CAPITOL FEDERAL FINANCIAL
Deferred Incentive Bonus Plan
Amended and Restated To Comply
With
Section 409A of the Internal Revenue Code and
the Final Regulations Thereunder
Effective Date of Formal
Amendment and Restatement
January 1, 2009
CAPITOL FEDERAL FINANCIAL
Deferred Incentive Bonus Plan
Table of Contents
|
|
|
Page
|
|
ARTICLE I --
|
PURPOSE
|
1
|
|
|
|
|
|
ARTICLE II –
|
DEFINITIONS
|
1
|
|
|
|
|
|
ARTICLE III --
|
PARTICIPATION
|
3
|
|
|
|
|
|
ARTICLE IV --
|
DEFERRED ACCOUNTS
|
4
|
|
|
|
|
|
ARTICLE V --
|
BENEFITS
|
5
|
|
|
|
|
|
ARTICLE VI --
|
RESERVED
|
6
|
|
|
|
|
|
ARTICLE VII --
|
SOURCE OF BENEFITS
|
6
|
|
|
|
|
|
ARTICLE VIII --
|
ADMINISTRATION OF THIS PLAN
|
7
|
|
|
|
|
|
ARTICLE IX --
|
AMENDMENT
|
8
|
|
|
|
|
|
ARTICLE X --
|
TERMINATION
|
8
|
|
|
|
|
|
ARTICLE XI --
|
RESTRICTIONS ON ALIENATION OF
BENEFITS
|
9
|
|
|
|
|
|
ARTICLE XII --
|
CLAIMS PROCEDURE
|
10
|
|
|
|
|
|
ARTICLE XIII --
|
MISCELLANEOUS
|
11
|
CAPITOL FEDERAL FINANCIAL
Deferred Incentive Bonus Plan
W I T N E S S E T H: That;
WHEREAS, the Company maintains the Capitol
Federal Financial Deferred Incentive Bonus Plan (the
“Plan”) for the purpose of providing specified benefits
to Senior Managers of the Company who contribute to the continued
growth, development, and future business success of the Company;
and
WHEREAS, the Plan has been amended to comply
with the applicable requirements of Section 409A of the Internal
Revenue Code of 1986, as amended (“Section 409A”);
and
WHEREAS, the Plan must be amended to reflect
the final regulations that were subsequently issued under Section
409A; and
WHEREAS, the Company desires to amend and
restate the Plan on the terms and conditions set forth herein
in order to accomplish the foregoing ; and
WHEREAS, the Committee has reviewed the terms
and provisions hereof and approved the Plan, and such action by the
Committee has been ratified by the Board.
NOW, THEREFORE, the Company hereby amends and
restates the Plan on the terms and conditions set forth herein,
which Plan shall be known as the “Capitol Federal Financial
Deferred Incentive Bonus Plan.” The
effective date of this amended and restated version of the Plan is
January 1, 2009, although it is intended that the Plan be in
operational compliance with Section 409A as of January 1, 2005, to
the extent required by regulations and other guidance issued
thereunder.
ARTICLE I -- PURPOSE
Section 1.01. Purpose. The purpose of this Plan is to provide specified
benefits to Senior Managers of Capitol Federal Financial
(“CFF”) and Capitol Federal Savings Bank (collectively
the “Company”) who contribute to the continued growth,
development, and future business success of the Company. This
program shall be administered as an unfunded plan of deferred
compensation for income tax
purposes and shall be applicable solely to those Employees serving
in the job classification of Chairman, Chief Executive Officer,
President, Executive Vice-Presidents, and Senior Vice Presidents
(“Senior Managers”). This Plan is intended to operate
in conjunction with that certain Short Term Performance Plan
adopted by the Company effective October 1, 2005.
ARTICLE II -- DEFINITIONS
For purposes of this Plan, the following phrases
or terms shall have the indicated meanings unless otherwise clearly
apparent from the context. Capitalized terms not specifically
defined herein shall have the meanings set forth in the Short Term
Performance Plan.
“Affiliated Company(ies)”
means each entity that has a
relationship to the Company as described by Section 414(b) or (c)
of the Code.
“Approved Reason”
means a reason for a
Separation from Service with the Company which, in
the opinion of the Committee, is in the best interest of the
Company.
