DUBUQUE BANK AND TRUST COMPANY SPLIT-DOLLAR LIFE INSURANCE PLAN
Exhibit 10.1
DUBUQUE
BANK AND TRUST COMPANY
THIS PLAN is made and entered into this
13th day of November, 2001, by and between Dubuque Bank and Trust Company, a
state-chartered commercial bank with principal offices and place of business in
the State of Iowa (hereinafter referred to as the “Corporation”), and the
employee selected to participate in this Plan (the “Participant”), and amends
and restates in its entirety any existing Universal Life Split-Dollar Agreement
or Whole Life Split-Dollar Agreement previously executed by and between the
Corporation and any Participant.
INTRODUCTION
The Corporation desires to attract and
retain key executives by providing death benefits for the participating
executive’s designated beneficiary or beneficiaries (while employed and
post-retirement) and further motivate them to increase the value of the
Corporation. As an additional employment benefit for the
participating executives, the Corporation is willing to pay the premiums due on
a life insurance policy or policies (the “Policy”) including all supplemental
riders or endorsements to such Policy insuring the Participants, on the terms
and conditions set forth below. The Corporation and Participant
hereto have taken all necessary action to cause the Insurer to issue the Policy,
and shall take any further action, which may be necessary to cause the Policy to
conform to the provisions of this Plan.
Article
1
Definitions
1.1 Total Compensation means the
Participant’s base salary and bonus for purposes of this Plan, as set forth on
Exhibit A.
1.2 Baseline Benefit means the
Participant’s Total Compensation times two (2).
1.3 Indexed Baseline Benefit
means the Baseline Benefit indexed at 5% per year, compounded annually, until
Disability, Normal Retirement or Early Retirement of the
Participant. However, if the Participant is disabled prior to Normal
Retirement then the Participant’s Indexed Baseline Benefit will be the Baseline
Benefit indexed at 5% per year until the date of Disability. The
first indexing shall be effective on January 1 following the date set forth on
Exhibit A.
1.4 Normal Retirement means the
Participant’s retirement at age sixty-five (65) or later.
1.5 Early Retirement means the
Participant’s retirement between the ages of fifty-five (55) and sixty-five (65)
provided there are ten (10) years of service, as defined by the Heartland
Retirement Plan, provided to Corporation.
1.6 Disability means, if the
Participant is covered by a Corporation-sponsored disability policy, total
disability as defined in such policy without regard to any waiting
period. If the Corporation does not have in place a long-term
disability plan, this shall mean the Participant is no longer capable of
performing his or her job in the same manner as he or she performed the job in
the past as determined by a medical doctor approved by the
Corporation.
1.7 Change of Control has that
meaning stated in Exhibit D attached hereto.
1.8 Compensation Committee means
either the Compensation Committee designated from time to time by the
Corporation’s Board of Directors or a majority of the Corporation’s Board of
Directors.
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. The Compensation Committee will not designate a
Participant as eligible unless the eligible executive has been employed by the
Corporation for at least three years.
2.2 Participation. The
eligible executive may participate in this Plan by executing an Election to
Participate, as set forth in Exhibit A, and a Split-Dollar Endorsement for each
Policy, as set forth in Exhibit B. 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.
2.3 Disability. (A)
Subject to Article 9, except as otherwise provided in paragraph (B) of this
Section 2.3, if the Participant’s employment with the Corporation is terminated
because of the Participant’s Disability, the Corporation shall maintain the
Policy in full force and effect and, in no event, shall the Corporation amend,
terminate or otherwise abrogate the Participant’s interest in the
Policy. However, the Corporation may replace the Policy with a
comparable insurance policy to cover the benefit provided under this Plan and
the Corporation and the Participant shall execute a new Split-Dollar Policy
Endorsement. The Policy or any comparable policy shall be subject to
the claims of the Corporation’s creditors.
(B) Notwithstanding the provisions of
paragraph (A) of this Section 2.3, upon the disabled Participant’s gainful
employment with an entity other than the Corporation, the Corporation shall have
no further obligation to the disabled Participant, and the disabled
Participant’s rights pursuant to the Plan shall cease. In the event
the disabled Participant’s rights are terminated hereunder and the Corporation
decides to maintain the Policy, the Corporation shall be the direct beneficiary
of the entire death proceeds of the Policy.
