<PAGE>
As filed with the Securities and Exchange Commission on August 31, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
______________________
Form S-8
Registration Statement
Under
The Securities Act of 1933
______________________
Superior Financial Corp.
(Exact name of registrant as specified in its charter)
Delaware 51-0379417
(State of Incorporation) (I.R.S. Employer Identification No.)
5000 Rogers Avenue
Fort Smith, Arkansas 72903 (501) 484-4305
(Address of principal executive offices) (Telephone No.)
Superior Financial Corp. 401(k) Plan
(Full title of plan)
C. Stanley Bailey
Chief Executive Officer
Superior Financial Corp.
5000 Rogers Avenue
Fort Smith, Arkansas 72903
(501) 484-4305
(Name and Address of agent for service)
_______________
With a copy to:
Willard H. Henson
Miller, Hamilton, Snider & Odom, L.L.C.
One Commerce Street, Suite 305
Telephone: (334) 834-5550
Facsimile: (334) 265-4533
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title of Securities to be Amount to be Registered Prop. Max. Offering Price Prop. Max. Aggregate Amount of Fee
Registered Per Unit Offering Price
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par 100,000 (1) $12.05 (2) $1,205,000 (2) $334.99
value per share
- ------------------------------------------------------------------------------------------------------------------------------------
Interests in Plan (3) N/A (3) N/A N/A N/A (3)
====================================================================================================================================
</TABLE>
(1) Estimated maximum aggregate number of shares of Superior Financial Corp.
(the "Company") common stock purchasable with employee and employer
contributions under the Superior Financial Corp. 401(k) Plan (the "Plan")
during the next 36 months.
(2) Estimated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee at $12.05 per share, which was the
average of the closing bid and ask prices of the Company common stock on
August 27, 1999.
(3) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
In accordance with Rule 457(h)(2) no separate fee calculation is made for
plan interests.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the Plan as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10 (a) of the Securities Act.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents previously or concurrently filed by the Company
with the Commission are hereby incorporated by reference in this Registration
Statement and the prospectus to which this Registration Statement relates (the
"Prospectus"), which Prospectus has been or will be delivered to the
participants covered by this Registration Statement:
(a) The prospectus contained in the Company's Registration Statement on Form S-
1 filed on July 28, 1998 (Registration No. 333-60111), as amended by Pre-
Effective Amendment No. 1 to Form S-1 filed on August 25, 1998, Pre-
Effective Amendment No. 2 to Form S-1 filed on November 25, 1998, Pre-
Effective Amendment No. 3 to Form S-1 filed on December 8, 1998, and as
amended by Post-Effective Amendment No. 1 filed on March 29, 1999;
(b) All reports filed by the Company pursuant to Section 13(a) or 15(d) of the
Exchange Act through the date hereof; and
(c) The description of the common stock, par value $0.01 per share. of the
Company contained in the Company's Registration Statement on Form 8-A (File
No. 000-25239) filed with the Commission on January 5, 1999 and all
amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), after the date hereof, and prior to the filing of a post-effective
amendment which indicates that all securities offered have
1
<PAGE>
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and the
Prospectus and to be a part hereof and thereof from the date of filing of such
documents. Any statement contained in the documents incorporated, or deemed to
be incorporated, by reference herein or therein shall be deemed to be modified
or superseded for purposes of this Registration Statement and the Prospectus to
the extent that a statement contained herein or therein or in any other
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein or therein modifies or supercedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement and the
Prospectus.
The Company shall furnish without charge to each person to whom the Prospectus
is delivered, on written or oral request of such person, a copy of any or all of
the documents incorporated by reference, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference to the
information that is incorporated). Requests should be made to Rick Gardner,
Superior Financial Corp., 16101 LaGrande Drive, Suite 103, Little Rock, Arkansas
72223, telephone number (501) 324-7253.
All information appearing in this Registration Statement and the Prospectus is
qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article 10 of the Registrant's Certificate of Incorporation provides as
follows:
The corporation shall indemnify its directors, officers, employees and agents
to the full extent permitted under the Delaware General Corporation Law.
Article IX of the Registrant's Bylaws provides as follows:
1. Definitions. As used in this Section the following terms shall have the
-----------
meanings set out below:
(a) "Board" - the Board of Directors of the Corporation.
(b) "Claim" - any threatened or pending or completed claim, action, suit, or
proceeding, whether civil, criminal, administrative or investigative and whether
made judicially or extra-judicially, or any
2
<PAGE>
separate issue or matter therein, as the context requires.
(c) "Determining Body" - (i) those members of the Board who are not named as
parties to the Claim for which indemnification is being sought ("impartial
Directors"), if there are at least three Impartial Directors, or (ii) a
committee of at least three directors appointed by the Board (regardless whether
the members of the Board of Directors voting on such appointment are fewer than
three Impartial Directors or if the Board of Directors or the committee
appointed pursuant to clause (ii) of this paragraph so directs (regardless
whether the members thereof are Impartial Directors), independent legal counsel,
which may be the regular outside counsel of the Corporation.
(d) "Disbursing Officer" - the Chief Executive Officer of the Corporation or,
if the Chief Executive Officer is a party to the Claim for which indemnification
is being sought, any officer not a party to such Claim who is designated by the
Chief Executive Officer to be the Disbursing Officer with respect to
indemnification request related to the Claim, which designation shall be made
promptly after receipt of the initial request for indemnification with respect
to such Claim.
(e) "Expenses" - any expenses or costs (including, without limitation,
attorney's fees, judgements, punitive or exemplary damages, fines and amounts
paid in settlement).
(f) "Indemnitee" - each person who is or was a director or officer of the
Corporation or the spouse of such person.
2.Indemnity.
---------
(a) To the extent such Expenses exceed the sum or amounts paid or due under or
pursuant to (i) policies of liability insurance maintained by the Corporation,
(ii) policies of liability insurance maintained by or on behalf of the
Indemnitee, and (iii) provisions for indemnification in the by-laws, resolutions
or other instruments of any entity other than the Corporation, the Corporation
shall indemnify Indemnitee against any Expenses actually and reasonably incurred
by hm (as they are incurred) in connection with any Claim either against him or
as to which he is involved solely as a witness or person required to give
evidence, by reason of his position.
(i) as a director or officer of the Corporation,
(ii) as a director or officer of any subsidiary of the Corporation or as a
fiduciary with respect to any employee benefit plan of the Corporation,
(iii) as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other for profit or not for profit entity
or enterprise, if such position is or was held at the request of the
Corporation, or
(iv) as the spouse of any person who is or was a director or officer of the
Corporation with respect to any Claim involving the spouse arising by reason of
such person's position as described in clauses (i) , (ii) or (iii), whether
relating to service in such position before or after the effective date of this
Section, if he (i) is successful in his defense of the Claim on the merits or
otherwise or (ii) has been found by the Determining Body (acting in good faith)
to have met the Standard of Conduct; provided that (A) the amount otherwise
payable by the Corporation may be reduced by the Determining Body to such amount
as it deems proper if it determines that the Claim involved the receipt of a
personal benefit by Indemnitee, and (B) no indemnification shall be made in
respect of any Claim as to which Indemnitee shall have been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable for willful or intentional misconduct in the performance of his duty to
the Corporation or to have obtained an improper personal benefit, unless, and
only to the extent that, a court shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for
3
<PAGE>
such Expenses as the court deems proper.
(b) The Standard of Conduct is met when the conduct by an Indemnitee with
respect to which a Claim is asserted was conduct that he reasonably believed to
be in, or not opposed to, the best interest of the Corporation, and, in the case
of a criminal action or proceeding, that he had no reasonable cause to believe
was unlawful. The termination of any Claim by judgment, or order, settlement,
conviction, or upon a plea of nolo contendere or it equivalent, shall not, of
itself, create a presumption that Indemnitee did not meet the Standard of
Conduct.
(c) Promptly upon becoming aware of the existence of any Claim as to which he
may be indemnified hereunder, Indemnitee shall notify the Chief Executive
Officer of the Corporation of the Claim and whether he intends to seek
indemnification hereunder. If such notice indicates that Indemnitee does so
intend, the Chief Executive Officer shall promptly advise the Board thereof and
notify the Board that the establishment of the Determining Body with respect to
the Claim will be a matter presented at the next regularly scheduled meeting of
the Board. After the Determining Body has been established, the Chief Executive
Officer shall inform the Indemnitee thereof and Indemnitee shall immediately
provide the Determining Body with all facts relevant to the Claim known to him.
Within 60 days of the receipt of such information, together with such additional
information as the Determining Body may request of Indemnitee, the Determining
Body shall determine, and shall advise Indemnitee of its determination, whether
Indemnitee has met the Standard of Conduct. The Determining Body may extend
such 60 day period by no more than an additional 60 days.
(d) Indemnitee shall promptly inform the Determining Body upon his becoming
aware of any relevant facts not therefore provided by him to the Determining
Body, unless the Determining Body has obtained such facts by other means. If,
after determining that the Standard of Conduct has been met, the Determining
Body obtains facts of which it was not aware at the time it made such
determination, the Determining Body on its own motion, after notifying the
Indemnitee and providing him an opportunity to be heard, may, on the basis of
such facts, revoke such determination, provided that in the absence of actual
fraud by Indemnitee no such revocation may be made later than 30 days after
final disposition of the Claim.
(e) In the case of any Claim not involving a proposed, threatened or pending
criminal proceeding,
(i) If Indemnitee has, in the good faith judgment of the Determining Body,
met the Standard of Conduct, the Corporation may, in its sole discretion after
notice to Indemnitee, assume all responsibility for the defense of the Claim,
and, in any event, the Corporation and the Indemnitee each shall keep the other
informed as to the progress of the defense, including prompt disclosure of any
proposals for settlement; provided that if the Corporation is a party to the
Claim and Indemnitee reasonably determines that there is a conflict between the
positions of the Corporation and Indemnitee with respect to the Claim, then
Indemnitee shall be entitled to conduct his defense, with counsel of his choice;
and provided further that Indemnitee shall in any event be entitled at is
expense to employ counsel chosen by him to participate in the defense of the
Claim; and
(ii) The Corporation shall fairly consider any proposals by Indemnitee for
settlement of the Claim. If the Corporation (A) proposes a settlement
acceptable to the person asserting the Claim, or (B) believes a settlement
proposed by the person asserting the Claim should be accepted, it shall inform
Indemnitee of the terms thereof and shall fix a reasonable date by which
Indemnitee shall respond. If Indemnitee agrees to such terms, he shall execute
such documents as shall be necessary to effect the terms, he shall execute such
documents as shall be necessary to effect the settlement. If he does not agree
he may proceed with the defense of the Claim in any manner he chooses, but if he
is not successful on the merits or otherwise, the Corporation's obligation to
indemnify him for
4
<PAGE>
any Expenses incurred following his disagreement shall be limited to the lesser
of (A) the total Expenses incurred by him following his decision not to agree to
such proposed settlement or (B) the amount the Corporation would have paid
pursuant to the terms of the proposed settlement. If, however, the proposed
settlement would impose upon Indemnitee any requirement to act or refrain from
acting that would materially interfere with the conduct of his affairs,
Indemnitee may refuse such settlement and proceed with the defense of the Claim,
if he so desires, at the Corporation's expense without regard to the limitations
imposed by the preceding sentence. In no event, however, shall the Corporation
be obligated to indemnify Indemnitee for any amount paid in a settlement that
the Corporation has not approved.
(f) In the case of a Claim involving a proposed, threatened or pending
criminal proceeding, Indemnitee shall be entitled to conduct the defense of the
Claim, and to make all decisions with respect thereto, with counsel of his
choice; provided that the Corporation shall not be obligated to indemnify
Indemnitee for an amount paid in settlement that the Corporation has not
approved.
