EXHIBIT 10.15
First Community Bank and Trust
Specimen Plan Document and SERP Agreement
First Community Bank and Trust Supplemental Executive Retirement Plan ("SERP")
Adopted by Board of Directors July 12, 2000
Section 1 - Statement of Purpose
This Plan (as herein defined) is designed and implemented for the purpose of
providing to the directors and a limited group of key management or highly
compensated employees of the Bank (as herein defined) who are largely
responsible for the Bank's success the opportunity to receive deferred
compensation in the form of supplemental executive retirement benefits, thereby
increasing the incentive for such directors and key employees to continue to
serve the Bank and to make the Bank more profitable. Special payments shall be
made to Participants (as herein defined) upon retirement or death and are
intended to provide Participants with additional financial security.
Section 2 - Definitions
2.1 "Accrued Benefit" means a Participant's retirement benefit, as described in
Section 4 hereof.
2.2 "Actuarial Equivalent" means, with respect to a given benefit, any other
benefit provided under the terms of the Plan which has the same present or
equivalent value on the date the given benefit payment commences, based on the
use of actuarial equivalent factors adopted by the Bank and being used to value
the Plan liabilities at the time of the calculation.
2.3 "Bank" means First Community Bank and Trust, including any subsidiaries,
successors and assigns thereto. The Bank is a corporation
2.4 "Beneficiary" means any person or persons designated by a Participant in
writing on a form satisfactory to the Bank. In the absence of any living
designated beneficiary, a deceased Participant's Beneficiary shall be the
deceased Participant's then living spouse, if any, for his or her life; if none,
or from and after such spouse's death, then the living children of the deceased
Participant, if any, in equal shares, for their joint and survivor lives; and if
none, or after their respective joint and survivor lives, the estate of the
deceased Participant.
2.5 "Board" means the Board of Directors of the Bank, or any committee of such
Board that is authorized to oversee, administer and amend the Plan.
2.6 "Change of Control" means (i) the sale or transfer of all of the assets of
the Bank: (ii) the sale or exchange in one transaction of outstanding shares of
the Bank having at least two-thirds (2/3) of the total number of votes that may
be cast for election of the Board of Directors of the Bank; (iii) any cash
tender offer or exchange offer, contested election of Directors, or any
combination of the foregoing transactions, as a result of which the persons who
are Directors of the Bank before the transaction shall cease to constitute a
majority of the Board of Directors of the Bank or any successor company; or (iv)
any merger or business combination or similar action in which the holders of the
Bank receive less than fifty percent (50%) voting interest in the surviving
entity.
2.7 "Disability" means a disability determined on the basis of medical evidence
satisfactory to the Bank which prevents the Participant from performing the
ordinary functions of his employment or position with the Bank. The Disability
of a Participant shall be determined by a licensed physician selected by the
Bank.
2.8 "Early Retirement Date" means a date on which a Participant retires from
service as a Director or employee of the Bank on or after attaining age
sixty-five (65), then having completed at least ten (10) years of employment
with the Bank or service on the Board of Directors.
2.9 "Effective Date" means September 1, 2000.
2.10 "Normal Retirement Date" means the date on which a Participant retires from
the Bank on or after attaining age seventy-two (72) and having completed at
least three (3) years of Participation in the Plan.
2.11 "Participant" means an employee of the Bank or a Member of the Board of
Directors of the Bank selected by the Board for participation in the Plan in
accordance with Section 3 hereof, and who has not for any reason become
ineligible to participate further in this Plan. An individual shall be deemed to
continue as a Participant until all benefits payable to the Participant under
this Plan have been distributed.
2.12 "Plan" means the First Community Bank and Trust Supplemental Executive
Retirement Plan ("SERP") as contained in this document, including all amendments
thereto.
2.13 "Plan Year" means the twelve month period commencing on January 1 of each
year and ending the following December 31. The initial Plan Year shall be
September 1, 2000 through December 31, 2000.
2.14 "SERP Agreement" means a written agreement between a Participant and the
Bank in substantially the form attached hereto as Exhibit A.