2.4 Early Retirement/Normal
Retirement. Subject to Article 9, after the Participant’s
Early Retirement or Normal Retirement date, provided the Participant was in the
continuous employ of the Corporation, the Corporation shall maintain the Policy
in full force and effect and in no event shall the Corporation amend, terminate
or otherwise abrogate the Participant’s interest in the
Policy. However, the Corporation may replace the Policy with a
comparable insurance policy to cover the benefit under this Plan provided the
Corporation and the Participant execute a new Split-Dollar Policy
Endorsement. The Policy or any comparable policy shall be subject to
the claims of the Corporation’s creditors.
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 an
amount of death proceeds equal to the Indexed Baseline Benefit. The
Participant shall also have the right to elect and change settlement options
with the consent of the Corporation and the Insurer.
3.2 Designation of
Beneficiary. The Participant may select the beneficiary or
beneficiaries to receive the portion of Policy proceeds to which the Participant
is entitled hereunder, by specifying the same in a written notice to the
Corporation in the form attached hereto as Exhibit B or other form acceptable to
the Corporation. The Participant may change the designation from time
to time by providing a new written notice to the Corporation. If no
Participant designation is made or if the named beneficiary predeceases
Participant or is not in existence at Participant’s death, any death proceeds
payable will be paid to the personal representative of the Participant’s
estate. The Corporation will take what action is necessary by way of
endorsement beneficiary designation with reference to this split-dollar life
insurance Plan or other action necessary for the beneficiaries designated by the
Participant to be the beneficiaries of the Policy.
3.3 Corporation’s Interest. The Corporation shall
own the Policy and shall have the right to exercise all incidents of ownership,
except as may otherwise be provided herein. With respect to each
Policy, the Corporation 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. If the Corporation secures a loan from the Insurer
using the Policy as collateral, the Corporation shall pay interest charges on
such loan. If the Corporation so encumbers the Policy, other than by
a policy loan from the Insurer, then, upon the death of the Participant or upon
the election of the Participant hereunder to purchase the Policy from the
Corporation, the Corporation shall promptly take all action necessary to secure
the release or discharge of such encumbrance.
Article
4
Premiums
4.1 Payment of
Premiums. On or before the due date of each Policy premium, or
within the grace period provided therein, the Corporation shall pay the full
amount of the premium to the Insurer, and shall, upon request, promptly furnish
the Participant evidence of timely payment of such premium.
4.2 Economic
Benefit. The Corporation shall annually determine the economic
benefit attributable to the Participant based on the amount of 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. The Corporation shall
annually impute the economic benefit to the Participant.
Article
5
Assignment
Notwithstanding any provision hereof to
the contrary, any Participant shall have the right to absolutely and irrevocably
assign by gift all of his or her right, title and interest in and to this Plan
and to the Policy to an assignee. This right shall be exercisable by
the execution and delivery to the Corporation of a written assignment, in
substantially the form attached hereto as Exhibit C, which by this reference is
made a part hereof. Upon receipt of such written assignment executed
by a Participant and duly accepted by the assignee thereof, the Corporation
shall consent thereto in writing, and shall thereafter treat the Participant’s
assignee as the sole owner of all of the Participant’s right, title and interest
in and to this Plan and in and to the Policy. Thereafter, the
Participant shall have no right, title or interest in and to this Plan or the
Policy, all such rights being vested in and exercisable only by such
assignee.
Article
6
Insurer
The Insurer shall be fully discharged
from its obligations under the Policy by payment of the Policy death benefit to
the beneficiary or beneficiaries named in the Policy, subject to the terms and
conditions of the Policy. In no event shall the Insurer be considered
a party to this Plan, or any modification or amendment hereof. No
provision of this Plan, nor of any modification or amendment hereof, shall in
any way be construed as enlarging, changing, varying or in any other way
affecting the obligations of the Insurer as expressly provided in the Policy,
except insofar as the provisions hereof are made a part of the Policy by the
beneficiary designation executed by the Corporation and filed with the Insurer
in connection herewith. The Insurer shall have the right to rely on
the Corporation’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 Corporation shall notify any person or entity
that makes a claim under this Plan (the “Claimant”) in writing, within 90 days
of Claimant’s written application for benefits, of his or her eligibility or
non-eligibility for benefits under the Plan. If the Corporation
determines that the 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 the 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, (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 and (5) a time within which review must be requested. If the
Corporation determines that there are special circumstances requiring additional
time to make a decision, the Corporation 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 90 days.
