EXHIBIT 10.12
FIRST COMMUNITY BANK & TRUST
DIRECTOR DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this 29th day of October, 1999, by and between
FIRST COMMUNITY BANK & TRUST, a state-chartered commercial bank, located in
Greenwood, Indiana (the "Company"), and ROY MARTIN UMBARGER (the "Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the Company is willing to provide to the Director a deferred fee
opportunity. The Company will pay the Director's benefits from the Company's
general assets.
AGREEMENT
The Director and the Company agree as follows:
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.2 "Anniversary Date" means December 31 of each year.
1.2 "Change of Control" means the transfer of shares of the Company's
voting common stock such that one entity or one person acquires (or is deemed to
acquire when applying Section 318 of the Code) more than 50 percent of the
Company's outstanding voting common stock followed within twelve (12) months by
the Director's Termination of Service for reasons other than death, Disability
or retirement.
1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.4 "Deferral Account" means the Company's accounting of the Director's
accumulated Deferrals plus accrued interest.
1.5 "Deferrals" means the amount of the Director's Fees which the
Director elects to defer according to this Agreement.
1.6 "Disability" means, if the Director is covered by a Company
sponsored disability
policy, total disability as defined in such policy without regard to any waiting
period. If the Director is not covered by such a policy, Disability means the
Director suffering a sickness, accident or injury which, in the judgment of a
physician satisfactory to the Company, prevents the Director from performing
substantially all of the Director's normal duties for the Company. As a
condition to any benefits, the Company may require the Director to submit to
such physical or mental evaluations and tests as the Company's Board of
Directors deems appropriate.
1.7 "Effective Date" means May 1, 1999.
1.8 "Election Form" means the Form attached as Exhibit 1.
1.9 "Fees" means the total fees payable to the Director during a Plan
Year.
1.10 "Normal Retirement Age" means the Director's 72nd birthday.
1.11 "Normal Retirement Date" means the later of the Normal Retirement
Age or Termination of Service.
1.12 "Plan Year" means the calendar year.
1.13 "Termination of Service" means that the Director ceases to be a
member of the Company's Board of Directors for any reason whatsoever other than
by reason of a leave of absence which is approved by the Company. For purposes
of this Agreement, if there is a dispute over the Director's status or the date
of the Director's Termination of Service, the Company shall have the sole and
absolute right to decide the dispute.
Article 2
Deferral Election
2.1 Initial Election. The Director shall make an initial deferral
election under this Agreement by filing with the Company a signed Election Form
within 30 days after the Effective Date of this Agreement. The Election Form
shall set forth the amount of Fees to be deferred and shall be effective to
defer only Fees earned after the date of Election Form is received by the
Company.
2.2 Election Changes
2.2.1 Generally. Upon Company approval, the Director may modify
the amount of Fees to be deferred annually by filing a new Election Form
with the Company prior to the
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beginning of the Plan Year in which the Fees are to be deferred. The
modified deferral election shall not be effective until the calendar
year following the year in which the subsequent Election Form is
received and approved by the Company.
2.2.2 Hardship. If an unforeseeable financial emergency arising
from the death of a family member, divorce, sickness, injury,
catastrophe or similar event outside the control of the Director occurs,
the Director, by written instructions to the Company, may reduce future
deferrals under this Agreement.
Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a Deferral
Account on its books for the Director and shall credit to the Deferral Account
the following amounts:
3.1.1 Deferrals. The Fees deferred by the Director as of the time
the Fees would have otherwise been paid to the Director.
3.1.2 Interest. On the first day of each month and immediately
prior to the payment of any benefits, interest on the account balance
since the preceding credit under this Section 3.1.2, if any, at an
annual rate, compounded monthly, equal to the rate determined by the
Company's Board of Directors, in its sole discretion.
3.2 Statement of Accounts. The Company shall provide to the Director,
within 120 days after each Anniversary Date, a statement setting forth the
Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a device for
measuring amounts to be paid under this Agreement. The Deferral Account is not a
trust fund of any kind. The Director is a general unsecured creditor of the
company for the payment of benefits. The benefits represent the mere Company
promise to pay such benefits. The Director's rights are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Director's creditors.
Article 4
Lifetime Benefits
4.1 Normal Retirement Benefit. Upon the Normal Retirement Date, the
Company shall pay to the Director the benefit described in this Section 4.1 in
lieu of any other benefit under this Agreement.
4.1.1 Amount of Benefit. The benefit under this Section 4.1 is
the Deferral Account balance at the Director's Normal Retirement Date.
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4.1.2 Payment of Benefit. The Company shall pay the benefit to
the Director in 120 equal monthly installments commencing on the first
day of the month following the Director's Normal Retirement Date. The
Company shall credit interest pursuant to Section 3.1.2 on the remaining
account balance during any applicable installment period.
