DRAFT ONE 3/24/2003
EXHIBIT 10.23 Split Dollar Agreement between TeamBank, N.A. and Xxxxxxx X.
Xxxxxx dated January 25, 2002.
TEAMBANK, N.A.
SPLIT DOLLAR AGREEMENT
THIS AGREEMENT, effective January 25, 2002 (the "Effective Date"), is made
by and between TeamBank, N.A., a nationally-chartered commercial bank with its
principal office located in Paola, Kansas (the "Company"), and TeamBank, N.A. as
Trustee (the "Trustee") of the Xxxxxxx X. Xxxxxx Irrevocable Trust, dated
January 18, 2002 (the "Trust"), an irrevocable trust established by Xxxxxxx X.
Xxxxxx (the "Executive"), a key officer employed by the Company.
INTRODUCTION
WHEREAS, the Executive has contributed substantially to the success and
profitability of the Company and it is expected that the Executive will continue
to contribute substantially to the success and profitability of the Company;
WHEREAS, as a result of these contributions and to ensure that the
Executive maintains his relationship with the Company, the Company is willing to
divide the death proceeds of a life insurance policy on the Executive's life.
The Company will pay for the life insurance premiums from its general assets;
and,
WHEREAS, in order to encourage the Executive to continue his relationship
with the Company, to remain a employed by the Company, and to continue as a
member of the Company's Board of Directors, the Company agrees to provide the
aforementioned benefit to the Executive as a current benefit that will continue
beyond the date the Executive's service to the Company ends;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
the Company and the Trust hereby agree as follows:
ARTICLE 1
GENERAL DEFINITIONS
The following terms shall have the meanings specified:
1.1 "CHANGE OF CONTROL" means:
(a) a change in the ownership of the capital stock of the
Company or Team Financial, Inc. (the "Holding Company"), whereby a
corporation, person, or group acting in concert (hereinafter this Agreement
shall collectively refer to any combination of these three [a corporation,
person, or group acting in concert] as a "Person") as described in Section
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), acquires, directly or indirectly, beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of a number of
shares of capital stock of the Company or Holding Company which constitutes
fifty percent (50%) or more of the combined voting power of the Company's
or Holding Company's then outstanding capital stock then entitled to vote
generally in the election of directors; or
(b) the persons who were members of the Board of Directors of
the Company or Holding Company immediately prior to a tender offer,
exchange offer, contested election or any combination of the foregoing,
cease to constitute a majority of the Board of Directors; or
(c) the adoption by the Board of Directors of the Company or of
the Holding Company of a merger, consolidation or reorganization plan
involving the Company or Holding Company in which the Company or the
Holding Company is not the surviving entity, or a sale of all or
substantially all of the assets of the Company or Holding Company. For
purposes of this Agreement, a sale of all or substantially all of the
assets of the Company or Holding Company shall be deemed to occur if any
Person acquires (or during the 12-month period ending on the date of the
most recent acquisition by such Person, has acquired) gross assets of the
Company or Holding Company that have an aggregate fair market value equal
to fifty percent (50%) or more of the fair market value of all of the
respective gross assets of the Company or Holding Company immediately prior
to such acquisition or acquisitions; or
(d) a tender offer or exchange offer is made by any Person
which, if successfully completed, would result in such Person beneficially
owning (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) either fifty percent (50%) or more of the Company's or Holding
Company's outstanding shares of Common Stock or shares of capital stock
having fifty percent (50%) or more the combined voting power of the
Company's or Holding Company's then outstanding capital stock (other than
an offer made by the Company or the Holding Company), and sufficient shares
are acquired under the offer to cause such person to own fifty percent
(50%) or more of the voting power; or
(e) any other transactions or series of related transactions
occurring which have substantially the same effect as the transactions
specified in any of the preceding clauses of this subsection (1.1).
1.1.1 "PERMITTED TRANSFERS" means that a Shareholder, as
hereinafter defined in Section 1.13, may make the following
transfers and such transfers shall be deemed not to be a Change of
Control under Section 1.1:
(a) To any trust created solely for the benefit of
any Shareholder or any spouse of or any lineal
descendant of any Shareholder;
(b) To any individual or entity by bona fide gift;
(c) To any spouse or former spouse pursuant to the
terms of a decree of divorce;
(d) To any officer or employee of the Company
pursuant to any incentive stock option plan
established by the Shareholders;
(g) To any family member of the transferring
Shareholder; or
(h) after receipt of any necessary regulatory
approvals, to any company or partnership a
majority of the stock or interests of which
company or partnership are owned by any of the
Shareholders.
