UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 23, 2012

 

 

WILSON BANK HOLDING COMPANY

(Exact Name of Registrant as Specified in Charter)

 

 

 

Tennessee   000-20402   62-1497076
(State or Other Jurisdiction   (Commission   (I.R.S. Employer
of Incorporation)   File Number)   Identification No.)
623 West Main Street  
Lebanon, Tennessee   37087
(Address of Principal Executive Offices)   (Zip Code)

(615) 444-2265

(Registrant’s Telephone Number, Including Area Code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(e) On November 23, 2012, Wilson Bank and Trust (the “Bank”), a wholly-owned subsidiary of Wilson Bank Holding Company, a Tennessee corporation (the “Company”) (i) entered into amendments to the Executive Salary Continuation Agreements, as previously amended and restated, (the “Salary Continuation Agreements”), by and between the Bank and certain of the Bank’s officers, including Randall Clemons, Elmer Richerson, Lisa Pominski, Gary Whitaker, and John C. McDearman, III (each, an “Executive” and collectively, the “Executives”), (ii) entered into amendments to the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreements, as previously amended (the “Existing Original Split Dollar Agreements”), with each of the Executives other than Mr. McDearman, (iii) entered into an amendment to the Wilson Bank and Trust Life Insurance Endorsement Split Dollar Agreement with Mr. McDearman (the “McDearman Split Dollar Agreement” and collectively with the Existing Original Split Dollar Agreements, the “Existing Split Dollar Agreements”) and (iv) entered into new Supplemental Executive Retirement Plan Agreements with each of the Executives (the “SERP Agreements”).

The amendments to the Salary Continuation Agreements were entered into to freeze the accrual of benefits under the Salary Continuation Agreements so that no additional benefits (including disability and death benefits thereunder) will be accrued under the Salary Continuation Agreements on or after October 1, 2012, and to clarify that the frozen disability benefit under each of the Salary Continuation Agreements will be paid until the applicable Executive’s normal retirement age at which time such benefit will be reduced to the normal retirement benefit provided for under the applicable Salary Continuation Agreement for the remaining benefit payment period.

The description of the amendments to the Salary Continuation Agreements set forth herein is qualified in its entirety by reference to the amendments to the Salary Continuation Agreements which are filed herewith as Exhibits 10.1, 10.2, 10.3, 10.4 and 10.5 and incorporated by reference into this Section 5.02.

The amendments to the Existing Split Dollar Agreements clarify that none of the Executives shall be entitled to any death proceeds under the Executive’s Existing Split Dollar Agreement or the underlying insurance policy if the Executive dies following the Executives’ termination of employment. Under the Existing Split Dollar Agreements, as now amended, if the Executive dies prior to his or her termination of employment, then the Executive will receive the difference between the death benefit under the underlying insurance policy and the cash surrender value of the policy. The Bank shall retain the remainder of the proceeds, including the cash surrender value.

The description of the amendments to the Existing Split Dollar Agreements set forth herein is qualified in its entirety by reference to the amendments to the Existing Split Dollar Agreements which are filed herewith as Exhibits 10.6, 10.7, 10.8, 10.9 and 10.10 and incorporated by reference into this Section 5.02.

The SERP Agreements were entered into to provide certain supplemental nonqualified pension benefits to the Executives in coordination with the freezing of the benefits under the Executive’s Salary Continuation Agreements. The SERP Agreements when combined with the frozen Salary Continuation Agreements continue to provide the Executives with the same benefits as provided under the Salary Continuation Agreements for the 180-month period provided for thereunder and then continue a portion of that benefit for the remainder of each of the Executives’ lives. The Bank purchased Flexible Premium Indexed Deferred Annuity Contracts to fund the benefits under the SERP Agreements. The Salary Continuation Agreements, as amended, and the SERP Agreements together provide for the payment of an annual cash benefit to each of the Executives (or their beneficiaries) following the Executives’ separation from service from the Bank under a variety of circumstances including both the Executive’s voluntary termination of the Executive’s employment with the Bank and the involuntary termination of the Executive by the Bank without cause. The payments are made partially from the frozen Salary Continuation Agreements and partially from the SERP Agreements for 180 months following an Executive’s termination of service (in most cases) and a portion of the payments then continue for the remainder of the Executive’s life under the SERP Agreements.


The following is a brief summary of what payments are to be made under the Existing Salary Continuation Agreements, as now amended, and the SERP Agreements, which summary of the benefits payable under the SERP Agreements is qualified in its entirety by reference to the SERP Agreements which are filed herewith as Exhibits 10.11, 10.12, 10.13, 10.14 and 10.15 and incorporated by reference into this Section 5.02.

If an Executive retires from the Bank after reaching age 65, he or she is entitled to receive a percentage of his or her then current base salary from the Salary Continuation Agreement and the SERP Agreement payable in equal monthly installments for 180 months beginning the month following the month in which the Executive’s retirement occurs. Following the end of the 180-month period, the SERP Agreement will continue a portion of this payment for the remainder of the Executive’s life. The percentage of salary payable to the Executives following normal retirement ranges from 10% – 30%, respectively. If an Executive retires prior to reaching age 65, his or her retirement will be considered an “early retirement” under the Salary Continuation Agreement and the SERP Agreement if he or she has attained the age of 55 and has been continuously employed by the Bank for twenty years. If an Executive’s retirement qualifies as an “early retirement” or an Executive dies prior to the commencement of benefit payments under the Salary Continuation Agreements and SERP Agreements, then he or she shall be entitled to receive a benefit equal to the Executive’s then accrued balance under the Salary Continuation Agreements and SERP Agreements, payable in equal monthly installments for 180 months beginning the month following the month in which the Executive’s early retirement occurs in the case of “early retirement” and in a lump sum within 30 days following the Executive’s death in the case of the Executive’s death. In the case of early retirement, following the end of the 180-month period the SERP Agreement will continue a portion of the early retirement payments for the remainder of the Executive’s life. In the event that an Executive becomes disabled prior to reaching early retirement or retirement, the Bank is obligated to pay to the Executive an annual benefit from the Salary Continuation Agreement and the SERP Agreement equal to 60% of the Executive’s salary and bonus at the time of disability, payable in equal monthly installments until the Executive’s 65 th birthday. Following this date, the disability benefit is reduced to the Executive’s normal retirement amount and paid for the remainder of the 180-month period following the first day of the third month following Executive’s disability. Following the end of the 180 month period, the SERP Agreement will continue a portion of the reduced disability payments for the remainder of the Executive’s life.

In the event that the employment of an Executive terminates for any reason other than death, disability or retirement by his or her voluntary action or he or she is discharged by the Bank without cause, the Bank is required to pay to the executive the vested portion of his or her accrual balance under the Salary Continuation Agreement and SERP Agreement as of the date of termination in equal monthly installments for a period of 180 months commencing on the first month following the Executive’s 65th birthday.

The payment of the benefits under the Salary Continuation Agreements is contingent on the Executive not competing with the Bank for one year after termination of employment. In the event there is a change in control of the Bank or the Company, the normal retirement benefit under the Salary Continuation Agreements and the SERP Agreements becomes fully vested without regard to the non-competition agreement and will be paid in equal monthly installments commencing thirty (30) days following the change in control and continuing for 180 months thereafter. Following the end of the 180-month period, the SERP Agreement will continue a portion of the change in control payments for the remainder of the Executive’s life. A change in control will be deemed to have occurred if a “change in ownership,” a “change in the effective control,” or a “change in the ownership of a substantial portion of the assets” of the Bank occurs, as such terms are defined in Treasury Regulation §1.409A-3(i)(5) or any subsequent, applicable Treasury Regulation.

The description of the payments due under the Salary Continuation Agreements, the SERP Agreements and the Existing Split Dollar Agreements, in each case as amended set forth herein, is qualified in its entirety by reference to the amendments to the Salary Continuation Agreements, the amendments to the Existing Split Dollar Agreements, the Existing Split Dollar Agreements, as previously amended and the SERP Agreements which are filed herewith and incorporated by reference into this Section 5.02 and to the Salary Continuation Agreements filed previously by the Company with the Securities and Exchange Commission which are incorporated by reference into this Section 5.02.

 

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Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

10.1    Amendment, dated November 23, 2012, to Amended and Restated Executive Salary Continuation Agreement dated as of October 7, 2002, by and between Wilson Bank and Trust and J. Randall Clemons.
10.2    Amendment, dated November 23, 2012, to Amended and Restated Executive Salary Continuation Agreement dated as of October 7, 2002, by and between Wilson Bank and Trust and Elmer Richerson.
10.3    Amendment, dated November 23, 2012, to Amended and Restated Executive Salary Continuation Agreement dated as of October 7, 2002, by and between Wilson Bank and Trust and Lisa T. Pominski.
10.4    Amendment, dated November 23, 2012, to Amended and Restated Executive Salary Continuation Agreement dated as of October 7, 2002, by and between Wilson Bank and Trust and Gary Whitaker.
10.5    Amendment, dated November 23, 2012, to Executive Salary Continuation Agreement dated as of January 1, 2006, by and between Wilson Bank and Trust and John C. McDearman III.
10.6    Second Amendment, dated November 23, 2012 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002 by and between Wilson Bank and Trust and J. Randall Clemons.
10.7    Second Amendment, dated November 23, 2012 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002 by and between Wilson Bank and Trust and Elmer Richerson.
10.8    Second Amendment, dated November 23, 2012 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002 by and between Wilson Bank and Trust and Lisa T. Pominski.
10.9    Second Amendment, dated November 23, 2012 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002 by and between Wilson Bank and Trust and Gary Whitaker.
10.10    Amendment, dated November 23, 2012 to Wilson Bank and Trust Life Insurance Endorsement Method Split Dollar Plan Agreement dated as of July 28, 2006 by and between Wilson Bank and John C. McDearman III.
10.11    Supplemental Executive Retirement Plan Agreement, dated November 23, 2012, by and between Wilson Bank and Trust and J. Randall Clemons.
10.12    Supplemental Executive Retirement Plan Agreement, dated November 23, 2012, by and between Wilson Bank and Trust and Elmer Richerson.
10.13    Supplemental Executive Retirement Plan Agreement, dated November 23, 2012, by and between Wilson Bank and Trust and Lisa T. Pominski.
10.14    Supplemental Executive Retirement Plan Agreement, dated November 23, 2012, by and between Wilson Bank and Trust and Gary Whitaker.
10.15    Supplemental Executive Retirement Plan Agreement, dated November 23, 2012, by and between Wilson Bank and Trust and John C. McDearman III.


10.16    First Amendment, dated April 21, 2003 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and J. Randall Clemons.
10.17    First Amendment, dated April 21, 2003 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Elmer Richerson.
10.18    First Amendment, dated April 21, 2003 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Lisa T. Pominski.
10.19    First Amendment, dated April 21, 2003 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Gary Whitaker.
10.20    Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and J. Randall Clemons.
10.21    Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Elmer Richerson.
10.22    Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Lisa T. Pominski.
10.23    Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Gary Whitaker.
10.24    Wilson Bank and Trust Life Insurance Endorsement Method Split Dollar Plan Agreement dated July 28, 2006, by and between Wilson Bank and Trust and John C. McDearman III.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

November 29, 2012

    WILSON BANK HOLDING COMPANY
    By:  

/s/ Lisa T. Pominski

      Lisa T. Pominski
      Chief Financial Officer


EXHIBIT INDEX

 

Exhibit

No.

