EXHIBIT 10.6
Monroe Bank & Trust
Group Term Carve Out Plan
The following agreement was entered into by the Bank and H. Xxxxxxx Xxxxxxx, as
well as with another unnamed officer.
THIS PLAN is made and entered into this 20th day of December 2001, by and
between the Monroe Bank & Trust, a Michigan-chartered commercial bank located in
Monroe, Michigan (the "Company") and the Participant selected to participate in
this Plan (the "Participant").
INTRODUCTION
The Company wishes to attract and retain highly qualified executives. To further
this objective, the Company is willing to divide the death proceeds of certain
life insurance policies which are owned by the Company on the lives of the
participating executives with the designated beneficiary of each insured
participating executive. The Company will pay the life insurance premiums from
its general assets.
Article 1
Definitions
Whenever used in this Plan, the following terms shall have the meanings
specified:
1.1 " Base Annual Salary" means the current base annual salary of the
Participant at the earliest of (1) the date of the Participant's death; (2) the
date of the Participant's Disability; (3) the Participant's Early Retirement
Date; or (4) the Participant's Normal Retirement Date. Current Base Annual
Salary shall be defined by reference to compensation of the type that would be
required to be reported by Securities and Exchange Commission Rule 228.402(b)
(17 C.F.R. ss.228.402(b)), specifically column (c) of that rule's Summary
Compensation Table (or any successor provision).
1.2 [Intentionally Left Blank]
1.3 "Compensation Committee" means either the Compensation Committee
designated from time to time by the Company's Board of Directors (as of the date
this Plan is created, the Company identifies the board committee performing this
function as the Personnel Committee) or a majority of the Company's Board of
Directors, either of which shall hereinafter be referred to as the Compensation
Committee.
1.4 "Disability" means, if the Participant is covered by a
Company-sponsored disability policy, total disability as defined in such policy
without regard to any waiting period. If the Participant is not covered by such
a policy, Disability means the Participant suffering a sickness, accident or
injury which, in the judgment of a physician satisfactory to the Company,
prevents the Participant from performing substantially all of the Participant's
normal duties for the Company. As a condition to any benefits, the Company may
require the Participant to submit to such physical or mental evaluations and
tests as the Company's Board of Directors deems appropriate. Any one of the
following events also constitutes Disability: the total and irrecoverable loss
of speech or hearing; the loss of sight of both eyes; the severance of both
hands at or above the wrist; the severance of both feet at or above the ankles;
or the severance of one entire hand and one entire foot.
1.5 "Early Retirement Age" means the Participant's attaining age 55,
provided the Participant must have at least 5 Years of Service with the Company
as of the Participant's 55th birthday.
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1.6 "Early Termination" means the Termination of Employment before
Early Retirement Age for reasons other than death, Disability, or Termination
for Cause.
1.7 "Early Termination Date" means the month, day and year in which
Early Termination Occurs.
1.8 [Intentionally Left Blank]
1.9 "Insured" means the individual whose life is insured.
1.10 "Insurer" means the insurance company issuing the life insurance
policy on the life of the Insured.
1.11 "Normal Retirement Age" means the Participant attaining age 65.
1.12 "Normal Retirement Date" means the later of the Normal Retirement
Age or the date that the Participant terminates or is terminated for any reason
other than Termination for Cause.
1.13 "Participant" means the employee who is designated by the
Compensation Committee as eligible to participate in the Plan, elects in writing
to participate in the Plan using the form attached hereto as Exhibit A, and
signs a Split Dollar Endorsement for the Policy in which he or she is the
Insured.
1.14 "Policy" or "Policies" means the individual insurance policy or
policies adopted by the Compensation Committee for purposes of insuring a
Participant's life under this Plan.
1.15 "Plan" means this instrument, including all amendments thereto.
1.16 "Terminated for Cause" or "Termination for Cause" means that the
Company has terminated the Participant's employment for any of the following
reasons:
(a) Gross negligence or gross neglect of duties;
(b) Commission of a felony or of a gross misdemeanor involving
moral turpitude; or
(c) Fraud, disloyalty, dishonesty or willful violation of any
law or significant Company policy committed in connection with the
Participant's employment and resulting in an adverse effect on the
Company. No act, or failure to act, on the Participant's part shall be
considered "willful" unless he has acted, or failed to act, with an
absence of good faith and without a reasonable belief that his action
or failure to act was in the best interest of the Company.
1.17 "Years of Service" means the total number of twelve-month periods
during which the Participant serves as an employee of the Company.
Article 2
Participation
2.1 Eligibility to Participate. The Compensation Committee in its sole
discretion shall designate from time to time Participants that are eligible to
participate in this Plan.
2.2 Participation. The eligible executive may participate in this Plan
by executing an Election to Participate and a Split Dollar Endorsement. The
Split Dollar Endorsement shall bind the Participant and his or her
beneficiaries, assigns and transferees, to the terms and conditions of this
Plan. An executive's participation is limited to only Policies where he or she
is the Insured. Exhibit B attached hereto sets forth the original Insured
Participants and the Policies on their lives.