1.16 "DEATH PROCEEDS" means the total death proceeds of the Policy.
1.17 "DEFERRED COMPENSATION AGREEMENT": means the agreement, attached as
Exhibit A, by and between the Executive and the Company, which is hereby made
part of this Agreement.
1.18 "DEFERRED COMPENSATION PAYMENTS": means the sum of all payments, if
any, made by the Company to the Executive pursuant to the Deferred Compensation
Agreement.
1.19 "INSURER" means each of the following: Clarica Life insurance
Company, Jefferson Pilot Financial Insurance Company, Jefferson Pilot Life
Insurance Company, and West Coast Life Insurance Company.
1.20 "INSURED" means the Executive.
1.21 "NET DEATH PROCEEDS": means an amount equal to the Death Proceeds
minus the cash surrender value of the Policy on the date of the Insured's death.
1.22 "NORMAL RETIREMENT DATE" means the date of the Executive's
sixty-fifth (65th) birthday, or his earlier termination of service due to a
disability.
1.23 "POLICY" means each of the following: insurance policy number 631370
issued by Clarica Life Insurance Company, insurance policy number AH5188005
issued by Jefferson Pilot Financial Insurance Company, insurance policy number
JP5188004 issued by Jefferson Pilot Life Insurance Company, and insurance policy
number ZUA376079 issued by West Coast Life Insurance Company.
1.24 "PLAN YEAR" means the twelve (12) consecutive month period ending on
December 31st of each calendar year, except the period for the initial Plan Year
shall be the period between the Effective Date until December 31, 2002.
1.25 "SALARY CONTINUATION AGREEMENT": means the agreement, attached as
Exhibit B, by and between the Executive and the Company, which is hereby made
part of this Agreement.
1.26 "SALARY CONTINUATION PAYMENTS": means the sum of all payments, if
any, made by the Company to the Executive pursuant to the Salary Continuation
Agreement.
1.27 "SHAREHOLDER" means the existing owners of all issued and
outstanding stock of the Company and Holding Company as of the date this
Agreement is signed.
1.28 "TERMINATION OF EMPLOYMENT" means that the Executive ceases to be
employed by the Company for any reason other than by reason of the Executive's
or a leave of absence that is approved by the Company.
1.29 "TOTAL BENEFIT PLAN PAYMENTS" means the sum of Deferred Compensation
Payments and Salary Continuation Payments.
ARTICLE 2
POLICY OWNERSHIP/INTERESTS
2.6 COMPANY OWNERSHIP. The Company is the sole owner of the Policy and
shall have the right to exercise all incidents of ownership. The Company shall
be the direct beneficiary of that portion of the Death Proceeds equal to the
greater of: (i) the sum of the cash surrender value of each Policy on the date
of the Insured's death plus an amount equal to the excess of the Net Death
Proceeds over the Executive's Interest in each Policy set forth in Section 2.2
below; or (ii) the aggregate Premiums paid on the Policy by the Company less any
outstanding indebtedness to the Insurer.
2.7 TRUST'S INTEREST. The Trust shall have the right to designate the
beneficiary of one hundred percent (100%) of the following amounts:
(d) For the Policy number 631370 issued by Clarica Life
Insurance Company an amount equal to Three Hundred Twenty
Two Thousand Eight Hundred Forty and 00/100 Dollars
($322,840.00) less 25.00% of Total Benefit Plan Payments.
(e) For the Policy number AH5188005 issued by Jefferson Pilot
Financial Insurance Company an amount equal to Three Hundred
Twenty Two Thousand Eight Hundred Forty and 00/100 Dollars
($322,840.00) less 25.00% of Total Benefit Plan Payments.
(f) For the Policy number JP5188004 issued by Jefferson Pilot
Life Insurance Company an amount equal to Three Hundred
Twenty Two Thousand Eight
Hundred Forty and 00/100 Dollars ($322,840.00) less 25.00%
of Total Benefit Plan Payments.
