------------------------- --------------------------------------------
(Title)
Page 2 of 2
SECOND
AMENDMENT
TO THE
MUTUAL FEDERAL SAVINGS BANK
RABBI TRUST FOR THE
EXECUTIVE DEFERRED COMPENSATION MASTER AGREEMENT
This Agreement is made this 19th day of October, 1999 by and between MUTUAL
FEDERAL SAVINGS BANK, a federally chartered savings bank, having its principal
place of business in Muncie, Indiana, (the "Bank"), and SECURITY FEDERAL SAVINGS
BANK, a federally chartered savings institution organized under the laws of the
state of Indiana, (the "Trustee").
WHEREAS, the Bank has adopted the Executive Deferred Compensation Master
Agreement (the "Plan"), effective as of the 15th day of November, 1996, which
constitutes a non-qualified deferred compensation plan;
WHEREAS, the Bank established the Mutual Federal Rabbi Trust for the
Executive Deferred Compensation Master Agreement (the "Trust") to hold the
assets of the Plan;
WHEREAS, Bank now intends to transfer all assets of the Trust to the Mutual
Federal Savings Bank Rabbi Trust for the Restated Executive Supplemental
Retirement Income Agreement(s), the Director Deferred Compensation Master
Agreement, and the Executive Deferred Compensation Master Agreement.
NOW, THEREFORE, the parties do hereby merge the Trust and agree that all
assets of the Trust shall be held in the Mutual Federal Savings Bank Rabbi Trust
for the Restated Executive Supplemental Retirement Income Agreement(s), the
Director Deferred Compensation Master Agreement, and the Executive Deferred
Compensation Master Agreement.
1
IN WITNESS WHEREOF, this instrument has been executed as of the day and
year first written above.
MUTUAL FEDERAL SAVINGS BANK
(Bank)
Attest: By:
----------------------------------------
- --------------------------- --------------------------------------------
(Title)
SECURITY FEDERAL SAVINGS BANK
(Trustee)
Attest: By:
----------------------------------------
- --------------------------- --------------------------------------------
(Title)
2