7.2 Review
Procedure. If the Claimant is determined by the Corporation
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 Corporation by filing a petition
for review with the Corporation within 60 days after receipt of the notice
issued by the Corporation. Said petition shall state the specific
reasons, which the Claimant believes entitle him or her to benefits or to
greater or different benefits. Within 60 days after receipt by the
Corporation of the petition, the Corporation shall afford the Claimant (and
counsel, if any) an opportunity to present his or her position to the
Corporation in writing, and the Claimant (or counsel) shall have the right to
review the pertinent documents. The Corporation shall notify the
Claimant of its decision in writing within the 60-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 the Plan on which the
decision is based. If, because of the need for a hearing, the 60-day
period is not sufficient, the decision may be deferred for up to another 60 days
at the election of the Corporation, 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 Sections 2.3, 2.4, 8.2
and 8.4, the Corporation has the unilateral right at any time (i) to amend or
terminate the Plan, except this Plan shall not be amended or terminated within
twelve (12) months prior to a Change of Control without the Participant’s
written consent or (ii) to exercise its right to surrender the
Policy.
8.2 Amendment or Termination of Plan
Upon Change of Control. Notwithstanding anything herein to the
contrary, if there should be a Change of Control in Corporation, then the
Indexed Baseline Benefit under this Plan shall be frozen as of the date the
Change of Control occurs. Further, Corporation shall pay or create a
vehicle to pay, or cause the successor in interest to repay any outstanding
loans and to pay to Insurer the amount of premium necessary to acquire in full
(endow) enough insurance coverage to pay the Indexed Baseline Benefit as then
frozen and the Corporation’s premium payments under the Policy. There
will be no further indexing of dollar amounts under this Plan in the event of
the Change of Control. Further, as of the date of the Change of
Control, all amounts due to Participant under this Plan shall be fully vested
and shall not be subject to subsequent events including, but not limited to, the
termination of employment of the Participant.
8.3 Automatic
Termination. Subject to Sections 8.2 and 8.4, this Plan shall
automatically terminate upon the occurrence of any of the following
events:
8.3.1 The
bankruptcy, receivership or dissolution of the Corporation;
8.3.2 The
Participant’s termination of employment with the Corporation (for reasons other
than death, Early Retirement, Normal Retirement, Disability or Change of
Control).
8.3.3 The
Participant’s cessation of full-time employee status with the Corporation prior
to age 55; or
8.3.4 The
Participant’s violation of the terms of Article 9.
8.4 Disposition of the Policy on
Termination of the Plan During the Participant’s Lifetime. If
the Plan is terminated, the Corporation shall give notice as set forth
below.
8.4.1 Unless
the Plan is terminated under Sections 8.3.2, 8.3.3 or 8.3.4 above, for sixty
(60) days after the date the Participant receives notice from the Corporation of
the termination of this Plan during the Participant's lifetime, the Participant
shall have the assignable option to purchase the Policy from the
Corporation. The purchase price for the Policy shall be the greater
of the total amount of the premium payments made by the Corporation hereunder or
the cash value of the Policy, less any indebtedness secured by the Policy which
remains outstanding as of the date of such termination, including interest on
such indebtedness. Upon receipt of such amount, the Corporation shall
transfer all of its right, title and interest in and to the Policy to the
Participant or his or her assignee, by the execution and delivery of an
appropriate instrument of transfer.
8.42 If the
Participant or his or her assignee fails to exercise such option within such
sixty (60) day period, then the Corporation may enforce any of its ownership
rights under the policy. Thereafter, neither the Participant, the
Participant’s assignee nor the assignee’s heirs, assigns or beneficiaries shall
have any further interest in and to the Policy, either under the terms thereof
or under this Plan.