2.15 "Termination for Cause" means the termination of a Participant's employment
with or service to the Bank for any one or more of the following reasons: (a)
embezzlement or theft from the Bank, or other acts of dishonesty in dealing with
the Bank; (b) use by the Participant of alcohol, drugs, narcotics, or other
controlled substances to such an extent that the Participant's ability to
perform his or her duties as an employee of the Bank is materially impaired; (c)
conviction of a crime amounting to a felony under the laws of the United States
of America or any of the several states; (d) when the seriousness of an initial
infraction is of such gravity that termination is warranted; or, (e) when prior
attempts through corrective counseling have failed to improve performance,
attendance, conduct or any combination thereof. The determination of whether or
not there has been a Termination for Cause shall be made by the Board provided
that, if the terminated Participant is a member of the Board, he or she shall
not participate in the determination.
2.16 "Year of Service" means a period of twelve consecutive months during which
a Participant is employed by the Bank. Unless otherwise provided in his or her
SERP Agreement, in determining a Participant's Years of Service, he or she shall
receive credit for service from and after his or her most recent employment
commencement date.
Section 3 - Eligibility and Participation
3.1 Eligibility. The Board, in its sole discretion, shall select the employees
of the Bank and the members of the Board of Directors who are eligible to become
Participants
3.2 Participation. The Board, or its designee shall notify those individuals
selected for participation of the benefits available under the Plan. An eligible
individual becomes a Participant in the Plan upon the execution and delivery by
him or her and the Bank of a SERP Agreement
3.3 Suicide. Notwithstanding any other term or provision of this Plan or any
SERP Agreement, this Plan and the applicable SERP Agreement shall be void and of
no force or effect with respect to any Participant who dies by reason of suicide
within two (2) years after the date of his or her SERP Agreement, and no benefit
of any kind shall be payable under this Plan to such Participant, his or her
Beneficiary or any other person claiming under him or her.
Section 4 - Retirement Benefit
4.1 Normal Retirement Benefit. If a Participant is continually employed by or
serves on the Board of the Bank until his or her Normal Retirement Date, he or
she shall be entitled to receive as a normal retirement benefit annual payments
equal to one-hundred per cent (100%) of the average of the directors fees
received by the Participant each year for the most recent three year period, or,
if the Participant had not been serving as a Director, one-hundred per cent
(100%) of the average of the fees that a Director would have received each year
for the most recent three year period prior to his or her retirement. This
Normal Retirement Benefit shall be payable in equal monthly installments
commencing on the first day of the month following the Participant's actual
retirement and continuing for the remainder of the Participant's life. Upon
attaining a Participant's Normal Retirement Date, a Participant shall be 100%
vested in his or her Normal Retirement Benefit
4.2 Early Retirement Benefit. If a Participant is employed by or serves on the
Board of the Bank until his or her Early Retirement Date, he or she shall be
entitled to receive an Early Retirement Benefit equal to the Actuarial
Equivalent of his or her Accrued Benefit at such Early Retirement Date. This
Early Retirement Benefit shall be payable in equal monthly installments
commencing on the first day of the month following the Participant's actual
retirement and continuing for the remainder of the Participant's life.
4.3 Death After Commencement of Retirement Benefit. If a retired Participant
receiving payments under either Section 4.1 or 4.2 above should die prior to the
receipt of one-hundred-twenty (120) monthly payments, such monthly payments
shall be continued to the Participant's Beneficiary until the completion of
one-hundred-twenty (120) combined monthly payments.
4.4 Alternate Form of Payment. The Bank may, in its sole and absolute
discretion, approve a retiring Participant's request for an alternate form of
payment of the benefit, in which case such payments shall be in the amount of
the Actuarial Equivalent of the normal form of benefit hereunder.
4.5 Forfeiture of Benefits. Notwithstanding the foregoing provisions of this
Section 4, a Participant shall forfeit all benefits under the Plan if his or her
employment with the Bank terminates by reason of a Termination for Cause or if
he or she violates the restrictive covenant set forth in Section 8 hereof.
Section 5 - Survivor Benefit
5.1 Survivor Benefit. If a Participant dies while employed by the Bank or
serving on the Board of the Bank, each month for a total of one hundred twenty
(120) months the Bank shall pay to the Beneficiary of the Participant as a
survivor benefit an amount equivalent to the amount the Participant would have
received if he or she had reached Normal Retirement Age. The Bank may, in its
sole and absolute discretion, approve the Beneficiary's request of an alternate
form of payment of the benefit, in which case such payments shall be in the
amount of the Actuarial Equivalent of the normal form of benefit hereunder.
