Exhibit 10.2
Form of Group Term Carve-Out Plan between the Farmers National Bank
of Emlenton and 20 Officers and Employees
THE FARMERS NATIONAL BANK OF EMLENTON
GROUP TERM CARVE-OUT PLAN
THIS PLAN, hereby made effective this _____ day of __________________
2002 (the "Effective Date"), by and between The Farmers National Bank of
Emlenton, a national banking association located in Emlenton, Pennsylvania (the
"Bank"), and the Participant (the "Participant") selected to participate in this
Plan, intending to be legally bound hereby.
INTRODUCTION
The Bank wishes to attract, retain and reward highly qualified
executives. To further this objective, the Bank is willing to divide the death
proceeds of certain life insurance policies which are owned by the Bank on the
lives of the participating executives with the designated beneficiary of each
insured participating executive. The Bank will pay the life insurance premiums
from its general assets.
Article 1
General Definitions
The following terms shall have the meanings specified:
1.1 "Base Annual Salary" means the Participant's basic annual salary as of
each January 1st, exclusive of special payments such as bonuses or fees, but
including any salary reductions made in accordance with Sections 125 or 401(k)
of the Code.
1.2 "Change in Control" means any of the following:
(A) any person (as such term is used in Sections 13d and 14d-2 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than
the Corporation, a subsidiary of the Corporation, an employee benefit plan (or
related trust) of the Corporation or a direct or indirect subsidiary of the
Corporation, or Affiliates of the Corporation (as defined in Rule 12b-2 under
the Exchange Act), becomes the beneficial owner (as determined pursuant to Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Corporation representing more than 25% of the combined voting power of the
Corporation's then outstanding securities (other than a person owning 10% or
more of the voting power of stock on the date hereof); or
(B) the liquidation or dissolution of the Corporation or the occurrence of,
or execution of an agreement providing for a sale of all or substantially all of
the assets of the Corporation to an entity which is not a direct or indirect
subsidiary of the Corporation; or
(C) the occurrence of, or execution of an agreement providing for a
reorganization, merger, consolidation or other similar transaction or connected
series of transactions of the Corporation as a result of which either (a) the
Corporation does not survive or (b) pursuant to which shares of the Corporation
common stock ("Common Stock") would be converted into cash, securities or other
property, unless, in case of either (a) or (b), the holders of the Corporation
Common Stock immediately prior to such transaction will, following the
consummation of the transaction, beneficially own, directly or indirectly, more
than 50% of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the corporation
surviving, continuing or resulting from such transaction; or
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(D) the occurrence of, or execution of an agreement providing for a
reorganization, merger, consolidation or similar transaction of the Corporation,
or before any connected series of such transactions, if upon consummation of
such transaction or transactions, the persons who are members of the Board of
Directors of the Corporation immediately before such transaction or transactions
cease or, in the case of the execution of an agreement for such transaction or
transactions, it is contemplated in such agreement that upon consummation such
persons would cease to constitute a majority of the Board of Directors of the
Corporation or, in the case where the Corporation does not survive in such
transaction, of the corporation surviving, continuing or resulting from such
transaction or transactions; or
(E) any other event which is at any time designated as a "Change in
Control" for purposes of this Plan by a resolution adopted by the Board of
Directors of the Corporation with the affirmative vote of a majority of the
non-employee directors in office at the time the resolution is adopted; in the
event any such resolution is adopted, the Change in Control event specified
thereby shall be deemed incorporated herein by reference and thereafter may not
be amended, modified or revoked without the written agreement of the
Participant; or
(F) during any period of two consecutive years during the term of this
Plan, individuals who at the beginning of such period constitute the Board of
Directors of the Bank or Corporation cease for any reason to constitute at least
a majority thereof, unless the election of each director who was not a director
at the beginning of such period has been approved in advance by directors
representing at least two-thirds of the directors then in office who were
directors at the beginning of the period, provided however this provision shall
not apply in the event two-thirds of the Board of Directors at the beginning of
a period no longer are directors due to death, normal retirement, or other
circumstances not related to a Change in Control.