4.2 Early Retirement Benefit. Upon Termination of Service prior to the
Normal Retirement Age for reasons other than death, Change of Control or
Disability, the Company shall pay to the Director the benefit described in this
Section 4.2 in lieu of any other benefits under this Agreement.
4.2.1 Amount of Benefit. The benefit under this Section 4.2 is
the Deferral Account balance at the Director's Termination of Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit to
the Director in 120 equal monthly installments commencing on the first
day of the month following the Director's Normal Retirement Age. The
Company shall credit interest pursuant to Section 3.1.2 on the remaining
account balance during any applicable installment period.
4.3 Disability Benefit. If the Director terminates service as a Director
due to Disability prior to Normal Retirement Age, the Company shall pay to the
Director the benefit described in this Section 4.3 in lieu of any other benefit
under this Agreement.
4.3.1 Amount of Benefit. The benefit under this Section 4.3 is
the Deferral Account balance at the Director's Termination of Service.
4.3.2 Payment of Benefit. The Company shall pay the benefit to
the Director in 120 equal monthly installments commencing on the first
day of the month following the Director's Termination of Service. The
Company shall credit interest pursuant to Section 3.1.2 on the remaining
account balance during any applicable installment period.
4.4 Change of Control Benefit. Upon a Change of Control, the Company
shall pay to the Director the benefit described in this Section 4.4 in lieu of
any other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4 shall
be the Deferral Account balance on the Director's Termination of
Service.
4.4.2 Payment of Benefit. The Company shall pay the benefit to
the Director in a lump sum within 30 days after the Director's
Termination of Service.
4.5 Hardship Distribution. Upon the Board of Director's determination
(following petition by the Director) that the Director has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the Company
shall distribute to the Director all or a portion of the
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Deferral Account balance as determined by the Company, but in no event shall the
distribution be greater than is necessary to relieve the financial hardship.
Article 5
Death Benefits
5.1 Death During Active Service. If the Director dies while in the
active service of the Company, the Company shall pay to the Director's
beneficiary the benefit described in this Section 5.1 in lieu of any other
benefit under this Agreement.
5.1.1 Amount of Benefit. The benefit under Section 5.1 is the
greater of: a) the Deferral Account balance on the Director's death; or
b) $900,440.
5.1.2 Payment of Benefit. The Company shall pay the benefit to
the beneficiary in 120 equal monthly installments commencing on the
first day of the month following the Director's death. The Company shall
credit interest pursuant to Section 3.1.2 on the remaining account
balance during any applicable installment period.
5.2 Death During Benefit Period. If the Director dies after benefit
payments have commenced under this Agreement but before receiving all such
payments, the Company shall pay the remaining benefits to the Director's
beneficiary at the same time and in the same amounts they would have been paid
to the Director had the Director survived.
5.3 Death After Termination of Service But Before Benefit Payments
Commence. If the Director is entitled to benefit payments under this Agreement,
but dies prior to the commencement of said benefit payments, the Company shall
pay the benefit payments to the Director's beneficiary that the Director was
entitled to prior to death except that the benefit payments shall commence on
the first day of the month following the date of the Director's death.
Article 6
Beneficiaries
6.1 Beneficiary Designations. The Director shall designate a beneficiary
by filing a written designation with the Company. The Director may revoke or
modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Director and accepted by
the Company during the Director's lifetime. The Director's beneficiary
designation shall be deemed automatically revoked if the beneficiary predeceases
the Director or if the Director names a spouse as beneficiary and the marriage
is subsequently dissolved. If the Director dies without a valid beneficiary
designation, all payments shall be made to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incompetent, or to a person incapable of handling the disposition of
his or her property, the
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Company may pay such benefits to the guardian, legal representative or person
having the care or custody of such minor, incompetent person or incapable
person. The Company may require proof of incompetence, minority or guardianship
as it may deem appropriate prior to distribution of the benefit. Such
distribution shall completely discharge the Company from all liability with
respect to such benefit.
Article 7
General Limitations
7.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement that is in excess of the Director's Deferrals if the Company
terminates the Director's service for:
(a) Gross negligence or gross neglect of duties to the Company;
(b) Commission of a felony or of a gross misdemeanor involving
moral turpitude in connection with the Director's service to the
Company; or
(c) Fraud, disloyalty, dishonesty or willful violation of any law
or significant Company policy committed in connection with the
Director's service and resulting in an adverse effect on the Company.
7.2 Suicide or Misstatement. The Company shall not pay any death benefit
under this Agreement exceeding the Deferral Account if the Director commits
suicide within two years after the date of this Agreement, or if the Director
has made any material misstatement of fact on any application for life insurance
purchased by the Company.