2.3 Termination of Participation. A Participant's rights under this
Plan shall cease and his or her participation in this Plan shall terminate if
any of the following events occur:
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(a) If the Participant is Terminated for Cause.
(b) If the Participant's employment with the Company is
terminated prior to the Early Retirement Age for reasons other than
Disability.
(c) If the Participant terminates employment due to Disability
and thereafter becomes gainfully employed with an entity other than the
Company.
In the event that the Company decides to maintain the Policy after the
Participant's termination of participation in the Plan, the Company shall be the
direct beneficiary of the entire death proceeds of the Policy.
2.4 Maintaining the Policy and Endorsement until Death. If any of the
events listed below occur, the Company shall maintain the Policy in full force
and effect and, in no event, shall the Company amend, terminate or otherwise
abrogate the Participant's interest in the Policy, unless the Participant agrees
pursuant to section 8.1. The Company may replace the Policy with a comparable
insurance policy to cover the benefit provided under this Agreement if the
Company and Participant execute a new Split Dollar Policy Endorsement for a
comparable benefit, which Policy or any comparable policy shall be subject to
the claims of the Company's creditors.
(a) Disability. If the Participant's employment with the
Company is terminated due to Disability.
(b) Retirement. If the Participant's employment with the
Company is terminated on or after Early Retirement Age.
(c) [Intentionally Left Blank]
Article 3
Policy Ownership/Interests
3.1 Participant's Interest. With respect to each Policy, the
Participant or the Participant's assignee shall have the right to designate the
beneficiary of one of the following death benefit amounts:
(a) Pre-Retirement Death Benefit. If the Participant was
employed by the Company at the time of death, the death benefit shall
be the lesser of (i) two times the Participant's Base Annual Salary,
less the Participant's $50,000 group term life insurance benefit under
the Company's group term life insurance policy; or (ii) $1 million.
(b) Post-Retirement Death Benefit. If the Participant was no
longer employed by the Company at the time of death, but had terminated
employment due to Disability or on or after Early Retirement Age, the
death benefit shall be the lesser of (i) one times the Participant's
Base Annual Salary or (ii) $1 million.
The Participant shall also have the right to elect and change settlement options
with the consent of the Company and the Insurer.
3.2 Company's Interest. The Company shall own the Policies and shall
have the right to exercise all incidents of ownership except that the Company
shall not sell, surrender or transfer ownership of a Policy so long as a
Participant has an interest in the Policy during the time periods as described
in section 3.1. This provision shall not impair the right of the Company to
terminate this Plan. With respect to each Policy, the Company shall be the
direct beneficiary of the remaining death proceeds of the Policy after the
Participant's Interest is determined according to section 3.1.
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Article 4
Premiums
4.1 Premium Payment. The Company shall pay all premiums due on all
Policies.
4.2 Imputed Income. The Company shall impute income to the Participant
in an amount equal to the current term rate for the Participant's age multiplied
by the aggregate death benefit payable to the Participant's beneficiary. The
"current term rate" is the minimum amount required to be imputed under Revenue
Rulings 64-328 and 66-110, or any subsequent applicable authority.
Article 5
Assignment
Any Participant may assign without consideration all interests in his
or her Policy and in this Plan to any person, entity or trust. In the event a
Participant shall transfer all of his or her interest in the Policy, then all of
that Participant's interest in his or her Policy and in the Plan shall be vested
in his or her transferee, who shall be substituted as a party hereunder, and
that Participant shall have no further interest in his or her Policy or in this
Plan.
Article 6
Insurer
The Insurer shall be bound only by the terms of their corresponding
Policy. Any payments the Insurer makes or actions it takes in accordance with a
Policy shall fully discharge it from all claims, suits and demands of all
persons relating to that Policy. The Insurer shall not be bound by the
provisions of this Plan. The Insurer shall have the right to rely on the
Company's representations with regard to any definitions, interpretations, or
Policy interests as specified under this Plan.
Article 7
Claims Procedure
7.1 Claims Procedure. The Company shall notify any person or entity
that makes a claim against this Plan (the "Claimant"), in writing, within ninety
(90) days of Claimant's written application for benefits, of his or her
eligibility or benefits under this Plan. If the Company determines that 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 Plan 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 Plan'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.
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 sixty (60) days after receipt of the notice
issued by the Company. Said petition shall state the specific reasons which the
Claimant believes entitles 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
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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 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 this Plan 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 8
Amendments and Termination
8.1 Amendment or Termination of Plan. Except as otherwise provided in
section 2.4 (i) the Company may amend or terminate the Plan at any time, and
(ii) the Company may amend or terminate a Participant's rights under the Plan at
any time prior to a Participant's death by written notice to the Participant.
8.2 [Intentionally Left Blank]
8.3 Participant Waiver. A Participant may, in the Participant's sole
and absolute discretion, waive his or her rights under the Plan at any time. Any
waiver permitted under this section 8.3 shall be in writing and delivered to the
Board of Directors of the Company.
