Exhibit 10.5
[NAME OF BANK]
SPLIT-DOLLAR LIFE INSURANCE PLAN
THIS PLAN is made and entered into this _________ day of
_____________, _____, by and between [NAME OF BANK], a [state-
][nationally-]chartered commercial bank with principal offices
and place of business in the State of ______ (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.
8.4.2 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.
Article 9
Non-Compete
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.
Article 10
Miscellaneous
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 _________________.
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:
10.8.1 Interpreting the provisions of the Plan;
10.8.2 Establishing and revising the method of accounting for
the Plan;
10.8.3 Maintaining a record of benefit payments; and
10.8.4 Establishing rules and prescribing any forms necessary
or desirable to administer the Plan.
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.
[NAME OF BANK]
By____________________________
Title___________________________
AMENDMENT 1
[NAME OF BANK]
SPLIT-DOLLAR LIFE INSURANCE PLAN
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.
EXHIBIT A
[NAME OF BANK]
SPLIT-DOLLAR LIFE INSURANCE PLAN
ELECTION TO PARTICIPATE
I, _____________________________________ an eligible
employee as determined in Section 2.1 of the [Name of Bank] Split-
Dollar Life Insurance Plan (the "Plan") dated _________________,
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 $__________________________. The first indexing of my
Baseline Benefit is/was January 1, ___________.
Executed this ______ day of _____________________, 20___.
_______________________________
Witness signature
_______________________________
Witness printed name
________________________________
Participant signature
________________________________
Participant printed name
EXHIBIT B
SPLIT-DOLLAR POLICY ENDORSEMENT TO
[NAME OF BANK] SPLIT-DOLLAR LIFE INSURANCE PLAN
Policy No. [policy no.] Insured: [Name of
Participant]
Supplementing and amending the application for insurance to
[insurer] ("Insurer") on ___________________________, _______,
the applicant requests and directs that:
BENEFICIARIES
1. [NAME OF BANK], a state-chartered commercial bank located in
[City], [State] (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 ___________ 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 _____________________, [State], this _______ day of
______________, 2001.
[NAME OF BANK]
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:
Primary Beneficiary:
_________________________________________________________
(Please print)
Relationship: ___________________________________________
Contingent Beneficiary (if no Primary Beneficiary exists at the
time of death of Insured):
_______________________________________________________________
(Please print)
Relationship: _________________________________________________
Signed at _____________________, [State], this ________ day of
_____________, 2001.
THE INSURED:
__________________________________
Signature of Participant
WITNESSED BY:
__________________________
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 [NAME OF BANK] (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
Dated:_____________
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.
[NAME OF BANK]
By_________________________
President
Dated:__________________
EXHIBIT D
CHANGE OF CONTROL
Change of Control shall mean:
(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
1934 Act) 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.