EXHIBIT 10.28
WEST POINTE BANK AND TRUST COMPANY
AMENDMENT TO
SPLIT-DOLLAR AGREEMENT
THIS AMENDMENT, adopted this 23rd day of December, 2003, hereby amends and
restates the SPLIT-DOLLAR AGREEMENT made December 12, 2000, by and between WEST
POINTE BANK AND TRUST COMPANY, a state-chartered commercial bank located in
Belleville, Illinois (the "Company"), and XXXXXX X. XXXX (the "Executive"). This
Agreement shall append the Split-Dollar Endorsement entered into on even date
herewith or as subsequently amended, by and between the aforementioned parties.
INTRODUCTION
To encourage the Executive to remain an employee of 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 life insurance premiums from its
general assets.
AGREEMENT
The Company and the Executive agree as follows:
ARTICLE 1
GENERAL DEFINITIONS
The following terms shall have the meanings specified:
1.1 "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;
(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 liquidation or dissolution of either West Pointe Bancorp,
Inc. or West Pointe Bank and Trust Company.
1.2 "Insured" means the Executive.
1.3 "Insurer" means the insurance company issuing the Policy on the life
of the Insured.
1.4 "Net Death Proceeds" means the total death proceeds of the Policy
minus the cash surrender value.
1.5 "Normal Retirement Age" means the Executive's 65th birthday.
1.6 "Policy" means the insurance policy or policies adopted by the
Company for purposes of insuring the Executive's life under this Agreement.
1.7 "Policy Expenses" means any cash payment associated with maintaining
the Policy in full force and effect.
1.8 "Termination of Employment" means the Executive ceasing to be
employed by the Company for any reason whatsoever, other than by reason of an
approved leave of absence.
ARTICLE 2
POLICY OWNERSHIP/INTERESTS
2.1 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 beneficiary of the remaining death proceeds of the Policy after the
interest of the Executive or the Executive's transferee has been paid according
to Section 2.2 below.
2.2 Executive's Interest. The Executive shall have the right to designate
the beneficiary of $250,000 of death proceeds from the Policy, provided such
amount does not exceed the Net Death Proceeds. The Executive shall also have the
right to elect and change settlement options for the Executive's Interest that
may be permitted. However, the Executive, the Executive's transferee or the
Executive's beneficiary 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 Normal Retirement Age.
2.3 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 Executive or the Executive's transferee the option to purchase the Policy by
one of the methods specified below for a period of sixty (60) days from written
notice of such intention. This provision shall not impair the right of the
Company to terminate this Agreement.
2.3.1 Full Policy Purchase. If the Company elects to terminate the
Plan the Executive or his/her transferee shall have the right to purchase
the Policy from the Company. The purchase price shall be an amount equal
to the cash surrender value of the Policy. Upon receipt of such purchase
price, the Company shall assign ownership of the Policy to the Executive
or his/her transferee and relinquish all existing rights to the Policy.
2.3.2 Net Death Proceeds Purchase. If the Company elects to
terminate the Plan the Executive or his/her transferee shall have the
right to purchase the Executive's Interest in the Policy as identified in
Section 2.2 above. The Company shall withdraw the Policy's cash surrender
value and assign ownership of the Policy to the Executive or his/her
transferee. The Executive or his/her transferee shall thereafter assume
responsibility for any fees and/or cost of insurance charges (the "Policy
Expenses") as necessary to sustain the Policy. If the Executive or his/her
transferee incurs Policy Expenses, the Company shall annually reimburse
the Executive or his/her transferee an amount equal to the annual Policy
Expenses divided by one minus the Executive's combined marginal income tax
rate for the calendar year immediately preceding such payment. The
Company's reimbursement payment shall be made within 30 days following
receipt by the Company of evidence of the payment of the Policy Expenses.
The Company's obligation to make reimbursement payments will automatically
terminate upon the Executive's Termination of Employment prior to Normal
Retirement Age. If the Executive's Termination of Employment occurs at or
after Normal Retirement Age, reimbursement payments shall continue until
the Executive's death.