  

Description

10.1    Amendment, dated November 23, 2012, to Amended and Restated Executive Salary Continuation Agreement dated as of October 7, 2002, by and between Wilson Bank and Trust and J. Randall Clemons.
10.2    Amendment, dated November 23, 2012, to Amended and Restated Executive Salary Continuation Agreement dated as of October 7, 2002, by and between Wilson Bank and Trust and Elmer Richerson.
10.3    Amendment, dated November 23, 2012, to Amended and Restated Executive Salary Continuation Agreement dated as of October 7, 2002, by and between Wilson Bank and Trust and Lisa T. Pominski.
10.4    Amendment, dated November 23, 2012, to Amended and Restated Executive Salary Continuation Agreement dated as of October 7, 2002, by and between Wilson Bank and Trust and Gary Whitaker.
10.5    Amendment, dated November 23, 2012, to Executive Salary Continuation Agreement dated as of January 1, 2006, by and between Wilson Bank and Trust and John C. McDearman III.
10.6    Second Amendment, dated November 23, 2012 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002 by and between Wilson Bank and Trust and J. Randall Clemons.
10.7    Second Amendment, dated November 23, 2012 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002 by and between Wilson Bank and Trust and Elmer Richerson.
10.8    Second Amendment, dated November 23, 2012 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002 by and between Wilson Bank and Trust and Lisa T. Pominski.
10.9    Second Amendment, dated November 23, 2012 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002 by and between Wilson Bank and Trust and Gary Whitaker.
10.10    Amendment, dated November 23, 2012 to Wilson Bank and Trust Life Insurance Endorsement Method Split Dollar Plan Agreement dated as of July 28, 2006 by and between Wilson Bank and John C. McDearman III.
10.11    Supplemental Executive Retirement Plan Agreement, dated November 23, 2012, by and between Wilson Bank and Trust and J. Randall Clemons.
10.12    Supplemental Executive Retirement Plan Agreement, dated November 23, 2012, by and between Wilson Bank and Trust and Elmer Richerson.
10.13    Supplemental Executive Retirement Plan Agreement, dated November 23, 2012, by and between Wilson Bank and Trust and Lisa T. Pominski.
10.14    Supplemental Executive Retirement Plan Agreement, dated November 23, 2012, by and between Wilson Bank and Trust and Gary Whitaker.


10.15    Supplemental Executive Retirement Plan Agreement, dated November 23, 2012, by and between Wilson Bank and Trust and John C. McDearman III.
10.16    First Amendment, dated April 21, 2003 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and J. Randall Clemons.
10.17    First Amendment, dated April 21, 2003 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Elmer Richerson.
10.18    First Amendment, dated April 21, 2003 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Lisa T. Pominski.
10.19    First Amendment, dated April 21, 2003 to Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Gary Whitaker.
10.20    Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and J. Randall Clemons.
10.21    Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Elmer Richerson.
10.22    Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Lisa T. Pominski.
10.23    Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement dated October 7, 2002, by and between Wilson Bank and Trust and Gary Whitaker.
10.24    Wilson Bank and Trust Life Insurance Endorsement Method Split Dollar Plan Agreement dated July 28, 2006, by and between Wilson Bank and Trust and John C. McDearman.

Exhibit 10.1

AMENDMENT TO THE

AMENDED AND RESTATED WILSON BANK AND TRUST EXECUTIVE SALARY

CONTINUATION AGREEMENT

WHEREAS, Wilson Bank and Trust (the “Bank”) and James Randall Clemons, (the “Executive”) previously entered into the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement (the “Agreement”), originally effective as of March 30, 1995; and

WHEREAS, the Agreement is designed to provide retirement benefits (the “Benefits”) to the Executive upon certain enumerated events, payable out of the Bank’s general assets; and

WHEREAS, the Bank and the Executive most recently amended the Agreement on January 1, 2009, to make changes required by Section 409A of the Internal Revenue Code of 1986, as amended; and

WHEREAS, the Bank and the Executive have agreed to further amend the Agreement to (i) clarify the payment of benefits thereunder following the Executive’s disability and (ii) freeze the accrual of Benefits under the Agreement as of October 1, 2012.

NOW, THEREFORE, effective November 23, 2012, the Bank and the Executive hereby amend the Agreement as follows:

1. A new Section 2.2 is added to the Agreement, which shall provide as follows:

2.2 FREEZE IN ACCRUED BENEFIT.

Effective October 1, 2012, notwithstanding anything herein to the contrary, (i) no additional service or compensation will be credited under the Agreement and (ii) the accrued benefits hereunder will be frozen such that no additional benefits (including disability and death benefits under Sections 5 and 6 herein) will be accrued under this Agreement. Such frozen accrued benefits will be paid in accordance with the current terms of the Agreement in a manner consistent with Section 409A of the Code, subject to the freezing of such benefits in accordance with this Section 2.2.


2. Section 6 of the Agreement is amended to provide as follows:

DISABILITY BENEFIT PRIOR TO RETIREMENT

In the event the Executive should become Disabled while actively employed by the Bank any time after the effective date of this Agreement but prior to retirement or early retirement, the Executive will be entitled to the benefit described in this Section 6 in lieu of any other benefit under this Agreement. The Disability benefit shall be payable for total of one hundred eighty (180) months (the “Disability Payment Period”). Initially, the annual Disability benefit will equal sixty percent (60%) of the Executive’s base salary and bonus at the time of the Disability and shall be payable in equal monthly installments (1/12 th of the annual benefit) commencing on the first (1 st ) day of the third month following the date of the Executive’s Disability and payable until the Executive reaches Normal Retirement Age. At Normal Retirement Age, the Disability benefit will be reduced to an annual amount equal to the Normal Retirement Benefit as provided for in Section 4(a) above as if the Executive separated from service at the Executive’s Normal Retirement Age and such reduced amount shall continue in equal monthly installments (1/12 th of the annual benefit) for the remaining portion the Disability Payment Period.

Disability shall mean Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank. Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of Section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.

3. To the extent that any paragraph, term or provision of said Agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term or provision shall remain in full force and effect as set forth in said Agreement

[Remainder of page intentionally left blank. Signature page follows.]

 

2


IN WITNESS WHEREOF, both parties hereto acknowledge that each has carefully read and considered this Amendment and consent to the changes contained herein. Both parties have caused this Amendment to the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement to be executed this 23rd day of November, 2012, effective November 23, 2012.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

Witness:   /s/ Lisa Pominski     By:   /s/ Elmer Richerson
      Title:   President
Witness:   /s/ Gary Whitaker       /s/ Randall Clemons
        James Randall Clemons

 

3

Exhibit 10.2

AMENDMENT TO THE

AMENDED AND RESTATED WILSON BANK AND TRUST EXECUTIVE SALARY

CONTINUATION AGREEMENT

WHEREAS, Wilson Bank and Trust (the “Bank”) and H. Elmer Richerson, (the “Executive”) previously entered into the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement (the “Agreement”), originally effective as of March 30, 1995; and

WHEREAS, the Agreement is designed to provide retirement benefits (the “Benefits”) to the Executive upon certain enumerated events, payable out of the Bank’s general assets; and

WHEREAS, the Bank and the Executive most recently amended the Agreement on January 1, 2009, to make changes required by Section 409A of the Internal Revenue Code of 1986, as amended; and

WHEREAS, the Bank and the Executive have agreed to further amend the Agreement to (i) clarify the payment of benefits thereunder following the Executive’s disability and (ii) freeze the accrual of Benefits under the Agreement as of October 1, 2012.

NOW, THEREFORE, effective November 23, 2012, the Bank and the Executive hereby amend the Agreement as follows:

1. A new Section 2.2 is added to the Agreement, which shall provide as follows:

2.2 FREEZE IN ACCRUED BENEFIT.

Effective October 1, 2012, notwithstanding anything herein to the contrary, (i) no additional service or compensation will be credited under the Agreement and (ii) the accrued benefits hereunder will be frozen such that no additional benefits (including disability and death benefits under Sections 5 and 6 herein) will be accrued under this Agreement. Such frozen accrued benefits will be paid in accordance with the current terms of the Agreement in a manner consistent with Section 409A of the Code, subject to the freezing of such benefits in accordance with this Section 2.2.


2. Section 6 of the Agreement is amended to provide as follows:

DISABILITY BENEFIT PRIOR TO RETIREMENT

In the event the Executive should become Disabled while actively employed by the Bank any time after the effective date of this Agreement but prior to retirement or early retirement, the Executive will be entitled to the benefit described in this Section 6 in lieu of any other benefit under this Agreement. The Disability benefit shall be payable for total of one hundred eighty (180) months (the “Disability Payment Period”). Initially, the annual Disability benefit will equal sixty percent (60%) of the Executive’s base salary and bonus at the time of the Disability and shall be payable in equal monthly installments (1/12 th of the annual benefit) commencing on the first (1 st ) day of the third month following the date of the Executive’s Disability and payable until the Executive reaches Normal Retirement Age. At Normal Retirement Age, the Disability benefit will be reduced to an annual amount equal to the Normal Retirement Benefit as provided for in Section 4(a) above as if the Executive separated from service at the Executive’s Normal Retirement Age and such reduced amount shall continue in equal monthly installments (1/12 th of the annual benefit) for the remaining portion the Disability Payment Period.

Disability shall mean Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank. Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of Section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.

3. To the extent that any paragraph, term or provision of said Agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term or provision shall remain in full force and effect as set forth in said Agreement

[Remainder of page intentionally left blank. Signature page follows.]

 

2


IN WITNESS WHEREOF, both parties hereto acknowledge that each has carefully read and considered this Amendment and consent to the changes contained herein. Both parties have caused this Amendment to the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement to be executed this 23rd day of November, 2012, effective November 23, 2012.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

Witness:   /s/ Lisa Pominski     By:   /s/ Randall Clemons
      Title:   CEO
Witness:   /s/ Gary Whitaker       /s/ H. Elmer Richerson
       

H. Elmer Richerson

 

3

Exhibit 10.3

AMENDMENT TO THE

AMENDED AND RESTATED WILSON BANK AND TRUST EXECUTIVE SALARY

CONTINUATION AGREEMENT

WHEREAS, Wilson Bank and Trust (the “Bank”) and Lisa Pominski, (the “Executive”) previously entered into the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement (the “Agreement”), originally effective as of March 21, 2001; and

WHEREAS, the Agreement is designed to provide retirement benefits (the “Benefits”) to the Executive upon certain enumerated events, payable out of the Bank’s general assets; and

WHEREAS, the Bank and the Executive most recently amended the Agreement on January 1, 2009, to make changes required by Section 409A of the Internal Revenue Code of 1986, as amended; and

WHEREAS, the Bank and the Executive have agreed to further amend the Agreement to (i) clarify the payment of benefits thereunder following the Executive’s disability and (ii) freeze the accrual of Benefits under the Agreement as of October 1, 2012.

NOW, THEREFORE, effective November 23, 2012, the Bank and the Executive hereby amend the Agreement as follows:

1. A new Section 2.2 is added to the Agreement, which shall provide as follows:

2.2 FREEZE IN ACCRUED BENEFIT.

Effective October 1, 2012, notwithstanding anything herein to the contrary, (i) no additional service or compensation will be credited under the Agreement and (ii) the accrued benefits hereunder will be frozen such that no additional benefits (including disability and death benefits under Sections 5 and 6 herein) will be accrued under this Agreement. Such frozen accrued benefits will be paid in accordance with the current terms of the Agreement in a manner consistent with Section 409A of the Code, subject to the freezing of such benefits in accordance with this Section 2.2.