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Article
9
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Non-Compete
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For
purposes of this Plan a Participant may not engage in any competitive practices
or activity prior to or after Early Retirement or Normal Retirement for a period
of two years, in an area within a 50-mile radius of any branch or location of
the Corporation now or hereafter existing, without the express written consent
of the Corporation. A Participant shall not divulge to any person,
firm or corporation, or use on Participant’s own behalf, any information,
acquired by Participant during Participant’s employment with the Corporation,
concerning the Corporation’s accounts, clients, customers, policyholders,
expiration lists or business or information of any kind whatsoever owned by the
Corporation. Furthermore, for purposes of this Plan, the Participant
shall be deemed to compete with the Corporation, if as hereinafter provided, the
Participant (i) competes directly with the Corporation; (ii) is or becomes
financially or beneficially interested in any person and/or business who or
which competes with the Corporation; however, ownership of not more than five
percent (5%) of any class of securities traded actively over-the-counter or
through a stock exchange shall not violate this condition (ii); or (iii) acts
directly or indirectly, as broker, consultant, agent, lender, guarantor or
salesman for or on behalf of any person or business who or which competes with
the Corporation.
A
violation of this paragraph shall cause the Plan to be terminated.
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Article
10
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Miscellaneous
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10.1 Amendment and Restatement of Other
Insurance Plans. This Plan supersedes and replaces the
Corporation sponsored death benefit arrangement previously paid for by the
Corporation and such arrangement is amended and restated as of the effective
date of this Plan. Specifically, the Executive Death Benefit Only
Plan (DBO) is amended and restated.
10.2 Effect of Plan on
Employment. This Plan shall not be construed as a contract or
policy of employment nor does it restrict the right of the Corporation to
discharge the Participant or the right of the Participant to terminate
employment.
10.3 Binding
Effects. This Plan shall be binding upon and inure to the
benefit of the Corporation and its successors and assigns, and the Participant,
his or her successors, assigns, heirs, executors, administrators and
beneficiaries.
10.4 Governing
Law. This Plan, and the rights of the parties hereunder, shall
be governed by and construed in accordance with the laws of the State of
Iowa.
10.5 Notices. Any
notice, consent or demand required or permitted to be given under the provisions
of this Plan shall be in writing, and shall be signed by the party giving or
making the same. If such notice, consent or demand is mailed to a
party hereto, it shall be sent by United States certified mail, postage prepaid,
addressed to such party’s last known address as shown on the records of the
Corporation. The date of such mailing shall be deemed the date of
notice, consent or demand.
10.6 Suicide, Misstatement or
Fraud. The Corporation shall not pay any benefit under this
Plan if the Participant:
10.6.1 Commits
suicide within two years (i) after the date of this Plan or (ii) issuance of the
Policy, whichever occurs later;
10.6.2 Has made
any material misstatement of fact or committed fraud (as determined by the
Insurer) on any application for life insurance benefits provided by the
Corporation under this Plan; or
10.6.3 Should
die while engaged in any activity or under circumstances that are listed as
exclusions in the Policy.
10.7 Entire Plan. This
Plan constitutes the entire Plan between the Corporation 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.
10.8 Administration. The
Corporation shall have powers that are necessary to administer this Plan,
including but not limited to:
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10.8.1
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Interpreting
the provisions of the Plan;
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10.8.2
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Establishing
and revising the method of accounting for the
Plan;
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10.8.3
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Maintaining
a record of benefit payments; and
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10.8.4
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Establishing
rules and prescribing any forms necessary or desirable to administer the
Plan.
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10.9 Designated
Fiduciary. For purposes of the Employee Retirement Income
Security Act of 1975, if applicable, the Corporation is hereby designated as the
named fiduciary and plan administrator under this Plan. The named
fiduciary shall have authority to control and manage the operation and
administration of this Plan, and it shall be responsible for establishing and
carrying out a funding policy and method consistent with the objectives of this
Plan. 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 Corporation executes this Plan as of the date indicated
above.
Dubuque Bank and Trust
Company
By: __________________________
Title: _________________________
Title: _________________________
AMENDMENT
1
DUBUQUE
BANK AND TRUST COMPANY
Effective
January 1, 2002, Article 1.1 is amended as follows:
Total Compensation means the
Participant’s base salary, bonus and commissions for purposes of this plan, as
set forth on Exhibit A.