Notwithstanding anything else to the contrary set forth in this Plan, if
(i) an agreement is executed by the Corporation providing for any of the
transactions or events constituting a Change in Control as defined herein, and
the agreement subsequently expires or is terminated without the transaction or
event being consummated, and (ii) Participant's employment did not terminate
during the period after the agreement and prior to such expiration or
termination, for purposes of this Plan it shall be as though such agreement was
never executed and no Change in Control event shall be deemed to have occurred
as a result of the execution of such agreement.
1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.4 "Continuing Insurance Benefit" means that it is the Bank's intention to
provide the Participant with continued insurance coverage from the date of
vesting until death, subject to the forfeiture provisions detailed in Section
5.2 and Article 8, and subject to the Bank keeping the Policies in force as
explained in Section 12.2. Article 5 details the criteria for a Continuing
Insurance Benefit.
1.5 "Corporation" means Emclaire Financial Corp.
1.6 "Disability" means the Participant's suffering a sickness, accident or
injury which has been determined by the carrier of any individual or group
disability insurance policy covering the Participant, or by the Social Security
Administration, to be a disability rendering the Participant totally and
permanently disabled. The Participant must submit proof to the Bank of the
carrier's or Social Security Administration's determination upon the request of
the Bank.
1.7 "Insured" means the individual whose life is insured.
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1.8 "Insurer" means the insurance company issuing the life insurance policy
on the life of the insured.
1.9 "Normal Retirement Age" means the Participant's 65th birthday.
1.10 "Participant" means the employee who is designated by the Board of
Directors 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.
1.11 "Policy" or "Policies" means the individual insurance policy (or
policies) adopted by the Board of Directors for purposes of insuring a
Participant's life under this Plan.
1.12 "Plan" means this instrument, including all amendments thereto.
1.13 "Plan Year" means each consecutive twelve (12) month period commencing
with the Effective Date of this Plan.
1.14 "Termination of Employment" means that the Participant ceases to be
employed by the Bank for any reason whatsoever other than by reason of a leave
of absence, which is approved by the Bank. For purposes of this Plan, if there
is a dispute over the employment status of the Participant or the date of the
Participant's Termination of Employment, the Bank shall have the sole and
absolute right to decide the dispute.
1.15 "Vested Insurance Benefit" means the Bank will provide the Participant
with continued insurance coverage from the date of vesting until death, subject
to the forfeiture provisions detailed in Section 5.2 and Article 8. The
Participant shall have a Vested Insurance Benefit equal to the amount specified
in Section 4.2 if the Participant is employed by the Bank at the date a Change
in Control occurs.
1.16 "Years of Service" means the number of consecutive twelve (12) month
periods of continuous employment with the Bank, including leaves of absences
approved by the Bank.
Article 2
Participation
2.1 Eligibility to Participate. The Board of Directors in its sole
discretion shall designate from time to time Participants that are eligible to
participate in this Plan. The Board may delegate this authority to management.
2.2 Participation. The eligible executive may participate in this Plan by
executing an Election to Participate (Exhibit A) 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. A Participant's participation is limited to only Policies where he or she
is the Insured. Exhibit A sets forth the information about the Policy or
Policies and maximum Participant benefit under the Plan.
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 one of
the following events occur: (1) the Participant's employment with the Bank is
terminated prior the Participant meeting any of the criteria for a Vested
Insurance Benefit under Section 5.1 or (2) the Plan or any Participant's rights
under the Plan are terminated in accordance with Sections 5.2 or 12.1 of this
Plan. In the event that the Bank decides to maintain the Policy after the
Participant's termination of participation in the Plan, the Bank shall be the
direct beneficiary of the entire death proceeds of the Policy. The Bank may
document the Participant's termination from the Plan by indicating the date of
termination on Exhibit A. However, the Bank's failure to do so will not be
deemed evidence of Participant's continued participation in the Plan.
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Article 3
Premium Payments
The Bank shall pay all premiums due on all Policies under this Plan.