“Award” or “Performance
Award” means a lump
sum cash payment granted under the Plan to a Participant by the
Committee pursuant to such terms, conditions, restrictions and/or
limitations, if any, as the Committee may establish.
“Beneficiary or
Beneficiaries” means the person, persons, entity or entities
entitled to receive any benefits under this Plan pursuant to the
designation of the Participant (or in default of such designation)
as provided in Section 5.03 hereof.
“Board of Directors” or
“Board” means
the Board of Directors of Capitol Federal Financial.
|
|
|
the willful and continued failure by an Employee
to substantially perform his or her duties with his or her employer
after written warnings identifying the lack of substantial
performance are delivered to the Employee by his or her employer to
specifically identify the manner in which the employer believes
that the Employee has not substantially performed his or her
duties, or
|
|
|
|
the willful engaging by an Employee in illegal
conduct which is materially and demonstrably injurious to CFF or a
Subsidiary.
|
“Change In Control”
means the occurrence of any of the
following three events: (i) any third person, other than Capitol
Federal Savings Bank MHC, including a “group” as
defined in Section 13(d)(3) of the Exchange Act, shall become the
beneficial owner of shares of CFF with respect to which 25% or more
of the total number of votes for the election of the Board may be
cast, (ii) as a result of, or in connection with, any cash tender
offer, merger or other business combination, sale of assets or
contested election, or combination of the foregoing, the persons
who were Directors of CFF shall cease to constitute
a majority of the Board, or (iii) the
stockholders of CFF shall approve an agreement providing either for
a transaction in which CFF will cease to be an independent
publicly-owned corporation (whether in stand alone or mutual
holding company form) or for a sale or other disposition of all or
substantially all of the assets of CFF.
“Code” means the Internal Revenue Code of 1986, as
amended.
“Committee” means the Compensation Committee of the Board,
or such other Board committee as may be designated by the Board to
administer the Plan; provided, however, that the Committee shall
consist of an odd number of three or more Directors, each of whom
is a “Non-Employee Director” within the meaning of Rule
16b-3 under the Exchange Act, or any successor definition
adopted.
“Company” means Capitol Federal Financial and its wholly
owned subsidiary, Capitol Federal Savings Bank.
“Deferred Amount”
means that portion of a
Participant’s Performance Award, between $2,000 and 50% of
such Award up to but not exceeding $100,000, which the Participant
elects to defer under the terms of this Plan.
“Deferred Account” or
“Account” means the ledger entry established in accordance
with ARTICLE III, which entry shall represent the Company’s
unsecured and unfunded promise to pay the amount of benefits set
forth by such entry.
“Disability” means a disability under the terms of any
long-term disability plan maintained by the Company.
“Distribution Date”
means the January 25th next
following the last day of each Mandatory Deferral
Period.
“Employee” means a common law Employee of the Company paid
from the Company payroll account.
“Mandatory Deferral Period” means
the consecutive thirty-six month period beginning on the applicable
Award Payment Date and ending at midnight on the applicable
December 31st. For purposes of this definition,
the Award Payment Date shall be deemed to be the December 31
following the Performance Period to which the deferred Award under
the Short Term Performance Plan relates.
“Officer” means only those certain salaried Employees of
the Company who are administrative executives in continuous service
with the Company employed by the Company in one of the following
job classifications: Chairman, Chief Executive Officer, President,
Executive Vice-President, Senior Vice-President, First
Vice-President, Vice-President, Assistant Vice-President, and
Assistant Cashier.
“Participant”
means a common law Employee paid
from the Company payroll account who is an Officer classified as
Chairman, Chief Executive Officer, President, Executive
Vice-President, or Senior Vice-President and who has been
designated by the Committee as eligible to participate in this Plan
and who has satisfied all of the threshold eligibility criteria
applicable to this Plan.
“Plan” means the Capitol Federal Financial Deferred
Incentive Bonus Plan.
“Plan Year” means the Company fiscal year ending each
September 30th.
“Retirement” means, for all Plan purposes other than the
Plan’s change of control provision, a termination of
employment from the Company on or after attainment of age
65.
“Section 409A”
means Section 409A of the Code and
the regulations and guidance of general applicability issued
thereunder.
