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
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Page
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ARTICLE I
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PURPOSE
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1
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ARTICLE II
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DEFINITIONS
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1
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ARTICLE III
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PARTICIPATION
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3
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ARTICLE IV
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DEFERRED
ACCOUNTS
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4
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ARTICLE V
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BENEFITS
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ARTICLE VI
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RESERVED
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6
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ARTICLE VII
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SOURCE OF
BENEFITS
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6
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ARTICLE VIII
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ADMINISTRATION
OF THIS PLAN
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7
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ARTICLE IX
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AMENDMENT
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8
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ARTICLE X
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TERMINATION
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ARTICLE XI
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RESTRICTIONS ON
ALIENATION OF BENEFITS
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ARTICLE XII
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CLAIMS
PROCEDURE
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10
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ARTICLE XIII
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MISCELLANEOUS
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11
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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.
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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
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the willful
engaging by an Employee in illegal conduct which is materially and
demonstrably injurious to CFF or a Subsidiary.
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“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 by the second business day
following the regularly scheduled January board meeting 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 31 st . 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, Senior Vice-President or First 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, Senior Vice-President or First
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:
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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.
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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.
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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.
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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. The Chairman, Chief Executive Officer,
President, Executive Vice-Presidents or Senior Vice-Presidents 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).
First Vice-Presidents may elect to defer amounts of not less than
two thousand dollars ($2,000.00), up to an amount equal to thirty
five percent (35%) 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.
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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.
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The Company
shall match each Deferred Amount by an amount equal to 50% of such
Deferred Amount for The Chairman, Chief Executive Officer,
President, Executive Vice-Presidents or Senior Vice-Presidents and
35% of such Deferred Amount for First-Vice-Presidents; 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.
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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.
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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.
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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.
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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.
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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