EXHIBIT 10.4
WEST POINTE BANCORP, INC.
AND
WEST POINTE BANK AND TRUST COMPANY
SALARY CONTINUATION AGREEMENT
THIS SALARY CONTINUATION AGREEMENT (the "Agreement") is adopted this 30th
day of December, 2005, by and between WEST POINTE BANCORP, INC. and WEST POINTE
BANK AND TRUST COMPANY, a holding company and a state-chartered commercial bank
located in Belleville, Illinois (the "Company") and XXXX X. XXXXX (the
"Executive"). The purpose of this Agreement is to provide specified benefits to
the Executive, a member of a select group of management or highly compensated
employees who contribute materially to the continued growth, development, and
future business success of the Company. This Agreement shall be unfunded for tax
purposes and for purposes of Title I of the Employee Retirement Income Security
Act of 1974 ("ERISA"), as amended from time to time.
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Accrual Balance" means the liability that should be accrued by the
Company, under Generally Accepted Accounting Principles ("GAAP"), for
the Company's obligation to the Executive under this Agreement, by
applying Accounting Principles Board Opinion Number 12 ("APB 12") as
amended by Statement of Financial Accounting Standards Number 106 ("FAS
106") and the Discount Rate. Any one of a variety of amortization
methods may be used to determine the Accrual Balance. However, once
chosen, the method must be consistently applied. The Accrual Balance
shall be reported annually by the Company to the Executive.
1.2 "Beneficiary" means each designated person, or the estate of the
deceased Executive, entitled to benefits, if any, upon the death of the
Executive determined pursuant to Article 4.
1.3 "Beneficiary Designation Form" means the form established from time to
time by the Plan Administrator that the Executive completes, signs, and
returns to the Plan Administrator to designate one or more
Beneficiaries.
1.4 "Board" means the Board of Directors of the Company as from time to
time constituted.
1.5 "Change in Control" means a change in the ownership or effective
control of the Company, or in the ownership of a substantial portion of
the assets of the Company, as such change is defined in Section 409A of
the Code and regulations thereunder.
EXHIBIT 10.4
1.6 "Code" means the Internal Revenue Code of 1986, as amended.
1.7 "Disability" means Executive (i) is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, or
(ii) is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected
to last for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than 3 months
under an accident and health plan covering employees of the Company.
Medical determination of Disability may be made by either the Social
Security Administration or by the provider of an accident or health
plan covering employees of the Company. Upon the request of the Plan
Administrator, the Executive must submit proof to the Plan
Administrator of Social Security Administration's or the provider's
determination.
1.8 "Discount Rate" means the rate used by the Plan Administrator for
determining the Accrual Balance. The initial Discount Rate is seven and
one-half percent (7.5%). However, the Plan Administrator, in its
discretion, may adjust the Discount Rate to maintain the rate within
reasonable standards according to GAAP and/or applicable bank
regulatory guidance.
1.9 "Early Termination" means Separation from Service before Normal
Retirement Age for reasons other than death, Disability, Termination
for Cause or following a Change in Control.
1.10 "Effective Date" means November 1, 2005.
1.11 "Normal Retirement Age" means the Executive attaining age sixty five
(65).
1.12 "Plan Administrator" means the plan administrator described in
Article 6.
1.13 "Plan Year" means each 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 Plan and end on the following
December 31.
1.14 "Separation from Service" means that the Executive's service, as an
employee and independent contractor, to the Company and any member of a
controlled group as defined in Section 414 of the Code to which the
Company belongs, has terminated for any reason, other than by reason of
a leave of absence approved by the Company or the death of the
Executive.
1.15 "Termination for Cause" has that meaning set forth in Article 5.
ARTICLE 2
DISTRIBUTIONS DURING LIFETIME
EXHIBIT 10.4
2.1 Normal Retirement Benefit. Upon the Executive reaching Normal
Retirement Age while in the active service of the Company, the Company
shall distribute to the Executive the benefit described in this Section
2.1 in lieu of any other benefit under this Article.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1
is thirty six thousand four hundred dollars ($36,400).
2.1.2 Distribution of Benefit. The Company shall distribute the
annual benefit to the Executive in twelve (12) equal monthly
installments commencing on the first day of the month
following the Executive's Normal Retirement Age. The annual
benefit shall be distributed to the Executive for fifteen (15)
years.