(g) After notifying the Corporation of the existence of a Claim, Indemnitee
may from time to time request the Corporation to pay the Expenses (other than
judgments, fines, penalties or amounts paid in settlement) that he incurs in
pursuing a defense of the Claim prior to the time that the Determining Body
determines whether the Standard of Conduct has been met. If the Disbursing
Officer believes the amount requested to be reasonable, he shall pay to
Indemnitee the amount requested (regardless of Indemnitee's apparent ability to
repay such amount) upon receipt of an undertaking by or on behalf of Indemnitee
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation under the circumstances. If the
Disbursing Officer does not believe such amount to be reasonable, the
Corporation shall pay the amount deemed by him to be reasonable and Indemnitee
may apply directly to the Determining Body for the remainder of the amount
requested.
(h) After it has been determined that the Standard of Conduct was met, for so
long as and to the extent that the Corporation is required to indemnify
Indemnitee under this Agreement, the provisions of Paragraph (g) shall continue
to apply with respect to Expenses incurred after such time, expect that (i) no
undertaking shall be required of Indemnitee and (ii) the Disbursing Officer
shall pay to Indemnitee such amount of any fines, penalties or judgments against
him which have become final as the Corporation is obligated to indemnify him.
(i) Any determination by the Corporation with respect to settlements of a
Claim shall be made by the Determining Body.
(j) The Corporation and Indemnitee shall keep confidential, to the extent
permitted by law and their fiduciary obligations, all facts and determinations
provided or made pursuant to or arising out of the operation of this Agreement,
and the Corporation and Indemnitee shall instruct it or his agents and employees
to do likewise.
3.Enforcement.
-----------
(a) The rights provided by this Section shall be enforceable by Indemnitee in
any court of competent jurisdiction.
(b) If Indemnitee seeks a judicial adjudication of his rights under this
Section, Indemnitee shall be entitled to recover from the Corporation, and shall
be indemnified by the Corporation against, any and all Expenses actually and
reasonably incurred by him in connection with such proceeding, but only if he
prevails therein. If it shall be determined that Indemnitee is entitled to
receive part but not all of the relief sought, then the Indemnitee shall be
entitled to be reimbursed for all Expenses incurred by him in connection with
such judicial adjudication if the amount to which he is
5
<PAGE>
determined to be entitled exceeds 50% of the amount of his claim. Otherwise, the
Expenses incurred by Indemnitee in connection with such judicial adjudication
shall be appropriately prorated.
(c) In any judicial proceeding described in this subsection, the Corporation
shall bear the burden of proving that Indemnitee is not entitled to any Expenses
sough with respect to any Claim.
4.Saving Clause. If any provision of this Section is determined by a court
-------------
having jurisdiction over the matter to require the Corporation to do or refrain
from doing any act that is in violation of applicable law, the court shall be
empowered to modify or reform such provision so that, as modified or reformed,
such provision provides the maximum indemnification permitted by law, and such
provision, as so modified or reformed, and the balance of this Section, shall be
applied in accordance with their terms. Without, the generality of the
foregoing, if any portion of this Section shall be invalidated on any ground,
the Corporation shall nevertheless indemnify an Indemnitee to the full extent
permitted by any applicable portion of this Section that shall not have been
invalidated and to the full extent permitted by law with respect to that portion
that has been invalidated.
5.Non-Exclusivity.
---------------
(a) The indemnification and advancement of Expenses provided by or granted
pursuant to this Section shall not be deemed exclusive of any other rights to
which Indemnitee is or may become entitled under any statue, article of
incorporation, by-law, authorization of shareholders or directors, agreement, or
otherwise.
(b) It is the intent of the Corporation by this Section to indemnify and hold
harmless Indemnitee to the full extent permitted by law, so that if applicable
law would permit the Corporation to provide broader indemnification rights that
are currently permitted, the Corporation shall indemnify and hold harmless
Indemnitee to the full extent permitted by applicable law notwithstanding that
the other terms of this Section would provide for lesser indemnification.
6.Successors and Assigns. This Section shall be binding upon the Corporation,
----------------------
its successors and assigns, and shall inure to the benefit of the Indemnitee's
heirs, personal representatives, and assigns and to the benefit of the
Corporation, its successors and assigns.
7.Indemnification of Other Persons.
--------------------------------
(a) The Corporation may indemnify any person not covered by Section 1 through
6 to the extent provided in a resolution of the Board or a separate Section of
these By-laws.
(b) Nothing in this Section 11 shall obligate the Corporation to indemnify or
advance expenses to any person who was a director, officer or agent of any
corporation merged into this Corporation or otherwise acquired by this
Corporation. Any such person's right to indemnification or advancement of
expenses, if any, shall consist of those rights contained in the agreement
relating to such merger or acquisition.
Section 145 of the General Corporation Law of the State of Delaware authorizes
a corporation's board of directors to grant indemnity under certain
circumstances to directors and officers, when made, or threatened to be made,
parties to certain proceedings by reason of such status with the corporation,
against judgments, fines, settlements and expenses, including attorneys' fees.
In addition, under certain circumstances such persons may be indemnified against
expenses actually and reasonably incurred in defense of a proceeding by or on
behalf of the corporation. Similarly,
6
<PAGE>
the corporation, under certain circumstances, is authorized to indemnify
directors and officers of other corporations or enterprises who are serving as
such at the request of the corporation, when such persons are made, or
threatened to be made, parties to certain proceedings by reason of such status,
against judgments, fines, settlements and expenses, including attorneys' fees;
and under certain circumstances, such persons may be indemnified against
expenses actually and reasonably incurred in connection with the defense or
settlement of a proceeding by or in the right of such other corporation or
enterprise. Indemnification is permitted where such person (i) was acting in
good faith, (ii) was acting in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation or other corporation or
enterprise, as appropriate, (iii) with respect to a criminal proceeding, had no
reasonable cause to believe his conduct was unlawful, and (iv) was not adjudged
to be liable to the corporation or other corporation or enterprise (unless the
court where the proceeding was brought determines that such person is fairly and
reasonably entitled to indemnity).
Unless ordered by a court, indemnification may be made only following a
determination that such indemnification is permissible because the person being
indemnified has met the requisite standard of conduct. Such determination may be
made (i) by the corporation's board of directors by a majority vote of a quorum
consisting of directors not at the time parties to such proceeding; or (ii) if
such a quorum cannot be obtained or the quorum so directs, then by independent
legal counsel in a written opinion; or (iii) by the stockholders.
Section 145 also permits expenses incurred by directors and officers in
defending a proceeding to be paid by the corporation in advance of the final
disposition of such proceedings upon the receipt of an undertaking by the
director or officer to repay such amount if it is ultimately determined that he
is not entitled to be indemnified by the corporation against such expenses.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
Regulation S-K
Exhibit No. Description
4 Instruments defining the rights of the security holders
4.1 Article 4 of the Amended and Restated Certificate
of Incorporation of Superior Financial Corp.
4.2 Summary Plan Description and Superior Financial
Corp. 401(k) Plan
7
<PAGE>
5 Opinion of Miller, Hamilton, Snider & Odom, L.L.C. as
to certain issues regarding the securities being
registered
23 Consents of Experts and Counsel
23.1 Consent of Ernst & Young LLP
23.2 Consent of Miller, Hamilton, Snider & Odom, L.L.C.,
contained in Exhibit 5
24 Power of Attorney, contained on Signature Page
Item 9. Undertakings.
-------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
-----------------
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant undertakes that, for purposes of determining
any liability under
8
<PAGE>
the Securities Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions summarized in Item 6 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Little Rock, Arkansas, on the 30th day of August,
1999.
SUPERIOR FINANCIAL CORP.
BY: /s/ C. Stanley Bailey
-------------------------------
C. Stanley Bailey
Its Chairman of the Board
of Directors and CEO
(Duly Authorized Representative)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
9
<PAGE>
constitutes and appoints C. Stanley Bailey and Rick D. Gardner, and each of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and re-substitution, for him in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement on Form S-8, and to file the same,
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming said attorney-in-
fact and agent or his substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ C. Stanley Bailey Chief Executive Officer and
- ---------------------------
C. Stanley Bailey Chairman of the Board **
/s/ C. Marvin Scott President and Director **
- ---------------------------
C. Marvin Scott
/s/ Rick D. Gardner Chief Financial Officer **
- ---------------------------
Rick D. Gardner
/s/ Boyd W. Hendrickson Director **
- ---------------------------
Boyd W. Hendrickson
/s/ David E. Stubblefield Director **
- ---------------------------
David E. Stubblefield
/s/ John M. Stein Director **
- ---------------------------
John M. Stein
</TABLE>
Director
- ---------------------------
Howard B. McMahon
** June 30, 1999
10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the trustee(s)
(or other persons who administer the employee benefit plan herein described)
have duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Little Rock, State of
Arkansas, on August 30, 1999.
Superior Financial Corp. 401(k) Plan
/s/ Rick D. Gardner
-----------------------------------
Rick D. Gardner
Administrator
Date: August 30, 1999
11
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
FORM S-8
Registration Statement
Under
The Securities Act of 1933
SUPERIOR FINANCIAL CORP.
(Exact name of registrant as specified in its charter)
12
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE
- ------- ----
4 Instruments defining the rights of the security holders
4.1 Article 4 of the Amended and Restated Certificate
of Incorporation of Superior Financial Corp.
4.2 Summary Plan Description and Superior Financial
Corp. 401(k) Plan
5 Opinion of Miller, Hamilton, Snider & Odom, L.L.C. as
to certain issues regarding the securities being
registered
23 Consents of Experts and Counsel
23.1 Consent of Ernst & Young LLP
23.2 Consent of Miller, Hamilton, Snider & Odom, L.L.C.,
contained in Exhibit 5
24 Power of Attorney, contained on Signature Page
13
<PAGE>
Exhibit 4.1
Article 4 of the Amended and Restated
Certificate of Incorporation of
Superior Financial Corp.
ARTICLE 4
The total number of shares of all classes of stock which the corporation shall
have authority to issue is 30,000,000 shares, of which 10,000,000 shares of the
par value of $0.01 per share are to be Preferred Stock (hereinafter called
"Preferred Stock") and 20,000,000 shares of the par value of $0.01 per share are
to be Common Stock (hereinafter sometimes called "Common Stock").
PART A
(1) The Preferred Stock may be issued in such one or more series as shall from
time to time be created and authorized to be issued by the board of directors as
hereinafter provided.
(2) The board of directors is hereby expressly authorized, by resolution or
resolutions from time to time adopted providing for the issuance of Preferred
Stock, to fix and state, to the extent not fixed by the provisions hereinafter
set forth, the designations, powers, preferences and relative, participating,
optional and other special rights of the shares of each series of Preferred
Stock, and the qualifications, limitations and restrictions thereof, including
(but, unless otherwise stated below, without limiting the generality of the
foregoing) any of the following with respect to which the board of directors
shall determine to make affirmative provisions:
(a) the distinctive name and serial designation;
(b) the annual dividend rate or rates and the dividend payment dates;
(c) whether dividends are to be cumulative or non-cumulative and the
participating or other special rights, if any, with respect to the payment
of dividends;
(d) whether any series shall be subject to redemption and, if so, the
manner of redemption and the redemption price or prices;
(e) the amount or amounts of preferential or other payments to which any
series is entitled over any other series or over the Common Stock on
voluntary liquidation, dissolution or winding up of the corporation;
(f) any sinking fund or other retirement provisions and the extent to
which the charges
1
<PAGE>
therefor are to have priority over the payment of dividends on or the
making of sinking fund or other like retirement provisions for shares of
any other series or other dividends on the Common Stock;
(g) any conversion, exchange, purchase or other privileges to acquire
shares of any other series or of the Common Stock;
(h) the number of shares of such series; and
(i) the voting rights, if any, of such series, including the right of
such Preferred Stock to class voting or the right to vote together with the
Common Stock, with such number of votes per share, or fractions of a share,
as shall be determined by the board of directors, on any matter to be
presented to the stockholders.
(3) Each share of each series of Preferred Stock shall have the same relative
rights and be identical in all respects with all the other shares of the same
series.