Article 4
Policy Ownership/Interests
4.1 Bank Ownership. The Bank shall own the Policies and shall have the
right to exercise all incidents of ownership and, subject to Article 7, the Bank
may terminate a Policy without the consent of the Insured. With respect to each
Policy, the Bank shall be the direct beneficiary of an amount of death proceeds
equal to the greatest of: (1) the cash surrender value of the policy; (2) the
aggregate premiums paid on the Policy by the Bank less any outstanding
indebtedness to the Insurer; or (3) the amount in excess of the Participant's
interest specified in Section 4.2. If the Bank owns more than one policy on a
Participant, the Policies shall be aggregated with respect to item (3) of this
paragraph.
4.2 Participant's Interest. Each Participant, or the Participant's
assignee, shall have the right to designate the beneficiary of the death
proceeds of the Policy as specified in Section 4.2.1 or 4.2.2. The Participant
shall also have the right to elect and change settlement options by providing
written notice to the Bank and the Insurer.
4.2.1 Death Prior to Termination of Employment. If the Participant dies
while employed by the Bank, the Participant's beneficiary shall be entitled to a
benefit equal to two and one-half (2 1/2) times the deceased Participant's Base
Annual Salary at the date of death; but not in excess of the maximum benefit
amount specified in Exhibit A.
4.2.2 Death After Termination of Employment. If, pursuant to Article 5, a
terminated Participant has a Continuing Insurance Benefit at the date of death,
the Participant's beneficiary shall be entitled to a benefit equal to one and
one-half (1 1/2) times the Participant's last Base Annual Salary but not in
excess of the maximum benefit amount specified in Exhibit A. If the terminated
Participant has not met the criteria for a Continuing Insurance Benefit, the
Participant's beneficiary will not be entitled to a benefit under this Plan.
Article 5
Continuation of Benefit
5.1 Continuing Insurance Benefit. The Participant shall have a Continuing
Insurance Benefit equal to the amount specified in Section 4.2 at the earliest
of the following events:
5.1.1 Remaining in continuous employment with the Bank until age 65;
5.1.2 Remaining in continuous employment with the Bank until the
Participant's age plus Years of Service, when combined, equals or
exceeds 70;
5.1.3 Termination of Employment due to Disability; or
5.1.4 At the discretion of the Board of Directors if there are other
circumstances not addressed in Sections 5.1.1 through 5.1.3 of
this Plan.
5.2 Forfeiture of Benefit. Notwithstanding the provisions of Section 5.1,
the Participant will forfeit his or her interest in the Continuing Insurance
Benefit or Vested Insurance Benefit if: (1) the Participant violates any of the
provisions detailed in Article 8, (2) in the case of a Disabled Participant who
vested pursuant to Section 5.1.3, if such Participant becomes gainfully employed
by an entity other than the Bank, or (3) the Participant provides written notice
to the Bank declining further participation in the Plan.
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Article 6
Imputed Income
The Bank shall impute income to the Participant in an amount equal to the
annual cost of current life insurance protection on the life of the Participant
measured by the lesser of the Table 2001 rate set forth in Notice 2002-8 (or the
corresponding applicable provision of any later Revenue Ruling) or the Insurer's
current published premium rate for annually renewable term insurance for
standard risks; provided that the Insurer's current published premium rate meets
the limitations set forth in Notice 2002-8 (or the corresponding applicable
provision of any later Revenue Ruling.) The Bank will provide each Participant
with an annual statement of the amount of income reportable by the Participant
for federal and state income tax purposes as a result of such imputed income.
Article 7
Comparable Coverage
7.1 Insurance Policies. If a Participant has a Vested Insurance Benefit,
the Bank may provide such benefit through the Policies purchased at the
commencement of this Plan or may provide comparable insurance coverage to the
Participant through whatever means the Bank deems appropriate. If the
Participant waives or forfeits his or her right to the Vested Insurance Benefit,
the Bank can choose to cancel the Policy or Policies on the Participant, or may
continue such coverage and become the direct beneficiary of the entire death
proceeds.