AMENDMENT
2
DUBUQUE
BANK AND TRUST COMPANY
DATED
NOVEMBER 13, 2001
THIS AMENDMENT is made and executed on
this 1st day of May, 2002, by and between Dubuque Bank and Trust Company located
in the State of Iowa, (the “Corporation”) and the employee selected to
participate (the “Participant”) in the SPLIT-DOLLAR LIFE INSURANCE PLAN (the
“Plan”) executed on November 13, 2001.
The undersigned hereby amends, in part,
said Plan for the purpose of revising the definition of disability and claims
and review procedures contained in the Plan. Therefore,
Section 1.6 of the Plan shall be
deleted in its entirety and replaced with a new Section 1.6 as
follows:
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. Upon
request of the Corporation, the Participant must submit proof to the Corporation
of the carrier’s or Social Security Administration’s determination.
Article 7 of the Plan shall be deleted
in its entirety and replaced with a new Article 7 as follows:
Article 7
Claims
and Review Procedures
7.1 Claims
Procedure. A Participant or beneficiary (the “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:
7.1.1 Initiation – Written
Claim. The Claimant initiates a claim by submitting to the
Corporation a written claim for the benefits.
7.1.2 Timing of Corporation
Response. The Corporation shall respond to such Claimant
within 90 days after receiving the claim. If the Corporation
determines that special circumstances require additional time for processing the
claim, the Corporation 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
Corporation expects to render its decision.
7.1.3 Notice of
Decision. If the Corporation denies part or all of the claim,
the Corporation shall notify the Claimant in writing of such
denial. The Corporation 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
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.
7.2 Review
Procedure. If the Corporation denies part or all of the claim,
the Claimant shall have the opportunity for a full and fair review by the
Corporation of the denial, as follows:
7.2.1 Initiation – Written
Request. To initiate the review, the Claimant, within 60 days
after receiving the Corporation’s notice of denial, must file with the
Corporation a written request for review.
7.2.2 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 Corporation 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.
7.2.3 Considerations on
Review. In considering the review, the Corporation 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.
7.2.4 Timing of Corporation
Response. The Corporation shall respond in writing to such
Claimant within 60 days after receiving the request for review. If
the Corporation determines that special circumstances require additional time
for processing the claim, the Corporation 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 Corporation expects to render its decision.
7.2.5 Notice of
Decision. The Corporation shall notify the Claimant in writing
of its decision on review. The Corporation 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 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).
IN WITNESS OF THE ABOVE, the
Corporation executes this Second Amendment as of the date indicated
above.
Dubuque Bank and Trust
Company
By: ________________________
Title:________________________
AMENDMENT
3
DUBUQUE
BANK AND TRUST COMPANY
DATED
NOVEMBER 13, 2001
THIS AMENDMENT is made and executed
this 16th day of September, 2003, by and between DUBUQUE BANK AND TRUST COMPANY,
located in the State of Iowa, (the “Corporation”) and the employee selected to
participate (the “Participant”) in the SPLIT-DOLLAR LIFE INSURANCE PLAN (the
“Plan”) executed on November 13, 2001.
The undersigned hereby amends, in part,
said Plan for the purposes of (i) correcting the reference to the Heartland
Financial Retirement Plan in the Early Retirement definition; (i)
ending the Participant’s Interest at age 90; and (iii) recognizing that the
participation in the plan terminates upon the events listed in the Automatic
Termination provision. Therefore,
Section
1.5 of the Plan shall be deleted in its entirety and replaced with a new section
1.5, as follows:
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1.5
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Early
Retirement means the Participant’s retirement between the ages of
fifty-five (55) and sixty-five (65) provided there are ten (10) years of
continuous service, as defined by the Heartland Financial Retirement Plan,
provided to Corporation.