(4) Before the corporation shall issue any shares of Preferred Stock of any
series authorized as hereinbefore provided, a certificate setting forth a copy
of the resolution or resolutions with respect to such series adopted by the
board of directors of the corporation pursuant to the foregoing authority vested
in the board of directors shall be made, filed and recorded in accordance with
the then applicable requirements, if any, of the laws of the State of Delaware,
or, if no certificate is then so required, such certificate shall be signed and
acknowledged on behalf of the corporation by its Chairman of the Board of
Directors, President or a Vice-President and its corporate seal shall be affixed
thereto and attested by its Secretary or an Assistant Secretary and such
certificate shall be filed and kept on file at the principal office of the
corporation in the State of Delaware and in such other places as the board of
directors shall designate.
(5) Shares of any series of Preferred Stock which shall be issued and
thereafter acquired by the corporation through purchase, redemption, conversion
or otherwise may, by resolution or resolutions of the board of directors, be
returned to the status of authorized but unissued Preferred Stock of the same
series. Unless otherwise provided in the resolution or resolutions of the board
of directors providing for the issue thereof, the number of authorized shares of
Preferred Stock of any such series may be increased or decreased (but not below
the number of shares thereof then outstanding) by resolution or resolutions of
the board of directors and the filing of a certificate complying with the
foregoing requirements. In case the number of shares of any such series of
Preferred Stock shall be decreased, the shares representing such decrease shall,
unless otherwise provided in the resolution or resolutions of the board of
directors providing for the issuance thereof resume the status of authorized but
unissued Preferred Stock, undesignated as to series.
PART B
(1) No holder of any of the shares of the Common Stock or the Preferred Stock,
or any series
2
<PAGE>
thereof, of the corporation shall be entitled as of right to purchase or
subscribe for any unissued shares of any such stock or series or of any
additional shares of any class of stock or series to be issued by reason of any
increase in the authorized capital stock of the corporation of any class, or
bonds, certificates of indebtedness, debentures or other securities convertible
into stock of any class or series of the corporation, or carrying any rights to
purchase stock of any class or series, but any such unissued or such additional
authorized issue of any stock of any class or series, or other securities
convertible into any stock of any class or series, or carrying any right to
purchase any stock of any class or series, may be issued and disposed of
pursuant to resolution of the board of directors of the corporation to such
persons, firms, corporations or associations, upon such terms, as may be deemed
advisable by the board of directors of the corporation in the exercise of its
discretion. The corporation may from time to time issue its shares of stock of
any class or series for such consideration as may be fixed from time to time by
the board of directors and may receive in payment thereof, in whole or in part,
cash, labor done, personal property or real property, whether tangible or
intangible, or interests therein or leases thereof. In the absence of actual
fraud in the transaction the judgment of the board of directors as to the value
of such labor, personal property, real property or interests therein or leases
thereof shall be conclusive. Any and all shares so issued for which the
consideration so fixed shall have been paid or delivered shall be deemed fully
paid stock and shall not be liable to any further call or assessment thereon,
and the holders of such shares shall not be liable for any further payment in
respect thereof.
(2) The authority of the board of directors to provide for the issuance of
shares of the Common Stock, and one or more series of the Preferred Stock, shall
include, but shall not be limited to, authority to issue shares of the Common
Stock and shares of any series of the Preferred Stock in any manner (including
issuance pursuant to rights, warrants or other options) and for any purpose
permitted by law, including for delivery as all or part of the consideration for
or in connection with the acquisition of all or part of the stock of another
corporation or of all or part of the assets of another corporation or
enterprise, irrespective of the amount by which the issuance of such stock shall
increase the number of shares outstanding (but not in excess of the number of
shares authorized).
PART C
(1) Voting. Except as may be provided otherwise in this Restated Certificate
------
of Incorporation, at all meetings of stockholders of the corporation, each
holder of record of Common Stock shall be entitled to one vote for each share of
Common Stock held. Holders of Preferred Stock shall have such voting rights, if
any, as are designated by the board of directors of the corporation in
accordance with Article 4, Part A hereof.
(2) Dividends. Subject to Article 4, Part A hereof, dividends (payable in
---------
cash, shares or otherwise) may be paid on the Common Stock in such amounts and
at such times as the board of directors of the corporation may determine in
accordance with the Delaware General Corporation Law.
3
<PAGE>
EXHIBIT 4.2
Superior Financial Corp. 401(k) Plan
SUMMARY PLAN DESCRIPTION
April 1, 1998
1
<PAGE>
SUMMARY PLAN DESCRIPTION
- ------------------------
TABLE OF CONTENTS
- -----------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
I. INTRODUCTION 1
II. PLAN DATA 1
---------
Agent For Service Of Legal Process 1
Effective Date 1
Employer 1
Plan Administrator 1
Plan Year 1
Trustee 1
Type of Administration 1
Type of Plan 1
III. DEFINITIONS
-----------
Allocation Date(s) 2
Break in Service 2
Compensation 2
Disability 2
Effective Date 2
Elective Deferral 2
Entry Date 2
Family Member 2
Highly Compensated Employee 3
Hour of Service 3
Maternity/Paternity Leave 3
Normal Retirement Age 3
Spouse 3
Year of Service 4
IV. ELIGIBILITY REQUIREMENTS AND PARTICIPATION 4
------------------------------------------
V. EMPLOYEE CONTRIBUTIONS 5
----------------------
Elective Deferrals 5
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
VI. EMPLOYER CONTRIBUTION 5
---------------------
Contribution Formula 5
Eligibility For Allocation 6
VII. GOVERNMENT REGULATION 6
VIII. PARTICIPANT ACCOUNTS 7
IX. VESTING 7
-------
Determining Vested Benefit 7
Payment Of Vested Benefit 8
Loss of Benefits 8
Timing of Forfeitures 8
Reemployment 8
X. TOP-HEAVY RULES 9
---------------
XI. RETIREMENT BENEFITS AND DISTRIBUTIONS 10
-------------------------------------
Retirement Benefits 10
Distributions During Employment 10
Hardship Withdrawals 10
Beneficiary 11
Death Benefits 11
Form of Payment 11
Rollover of Payment 11
Time Of Payment 12
XII. INVESTMENTS 12
-----------
Alternative Investments/Investment Direction Under A Trust Fund 12
Investment Responsibility 13
Employee Investment Direction 13
XIII. ADMINISTRATION 13
--------------
Plan Administrator 13
Trustee 14
Recordkeeper 14
XIV. AMENDMENT AND TERMINATION 14
-------------------------
</TABLE>
3
<PAGE>
<TABLE>
<S> <C>
XV. LEGAL PROVISIONS 15
----------------
Rights Of Participants 15
Fiduciary Responsibility 15
Employment Rights 16
Benefit Insurance 16
Claims Procedure 16
Assignment 16
Questions 16
Conflicts With Plan 17
</TABLE>
I INTRODUCTION
------------
Your Employer has established a retirement plan to help
supplement your retirement income. Under the program, the
Employer makes contributions to a Trust Fund which will pay you a
benefit at retirement. Details about how the Plan works are
contained in this summary. While the summary describes the
principal provisions of the Plan, it does not include every
limitation or detail. If there is a discrepancy between this
booklet and the official Plan document, the Plan document shall
govern. You may obtain a copy of the Plan document from the Plan
Administrator. The Plan Administrator may charge a reasonable fee
for providing you with the copy.
II PLAN DATA
---------
A. Agent For Service Of Legal Process: The Employer or the
Trustee
B. Effective Date: April 1, 1998
C. Employer:
Address: Superior Financial Corp.
5000 Rogers Avenue
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<PAGE>
Fort Smith, AR 72903
Telephone No.: (501) 484-4280
Tax I.D. No.: 51-0379417
Plan No.: 001
D. Plan Administrator: The Employer is the Plan Administrator.
The Employer has designated the following individual(s) to
serve as correspondent:
Rick D. Gardner
E. Plan Year: The 12-month period beginning on January 1 and
ending on December 31. A short Plan Year shall begin on
April 1, 1998 and end on December 31, 1998. Thereafter, the
Plan year shall be the 12-month period ending on December
31.
F. Trustee: Capital Guardian Trust Company
Address: P.O. Box 2226
Brea, CA 92622-2226
Telephone No.: (714) 671-7000
G. Type of Administration: Trust Fund
H. Type of Plan: Cash or Deferred Profit-Sharing Plan
III DEFINITIONS
-----------
A. Allocation Date(s). The date(s) on which a Participant's
account is adjusted to reflect increases and decreases in
the value. This Plan will use monthly Allocation Dates.
B. Break In Service. A Plan Year during which you are not
credited with or are not paid for more than 500 hours. If
you
5
<PAGE>
go into the military service of the United States, you are not
considered terminated as long as you return to work within the time
required by law. If you separate from employment and incur a Break in
Service, all contributions to your various accounts are suspended.
[See special rules relating to maternity and paternity leave below.
Also, see Section VI(B) to determine your eligibility to share in the
Employer's Contribution if you separate from employment, but do not
incur a Break in Service.] If a Break in Service occurs and you return
to full time employment with the Employer, your rights are explained
in the section entitled "Vesting".
C. Compensation. Your total salary, pay, or earned income from the
Employer, as reflected on tax Form W-2, which is subject to
withholding when earned. Compensation will include amounts received by
you during the Plan Year. Compensation shall be limited to
Compensation earned while a Participant.
Compensation shall include amounts deferred under 401(k) plans and
Section 125 cafeteria plans. Compensation shall be limited to $150,000
as adjusted for inflation (for example, in 1998, the annual limit was
$160,000).
D. Disability. A potentially permanent illness or injury, as certified to
by a physician who is approved by the Employer, which prevents you
from engaging in work for which you are qualified for a period of at
least 12 months.
E. Effective Date. The date on which the Plan starts or an amendment is
effective.
F. Elective Deferral. Employer contributions made to the Plan at your
election, instead of being given to you in cash as part of your
salary. You can elect to defer a portion of your salary, instead of
receiving it in cash, and your Employer will contribute it to the Plan
on your behalf.
G. Entry Date. The date on which you enter the Plan. Your
6
<PAGE>
Entry Date will be the earlier of the first day of the Plan Year or
the first day of the seventh month of the Plan Year coinciding with or
following the date on which you satisfy the eligibility requirements.
H. Family Member. The Spouse or lineal ascendant or descendant (or Spouse
thereof) of either a more than 5% owner of the Employer or one of the
ten highest compensated Highly Compensated Employees of the Employer.
I. Highly Compensated Employee. Any Employee who during the current or
prior Plan Year (1) was a more than 5% owner, (2) received more than
$75,000 in Compensation, as adjusted for inflation (3) received more
than $50,000 in Compensation, as adjusted for inflation, and was in
the top 20% of Employees when ranked by Compensation, or (4) was an
officer receiving more than $45,000 in Compensation as adjusted for
inflation. Family Members of any 5% owner, or Highly Compensated
Employee in the group of the ten Employees with the greatest
Compensation, will be combined as if they were one person for purposes
of Compensation and contributions. If you are not currently or never
were Highly Compensated, or a Family Member of a Highly Compensated
Employee, you are a non-Highly Compensated Employee.
I. Hour Of Service. You will receive credit for each hour you are (1)
paid for being on your job, (2) paid even if you are not at work
(vacation, sickness, leave of absence, or Disability), or (3) paid for
back pay if hours were not already counted. A maximum of 501 hours
will be credited in any year for periods during which you are not at
work but are paid. Hours of Service will be calculated based on actual
hours. For employees of Superior Federal Bank, FSB, Hours of Service
with Nationsbank earned through March 31, 1998 are included for
eligibility and vesting in this Plan.
J. Maternity/Paternity Leave. You may be eligible for additional Hours of
Service if you leave employment, even if
7
<PAGE>
temporarily, due to childbirth or adoption. If this is the case, you
will be credited with enough hours (up to 501) of service to prevent a
Break in Service, either in the year you leave employment or the
following year. For example, if you have 750 Hours of Service in the
year that your child is born, you would not get any more hours
credited for that Plan Year since you do have a Break in Service.
Therefore, if you do not return to employment the following year, you
will get 501 Hours of Service so you will not have a Break in Service
in that year. Alternatively, if you do return the following year, but
work only 300 hours, you will receive an additional 201 hours in order
to prevent a break. These Hours of Service for maternity or paternity
leave must all be used in one Plan Year. They are used only to prevent
a Break in Service and not for calculating your Years of Service for
eligibility, vesting or benefits.
