EXHIBIT 10.11
LIFE INSURANCE
ENDORSEMENT METHOD SPLIT DOLLAR PLAN
AGREEMENT
Insurer: Jefferson Pilot Life Insurance Company
ING Southland Life Insurance Company
Policy Number: JP5098260
0660003207
Bank: The Fauquier Bank
Insured: C. Xxxxxx Xxxxxxx
Relationship of Insured to Bank: Executive
Trust: Rabbi Trust for The Fauquier Bank Rabbi Trust
for the Executive Supplemental Retirement Plan
Agreement and the Endorsement Method Split
Dollar Plan Agreement
The respective rights and duties of the Bank and the Insured in the
above-referenced policy shall be pursuant to the terms set forth below:
I. DEFINITIONS
Refer to the policy contract for the definition of all terms in this
Agreement.
II. POLICY TITLE AND OWNERSHIP
Title and ownership shall reside in the Trustee for the Rabbi Trust for the
Executive Supplemental Retirement Plan Agreement and the Endorsement Method
Split Dollar Plan Agreement for its use and for the use of the Insured all
in accordance with this Agreement. The Trustee at the direction of the Bank
may, to the extent of its interest, exercise the right to borrow or withdraw
on the policy cash values. Where the Trustee at the direction of the Bank
and the Insured (or assignee, with the consent of the Insured) mutually
agree to exercise the right to increase the coverage under the subject Split
Dollar policy, then, in such event,
the rights, duties and benefits of the parties to such increased coverage
shall continue to be subject to the terms of this Agreement.
III. BENEFICIARY DESIGNATION RIGHTS
The Insured (or assignee) shall have the right and power to designate a
beneficiary or beneficiaries to receive the Insured's share of the proceeds
payable upon the death of the Insured, and to elect and change a payment
option for such beneficiary, subject to any right or interest the Trustee at
the direction of the Bank or the Trust may have in such proceeds, as
provided in this Agreement.
IV. PREMIUM PAYMENT METHOD
The Bank or the Trustee at the direction of the Bank shall pay an amount
equal to the planned premiums and any other premium payments that might
become necessary to keep the policy in force.
V. TAXABLE BENEFIT
Annually the Insured will receive a taxable benefit equal to the assumed
cost of insurance as required by the Internal Revenue Service. The Bank or
the Trustee at the direction of the Bank will report to the Insured the
amount of imputed income each year on Form W-2 or its equivalent.
VI. DIVISION OF DEATH PROCEEDS
Subject to Paragraphs VII and IX herein, the division of the death proceeds
of the policy is as follows:
A. Upon the death of the Insured, the Insured's beneficiary(ies), designated
in accordance with Paragraph III, shall be entitled to an amount equal to
Two Hundred Seventy Five Thousand and NO/100 Dollars ($275,000.00), or,
one hundred percent (100%) of the net at risk insurance portion of the
proceeds, whichever amount is less. The net at risk insurance portion is
the total proceeds less the cash value of the policy.
B. The Bank shall be entitled to the remainder of such proceeds.
C. The Bank and the Insured (or assignees) shall share in any interest due
on the death proceeds on a pro rata basis as the proceeds due each
respectively bears to the total proceeds, excluding any such interest.
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VII. DIVISION OF THE CASH SURRENDER VALUE OF THE POLICY
The Trust shall at all times be entitled to an amount equal to the policy's
cash value, as that term is defined in the policy contract, less any policy
loans and unpaid interest or cash withdrawals previously incurred by the
Trustee at the direction of the Bank and any applicable surrender charges.
Such cash value shall be determined as of the date of surrender or death as
the case may be.
VIII. RIGHTS OF PARTIES WHERE POLICY ENDOWMENT OR ANNUITY ELECTION EXISTS
In the event the policy involves an endowment or annuity element, the
Bank's or the Trust's right and interest in any endowment proceeds or
annuity benefits, on expiration of the deferment period, shall be
determined under the provisions of this Agreement by regarding such
endowment proceeds or the commuted value of such annuity benefits as the
policy's cash value. Such endowment proceeds or annuity benefits shall be
considered to be like death proceeds for the purposes of division under
this Agreement.