2.4 Comparable Coverage. Nothing herein negates the Company's right to
amend or terminate this Plan under Article 7. The Company is not obligated to
provide any additional resources to maintain the Policy in full force and
effect. In addition, the Company may replace each Policy with a comparable
insurance policy to cover the benefit provided under this Plan and the Company
and the Executive shall execute a new Split-Dollar Policy Endorsement for each
new Policy. The cash surrender value and any additional death proceeds exclusive
of those designated in Section 2.2 above for each new Policy or any comparable
policy shall be subject to the claims of the Company's creditors. In the event
that the Company decides to maintain the Policy after the Executive's
Termination of Participation in the Plan, the Company shall be the direct
beneficiary of the entire death proceeds of the Policy.
2.5 Change of Control. Upon Termination of Employment after a 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
Executive's interest in the Policy. However, the Company may replace the Policy
with a comparable insurance policy to cover the benefit provided under this
Agreement. The cash surrender value and any additional death proceeds exclusive
of those designated in Section 2.2 above for the Policy or any comparable policy
shall be subject to the
claims of the Company's creditors.
ARTICLE 3
PREMIUMS
3.1 Premium Payment. The Company shall pay any premiums due on the Policy,
except as provided in Section 2.3.2..
3.2 Imputed Income. The Company shall impute income to the Executive in an
amount equal to the current term rate for the Executive's age multiplied by the
aggregate death benefit payable to the Executive's beneficiary. The "current
term rate" is the minimum amount required to be imputed under IRS Notice 2002-8,
or any subsequent applicable authority.
ARTICLE 4
ASSIGNMENT
The Executive may assign without consideration all of the Executive's
interests in the Policy and in this Agreement to any person, entity or trust. In
the event the Executive transfers all of the Executive's interest in the Policy,
then all of the Executive's interest in the Policy and in the Agreement shall be
vested in the Executive's transferee, who shall be substituted as a party
hereunder and the Executive 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
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. Any person or entity who has not received benefits
under the Plan that he or she believes should be paid (the "claimant") shall
make a claim for such benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a claim by
submitting to the Company a written claim for the benefits.
6.1.2 Timing of Company Response. The Company shall respond to such
claimant within 90 days after receiving the claim. If the Company
determines that special
circumstances require additional time for processing the claim, the
Company can extend the response period by an additional 90 days by
notifying the claimant in writing, prior to the end of the initial 90-day
period, that an additional period is required. The notice of extension
must set forth the special circumstances and the date by which the Company
expects to render its decision.
6.1.3 Notice of Decision. If the Company denies part or all of the
claim, the Company shall notify the claimant in writing of such denial.
The Company shall write the notification in a manner calculated to be
understood by the claimant. The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of the Plan on
which the denial is based,
(c) A description of any additional information or material
necessary for the claimant to perfect the claim and an explanation
of why it is needed,
(d) An explanation of the Plan's review procedures and the
time limits applicable to such procedures, and
(e) A statement of the claimant's right to bring a civil
action under ERISA Section 502(a) following an adverse benefit
determination on review.
6.2 Review Procedure. If the Company denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Company of
the denial, as follows:
6.2.1 Initiation - Written Request. To initiate the review, the
claimant, within 60 days after receiving the Company's notice of denial,
must file with the Company a written request for review.
6.2.2 Additional Submissions - Information Access. The claimant
shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim. The Company shall
also provide the claimant, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other information
relevant (as defined in applicable ERISA regulations) to the claimant's
claim for benefits.
6.2.3 Considerations on Review. In considering the review, the
Company shall take into account all materials and information the claimant
submits relating to the claim, without regard to whether such information
was submitted or considered in the initial benefit determination.
6.2.4 Timing of Company Response. The Company shall respond in
writing to such claimant within 60 days after receiving the request for
review. If the Company determines that special circumstances require
additional time for processing the claim, the Company can extend the
response period by an additional 60 days by notifying the claimant in
writing, prior to the end of the initial 60-day period, that an additional
period is required. The notice of extension must set forth the special
circumstances and the date by which the Company expects to render its
decision.
6.2.5 Notice of Decision. The Company shall notify the claimant in
writing of its decision on review. The Company shall write the
notification in a manner calculated to be understood by the claimant. The
notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of the Plan on
which the denial is based,
(c) A statement that the claimant is entitled to receive,
upon request and free of charge, reasonable access to, and copies
of, all documents, records and other information relevant (as
defined in applicable ERISA regulations) to the claimant's claim for
benefits, and
(d) A statement of the claimant's right to bring a civil
action under ERISA Section 502(a).