L. Normal Retirement Age. The attainment of age 65.
M. Spouse. The person to whom you are or were legally married, or your
common law spouse if common law marriage is recognized by the state in
which you live. In order for your Spouse to receive a benefit under
this Plan, he or she may not predecease you. A former spouse may be
treated as a "Spouse" under this definition if recognized as such
under a Qualified Domestic Relations Order as explained at Section
XV(F) of this Summary Plan Description.
N. Year of Service.
Eligibility:
------------
For purposes of determining your eligibility to participate in the
Plan, a Year of Service is a 12-consecutive month period beginning on
your date of hire during which you are credited with at least 1,000
Hours of Service.
Contribution:
-------------
8
<PAGE>
For purposes of determining whether or not you are entitled to have a
contribution allocated to your account, a Year of Service is a 12-
consecutive month period, which is the same as the Plan Year, during
which you are credited with at least 501 Hours of Service.
Vesting:
--------
For purposes of determining the extent to which you are vested in your
account balance, a Year of Service is a 12-consecutive month period,
which is the same as the Plan Year, during which you are credited with
1,000 Hours of Service.
IV. ELIGIBILITY REQUIREMENTS AND PARTICIPATION
------------------------------------------
Age Requirement
You are required to attain age 21 in order to be eligible for Plan
participation.
Service Requirement
You are eligible to participate in this Plan upon completing one Year
of Service. You are considered to have completed 1 Year of Service for
purposes of eligibility on the anniversary of your first day of
employment, provided that you worked at least 1,000 hours during that
12-month period. The second and subsequent measuring periods, if
applicable, shall be the Plan Year.
Additional Requirements
The plan will not cover Employees covered by a collective bargaining
agreement or Employees who are non-resident aliens who receive no U.S.
earned income from the Employer.
Your participation in the Plan will begin on the Entry Date defined at
Section III. If you are employed on the Plan's
9
<PAGE>
Effective Date, you do have to satisfy the eligibility requirements
specified above to enter the Plan on the Effective Date.
V EMPLOYEE CONTRIBUTIONS
----------------------
A. Elective Deferrals
As an eligible Employee, you may authorize the Employer to withhold
from 1% up to 15% of your Compensation, not to exceed $7,000 as
adjusted for inflation (for example, in 1998, the annual limit was
$10,000), and to deposit such amount in the Plan Trust Fund. I you
participate in a similar plan of an unrelated employer and your
Elective Deferrals under this Plan and the other plan exceed the
$7,000 limit for a given year, you must designate one of the Plans as
receiving an excess amount. If you choose this Plan as the one
receiving the excess, you must notify the Plan Administrator by March
1 of the following year so that the excess and any income thereon may
be returned to you by April 15. You may increase, decrease, or
terminate your Elective Deferral percentage on the first day of each
month.
If you stop your contributions, you may not start deferring again for
a period of 1 month. The Employer may also reduce or terminate your
contributions if required to maintain the Plan's qualified status.
VI EMPLOYER CONTRIBUTIONS
----------------------
A. Contribution Formula
Elective Deferrals:
------------------
The Employer will contribute all Compensation which you elect to defer
to the Plan within the limit outlined in Section V(A).
10
<PAGE>
Matching Contributions:
----------------------
The Employer may make a Matching Contribution to each Participant
based on his or her Elective Deferrals in a percentage set by the
Employer prior to the end of each Plan Year. The Employer shall not
match your Elective Deferrals that are in excess of 6% of your
Compensation.
The time period which will be used for determining the amount of
Matching Contributions owed shall be annually.
The Employer has the right to designate all or a portion of the
Matching Contributions as "Qualified". To the extent Matching
Contributions are so designated, they are nonforfeitable and may not
be withdrawn from the Plan prior to separation from Service or
attainment of age 59 1/2 .
Employer Matching Contributions will only be made on Elective
Deferrals made to the Plan.
Qualified Non-Elective Contributions:
------------------------------------
The Employer may also contribute an additional amount determined in
its sole judgement. This additional contribution, if any, will be
allocated to only non-Highly Compensated Participants, in proportion
to each eligible Employee's Compensation as a ratio of all eligible
Employees' Compensation. These Contributions will be nonforteitable
and subject to withdrawal restrictions.
B. Eligibility For Allocation
For plan years beginning in 1993 and thereafter, Employer-related
contribution, except Matching Contributions, will be allocated among
all Participants who are employed at the end of the Plan Year, without
regard to the number of Hours of Service completed. The Employer shall
also make a
11
<PAGE>
contribution for each Participant who separated from employment during
the Plan Year as long as the Participant completed more than 500 Hours
of Service during that Plan Year. The employer shall allocate a
contribution for each Participant who separated from employment during
the Plan Year without accruing the necessary 501 Hours of Service, if
the Participant terminated as a result of:
. retirement.
. Disability.
. death.
Matching contributions will be allocated to each Participant without
regard to whether he or she is employed on the last day of the Plan
Year and without regard to his or her Hours of Service.
VII GOVERNMENT REGULATIONS
----------------------
The federal government sets certain limitations on the level of
contributions which may be made to a Plan such as this. There is also
a "percentage" limitation which means that the percentage of
Compensation which you may contribute (both Elective Deferrals and, if
applicable, Voluntary Contributions) depends on the average percentage
of Compensation that the other Participants are contributing. Simply
stated, all Participants are divided into 2 categories: Highly
Compensated and non-Highly Compensated. The average contribution for
each group are calculated and compared. If a Highly Compensated
Participant is contributing more than he or she is allowed, the excess
plus or minus any gain or loss will be returned. Keep in mind that if
you are a 5% owner of the business or one of the ten highest paid
Highly Compensated employees, you will be combined with your Family
Members for the purpose of calculating such percentages.
12
<PAGE>
VIII PARTICIPANT ACCOUNTS
--------------------
The Employer will set up a recordkeeping account in your name to show the
value of your retirement benefit. The Employer will make the following
additions to your account:
A. your allocated share of the Employer's Contribution (including your
Elective Deferrals), and
B. your share of investment earnings and appreciation in the value of
investments.
The Employer will make the following subtractions from your account:
C. any withdrawals or distributions made to you, and
D. your share of investment losses and depreciation in the value of
investments.
E. your share of administrative fees and expenses paid out of the Plan,
if applicable.
The Employer will value your account daily and will provide you with a
statement of account activity at least once annually.
IX VESTING
-------
A. Determining Vested Benefit
Vesting refers to your earning or acquiring a nonforfeitable right to
the full amount of your account. Any Elective Deferrals, Qualified
Non-Elective Contributions, Qualified Matching Contributions, plus or
minus any earnings or losses, are always 100% vested and cannot be
forfeited for any reason. Any contribution not listed in the previous
sentence, and the earnings or losses thereon, will vest in accordance
with the following table:
13
<PAGE>
Years of Service
--------------------------------
1 2 3 4
- - - -
25% 50% 75% 100%
You are considered to have completed 1 Year of Service for purposes of
vesting upon the completion of 1,000 Hours of Service at any time
during a Plan Year.
You automatically become fully vested, regardless of the vesting
table, upon attainment of Normal Retirement Age, upon retirement due
to Disability, upon death, and upon termination of the Plan.
B. Payment of Vested Benefit
If you separate from Service before your retirement, death or
Disability, you may request early payment of your vested benefit by
submitting a written request to the Plan Administrator. If your vested
account balance at the time of termination or at the time of any prior
distributions exceeds or exceeded $3,500, you may defer the payment of
your benefit until April 1 of the calendar year following the calendar
year during which you attain 70- 1/2. The Employer will immediately
pay any vested benefit not in excess of $3,500. The portion of your
account balance to which you are not vested, is called a "forfeiture"
and remains in the Plan to reduce the Employer's Contribution for the
year.
C. Loss of Benefits
There are only two events which can cause loss of all or a portion of
your account. One is termination of employment before you are 100%
vested according to the vesting provisions described at IX(A) and the
other is a decrease in the value of your account from investment
losses or administrative expenses and other costs of maintaining the
Plan.
14
<PAGE>
D. Timing of Forfeitures
Forfeitures will be applied to reduce the Employer's contribution at
the end of the Plan Year during which you incur your fifth consecutive
1-year Breaks in Service, unless you receive a distribution of the
vested portion of your account(s) prior to that period. In such a
case, forfeitures will be applied to reduce the Employer's
contribution at the end of the Plan Year following distribution.
E. Reemployment
If you terminate service with your Employer, then later become
reemployed, you will become a Participant as of the next Entry Date
[see Section III] upon returning to employment. If you are not a
member of an eligible class and later become a member of the eligible
class, you shall participate immediately if you have satisfied the
minimum age and service requirements. Should you become ineligible to
participate because you are no longer a member of an eligible class,
you shall participate upon your return to an eligible class. All years
of prior Service will be counted when calculating your vested
percentage in your new account balance. The following rules apply in
connection with reemployed Participants.
(a) Terminated Partially Vested Participants. If you terminate
employment and receive payment of your partially vested interest
and are reemployed prior to incurring five consecutive one-year
Breaks in Service, you have the right to buy back the non vested
portion of your account if it was forfeited. If your non vested
balance was not forfeited it will still be part of your account
and the buy back is not necessary. If a buy back is necessary to
regain the forfeiture, you must redeposit the amount paid to you
without interest within five years of your date of reemployment.
If you do not repay the amount you received, the nonvested
portion of your Employer account will be permanently forfeited.
15
<PAGE>
Whether you repay or not, your prior Service will count toward
vesting service for future Employer contributions.
For example, assume that you quit your job with your current
Employer. At the time of termination you had completed four Years
of Service and had accrued a total benefit of $10,000 under the
retirement plan. Although this amount had been allocated to your
account, you were only 40% vested in that amount when you left.
You decided to take a distribution of your vested account balance
(40% of $10,000, or $4,000) when you quit. The nonvested balance
of your account ($6,000) was forfeited. Three years later, you
became reemployed by the same Employer. Since you were reemployed
within 5 years, you have the right to repay the $4,000
distribution you received when you quit. You would have to repay
the $4,000 within 5 years of being rehired. If you do so, the
nonvested portion of your account ($6,000) which was forfeited
when you left will be restored to your account. After
restoration, you will be vested in 40% of this account, but your
vested percentage will increase based on your Years of Service
after your reemployment. Your prior Service will always count
------
towards vesting of Employer Contributions which you will receive
after reemployment, whether or not you decide to repay and
restore your prior account.
(b) Terminated Non-Vested Participants. If you were not vested in any
portion of your Employer Contribution account prior to your
separation from service and are reemployed before incurring five
consecutive one-year Breaks in Service, you will be credited for
vesting with all pre-break and post-break service. Your prior
account balance will automatically be restored and will continue
to vest in that account. If you are reemployed after incurring
five consecutive one-year Breaks in Service,
16
<PAGE>
you will lose your prior account balance, but your pre-break
Years of Service will count towards vesting, in your new account
balance.
X TOP-HEAVY RULES
---------------
A "top-heavy" plan is one in which more than 60% of the contributions or
benefits are attributable to certain "key employees", such as owners,
officers and stockholders. The Plan Administrator is responsible for
determining each year if the Plan is "top-heavy". If the Plan becomes top-
heavy, special rules apply to the allocation of the Employer's
contribution. These special rules require that all Participants receive an
allocation of the Employer's contribution equal to 3% of Compensation, or
if less, the greatest percentage allocated to the account of any key
employee. All participants are entitled to receive a minimum allocation
upon completing at least one Hour of Service in the top-heavy Plan Year
provided they are employed on the last day of the Plan Year. The Employer's
minimum contribution can be satisfied by another Employer sponsored
retirement plan, if so elected by the Employer.
XI RETIREMENT BENEFITS AND DISTRIBUTIONS
-------------------------------------
A. Retirement Benefits
The full value of your account balance is payable at your Normal
Retirement Age, even if you continue to work, or you may defer payment
until April 1 following the year you reach age 70- 1/2 . If you work
beyond your Normal Retirement Age, you will continue to fully
participate in the Plan.