2. Section 6 of the Agreement is amended to provide as follows:

DISABILITY BENEFIT PRIOR TO RETIREMENT

In the event the Executive should become Disabled while actively employed by the Bank any time after the effective date of this Agreement but prior to retirement or early retirement, the Executive will be entitled to the benefit described in this Section 6 in lieu of any other benefit under this Agreement. The Disability benefit shall be payable for total of one hundred eighty (180) months (the “Disability Payment Period”). Initially, the annual Disability benefit will equal sixty percent (60%) of the Executive’s base salary and bonus at the time of the Disability and shall be payable in equal monthly installments (1/12 th of the annual benefit) commencing on the first (1 st ) day of the third month following the date of the Executive’s Disability and payable until the Executive reaches Normal Retirement Age. At Normal Retirement Age, the Disability benefit will be reduced to an annual amount equal to the Normal Retirement Benefit as provided for in Section 4(a) above as if the Executive separated from service at the Executive’s Normal Retirement Age and such reduced amount shall continue in equal monthly installments (1/12 th of the annual benefit) for the remaining portion the Disability Payment Period.

Disability shall mean Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank. Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of Section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.

3. To the extent that any paragraph, term or provision of said Agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term or provision shall remain in full force and effect as set forth in said Agreement

[Remainder of page intentionally left blank. Signature page follows.]

 

2


IN WITNESS WHEREOF, both parties hereto acknowledge that each has carefully read and considered this Amendment and consent to the changes contained herein. Both parties have caused this Amendment to the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement to be executed this 23rd day of November, 2012, effective November 23, 2012.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

Witness:   /s/ Gary Whitaker     By:   /s/ Elmer Richerson
      Title:   President
Witness:   /s/ Christy Norton       /s/ Lisa Pominski
       

Lisa Pominski

 

3

Exhibit 10.4

AMENDMENT TO THE

AMENDED AND RESTATED WILSON BANK AND TRUST EXECUTIVE SALARY

CONTINUATION AGREEMENT

WHEREAS, Wilson Bank and Trust (the “Bank”) and Gary D. Whitaker, (the “Executive”) previously entered into the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement (the “Agreement”), originally effective as of March 1, 1998; and

WHEREAS, the Agreement is designed to provide retirement benefits (the “Benefits”) to the Executive upon certain enumerated events, payable out of the Bank’s general assets; and

WHEREAS, the Bank and the Executive most recently amended the Agreement on January 1, 2009, to make changes required by Section 409A of the Internal Revenue Code of 1986, as amended; and

WHEREAS, the Bank and the Executive have agreed to further amend the Agreement to (i) clarify the payment of benefits thereunder following the Executive’s disability and (ii) freeze the accrual of Benefits under the Agreement as of October 1, 2012.

NOW, THEREFORE, effective November 23, 2012, the Bank and the Executive hereby amend the Agreement as follows:

1. A new Section 2.2 is added to the Agreement, which shall provide as follows:

2.2 FREEZE IN ACCRUED BENEFIT.

Effective October 1, 2012, notwithstanding anything herein to the contrary, (i) no additional service or compensation will be credited under the Agreement and (ii) the accrued benefits hereunder will be frozen such that no additional benefits (including disability and death benefits under Sections 5 and 6 herein) will be accrued under this Agreement. Such frozen accrued benefits will be paid in accordance with the current terms of the Agreement in a manner consistent with Section 409A of the Code, subject to the freezing of such benefits in accordance with this Section 2.2.


2. Section 6 of the Agreement is amended to provide as follows:

DISABILITY BENEFIT PRIOR TO RETIREMENT

In the event the Executive should become Disabled while actively employed by the Bank any time after the effective date of this Agreement but prior to retirement or early retirement, the Executive will be entitled to the benefit described in this Section 6 in lieu of any other benefit under this Agreement. The Disability benefit shall be payable for total of one hundred eighty (180) months (the “Disability Payment Period”). Initially, the annual Disability benefit will equal sixty percent (60%) of the Executive’s base salary and bonus at the time of the Disability and shall be payable in equal monthly installments (1/12 th of the annual benefit) commencing on the first (1 st ) day of the third month following the date of the Executive’s Disability and payable until the Executive reaches Normal Retirement Age. At Normal Retirement Age, the Disability benefit will be reduced to an annual amount equal to the Normal Retirement Benefit as provided for in Section 4(a) above as if the Executive separated from service at the Executive’s Normal Retirement Age and such reduced amount shall continue in equal monthly installments (1/12 th of the annual benefit) for the remaining portion the Disability Payment Period.

Disability shall mean Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank. Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of Section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.

3. To the extent that any paragraph, term or provision of said Agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term or provision shall remain in full force and effect as set forth in said Agreement

[Remainder of page intentionally left blank. Signature page follows.]

 

2


IN WITNESS WHEREOF, both parties hereto acknowledge that each has carefully read and considered this Amendment and consent to the changes contained herein. Both parties have caused this Amendment to the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement to be executed this 23rd day of November, 2012, effective November 23, 2012.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

Witness:   /s/ Lisa Pominski     By:   /s/ Elmer Richerson
      Title:   President
Witness:   /s/ Christy Norton       /s/ Gary D. Whitaker
       

Gary D. Whitaker

 

3

Exhibit 10.5

AMENDMENT TO THE

WILSON BANK AND TRUST EXECUTIVE SALARY CONTINUATION AGREEMENT

WHEREAS, Wilson Bank and Trust (the “Bank”) and John C. McDearman III, (the “Executive”) previously entered into the Wilson Bank and Trust Executive Salary Continuation Agreement (the “Agreement”), originally effective as of January 1, 2006; and

WHEREAS, the Agreement is designed to provide retirement benefits (the “Benefits”) to the Executive upon certain enumerated events, payable out of the Bank’s general assets; and

WHEREAS, the Bank and the Executive most recently amended the Agreement on January 1, 2009, to make changes required by Section 409A of the Internal Revenue Code of 1986, as amended; and

WHEREAS, the Bank and the Executive have agreed to further amend the Agreement to (i) clarify the payment of benefits thereunder following the Executive’s disability and (ii) freeze the accrual of Benefits under the Agreement as of October 1, 2012.

NOW, THEREFORE, effective November 23, 2012, the Bank and the Executive hereby amend the Agreement as follows:

1. A new Section 2.2 is added to the Agreement, which shall provide as follows:

2.2 FREEZE IN ACCRUED BENEFIT.

Effective October 1, 2012, notwithstanding anything herein to the contrary, (i) no additional service or compensation will be credited under the Agreement and (ii) the accrued benefits hereunder will be frozen such that no additional benefits (including disability and death benefits under Sections 5 and 6 herein) will be accrued under this Agreement. Such frozen accrued benefits will be paid in accordance with the current terms of the Agreement in a manner consistent with Section 409A of the Code, subject to the freezing of such benefits in accordance with this Section 2.2.


2. Section 6 of the Agreement is amended to provide as follows:

DISABILITY BENEFIT PRIOR TO RETIREMENT

In the event the Executive should become Disabled while actively employed by the Bank any time after the effective date of this Agreement but prior to retirement or early retirement, the Executive will be entitled to the benefit described in this Section 6 in lieu of any other benefit under this Agreement. The Disability benefit shall be payable for total of one hundred eighty (180) months (the “Disability Payment Period”). Initially, the annual Disability benefit will equal sixty percent (60%) of the Executive’s base salary and bonus at the time of the Disability and shall be payable in equal monthly installments (1/12 th of the annual benefit) commencing on the first (1 st ) day of the third month following the date of the Executive’s Disability and payable until the Executive reaches Normal Retirement Age. At Normal Retirement Age, the Disability benefit will be reduced to an annual amount equal to the Normal Retirement Benefit as provided for in Section 4(a) above as if the Executive separated from service at the Executive’s Normal Retirement Age and such reduced amount shall continue in equal monthly installments (1/12 th of the annual benefit) for the remaining portion the Disability Payment Period.

Disability shall mean Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank. Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of Section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.

3. To the extent that any paragraph, term or provision of said Agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term or provision shall remain in full force and effect as set forth in said Agreement

[Remainder of page intentionally left blank. Signature page follows.]

 

2


IN WITNESS WHEREOF, both parties hereto acknowledge that each has carefully read and considered this Amendment and consent to the changes contained herein. Both parties have caused this Amendment to the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement to be executed this 23rd day of November, 2012, effective November 23, 2012.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

Witness:   /s/ Lisa Pominski     By:   /s/ Elmer Richerson
      Title:   President
Witness:   /s/ Gary Whitaker       /s/ John C. McDearman III
       

John C. McDearman III

 

3

Exhibit 10.6

SECOND AMENDMENT TO THE

WILSON BANK AND TRUST AMENDED AND RESTATED LIFE INSURANCE

ENDORSEMENT METHOD SPLIT DOLLAR PLAN AGREEMENT

WHEREAS, Wilson Bank and Trust (the “Bank”) and James Randall Clemons, (the “Executive”) established the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement (the “Agreement”), originally effective as of March 30, 1995; and

WHEREAS, the Bank and the Executive most recently amended the Agreement on October 7, 2002, to make changes regarding the division of the death proceeds thereunder; and

WHEREAS, the Bank and the Executive desire to amend the Agreement to clarify that the Executive shall not be entitled to any death proceeds under the Agreement or the underlying insurance policy following the Executive’s termination of employment.

NOW, THEREFORE, effective November 23, 2012, the Bank and the Executive hereby amend the Agreement as follows.

1. Section VI.A. of the Agreement is amended to provide as follows:

 

  A. Upon the death of the Insured while employed by the Bank, the Insured’s beneficiary(ies), designated in accordance with Paragraph III, shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. Notwithstanding the foregoing, or any other provision of this Agreement, upon the death of the Insured subsequent to a termination of service (except in the case of the Insured’s assumption of the Agreement pursuant to Section IX herein), all proceeds (including any death benefit) payable hereunder shall be retained by the Bank and neither the Insured nor their beneficiary(ies) shall have any rights regarding the proceeds under this Agreement. The net-at-risk insurance portion is the total proceeds less the cash value of the policy.


2. Section IX. is amended to provide as follows:

 

  IX. TERMINATION OF AGREEMENT

This Agreement shall terminate upon the occurrence of any one of the following:

 

  A. The Insured shall terminate employment with the Bank for any reason; or

 

  B. Surrender, lapse, or other termination of the policy by the Bank.

Upon such termination, the Insured (or assignee) shall have a fifteen (15) day option to receive from the Bank an absolute assignment of the policy in consideration of a cash payment to the Bank, whereupon this Agreement shall terminate. Such cash payment referred to hereinabove shall be the greater of:

 

  A. The Bank’s share of the cash value of the policy on the date of such assignment, as defined in this Agreement; or

 

  B. The amount of the premiums that have been paid by the Bank prior to the date of such assignment.

If, within said fifteen (15) day period, the Insured fails to exercise said option, fails to procure the entire aforestated cash payment, or dies, then the option shall terminate and the Insured (or assignee) agrees that all of the Insured’s rights, interest and claims in the policy shall terminate as of the date of the termination of this Agreement.

The Insured expressly agrees that this Agreement shall constitute sufficient written notice to the Insured of the Insured’s option to receive an absolute assignment of the policy as set forth herein.

Except as provided above, this Agreement shall terminate upon distribution of the death benefit proceeds in accordance with Paragraph VI above.

3. Section XV is amended to provide as follows:

 

  XV. Change of Control

Change of Control shall be deemed to be the cumulative transfer of more than fifty percent (50%) of the voting stock of the Bank from the date of this Agreement. For purposes of this Agreement, transfers on account of death or gifts, transfers between family members, or transfers to a qualified retirement plan maintained by the Bank shall not be considered in determining whether there has been a Change of Control. Upon a Change of Control, the Insured shall become one hundred percent (100%) vested in the benefits the Insured is entitled to hereunder, subject to the termination of the Insured’s rights upon his or her termination of employment as provided in Section VI.A.