Article 9
Miscellaneous
9.1 Binding Effect. This Plan in conjunction with each Split Dollar
Endorsement shall bind each Participant and the Company, their beneficiaries,
survivors, executors, administrators and transferees and any Policy beneficiary.
9.2 No Guarantee of Employment. This Plan is not an employment policy
or contract. It does not give a Participant the right to remain an employee of
the Company, nor does it interfere with the Company's right to discharge a
Participant. It also does not require a Participant to remain an employee nor
interfere with a Participant's right to terminate employment at any time.
9.3 Applicable Law. The Plan and all rights hereunder shall be governed
by and construed according to the laws of the State of Michigan, except to the
extent preempted by the laws of the United States of America.
9.4 Notice. Any notice, consent or demand required or permitted to be
given under the provisions of this Plan 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/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.
9.5 Entire Agreement. This Plan constitutes the entire agreement
between the Company and the Participant as to the subject matter hereof. No
rights are granted to the Participant by virtue of this Plan other than those
specifically set forth herein.
9.6 Administration. The Company shall have powers which are necessary
to administer this Plan, including but not limited to:
(a) Interpreting the provisions of the Plan;
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(b) Establishing and revising the method of accounting for the
Plan;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer the Plan.
9.7 Designated Fiduciary. For purposes of the Employee Retirement
Income Security Act of 1974, if applicable, 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.
9.8 Severability. If for any reason any provision of this Agreement is
held invalid such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall, to the full
extent consistent with the law, continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the rest of such provision, not held so invalid, and the rest
of such provision, together with all other provisions of this Agreement shall,
to the full extent consistent with the law, continue in full force and effect.
9.9 Headings. The headings of Sections herein are included solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Agreement.
IN WITNESS WHEREOF, the Company executes this Plan as of the date
indicated above.
COMPANY:
MONROE BANK & TRUST
By /s/ Xxxxxx X. XxXxxx
Xxxxxx X. XxXxxx
Title President & Chief Executive Officer
Split Dollar Policy Endorsement
Monroe Bank & Trust Group Term Carve Out Plan
Policy No. ___________ Insured: ___________
Supplementing and amending the application of Monroe Bank & Trust (the Company)
on December 27, 2001 to Jefferson-Pilot Life Insurance Company (the Insurer),
the applicant requests and directs that:
BENEFICIARIES
1. The beneficiary designated by the Insured, or his/her transferee
shall be the beneficiary of one of the following death benefit amounts, subject
to the provisions of paragraph 5 below:
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(a) Pre-Retirement Death Benefit. If the Insured/Participant was
employed by the Company at the time of death, the death benefit shall be the
lesser of: (i) two times the Participant's Base Annual Salary (defined in the
Monroe Bank & Trust Group Term Carve Out Plan dated December 20, 2001 (the
"Plan"), less $50,000; or (ii) $1 million.
(b) Post-Retirement Death Benefit. If the Insured/Participant was no
longer employed by the Company at the time of death, but terminated due to
Disability (defined in the Plan) or on or after Early Retirement Age (defined in
the Plan), the death benefit shall be the lesser of: (i) one times the
Participant's Base Annual Salary (defined in the Plan); or (ii) $1 million.
The Insurer may rely on a certificate issued by an authorized officer of Monroe
Bank & Trust for a determination of the amount equal to one or two times Base
Annual Salary of the Insured.
2. The beneficiary of any remaining death proceeds shall be Monroe Bank
& Trust, a Michigan-chartered commercial bank located in Monroe, Michigan (the
Company).
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 his/her transferee in paragraph (4) of this endorsement.
4. The Insured or his/her transferee shall have the right to assign all
rights and interests in the Policy with respect to that portion of the death
proceeds designated in paragraph (1) 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 (1) of
this endorsement if any of the following events occur:
(a) If the Insured/Participant is Terminated for Cause
(defined in the Plan).
(b) If the Insured/Participant's employment with the Company
is terminated prior to Early Retirement Age (defined in the Plan), for
reasons other then Disability (defined in the Plan).
(c) If the Insured/Participant terminates employment due to
Disability (defined in the Plan) and thereafter becomes gainfully
employed with an entity other than the Company.
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 paragraph (3) above shall be limited to the
portion of the proceeds described in paragraph (2) above.
OWNER'S 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 the Owner's statement of the amount of premiums the Owner 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 to the Insurer. The insurer
may rely on a sworn statement in form satisfactory to it furnished by the Owner,
its successors or assigns, as to their interest and any payment made pursuant to
such statement shall discharge the Company accordingly.
Any transferee's rights shall be subject to this Endorsement.
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The Owner accepts and agrees to this split dollar endorsement.
The undersigned is signing in a representative capacity and warrants that he or
she has the authority to bind the entity on whose behalf this document is being
executed.
Signed at Monroe, Michigan, this 28th day of December 2001.
COMPANY
Monroe Bank & Trust
By: /s/ Xxxxxx X. XxXxxx
Xxxxxx X. XxXxxx
Its: President & Chief Executive Officer
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