2.2 Early Termination Benefit. Upon the Executive's Early Termination, the
Company shall distribute to the Executive the benefit described in this
Section 2.2 in lieu of any other benefit under this Article.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
vested Accrual Balance determined as of the month preceding
Separation from Service. This benefit is determined by zero
vesting during the first five Plan Years. During Plan Year 6,
the Executive shall vest in twenty percent (20%) of the
Accrual Balance, and shall continue to vest in an additional
twenty percent (20%) of said amount for each succeeding year
thereafter until the Executive becomes one hundred percent
(100%) vested in the Accrual Balance.
2.2.2 Distribution of Benefit. The Company shall distribute the
benefit to the Executive in one hundred eighty (180)
consecutive equal monthly installments commencing within
thirty (30) days following the Executive's Separation from
Service.
2.3 Disability Benefit. If the Executive's Disability results in Separation
from Service prior to Normal Retirement Age, the Company shall
distribute to the Executive the benefit described in this Section 2.3
in lieu of any other benefit under this Article.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is the
vested Accrual Balance determined as of the month preceding
Separation from Service. This benefit is determined by zero
vesting during the first five Plan Years. During Plan Year 6,
the Executive shall vest in twenty percent (20%) of the
Accrual Balance, and shall continue to vest in an additional
twenty percent (20%) of said amount for each succeeding year
thereafter until the Executive becomes one hundred percent
(100%) vested in the Accrual Balance.
2.3.2 Distribution of Benefit. The Company shall distribute the
benefit to the Executive in one hundred eighty (180)
consecutive equal monthly installments commencing within
thirty (30) days following the Executive's Separation from
Service due to Disability.
EXHIBIT 10.4
2.4 Change in Control Benefit. Upon a Change in Control the Company shall
distribute to the Executive the benefit described in this Section 2.4
in lieu of any other benefit under this Article.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is one
hundred percent (100%) of the Normal Retirement Benefit amount
described in Section 2.1.1.
2.4.2 Distribution of Benefit. The Company shall distribute the
annual benefit to the Executive in twelve (12) equal monthly
installments commencing within thirty (30) days following
Normal Retirement Age. The annual benefit shall be distributed
to the Executive for fifteen (15) years.
2.4.3 Parachute Payments. Notwithstanding any provision of this
Agreement to the contrary, to the extent any distribution(s),
if made, under this Section 2.4 would be treated as an "excess
parachute payment" under Section 280G of the Code, the Company
shall reduce or delay the distribution(s) to the extent it
would not be an excess parachute payment.
2.5 Restriction on Timing of Distribution. Notwithstanding any provision of
this Agreement to the contrary, if the Executive is considered a
"specified employee" under Section 409A of the Code and regulations
thereunder, benefit distributions that qualify as a "separation from
service" under Section 409A of the Code and regulations thereunder may
not commence earlier than six (6) months after the date of such
separation from service.
ARTICLE 3
DISTRIBUTION AT DEATH
3.1 Death During Active Service. If the Executive dies while in the active
service of the Company, the Company shall distribute to the Beneficiary
the benefit described in this Section 3.1. This benefit shall be
distributed in lieu of the benefits under Article 2.
3.1.1 Amount of Benefit. The benefit under this Section 3.1 is the
Normal Retirement Benefit amount described in Section 2.1.1.
3.1.2 Distribution of Benefit. The Company shall distribute the
annual benefit to the Beneficiary in twelve (12) equal monthly
installments commencing within thirty (30) days following
receipt by the Company of the Executive's death certificate.
The annual benefit shall be distributed to the Beneficiary for
a period of fifteen (15) years.
3.2 Death During Distribution of a Benefit. If the Executive dies after any
benefit distributions have commenced under this Agreement but before
receiving all such distributions, the Company shall distribute to the
Beneficiary the remaining benefits at the
EXHIBIT 10.4
same time and in the same amounts they would have been distributed to
the Executive had the Executive survived.
3.3 Death After Separation from Service But Before Benefit Distributions
Commence. If the Executive is entitled to benefit distributions under
this Agreement, but dies prior to the commencement of said benefit
distributions, the Company shall distribute to the Beneficiary the same
benefits that the Executive was entitled to prior to death except that
the benefit distributions shall commence within thirty (30) days
following receipt by the Company of the Executive's death certificate.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary. The Executive shall have the right, at any time, to
designate a Beneficiary(ies) to receive any benefit distributions under
this Agreement upon the death of the Executive. The Beneficiary
designated under this Agreement may be the same as or different from
the beneficiary designation under any other plan of the Company in
which the Executive participates.
4.2 Beneficiary Designation: Change. The Executive shall designate a
Beneficiary by completing and signing the Beneficiary Designation Form,
and delivering it to the Plan Administrator or its designated agent.