 

2


4. To the extent that any paragraph, term or provision of said Agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term or provision shall remain in full force and effect as set forth in said Agreement

IN WITNESS WHEREOF, both parties hereto acknowledge that each has carefully read and considered this Second Amendment and consent to the changes contained herein. Both parties have caused this Second Amendment to the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement to be executed this 23rd day of November, 2012, effective November 23, 2012.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

Witness:   /s/ Lisa Pominski     By:   /s/ Elmer Richerson
      Title:   President
Witness:   /s/ Gary Whitaker       /s/ Randall Clemons
       

James Randall Clemons

 

3

Exhibit 10.7

SECOND AMENDMENT TO THE

WILSON BANK AND TRUST AMENDED AND RESTATED LIFE INSURANCE

ENDORSEMENT METHOD SPLIT DOLLAR PLAN AGREEMENT

WHEREAS, Wilson Bank and Trust (the “Bank”) and H Elmer Richerson, (the “Executive”) established the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement (the “Agreement”), originally effective as of March 30, 1995; and

WHEREAS, the Bank and the Executive most recently amended the Agreement on October 7, 2002, to make changes regarding the division of the death proceeds thereunder; and

WHEREAS, the Bank and the Executive desire to amend the Agreement to clarify that the Executive shall not be entitled to any death proceeds under the Agreement or the underlying insurance policy following the Executive’s termination of employment.

NOW, THEREFORE, effective November 23, 2012, the Bank and the Executive hereby amend the Agreement as follows.

1. Section VI.A. of the Agreement is amended to provide as follows:

 

  A. Upon the death of the Insured while employed by the Bank, the Insured’s beneficiary(ies), designated in accordance with Paragraph III, shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. Notwithstanding the foregoing, or any other provision of this Agreement, upon the death of the Insured subsequent to a termination of service (except in the case of the Insured’s assumption of the Agreement pursuant to Section IX herein), all proceeds (including any death benefit) payable hereunder shall be retained by the Bank and neither the Insured nor their beneficiary(ies) shall have any rights regarding the proceeds under this Agreement. The net-at-risk insurance portion is the total proceeds less the cash value of the policy.


2. Section IX. is amended to provide as follows:

 

  IX. TERMINATION OF AGREEMENT

This Agreement shall terminate upon the occurrence of any one of the following:

 

  A. The Insured shall terminate employment with the Bank for any reason; or

 

  B. Surrender, lapse, or other termination of the policy by the Bank.

Upon such termination, the Insured (or assignee) shall have a fifteen (15) day option to receive from the Bank an absolute assignment of the policy in consideration of a cash payment to the Bank, whereupon this Agreement shall terminate. Such cash payment referred to hereinabove shall be the greater of:

 

  A. The Bank’s share of the cash value of the policy on the date of such assignment, as defined in this Agreement; or

 

  B. The amount of the premiums that have been paid by the Bank prior to the date of such assignment.

If, within said fifteen (15) day period, the Insured fails to exercise said option, fails to procure the entire aforestated cash payment, or dies, then the option shall terminate and the Insured (or assignee) agrees that all of the Insured’s rights, interest and claims in the policy shall terminate as of the date of the termination of this Agreement.

The Insured expressly agrees that this Agreement shall constitute sufficient written notice to the Insured of the Insured’s option to receive an absolute assignment of the policy as set forth herein.

Except as provided above, this Agreement shall terminate upon distribution of the death benefit proceeds in accordance with Paragraph VI above.

3. Section XV is amended to provide as follows:

 

  XV. Change of Control

Change of Control shall be deemed to be the cumulative transfer of more than fifty percent (50%) of the voting stock of the Bank from the date of this Agreement. For purposes of this Agreement, transfers on account of death or gifts, transfers between family members, or transfers to a qualified retirement plan maintained by the Bank shall not be considered in determining whether there has been a Change of Control. Upon a Change of Control, the Insured shall become one hundred percent (100%) vested in the benefits the Insured is entitled to hereunder, subject to the termination of the Insured’s rights upon his or her termination of employment as provided in Section VI.A.

 

2


4. To the extent that any paragraph, term or provision of said Agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term or provision shall remain in full force and effect as set forth in said Agreement

IN WITNESS WHEREOF, both parties hereto acknowledge that each has carefully read and considered this Second Amendment and consent to the changes contained herein. Both parties have caused this Second Amendment to the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement to be executed this 23rd day of November, 2012, effective November 23, 2012.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

Witness:   /s/ Lisa Pominski     By:   /s/ Randall Clemons
      Title:   CEO
Witness:   /s/ Gary Whitaker       /s/ H. Elmer Richerson
       

H Elmer Richerson

 

3

Exhibit 10.8

SECOND AMENDMENT TO THE

WILSON BANK AND TRUST AMENDED AND RESTATED LIFE INSURANCE

ENDORSEMENT METHOD SPLIT DOLLAR PLAN AGREEMENT

WHEREAS, Wilson Bank and Trust (the “Bank”) and Lisa Pominski, (the “Executive”) established the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement (the “Agreement”), originally effective as of March 21, 2001; and

WHEREAS, the Bank and the Executive most recently amended the Agreement on October 7, 2002, to make changes regarding the division of the death proceeds thereunder; and

WHEREAS, the Bank and the Executive desire to amend the Agreement to clarify that the Executive shall not be entitled to any death proceeds under the Agreement or the underlying insurance policy following the Executive’s termination of employment.

NOW, THEREFORE, effective November 23, 2012, the Bank and the Executive hereby amend the Agreement as follows.

1. Section VI.A. of the Agreement is amended to provide as follows:

 

  A. Upon the death of the Insured while employed by the Bank, the Insured’s beneficiary(ies), designated in accordance with Paragraph III, shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. Notwithstanding the foregoing, or any other provision of this Agreement, upon the death of the Insured subsequent to a termination of service (except in the case of the Insured’s assumption of the Agreement pursuant to Section IX herein), all proceeds (including any death benefit) payable hereunder shall be retained by the Bank and neither the Insured nor their beneficiary(ies) shall have any rights regarding the proceeds under this Agreement. The net-at-risk insurance portion is the total proceeds less the cash value of the policy.


2. Section IX. is amended to provide as follows:

 

  IX. TERMINATION OF AGREEMENT

This Agreement shall terminate upon the occurrence of any one of the following:

 

  A. The Insured shall terminate employment with the Bank for any reason; or

 

  B. Surrender, lapse, or other termination of the policy by the Bank.

Upon such termination, the Insured (or assignee) shall have a fifteen (15) day option to receive from the Bank an absolute assignment of the policy in consideration of a cash payment to the Bank, whereupon this Agreement shall terminate. Such cash payment referred to hereinabove shall be the greater of:

 

  A. The Bank’s share of the cash value of the policy on the date of such assignment, as defined in this Agreement; or

 

  B. The amount of the premiums that have been paid by the Bank prior to the date of such assignment.

If, within said fifteen (15) day period, the Insured fails to exercise said option, fails to procure the entire aforestated cash payment, or dies, then the option shall terminate and the Insured (or assignee) agrees that all of the Insured’s rights, interest and claims in the policy shall terminate as of the date of the termination of this Agreement.

The Insured expressly agrees that this Agreement shall constitute sufficient written notice to the Insured of the Insured’s option to receive an absolute assignment of the policy as set forth herein.

Except as provided above, this Agreement shall terminate upon distribution of the death benefit proceeds in accordance with Paragraph VI above.

3. Section XV is amended to provide as follows:

 

  XV. Change of Control

Change of Control shall be deemed to be the cumulative transfer of more than fifty percent (50%) of the voting stock of the Bank from the date of this Agreement. For purposes of this Agreement, transfers on account of death or gifts, transfers between family members, or transfers to a qualified retirement plan maintained by the Bank shall not be considered in determining whether there has been a Change of Control. Upon a Change of Control, the Insured shall become one hundred percent (100%) vested in the benefits the Insured is entitled to hereunder, subject to the termination of the Insured’s rights upon his or her termination of employment as provided in Section VI.A.

 

2


4. To the extent that any paragraph, term or provision of said Agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term or provision shall remain in full force and effect as set forth in said Agreement

IN WITNESS WHEREOF, both parties hereto acknowledge that each has carefully read and considered this Second Amendment and consent to the changes contained herein. Both parties have caused this Second Amendment to the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement to be executed this 23rd day of November, 2012, effective November 23, 2012.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

Witness:   /s/ Gary Whitaker     By:   /s/ Elmer Richerson
      Title:   President
Witness:   /s/ Christy Norton       /s/ Lisa Pominski
       

Lisa Pominski

 

3

Exhibit 10.9

SECOND AMENDMENT TO THE

WILSON BANK AND TRUST AMENDED AND RESTATED LIFE INSURANCE

ENDORSEMENT METHOD SPLIT DOLLAR PLAN AGREEMENT

WHEREAS, Wilson Bank and Trust (the “Bank”) and Gary D. Whitaker, (the “Executive”) established the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement (the “Agreement”), originally effective as of March 30, 1995; and

WHEREAS, the Bank and the Executive most recently amended the Agreement on October 7, 2002, to make changes regarding the division of the death proceeds thereunder; and

WHEREAS, the Bank and the Executive desire to amend the Agreement to clarify that the Executive shall not be entitled to any death proceeds under the Agreement or the underlying insurance policy following the Executive’s termination of employment.

NOW, THEREFORE, effective November 23, 2012, the Bank and the Executive hereby amend the Agreement as follows.

1. Section VI.A. of the Agreement is amended to provide as follows:

 

  A. Upon the death of the Insured while employed by the Bank, the Insured’s beneficiary(ies), designated in accordance with Paragraph III, shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. Notwithstanding the foregoing, or any other provision of this Agreement, upon the death of the Insured subsequent to a termination of service (except in the case of the Insured’s assumption of the Agreement pursuant to Section IX herein), all proceeds (including any death benefit) payable hereunder shall be retained by the Bank and neither the Insured nor their beneficiary(ies) shall have any rights regarding the proceeds under this Agreement. The net-at-risk insurance portion is the total proceeds less the cash value of the policy.


2. Section IX. is amended to provide as follows:

 

  IX. TERMINATION OF AGREEMENT

This Agreement shall terminate upon the occurrence of any one of the following:

 

  A. The Insured shall terminate employment with the Bank for any reason; or

 

  B. Surrender, lapse, or other termination of the policy by the Bank.

Upon such termination, the Insured (or assignee) shall have a fifteen (15) day option to receive from the Bank an absolute assignment of the policy in consideration of a cash payment to the Bank, whereupon this Agreement shall terminate. Such cash payment referred to hereinabove shall be the greater of:

 

  A. The Bank’s share of the cash value of the policy on the date of such assignment, as defined in this Agreement; or

 

  B. The amount of the premiums that have been paid by the Bank prior to the date of such assignment.

If, within said fifteen (15) day period, the Insured fails to exercise said option, fails to procure the entire aforestated cash payment, or dies, then the option shall terminate and the Insured (or assignee) agrees that all of the Insured’s rights, interest and claims in the policy shall terminate as of the date of the termination of this Agreement.

The Insured expressly agrees that this Agreement shall constitute sufficient written notice to the Insured of the Insured’s option to receive an absolute assignment of the policy as set forth herein.

Except as provided above, this Agreement shall terminate upon distribution of the death benefit proceeds in accordance with Paragraph VI above.