Section 6 -Change in Control; Termination of Employment
6.1 Termination Benefit. If a Participant terminates employment with the Bank
prior to attaining his or her Early Retirement Date, other than by reason of
death or Disability, said Participant or his or her beneficiaries shall not be
entitled to any benefit under the Plan.
6.2 Change of Control Notwithstanding anything to the contrary herein, upon a
Change of Control of the Bank, then, for purposes of this Plan, for each of the
individuals who was a Participant in the Plan and employed by or served on the
Board of the Bank immediately prior to such change, it shall be deemed that the
Participant has remained in the employ of the Bank and continued as a
Participant in the Plan until the earlier to occur of: (a) the Participant's
death; or (b) the Participant's attaining his or her Normal Retirement Date. In
such case, the Participant, at his or her sole discretion, shall be entitled to
commence receipt of the Actuarial Equivalent amount of his or her Normal
Retirement Benefit at any time after termination of employment or service on the
Board. Furthermore, if at the time a Change of Control occurs, the Bank had
established a trust in accordance with Section 9.5 hereof, the Bank shall be
required to transfer cash and/or other assets to said trust in an amount equal
to the discounted present value of all of the future benefits payable hereunder
to the Participants or Beneficiaries. The discount rate shall be the 5-Year
United States Treasury Note rate as published on the first day of the month
immediately preceding the date on which the determination is made, compounded
annually. If these rates are no longer published, the discount rate shall be
some other similar average selected by the Board in its sole discretion.
Section 7 - Disability Benefit and Authorized Leave of Absence
7.1 Disability Benefit. Notwithstanding anything to the contrary herein, if a
Participant's employment with or service on the Board of the Bank is terminated
prior to attaining his or her Early Retirement Date as a result of the
Participant's Disability, then, for purposes of this Plan, it shall be deemed
that the Participant has remained in the employ of the Bank until the earliest
to occur of: (a) the Participant's death; (b) the Participant's attaining his or
her Early Retirement Date; or (c) the cessation of the Participant's Disability
and the failure of the Participant to return to active employment with the Bank
within a reasonable time after recovery from the Disability.
7.2 Authorized Leave of Absence. A Participant's employment or service with the
Bank shall not be deemed to have terminated for purposes of this Plan during any
authorized leaves of absence.
Section 8 - Restrictive Covenant
8.1 Restrictive Covenant. It shall be a condition to the payment of benefits
under this Plan that, during the first one-year period after termination of
employment or service or retirement, the Participant does not own, manage,
operate, join, control, be employed by, or participate in the ownership,
management, operation, or control of, or be connected in any manner with, any
business that is then in competition with the Bank. If there is a failure of
this condition, the Bank may immediately cease all further payments to the
Participant under the Plan, and the Participant and his or her Beneficiary shall
be deemed to have forfeited all further payments otherwise payable.
Section 9 - Administration
9.1 General. The Plan shall be administered by the Board or its designee. The
Board shall have the authority, subject to the terms of the Plan, to construe
the provisions of the Plan and to adopt rules and regulations and make all
determinations necessary or advisable for the administration of the Plan. The
Board shall make all determinations as to rights to benefits under the Plan. No
member of the Board shall be liable for any action of determination made in good
faith with respect to the Plan or any SERP Agreement. Any decision by the Board
denying a claim by a Participant or a Beneficiary for benefits under the Plan
shall be stated in writing and delivered or mailed to the Participant or
Beneficiary at his or her last known address. Such decision shall set forth the
specific reasons for the denial of benefits. In addition, the Board shall afford
a reasonable opportunity to the Participant or Beneficiary for a full and fair
review of the decision denying such claim.
9.2 Participant Statement. The Bank shall provide each Participant on an annual
basis with a statement showing that Participant's current and projected
Retirement Benefit (as defined herein) under the Plan.
9.3 Interpretation. The interpretation and construction of the Plan by the
Board, and any action taken hereunder, shall be binding and conclusive upon all
parties in interest. No member of the Board shall be liable to any person for
any action taken or omitted to be taken in connection with the interpretation,
construction or administration of the Plan, so long as such action or omission
be made in good faith.