(g) For the Policy number ZUA376079 issued by West Coast Pilot
Life Insurance Company an amount equal to Three Hundred
Twenty Two Thousand Eight Hundred Forty and 00/100 Dollars
($322,840.00) less 25.00% of Total Benefit Plan Payments.
The Trust, as to its share of the Death Proceeds, shall have the right to elect
and change settlement options that may be permitted. Provided, however, the
Company and the Trust agree that the Trust shall have no rights or interests in
the Policy with respect to that portion of the Death Proceeds designated in this
Section 2.2 upon the Executive's Termination of Employment prior to the Normal
Retirement Date for reasons other than death. Should Termination of Employment
not occur prior to the Normal Retirement Date, the Trust shall maintain all of
the powers and interests described in this Section 2.2 until the death of the
Executive, unless a written agreement between the Trust and the Company provides
otherwise.
2.8 OPTION TO PURCHASE. The Company shall not sell, surrender or
transfer ownership of the Policy while this Agreement is in effect without first
giving the Trust or the Trust's transferee the option to purchase the Policy for
a period of 60 days from written notice of such intention. The purchase price
shall be an amount equal to the cash surrender value of the Policy. This
provision shall not impair the right of the Company to terminate this Agreement.
2.9 COMPARABLE COVERAGE. Upon execution of this Agreement, the Company
shall maintain the Policy in full force and effect and in no event shall the
Company amend, terminate or otherwise abrogate the Trust's interest in the
Policy, unless the Company replaces the Policy with a comparable insurance
policy to cover the benefit provided under this Agreement. The Policy or any
comparable policy shall be subject to the claims of the Company's creditors.
2.10 CHANGE OF CONTROL. Upon Change of Control, the Company shall
maintain the Policy in full force and effect and in no event shall the Company
amend, terminate or otherwise abrogate the Trust's interest in the Policy,
unless the Company replaces the Policy with a comparable insurance policy to
cover the benefit provided under this Agreement, unless a written agreement
between the Trust and the Company provides otherwise.
ARTICLE 3
PREMIUMS
3.3 PREMIUM PAYMENT. The Company shall pay any premiums due on the
Policy.
3.4 ECONOMIC BENEFIT. The Company shall determine the economic benefit
attributable to the Executive based on the amount of the current term rate for
the Executive's age multiplied by the aggregate death benefit payable to the
Trust, as determined in accordance with applicable Internal Revenue Service
rules and regulations. The Company shall notify the Trust and the
Executive of the Economic Benefit determined under this Section 3.2 each Plan
Year.
3.3 REIMBURSEMENT. At the end of each Plan Year, the Trust shall
reimburse the Company in an amount equal to the Economic Benefit.
3.4 CASH PAYMENT. The Company shall annually pay to the Executive an
amount necessary to pay the federal and state income taxes attributable to the
imputed income from the economic benefit and to the additional cash payments
under this section. In calculating the cash payments due from the Company, the
Company shall use the Executive's actual marginal income tax bracket for the
calendar year immediately preceding the payment to the Executive. If the
Executive is employed by the Company upon the date the Executive reaches the
Normal Retirement Age, the cash payments shall continue until Termination of
Employment. In the event the Executive retires prior to the Normal Retirement
Age, for reasons other than death or Disability, or ceases to be employed by the
Company, for reasons other than death or Disability, prior to such age, the cash
payments shall cease as of the date of such occurrence.
ARTICLE 4
ASSIGNMENT
The Trust may assign without consideration all of its interests in the
Policy and in this Agreement to any person, entity or other trust. In the event
the Trust shall transfer all of its interest in the Policy, then all of the
Trust's interest in the Policy and in the Agreement shall be vested in its
transferee, who shall be substituted as a party hereunder and the Trust shall
have no further interest in the Policy or in this Agreement.
ARTICLE 5
INSURER
The Insurer shall be bound only by the terms of the Policy. Any payments
the Insurer makes or actions it takes in accordance with the Policy shall fully
discharge it from all claims, suits and demands of all entities or persons. The
Insurer shall not be bound by or be deemed to have notice of the provisions of
this Agreement.
ARTICLE 6
EXECUTIVE
The Executive is not a party to this Agreement or to the corresponding
Endorsement. Except as otherwise provided herein, the Executive shall have no
rights, title or interest hereunder.