7.2 Offer to Purchase. If the Bank discontinues a Policy on a Participant
who is employed by the Bank at the date of discontinuance or who has a
Continuing Insurance Benefit or Vested Insurance Benefit that has not been
forfeited, the Bank shall give the Participant at least thirty (30) days to
purchase such Policy. The purchase price shall be the cash surrender value of
the Policy. Such notification shall be in writing.
Article 8
General Limitations
8.1 Excess Parachute or Golden Parachute Payment. If the payments and
benefits pursuant to this Plan, either alone or together with other payments and
benefits which the Participant has the right to receive from the Bank, would
constitute a "parachute payment" under Section 280G of the Code, the payments
and benefits pursuant to this Plan shall be reduced, in the manner determined by
the Participant, by the amount, if any, which is the minimum necessary to result
in no portion of the payments and benefits under this Plan being non-deductible
to the Bank pursuant to Section 280G of the Code and subject to the excise tax
imposed under Section 4999 of the Code.
8.2 Termination for Cause. Notwithstanding any provision of this Plan to
the contrary, the Participant shall forfeit any right to a benefit under this
Plan, if the Bank terminate the Participant's employment for cause. Termination
of the Participant's employment for "Cause" shall mean termination because of
personal dishonesty, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful violation
of any law, rule or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order or material breach of any provision of
the Plan. For purposes of this paragraph, no act or failure to act on the
Participant's part shall be considered "willful" unless done, or omitted to be
done, by the Participant not in good faith and without reasonable belief that
the Participant's action or omission was in the best interest of the Bank.
8.3 Removal. Notwithstanding any provision of this Plan to the contrary,
the benefit provided under this Plan shall be forfeited if the Participant 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
("FDIA").
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8.4 Suicide or Misstatement. The Participant shall forfeit his benefit
under this Plan if the Participant commits suicide within two years after the
date of this Plan, or if the insurance company denies coverage for material
misstatements of fact made by the Participant on any application for life
insurance purchased by the Bank, or any other reason; provided, however that the
Bank shall evaluate the reason for the denial, and upon advice of Counsel and in
its sole discretion, consider judicially challenging any denial. The Bank shall
have no liability to the Participant for any denial of coverage by the insurance
company.
Article 9
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/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/her transferee, subject to such transferee executing agreements binding
them to the provisions of this Plan, 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 10
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, except to the extent of any endorsement filed with the Insurer. The
Insurer shall have the right to rely on the Bank's representations with regard
to any definitions, interpretations, or Policy interests as specified under this
Plan.
Article 11
Claims Procedure
11.1 Claims Procedure. A Participant or beneficiary ("claimant") who has
not received benefits under the Plan that he or she believes should be paid
shall make a claim for such benefits as follows:
11.1.1 Initiation - Written Claim. The claimant initiates a claim by
submitting to the Bank a written claim for the benefits.
11.1.2 Timing of Bank Response. The Bank shall respond to such claimant
within 90 days after receiving the claim. If the Bank determines that special
circumstances require additional time for processing the claim, the Bank 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 Bank expect to render their decision.
11.1.3 Notice of Decision. If the Bank denies part or all of the claim, the
Bank shall notify the claimant in writing of such denial. The Bank shall write
the notification in a manner calculated to be understood by the claimant. The
notification shall set forth:
11.1.3.1 The specific reasons for the denial,
11.1.3.2 A reference to the specific provisions of the Plan on which the
denial is based,
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11.1.3.3 A description of any additional information or material necessary
for the claimant to perfect the claim and an explanation of why it is needed,
11.1.3.4 An explanation of the Plan's review procedures and the time limits
applicable to such procedures, and
11.1.3.5 A statement of the claimant's right to bring a civil action under
ERISA Section 502(a) following an adverse benefit determination on review.
Article 12
Amendment or Termination of Plan
12.1 Benefit Termination. Unless a Participant has a Continuing Insurance
Benefit pursuant to Section 5.1 or has a Vested Insurance Benefit pursuant to
Section 1.15, the Bank may amend or terminate the Plan at any time, or 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.
