EXHIBIT 10.3
IRWIN BANK AND TRUST COMPANY
DEATH BENEFIT ONLY
DEFERRED COMPENSATION PLAN
FOR
BANK DIRECTORS
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1. Purpose. The Irwin Bank and Trust Company, a Pennsylvania banking
corporation (hereinafter referred to as the "Bank"), hereby establishes the
Bank's Death Benefit Only Deferred Compensation Plan (hereinafter referred to as
the "Plan") for the members of its Board of Directors (hereinafter referred to
collectively as the "Directors" and individually as a "Director"), under which
(i) the Directors may defer a portion or all of the fees payable to them for
services rendered by them as Directors, and (ii) certain Death Benefits are
provided. A Director may, but need not be, a full-time employee of the Bank to
participate in this Plan.
2. Definitions.
A. Beneficiary: One or more individuals or entities
designated by a Director to receive the benefits provided under this Plan
payable by reason of the Director's death. If a Director makes no valid
designation, or if the designated Beneficiary(s) fails to survive the Director
or fails to elect to receive such benefits, then the Director's Beneficiary
shall be:
(i) The Director's surviving spouse, if any; or
(ii) If there is no surviving spouse, the Director's
estate.
If there is a surviving spouse, but he or she dies prior to payment of
all of the benefits due hereunder, then the remaining benefits due hereunder
shall be administered and distributed as part of his or her estate.
The Committee (as hereinafter defined) shall provide each Director with
a Beneficiary Designation Form on which the Director may designate his
Beneficiary(s). The Director may change his Designated Beneficiary(s) by filing
written notice of such change with the Committee on the form specified therefor.
B. Board of Directors: The Board of Directors of the Bank.
C. Committee: The committee appointed by the Board of
Directors to administer this Plan, as further described in Section 11 and other
provisions of this Plan.
D. Compensation: The fees payable by the Bank to a Director
for services
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rendered as a Director. "Compensation" shall include a Director's retainer fees,
regular meeting fees and committee meeting fees. It shall not include any
compensation or benefits received by a Director as an employee of the Bank.
E. Bank: The Irwin Bank and Trust Company and any successor by
merger, consolidation or otherwise.
F. Death Benefit: The annual death benefit described in
Section 5 of this Plan and as individually determined pursuant to the
Preliminary Agreements attached hereto as Exhibit "B".
G. Deferral Election. The election by a Director to Defer
Compensation under this Plan, which election my be made only on a Deferral
Election Form provided by the Committee, as provided in Section 4 hereof.
H. Deferral Period: The forty-eight (48) consecutive month
period to which a Director's election to defer payment of Compensation applies,
which commences after the Committee's receipt and acceptance of the Director's
Deferral Election Form.
I. Deferral Year: Each of the four (4) consecutive twelve
(12)-month periods during the Deferral Period.
J. Deferred Income Benefit: The deferred benefit described in
Section 6 of this Plan and as determined pursuant to the Schedule attached
hereto as Exhibit "A".
K. Preliminary Agreement: The Agreements, attached hereto as
Exhibit "A", by which each Director's preretirement Death Benefits are
established and each Director (by execution of his individual Preliminary
Agreement) acknowledges and agrees to certain terms related to such Death
Benefits.
L. Retirement Age. Seventy (70) years of age.
3. Director's Participation in Plan. A DIRECTOR MAY PARTICIPATE IN THIS
PLAN IF AND ONLY IF HE EXECUTES THE "ACKNOWLEDGMENT AND AGREEMENT TO
PARTICIPATE" ON THE LAST PAGE HEREOF. UNLESS AND UNTIL A DIRECTOR EXECUTES THE
SAID "ACKNOWLEDGMENT AND AGREEMENT TO PARTICIPATE," THE EXECUTION BY A DIRECTOR
OF ANY "PRELIMINARY AGREEMENT," "INTERIM DIRECTOR FEES DEFERRAL AGREEMENT" OR
ANY OTHER DOCUMENT SHALL NOT GIVE SUCH DIRECTOR ANY RIGHTS UNDER THIS PLAN.