IX. TERMINATION OF AGREEMENT
This Agreement shall terminate upon the occurrence of any one of the
following:
1. The Insured shall be discharged from employment with the Bank for
Cause. For the purposes of this Agreement, "Cause" shall mean the
Executive's gross negligence or willful misconduct, which is
detrimental to the best interests of the Bank's business operations.
For purposes of this paragraph, no act, or failure to act, on the
Executive's part shall be considered "willful" unless done, or omitted
to be done, by him not in good faith and without reasonable belief that
his act or omission was in the best interest of the Bank; provided that
any act or omission to act on the Executive's behalf in reliance upon
an opinion of counsel to the Bank or counsel to the Executive's shall
not be deemed to be willful. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for Cause unless
and until there shall have been delivered to him a copy of a
certification by a majority of the outside members of the Board of
Directors of the Bank finding that, in the good faith opinion of such
majority, the Executive was guilty of conduct which is deemed to be
Cause within the meaning of the first sentence of this paragraph and
specifying the particulars thereof in detail, after reasonable notice
to the Executive and an opportunity for him, together with his counsel,
heard before such majority.
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2. Surrender, lapse, or other termination of the Policy by the Bank.
Upon such termination, the Insured (or assignee) shall have a fifteen (15)
day option to receive from the Bank or the Trustee at the direction of the
Bank an absolute assignment of the policy in consideration of a cash
payment to the Bank or the Trustee at the direction of the Bank, whereupon
this Agreement shall terminate. Such cash payment referred to hereinabove
shall be the greater of:
1. The Bank's or the Trust's share of the cash value of the policy on the
date of such assignment, as defined in this Agreement; or
2. The amount of the premiums which have been paid by the Bank or the
Trustee at the direction of the Bank prior to the date of such
assignment.
If, within said fifteen (15) day period, the Insured fails to exercise said
option, fails to procure the entire aforestated cash payment, or dies, then
the option shall terminate, and the Insured (or assignee) agrees that all
of the Insured's rights, interest and claims in the policy shall terminate
as of the date of the termination of this Agreement.
The Insured expressly agrees that this Agreement shall constitute
sufficient written notice to the Insured of the Insured's option to receive
an absolute assignment of the policy as set forth herein.
Except as provided above, this Agreement shall terminate upon distribution
of the death benefit proceeds in accordance with Paragraph VI above.
X. INSURED'S OR ASSIGNEE'S ASSIGNMENT RIGHTS
The Insured may not, without the written consent of the Bank, assign to any
individual, trust or other organization, any right, title or interest in
the subject policy nor any rights, any options, privileges or duties
created under this Agreement.
XI. AGREEMENT BINDING UPON THE PARTIES
This Agreement shall bind the Insured and the Bank and the Trustee, their
heirs, successors, personal representatives and assigns.
XII. ERISA PROVISIONS
The following provisions are part of this Agreement and are intended to
meet the requirements of the Employee Retirement Income Security Act of
1974 ("ERISA"):
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A. Named Fiduciary and Plan Administrator.
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The "Named Fiduciary and Plan Administrator" of this Endorsement Method
Split Dollar Agreement shall be The Fauquier Bank until resignation or
removal by the Board of Directors. As Named Fiduciary and Plan
Administrator, the Bank or the Trustee at the direction of the Bank
shall be responsible for the management, control, and administration of
this Split Dollar Plan as established herein. 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 any ministerial duties to qualified individuals.
B. Funding Policy.
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The funding policy for this Split Dollar Plan shall be to maintain the
subject policy in force by paying, when due, all premiums required.
C. Basis of Payment of Benefits.
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Direct payment by the Insurer is the basis of payment of benefits under
this Agreement, with those benefits in turn being based on the payment
of premiums as provided in this Agreement.