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Section
3.1 of the Plan shall be deleted in its entirety and replaced with a new Section
3.1, as follows:
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3.1
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Participant’s
Interest. With respect to each Policy, the Participant, or the
Participant’s assignee, shall have the right to designate the beneficiary
of an amount of death proceeds equal to the Indexed Baseline
Benefit. The Participant shall also have the right to elect and
change settlement options with the consent of the Corporation and the
Insurer. The Participant’s Interest shall cease upon the
Participant’s ninetieth (90th)
birthday.
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Section
8.3 of the Plan shall be deleted in its entirety and replaced with a new Section
8.3, as follows:
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8.3
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Automatic
Termination. Subject to Sections 8.2 and 8.4, participation in
this Plan shall automatically terminate upon the occurrence of any of the
following events:
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8.3.1
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The
bankruptcy, receivership, or dissolution of the
Corporation;
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8.3.2
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The
Participant’s termination of employment with the Corporation (for reasons
other than death, Early Retirement, Normal Retirement, Disability or
Change of Control).
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8.3.3
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The
Participant’s cessation of full-time employee status with the Corporation
prior to age 55; or
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8.3.4
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The
Participant’s violation of the terms of Article
9.
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IN WITNESS OF THE ABOVE, the
Corporation executes this Third Amendment as of the date indicated
above.
Dubuque Bank and Trust
Company
By: _________________________________
Title: _________________________________
AMENDMENT
NO. 4 TO THE
DUBUQUE
BANK AND TRUST COMPANY
THIS
AMENDMENT, is effective as of December 31, 2007 by Dubuque Bank and Trust
Company (the “Corporation”).
W I T N E S S E T
H
WHEREAS,
the Corporation maintains the Dubuque Bank and Trust Company Split-Dollar Life
Insurance Plan dated November 13, 2001, as amended (the “Plan);
WHEREAS,
the Corporation desires to amend the Plan effective as of December 31, 2007;
and
WHEREAS,
Article 8.1 of the Plan reserves to the Corporation the right to amend the Plan;
and
WHEREAS,
the Participants in the Plan listed on Exhibit E hereto are hereby executing
this Amendment to consent to the Amendment in the event such consent is required
pursuant to Article 8.1 of the Plan;
NOW,
THEREFORE, the Plan is hereby amended as follows:
FIRST: Article
1 of the Plan is hereby amended to add the following new section:
1.9 Net at Risk Amount means the
total proceeds payable from the Policy minus the cash
surrender value of the Policy as of the date of the Participant’s
death.
SECOND: Article
3.1 of the Agreement is hereby amended by adding thereto, at the end thereof,
the following:
Notwithstanding
the foregoing, with respect to a Participant listed on Exhibit E hereto, the
Participant’s interest as set forth above shall not exceed the lesser of (i)
$1,000,000 or (ii) one hundred percent (100%) of the “Net at Risk Amount” (as
defined herein).
In the
event a Participant ceases to be a full-time employee and becomes a part-time
employee, as determined by the Corporation’s standard practices, the
Participant’s interest as set forth herein shall be frozen at the amount in
effect immediately prior to the date of such change.
THIRD: Article
3.2 of the Agreement is hereby amended by adding thereto, at the end thereof,
the following:
Notwithstanding
the foregoing, the Corporation may transfer ownership of the Policy or any
permitted replacement Policy to a grantor trust to which the Corporation is a
party.
FOURTH: Article
10 of the Plan is hereby amended to add the following new section:
10.10 Professional Fees Following Change
of Control. If the Participant incurs legal fees or other
expenses on or after the date of a Change of Control in an effort to enforce or
obtain the benefits of this Plan, the Corporation, shall, regardless of the
outcome of such effort, reimburse the Participant for such legal fees and other
expenses in an amount not to exceed $500,000.
FIFTH: The
Plan is hereby further amended by adding at the end thereof the attached Exhibit
E, which is a list of Participants affected by this Amendment.
SIXTH: The
Plan, as hereinabove amended shall remain in full force and effect.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of December
31, 2007.
DUBUQUE BANK AND TRUST
COMPANY
By: ___________________________
Its: ___________________________
PARTICIPANTS
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
[End
of Participant signatures]
EXHIBIT
A
DUBUQUE
BANK AND TRUST COMPANY
ELECTION
TO PARTICIPATE
I, «Name», an eligible employee as
determined in Section 2.1 of the Dubuque Bank and Trust Company Split-Dollar
Life Insurance Plan (the “Plan”) dated November 13, 2001, hereby elect to become
a Participant of the Plan in accordance with Section 2.2 of the
Plan.