4. Deferral Election.
A. Election. A Director may elect to defer payment of part or
all of his
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Compensation by filing a completed Deferral Election Form with the Committee
before the first day of the Deferral Period to which the election is to apply. A
Director may not defer less than One Thousand Dollars ($1,000) of Compensation
that is payable to the Director for services rendered after the effective date
of the Deferral Election and after the Deferral Election Form is filed with and
accepted by the Committee.
B. Deferral Election Forms. The Committee shall provide
Deferral Election Forms for use by the Directors in making their deferral
elections under this Plan. THE COMMITTEE SHALL NOT ACCEPT ANY OTHER FORM FOR A
DIRECTOR'S ELECTION TO DEFER COMPENSATION UNDER THIS PLAN.
C. Acceptance by Committee. A Director's completed Deferral
Election Form shall be deemed to have been accepted by the Committee if, within
sixty (60) days after the date on which the Committee receives it, the Committee
does not notify the Director, in writing, that the Deferral Election Form has
not been accepted.
D. Medical Examination. The Committee may require a Director
to undergo a medical examination as a condition of accepting the Director's
election to defer Compensation. If a Director is not able to provide the
Committee with evidence of good health that is satisfactory to the Committee,
then the Committee, in its sole discretion, shall determine whether or not to
accept the Director's Deferral Election.
E. Retirement Age Exception. A Director may not elect to defer
payment of Compensation if the Director will have attained Retirement Age (the
age of seventy (70) years) prior to or at the beginning of the Deferral Period,
except with the consent of the Committee, which consent shall not be withheld if
consistent with this Plan.
F. Termination of Deferral Election. A Director may not
terminate his Deferral Election during a Deferral Period without the Committee's
consent. A termination of a Deferral Election shall be effective on or after the
date on which the Committee consents to the termination and shall relate only to
Compensation payable for services rendered after the effective date of such
termination.
5. Death Benefits.
A. In General. If a Director dies, his Beneficiary shall be
paid the Director's Death Benefits in ten (10) equal annual installments as set
forth in the preliminary Agreement between such Director and the Bank that is
attached hereto as Exhibit "A", unless the Committee, in its sole discretion,
determines that the Director's Death Benefits should be paid in another form
that is actuarially equivalent to such ten (10)-year payment. If the Director
dies more than ten (10) years prior to attaining Retirement Age, such
actuarially equivalent form may include payment in equal annual installments
until the Director would have attained Retirement Age.
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B. Change in Compensation Deferred. If the amount of
Compensation deferred by a Director during the second, third, or fourth Deferral
Year exceeds or is less than the amount of Compensation deferred during the
first Deferral Year, then the Death Benefit to which the Director shall be
entitled with respect to the Deferral Period shall be actuarially increased or
decreased accordingly.
6. Nature of Bank's Obligation. The Bank's obligation under the Plan
shall be in the nature of an unfunded and unsecured promise to pay. The Bank
shall not be obligated under any circumstances to fund its financial obligations
under the Plan. The Bank may purchase a policy or policies of insurance on the
lives of Directors and will be the owner, beneficiary and premium payer of any
such insurance policies, and neither the Director nor his Beneficiary(s) shall
have any ownership rights in such policies or any proceeds thereof. Such
policies are not earmarked for the payment of any benefits under this Agreement,
provided however that the Bank shall not be required to pay any death benefits
if a denial of insurance proceeds is based upon suicide or pre-existing health
conditions not accurately or completely revealed by the Director. Any other
assets which the Bank may acquire to help satisfy its financial obligations also
are and remain general assets of the Bank subject to the claims of its
creditors. The Bank does not give, nor does the Plan or the Director (or his
Beneficiary) receive, any beneficial ownership interest in any asset of the
Bank. All rights of ownership in any such assets are and remain in the Bank.