D. Claim Procedures.
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Claim forms or claim information as to the subject policy can be
obtained by contacting Benmark, Inc. (770-952-l529). When the Named
Fiduciary has a claim which may be covered under the provisions
described in the insurance policy, they should contact the office named
above, and they will either complete a claim form and forward it to an
authorized representative of the Insurer or advise the name Fiduciary
what further requirements are necessary. The Insurer will evaluate and
make a decision as to payment. If the claim is payable, a benefit check
will be issued in accordance with the terms of this Agreement.
In the event that a claim is not eligible under the policy, the Insurer
will notify the Named Fiduciary of the denial pursuant to the requirements
under the terms of the policy. If the Named Fiduciary is dissatisfied with
the denial of the claim and wishes to contest such claim denial, they
should contact the office named above and they will assist in making
inquiry to the Insurer. All objections to the Insurer's actions should be
in writing and submitted to the office named above for transmittal to the
Insurer.
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XIII. GENDER
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine or
neuter gender, whenever they should so apply.
XIV. INSURANCE COMPANY NOT A PARTY TO THIS AGREEMENT
The Insurer shall not be deemed a party to this Agreement, but will
respect the rights of the parties as herein developed upon receiving an
executed copy of this Agreement. Payment or other performance in
accordance with the policy provisions shall fully discharge the Insurer
for any and all liability.
XV. CHANGE OF CONTROL
For purposes of this Agreement, a Change of Control of the Bank occurs if,
after the date of this Agreement, (i) any person, including a "group" as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934 (but
excluding any group of which the Executive is a member), becomes the owner
or beneficial owner of securities of the Bank or of Fauquier Bankshares,
Inc. (the "Holding Company") having 20% or more of the combined voting
power of the then outstanding Bank or Holding Company securities that may
be cast for the election of the Bank or Holding Company directors other
than a result of the issuance of securities initiated by the Bank or
Holding Company, as long as the majority of the Board of Directors
approving the purchases is a majority at the time the purchases are made;
or (ii) as the direct or indirect result of, or in connection with, a
tender or exchange offer, a merger or other business combination, a sale
of assets, contested election, or any combination of these events, the
persons who were directors of the Bank or Holding Company before such
events cease to constitute a majority of the Bank's or Holding Company's
Board, or any successor's board, within two years of the last date of such
transactions. For purposes of this Agreement, the Control Change Date is
the date on which an event described in (i) or (ii) occurs. If a Change of
Control occurs on account of a series of transactions, the Control Change
Date is the date of the last of such transactions. Upon a Change of
Control, if the Insured's employment is subsequently terminated, except
for cause, then the Insured shall be one hundred percent (100%) vested in
the benefits promised in this Agreement and, therefore, upon the death of
the Insured, the Insured's beneficiary(ies) (designated in accordance with
Paragraph III) shall receive the death benefit provided herein as if the
Insured had died while employed by the Bank [See Subparagraphs VI(A)
& (B)].
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XVI. AMENDMENT OR REVOCATION
It is agreed by and between the parties hereto that, during the lifetime
of the Insured, this Agreement may be amended or revoked at any time or
times, in whole or in part, by the mutual written consent of the Insured
and the Bank.
XVII. EFFECTIVE DATE
The Effective Date of this Agreement shall be June 30, 2000.
XVIII. SEVERABILITY AND INTERPRETATION
If a provision of this Agreement is held to be invalid or unenforceable,
the remaining provisions shall nonetheless be enforceable according to
their terms. Further, in the event that any provision is held to be over
broad as written, such provision shall be deemed amended to narrow its
application to the extent necessary to make the provision enforceable
according to law and enforced as amended.
XIX. APPLICABLE LAW
The validity and interpretation of this Agreement shall be governed by the
laws of the Commonwealth of Virginia.
Executed at Warrenton, Virginia this 10th day of August, 2000.
THE FAUQUIER BANK
Warrenton, Virginia
/s/ [illegible] By: /s/ Xxxxxxx X. Xxxxxxxxx
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Witness Title: [illegible]
/s/ [illegible] /s/ C. Xxxxxx Xxxxxxx
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Witness C. Xxxxxx Xxxxxxx
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