7.3 Excess Parachute Payment. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement to the extent the benefit would create an excise tax under the excess
parachute rules of Section 280G of the Code.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. The Company shall notify any person or entity that
makes a claim against the Agreement (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 Agreement. If the Company 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 Agreement 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, and (4) an explanation of
the Agreement's claims review procedure and other appropriate information as to
the steps to be taken if the Claimant wishes to
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have the claim reviewed. If the Company determines that there are special
circumstances requiring additional time to make a decision, the Company 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.
8.2 Review Procedure. If the Claimant is determined by the Company 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 Company by filing a petition for
review with the Company within 60 days after receipt of the notice issued by the
Company. 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 Company of the petition, the Company shall
afford the Claimant (and counsel, if any) an opportunity to present his or her
position to the Company verbally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Company 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 Agreement 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 Company, but notice of this deferral shall be given to the
Claimant.
Article 9
Amendments and Termination
The Company may amend or terminate this agreement at any time prior to
the Director's termination of service by written notice to the Director. In no
event shall this Agreement be terminated without payment to the Director of the
deferral account balance attributable to the Director's deferrals and interest
credited on such amounts.
Article 10
Miscellaneous
10.1 Binding Effect. This Agreement shall bind the Director and the
Company, and their beneficiaries, survivors, executors, administrators and
transferees.
10.2 No Guarantee of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain in the service of
the Company, nor does it interfere with the shareholders' rights to replace the
Director. It also does not require the Director to remain in the service of the
Company nor interfere with the Director's right to terminate services at any
time.
10.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
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10.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Indiana, except to the extent preempted by
the laws of the United States of America.
10.6 Unfunded Agreement. The Director and the Director's beneficiary are
general unsecured creditors of the Company for payment of benefits under this
Agreement. The benefits represent the mere promise by the Company to pay such
benefits. The rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors. Any insurance on the Director's life is a general
asset of the Company to which the Director and the Director's beneficiary have
no preferred or secured claim.
10.7 Reorganization. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement.
10.8 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Director as to the subject matter hereof. No rights
are granted to the Director by virtue of this Agreement other than those
specifically set forth herein.
10.9 Administration. The Company shall have powers which are necessary
to administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting for the
Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
10.10 Named Fiduciary. The Company shall be the named fiduciary and plan
administrator under the Agreement. The named fiduciary may delegate to others
certain aspects of the management and operation responsibilities of the plan
including the employment of advisors and the delegation of ministerial duties to
qualified individuals.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed
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this Agreement.
DIRECTOR: COMPANY:
First Community Bank & Trust
/s/ Roy Martin Umbarger By /s/ Albert R. Jackson, III
- ---------------------- ----------------------------
Roy Martin Umbarger
Title President
-------------------------
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EXHIBIT 1
TO
FIRST COMMUNITY BANK & TRUST
DIRECTOR DEFERRED FEE AGREEMENT
Deferral Election
I elect to defer my Fees received under this Agreement with the Company, as
follows:
---------------------------------------- -------------------------------
Amount of Deferral Duration
---------------------------------------- -------------------------------
[Initial and Complete one] [Initial One]
X I elect to defer 100% of my One Year only
----- Fees. -----
For _____ [Insert
I elect to defer $ ----- Number] Years
----- of my Fees. ----------
Until Termination
I elect not to defer any of ------ of Service
----- my Fees.
Until
------ ------------,
------------
(date)
---------------------------------------- -------------------------------
I understand that I may change the amount and duration of my deferrals by filing
a new election form with the Company; provided, however, that any subsequent
election will not be effective until the calendar year following the year in
which the new election is received by the Company.
Signature /s/ Roy Martin Umbarger
---------------------------
Date November 3, 1999
---------------------------
Accepted by the Company this day of , 199 .
---------- -------------------- --
By
---------------------------
Title
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Beneficiary Designation
FIRST COMMUNITY BANK & TRUST
DIRECTOR DEFERRED FEE AGREEMENT
I designate the following as beneficiary of benefits under this Agreement
payable following my death:
Primary: 50% Rowana Sue Umbarger
---------------------------------------------------------------------
50% Jackson Martin Umbarger
- -----------------------------------------------------------------------------
Contingent: Jackson Martin Umbarger
------------------------------------------------------------------
Note: To name a trust as beneficiary, please provide the name of the
trustee(s) and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature /s/ Roy Martin Umbarger
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[Name of Director]
Date November 3, 1999
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Accepted by the Company this 3rd day of November, 1999.
By /s/ Albert R. Jackson, III
---------------------------
Title President
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