7. Unsecured Promise. The rights of the Director and any designated
Beneficiary(ies) of the Director, or any other person claiming through the
Director under this Plan, shall be solely those of an unsecured general creditor
of the Bank. The Director or the designated Beneficiary(ies) of the Director
shall have the right to receive those payments specified under the Plan only
from the Bank and has no right to look to any general or specific asset or
assets of the Bank or any specific or special property separate from the Bank to
satisfy a claim for benefit payments.
The Director agrees that he, his designated Beneficiary or any other
person claiming through the Director shall have no rights or beneficial
ownership interest whatsoever in any general assets that the Bank may acquire or
use to assist it in satisfying its financial obligations under the Plan.
Any such general assets used or acquired by the Bank in connection with
the liabilities it has assumed under the Plan shall not be deemed to be held
under any trust for the benefit of the Director or his designated
Beneficiary(ies), nor shall any such general assets be considered security for
the performance of any obligation of the Bank. Any such asset or assets shall
remain a general, unpledged and unrestricted asset(s) of the Bank.
The Director's participation, if any, in the acquisition of any such
general asset for the Bank shall not constitute a representation to the
Director, his designated Beneficiary or any person claiming through or under the
Director that any of them has a specific or beneficial
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interest in such general asset or assets.
8. Independence of Benefits. The Benefits payable under the Plan shall
be independent of and in addition to any other benefits or compensation payable
under any other agreement(s) that now or hereafter may exist from time to time
between the Bank and the Director. This Agreement shall not be deemed to
constitute a contract of employment between the parties hereto, nor shall any
provision hereof restrict the right of the Bank to dismiss the Director, with or
without cause, nor restrict the right of the Director to terminate his services
with the Bank, nor-restrict the rights of an employee Director or the Bank in
any way with respect to the employment relationship.
9. Nonassignable Rights. Except as expressly provided in this Plan,
neither the Director nor his Beneficiary shall have the right to commute, sell,
assign, transfer or otherwise convey the right to receive any payments
hereunder, which payments and the rights thereto hereby are expressly declared
to be nonassignable and nontransferable.
10. Committee. The Board of Directors shall appoint a Committee to
administer the Plan. The members of the Committee may, but need not be,
Directors. The Committee shall establish the forms and procedures by which a
Director may make Deferral Elections under this Plan, and the Committee shall
have the complete authority and discretion to administer and interpret the Plan.
The Committee shall exercise its discretion according to its determination of
what is in the best interests of both the Bank and the Directors. No Director
shall have any power to direct how the Committee shall exercise its discretion.
All decisions of the Committee concerning the administration and interpretation
of this Plan shall be final, conclusive and binding.
11. Claims Procedure.
A. Benefits shall be paid in accordance with the provisions of
this Plan. The Director, Beneficiary or any other person claiming through the
Director (hereinafter collectively referred to as the "Claimant") shall make a
written request for the benefits provided under this Plan. This written claim
shall be mailed or delivered to the Named Fiduciary identified in Section 13,
below.
B. If a claim is denied, either wholly or partially, notice of
the decision shall be mailed to the Claimant within a reasonable time period.
This time period shall not exceed ninety (90) days after the receipt of the
claim by the Named Fiduciary.
C. The Named Fiduciary shall provide written notice to every
Claimant who is denied a claim for benefits under this Plan. The notice shall
set forth the following information:
(1) the specific reasons for the denial;
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(2) the specific reference to pertinent Plan
provisions upon which the denial is based;
(3) a description of any additional material or
information necessary for the Claimant to perfect the claim and an explanation
of why such material or information is necessary; and
(4) appropriate information and explanation of the
claims procedure under this Plan so as to permit the Claimant to submit his
claim for review.
D. The claims procedure under this Plan shall allow the
Claimant a reasonable opportunity to appeal a denial of claim and to receive
fair review of that decision by the Named Fiduciary, as follows:
(1) The Claimant shall exercise his right of appeal
by submitting a written request for a review of the denied claim to the Named
Fiduciary. This written request for review must be submitted to the Named
Fiduciary not less than sixty (60) days after receipt by the Claimant of the
written notice of denial.
