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EXHIBIT 10.5
WEST POINTE BANCORP, INC.
AND
WEST POINTE BANK AND TRUST COMPANY
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is made this 29th day of December, 2000, by and
between West Pointe Bancorp, Inc. and West Pointe Bank and Trust Company, a
holding company and a state commercial bank located in Belleville, IL (jointly
considered the "Company") and Xxxxx Xxxxxxxx (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of West Pointe Bank
and Trust Company, the Company is willing to provide salary continuation
benefits to the Executive. The Company will pay the benefits from its general
assets.
AGREEMENT
The Executive and the Company agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Actuarial Equivalent" means a benefit of equivalent value
computed on the assumptions of interest at the rate of nine percent
(9%) per annum compounded annually and mortality calculated in
accordance with the 1983 Group Annuity Mortality Table using blended
mortality factors of fifty percent (50%) female and fifty percent (50%)
male.
1.2 "Change of Control" means :
(a) The consummation by either West Pointe Bancorp, Inc. or
West Pointe Bank and Trust Company of a merger, consolidation or other
reorganization if the percentage of the voting common stock of the
surviving or resulting entity held or received by all persons who were
owners of common stock of West Pointe Bancorp, Inc. or West Pointe Bank
and Trust Company, whichever is applicable, immediately prior to such
merger, consolidation or reorganization is less than 50.1% of the total
voting common stock of the surviving or resulting entity outstanding
immediately after such merger, consolidation or reorganization and
after giving effect to any additional issuance of voting common stock
contemplated by the plan for such merger, consolidation or
reorganization;
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(b) At any time during a period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors of either West Pointe Bancorp, Inc. or West Pointe Bank
and Trust Company shall cease for any reason to constitute at least a
majority thereof, unless the election or the nomination for election by
West Pointe Bancorp, Inc.'s or West Pointe Bank and Trust Company's
shareholders, whichever is applicable, of each new director during such
two year period was approved by a vote of at least two-thirds of the
directors of such entity then still in office who were directors at the
beginning of such two year period;
(c) The sale, lease, exchange or other transfer of all or
substantially all of the assets (in one transaction or in a series of
related transactions) of either West Pointe Bancorp, Inc. or West
Pointe Bank and Trust Company to another corporation or entity that is
not owned, directly or indirectly, by either West Pointe Bancorp, Inc.
or West Pointe Bank and Trust Company. "Substantially all" shall mean a
sale, lease, exchange or other transfer involving seventy percent (70%)
or more of the fair market value of the assets of such entity; or
(d) The shareholders of either West Pointe Bancorp, Inc. or
West Pointe Bank and Trust Company approve any plan or proposal for the
liquidation or dissolution of such entity;
followed within twelve (12) months by the Executive's Termination of Employment
for reasons other than death, Disability or retirement.
1.3 "Code" means the Internal Revenue Code of 1986, as
amended.
1.4 "Disability" means, if the Executive is covered by a
Company sponsored disability policy, total disability as defined in
such policy without regard to any waiting period. If the Executive is
not covered by such a policy, Disability means the Executive suffering
a sickness, accident or injury which, in the judgment of a physician
satisfactory to the Company, prevents the Executive from performing
substantially all of the Executive's normal duties for the Company. As
a condition to receiving any Disability benefits, the Company may
require the Executive to submit to such physical or mental evaluations
and tests as the Company's Board of Directors deems appropriate.
1.5 "Early Termination" means the Termination of Employment
before Normal Retirement Age for reasons other than death, Disability,
Termination for Cause or following a Change of Control.
1.6 "Early Termination Date" means the month, day and year in
which Early Termination occurs.
1.7 "Effective Date" means December 1, 2000.
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1.8 "Normal Retirement Age" means the Executive's 65th
birthday.
1.9 "Normal Retirement Date" means the later of the Normal
Retirement Age or Termination of Employment.
1.10 "Plan Year" means a twelve-month period commencing on
January 1 and ending on December 31 of each year. The initial Plan Year
shall commence on the effective date of this Agreement.
1.11 "Termination for Cause." See Section 5.2.
1.12 Termination of Employment" means that the Executive
ceases to be employed by West Pointe Bank and Trust Company for any
reason whatsoever other than by reason of a leave of absence, which is
approved by West Pointe Bank and Trust Company. For purposes of this
Agreement, if there is a dispute over the employment status of the
Executive or the date of the Executive's Termination of Employment,
West Pointe Bank and Trust Company shall have the sole and absolute
right to decide the dispute.