B. Distributions During Employment
Upon the attainment of age 59- 1/2, benefits attributable to Employer
contributions, allocated to your account(s), are available for
withdrawal.
If applicable, benefits attributable to your Voluntary
17
<PAGE>
Contributions under the Plan plus any rollovers are available for
withdrawal upon request to the Plan Administrator. Transfer Contributions
may be withdrawn only if they originate from plans meeting certain safe
harbor provisions.
C. Hardship Withdrawals
You may file a written request for a hardship withdrawal of the portion of
your account balance attributable to Elective Deferrals and certain
Employer Contributions to the extent vested. Earnings on Elective Deferrals
up to the last day of the Plan Year prior to July 1, 1989 may be included
in any hardship withdrawal, but earning on Elective Deferrals after that
date may not be included. You must generally have your Spouse's written
consent for a hardship withdrawal unless you are advised otherwise by the
Plan Administrator. Prior to receiving a hardship distribution, you must
take any other distribution and borrow the maximum non-taxable loan amount
allowed under this and other plans of the Employer. Note, however, that if
the effect of the loan would be to increase the amount of your financial
need, you are not required to take the loan. For example, if you need funds
to purchase a principal residence, and a plan loan would disqualify you
from obtaining other necessary financing, you do not have to take the loan.
Hardship withdrawals may be authorized by the Employer for the following
reasons:
(a) to assist you in purchasing a personal residence which is your primary
place of residence (not including mortgage payments),
(b) to assist you in paying tuition expenses for you, your Spouse, or your
dependents, for the next twelve months of post-secondary education,
(c) to assist you in paying certain expenses incurred or necessary on
behalf of you, your Spouse, or your dependents for hospitalization,
doctor or surgery
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<PAGE>
expenses which are not covered by insurance, or
(d) to prevent your eviction from or foreclosure on your principal
residence.
Any hardship distribution is limited to the amount needed to meet the
financial need. Hardship withdrawals must be approved by the Employer and
will be administered in a non-discriminatory manner. Such withdrawals will
not affect your eligibility to continue to participate in Employer
Contributions to the Plan. Your right to make Voluntary Contributions and
Elective Deferrals will be suspended for twelve months. Any withdrawals
you receive under these rules may not be recontributed to the Plan and may
be subject to taxation, as well as an additional 10% penalty tax is the
withdrawal is received before you reach age 59- 1/2. These payments shall
also be subject to a mandatory 20% withholding for income tax purposes.
D. Beneficiary
Every Participant or former Participant with benefits may designate a
person or persons who are to receive benefits under the Plan in the event
of his or her death. The designation must be made on a form provided by
and returned to the Plan Administrator. You may change your designation at
any time. If you are married, your beneficiary will automatically be your
Spouse. If you and your Spouse wish to waive this automatic designation,
you must complete a beneficiary designation form. The form must be signed
by you and, if applicable, your Spouse in front of a Plan representative or
a Notary Public.
E. Death Benefits
In the event of your death, the full value of your account is payable to
your beneficiary in a lump sum.
F. Form of Payment
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When benefits become due, you or your representative should apply to the
Employer requesting payment of your account and specifying the manner of
payment. The normal or automatic form of payment is a lump sum.
G. Rollover of Payment
If your benefits qualify as eligible rollovers, you have the option of
having them paid directly to you, when they become due, or having them
directly rolled over to another qualified plan or an IRA. If you do not
choose to have the benefits directly rolled over, the Plan is required to
automatically withhold 20% of your payment for tax purposes. If you do
choose to have the payment made to you, you still have the option of
rolling over the payment yourself to a qualified plan or an IRA within
sixty days (first check with a tax advisor to make sure it is an eligible
rollover). However, 20% of your payment will still be withheld. The
following example illustrates how this works:
For example, if you have $100,000 in your vested account balance and choose
to have the payment of your benefits made directly to an IRA or another
qualified plan, the entire $100,000 will be transferred to the trustee of
the other plan or the IRA, and you will treat the entire amount as a
rollover on your tax return so that you will not pay taxes on the entire
amount. If you choose not to have the account transferred directly to an
IRA or qualified plan, 20% or $20,000 will automatically be withheld from
your payment. Thus, you will receive only $80,000 as a distribution of
your benefits. In order to roll the entire amount over into your IRA, you
would have to come up with $20,000 out of your own pocket to make up the
difference. If this is done, the $20,000 which was withheld may be
returned when you file your taxes at the end of the year. However, if you
are unable to produce the extra cash, the rollover amount will only be
$80,000, and the other $20,000 which was withheld will be treated as
taxable income to you. If you are under age 59-1/2 when you receive your
20
<PAGE>
benefit payment, the withheld amount will also be subject to the 10% early
distribution penalty.
Certain benefit payments are not eligible for rollover and therefore will
also not be subject to the 20% mandatory withholding. They are as follows:
1. installments paid over life;
2. installments for a period of at least 10 years; and
3. minimum required distributions at age 70 1/2 .
There are also several operational exceptions and a "de minimis" exception
for payments of less than $200. Also Employee Voluntary contributions are
not eligible for rollover.
H. Time of Payment
If you separate from service for any reason, payments will start as soon as
administratively feasible following the date on which a distribution is
requested by you or is otherwise payable.
XII INVESTMENTS
-----------
A. Alternative Investments/Investment Direction Under A Trust Fund
The monies contributed to the Plan may be invested in any security or form
of property considered prudent for a retirement plan. Such investments
include common and preferred stocks, exchange traded put and call options,
bonds, money market instruments, mutual funds, savings accounts,
certificates of deposit, Treasury bills, or insurance contracts. An
institutional Trustee may invest in its own deposits or those of affiliates
which bear a reasonable interest rate, or in a group or collective trust
maintained by such Trustee.
B. Investment Responsibility
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The Plan's assets are held by the Trustee who is identified in Section II
of this Summary. The Trustee is responsible for the safekeeping of plan
assets and the investment of such assets at the direction of the Plan
Administrator.
C. Employee Investment Direction
Participants may direct the investments of their accounts among the
investment funds available to them. The procedures for making an election
are shown in a separate Investment Election Form which can be obtained
from the Plan Administrator. You may change your investment selection and
move monies from one fund to another in accordance with the rules
established by the Plan Administrator.
XIII ADMINISTRATION
--------------
The Plan will be administered by the following parties:
A. Plan Administrator
The Employer is the party who has established the Plan and who has
overall control and authority over administration of the Plan. The
Employer's duties as Plan Administrator include:
(a) appointing the Plan's professional advisors needed to administer
the Plan including, but not limited to, an accountant, attorney,
actuary, or administrator,
(b) directing the Trustee or Recordkeeper with respect to payments
from the Trust Fund,
(c) communicating with Employees regarding their participation and
benefits under the Plan, including the administration of all
claims procedures and domestic relations orders
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<PAGE>
(d) filing any returns and reports with the Internal Revenue Service,
Department of Labor, or any other government agency,
(e) reviewing and approving any financial reports, investment reviews, or
other reports prepared by any party appointed by the Employer,
(f) obtaining a legal determination of the qualified status of all
qualified domestic relations orders and complying with all legal
requirements,
(g) establishing a funding policy and investment objectives consistent
with the purposes of the Plan and the Employee Retirement Income
Security Act of 1974, and
(h) construing and resolving any question of Plan interpretation. The
Plan Administrator's interpretation and application thereof is final.
B. Trustee
The Trustee shall be responsible for the administration of investments held
in the Trust Fund. These duties shall include:
(a) receiving contributions under the terms of the Plan,
(b) safekeeping of plan assets and the investment of such assets at the
direction of the Plan Administrator.
(c) making distributions from the Trust Fund in accordance with written
instructions received from the Plan Administrator, Recordkeeper or
another authorized Employer representative,
(d) keeping accounts and records of the financial transactions of the
Trust Fund, and
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<PAGE>
(e) rendering an annual report of the Trust Fund showing the financial
transactions for the Plan Year.
C. Recordkeeper
The Recordkeeper shall be responsible for maintaining Plan records. These
duties shall include:
(a) transmit Employer directives to the Trustee,
(b) keep accurate records regarding the Trust Fund administration, and
(c) any other duties necessary and as agreed upon.
XIV AMENDMENT AND TERMINATION
-------------------------
The Employer may amend the Plan at any time, provided that no amendment
will divert any part of the Plan's assets to any purpose other than for the
exclusive benefit of you and the other Participants in the Plan or
eliminate an optional form of distribution. The Employer may also terminate
the Plan. In the event of an actual Plan termination, all amounts credited
to your account will be fully vested and will be paid to you. Depending on
the facts and circumstances, a partial termination may be found to occur
where a significant number of Employees are terminated by the Employer or
excluded from Plan participation. In case of a partial termination, only
those affected will become 100% vested.
XV LEGAL PROVISIONS
----------------
A. Rights of Participants
As a Plan Participant, you have certain rights and protection under
the Employee Retirement Income Security Act of 1974 (ERISA). The law
says that you are entitled to:
(a) Examine, without charge, all documents relating to the
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<PAGE>
operation of the Plan and any documents filed with the U.S. Department
of Labor. These documents are available for review in the Employer's
offices during regular business hours.
(b) Obtain copies of all Plan documents and other Plan information upon
written request to the Employer. The Employer may make a reasonable
charge for producing the copies.
(c) Receive from the Employer at least once each year a summary of the
Plan's annual financial report.
(d) Obtain, at least once a year, a statement of the total benefits
accrued for you, and your nonforfeitable (vested) benefits, if any.
The Plan provides that you will receive this statement automatically.
If you are not vested, you may request a statement showing the date
when you will begin to vest in your account.
(e) File suit in a federal court, if any materials requested are not
received within 30 days of your request, unless the materials were not
sent because of matters beyond the control of the Employer. If you are
improperly denied access to information you are entitled to receive,
the Employer may be required to pay up to $100 for each day's delay
until the information is provided to you.
B. Fiduciary Responsibility
ERISA also imposes obligations upon the persons who are responsible for the
operation of the Plan. These persons are referred to as "fiduciaries".
Fiduciaries must act solely in your interest as a Plan Participant and they
must exercise prudence in the performance of their duties. Fiduciaries who
violate ERISA may be removed and required to reimburse any losses they have
caused you or other Participants in the Plan.
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<PAGE>
C. Employment Rights
Participation in the Plan is not a guarantee of employment. However, the
Employer may not fire you or discriminate against you to prevent you from
becoming eligible for the Plan or from obtaining a benefit or exercising
your rights under ERISA.
D. Benefit Insurance
Your benefits under this Plan are not insured by the Pension Benefit
Guaranty Corporation since the law does not require plan termination
insurance for this type of plan.
E. Claims Procedure
If you feel you are entitled to a benefit under the Plan, mail or deliver
your written claim to the Plan Administrator. The Plan Administrator will
notify you, your beneficiary, or authorized representative of the action
taken within 60 days of receipt of the claim. If you believe that you are
being improperly denied a benefit in full or in part, the Employer must
give you a written explanation of the reason for the denial. If the
Employer denies your claim, you may, within 60 days after receiving the
denial, submit a written request asking the Employer to review your claim
for benefits. Any such request should be accompanied by documents or
records in support of your appeal. You, your beneficiary, or your
authorized representative may review pertinent documents and submit issues
and comments in writing. If you get no satisfaction from the Employer, you
have the right to request assistance from the U.S. Department of Labor or
you can file suit in a state or federal court. Service of legal process
may be made upon the plan Trustee or the Plan Administrator. If you are
successful in your lawsuit, the court may require the Employer
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<PAGE>
to pay your legal costs, including your attorney's fees. If you lose, and
the court finds that your claim is frivolous, you may be required to pay
the Employer's legal fee.
F. Assignment
Your rights and benefits under this Plan cannot be assigned, sold,
transferred or pledged by you or reached by your creditors or anyone else
except under a qualified domestic relations order. A qualified domestic
relations order (QDRO) is a court order issued under state domestic
relations law relating to divorce, legal separation, custody, or support
proceedings. The QDRO recognizes the right of someone other than you to
receive your Plan benefits. You will be notified if a QDRO on your Plan
benefits is received.