9.4 Authority to appoint a Committee. The Board, within its discretion, shall
have the authority to appoint a committee of not less than three (3) of its
members which shall have authority over the Plan in lieu of the entire Board.
9.5 Authority to establish a Trust. The Board shall have the right at any time
to establish a trust to which the Bank may transfer from time to time certain
assets to be used by said trustee(s) to satisfy some or all of the Bank's
obligations and liabilities under the Plan. All assets held by such trust shall
be subject to the claims of the Bank's creditors in the event of the Bank's
Insolvency (as defined herein). The Bank shall be considered "Insolvent" for
purposes of said trust if: (a) the Bank is unable to pay its debts as they
become due; and (b) the Bank is subject to a pending proceeding as a debtor
under the United States Bankruptcy Code.
9.6 Prepayment. The Board may, in its sole and absolute discretion, prepay all
or any part of the monthly installments remaining to be paid to the Participant
or the Beneficiary under this Plan. The amount of such prepayment shall equal
the Actuarial Equivalent of the remaining monthly installments being prepaid, as
determined by the Board in its discretion, and receipt thereof by the
Participant or Beneficiary shall be in full satisfaction of all remaining
obligations of the Bank under the Plan and applicable SERP Agreement.
9.7 Amendment and Termination of the Plan. The Bank reserves the right, at any
time and from time to time, by action of the Board, to amend or terminate the
Plan. Notwithstanding the foregoing, no such amendment or termination shall
reduce (a) the benefits (including survivor benefits) of a Participant (or
Beneficiary) to whom payments under this Plan had then commenced, or (b) the
benefits (including survivor benefits) of a Participant who has then attained
his or her Early Retirement Date, or (c) the benefits (including survivor
benefits) of a Participant whose employment with or service for the Bank has
been terminated. In addition, each other Participant employed by or serving the
Bank on the date of such amendment or termination shall be entitled to benefits
(including survivor benefits) under this Plan, at such time as such benefits
would have been paid absent such amendment or termination, in an amount equal to
the amount that would have been paid under the Plan if he or she had terminated
employment or service on the day immediately preceding the date of such
amendment or termination of the Plan.
Section 10 - Bank-Owned Life Insurance ("BOLI")
10.1 Bank Owns All Rights. In the event that, in its discretion, the Bank
purchases a life insurance policy or policies insuring the life of any
Participant to allow the Bank to informally finance and/or recover, in whole or
in part, the cost of providing the benefits hereunder, neither the Participant
nor any Beneficiary shall have any rights whatsoever therein. The Bank shall be
the sole owner and beneficiary of any such policy or policies and shall possess
and may exercise all incidents of ownership therein, except in the event of the
establishment of and transfer of said policy or policies to a trust by the Bank
as described in Section 9 hereof.
10.2 Participant Cooperation. If the Bank decides to purchase a life insurance
policy or policies on any Participant, the Bank will so notify each Participant.
Each Participant shall consent to being insured for the benefit of the Bank and
shall take whatever actions may be necessary to enable the Bank to timely apply
for and acquire such life insurance and to fulfill the requirements of the
insurance carrier relative to the issuance thereof as a condition of eligibility
to participate in the Plan.
10.3 Participant Misrepresentation. If: (a) any Participant is required by this
Plan to submit information to any insurance carrier; and (b) the Participant
makes a material misrepresentation in any application for such insurance; and
(c) as a result of that material misrepresentation the insurance carrier is not
required to pay all or any part of the proceeds provided under that insurance,
then the Participant's (or the Participant's Beneficiary's) rights to any
benefits under this Plan may be, at the sole discretion of the Board, reduced in
proportion to the reduction of proceeds that is paid by the insurance carrier
because of such material misrepresentation.
