BYRON BANK
DEFERRED COMPENSATION PLAN FOR DIRECTORS
(Effective January 1, 2008)
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Prepared
by:
Miller, Johnson, Snell & Cummiskey, P.L.C.
250 Monroe Avenue, N.W., Suite 800
P.O. Box 306
Grand Rapids, MI 49501-0306
(616) 831-1700
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INDEX
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Page
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Article
1
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Establishment
and Purpose
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1
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1.1
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History and
Purpose
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1
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1.2
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This
Document
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1
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1.3
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Status of Plan
Under ERISA
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1
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1.4
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Compliance with
Section 409A
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1
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Article
2
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Definitions
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1
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2.1
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Account
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1
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2.2
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Beneficiary
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1
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2.3
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Board of
Directors
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2
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2.4
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Calendar
Year
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3
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2.5
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Change in
Control
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3
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2.6
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Company
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3
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2.7
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Deferred
Compensation Agreement
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3
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2.8
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Director
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3
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2.9
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Director's
Fee
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3
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2.10
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Distributable
Event
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3
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2.11
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Elective
Deferrals
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3
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2.12
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ERISA
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4
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2.13
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Life Insurance
Policy
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4
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2.14
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Participant
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4
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2.15
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Plan
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4
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2.16
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Plan
Administrator
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4
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2.17
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Separation from
Service
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4
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2.18
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Specified
Employee
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4
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Article
3
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Participation
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5
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Article
4
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Amounts
Credited to Accounts
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5
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4.1
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Participant's
Account
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5
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4.2
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Amounts
Credited Based Upon Elective Deferrals
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5
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4.3
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Amounts
Credited Based Upon Interest Income
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5
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4.4
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Vesting
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6
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Article
5
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Distribution of
Benefits
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6
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5.1
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Distributable
Events
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6
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5.2
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Benefit
Payments Under Section 5.1(a)
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6
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5.3
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Death
Benefits
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7
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-i-
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Page
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5.4
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Benefit
Payments After a Change in Control
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7
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5.5
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Tax
Withholding
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8
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5.6
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Spendthrift
Provision
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8
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5.7
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No Duplication
of Benefits
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8
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Article
6
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Funding
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8
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6.1
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Status of
Participants as Unsecured Creditors
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8
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6.2
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Pre-Funding of
Company's Obligations
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8
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Article
7
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Administration
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9
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7.1
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Plan
Administrator
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9
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7.2
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Delegation of
Duties
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9
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7.3
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Powers of Plan
Administrator
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9
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7.4
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Appeal
Procedure
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9
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Article
8
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Miscellaneous
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10
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8.1
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No Rights to
Continue as Board Member
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10
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8.2
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Amendment or
Termination
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10
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8.3
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Severability
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10
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8.4
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Binding
Effect
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10
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8.5
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Construction
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10
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8.6
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Governing
Law
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11
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11
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-ii-
BYRON BANK
DEFERRED COMPENSATION PLAN FOR DIRECTORS
_________________
Article 1
Establishment and Purpose
1.1 History and
Purpose
Byron
Bank (formerly known as Byron Center State Bank)
(“Company”) previously entered into Deferred
Compensation Agreements with some of its Directors. A Deferred
Compensation Agreement allowed a Director to defer all or part of
the annual retainer fee for serving as a Director.
1.2 This
Document
By
this document, the Company is adopting the Byron Bank Deferred
Compensation Plan for Directors effective January 1, 2008. The
Plan replaces the Deferred Compensation Agreements with the
individual Directors.
1.3 Status of Plan
Under ERISA
The
only Participants in the Plan are Directors. Each Director is
treated as a self-employed individual with regard to the
Director’s Fee paid to the Director. As a result, because the
Plan does not benefit “employees,” the Plan is not
subject to ERISA.
1.4 Compliance
with Section 409A
The
Plan provides deferred compensation under Section 409A of the Code
and is intended to be interpreted consistent with the requirements
of Section 409A of the Code.
Article 2
Definitions
The
following terms shall have the meanings described in this Article
unless the context clearly indicates another meaning. All
references in the Plan to specific articles or sections shall refer
to Articles or Sections of the Plan unless otherwise
stated.
2.1
Account
“Account”
means the bookkeeping record of the Participant’s benefits
under the terms of the Plan.
2.2
Beneficiary
“Beneficiary”
means the beneficiary designated in writing by the Participant to
receive benefits from the Plan in the event of his death. The
Beneficiary shall be designated on a form provided by the Plan
Administrator, and the Participant may change the Beneficiary
designation at any time by signing and delivering a new form to the
Plan Administrator.