12.2 Continuing Insurance Benefit. If a Participant has a Continuing
Insurance Benefit, the Participant's coverage shall be continued as long as the
Bank owns a Policy on the Participant's life. However, if the Board determines
that continued ownership of the Policy is not in the Bank's best interest, it
may surrender the Policy and terminate the Participant's insurance benefit.
12.3 Vested Insurance Benefit. If a Participant has a Vested Insurance
Benefit, the Bank may amend or terminate the Plan for that Participant only if:
(1) continuation of the Plan would cause significant financial harm to the Bank
and (2) the Participant agrees to such action.
Article 13
Miscellaneous
13.1 Administrator. The Bank shall be the administrator of this Plan. The
Bank may delegate to others certain aspects of the management and operational
responsibilities including the service of advisors and the delegation of
ministerial duties to qualified individuals.
13.2 Administration. The Bank shall have powers which are necessary to
administer this Plan, including but not limited to:
13.2.1 Interpreting the provisions of the Plan;
13.2.2 Establishing and revising the method of accounting for the Plan;
13.2.3 Maintaining a record of benefit payments;
13.2.4 Establishing rules and prescribing any forms necessary or desirable
to administer the Plan; and
13.2.5 Delegate any of the foregoing powers to any person or persons or
committee or committees.
13.3 Applicable Law. The Plan and all rights hereunder shall be governed by
the laws of the Commonwealth of Pennsylvania, except to the extent preempted by
the laws of the United States of America.
13.4 Binding Effect. This Plan shall bind the Participant and the Bank, and
their beneficiaries, survivors, executors, successors, administrators and
transferees.
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13.5 Entire Agreement. This Plan constitutes the entire agreement between
the Bank 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.
13.6 Right of Offset. The Bank shall have the right to offset the benefits
against any unpaid obligation the Participant may have with the Bank.
13.7 No Guarantee of Employment. This Plan is not an employment policy or
contract. It does not give the Participant the right to remain an employee of
the Bank, nor does it interfere with the Bank's right to terminate the
Participant's employment. It also does not require the Participant to remain in
employment nor interfere with the Participant's right to terminate employment at
any time.
13.8 Notice. Any notice, consent or demand required or permitted to be
given under the provisions of this Group Term Carve-Out 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 or her last known address as shown on
the records of the Bank. The date of such mailing shall be deemed the date of
such mailed notice, consent or demand.
13.9 Recovery of Estate Taxes. If the Participant's gross estate for
federal estate tax purposes includes any amount determined by reference to and
on account of this Plan, and if the beneficiary is other than the Participant's
estate, then the Participant's estate shall be entitled to recover from the
beneficiary receiving such benefit under the terms of the Plan, an amount by
which the total estate tax due by the Participant's estate, exceeds the total
estate tax which would have been payable if the value of such benefit had not
been included in the Participant's gross estate. If there is more than one
person receiving such benefit, the right of recovery shall be against each such
person. In the event the beneficiary has a liability hereunder, the beneficiary
may petition the Bank for a lump sum payment in an amount not to exceed the
beneficiary's liability hereunder.
13.10 Reorganization. The Bank 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 Bank under
this Plan. Upon the occurrence of such event, the term "Bank" as used in this
Plan shall be deemed to refer to the successor or survivor company.
13.11 Tax Withholding. The Bank shall withhold any taxes that are required
to be withheld from the benefits provided under this Plan.
13.12 Unfunded Arrangement. The Participant and beneficiary are general
unsecured creditors of the Bank for the payment of benefits under this Plan. The
benefits represent the mere promise by the Bank to pay such benefits. Any
insurance on the Participant's life is a general asset of the Bank to which the
Participant and beneficiary have no preferred or secured claim.
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IN WITNESS WHEREOF, the Bank executes this Plan as of the date indicated
above.
ATTEST: BANK:
The Farmers National Bank of
Emlenton
________________________________ By ________________________________
Title _________________________
By execution hereof, Emclaire Financial Corp. consents to and agrees to be
bound by the terms and condition of this Plan document.
ATTEST: CORPORATION:
Emclaire Financial Corp.
__________________________ By _________________________________
Title ________________________
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