G. Questions
If you have any questions about this statement of your rights under
ERISA, please contact the Employer or the nearest Area Office of the U.S.
Labor-Management Service Administration, Department of Labor.
H. Conflicts With Plan
This booklet is not the Plan document, but only a Summary Plan Description
of its principal provisions and not every limitation or detail of the Plan
is included. Every attempt has been made to provide concise and accurate
information. However, if there is a discrepancy between this booklet and
the official Plan document, the Plan document shall prevail.
27
<PAGE>
STANDARDIZED
ADOPTION AGREEMENT
PROTOTYPE CASH OR DEFERRED
PROFIT-SHARING PLAN AND TRUST
Sponsored by
AMERICAN FUNDS DISTRIBUTORS, INC.
The Employer names below hereby establishes a Cash or Deferred Profit-Sharing
Plan for eligible Employees as provided in this Adoption Agreement and the
accompanying Basic Prototype Plan and Trust/Basic Plan Document #03 (the
"Plan"). If multiple Employers are adopting the Plan, complete Section 1 based
on the lead Employer. Additional Employers may adopt this Plan by attaching
executed signature pages to the back of the Employer's Adoption Agreement.
6. EMPLOYER INFORMATION
Employer's Name: Superior
Financial Corp.
Address: 5000 Rogers
Avenue
Fort Smith, AR
72903
Principal Address (if different):
Telephone Number: (501) 484-4280
Tax I.D. Number: 51-0379417
Employer's Fiscal Year: December 31
Form of Business:
[_] Sole Proprietor [_] Partnership [_] S Corporation
[X] Corporation [_] Other
Member of:
[X] Controlled Group [_] Affiliated Service Group
[_] Group of trades or businesses under common control
Date of Incorporation: December, 1997
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<PAGE>
Name of Plan: Superior Financial Corp.
401(k) Plan 001
Three Digit Plan Number for Annual Return/Report:
7. EFFECTIVE DATE
2.(a) This is a new Plan having an effective date of April 1, 1998 .
2.(b) This is an amended Plan.
The effective date of the original plan was __________. The
effective date of the amended Plan is __________.
2.(c) If different from above, the Effective date for the Plan's
Elective Deferral provisions shall be
________________.
3. DEFINITIONS
3.(a) "Allocation Date(s)" Allocations to Participant Accounts will
be done in accordance with Article V of the Plan:
[_] (i) daily. [_] (iv) semi-annually.
[X] (ii) monthly. [_] (v) annually.
[_] (iii) quarterly.
3.(b) "Compensation" Compensation shall be determined on the basis
of the Plan Year.
Compensation [X] shall [_] shall not include Employer
contributions made pursuant to a Salary Savings Agreement, for
this Plan or any other plan, which are not includable in the
gross income of the Employee for the reasons indicated in the
definition of Compensation at paragraph 1.13 of the Plan.
Compensation [X] shall [_] shall not be limited to
Compensation earned while a Participant is in the Plan.
Compensation shall be determined on the basis of the following
safe- harbor definition of Compensation in IRS Regulation
Section 1.414(s)- 1(c):
[X] (i) Code Section 3401(a) - W-2 income subject to income
tax withholding.
[_] (ii) Code Section 415 - W-2 income, share of profits and
other taxable income.
3.(c) "Entry Date"
[_] (i) The first day of the Plan Year nearest the date on
which an Employee meets the eligibility
requirements.
[X] (ii) The earlier of the first day of the Plan Year or the
first day of the seventh month of the Plan Year
coinciding with or following the date on which an
Employee meets the eligibility requirements.
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<PAGE>
[_] (iii) The first day of the Plan Year following the
date on which the Employee meets the eligibility
requirements. If this election is made, the
service requirement at 4(a) may not exceed 1/2
year and the age requirement at 4(b) may not
exceed 20 1/2.
[_] (iv) The first day of the month or if earlier the
first day of the Plan Year coinciding with or
following the date on which an Employee meets
the eligibility requirements.
[_] (v) The first day of the Plan Year, or the first day
of the fourth, seventh or tenth month of the
Plan Year coinciding with or following the date
on which an Employee meets the eligibility
requirements.
3.(d) "Hours of Service" shall be determined on the basis of the
method selected below. Only one method may be selected. The
method selected shall be applied to all Employees covered
under the Plan as follows:
[X] (i) on the basis of actual hours for which an
Employee is paid or entitled to payment.
[_] (ii) on the basis of days worked.
An Employee shall be credited with ten (10)
Hours of Service if under paragraph 1.43 of the
Plan such Employee would be credited with at
least one (1) Hour of Service during the day.
[_] (iii) on the basis of weeks worked.
An Employee shall be credited with forty-five
(45) Hours of Service if under paragraph 1.43 of
the Plan such Employee would be credited with at
least one (1) Hour of Service during the week.
[_] (iv) on the basis of semi-monthly payroll periods. An
Employee shall be credited with ninety-five (95)
Hours of Service if under paragraph 1.43 of the
Plan such Employee would be credited with at
least one (1) Hour of Service during the semi-
monthly payroll period.
[_] (v) on the basis of months worked.
An Employee shall be credited with one-hundred-
ninety (190) Hours of Service if under paragraph
1.43 of the Plan such Employee would be credited
with at least one (1) Hour of Service during the
month.
[_] (vi) on the basis of Elapsed Time, as provided in
Article XVI of the Plan.
3.(e) "Limitation Year" The 12-consecutive month period commencing on January
1 and ending on December 31. If applicable, the Limitation Year will be
a short Limitation Year commencing on April 1, 1998 and ending on
December 31, 1998. Thereafter, the Limitation Year shall end on the
date last specified.
3.(f) "Net Profit"
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<PAGE>
[X] (i) Not applicable. Profits will not be required for any
contributions to the Plan.
[_] (ii) As defined in paragraph 1.50 of the Plan.
3.(g) "Plan Year" The 12-consecutive month period commencing on January 1 and
ending on December 31.
If applicable, the Plan Year will be a short Plan Year commending on
April 1, 1998 and ending on December 31, 1998. Thereafter, the Plan
Year shall end on the date last specified.
3.(h) "Qualified Early Retirement Age" For purposes of making distributions
under the provisions of a Qualified Domestic Relations Order, the
Plan's Qualified Early Retirement Age with regard to the Participant
against whom the Order is entered shall be the date the Order is
determined to be qualified. This will only allow payout to the
alternate payee(s).
3.(i) "Qualified Joint and Survivor Annuity" The safe-harbor provisions of
paragraph 8.7 of the Plan [X] are [ ] are not applicable. If not
applicable, the survivor annuity shall be ___ % (50%, 66-2/3%, 75% or
100%) of the annuity payable during the lives of the Participant and
Spouse. If no answer is specified, 50% will be used.
3.(j) "Taxable Wage Base" [paragraph 1.81]
[X] (i) Not Applicable- Plan is not integrated with Social
Security.
[_] (ii) The maximum earnings considered wages for such Plan
Year under Code Section 3121(a).
[_] (iii) ___ % (not more than 100%) of the amount considered
wages for such Plan Year under Code Section 3121(a).
[_] (iv) $ ____ , provided that such amount is not in excess
of the amount determined under subsection (ii) above.
[_] (v) For the 1989 Plan Year $10,000. For all subsequent
Plan Years, 20% of the maximum earnings considered
wages for such Plan Year under code Section 3121(a).
4. ELIGIBILITY REQUIREMENTS
Employees meeting the following Service and Age requirements shall be
eligible to participate in the Plan:
4.(a) Service: 1 [not more than one (1)] Year of Service. [A Year of
Service is a 12-consecutive month period during which a
Participant is credited with 1,000 hours.] If the Year of
Service selected is a fractional year, an Employee will not be
required to complete any specified number of Hours of Service
to receive credit for such fractional year.
4.(b) Age: Attainment of age 21 (not more than age 21).
4.(c) Initial Participants: Employees employed on the Plan's
Effective Date [X] do [ ] do not have to satisfy the
eligibility requirements specified above.
NOTE: Employees covered under the terms of a collective bargaining
agreement (the agreement should indicate that retirement
benefits were
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<PAGE>
subject of good faith bargaining and the agreement
should benefit Employees of whom two percent or less
are professionals, as defined in Section 1.410(b)-9
of the Regulations) between the Employer and
Employee representatives (does not include any
organization more than half of whose members are
Employees who are owners, officers, or executives of
the Employer) and nonresident aliens [within the
meaning of Section 770(b)(1)(B)] with no U.S. income
[within the meaning of Section 911(d)(2)] from the
Employer which constitutes income from sources
within the United States [within the meaning of
Section 86(a)(3)] are excluded from Plan
participation.
5. RETIREMENT AGES
If the Employer imposes a requirement that Employees retire upon
reaching a specified age, the Normal Retirement Age selected below may
not exceed the Employer-imposed mandatory retirement age.
5.(a) Normal Retirement Age shall be 65 (not to exceed age 65).
5.(b) Normal Retirement Age shall be the later of attaining age ____
(not to exceed age 65) or the ____ (not to exceed the 5th)
anniversary of the first day of the first Plan Year in which
the Participant commenced participation in the Plan.
5.(c) Early Retirement Age:
[X] (i) Not applicable.
[_] (ii) The Plan shall have an Early Retirement Age
of ____ (not less than 55) and completion of
____ Years of Service.
6. EMPLOYEE CONTRIBUTIONS
[X] 6.(a) Participants shall be permitted to make
Elective Deferrals in any amount from 1 % up to 15 %
of their Compensation. Participants may amend their
Salary Savings Agreements to change the contribution
percentage as provided below:
[X] (i) on the first day of each month of the
Plan Year.
[_] (ii) on the first day of the Plan Year and on
the first day of the fourth, seventh,
and tenth months of the Plan Year.
[_] (iii) on the first day of the Plan Year and on
the first day of the seventh month of
the Plan Year.
[_] 6.(b) Participants shall be required to make after-tax
Voluntary Contributions as follows (Thrift Savings
Plan):
[_] (i) in any amount from ____ % up to ____ %
of Compensation.
[_] (ii) a percentage determined by the Employee
on his or her enrollment form.
NOTE: Elective Deferrals may not be recharacterized as Voluntary
Contributions for purposes of the Average Deferral Percentage
(ADP) Test. The ADP Test will apply to contributions under (a)
above. The Average Contribution Percentage (ACP) Test will apply
to contributions under (b) above, and may apply to (a).
7. EMPLOYER CONTRIBUTIONS AND ALLOCATION
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<PAGE>
The Employer shall make contributions to the Plan in accordance with
the formula or formulas selected below. The Employer's contribution
shall be subject to the limitations contained in Articles III and X of
the Plan. For this purpose, a contribution for a Plan Year shall be
limited for the Limitation Year which ends with or within such Plan
Year. Also, the integrated allocation formulas below are for Plan Years
beginning in 1989 and later. The Employer's allocation for earlier
years shall be as specified in its Plan prior to amendment for the Tax
Reform Act of 1986.
7.(a) Profits Requirement: Current or Accumulated Net Profits are not
required unless otherwise indicated below:
[_] (i) Matching Contributions.
[_] (ii) Qualified Non-Elective Contributions.
[_] (iii) Discretionary Contributions.
NOTE: Elective Deferrals can always be contributed regardless of
profits. Complete this Section in conjunction with Section
3(f).
[X] 7.(b) Salary Savings Agreement:
The Employer shall contribute and allocate to each
Participant's account an amount equal to the amount withheld
from the Compensation of such Participant pursuant to his or
her Salary Savings Agreement. If applicable, the maximum
percentage is specified in Section 6 above. An Employee who has
terminated his or her election under the Salary Savings
Agreement other than for hardship reasons may not make another
Elective Deferral:
[_] (i) until the first day of the next Plan Year.
[X] (ii) for a period of 1 month(s) (not to exceed 12
months).