3. Section XV is amended to provide as follows:

 

  XV. Change of Control

Change of Control shall be deemed to be the cumulative transfer of more than fifty percent (50%) of the voting stock of the Bank from the date of this Agreement. For purposes of this Agreement, transfers on account of death or gifts, transfers between family members, or transfers to a qualified retirement plan maintained by the Bank shall not be considered in determining whether there has been a Change of Control. Upon a Change of Control, the Insured shall become one hundred percent (100%) vested in the benefits the Insured is entitled to hereunder, subject to the termination of the Insured’s rights upon his or her termination of employment as provided in Section VI.A.

 

2


4. To the extent that any paragraph, term or provision of said Agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term or provision shall remain in full force and effect as set forth in said Agreement

IN WITNESS WHEREOF, both parties hereto acknowledge that each has carefully read and considered this Second Amendment and consent to the changes contained herein. Both parties have caused this Second Amendment to the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement to be executed this 23rd day of November, 2012, effective November 23, 2012.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

Witness:   /s/ Lisa Pominski     By:   /s/ Elmer Richerson
      Title:   President
Witness:   /s/ Christy Norton       /s/ Gary Whitaker
       

Gary D. Whitaker

 

3

Exhibit 10.10

AMENDMENT TO THE

WILSON BANK AND TRUST AMENDED AND RESTATED LIFE INSURANCE

ENDORSEMENT METHOD SPLIT DOLLAR PLAN AGREEMENT

WHEREAS, Wilson Bank and Trust (the “Bank”) and John C McDearman III, (the “Executive”) established the Wilson Bank and Trust Life Insurance Endorsement Method Split Dollar Plan Agreement (the “Agreement”), originally effective as of January 1, 2006; and

WHEREAS, the Bank and the Executive desire to amend the Agreement to clarify that the Executive shall not be entitled to any death proceeds under the Agreement or the underlying insurance policy following the Executive’s termination of employment.

NOW, THEREFORE, effective November 23, 2012, the Bank and the Executive hereby amend the Agreement as follows.

1. Section VI.A. of the Agreement is amended to provide as follows:

 

  A. Upon the death of the Insured while employed by the Bank, the Insured’s beneficiary(ies), designated in accordance with Paragraph III, shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. Notwithstanding the foregoing, or any other provision of this Agreement, upon the death of the Insured subsequent to a termination of service (except in the case of the Insured’s assumption of the Agreement pursuant to Section IX herein), all proceeds (including any death benefit) payable hereunder shall be retained by the Bank and neither the Insured nor their beneficiary(ies) shall have any rights regarding the proceeds under this Agreement. The net-at-risk insurance portion is the total proceeds less the cash value of the policy.

2. Section IX. is amended to provide as follows:

 

  IX. TERMINATION OF AGREEMENT

This Agreement shall terminate upon the occurrence of any one of the following:


  A. The Insured shall terminate employment with the Bank for any reason; or

 

  B. Surrender, lapse, or other termination of the policy by the Bank.

Upon such termination, the Insured (or assignee) shall have a fifteen (15) day option to receive from the Bank an absolute assignment of the policy in consideration of a cash payment to the Bank, whereupon this Agreement shall terminate. Such cash payment referred to hereinabove shall be the greater of:

 

  A. The Bank’s share of the cash value of the policy on the date of such assignment, as defined in this Agreement; or

 

  B. The amount of the premiums that have been paid by the Bank prior to the date of such assignment.

If, within said fifteen (15) day period, the Insured fails to exercise said option, fails to procure the entire aforestated cash payment, or dies, then the option shall terminate and the Insured (or assignee) agrees that all of the Insured’s rights, interest and claims in the policy shall terminate as of the date of the termination of this Agreement.

The Insured expressly agrees that this Agreement shall constitute sufficient written notice to the Insured of the Insured’s option to receive an absolute assignment of the policy as set forth herein.

Except as provided above, this Agreement shall terminate upon distribution of the death benefit proceeds in accordance with Paragraph VI above.

 

3. Section XV is amended to provide as follows:

 

  XV. Change of Control

Change of Control shall be deemed to be the cumulative transfer of more than fifty percent (50%) of the voting stock of the Bank from the date of this Agreement. For purposes of this Agreement, transfers on account of death or gifts, transfers between family members, or transfers to a qualified retirement plan maintained by the Bank shall not be considered in determining whether there has been a Change of Control. Upon a Change of Control, the Insured shall become one hundred percent (100%) vested in the benefits the Insured is entitled to hereunder, subject to the termination of the Insured’s rights upon his or her termination of employment as provided in Section VI.A.

4. To the extent that any paragraph, term or provision of said Agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term or provision shall remain in full force and effect as set forth in said Agreement

 

2


IN WITNESS WHEREOF, both parties hereto acknowledge that each has carefully read and considered this Second Amendment and consent to the changes contained herein. Both parties have caused this Amendment to the Wilson Bank and Trust Life Insurance Endorsement Method Split Dollar Plan Agreement to be executed this 23rd day of November, 2012, effective November 23, 2012.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

Witness:   /s/ Lisa Pominski     By:   /s/ Elmer Richerson
      Title:   President
Witness:   /s/ Gary Whitaker       /s/ John C. McDearman III
       

John C McDearman III

 

3

Exhibit 10.11

WILSON BANK & TRUST

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT

This Supplemental Executive Retirement Plan Agreement (“ Agreement ”) is entered into as of this 23 day November, 2012 (the “ Effective Date ”) by and between Wilson Bank & Trust (the “ Employer ”), and James Randall Clemons, an individual resident of Tennessee (the “ Executive ”), and establishes the Wilson Bank & Trust Supplemental Executive Retirement Plan f/b/o James Randall Clemons (the “ Plan ”).

WHEREAS, the Executive has contributed substantially to the success of the Employer and the Employer desires that the Executive continue in its employ;

WHEREAS, Employer desires to provide certain supplemental nonqualified pension benefits to Executive;

WHEREAS, Employer and Executive desire to enter into this Agreement to provide a retirement benefit under this Plan and to be paid to Executive upon Separation from Service (or other permissible payment event) as provided herein;

WHEREAS , the parties hereto intend that this Agreement shall be an unfunded arrangement maintained primarily to provide supplemental retirement benefits for the Executive, and shall be considered a plan described in section 301(a)(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”); and

WHEREAS, this Plan is intended to comply with the requirements of section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) and, accordingly, the intent of the parties hereto is that the Plan shall be operated and interpreted consistent with the requirements thereof;

WHEREAS , the Employer has purchased a Flexible Premium Indexed Deferred Annuity Contract issued by Great American Life Insurance Company, contract # 1195057985, and issued by Life Insurance Company of the Southwest, contract # 829490X, (in the aggregate referred to as “Annuity Contracts”); and

WHEREAS , the Employer is the sole owner of the Annuity Contracts and elects to use the Annuity Contracts to provide a retirement benefit to the Executive;

NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.


ARTICLE 1

DEFINITIONS

Whenever used in this Agreement, the following terms have the meanings specified:

1.1. “ Accrual Balance ” means the liability that should be accrued by the Employer under accounting principles generally accepted in the United States (“ GAAP ”) for the Employer’s obligation to the Executive under this Agreement, by applying Accounting Principles Board Opinion No. 12, as amended by Statement of Financial Accounting Standards No. 106, and the calculation method and discount rate specified hereinafter. The Accrual Balance shall be determined by the liability accrued by the Employer as of the Effective Date. The Accrual Balance shall be calculated assuming a level principal amount and interest as the discount rate is accrued each period. The principal accrual is determined such that when it is credited with interest each month, the Accrual Balance at Normal Retirement, in accordance with Section 3.1, equals the present value of the retirement benefits described in Section 3.1. At the end of each Plan Year, the Accrual Balance shall be adjusted to reflect the Employer’s obligation under Section 3.1. The discount rate means the rate used by the Plan Administrator for determining the Accrual Balance. The rate is based on the yield on a 20-year corporate bond rated Aa by Moody’s, rounded to the nearest  1 / 4 %, or as otherwise determined by the governing Regulatory body. The initial discount rate is 6.50%. In its sole discretion, the Plan Administrator may adjust the discount rate to maintain the rate within reasonable standards according to GAAP and consistent with the Interagency Advisory on Accounting for Deferred Compensation Agreements which states that the “cost of those benefits shall be accrued over that period of the Executive’s service in a systematic and rational manner.”

1.2. “ Actuarial (Actuarially) Equivalent ” means a benefit of equivalent value to the normal form of benefit determined by generally accepted actuarial principles.

1.3. “ Beneficiary ” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive, determined according to Article 4.

1.4. “ Beneficiary Designation Form ” means the form established from time to time by the Plan Administrator that the Executive completes, signs, and returns to the Plan Administrator to designate one or more Beneficiaries.

1.5. “ Board ” means the Board of Directors of the Employer.

1.6. “ Change in Control ” shall be deemed to have taken place if there occurs a “change in ownership,” a “change in the effective control,” or a “change in the ownership of a substantial portion of the assets” of the Employer as such terms are defined in Treasury Regulation §1.409A-3(i)(5) or any subsequent, applicable Treasury Regulation.

1.7. “ Disability ” shall mean the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expect to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Employer.

 

2


Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Employer, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.

1.8. “ Early Retirement Date ” means the date of retirement from service which is effective prior to age sixty-five (65), provided the Executive has attained age fifty-five (55) and been continuously employed by the Employer for twenty (20) years.

1.9. “ ERISA ” means the Employee Retirement Income Security Act of 1974.

1.10. “ Rider ” means the Income Rider attached to the Annuity Contract as an endorsement.

1.11. “ Normal Retirement Age ” means age sixty-five (65).

1.12. “ Plan Administrator ” means the plan administrator described in Article 8.

1.13. “ Separation from Service ” means the Executive’s “separation from service” from the Employer as such term is defined under section 409A of the Code and section 1.409A-1(h) of the Final Treasury Regulations or the corresponding provisions in future guidance issued by the Department of the Treasury and the Internal Revenue Service.

ARTICLE 2

DEFERRED COMPENSATION AND VALUATION OF ACCOUNT

2.1. Ownership of the Annuity Contracts . The Employer is the sole owner of the Annuity Contracts and shall have the right to exercise all incidents of ownership. The Employer shall be the beneficiary of the death proceeds of the Annuity Contracts. The Employer shall at all times be entitled to the Annuity Contracts cash surrender value, as that term is defined in the Annuity Contracts. The cash surrender value shall be determined as of the date of the surrender of the Annuity Contracts or death of the Executive, as the case may be.

2.2. Right to Annuity Contracts . Notwithstanding any provision hereof to the contrary, the Employer shall have the right to sell or surrender the Annuity Contracts without terminating this Agreement, provided the Employer replaces the Annuity Contracts with a comparable annuity policy(ies) or arrangement that provides a similar benefit as that provided under the Annuity Contracts. Without limitation, the Annuity Contracts at all times shall be the exclusive property of the Employer and shall be subject to the claims of the Employer’s creditors.

2.3. Rabbi Trust . Employer may establish a “rabbi trust” to which contributions may be made to provide the Employer with a source of funds for purposes of satisfying the obligations of the Employer under the Plan. The trust shall constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan. The Executive and his Beneficiaries shall have no beneficial ownership interest in any assets held in the trust.

 

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ARTICLE 3

RETIREMENT AND OTHER BENEFITS

3.1. Normal Retirement Benefit . Upon the Executive’s Separation from Service on or after Normal Retirement Age for any reason other than death or Disability, the Executive will be entitled to the benefit described in this Section 3.1 in lieu of any other benefit under this Agreement. The Normal Retirement Benefit will equal the Accrual Balance, payable in an Actuarially Equivalent single life annuity in an amount determined pursuant to the Rider, payable in equal monthly installments for the life of the Executive commencing on the first (1 st ) day of the month following the date of the Executive’s Separation from Service.