If
the Participant designates a trust as Beneficiary, the Plan
Administrator shall determine the rights of the trustee without
responsibility for determining the validity, existence, or
provisions of the trust. Further, the Plan Administrator shall not
have responsibility for the application of sums paid to the trustee
or for the discharge of the trust.
If
a Participant designates the Participant’s spouse as
Beneficiary and the Participant and spouse are subsequently
divorced, the judgment of divorce shall be considered to revoke the
prior Beneficiary designation of the spouse.
The
rules of this paragraph apply unless provided otherwise in the
Participant’s Beneficiary designation form. If the
Participant designates one primary Beneficiary and the Beneficiary
dies after the Participant but before benefit payments are
completed, any remaining benefits shall be payable to the secondary
Beneficiary. If the Participant fails to designate a secondary
Beneficiary or if no secondary Beneficiary survives the primary
Beneficiary, any remaining benefits shall be payable to the
deceased primary Beneficiary’s heirs in the manner described
in the next paragraph. If the Participant designates more than one
primary Beneficiary or more than one secondary Beneficiary and a
Beneficiary dies before benefit payments are completed, the share
payable to the deceased Beneficiary shall be paid to the deceased
Beneficiary’s heirs in the manner described in the next
paragraph as if the Beneficiary was the Participant.
If
the Participant fails to designate a Beneficiary, or if no
designated Beneficiary survives the Participant, payment shall be
made in equal shares to the members of the first of the classes
listed below having a living member on the date the distribution is
payable. The classes, in order of priority, are as
follows:
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(a) The
Participant’s spouse;
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(b) The
Participant’s children (naturally, legally adopted or
children placed for adoption) or their then-living issue, by right
of representation; and
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(c) The legal
heirs of the Participant under the laws of the Participant’s
state of residence on the date of the Participant’s
death.
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The
facts shown by the records of the Plan Administrator at the time of
death shall be conclusive as to the identity of the proper payee,
and the records of Trustee shall be conclusive as to the amount
properly payable. The distribution made in accordance with such
state of facts shall constitute a complete discharge of all
obligations under the provisions of the Plan.
2.3 Board of
Directors
“Board
of Directors” means the Company’s board of
directors.
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2.4 Calendar
Year
“Calendar
Year” means the period of January 1 through the following
December 31.
2.5 Change in
Control
“Change
in Control” means any of the following types of “change
in control events” under Section 409A of the Code:
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(a)
A change in the
ownership of the Company; or
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(b)
A change in the
ownership of O.A.K. Financial Corporation, the parent company of
the Company.
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However, for purposes of this
Section, 75% shall be substituted for 50% in the definition of the
term "change in ownership" in Treas.
Reg.ss.1.409A-3(i)(5)(v).
2.6
Company
“Company”
means Byron Bank, a Michigan banking corporation.
2.7 Deferred
Compensation Agreement
“Deferred
Compensation Agreement” means a deferred compensation
agreement between a Director and the Company, as in effect before
the effective date of the Plan.
2.8
Director
“Director”
means a member of the Board of Directors or a former member of the
Board of Directors who has vested benefits under the
Plan.
2.9
Director’s Fee
“Director’s
Fee” means the annual retainer paid by the Company to a
Director for serving on the Board of Directors. The term
“Director’s Fee” does not include fees paid for
attending monthly meetings of the Board of Directors.
2.10 Distributable
Event
“Distributable
Event” means an event for which a distribution of benefits is
made under Section 5.1.
2.11 Elective
Deferrals
“Elective
Deferrals” means amounts deferred under Section 4.2 from the
Director’s Fee otherwise payable to a Participant.
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2.12
ERISA
“ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended.
2.13 Life
Insurance Policy
“Life
Insurance Policy” means, with regard to any Participant, the
life insurance policy (if any) purchased by the Company on the
Participant’s life to pre-fund the Company’s
obligations under the Plan.
2.14
Participant
“Participant”
means a Director who has vested benefits under the Plan.
2.15
Plan
“Plan”
means the Byron Bank Deferred Compensation Plan for
Directors.
2.16 Plan
Administrator
“Plan
Administrator” means the Company or the committee designated
by the Company as the Plan Administrator under Article
7.
2.17 Separation
from Service
“Separation
from Service” means a Participant’s “separation
from service” from the Company under Section 409A of the
Code. Generally, this occurs if all of the following requirements
are satisfied:
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(a) The
Participant ceases to be a member of the Company’s Board of
Directors and does not have an expectation of being
reappointed;
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(b) The
Participant does not have any other contract to provide services to
the Company or any expectation of a contract; and
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(c) The
Participant is not an employee of the Company.
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2.18 Specified
Employee
“Specified
Employee” means a Participant who is a “specified
employee” under Section 409A of the Code. Generally, this
occurs if the Participant is a “key
employee”