[X] 7.(c) Matching Contribution: [See Sections (g) and (h)]:
[_] (i) Percentage Match On Elective Deferrals: The
Employer shall contribute and allocate to each
eligible Participant's account an amount equal
to ____ % of the amount contributed and
allocated in accordance with Section 7(b)
above. The Employer shall not match Participant
Elective Deferrals as provided above in excess
of $ ____ or in excess of _____ % of the
Participant's Compensation.
[_] (ii) Percentage Match On Voluntary Contributions:
The Employer shall contribute and allocate to
each eligible Participant's account an amount
equal to ____ % of the amount of Voluntary
Contributions (if provided for under Section
6(b) above) made in accordance with paragraph
4.1 or 4.7 of the Plan. The Employer shall not
match Participant Voluntary Contributions in
excess of $ ____ or in excess of ____ % of the
Participant's Compensation.
[X] (iii) Discretionary Match: The Employer shall
contribute and allocate to each eligible
Participant's account a percentage of the
Participant's Elective Deferral contributed and
allocated in accordance with Section 7(b)
above. The Employer shall set such percentage
prior to the end of the Plan Year. The Employer
shall not match Participant Elective Deferrals
in excess of $ ____ or in excess of 6 % of the
Participant's Compensation.
[X] (iv) Qualified Match: Matching Contributions will be
treated as Qualified Matching Contributions to
the extent specified below:
[_] (A) all Matching Contributions.
[_] (B) none.
[X] (C) the amount necessary to meet the \
[_] ADP Test, [_] the ACP Test,
[X] both the ADP and ACP Tests.
[X] (v) Eligibility for Matching Contributions:
Matching Contributions, whether or not
Qualified, will only be made on Employee
Contributions:
[_] (A) not withdrawn prior to the end of
the valuation period.
[X] (B) not withdrawn prior to the end of
the Plan Year.
[_] (C) without regard to their
withdrawal.
[X] (vi) Matching Contribution Computation Period: The
time period upon which Marching Contributions
will be based shall be:
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<PAGE>
[_] (A) weekly.
[_] (B) bi-weekly.
[_] (C) semi-monthly.
[_] (D) monthly.
[_] (E) quarterly.
[_] (F) semi-annually.
[X] (G) annually.
[X] 7.(d) Qualified Non-Elective Employer Contribution - [See Sections
(g) and (h)]: These contributions are fully vested when
contributed. The Employer shall have the right to make an
additional discretionary contribution which shall be allocated
to each eligible Employee in proportion to his or her
Compensation as a percentage of the Compensation of all
eligible Employees. This part of the Employer's contribution
and the allocation thereof shall be unrelated to any Employee
contributions made hereunder. The amount of Qualified Non-
Elective Contributions taken into account for purposes of
meeting the ADP or ACP Test requirements is:
[_] (i) all such Qualified Non-Elective Contributions
[_] (ii) none.
[X] (iii) the amount necessary to meet [_] the ADP Test,
[_] the ACP Test, [X] both the ADP and ACP
Tests.
Qualified Non-Elective Contributions will be allocated to:
[_] (iv) all Employees eligible to participate.
[X] (v) only non-Highly Compensated Employees eligible
to participate.
[_] 7.(e) Additional Employer Contribution Other Than Qualified Non-
Elective Contributions - Non-Integrated [See Sections (g) and
(h)]:
The Employer shall have the right to make an additional
discretionary contribution which shall be allocated to each
eligible Employee in proportion to his or her Compensation
as a percentage of the Compensation for all eligible
Employees. This part of the Employer's contribution and the
allocation thereof shall be unrelated to any Employee
contributions made hereunder.
[_] 7.(f) Additional Employer Contribution - Integrated Allocation
Formula [See Sections (g) and (h)]:
The Employer shall have the right to make an additional
discretionary contribution. The Employer's contribution for
the Plan Year plus any forfeitures shall be allocated to the
accounts of eligible Participants as follows:
(i) First, to the extent contributions and forfeitures
are sufficient, all Participants will receive an
allocation equal to 3% of their Compensation.
(ii) Next, any remaining Employer Contributions and
forfeitures will be allocated to Participants who
have Compensation in excess of the Taxable Wage Base
(excess Compensation). Each such Participant will
receive an allocation in the ratio that his or her
excess Compensation bears to the excess Compensation
of all Participants. Participants may only receive an
allocation of 3% of excess Compensation.
(iii) Next, any remaining Employer contributions and
forfeitures will be allocated to all Participants in
the ratio that their Compensation plus excess
Compensation bears to the total Compensation plus
excess Compensation of all Participants. Participants
may only receive an allocation of up to 2.7% of their
Compensation plus excess Compensation, under this
allocation method. If the Taxable Wage Base defined
at Section 3(j) is less than or equal to the greater
of $10,000 or 20% of the maximum, the 2.7% need not
be reduced. If the amount specified is greater than
the greater of $10,000 or 20% of the
34
<PAGE>
maximum Taxable Wage Base, but not more than 80%,
2.7% must be reduced to 1.3%. If the amount specified
is greater than 80% but less than 100% of the maximum
Taxable Wage Base, the 2.7% must be reduced to 2.4%
NOTE: If the Plan is not Top-Heavy or if the Top-Heavy
minimum contribution or benefit is provided under another Plan
[see Section 11(c)(ii)] covering the same Employees,
subsections (i) and (ii) above may be disregarded and 5.7%,
4.3% or 5.4% may be substituted for 2.7%, 1.3% or 2.4% where
it appears in (iii) above.
(iv) Next, any remaining Employer contributions and
forfeitures will be allocated to all Participants
(whether or not they received an allocation under the
preceding paragraphs) in the ratio that each
Participant's Compensation bears to all Participants'
Compensation.
NOTE: Only one plan maintained by the Employer may be integrated
with Social Security.
7.(g) Allocation of Excess Amounts (Annual Additions): In the event
that the allocation formula above results in an Excess Amount,
such excess shall be distributed to the Participant to the
extent such excess does not exceed the Participant's Elective
Deferrals and non-deductible Required Voluntary contributions.
To the extent the Excess Amount exceeds the sum of the
aforementioned Employee contributions, such excess shall be:
[_] (i) placed in a suspense account accruing no gains
or losses for the benefit of the Participant.
[X] (ii) reallocated as additional Employer
contributions to all other Participants to the
extent that they do not have any Excess
Amount.
7.(h) Minimum Employer Contribution Under Top-Heavy Plans:
For any Plan Year during which the Plan is Top-Heavy, the sum
of the contributions and forfeitures as allocated to eligible
Employees under Sections 7(e), 7(f) and 9 of this Adoption
Agreement shall not be less than the amount required under
paragraph 14.2 of the Plan. Top-Heavy minimums will be
allocated to:
[X] (i) all eligible Participants.
[_] (ii) only eligible non-Key Employees who are
Participants.
7.(i) Return of Excess Contributions and/or Excess Aggregate
Contributions: In the event that one or more Highly
Compensated Employees is subject to both the ADP and ACP tests
and the sum of such tests exceeds the Aggregate Limit, the
limit will be satisfied by reducing the ADP and/or ACP of the
affected Highly Compensated Employees.
8. ALLOCATIONS TO TERMINATED EMPLOYEES
(This option is not applicable if Hours of Service are
determined on the basis of Elapsed Time selected under Section
3(d)(vi) above.)
8.(a) For Plan Year beginning prior to 1993;
[_] (i) the Employer will not allocate Employer-
related contributions to any Participant who
terminates employment during the Plan Year.
[_] (ii) the Employer will allocate Employer-related
contributions to Employees who terminate
during the Plan Year as a result of:
[_] (A) retirement.
[_] (B) Disability.
[_] (C) death.
[_] (D) other termination provided that
the Participant has completed a
Year of Service.
35
<PAGE>
[_] (E) other termination.
8.(b) For Plan years beginning in 1993 and thereafter, the Employer
will allocate Employer-related contributions, except Matching
Contributions, to any Participant who is (i) credited with
more than 500 hours of Service, or (ii) employed on the last
day of the Plan Year without regard to the number of Hours of
Service. The Employer will also allocate Employer-related
contributions to any Participant who terminates during the
Plan Year without accruing the necessary Hours of Service if
he or she terminated a result of:
[X] (i) retirement.
[X] (ii) Disability.
[X] (iii) death.
Matching Contributions will be allocated to each Participant
without regard to whether he or she is employed on the last
day of the Plan Year and without regard to his or her Hours of
Service.
9. ALLOCATION OF FORFEITURES
NOTE: Forfeitures of Excess Aggregate Contributions shall be applied at the
end of the Plan Year in which they occur to reduce Employer
contributions. Subsections (a), (b) and (c) below apply to forfeitures
of amounts other than Excess Aggregate Contributions.
9.(a) Allocation Alternatives:
Forfeitures shall be applied to reduce the Employer's
contribution for such Plan Year. If forfeitures were
reallocated, pursuant to a prior document's provisions, they
will continue to be reallocated in the same manner until the
end of the Plan Year in which this Adoption Agreement is
signed.
9.(b) Date for Reallocation of Forfeitures:
NOTE: If no distribution has been made to a former Participant,
subsection (i) below will automatically apply to such
Participant.
[_] (i) Forfeitures shall be applied to reduce the
Employer's contribution at the end of the
Plan Year during which the former
Participant incurs his or her fifth
consecutive one-year Break in Service.
[X] (ii) Forfeitures shall be applied to reduce
the Employer's contribution at the end of
the next Plan Year during which the
Participant has received distribution of his
or her vested interest.
9.(c) Restoration of Forfeitures:
If amounts are forfeited prior to five consecutive one-year
Breaks in Service, the Funds for restoration of account
balances will be obtained from the following resources in the
order indicated (fill in the appropriate number):
[1] (i) current year's forfeitures.
36
<PAGE>
[2] (ii) additional Employer contributions.
10. LIMITATIONS ON ALLOCATIONS
This Section is not applicable if this is the only Plan the Employer
maintains or ever maintained. Plans include Welfare Benefit Funds as
described in Code Section 419(e) or an individual medical account as
defined under Code Section 415(1)(2) under which amounts are treated as
Annual Additions.
[ ] 10.(a) If the Participant is covered under another qualified
Defined Contribution Plan maintained by the Employer, other
than a Master or Prototype Plan, the provisions of Article X
of the Plan will apply as if the other plan were a Master or
prototype Plan.
[ ] 10.(b) If a Participant is or ever has been a Participant in
a Defined Benefit Plan maintained by the Employer, attach
provisions which will satisfy the 1.0 limitation of Code
Section 415(e). Such language must preclude Employer
discretion. The Employer must also specify the interest and
mortality assumptions used in determining Present Value in the
Defined Benefit Plan.
10.(c) The minimum contribution or benefit required under code
Section 416 relating to Top-Heavy Plans shall be satisfied by
either: [ ] this Plan or [ ]
______________________________________________
(Name of other qualified plan of the Employer).
If a Defined Benefit Plan is or was maintained, an attachment
must be provided showing interest and mortality assumptions
used in determining the Top-Heavy Ratio.
11. VESTING
11.(a) Computation Period: (This option is not applicable if Hours of
Service are determined on the basis of Elapsed Time selected
under Section 3(d)(vi) above.) The computation period for
purposes of determining Years of Service and Breaks in Service
for purposes of computing a Participant's nonforfeitable right
to his or her account balance derived from Employer
contributions:
[ ] (i) shall not be applicable since Participants are always
fully vested.
[X] (ii) shall commence on the first day of the Plan Year during
which an Employee first performs an Hour of Service
for the Employer and each subsequent 12-consecutive-
month period shall commence on the anniversary thereof.
A Participant shall receive credit for a Year of Service if he or
she completes at least 1,000 Hours of Service at any time during
the 12-consecutive-month computation period. Consequently, a Year
of Service may be earned prior to the end of the 12-consecutive-
month computation period and the Participant need not be employed
at the end of the 12-consecutive-month computation period to
receive credit for a Year of Service.
37
<PAGE>
11.(b) Vesting Schedules:
Contributions under Sections 6(a), (b), 7(c)(iv) and (d) are always fully
vested.