3.2. Early Retirement Benefit. Upon the Executive’s Separation from Service on or after the Early Retirement Date but prior to the Normal Retirement Date for any reason other than death or Disability, the Executive will be entitled to the benefit described in this Section 3.2 in lieu of any other benefit under this Agreement. The Early Retirement Benefit will equal the Accrual Balance, payable in an Actuarially Equivalent single life annuity in an amount determined pursuant to the Rider, payable in monthly installments for the life of the Executive commencing on the first (1 st ) day of the month following the date of the Executive’s Separation from Service.

3.3. Other Separation from Service . In the event that the Executive incurs a Separation from Service prior to the Early Retirement Date or Normal Retirement Date for any reason other than death or Disability or following a Change in Control, by his or her voluntary action or his or her discharge by the Employer without cause, the Employer shall pay to the Executive the benefit as provided in Schedule A, attached to this Agreement, payable in equal monthly installments for a period of one hundred eighty (180) months commencing on the first (1 st ) day of the month following the Executive’s Normal Retirement Age.

In the event the Executive shall be discharged by the Employer for cause, then all of the Executive’s rights under this Agreement shall terminate and he shall forfeit all benefits under this Agreement. For purposes of this Agreement, “for cause” shall mean gross negligence or willful misconduct, the commission of a felony or gross-misdemeanor involving moral turpitude, fraud, dishonesty, embezzlement, willful violation of any law or any other behavior or act that results in any adverse effect on the Employer as may be determined by the Employer in its sole discretion.

3.4. Disability Benefit. Upon the Executive’s Disability while actively employed by the Employer, but prior to his or her Normal Retirement or Early Retirement, the Executive will be entitled to the benefit described in this Section 3.4 in lieu of any other benefit under this Agreement. The Disability Benefit will equal sixty (60%) percent of the Executive’s base salary and bonus at the time of the Disability less the Disability Benefit payable under the Wilson Bank and Trust Executive Salary Continuation Agreement for James Randall Clemons, as amended and frozen as of October 1, 2012 (the “ Frozen SERP ”). The Disability Benefit is payable in equal monthly installments commencing on the first (1 st ) day of the third month following the date of the Executive’s Disability and payable until the Executive reaches Normal Retirement Age. At Normal Retirement Age, the Disability Benefit will be reduced to an amount equal to the Normal Retirement Benefit as provided for in Section 3.1 as if the Executive separated from service at the Executive’s Normal Retirement Age and such reduced amount shall continue for the life of the Executive as provided in Section 3.1.

 

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3.5. Death Benefits during Active Employment . Upon the death of the Executive while actively employed by the Employer, the Beneficiary will be entitled to a single sum payment, payable within thirty (30) days of the date of death (with the Beneficiary having no right to designate the taxable year of the payment) equal to the Accrual Balance.

3.6. Death Benefit On or After Benefit Commencement . Upon death of the Executive after the Executive is entitled to or begins receiving the Normal Retirement Benefit, Early Retirement Benefit, Other Separation from Service Benefit, Disability Benefit or Change in Control payments under Section 3.1, Section 3.2, Section 3.3 , Section 3.4 or Section 3.7 but before receiving a total of one hundred eighty (180) monthly installments of such benefit payments, the Executive’s Beneficiary will receive the monthly amount payable had the Executive lived, payable for a total of one hundred eighty (180) monthly installments less the number of monthly installments already paid.

3.7. Change in Control Benefit . Upon a Change in Control, the Executive will be one hundred percent (100%) vested in the Retirement Benefit as provided for in Section 3.1 as if the Executive separated from service at the Normal Retirement Age. Such benefits shall be payable in equal monthly installments for the life of the Executive commencing thirty (30) days following said Change in Control.

3.8. Restriction on Timing of Distributions . Notwithstanding any provision of this Agreement to the contrary, distributions under this Agreement may not commence earlier than six (6) months after the date of a Separation from Service if, pursuant to section 409A of the Code, the Executive is considered a “specified employee” (defined in section 1.409A-1(i) of the Treasury Regulations) of the Employer if any stock of the Employer is publicly traded on an established securities market or otherwise. In the event a distribution is delayed pursuant to this Section, the originally scheduled distribution shall be delayed for six (6) months, and shall commence instead on the first (1 st ) day of the seventh month following the Executive’s Separation from Service. If payments are scheduled to be made in installments, the first (1 st ) six (6) months of installment payments shall be delayed, aggregated, and paid instead on the first (1 st ) day of the seventh (7 th ) month, after which all installment payments shall be made on their regular schedule. If payment is scheduled to be made in a lump sum, the lump sum payment shall be delayed for six (6) months and instead be made on the first (1 st ) day of the seventh (7 th ) month.

3.9. Coordination of Benefits . Notwithstanding any other provision of this Agreement to the contrary, the parties acknowledge that the benefits to be provided hereunder are intended to, and shall be, paid at the same time and form and in the same amount as provided for under the Frozen SERP during the period during which the benefits under the Frozen SERP (as applicable) were to be provided for thereunder (as if such benefits were not frozen) as required by section 409A of the Code. Any benefits which continue to be paid under this Agreement following the time such benefits would have ceased under the Frozen SERP are in addition to and in no way are intended to replace, alter or substitute the benefits provided for under the Frozen SERP. The parties agree that this Section 3.9 shall control over any contrary provision regarding the calculation and the time and form of payment of the benefits under this Agreement and the Frozen SERP and this Agreement shall be interpreted in accordance with this Section 3.9.

 

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ARTICLE 4

BENEFICIARIES

4.1. Beneficiary Designations . The Executive shall have the right to designate at any time a Beneficiary to receive any benefits payable under this Agreement upon the death of the Executive. The Beneficiary designated under this Agreement may be the same as or different from the Beneficiary designation under any other benefit plan of the Employer in which the Executive participates.

4.2. Beneficiary Designation; Changes . The Executive shall designate a Beneficiary by completing and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated agent. The Executive’s Beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved. The Executive shall have the right to change a Beneficiary by completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures, as in effect from time to time. Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before the Executive’s death.

4.3. Acknowledgment . No designation or change in designation of a Beneficiary shall be effective until received in writing by the Plan Administrator or its designated agent.

4.4. No Beneficiary Designation . If the Executive dies without a valid Beneficiary designation, or if all designated Beneficiaries predecease the Executive, then the Executive’s spouse shall be the designated Beneficiary. If the Executive has no surviving spouse, the benefits shall be distributed to the personal representative of the Executive’s estate.

4.5. Facility of Payment . If a benefit is payable to a minor, to a person declared incapacitated, or to a person incapable of handling the disposition of his or her property, the Employer may pay such benefit to the guardian, legal representative, or person having the care or custody of the minor, incapacitated person, or incapable person. The Employer may require proof of incapacity, minority, or guardianship as it may deem appropriate before distribution of the benefit. Distribution shall completely discharge the Employer from all liability for the benefit.

 

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ARTICLE 5

GENERAL LIMITATIONS

5.1. Limits on Payments . It is the intention of the parties that none of the payments to which the Executive is entitled under this Agreement will constitute a “golden parachute payment” within the meaning of 12 USC section 1828(k)(3) or implementing regulations of the FDIC, the payment of which is prohibited. Notwithstanding any other provision of this Agreement to the contrary, any payments due to be made by Employer for the benefit of the Executive pursuant to this Agreement, or otherwise, are subject to and conditioned on compliance with 12 USC section 1828(k) and any regulations promulgated thereunder including the receipt of all required approvals thereof by Employer’s primary federal banking regulator and/or the FDIC.

In addition, Employer and its successors retain the legal right to demand the return of any payment made hereunder which constitutes a “golden parachute payment” within the meaning of 12 USC section 1828(k)(3) or implementing regulations of the FDIC should Employer or its successors later obtain information indicating that the Executive committed, is substantially responsible for, or has violated, the respective acts or omissions, conditions, or offenses outlined under 12 C.F.R. 359.4(a)(4).

ARTICLE 6

CLAIMS AND REVIEW PROCEDURES

6.1. Claims Procedure . A person or Beneficiary (a “ claimant ”) who has not received benefits under the Agreement that he or she believes should be paid shall make a claim for such benefits as follows, and strictly in accordance with section 409A of the Code:

(a) Initiation—Written Claim . In the event that benefits under this Agreement are not paid to the Executive (or his or her Beneficiary in the case of the Executive’s death), and such person feels entitled to receive them, a claim shall be made in writing to the Plan Administrator within sixty (60) days from the date payments are not made. Such claim shall be reviewed by the Plan Administrator. If the claim is denied, in full or in part, the Plan Administrator shall provide a written notice within ninety (90) days setting forth the specific reasons for the denial specific reference to the provisions of this Agreement upon which the denial is based, and any additional material or information necessary to perfect the claim, if any. Also, such written notice shall indicate the steps to be taken if a review of the denial is desired.

If a claim is denied and a review is desired, the Executive (or his or her Beneficiary in the case of the Executive’s death), shall notify the Plan Administrator in writing within sixty (60) days and a claim shall be deemed denied if the Plan Administrator does not take any action within the aforesaid ninety (90)-day period. In requesting a review, the Executive or his or her beneficiary may review this Agreement or any documents relating to it and submit any written issue and comments he or she may feel appropriate. In its sole discretion the Plan Administrator shall then review the claim and provide a written decision within sixty (60) days. This decision likewise shall state the specific provisions of the Agreement on which the decision is based.

(b) For purposes of implementing this claims procedure, the Plan Administrator shall be responsible for the management, control, and administration of the Agreement as established herein. The Employer may delegate to certain aspects of management and operation responsibilities of the Agreement including the employment of advisors and the delegation of ministerial duties to qualified individuals.

 

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All claim determinations under this Section 6.1 shall be made in accordance with section 409A of the Code and the Regulations thereunder.

ARTICLE 7

MISCELLANEOUS

7.1. Amendments and Termination . Strictly in compliance with section 409A of the Code, (a) this Agreement may be amended solely by a written agreement signed by the Employer and by the Executive, and (b) except as otherwise provided herein, this Agreement may be terminated solely by the Employer in its sole discretion. Any acceleration of payments or change in the form of payments under this Agreement, including upon the amendment, modification or termination of the Agreement, shall be made strictly as permitted and in accordance with section 409A of the Code, including 1.409A-3(j)(4) of the Treasury Regulations.

7.2. Binding Effect . This Agreement shall bind the Executive and the Employer and their beneficiaries, survivors, executors, successors, administrators, legal representatives, and transferees.

7.3. No Guarantee of Employment . This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Employer, nor does it interfere with the Employer’s right to discharge the Executive. It also does not require the Executive to remain an employee nor interfere with the Executive’s right to terminate employment at any time.

7.4. Non-Transferability . Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached, or encumbered in any manner.

7.5. Tax Withholding . The Employer shall withhold any taxes that are required to be withheld from the benefits provided under this Agreement.

7.6. Applicable Law . Except to the extent preempted by the laws of the United States of America, the validity, interpretation, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to the principles of conflict of laws of such state.

7.7. Unfunded Arrangement . The Executive and the Executive’s Beneficiary are general unsecured creditors of the Employer for the payment of benefits under this Agreement. The benefits represent the mere promise by the Employer 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, annuity contract or other asset purchased by Employer to fund its obligations under this Agreement shall be a general asset of the Employer to which the Executive and Beneficiary have no preferred or secured claim.

