Exhibit 10.9
Commercial Federal Savings and Loan Association
Survivor Income Plan, As Amended February 14, 1996
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EXHIBIT 10.9
COMMERCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION
SURVIVOR INCOME PLAN
(Amended and Restated July 1, 1986)
Commercial Federal Savings and Loan Association ("Commercial Federal")
hereby establishes a survivor income plan for certain of its and its
subsidiaries' Key Executives in recognition of the loyalty, length of service
and contributions which said employees have made and will make to the success of
said companies, as follows:
Section 1. Definitions.
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The following terms shall have the meanings set forth below:
(a) "Base Benefits' shall mean an amount equal to 40% of base
salary of a Key Executive (before any reduction for salary reduction or
deferral amounts) but not less than $40,000 per year.
(b) "Beneficiary" means the person or persons entitled under
Section 5 to receive a Survivor Benefit after a Participant's death.
(c) "Committee" means the Committee appointed to administer this
Plan under Section 7 of this Plan.
(d) "Key Executive" means the President, Executive Vice Presidents
and Senior Vice Presidents of Commercial Federal Savings and Loan
Association, and the Presidents and salaried Chairmen of such of its
subsidiaries who adopt the Plan.
(e) "Participant" means a present or former Key Executive
designated to participate in this Plan on whose account a Survivor Benefit
will be payable under Section 3.
(f) "Plan" means this Survivor Income Plan, as amended from time
to time.
(g) "Survivor Benefit" means a benefit payable under Section 3 of
this Plan.
Section 2. Participation.
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All officers of Commercial Federal who are Key Executives shall participate
in the Plan. Key Executives of subsidiaries of Commercial Federal appointed by
the subsidiaries adopting the Plan also shall participate. A Beneficiary shall
be eligible for benefits only as hereinafter provided.
Section 3. Survivor Benefit.
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(a) If a Participant's employment ends because of death while he is a
Key Executive, his Beneficiary shall receive an annual Survivor Benefit
equal to 100% of the Participant's Base Benefit, for a period of 10 years.
A Participant shall be considered to be employed while on an authorized
leave of absence, as determined by Commercial Federal.
(b) If a Participant (i) remains a Key Executive of Commercial Federal
until his retirement at normal retirement age (as established from time to
time by the Committee), and (ii) dies following such normal retirement,
then his Beneficiary shall receive upon his death an annual Survivor
Benefit equal to 100% of the Participant's Base Benefit, for a period of 10
years.
(c) If a Participant does not satisfy the conditions of Section 3(a) or
3(b) above, no Survivor Benefit shall be payable on his account.
Section 4. Payment of Survivor Benefit.
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(a) The annual Survivor Benefit shall be paid in equal monthly
installments, commencing on the first day of the second month following
the Participant's death. The monthly installments shall continue for 120
months. The amount of each monthly installment shall be equal to 100% of
the Participant's Base Benefit divided by 12.
(b) A Participant, with the consent of the Committee, may during his
lifetime elect a different method of payment, provided that in all
events the Survivor Benefit shall be payable over a period of not less
than one month nor more than 180 months. If a Participant elects to have
the Survivor Benefit paid in a manner other than 120 equal monthly
installments, the actuaries then servicing Commercial Federal shall
determine the present value, (using an interest rate determined by the
Committee) of the payment method so elected, and the amount of the
Survivor Benefit shall be revised accordingly, so that the value of the
Survivor Benefit, determined at the time of the Participant's death, is
the same as if the standard method of payment was used.
Section 5. Beneficiaries.
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(a) A Participant may designate one or more Beneficiaries to receive a
Survivor Benefit payable on the Participant's account under this Plan.
Beneficiaries shall be designated only upon forms made available by or
satisfactory to the Committee, and filed by the Participant with the
Committee.
(b) At any time prior to his death, a Participant may change his
designation of Beneficiary by filing a substitute designation of
Beneficiary with the Committee.
(c) In the absence of an effective designation of Beneficiary, or if
all persons so designated shall have predeceased the Participant or
shall have died before the Survivor Benefit shall have been fully
distributed, the balance of the Survivor Benefit shall be paid to the
Participant's surviving spouse, or if none, to the Participant's issue
per stripes or, of no issue, to the personal representative of the
Participant's estate.