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. The Executive shall have the right to change a
Beneficiary by completing, signing and otherwise complying with the
terms of the Beneficiary Designation Form and the Plan Administrator's
rules and procedures, as in effect from time to time. Upon the
acceptance by the Plan Administrator of a new Beneficiary Designation
Form, all Beneficiary designations previously filed shall be cancelled.
The Plan Administrator shall be entitled to rely on the last
Beneficiary Designation Form filed by the Executive and accepted by the
Plan Administrator prior to the Executive's death.
4.3 Acknowledgment. No designation or change in designation of a
Beneficiary shall be effective until received, accepted and
acknowledged in writing by the Plan Administrator or its designated
agent.
4.4 No Beneficiary Designation. If the Executive dies without a valid
beneficiary designation, or if all designated Beneficiaries predecease
the Executive, then the Executive's spouse shall be the designated
Beneficiary. If the Executive has no surviving spouse, the benefits
shall be made to the personal representative of the Executive's estate.
4.5 Facility of Distribution. If the Plan Administrator determines in its
discretion that a benefit is to be distributed to a minor, to a person
declared incompetent, or to a person incapable of handling the
disposition of that person's property, the Plan Administrator
EXHIBIT 10.4
may direct distribution of such benefit to the guardian, legal
representative or person having the care or custody of such minor,
incompetent person or incapable person. The Plan Administrator may
require proof of incompetence, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Any distribution of a
benefit shall be a distribution for the account of the Executive and
the Executive's Beneficiary, as the case may be, and shall be a
complete discharge of any liability under the Agreement for such
distribution amount.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the Company shall not distribute any benefit under
this Agreement if Executive's service is terminated by the Board for:
(a) Gross negligence or gross neglect of duties to the Company; or
(b) Conviction of a felony or of a gross misdemeanor involving
moral turpitude in connection with the Executive's employment
with the Company; or
(c) Fraud, disloyalty, dishonesty or willful violation of any law
or significant Company policy committed in connection with the
Executive's employment and resulting in a material adverse
effect on the Company.
5.2 Suicide or Misstatement. No benefits shall be distributed if the
Executive commits suicide within two years after the Effective Date of
this Agreement, or if an insurance company which issued a life
insurance policy covering the Executive and owned by the Company denies
coverage (i) for material misstatements of fact made by the Executive
on an application for such life insurance, or (ii) for any other
reason.
5.3 Removal. Notwithstanding any provision of this Agreement to the
contrary, the Company shall not distribute any benefit under this
Agreement if the Executive is subject to a final removal or prohibition
order issued by an appropriate federal banking agency pursuant to
Section 8(e) of the Federal Deposit Insurance Act.
ARTICLE 6
ADMINISTRATION OF AGREEMENT
6.1 Plan Administrator Duties. This Agreement shall be administered by a
Plan Administrator which shall consist of the Board, or such committee
or person(s) as the Board shall appoint. The Plan Administrator shall
also have the discretion and authority to (i) make, amend, interpret
and enforce all appropriate rules and regulations for the
administration of this Agreement and (ii) decide or resolve any and all
questions including interpretations of this Agreement, as may arise in
connection with the Agreement.
6.2 Agents. In the administration of this Agreement, the Plan Administrator
may employ
EXHIBIT 10.4
agents and delegate to them such administrative duties as it sees fit,
(including acting through a duly appointed representative), and may
from time to time consult with counsel who may be counsel to the
Company.
6.3 Binding Effect of Decisions. The decision or action of the Plan
Administrator with respect to any question arising out of or in
connection with the administration, interpretation and application of
the Agreement and the rules and regulations promulgated hereunder shall
be final and conclusive and binding upon all persons having any
interest in the Agreement.
6.4 Indemnity of Plan Administrator. The Company shall indemnify and hold
harmless the members of the Plan Administrator against any and all
claims, losses, damages, expenses or liabilities arising from any
action or failure to act with respect to this Agreement, except in the
case of willful misconduct by the Plan Administrator or any of its
members.
6.5 Company Information. To enable the Plan Administrator to perform its
functions, the Company shall supply full and timely information to the
Plan Administrator on all matters relating to the date and
circumstances of the retirement, Disability, death, or Separation from
Service of the Executive, and such other pertinent information as the
Plan Administrator may reasonably require.
6.6 Annual Statement. The Plan Administrator shall provide to the
Executive, within one hundred twenty (120) days after the end of each
Plan Year, a statement setting forth the benefits to be distributed
under this Agreement.