I acknowledge that I have read the Plan
document and agree to be bound by its terms, including the covenant not to
compete in Article 9 of the Plan.
For purposes of measuring my initial
Baseline Benefit under the Plan, my Total Compensation (for purposes of the Plan
only) is $«Comp». The first indexing of my Baseline Benefit is/was
January 1, «Year».
Executed this ______ day of
_____________________, 20___.
_____________________________ ______________________________
Witness
signature Participant
signature
_____________________________ ______________________________
Witness
printed
name Participant
printed name
EXHIBIT
B
SPLIT-DOLLAR
POLICY ENDORSEMENT TO
DUBUQUE
BANK AND TRUST COMPANY
SPLIT-DOLLAR
LIFE INSURANCE PLAN
Policy
No.
«PolicyNo» Insured:
«Name»
Supplementing
and amending the application for insurance to Great-West Life & Annuity
Insurance Company (“Insurer”) on June 8, 2001, the applicant requests and
directs that:
BENEFICIARIES
1. Dubuque
Bank and Trust Company, a state-chartered commercial bank located in Dubuque,
Iowa (the “Corporation”), shall be the direct beneficiary of the remaining death
proceeds after payment of any amounts due the Insured’s beneficiaries in
paragraph (2) of this endorsement.
2. The
beneficiary of an amount equal to the Indexed Baseline Benefit, as defined in
the Split-Dollar Life Insurance Plan (the “Plan”) dated November 13, 2001
between the Insured and Corporation, shall be designated by the Insured or the
Insured’s transferee, subject to the provisions of paragraph (5) of this
endorsement.
OWNERSHIP
3. The
Owner of the Policy shall be the Corporation. The Owner shall have
all ownership rights in the Policy except as may be specifically granted to the
Insured or the Insured’s transferee in paragraph (4) of this
endorsement.
4. The
Insured or the Insured’s transferee shall have the right to assign his or her
rights and interests in the Policy with respect to that portion of the death
proceeds designated in paragraph (2) of this endorsement, and to exercise all
settlement options with respect to such death proceeds.
5. Notwithstanding
the provisions of paragraph (4) of this endorsement, 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 (2) of
this endorsement if the Plan terminates pursuant to Section 8.3 of the
Plan.
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) of this endorsement shall be limited to
the portion of the proceeds described in paragraph (1) of this
endorsement.
OWNERS
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
its statement of the amount of premiums it 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 therefore 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 payments made pursuant to such statement shall discharge
the Insurer accordingly. The Owner accepts and agrees to this
split-dollar policy endorsement.
Any
transferee’s rights shall be subject to this 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
_____________________, Iowa, this _______ day of ______________,
2001.
DUBUQUE
BANK AND TRUST COMPANY
By: ________________
Title:
________________
ACCEPTANCE AND BENEFICIARY
DESIGNATION
The
Insured accepts and agrees to the foregoing and, subject to the rights of the
Owner as stated above, designates the following as beneficiary(s) of the portion
of the proceeds described in paragraph (2) of this endorsement:
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Primary
Beneficiary: _________________________________________________________
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(Please
print)
Relationship:
___________________________________________
Contingent
Beneficiary (if no Primary Beneficiary exists at the time of death of
Insured): ________________________________________________________________________
(Please
print)
Relationship:
_____________________________________________
Signed at
_____________________, Iowa, this ________ day of _____________,
2001.
THE
INSURED: WITNESSED
BY:
___________________________________ _______________________________
Signature
of
Participant Printed
Name of Witness
_______________________________
Signature of Witness
EXHIBIT
C
IRREVOCABLE
ASSIGNMENT OF SPLIT-DOLLAR LIFE INSURANCE PLAN
THIS
ASSIGNMENT, dated this _______day of ___________________, _______.