ARTICLE 2
BENEFITS DURING LIFETIME
2.1 Normal Retirement Benefit. Upon Termination of Employment on or
after the Normal Retirement Age for reasons other than death, the Company shall
pay to the Executive the benefit described in this Section 2.1 in lieu of any
other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section
2.1 is $153,200 (One Hundred Fifty Three Thousand Two Hundred Dollars
and no/100).
2.1.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Executive's Normal Retirement Date. The annual benefit shall be paid to
the Executive for 15 years.
2.1.3 Benefit Increases. Commencing on the first anniversary
of the first benefit payment, and continuing on each subsequent
anniversary, the Company's Board of Directors, in its sole discretion,
may increase the benefit.
2.2 Early Termination Benefit. Upon Early Termination, the Company
shall pay to the Executive the benefit described in this Section 2.2 in lieu of
any other benefit under this Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is
the Early Termination Annual Benefit amount set forth in Schedule A for
the Plan Year ending immediately prior to the Early Termination Date.
The Early Termination Annual
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Benefit amount is determined by calculating a fixed annuity which is
payable in 15 annual equal installments, crediting interest on the
unpaid balance of the Accrued Balance at an annual rate of 9 percent,
compounded monthly.
2.2.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive for 15 years.
2.2.3 Benefit Increases. Benefit payments may be increased as
provided in Section 2.1.3.
2.3 Disability Benefit. If the Executive terminates employment due to
Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.3 in lieu of any other benefit
under this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is
the Disability Annual Benefit amount set forth in Schedule A for the
Plan Year ending immediately prior to the date in which the Termination
of Employment occurs. The Disability Annual Benefit amount is
determined by calculating a fixed annuity which is payable in 15 annual
equal installments, crediting interest on the unpaid balance of the
Accrual Balance at an annual rate of 9 percent, compounded monthly.
2.3.2 Payment of Benefit. The Company shall pay the annual
benefit amount to the Executive in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Termination of Employment. The annual benefit shall be
paid to the Executive for 15 years.
2.3.3 Benefit Increases. Benefit payments may be increased as
provided in Section 2.1.3.
2.4 Change of Control Benefits. Upon a Change of Control, the Company
shall pay to the Executive the benefit described in this Section 2.4 in lieu of
any other benefit under this Agreement.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is
the Normal Retirement Benefit described in Section 2.1 as if the date
of the Change of Control were the Executive's Normal Retirement Date.
2.4.2 Payment of Benefit. The Company shall pay the annual
benefit amount to the Executive in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the attainment of age 65. The benefit shall be paid to the
Executive for 15 years.
2.4.3 Benefit Increases. Benefit payments may be increased as
provided in Section 2.1.3.
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2.4.4 Election of Lump Sum Benefit. Notwithstanding the
foregoing, subject to approval by the Board of Directors of the
Company, the Executive may elect to receive his benefit in a lump sum;
provided that the Executive makes the request to receive a lump sum
benefit no later than one year prior to the date the benefit would
otherwise be distributed. Any such request which is made later than one
year prior to distribution shall be void. The amount of the lump sum
benefit shall be the Actuarial Equivalent of the Normal Retirement
Benefit described in Section 2.1 (calculated without regard to any
other provision of this Agreement) and shall be paid by the Company
within 60 days of the date of the Change of Control.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. If the Executive dies while employed
by West Pointe Bank and Trust Company, the Company shall pay to the Executive's
beneficiary the benefit described in this Section 3.1. This benefit shall be
paid in lieu of the Benefits During Lifetime of Article 2.
3.1.1 Amount of Benefit. The benefit is the Accrual Balance
set forth in Schedule A for the Plan Year ending immediately prior to
the death of the Executive.
3.1.2 Payment of Benefit. The Company shall pay the benefit to
the Executive's beneficiary in a lump sum within 60 days of the date of
death of the Executive.
3.2 Death During Benefit Period. If the Executive dies after the
benefit payments have commenced under this Agreement but before receiving all
such payments, the Company shall pay the remaining benefits to the Executive's
beneficiary at the same time and in the same amounts they would have been paid
to the Executive had the Executive survived.
3.3 Death After Termination of Employment But Before Benefit Payments
Commence. If the Executive is entitled to benefit payments under this Agreement,
but dies prior to the commencement of said benefit payments, the Company shall
pay the benefit payments to the Executive's beneficiary that the Executive was
entitled to prior to death except that the benefit payments shall commence on
the first day of the month following the date of the Executive's death.
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ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Company. The Executive may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive and
accepted by the Company during the Executive's lifetime. The Executive's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Executive, or if the Executive names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incapacitated, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incapacitated person or incapable person. The Company may require proof
of incapacity, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Excess Parachute Payment. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
agreement to the extent the benefit would create an excise tax under the excess
parachute rules of Section 280G of the Code.