7.8. Severability . If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.

 

8


7.9. Headings . The headings of sections herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement.

7.10. Notices . All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to the address of the Executive on the books and records of the Employer at the time of the delivery of such notice, and properly addressed to the Employer if addressed to the Board of Directors, at 51 Germantown Court, Suite 100, Cordova, Tennessee 38018.

7.11. Entire Agreement . This Agreement constitutes the entire agreement between the Employer and the Executive concerning the subject matter hereof. No rights are granted to the Executive under this Agreement other than those specifically set forth herein.

7.12. Payment of Legal Fees . In the event litigation ensues between the parties concerning the enforcement of the obligations of the parties under this Agreement, the Employer shall pay all costs and expenses in connection with such litigation until such time as a final determination (excluding any appeals) is made with respect to the litigation. If the Employer prevails on the substantive merits of the each material claim in dispute in such litigation, the Employer shall be entitled to receive from the Executive all reasonable costs and expenses, including without limitation attorneys’ fees, incurred by the Employer on behalf of the Executive in connection with such litigation, and the Executive shall pay such costs and expenses to the Employer promptly upon demand by the Employer.

ARTICLE 8

ADMINISTRATION OF AGREEMENT

8.1. Plan Administrator Duties . This Agreement shall be administered by a Plan Administrator consisting of the Board of Directors of the Employer or such committee or person(s) as the Board of Directors of the Employer shall appoint. The Plan Administrator shall have the sole and absolute discretion and authority to interpret and enforce all appropriate rules and regulations for the administration of this Agreement and the rights of the Executive under this Agreement, to decide or resolve any and all questions or disputes arising under this Agreement, including benefits payable under this Agreement and all other interpretations of this Agreement, as may arise in connection with the Agreement, and in accordance with section 409A of the Code.

8.2. Agents . In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Employer.

 

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8.3. Binding Effect of Decisions . The decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation, and application of the Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Agreement. Without limiting the foregoing, it is acknowledged that the value of the benefits payable hereunder may be difficult to determine in the event the Employer does not actually purchase and maintain the Annuity Contract as contemplated hereunder; therefore, in such event, the Employer shall have the right to make any reasonable assumptions in determining the benefits payable hereunder and any such determination made in good faith shall be binding on the Executive, and in accordance with section 409A of the Code.

8.4. Indemnity of Plan Administrator . The Plan Administrator shall not be liable to any person for any action taken or omitted in connection with the interpretation and administration of this Agreement, unless such action or omission is attributable to the willful misconduct of the Plan Administrator or any of its members. The Employer shall indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members.

8.5. Employer Information . To enable the Plan Administrator to perform its functions, the Employer shall supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Separation of Service of the Executive and such other pertinent information as the Plan Administrator may reasonably require.

IN WITNESS WHEREOF, the Executive and a duly authorized Officer of the Employer have signed this Agreement as of the date first written above.

 

THE EXECUTIVE:     WILSON BANK & TRUST
/s/ Randall Clemons     By:   /s/ Elmer Richerson
    Its:   President

 

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SCHEDULE A

WILSON BANK & TRUST

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT

Randall Clemons

 

As of

   Early
Termination
Annual
Benefit
 

na

     na   

 

11

Exhibit 10.12

WILSON BANK & TRUST

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT

This Supplemental Executive Retirement Plan Agreement (“ Agreement ”) is entered into as of this 23rd day November, 2012 (the “ Effective Date ”) by and between Wilson Bank & Trust (the “ Employer ”), and Elmer Richerson, an individual resident of Tennessee (the “ Executive ”), and establishes the Wilson Bank & Trust Supplemental Executive Retirement Plan f/b/o Elmer Richerson (the “ Plan ”).

WHEREAS, the Executive has contributed substantially to the success of the Employer and the Employer desires that the Executive continue in its employ;

WHEREAS, Employer desires to provide certain supplemental nonqualified pension benefits to Executive;

WHEREAS, Employer and Executive desire to enter into this Agreement to provide a retirement benefit under this Plan and to be paid to Executive upon Separation from Service (or other permissible payment event) as provided herein;

WHEREAS , the parties hereto intend that this Agreement shall be an unfunded arrangement maintained primarily to provide supplemental retirement benefits for the Executive, and shall be considered a plan described in section 301(a)(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”); and

WHEREAS, this Plan is intended to comply with the requirements of section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) and, accordingly, the intent of the parties hereto is that the Plan shall be operated and interpreted consistent with the requirements thereof;

WHEREAS , the Employer has purchased a Flexible Premium Indexed Deferred Annuity Contract issued by Great American Life Insurance Company, contract #1195057987, and issued by Life Insurance Company of the Southwest, contract #829488X, (in the aggregate referred to as “Annuity Contracts”); and

WHEREAS , the Employer is the sole owner of the Annuity Contracts and elects to use the Annuity Contracts to provide a retirement benefit to the Executive;

NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.


ARTICLE 1

DEFINITIONS

Whenever used in this Agreement, the following terms have the meanings specified:

1.1. “ Accrual Balance ” means the liability that should be accrued by the Employer under accounting principles generally accepted in the United States (“ GAAP ”) for the Employer’s obligation to the Executive under this Agreement, by applying Accounting Principles Board Opinion No. 12, as amended by Statement of Financial Accounting Standards No. 106, and the calculation method and discount rate specified hereinafter. The Accrual Balance shall be determined by the liability accrued by the Employer as of the Effective Date. The Accrual Balance shall be calculated assuming a level principal amount and interest as the discount rate is accrued each period. The principal accrual is determined such that when it is credited with interest each month, the Accrual Balance at Normal Retirement, in accordance with Section 3.1, equals the present value of the retirement benefits described in Section 3.1. At the end of each Plan Year, the Accrual Balance shall be adjusted to reflect the Employer’s obligation under Section 3.1. The discount rate means the rate used by the Plan Administrator for determining the Accrual Balance. The rate is based on the yield on a 20-year corporate bond rated Aa by Moody’s, rounded to the nearest  1 / 4 %, or as otherwise determined by the governing Regulatory body. The initial discount rate is 6.50%. In its sole discretion, the Plan Administrator may adjust the discount rate to maintain the rate within reasonable standards according to GAAP and consistent with the Interagency Advisory on Accounting for Deferred Compensation Agreements which states that the “cost of those benefits shall be accrued over that period of the Executive’s service in a systematic and rational manner.”

1.2. “ Actuarial (Actuarially) Equivalent ” means a benefit of equivalent value to the normal form of benefit determined by generally accepted actuarial principles.

1.3. “ Beneficiary ” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive, determined according to Article 4.

1.4. “ Beneficiary Designation Form ” means the form established from time to time by the Plan Administrator that the Executive completes, signs, and returns to the Plan Administrator to designate one or more Beneficiaries.

1.5. “ Board ” means the Board of Directors of the Employer.

1.6. “ Change in Control ” shall be deemed to have taken place if there occurs a “change in ownership,” a “change in the effective control,” or a “change in the ownership of a substantial portion of the assets” of the Employer as such terms are defined in Treasury Regulation §1.409A-3(i)(5) or any subsequent, applicable Treasury Regulation.

1.7. “ Disability ” shall mean the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expect to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Employer.

 

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Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Employer, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.

1.8. “ Early Retirement Date ” means the date of retirement from service which is effective prior to age sixty-five (65), provided the Executive has attained age fifty-five (55) and been continuously employed by the Employer for twenty (20) years.

1.9. “ ERISA ” means the Employee Retirement Income Security Act of 1974.

1.10. “ Rider ” means the Income Rider attached to the Annuity Contract as an endorsement.

1.11. “ Normal Retirement Age ” means age sixty-five (65).

1.12. “ Plan Administrator ” means the plan administrator described in Article 8.

1.13. “ Separation from Service ” means the Executive’s “separation from service” from the Employer as such term is defined under section 409A of the Code and section 1.409A-1(h) of the Final Treasury Regulations or the corresponding provisions in future guidance issued by the Department of the Treasury and the Internal Revenue Service.

ARTICLE 2

DEFERRED COMPENSATION AND VALUATION OF ACCOUNT

2.1. Ownership of the Annuity Contracts . The Employer is the sole owner of the Annuity Contracts and shall have the right to exercise all incidents of ownership. The Employer shall be the beneficiary of the death proceeds of the Annuity Contracts. The Employer shall at all times be entitled to the Annuity Contracts cash surrender value, as that term is defined in the Annuity Contracts. The cash surrender value shall be determined as of the date of the surrender of the Annuity Contracts or death of the Executive, as the case may be.

2.2. Right to Annuity Contracts . Notwithstanding any provision hereof to the contrary, the Employer shall have the right to sell or surrender the Annuity Contracts without terminating this Agreement, provided the Employer replaces the Annuity Contracts with a comparable annuity policy(ies) or arrangement that provides a similar benefit as that provided under the Annuity Contracts. Without limitation, the Annuity Contracts at all times shall be the exclusive property of the Employer and shall be subject to the claims of the Employer’s creditors.

2.3. Rabbi Trust . Employer may establish a “rabbi trust” to which contributions may be made to provide the Employer with a source of funds for purposes of satisfying the obligations of the Employer under the Plan. The trust shall constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan. The Executive and his Beneficiaries shall have no beneficial ownership interest in any assets held in the trust.

 

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ARTICLE 3

RETIREMENT AND OTHER BENEFITS

3.1. Normal Retirement Benefit . Upon the Executive’s Separation from Service on or after Normal Retirement Age for any reason other than death or Disability, the Executive will be entitled to the benefit described in this Section 3.1 in lieu of any other benefit under this Agreement. The Normal Retirement Benefit will equal the Accrual Balance, payable in an Actuarially Equivalent single life annuity in an amount determined pursuant to the Rider, payable in equal monthly installments for the life of the Executive commencing on the first (1 st ) day of the month following the date of the Executive’s Separation from Service.

3.2. Early Retirement Benefit. Upon the Executive’s Separation from Service on or after the Early Retirement Date but prior to the Normal Retirement Date for any reason other than death or Disability, the Executive will be entitled to the benefit described in this Section 3.2 in lieu of any other benefit under this Agreement. The Early Retirement Benefit will equal the Accrual Balance, payable in an Actuarially Equivalent single life annuity in an amount determined pursuant to the Rider, payable in monthly installments for the life of the Executive commencing on the first (1 st ) day of the month following the date of the Executive’s Separation from Service.

3.3. Other Separation from Service . In the event that the Executive incurs a Separation from Service prior to the Early Retirement Date or Normal Retirement Date for any reason other than death or Disability or following a Change in Control, by his or her voluntary action or his or her discharge by the Employer without cause, the Employer shall pay to the Executive the benefit as provided in Schedule A, attached to this Agreement, payable in equal monthly installments for a period of one hundred eighty (180) months commencing on the first (1 st ) day of the month following the Executive’s Normal Retirement Age.

In the event the Executive shall be discharged by the Employer for cause, then all of the Executive’s rights under this Agreement shall terminate and he shall forfeit all benefits under this Agreement. For purposes of this Agreement, “for cause” shall mean gross negligence or willful misconduct, the commission of a felony or gross-misdemeanor involving moral turpitude, fraud, dishonesty, embezzlement, willful violation of any law or any other behavior or act that results in any adverse effect on the Employer as may be determined by the Employer in its sole discretion.