WITNESSETH
THAT:
WHEREAS,
the undersigned (the “Assignor”) is the Participant party to that certain
Split-Dollar Life Insurance Plan (the “Plan”), dated as of ______________, by
and between the undersigned and Dubuque Bank and Trust Company (the
“Corporation”), which Plan confers upon the undersigned certain rights and
benefits with regard to one or more policies of insurance insuring the
Assignor's life; and
WHEREAS, pursuant to the provisions
of said Plan, the Assignor retained the right, exercisable by the execution and
delivery to the Corporation of a written form of assignment, to absolutely and
irrevocably assign all of the Assignor’s right, title and interest in and to
said Plan to an assignee; and
WHEREAS, the Assignor desires to
exercise said right;
NOW, THEREFORE, the Assignor, without
consideration, and intending to make a gift, hereby absolutely and irrevocably
assigns, gives, grants and transfers to ___________________, (the “Assignee”)
all of the Assignor’s right, title and interest in and to the Plan and said
policies of insurance, intending that, from and after this date, the Plan be
solely between the Corporation and the Assignee and that hereafter the Assignor
shall neither have nor retain any right, title or interest therein.
____________________________
Assignor
ACCEPTANCE
OF ASSIGNMENT
The
undersigned Assignee hereby accepts the above assignment of all right, title and
interest of the Assignor therein in and to the Plan, by and between such
Assignor and the Corporation, and the undersigned hereby agrees to be bound by
all of the terms and conditions of said Plan, as if the original Participant
party thereto.
____________________________
Assignee
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Dated:_____________
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CONSENT
TO ASSIGNMENT
The
undersigned Corporation hereby consents to the foregoing assignment of all of
the right, title and interest of the Assignor in and to the Plan, by and between
the Assignor and the Corporation, to the Assignee designated
therein. The undersigned Corporation hereby agrees that from and
after the date hereof, the undersigned Corporation, shall look solely to such
Assignee for the performance of all obligations under said Plan which were
heretofore the responsibility of the Assignor, shall allow all rights and
benefits provided therein to the Assignor to be exercised only by said Assignee,
and shall hereafter treat said Assignee in all respects as if the original
Participant party thereof.
Dubuque Bank and Trust
Company
By_________________________
President
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Dated:__________________
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EXHIBIT
D
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CHANGE
OF CONTROL
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Change
of Control shall mean:
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(i) The
consummation of the acquisition by a person (as such term is defined in Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended (the “1934 Act”)) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the ▇▇▇▇ ▇▇▇) of fifty-one percent (51%) or more
of the combined voting power of the then outstanding voting securities of the
Corporation or Heartland Financial USA, Inc. (“Heartland”), Corporation’s
Parent; or
(ii) The
individuals who, as of the date hereof, are members of the Board of Directors of
the Corporation or Heartland (the “Board”) cease for any reason to constitute a
majority of the Boards, unless the election, or nomination for election by the
stockholders, of any new director was approved by a vote of a majority of either
Board and such new director shall, for purposes of this Plan, be considered as a
member of either Board; or
(iii) Approval
by stockholders of the Corporation or Heartland of: (1) a merger or
consolidation if the stockholders, immediately before such merger or
consolidation, do not, as a result of such merger or consolidation, own,
directly or indirectly, more than fifty-one percent (51%) of the combined voting
power of the then outstanding voting securities of the entity resulting from
such merger or consolidation in substantially the same proportion as their
ownership of the combined voting power of the voting securities of the
Corporation or Heartland outstanding immediately before such merger or
Corporation; Corporation or Heartland outstanding immediately before such merger
or Corporation; or (2) a complete liquidation or dissolution or an Plan for the
sale or other disposition of all or substantially all of the assets of the
Corporation or Heartland.
Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
fifty-one percent (51%) or more of the combined voting power of the then
outstanding securities of the Corporation or Heartland are acquired by: (1) a
trustee or other fiduciary holding securities under one or more employee benefit
plans maintained for employees of the entity; or (2) any corporation which,
immediately prior to such acquisition, is owned directly or indirectly by the
stockholders in the same proportion as their ownership of stock immediately
prior to such acquisition.
EXHIBIT
E
DUBUQUE
BANK AND TRUST COMPANY
EXECUTIVE
SUPPLEMENTAL LIFE INSURANCE PLAN
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Participant
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MassMutual
Policy Number
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