Notwithstanding the foregoing, unless the Participant has made a
designation to the contrary, if a Participant designates his surviving
spouse as primary beneficiary to his Survivor Benefit and if said
spouse dies after payments have begun but before all payments have been
made, the remaining Survivor Benefit shall be paid to such persons as
said spouse may appoint by will, or, in the absence of such appointment,
to said spouse's estate.
(d) If a Survivor Benefit is payable to a minor or person
declared incompetent or to a person incapable of handling the
disposition of his property, the Committee may direct Commercial Federal
to pay such Survivor Benefit to the guardian, legal representative or
person having the care and custody of such minor, incompetent or person.
The Committee may require proof of incompetency, minority, incapacity or
guardianship as it may deem appropriate prior to distribution of the
Survivor Benefit. Such distribution shall completely discharge the
Committee and Commercial Federal from all liability with respect to such
benefit.
Section 6. Unfunded Plan.
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(a) Benefits to be provided under this Plan are unfunded
obligations of Commercial Federal and its subsidiaries. Nothing
contained in this Plan shall require Commercial Federal to segregate any
monies from its general funds, to create any trust, to make any special
deposits, or to purchase any policies of insurance with respect to such
obligations. If Commercial Federal or it subsidiaries elect to purchase
individual policies of insurance on one or more of the Participants to
help finance its obligations under this Plan, such individual policies
and the proceeds there-from shall at all times remain the sole property
of Commercial Federal or such subsidiaries shall have ownership rights
in such policies of insurance.
(b) No Participant shall be required or permitted to make
contributions to this Plan.
Section 7. Plan Administration.
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(a) This Plan shall be administered by a Committee appointed by the
Board of Directors of Commercial Federal. The Committee shall be the
administrator of this Plan and shall be solely responsible for its general
administration and interpretation and for carrying out the respective
provisions hereof, and shall have such powers as may be necessary to do so.
Commercial Federal may from time to time establish rules for the
administration of this Plan and the transaction of its business. Any action
by the Committee shall be final, conclusive and binding on each Participant
and all persons claiming by, through or under any Participant.
(b) Commercial Federal may employ or engage such agents,
accountants, actuaries, counsel, other experts and other persons as it
shall deem necessary or desirable in connection with the interpretation and
administration of this Plan. Commercial Federal shall be entitled to rely
upon all certificates made by an accountant or actuary selected by
Commercial Federal. Commercial Federal and its committees, officers,
directors and employees shall not be liable for any action taken, suffered
or omitted by them in good faith in reliance upon the advice or opinion or
any counsel, accountant, actuary or other expert and all action so taken,
suffered or omitted shall be conclusive upon each of them and upon all
other persons interested in this Plan.
(c) Commercial Federal may require proof of the death of any
Participant and evidence of the right of any person to receive any Survivor
Benefit.
(d) Claims under this Plan shall be filed with Commercial Federal
on its prescribed forms.
(e) Commercial Federal shall withhold from benefits paid under this
Plan any taxes or other amounts required to be withheld by law.
Section 8. Miscellaneous.
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(a) No Survivor Benefit shall be subject in any manner to
alienation, sale, transfer, assignment, pledge or encumbrance of any kind
unless specifically approved in writing in advance by the Committee. Any attempt
to alienate, sell, transfer, assign, pledge or otherwise encumber any Survivor
Benefit, whether presently or hereafter payable, shall be void unless so
approved. Except as required by law, no Survivor Benefit payable under this Plan
shall in any manner be subject to garnishment, attachment, execution, or other
legal process, or be liable for or subject to the debts or liability of any
Participant or Beneficiary.
Notwithstanding any Plan provision to the contrary, the Board of
Directors of Commercial Federal shall have the right to amend, modify, suspend,
or terminate this Plan at any time. No amendment, suspension or termination
shall adversely affect the right of a Beneficiary to receive a Survivor Benefit
payable as the result of the death of a Participant which occurred prior to the
effective date of such amendment, suspension or termination.
(c) This document shall be construed in accordance with the laws of
the State of Nebraska.
(d) Nothing contained in this Plan shall be construed as a contract
of employment between any Participant and Commercial Federal or to suggest or
create a right in any Participant to be continued in employment as a Key
Executive or other employee of Commercial Federal.
(e) Commercial Federal and the Committee may impose such other lawful
terms and conditions on participation in this Plan as deemed desirable. Members
of the Committee may participate in this Plan.
(f) This Plan shall become effective as of the 1st day of July, 1986.
COMMERCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION
By /s/ Donald L. Schinzel
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AMENDMENT NO. 1
TO COMMERCIAL FEDERAL SAVINGS & LOAN
SURVIVOR INCOME PLAN
Section 2(c) of the Plan shall be amended to read as follows:
If a Participant does not satisfy the conditions of Section 3(a) or 3(b)
above, no Survivor Benefit shall be payable on his account; provided,
however if a Participant terminates employment to his normal retirement
date, the Company may, in its sole discretion, grant to the
Participant's Beneficiary a Survivor Benefit in such amount and for such
period as is determined by the Committee.
DATED this 27th day of August 1986.
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COMMERCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION
By /s/ Donald L. Schinzel
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AMENDMENT NO. 2
TO COMMERCIAL FEDERAL SAVINGS PLAN
SURVIVOR INCOME PLAN
The Plan shall be amended effective July 1, 1987 as follows:
1. Section 4 shall be amended to read as follows:
"Section 4. Payment of Survivor Benefit.
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The annual Survivor Benefit shall be paid in equal monthly installments,
commencing on the first day of the second month following the Participant's
death. The monthly installments shall continue for 120 months. The amount of
each monthly installment shall be equal to 100% of the Participant's Base
Benefit divided by 12."
2. Section 5 shall be amended to read as follows:
"Section 5. Beneficiaries.
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"(a) Upon the death of the Participant the Survivor Benefit shall be paid
to the Participants' surviving spouse, if any. If the Participant has no
surviving spouse or if said spouse shall have died before the Survivor
Benefit shall have been fully distributed, the Benefit shall be distributed
to the Participant's issue per stirpes, or if no issue, to the Participant's
parents. If there is no beneficiary as listed above, no Benefit will be
paid.
"(b) If a Survivor Benefit is payable to a minor or person declared
incompetent or to a person incapable of handling the disposition of his
property, the Committee may direct Commercial Federal to pay such Survivor
Benefit to the guardian, legal representative or person having the care and
custody of such minor, incompetent or incapable person. The Committee may
require proof of incompetency, minority, incapacity or guardianship as it
may deem appropriate prior to distribution of the Survivor Benefit. Such
distribution shall completely discharge the Committee and Commercial Federal
from all liability with respect to such benefit."
DATED this 24th day of June 1987.
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COMMERCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION
BY /s/ Donald L. Schinzel
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AMENDMENT NO. 3
TO COMMERCIAL FEDERAL SAVINGS AND LOAN
SURVIVOR INCOME PLAN
The Plan shall be effective August 31, 1988 amended as follows:
1. Section 1(d) shall be amended to read as follows:
"Key Executive" means a member of the group of persons consisting of the
President, Executive Vice President and Senior Vice President of
Commercial Federal Savings and Loan Association and the Presidents and
salaried Chairmen of such of its subsidiaries to adopt the Plan.
2. Section 2 shall be amended to read as follows:
Key Executives of Commercial Federal who are designated by the Executive
Personnel Committee of the Board of Directors of Commercial Federal as
Participants shall participate in the Plan. Key Executives of subsidiaries
of Commercial Federal appointed by the subsidiaries adopoting the Plan
shall also participate. A Beneficiary shall be eligible for benefits only
as hereinafter provided.
3. Amendment No. 1 to Commercial Federal Savings and Loan Survivor Income
Plan shall be amended by deleting the reference to "Section 2(c)" and
inserting in its place as follows:
Dated this 31st day of August 1998.
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COMMERCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION
By /s/ Donald L. Schinzel
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AMENDMENT NO.4
TO COMMERCIAL FEDERAL BANK
SURVIVOR INCOME PLAN
(f/k/a COMMERCIAL FEDERAL SAVINGS & LOAN)
The Commercial Federal Bank Survivor Income Plan ("Plan") is hereby amended as
follows:
1. A new paragraph numbered as Section 4 and entitled Vesting Schedule shall be
added to the Plan. The terms of such amendment shall be those out in Exhibit
I attached to this resolution;
2. In addition, current paragraphs 4,5,6,7 and 8 renumbered as 5,6,7,8 and 9,
and
3. The Chief Operating Officer, or his designee, is hereby authorized to take
all steps, and do all things necessary to implement this amendment.
All as of this 14th day of February, 1996.
By /s/ James A. Laphen
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Chief Operating Officer
of Commercial Federal Bank