NOTE: The vesting schedules below only apply to a Participant who has at
least one Hour of Service during or after the 1989 Plan Year. If
applicable, Participants who separated from Service prior to the
1989 Plan Year will remain under the vesting schedule as in effect
in the Plan prior to amendment for the Tax Reform Act of 1986.
[ ] (i) Full and immediate Vesting.
<TABLE>
<CAPTION>
Years of Service
-------------------------------------------------------------
1 2 3 4 5 6 7
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
[ ] (ii) -----% 100%
[ ] (iii) -----% -----% 100%
[ ] (iv) -----% 20% 40% 60% 80% 100%
[ ] (v) -----% -----% 20% 40% 60% 80% 100%
[ ] (vi) 10% 20% 30% 40% 60% 80% 100%
[X] (vii) 25% 50% 75% 100% 100%
[ ] (viii) -----% -----% -----% -----% -----% -----% 100%
</TABLE>
NOTE: The percentages selected fo% schedule (viii) may not be less for
any year than the percentages shown at schedule (v).
[X] (A) All contribution other than those which are fully vested
when contributed will vest under schedule (vii) above.
[ ] (B) All Matching contributions will vest under schedule
___________ above. All other Employer contributions other
than those which are fully vested when contributed will vest
under schedule ________ above.
11.(c) Service disregarded for Vesting:
[X] (i) Not Applicable. All Service shall be considered.
[ ] (ii) Service prior to the Effective Date of this Plan or a
predecessor plan shall be disregarded when computing a
Participant's vested and nonforfeitable interest.
[ ] (iii) Service prior to a participant having attained age 18
shall be disregarded when computing a Participant's
vested and nonforfeitable interest.
N/A 11.(d) Top-Heavy Vesting:
Each Participant shall acquire a vested and nonforfeitable
percentage in his or her account balance attributable to
Employer contributions and the earnings thereon under the
procedures selected above except with respect to any Plan Year
during
38
<PAGE>
which the Plan is Top-Heavy, in which case the [ ] Two-twenty
vesting schedule [Section 11(b)(iv)] or [ ] Three-Year Cliff
vesting schedule [Section 11(b)(iii)] shall automatically apply
unless the Employer has already elected a faster vesting
schedule. If the Plan is switched to Section 11(b)(iii) or 11(b)
(iv) because of its Top-Heavy status, that vesting schedule will
remain in effect, even if the Plan later becomes non- Top-Heavy,
until the Employer executes an amendment of this Adoption
Agreement indicating otherwise.
12. SERVICE WITH PREDECESSOR ORGANIZATION
For purposes of satisfying the Service requirements for Eligibility and
Vesting, Hours of Service shall include Service with the following
predecessor organization(s): for Superior Federal Bank, FSB only, which was
----------------------------------------------
purchased by Superior Financial Corp. On April 1, 1998, service with
--------------------------------------------------------------------
Nationsbank is included for Eligibility and Vesting.
----------------------------------------------------
13. ROLLOVER/TRANSFER CONTRIBUTIONS
13.(a) Rollover Contributions, as described at paragraph 4.3 of the Plan,
[ ] shall [X] shall not be permitted. If permitted, Employees [ ]
may [X] may not make Rollover contributions prior to meeting the
eligibility requirements for participation in the Plan .
13.(b) Transfer Contributions, as described at paragraph 4.4 of the Plan
[ ] shall [X] shall not be permitted. If permitted, Employees [ ]
may [X] may not Transfer contributions prior to meeting the
eligibility requirements for participation in the Plan.
NOTE: Even if available, the Employer may refuse to accept such
contributions if its Plan meets the safe-harbor rules of paragraph
8.7 of the Plan.
14. HARDSHIP WITHDRAWALS
Hardship withdrawals, as provided for in paragraph 6.9 of the Plan, [X] are
[ ] are not permitted.
15. PARTICIPANT LOANS
Participant loans, as provided for in paragraph 13.4 of the Plan, [ ]
are [X] are not permitted. If permitted, repayments of principal and
interest shall be repaid to the Participant's segregated account.
39
<PAGE>
16. EMPLOYER INVESTMENT DIRECTION
The Employer investment direction provisions, as set forth in paragraph
13.5 of the Plan, [ ] shall [X] shall not be applicable.
17. EMPLOYEE INVESTMENT DIRECTION
The Employer investment direction provisions, as set forth in paragraph
13.6 of the Plan, [X] shall [ ] shall not be applicable.
NOTE: To the extent that Employee investment direction was previously
allowed, the Trustee shall have the right to either make the assets
part of the general Trust, or leave them as separately invested subject
to the provisions of paragraph 13.6 of the Plan.
18. EARLY PAYMENT OPTION
A Participant who separates from Service prior to retirement, death or
Disability may make application to the Employer requesting an early
payment of his or her vested account balance. Amounts under $3,500 [X]
will [ ] will not be cashed out immediately.
18.(a) A Participant whohas not separated from Service [ ] may [X] may
not obtain a distribution of his or her vested Employer
contributions. Distribution can only be made if the Participant
has completed five Years of Service.
18.(b) A Participant who has attained age 59-1/2 and has not
separated from Service [X] may [ ] may not obtain a
distribution of his or her vested Employer contributions.
18.(c) A Participant who has attained the Plan's Normal Retirement
Age and who has not separated from Service [X] may [ ] may not
receive a distribution of his or her vested account balance.
NOTE: If the Participant has had the right to withdraw his or her
account balance in the past, this right may not be taken away.
Required minimum distributions will be paid regardless of the
option selected above. For timing of distributions, see Section
19(a) below.
19. DISTRIBUTION OPTION
19.(a) Timing of Distributions:
In cases of termination including death, Disability or
retirement, benefits shall be paid:
[ ] (i) as soon as administratively feasible following the
close of the Plan Year during which a distribution is
requested or is otherwise payable.
[X] (ii) as soon as administratively feasible following the
date on which a distribution is requested or is
otherwise payable.
[ ] (iii) as soon as administratively feasible after the close
of the Plan Year during which the Participant incurs a
one-year Break in Service
19.(b) Optional Forms of Payment:
[X] (i) Lump Sum.
[ ] (ii) Installment Payments.
40
<PAGE>
[ ] (iii) Other form(s) as previously provided (indicate all
forms that apply):
---------------
19.(c) Recalculation of Life Expectancy:
In determining required distributions under the Plan, a
Participant and/or Spouse (Surviving Spouse) [X] shall [ ] shall
not have the right to have their life expectancy recalculated
annually. If life expectancy is recalculated, it will follow the
Employer's administrative policy.
20. SPONSOR CONTACT
Employers should direct questions concerning the language contained in and the
qualification of the Prototype to:
Capital Guardian Trust Company
Corporate Employee Benefits Department
(Phone Number) (714) 671-7000
In the event that the Sponsor amends, discontinues or abandons this Prototype
Plan, notification will be provided to the Employer at the address provided on
the first page of this Adoption Agreement.
21. SIGNATURES
Due to the significant tax ramifications, the Sponsor recommends that before the
Employer execute this Adoption Agreement, the Employer contact its attorney or
tax advisor.
21.(a) EMPLOYER DELEGATE OR COMMITTEE APPOINTMENT:
The Employer has appointed the following individual(s) to act on behalf
of the Employer regarding all communications and requests between the
Employer and the Recordkeeper, pursuant to the terms and conditions of
the Plan. Unless otherwise directed by the Employer in written
directions to the Recordkeeper, the Recordkeeper may act upon the
instructions of any one of the persons listed below.
NAME(S) (please type or print) SIGNATURE(S)
1. /s/ S. Alan Hill 1. /s/ S. Alan Hill
--------------------- -----------------------
5000 Rogers Avenue, Fort Smith, AR
-------------------------------------
Address
2. /s/ Andie Plymale 2. /s/ Andie Plymale
--------------------- ------------------------
5000 Rogers Avenue, Fort Smith, AR
-------------------------------------
Address
41
<PAGE>
3. /s/ C. Stanley Bailey 3. /s/ C. Stanley Bailey
----------------------------------- -----------------------------
5000 Rogers Avenue, Fort Smith, AR
-----------------------------------
Address
21.(b) EMPLOYER:
Name and address of Employer if different than specified in Section 1
above.
Superior Federal Bank, FSB
-----------------------------------------------------------------------
The Employer hereby adopts the Plan, appoints Capital Guardian Trust
Company as Trustee and directs that contributions to the Plan shall be
invested in accordance with the instructions provided by it. The
Employer has read the Plan and Trust and Adoption Agreement, agrees to
the terms and conditions set forth therein and has consulted with an
attorney about the effect of establishing the Plan.
This agreement and the corresponding provisions of the Plan and Trust
Basic Plan Document #03 were adopted by the Employer the 18 day of March
, 1998.
Signed for the Employer by: /S/ S. Alan Hill
----------------------------------
Title: Superior Chief Financial Officer
----------------------------------
Signature: /S/ S. Alan Hill
----------------------------------
The Employer understands that its failure to properly complete the
Adoption Agreement may result in disqualification of its Plan.
Employer's Reliance: An Employer who has ever maintained or who later
adopts any plan (including a welfare benefit fund, as defined in section
419(e) of the Code, which provides post-retirement medical benefits
allocated to separate accounts for Key Employees, as defined in section
419A(d)(3) of the Code, or an individual medical account, as defined in
section 415(1)(2) of the Code) in addition to this Plan may not rely on
the opinion letter issued by the National Office of the Internal Revenue
Service as evidence that this Plan is qualified under Section 401 of the
Internal Revenue Code. If the employer who adopts or maintains multiple
plans wishes to obtain reliance that his or her plan(s) are qualified,
application for a determination letter should be made to the appropriate
Key District Director of Internal Revenue.
42
<PAGE>
This Adoption Agreement may be used only in conjunction with Basic Plan
Document #03.
21.(c) TRUSTEE APPOINTMENT AND ACCEPTANCE:
The Employer hereby appoints Capital Guardian Trust Company to serve as
Trustee, and such Trustee hereby confirms acceptance of the appointment
and duties pursuant to the accompanying Plan and this Adoption
Agreement.
Capital Guardian Trust Company hereby accepts appointment as Trustee
the 13th day of April, 1998.
Signed for the Trustee by: ___________________________________
Title: ___________________________________
Signature: ____________________________________
NOTE: In accordance with paragraph 13.7 of Basic Plan Document #03 an
additional trustee may be appointed to govern Plan assets held outside
the Fund. If so, the additional trustee shall be appointed in a separate
trust agreement.
43
<PAGE>
Exhibit 5
August 25, 1999
Superior Financial Corp.
5000 Rogers Avenue
Fort Smith, Arkansas 72917-7012
Re: Registration Statement on Form S-8 relating to the Superior
Financial Corp. 401(k) Plan
Members of the Board:
We have acted as counsel to Superior Financial Corp. (the "Company")in
connection with the preparation and filing with the Securities and Exchange
Commission of a registration statement on Form S-8 under the Securities Act of
1933 (the "Registration Statement") relating to 100,000 shares of the Company's
Common Stock, par value $0.01 per share (the "Common Stock"), to be offered
pursuant to the Superior Financial Corp. 401(k) Plan (the "Plan") and related
interests in the Plan.
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Plan and agreements thereto,
the Company's Certificate of Incorporation, Bylaws, resolutions of its Board of
Directors and such other documents and corporate records as we have deemed
appropriate for the purpose of rendering this opinion.
Based upon the foregoing, it is our opinion that the shares of Common Stock
and interests in the Plan covered by the Registration Statement will, when sold,
be legally issued, fully paid and non-assessable.
We hereby consent to the inclusion of our opinion in this Registration
Statement. In giving this consent, we do not admit that we are within the
category of persons whose consent
1
<PAGE>
is required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
Sincerely,
MILLER, HAMILTON, SNIDER & ODOM, L.L.C.
/s/ Miller, Hamilton, Snider & Odom, L.L.C.
2
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Superior Financial Corp. 401(k) Plan of our report dated
February 3, 1999, with respect to the consolidated financial statements of
Superior Financial Corp. included in the Annual Report (Form 10-K) for the year
ended December 31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Little Rock, Arkansas
August 25, 1999
