Exhibit 10.2
WEST POINTE BANK AND TRUST COMPANY
AMENDMENT AND RESTATEMENT OF
SPLIT-DOLLAR AGREEMENT
THIS AMENDMENT, adopted this 22nd day of March, 2006, hereby amends and
restates the SPLIT-DOLLAR AGREEMENT made December 12, 2000, by and between
WESTPOINTE BANK AND TRUST COMPANY, a state-chartered commercial bank located in
Belleville, Illinois (the "Company"), and Xxxxx X. Xxxxxxxxxx (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 continue to pay life insurance premiums
from its general assets on a policy previously purchased with the Executive as
the owner under a collateral assignment agreement. In consideration of the
agreement of the Company contained herein, the Executive agrees to transfer the
policy to the Company under the terms hereinafter set forth.
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 constitute 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 net cash surrender value of the Policy
on February 1, 1996, plus the total premiums paid by the Company since February
1, 1996.
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 Net Death Proceeds of the Policy.
2.2 Executive's Interest. The Executive shall have the right to designate
the beneficiary of the death proceeds from the Policy in excess of 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.
2.3 Option to Purchase. The Company shall not sell, surrender, transfer
ownership of, or terminate the Policy without first giving the Executive or the
Executive's transferee the option to purchase the Policy by the method 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.
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2.3.1 Executive's Interest Purchase. If the Company elects to
terminate the Plan and the Executive or his transferee elects 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. Upon the
Executive's Termination of Employment 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.
2.6 Collection of Death Proceeds. Upon the death of the Executive, the
Company shall cooperate with the beneficiary or beneficiaries designated by the
Executive to take whatever action is necessary to collect the death benefit
provided in the Policy; when such benefit has been collected as provided herein,
this Agreement shall thereupon terminate.
ARTICLE 3
PREMIUMS
3.1 Premium Payment. The Company shall pay any premiums due on the Policy,
except as provided in Section 2.3.1.
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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 this Agreement and thereby in and to the Policy to any person,
entity or trust. In the event the Executive transfers all of the Executive's
interest in the Agreement 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,
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(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
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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
Subject to Section 2.3, 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.
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,
without regard to the principles of conflicts of law which might otherwise
apply.
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.
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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---------
March 22, 2006
TITLE President and CEO
EXECUTIVE:
---/s/ Xxxxx X. Xxxxxxxxxx------
March 22, 0000
Xxxxx X. Xxxxxxxxxx
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