“Senior Manager”
means a Company Officer classified
as Chairman, Chief Executive Officer, President, Executive
Vice-President, or Senior Vice-President.
“Separation from Service”
means the termination of employment
with the Company and all Affiliated Companies. The term includes,
but is not limited to, termination of employment due to a
Participant’s death, Disability, Retirement, discharge (with
or without cause), or voluntary termination. The term shall not
include any temporary absences due to vacation, sickness, or other
leaves of absence granted to Participant by the Company. A
Separation from Service shall not be deemed to occur, however, upon
a transfer involving any combination of the Company and any
Affiliated Company. No termination of employment shall constitute a
“Separation from Service” unless the termination event
also constitutes a “separation from service” within the
meaning of Section 409A and the final regulations thereunder,
taking into account the rules and presumptions provided for
therein.
“Short Term Performance Plan” or
“STPP” means
the incentive bonus arrangement sponsored and maintained by the
Company for the benefit of eligible Officers. The Short Term
Performance Plan is incorporated herein by reference.
“Sole Discretion”
means the right and power to decide
a matter, which may be exercised arbitrarily at any time and from
time to time.
“Subsidiary” means a corporation or other business entity in
which CFF directly or indirectly has an ownership interest of 80
percent or more.
“Taxable Year”
means the 12-month period beginning
January 1.
ARTICLE III -- PARTICIPATION
Section 3.01. Eligibility.
In order to become a Participant in
this Plan and defer Performance Awards granted under the STPP under
this Plan, a Senior Manager must satisfy each of the following
conditions:
|
|
|
Participation In The STPP
. In order to be eligible for
participation in this Plan, a Senior Manager must be eligible for,
and an Active Participant in, the STPP.
|
|
|
|
Committee Designation. In addition to eligibility and participation in
the STPP, a Senior Manager must be specifically designated as
eligible to defer under this Plan. The Committee shall have the
unrestricted right and power, which may be exercised in its Sole
Discretion and at any time and from time to time, to designate
Senior Managers who are eligible to participate in this Plan. The
Committee also shall have the right, in its Sole Discretion, to
terminate an individual’s future participation in this Plan,
but only to the extent permitted by Section 409A. If an
individual’s participation in this Plan is terminated, the
Participant (or Participant’s Beneficiary) shall be entitled
to receive the Participant’s Account at the time and in the
manner determined under Article V.
|
|
|
|
Timely Deferral Election.
In addition to the criteria set
forth above, participation in this Plan shall only be possible if
the Senior Manager has timely executed and filed with the Committee
the appropriate deferral election forms. Deferral election forms
shall be considered timely filed only if they are properly
completed, executed, and filed with the Committee in accordance
with Committee rules and the provisions of Section 3.02.
|
Section 3.02. Incentive Bonus Deferral
Agreements. For each
Taxable Year (or portion of the Taxable Year after entry into the
Plan), each Participant may elect to execute a deferral election
agreement with respect to an Award at such time and in such form
and manner as the Committee may from time to time prescribe for
such purpose; provided, however, that in the case of a Senior
Manager newly eligible to participate in the Plan, the Committee
shall not prescribe a time later than 30 days after the date the
Senior Manager is first eligible to participate in this Plan for
such Senior Manager to make a deferral election for that taxable
year. Any such election by a Participant to reduce the
Participant’s compensation shall only apply to compensation
attributable to services to be performed by the Participant in a
Plan Year that commences after the date of the Participant’s
deferral election; provided, however, that in the case of an
election to defer any performance-based compensation (within the
meaning of Section 409A) payable with respect to services performed
over a period of at least 12 months, such election must be made no
later than 6 months before the end of such period. All
calculations of the dollar amount of an Award shall be determined
under the terms of the STPP.
The terms of any such deferral election
agreement shall provide that the Participant agrees to accept a
reduction in compensation from the Company with respect to an
Award. The agreement shall be irrevocable by the Participant
during the Plan Year in which the services are performed and each
subsequent Plan Year, unless the Participant enters into a new
agreement prior to the beginning of the Plan Year for which the
change is to be effective. All elections, including
modifications and revocation, shall be made upon such terms and
conditions and at such time and in such manner as the Committee may
from time to time determine in its Sole Discretion. The agreement
shall automatically terminate upon the termination of this Plan,
upon a Participant’s Separation from Service.