5.2 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement if the Company terminates the Executive's employment for:
(a) Commission of a felony or of a gross misdemeanor involving
moral turpitude;
(b) Fraud, disloyalty, dishonesty or willful violation of any
law or significant Company policy committed in connection with the
Executive's employment and resulting in an adverse effect on the
Company.
5.3 Suicide or Misstatement. The Company shall not pay any benefit
under this Agreement if the Executive commits suicide within two years after the
date of this Agreement, or if the Executive has made any material misstatement
of fact on any application for life insurance purchased by the Company for the
purpose of providing funds to meet its obligations hereunder.
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5.4. Competition After Termination of Employment. The Company shall not
pay any benefit under this Agreement if, during the three year period commencing
on the date of the Executive's Termination of Employment, the Executive, without
the prior written consent of the Company, engages in, becomes interested in,
directly or indirectly, as a sole proprietor, as a partner in a partnership, or
as a substantial shareholder (defined as a 10% ownership interest) in a
corporation, or becomes associated with, in the capacity of employee, director,
officer, principal, agent, trustee or in any other capacity whatsoever, any
enterprise conducted in the trading area (a 10 mile radius) of the principal
place of business of the Company, which enterprise is, or may be deemed to be
competitive with any business carried on by the Company as of the date of
termination of the Executive's employment or retirement. This section shall not
apply following a Change of Control. This section shall not require the
Executive to repay any benefits previously received under this Agreement.
ARTICLE 6
CLAIMS AND REVIEWS PROCEDURES
6.1 Claims Procedure. The Company shall notify any person or entity
that makes a claim against the Agreement (the "Claimant") in writing, within
ninety (90) days of Claimant's written application for benefits, of his or her
eligibility or noneligibility for benefits under the 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 the 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 the 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 ninety (90)
days.
6.2 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 sixty (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 sixty (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
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within the sixty-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 the Agreement on which the decision is based. If,
because of the need for a hearing, the sixty-day period is not sufficient, the
decision may be deferred for up to another sixty (60) days at the election of
the Company, but notice of this deferral shall be given to the Claimant.
ARTICLE 7
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
Notwithstanding the previous paragraph in this Article 7, the Company
may amend or terminate this Agreement at any time if, pursuant to legislative,
judicial or regulatory action, continuation of the Agreement would cause
benefits to be taxable to the Executive prior to actual receipt, but in no event
shall the benefits provided the Executive hereunder be reduced without his
written consent.
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain an
employee of the Company, nor does it interfere with the Company's right to
discharge the Executive. It also does not require the Executive to remain an
employee nor interfere with the Executive's right to terminate employment at any
time.
8.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
8.4 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
under this Agreement. Upon the occurrence of such event, the term "Company" as
used in this Agreement shall be deemed to refer to the successor or survivor
company.
8.5 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.6 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Illinois, except to the extent preempted
by the laws of the United States of America.
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8.7 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Company for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Company to pay such
benefits. The rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors. Any insurance on the Executive's life is a general
asset of the Company to which the Executive and beneficiary have no preferred or
secured claim.
8.8 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive as to the subject matter hereof. No rights
are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
8.9 Administration. The Company shall have powers which are necessary
to administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting for the
Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
8.10 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 Executive and a duly authorized Company officer
have signed this Agreement.
EXECUTIVE: COMPANY:
West Pointe Bank and Trust Company
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxx X. Bone
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Xxxxx Xxxxxxxx Title: Senior Vice President and Chief
Financial Officer
West Pointe Bancorp, Inc.
By: /s/ Xxxxx X. Bone
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Title: Senior Vice Presidend and Chief
Financial Officer
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WEST POINTE BANK AND TRUST COMPANY
XXXXX XXXXXXXX
SALARY CONTINUATION PLAN - SCHEDULE A
Normal Early Termination Change of Control
Plan Retirement Accrual Annual Benefit Annual Benefit Disability Annual Benefit
Year Benefit Balance Payable Immediately Payable @ age 65 Payable Immediately
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1 153,200 70,228 8,548 153,200 8,548
2 153,200 147,044 17,897 153,200 17,897
3 153,200 231,067 27,124 153,200 27,124
4 153,200 322,970 39,309 153,200 39,309
5 153,200 423,496 51,544 153,200 51,544
6 153,200 533,451 64,927 153,200 64,927
7 153,200 653,720 79,566 153,200 79,566
8 153,200 785,272 95,577 153,200 95,577
9 153,200 929,164 113,090 153,200 113,090
10 153,200 1,086,555 132,274 153,200 132,247
11 153,200 1,258,709 153,200 153,200 153,200