Section 11 - Miscellaneous
11.1 Nonalienation of Benefits. No right or benefit under this Plan shall be
subject to anticipation, alienation, sale, assignment, pledge, encumbrance, or
charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber,
or charge any right or benefit under this Plan or any SERP Agreement shall be
void. No such right or benefit shall in any manner be liable for or subject to
the debts, contracts, liabilities or torts of the person entitled thereto. If a
Participant or any Beneficiary hereunder shall become bankrupt, or attempt to
anticipate, alienate, sell assign, pledge, encumber, or charge any right
hereunder, then such right or benefit shall, in the discretion of the Board,
cease and terminate, and in such event, the Board may hold or apply the same or
any part thereof for the benefit of the Participant or his or her Beneficiary,
spouse, children, or other dependents, or any of them in such manner and in such
amounts and proportions as the Board may deem proper.
11.2 Unsecured Bank Liability. The obligation of the Bank to make payments
hereunder to a Participant shall constitute an unsecured liability of the Bank.
Such payments shall be made from the general funds of the Bank, and the Bank
shall not be required to establish or maintain any special or separate fund, to
purchase or acquire life insurance on a Participant's life, or otherwise to
segregate assets to assure that such payments shall be made. Neither a
Participant nor any other person shall have any interest in any particular asset
of the Bank by reason of its obligations hereunder, and the right of any of them
to receive payments under this Plan shall be no greater than the right of any
other unsecured general creditor of the Bank. Nothing contained in the Plan
shall create or be construed as creating a trust of any kind or any other
fiduciary relationship between the Bank and a Participant or any other person.
11.3 No Employment Agreement. Neither the execution of this Plan or any SERP
Agreement nor any other action taken by the Bank pursuant to this Plan shall be
held or construed to confer on a Participant any legal right to be continued as
an employee or Director of the Bank or to restrict the right of the Bank or the
shareholders to terminate his or her employment or service.
11.4 Designation of Beneficiary. Each Participant shall file with the Bank a
notice in writing, in a form acceptable to the Board, designating one or more
Beneficiaries to whom payments becoming due by reason of or after his or her
death shall be made. Participants shall have the right to change the Beneficiary
or Beneficiaries so designated from time to time; provided, however, that no
such change shall become effective until received in writing and acknowledged by
the Bank.
11.5 Payment to Incompetents. The Bank shall make the payments provided herein
directly to the Participant or Beneficiary entitled thereto or, if such
Participant or Beneficiary has been determined by a court of competent
jurisdiction to be mentally or physically incompetent, then payment shall be
made to the duly appointed guardian, committee or other authorized
representative of such Participant or Beneficiary. The Bank shall have the right
to make payment directly to a Participant or Beneficiary until it has received
actual notice of the physical or mental incapacity of such Participant or
Beneficiary and actual notice of the appointment of a duly authorized
representative of his or her estate. Any payment to or for the benefit of a
Participant or Beneficiary shall be a complete discharge of all liability of the
Bank therefore.
11.6 Claims for Benefits. Each Participant or other person claiming any benefit
under this Plan must give written notification thereof to the Bank. If a claim
is denied, it must be denied within a reasonable period of time, and be
contained in a written notice stating the following: (a) the specific reason for
the denial; (b) specific reference to the Plan provision on which the denial is
based; (c) description of additional information necessary for the claimant to
present his or her claim, if any, and an explanation of why such material is
necessary; (d) an explanation of the Plan's claims review procedure. The
claimant will have 60 days to request a review of any denial by the Board. The
request for review must be in writing and delivered to the Board, which will
then provide a full and fair review. The claimant may review pertinent
documents, and he or she may submit issues and comments in writing. The decision
by the Board with respect to the review must be given within 60 days after
receipt of the request, unless special circumstances require an extension (such
as for a hearing). In no event shall the decision be delayed beyond 120 days
after receipt of the request for review. The decision shall be written in a
manner calculated to be understood by the claimant, and it shall include
specific reasons and refer to specific Plan provisions on which it is based.
11.7 Binding Effect. Obligations incurred by the Bank pursuant to this Plan
shall be binding upon and inure to the benefit of the Bank, its successors and
assigns, and the Participant, his or her Beneficiaries, personal
representatives, heirs, and legatees.
11.8 Entire Plan. This document and any amendments hereto contain all the terms
and provisions of the Plan and shall constitute the entire Plan, any other
alleged terms or provisions being of no effect.