ARTICLE 7
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated by the Company at any time prior to
a Change of Control. However, subsequent to a Change of Control, the Agreement
may be amended or terminated only by a written agreement signed by the Company
and the Executive. This Agreement will automatically terminate upon the
Executive's Termination of Employment prior to Normal Retirement Age.
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company and their beneficiaries, survivors, executors, administrators and
transferees, and any Policy beneficiary.
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 Applicable Law. The Agreement and all rights hereunder shall be
governed by and construed according to the laws of the State of Illinois, except
to the extent preempted by the laws of the United States of America.
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.
8.5 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.
8.6 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.
8.7 Administration. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
(a) Interpreting the provisions of this Agreement;
(b) Establishing and revising the method of accounting for this
Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer this Agreement.
8.8 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.
COMPANY:
WEST POINTE BANK AND TRUST COMPANY
BY /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
TITLE President and CEO
EXECUTIVE:
/s/ Xxxxxx X. Xxxx
--------------------------------------------
XXXXXX X. XXXX
SPLIT DOLLAR POLICY ENDORSEMENT
WEST POINTE BANK AND TRUST COMPANY
SPLIT DOLLAR AGREEMENT
Policy No. 86001161 Insured: Xxxxxx X. Xxxx
Supplementing and amending the application of July 26, 2000, to Great-West Life
& Annuity Insurance Company ("Insurer"), the applicant requests and directs
that:
BENEFICIARIES
1. West Pointe Bank and Trust Company, a state banking association located
in Belleville, Illinois (the "Company"), shall be the direct beneficiary of the
death proceeds of the Policy remaining after the Insured or the Insured's
transferee's interest has been paid pursuant to paragraph (2) below.
2. The beneficiary of $250,000 of death proceeds of the Policy shall be
named by the Insured, subject to the provisions of paragraph (5) below.
OWNERSHIP
3. The Owner of the policy shall be the Company. The Owner shall have all
ownership rights in the Policy except as may be specifically granted to the
Insured or the Insured's transferee in paragraph (4) of this endorsement.
4. The Insured or the Insured's transferee shall have the right to assign
his or her rights and interests in the Policy with respect to that portion of
the death proceeds designated in paragraph (2) of this endorsement, and to
exercise all settlement options with respect to such death proceeds.
5. Notwithstanding the provisions of paragraph (4) above, the Insured or
the Insured's transferee shall have no rights or interests in the Policy with
respect to that portion of the death proceeds designated in paragraph (2) of
this endorsement if the Insured ceases to be employed by the Company prior to
the Normal Retirement Age of 65 for any reason whatsoever (other than by reason
of a leave of absence which is approved by the Company), unless otherwise agreed
to by the Company and the Executive.
MODIFICATION OF ASSIGNMENT PROVISIONS OF THE POLICY
Upon the death of the Insured, the interest of any collateral assignee of the
Owner of the Policy designated in (3) above shall be limited to the portion of
the proceeds described in paragraph (1) above.
OWNERS AUTHORITY
The Insurer is hereby authorized to recognize the Owner's claim to rights
hereunder without investigating the reason for any action taken by the Owner,
including its statement of the amount of premiums it has paid on the Policy. The
signature of the Owner shall be sufficient for the exercise of any rights under
this Endorsement and the receipt of the Owner for any sums received by it shall
be a full discharge and release therefore to the Insurer.
Any transferee's rights shall be subject to this Endorsement.
Signed at _________________, Illinois, this _______ day of ______________, 2000.
WEST POINTE BANK AND TRUST COMPANY
By _________________________________
Its ________________________________
The Insured accepts and agrees to the foregoing and, subject to the rights of
the Owner as stated above, designates the following beneficiary(ies) of the
portion of the proceeds described in paragraph (2) above.
Primary beneficiary _______________________________________________________ and
Secondary/contingent beneficiary _______________________________________________
Signed at _________________, Illinois, this ________ day of _____________, 2000.
THE INSURED:
___________________________________
Xxxxxx X. Xxxx