ARTICLE 7
CLAIMS PROCEDURE
7.1 CLAIMS PROCEDURE. The Company shall notify the Trust, the Trust's
transferee or beneficiary, or any other party who claims a right to an interest
under this Agreement (the "Claimant") in writing, within 90 days of Claimant's
written application for benefits, of his or her eligibility or ineligibility for
benefits under this Agreement. If the Company determines that
the Claimant is not eligible for benefits or full benefits, the notice shall set
forth (1) the specific reasons for such denial, (2) a specific reference to the
provisions of this Agreement on which the denial is based, (3) a description of
any additional information or material necessary for the Claimant to perfect his
or her claim, and a description of why it is needed, and (4) an explanation of
this Agreement's claims review procedure and other appropriate information as to
the steps to be taken if the Claimant wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring additional
time to make a decision, the Company shall notify the Claimant of the special
circumstances and the date by which a decision is expected to be made, and may
extend the time for up to an additional 90 days.
7.2 REVIEW PROCEDURE. If the Claimant is determined by the Company not
to be eligible for benefits, or if the Claimant believes that he or she is
entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Company by filing a petition for
review with the Company within 60 days after receipt of the notice issued by the
Company. Said petition shall state the specific reasons, which the Claimant
believes, entitle him or her to benefits or to greater or different benefits.
Within 60 days after receipt by the Company of the petition, the Company shall
afford the Claimant (and counsel, if any) an opportunity to present his or her
position to the Company verbally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Company shall notify
the Claimant of its decision in writing within the 60-day period, stating
specifically the basis of its decision, written in a manner calculated to be
understood by the Claimant and the specific provisions of this Agreement on
which the decision is based. If, because of the need for a hearing, the 60-day
period is not sufficient, the decision may be deferred for up to another 60 days
at the election of the Company, but notice of this deferral shall be given to
the Claimant.
ARTICLE 8
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Trustee, or any assignee of the Trustee.
ARTICLE 9
MISCELLANEOUS
9.8 BINDING EFFECT. This Agreement shall bind the Trust and the Company,
their beneficiaries, survivors, executors, administrators and transferees, and
any Policy beneficiary.
9.9 NO GUARANTEE OF EMPLOYMENT. This Agreement is not a contract for
employment. It does not give the Executive the right to remain in employment
with the Company, nor does it interfere with the shareholders' rights to replace
the Executive. It also does not require the Executive to remain in the
employment of the Company nor interfere with the Executive's right to employment
at any time.
9.10 APPLICABLE LAW. The Agreement and all rights hereunder shall be
governed by
and construed according to the laws of Kansas, except to the extent preempted by
the laws of the United States of America.
9.11 REORGANIZATION. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm or person unless such succeeding or continuing company,
firm or person agrees to assume and discharge the obligations of the Company.
9.12 NOTICE. Any notice, consent or demand required or permitted to be
given under the provisions of this Split Dollar Agreement by one party to
another shall be in writing, shall be signed by the party giving or making the
same, and may be given either by delivering the same to such other party
personally, or by mailing the same, by United States certified mail, postage
prepaid, to such party, addressed to his or her last known address as shown on
the records of the Company. The date of such mailing shall be deemed the date of
such mailed notice, consent or demand.
9.13 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and the Trust as to the subject matter hereof. No rights are
granted to the Trust by virtue of this Agreement other than those specifically
set forth herein.
9.14 ADMINISTRATION. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
(e) Interpreting the provisions of the Agreement;
(f) Establishing and revising the method of accounting for the
Agreement;
(g) Maintaining a record of benefit payments; and
(h) Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
9.8 NAMED FIDUCIARY. The Company shall be the named fiduciary and plan
administrator under the Agreement. The named fiduciary may delegate to others
certain aspects of the management and operation responsibilities of the plan
including the employment of advisors and the delegation of ministerial duties to
qualified individuals.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
TRUST: COMPANY:
THE XXXXXXX X. XXXXXX TEAMBANK, N.A.
IRREVOCABLE TRUST, DATED
JANUARY 18, 2002
BY: /s/ D. Xxx Xxxxxx
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/s/ Xxxxx Xxxxx, VP & Trust Officer Title: Sr. Vice President
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TEAMBANK, N.A., TRUSTEE
The Executive accepts and agrees to the foregoing.
EXECUTIVE:
/s/ Xxxxxxx X. XxxxxX
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XXXXXXX X. XXXXXX