Section 3.03. Limitations on
Deferrals. Participants
may elect to defer amounts of not less than two thousand dollars
($2,000.00), up to an amount equal to fifty percent (50%) of the
Participant’s anticipated Performance Award for the upcoming
performance year; provided, however, that the amount of a single
deferral may not exceed one hundred thousand dollars ($100,000.00).
No deferred amount may be distributed or withdrawn except as
provided in Article V, and no deferral under the Plan shall
continue past the applicable Distribution Date.
ARTICLE IV -- DEFERRED ACCOUNTS
Section 4.01. Deferred Account.
The Deferred Amount described in
Section 3.03 above shall be credited to the Participant’s
Deferred Account.
|
|
|
To the extent the Company is required to
withhold any taxes or other amounts from the Deferred Amount
pursuant to any federal, state, or local law, such amounts shall be
taken out of the portion of the Participant’s Award or other
Compensation not deferred under this Plan.
|
|
|
|
The Company shall match each Deferred Amount by
an amount equal to 50% of such Deferred Amount; provided, however,
that such match shall be subject to forfeiture and shall be
forfeited if the Participant terminates service with the Company at
any time for
|
|
|
any reason, including death, Disability,
Retirement, or an Approved Reason, during the applicable Mandatory
Deferral Period.
|
Section 4.02. Vesting. Each Participant shall be fully vested in the
Participant’s Deferred Amount. However, Participants shall
only become vested in the Company matching amount (credited to the
Deferred Amount at the commencement of the Mandatory Deferral
Period) if the Participant remains continuously employed with the
Company during the Mandatory Deferral Period and is so employed on
the applicable Distribution Date.
Section 4.03. Increases to the
Account. The
Participant’s Deferred Account shall be increased by an
earnings factor. The earnings factor shall equal the amount that
the Participant’s Deferred Account would have increased if,
immediately following addition to the Account of the deemed Company
match, the Account had been invested in the common stock of Capitol
Federal Financial (“CFFN”) and that position had been
held through the last December 31st of the Mandatory Deferral
Period.
|
|
|
In order to establish an initial value for the
Account at the commencement of the Mandatory Deferral Period, the
Committee shall utilize the closing price of CFFN as of the
December 31st immediately preceding the applicable Award Payment
Date and shall deem the entire Account (including the forfeitable
Company match) to be 100% invested in CFFN at such price. If, as of
the December 31st immediately preceding the end of the Mandatory
Deferral Period, the closing market price for CFFN is greater than
the initial Value, the difference in value shall be converted to
cash, added to the Account and paid on the Distribution Date along
with the Deferred Amount, the Company match, and the Dividend
Equivalents.
|
|
|
|
The Committee shall credit the Account with an
amount appropriate to reflect dividends actually paid on Capitol
Federal Financial common stock during the Mandatory Deferral Period
(Dividend Equivalents). Dividend Equivalents shall be credited to
the Account as of the time dividends are actually paid on CFFN and
shall be treated as additional units of CFFN; provided, however,
that, notwithstanding anything hereinabove to the contrary,
Dividend Equivalents shall be valued and paid based only upon the
CFFN closing price as of the December 31st immediately preceding
the end of the Mandatory Deferral Period.
|
|
|
|
Notwithstanding anything to the contrary, the
Company shall not be obligated to acquire any interest in any fund
or investment option and any asset that may be acquired in order to
provide a means for payment of any liability shall remain the
property of the Company.
|
Section 4.04. Statement of Account.
The Committee shall submit to each
Participant, within 90 days after the close of each Plan Year, a
statement setting forth the balance to the credit of each
Participant of his or her Deferred Account.
ARTICLE V -- BENEFITS
Section 5.01. General. With respect to each Deferred Amount contributed
to a Participant’s Deferred Account hereunder, if the
Participant remains continuously employed by the Company during the
applicable Mandatory Deferral Period and is so employed on the
applicable Distribution Date, the portion of the
Participant’s Deferred Account attributable to such Deferred
Amount that the Participant is entitled to receive as of such
Distribution Date (including any earnings and/or Company match
credited to
the Participant’s Deferred Account with
respect to such Deferred Amount in accord