(2) The Claimant shall have the following rights
under this appeal procedure:
(i) to request a review upon written
application to the Named Fiduciary;
(ii) to review any other pertinent documents
respecting the Plan;
(iii) to submit issues and comments in
writing;
(iv) to request an extension of time to make
a written submission of issues and comments; and
(v) to request that a hearing be held to
consider his appeal.
E. The decision on the review of the denied claim shall be
made promptly by the Named Fiduciary:
(1) not more than sixty (60) days after the receipt
of the request for review if no hearing is held; or
(2) not more than one hundred twenty (120) days
after the receipt of the request for review, if an extension of time is
necessary in order to hold a hearing.
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(i) If an extension of time is necessary
in order to hold a hearing, the Named Fiduciary shall give the Claimant written
notice of the extension of time and of the hearing.
(ii) The written notice of extension shall
indicate that an extension of time will occur in order to hold a hearing on
Claimant's appeal. The notice also shall specify the place, date, and time of
that hearing and the Claimant's opportunity to participate in the hearing. It
also may include any other information the Named Fiduciary believes relevant to
the Claimant's appeal.
F. The decision to hold a hearing to consider the Claimant's
appeal of the denied claim shall be within the sole discretion of the Named
Fiduciary, whether or not the Claimant requests such a hearing.
G. The Named Fiduciary's decision to review shall be made in
writing and provided to the Claimant within the specified time periods in
section 12(D), above. This written decision on review shall contain the
following information:
(1) the decision;
(2) the reasons for the decision; and
(3) specific references to the provisions of the Plan
upon which the decision is based.
12. Named Fiduciary. The Bank is the "Named Fiduciary" (as herein
referenced) under this Plan.
13. Amendment and Termination. The Board of Directors shall have the
right, in its sole discretion, to modify this Plan from time to time or to
terminate the Plan entirely; provided, however, that no such modification or
termination of the Plan shall divest any Beneficiary of benefits to which such
Beneficiary is entitled as of the date of such modification or termination. If
at any time the Federal income tax laws as applied to the Plan make the income
tax treatment of the Death Benefits substantially less favorable to the Bank
and/or a Director than is contemplated at the time this Plan is established,
then a majority of the members of the Board of Directors may, in their sole
discretion, terminate the Plan or direct the Committee to adjust the benefits
accordingly. The Committee may adjust Death Benefits payable pursuant to the
authority granted herein.
14. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Bank, its successors and assigns, and the Director and his
heirs and personal representatives.
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15. Successor Obligations. The Bank shall not merge or consolidate with
any bank or other third party ("entity"), or reorganize, unless and until such
succeeding or continuing entity agrees to assume and discharge the obligations
of the Bank under this Agreement.
16. Severability. If any provision of this Plan is construed by a court
or other tribunal of competent jurisdiction to be invalid, illegal or
unenforceable, then the remaining provisions hereof shall not be affected
thereby and shall be enforceable without regard thereto.
17. Headings. The headings and captions appearing in this document are
only for convenience only and are not intended to have substantive meaning.
18. Controlling Law. This Plan is made under, adopted and maintained
pursuant to and in accordance with the laws of the Commonwealth of Pennsylvania
applicable to agreements made and to be performed solely therein, except to the
extent that those laws are superseded by or are in conflict with the laws of the
United States of America.
19. Number and Gender. Regardless of the number and gender specifically
used, words used herein shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context requires.
20. Entire Plan. This document and the documents and instruments
executed pursuant hereto constitute the entire plan with respect to the subject
matter hereof and supersede all prior and contemporaneous agreements and
understandings, express or implied, oral or written, with respect to such
subject matter.
21. Effective Date. This Plan shall be effective as of the 1ST day of
January, 1990.
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