ARTICLE 7
CLAIMS AND REVIEW PROCEDURES
7.1 Claims Procedure. An Executive or Beneficiary ("claimant") who has not
received benefits under the Agreement that he or she believes should be
distributed shall make a claim for such benefits as follows:
7.1.1 Initiation - Written Claim. The claimant initiates a claim by
submitting to the Plan Administrator a written claim for the
benefits.
7.1.2 Timing of Plan Administrator Response. The Plan Administrator
shall respond to such claimant within 90 days after receiving
the claim. If the Plan Administrator determines that special
circumstances require additional time for processing the
claim, the Plan Administrator 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
Plan Administrator expects to render its decision.
7.1.3 Notice of Decision. If the Plan Administrator denies part or
all of the claim, the
EXHIBIT 10.4
Plan Administrator shall notify the claimant in writing of
such denial. The Plan Administrator 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 Agreement
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 Agreement'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.
7.2 Review Procedure. If the Plan Administrator denies part or all of the
claim, the claimant shall have the opportunity for a full and fair
review by the Plan Administrator of the denial, as follows:
7.2.1 Initiation - Written Request. To initiate the review, the
claimant, within 60 days after receiving the Plan
Administrator's notice of denial, must file with the Plan
Administrator a written request for review.
7.2.2 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 Plan Administrator 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.
7.2.3 Considerations on Review. In considering the review, the Plan
Administrator 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.
7.2.4 Timing of Plan Administrator Response. The Plan Administrator
shall respond in writing to such claimant within 60 days after
receiving the request for review. If the Plan Administrator
determines that special circumstances require additional time
for processing the claim, the Plan Administrator 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 Plan Administrator expects to render its
decision.
7.2.5 Notice of Decision. The Plan Administrator shall notify the
claimant in writing of
EXHIBIT 10.4
its decision on review. The Plan Administrator 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 Agreement
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 8
AMENDMENTS AND TERMINATION
8.1 Amendment. This Agreement may be amended only by a written agreement
signed by the Company and the Executive. Provided, however, that the
Company may amend this Agreement to conform with legislative
requirements or written directives to the Company from its banking
regulators.
8.2 Termination. This Agreement may be terminated only by a written
agreement signed by the Company and the Executive. Upon such
termination, the Accrual Balance shall be paid to the Executive in the
form and at the time permitted under Section 409A of the Code and any
applicable subsequent authority.
ARTICLE 9
MISCELLANEOUS
9.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, administrators
and transferees.
9.2 No Guarantee of Employment. This Agreement is not a contract for
employment. It does not give the Executive the right to remain as 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 separate
from service at any time.
9.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
9.4 Tax Withholding. The Company shall withhold any taxes that are required
to be withheld, under Section 409A of the Code and regulations
thereunder, from the benefits provided under this Agreement. The
Executive acknowledges that the Company's sole
EXHIBIT 10.4
liability regarding taxes is to forward any amounts withheld to the
appropriate taxing authority(ies).
9.5 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.
9.6 Unfunded Arrangement. The Executive and Beneficiary are general
unsecured creditors of the Company for the distribution of benefits
under this Agreement. The benefits represent the mere promise by the
Company to distribute 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 or other informal
funding asset is a general asset of the Company to which the Executive
and Beneficiary have no preferred or secured claim.
9.7 Reorganization. The Company shall not merge or consolidate into or with
another bank, or reorganize, or sell substantially all of its assets to
another bank, firm, or person unless such succeeding or continuing
bank, 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 bank.
9.8 Notice. Any notice or filing required or permitted to be given to the
Company or Plan Administrator under this Agreement shall be sufficient
if in writing and hand-delivered, or sent by registered or certified
mail, to the address below:
West Pointe Bancorp, Inc.
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to the Executive
under this Agreement shall be sufficient if in writing and
hand-delivered, or sent by mail, to the last known address of the
Executive.
9.9 Entire Agreement. This Agreement, along with the Executive's
Beneficiary Designation Form, constitutes the entire agreement between
the Company and the Executive as to the subject matter hereof. No
rights are granted to the Executive under this Agreement other than
those specifically set forth herein.
EXHIBIT 10.4
IN WITNESS WHEREOF, the Executive and a duly authorized representative of
the Company have signed this Agreement.
EXECUTIVE: COMPANY:
WEST POINTE BANCORP, INC. AND
WEST POINTE BANK AND TRUST COMPANY
/s/ Xxxx X. Xxxxx BY /s/ Xxxxx X. Bone
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XXXX X. XXXXX TITLE: EXECUTIVE VICE PRESIDENT & CFO