11.9 Merger, Consolidation or Acquisition. In the event of a merger or
consolidation of the Bank with another corporation or entity, or the acquisition
of the outstanding stock of the Bank by another corporation or entity, then and
in such event the obligation and responsibilities of the Bank under this Plan
shall be assumed by any such successor or acquiring corporation or entity, and
all of the rights, privileges and benefits of the Participant hereunder shall
continue.
11.10 Enforceability. If any term or condition of this Plan shall be invalid or
unenforceable to any extent or in any application, then the remainder of the
Plan, and such term or condition except to such extent or in such application,
shall not be affected thereby, and each and every term and condition of the Plan
shall be valid and enforced to the fullest extent and in the broadest
application permitted by law.
Section 12 - Construction
12.1 Governing Law. This Plan shall be construed and governed in accordance with
the laws of the State of Indiana.
12.2 Gender. The masculine gender, where appearing in the Plan, shall be deemed
to include the feminine gender, and the singular may include the plural, unless
the context clearly indicates to the contrary.
12.3 Headings, etc. All headings used in this Plan are for convenience of
reference only and are not part of the substance of this Plan.
IN WITNESS WHEREOF, this Plan, having been duly approved and adopted by the
Board of Directors of the Bank, is executed by the duly authorized officers of
the Bank as of the Effective Date.
First Community Bank and Trust
By: /s/ Xxxxxx X. Xxxxxxx, III
---------------------------
Xxxxxx X. Xxxxxxx, III, President
(Corporate Seal)
Attest:
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx, Secretary
Exhibit A - Specimen SERP Agreement
THIS AGREEMENT, made the __________ day of ___________________, 2000, by and
between First Community Bank and Trust, an Indiana corporation (the "Bank"), and
_________________________________________________, an employee or Director of
the Bank (the "Participant").
RECITALS
The Board of Directors of the Bank has adopted the First Community Bank and
Trust Supplemental Executive Retirement Plan (the "Plan") and has selected the
Participant for participation in the Plan. This SERP Agreement is entered into
to evidence the Participant's participation in the Plan and to set forth the
basis for determining the amount of his or her benefit under the Plan.
NOW, THEREFORE, the Bank and the Participant hereby agree as follows:
1. Incorporation of the Plan. The Plan (and all its provisions), as it now
exists and as it may be amended hereafter, is incorporated herein and made a
part of this Agreement.
2. Definitions. When used herein, terms that are defined in the Plan shall have
the meanings given them in the Plan unless a different meaning is clearly
required by the context.
3. No Interest Created. Neither the Participant nor his or her Beneficiary or
other persons claiming under him or her shall have any interest in any assets of
the Bank, including policies of insurance. The Participant and his or her
Beneficiary shall have only the right to receive benefits under and subject to
the terms and provisions of the Plan and this SERP Agreement.
4. Termination Benefit. The Participant's termination benefits will be
determined in accordance with Section 6 of the Plan.
5. Suicide. Notwithstanding any other term or provision of the Plan or this SERP
Agreement, the Plan and this SERP Agreement shall be void and of no force or
effect if the Participant dies by reason of suicide within two (2) years after
the date of this Agreement, and in such event no benefit of any kind shall be
payable hereunder to the Participant, his or her Beneficiary or any other person
claiming under the Participant.
6. Condition to Payment. The Participant acknowledges and agrees that payment of
benefits under the Plan and this SERP Agreement is subject to his or her
compliance with the restrictive covenant set forth in Section 8 of the Plan and
that, in the event of a breach of that restrictive covenant, the Bank may cease
all further payments and the Participant shall be deemed to have forfeited his
or her right to any such payments. In addition, the Participant shall be deemed
to have forfeited his or her right to any payments under the Plan and this SERP
Agreement if his or her employment with or service on the Board of the Bank
terminates by reason of a Termination for Cause prior to attaining his or her
Early Retirement Date.
7. Entire Agreement. This SERP Agreement contains the entire agreement and
understanding of the Bank and the Participant with respect to supplemental
retirement, survivor, termination and disability benefits and supersedes and
replaces all prior agreements and understandings, written or oral, with respect
thereto.
IN WITNESS WHEREOF, the parties have executed this SERP Agreement in duplicate
originals on the day and year first above written.
First Community Bank and Trust
By:
---------------------------------
{Name and Title}
(Corporate Seal)
Attest:
----------------------------------
Secretary
------------------------------------
Participant