3.4. Disability Benefit. Upon the Executive’s Disability while actively employed by the Employer, but prior to his or her Normal Retirement or Early Retirement, the Executive will be entitled to the benefit described in this Section 3.4 in lieu of any other benefit under this Agreement. The Disability Benefit will equal sixty (60%) percent of the Executive’s base salary and bonus at the time of the Disability less the Disability Benefit payable under the Wilson Bank and Trust Executive Salary Continuation Agreement for Elmer Richerson, as amended and frozen as of October 1, 2012 (the “ Frozen SERP ”). The Disability Benefit is payable in equal monthly installments commencing on the first (1 st ) day of the third month following the date of the Executive’s Disability and payable until the Executive reaches Normal Retirement Age. At Normal Retirement Age, the Disability Benefit will be reduced to an amount equal to the Normal Retirement Benefit as provided for in Section 3.1 as if the Executive separated from service at the Executive’s Normal Retirement Age and such reduced amount shall continue for the life of the Executive as provided in Section 3.1.

 

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3.5. Death Benefits during Active Employment . Upon the death of the Executive while actively employed by the Employer, the Beneficiary will be entitled to a single sum payment, payable within thirty (30) days of the date of death (with the Beneficiary having no right to designate the taxable year of the payment) equal to the Accrual Balance.

3.6. Death Benefit On or After Benefit Commencement . Upon death of the Executive after the Executive is entitled to or begins receiving the Normal Retirement Benefit, Early Retirement Benefit, Other Separation from Service Benefit, Disability Benefit or Change in Control payments under Section 3.1, Section 3.2, Section 3.3 , Section 3.4 or Section 3.7 but before receiving a total of one hundred eighty (180) monthly installments of such benefit payments, the Executive’s Beneficiary will receive the monthly amount payable had the Executive lived, payable for a total of one hundred eighty (180) monthly installments less the number of monthly installments already paid.

3.7. Change in Control Benefit . Upon a Change in Control, the Executive will be one hundred percent (100%) vested in the Retirement Benefit as provided for in Section 3.1 as if the Executive separated from service at the Normal Retirement Age. Such benefits shall be payable in equal monthly installments for the life of the Executive commencing thirty (30) days following said Change in Control.

3.8. Restriction on Timing of Distributions . Notwithstanding any provision of this Agreement to the contrary, distributions under this Agreement may not commence earlier than six (6) months after the date of a Separation from Service if, pursuant to section 409A of the Code, the Executive is considered a “specified employee” (defined in section 1.409A-1(i) of the Treasury Regulations) of the Employer if any stock of the Employer is publicly traded on an established securities market or otherwise. In the event a distribution is delayed pursuant to this Section, the originally scheduled distribution shall be delayed for six (6) months, and shall commence instead on the first (1 st ) day of the seventh (7 th ) month following the Executive’s Separation from Service. If payments are scheduled to be made in installments, the first (1 st ) six (6) months of installment payments shall be delayed, aggregated, and paid instead on the first (1 st ) day of the seventh (7 th ) month, after which all installment payments shall be made on their regular schedule. If payment is scheduled to be made in a lump sum, the lump sum payment shall be delayed for six (6) months and instead be made on the first (1 st ) day of the seventh (7 th ) month.

3.9. Coordination of Benefits . Notwithstanding any other provision of this Agreement to the contrary, the parties acknowledge that the benefits to be provided hereunder are intended to, and shall be, paid at the same time and form and in the same amount as provided for under the Frozen SERP during the period during which the benefits under the Frozen SERP (as applicable) were to be provided for thereunder (as if such benefits were not frozen) as required by section 409A of the Code. Any benefits which continue to be paid under this Agreement following the time such benefits would have ceased under the Frozen SERP are in addition to and in no way are intended to replace, alter or substitute the benefits provided for under the Frozen SERP. The parties agree that this Section 3.9 shall control over any contrary provision regarding the calculation and the time and form of payment of the benefits under this Agreement and the Frozen SERP and this Agreement shall be interpreted in accordance with this Section 3.9.

 

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ARTICLE 4

BENEFICIARIES

4.1. Beneficiary Designations . The Executive shall have the right to designate at any time a Beneficiary to receive any benefits payable under this Agreement upon the death of the Executive. The Beneficiary designated under this Agreement may be the same as or different from the Beneficiary designation under any other benefit plan of the Employer in which the Executive participates.

4.2. Beneficiary Designation; Changes . The Executive shall designate a Beneficiary by completing and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated agent. The Executive’s Beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved. The Executive shall have the right to change a Beneficiary by completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures, as in effect from time to time. Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before the Executive’s death.

4.3. Acknowledgment . No designation or change in designation of a Beneficiary shall be effective until received in writing by the Plan Administrator or its designated agent.

4.4. No Beneficiary Designation . If the Executive dies without a valid Beneficiary designation, or if all designated Beneficiaries predecease the Executive, then the Executive’s spouse shall be the designated Beneficiary. If the Executive has no surviving spouse, the benefits shall be distributed to the personal representative of the Executive’s estate.

4.5. Facility of Payment . If a benefit is payable to a minor, to a person declared incapacitated, or to a person incapable of handling the disposition of his or her property, the Employer may pay such benefit to the guardian, legal representative, or person having the care or custody of the minor, incapacitated person, or incapable person. The Employer may require proof of incapacity, minority, or guardianship as it may deem appropriate before distribution of the benefit. Distribution shall completely discharge the Employer from all liability for the benefit.

ARTICLE 5

GENERAL LIMITATIONS

5.1. Limits on Payments . It is the intention of the parties that none of the payments to which the Executive is entitled under this Agreement will constitute a “golden parachute payment” within the meaning of 12 USC section 1828(k)(3) or implementing regulations of the FDIC, the payment of which is prohibited. Notwithstanding any other provision of this Agreement to the contrary, any payments due to be made by Employer for the benefit of the Executive pursuant to this Agreement, or otherwise, are subject to and conditioned on compliance with 12 USC section 1828(k) and any regulations promulgated thereunder including the receipt of all required approvals thereof by Employer’s primary federal banking regulator and/or the FDIC.

 

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In addition, Employer and its successors retain the legal right to demand the return of any payment made hereunder which constitutes a “golden parachute payment” within the meaning of 12 USC section 1828(k)(3) or implementing regulations of the FDIC should Employer or its successors later obtain information indicating that the Executive committed, is substantially responsible for, or has violated, the respective acts or omissions, conditions, or offenses outlined under 12 C.F.R. 359.4(a)(4).

ARTICLE 6

CLAIMS AND REVIEW PROCEDURES

6.1. Claims Procedure . A person or Beneficiary (a “ claimant ”) who has not received benefits under the Agreement that he or she believes should be paid shall make a claim for such benefits as follows, and strictly in accordance with section 409A of the Code:

(a) Initiation—Written Claim . In the event that benefits under this Agreement are not paid to the Executive (or his or her Beneficiary in the case of the Executive’s death), and such person feels entitled to receive them, a claim shall be made in writing to the Plan Administrator within sixty (60) days from the date payments are not made. Such claim shall be reviewed by the Plan Administrator. If the claim is denied, in full or in part, the Plan Administrator shall provide a written notice within ninety (90) days setting forth the specific reasons for the denial specific reference to the provisions of this Agreement upon which the denial is based, and any additional material or information necessary to perfect the claim, if any. Also, such written notice shall indicate the steps to be taken if a review of the denial is desired.

If a claim is denied and a review is desired, the Executive (or his or her Beneficiary in the case of the Executive’s death), shall notify the Plan Administrator in writing within sixty (60) days and a claim shall be deemed denied if the Plan Administrator does not take any action within the aforesaid ninety (90)-day period. In requesting a review, the Executive or his or her beneficiary may review this Agreement or any documents relating to it and submit any written issue and comments he or she may feel appropriate. In its sole discretion the Plan Administrator shall then review the claim and provide a written decision within sixty (60) days. This decision likewise shall state the specific provisions of the Agreement on which the decision is based.

(b) For purposes of implementing this claims procedure, the Plan Administrator shall be responsible for the management, control, and administration of the Agreement as established herein. The Employer may delegate to certain aspects of management and operation responsibilities of the Agreement including the employment of advisors and the delegation of ministerial duties to qualified individuals.

All claim determinations under this Section 6.1 shall be made in accordance with section 409A of the Code and the Regulations thereunder.

 

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ARTICLE 7

MISCELLANEOUS

7.1. Amendments and Termination . Strictly in compliance with section 409A of the Code, (a) this Agreement may be amended solely by a written agreement signed by the Employer and by the Executive, and (b) except as otherwise provided herein, this Agreement may be terminated solely by the Employer in its sole discretion. Any acceleration of payments or change in the form of payments under this Agreement, including upon the amendment, modification or termination of the Agreement, shall be made strictly as permitted and in accordance with section 409A of the Code, including 1.409A-3(j)(4) of the Treasury Regulations.

7.2. Binding Effect . This Agreement shall bind the Executive and the Employer and their beneficiaries, survivors, executors, successors, administrators, legal representatives, and transferees.

7.3. No Guarantee of Employment . This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Employer, nor does it interfere with the Employer’s right to discharge the Executive. It also does not require the Executive to remain an employee nor interfere with the Executive’s right to terminate employment at any time.

7.4. Non-Transferability . Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached, or encumbered in any manner.

7.5. Tax Withholding . The Employer shall withhold any taxes that are required to be withheld from the benefits provided under this Agreement.

7.6. Applicable Law . Except to the extent preempted by the laws of the United States of America, the validity, interpretation, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to the principles of conflict of laws of such state.

7.7. Unfunded Arrangement . The Executive and the Executive’s Beneficiary are general unsecured creditors of the Employer for the payment of benefits under this Agreement. The benefits represent the mere promise by the Employer 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, annuity contract or other asset purchased by Employer to fund its obligations under this Agreement shall be a general asset of the Employer to which the Executive and Beneficiary have no preferred or secured claim.

7.8. Severability . If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.

 

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7.9. Headings . The headings of sections herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement.

7.10. Notices . All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to the address of the Executive on the books and records of the Employer at the time of the delivery of such notice, and properly addressed to the Employer if addressed to the Board of Directors, at 51 Germantown Court, Suite 100, Cordova, Tennessee 38018.

7.11. Entire Agreement . This Agreement constitutes the entire agreement between the Employer and the Executive concerning the subject matter hereof. No rights are granted to the Executive under this Agreement other than those specifically set forth herein.

7.12. Payment of Legal Fees . In the event litigation ensues between the parties concerning the enforcement of the obligations of the parties under this Agreement, the Employer shall pay all costs and expenses in connection with such litigation until such time as a final determination (excluding any appeals) is made with respect to the litigation. If the Employer prevails on the substantive merits of the each material claim in dispute in such litigation, the Employer shall be entitled to receive from the Executive all reasonable costs and expenses, including without limitation attorneys’ fees, incurred by the Employer on behalf of the Executive in connection with such litigation, and the Executive shall pay such costs and expenses to the Employer promptly upon demand by the Employer.

ARTICLE 8

ADMINISTRATION OF AGREEMENT

8.1. Plan Administrator Duties . This Agreement shall be administered by a Plan Administrator consisting of the Board of Directors of the Employer or such committee or person(s) as the Board of Directors of the Employer shall appoint. The Plan Administrator shall have the sole and absolute discretion and authority to interpret and enforce all appropriate rules and regulations for the administration of this Agreement and the rights of the Executive under this Agreement, to decide or resolve any and all questions or disputes arising under this Agreement, including benefits payable under this Agreement and all other interpretations of this Agreement, as may arise in connection with the Agreement, and in accordance with section 409A of the Code.

8.2. Agents . In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Employer.

 

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8.3. Binding Effect of Decisions . The decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation, and application of the Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Agreement. Without limiting the foregoing, it is acknowledged that the value of the benefits payable hereunder may be difficult to determine in the event the Employer does not actually purchase and maintain the Annuity Contract as contemplated hereunder; therefore, in such event, the Employer shall have the right to make any reasonable assumptions in determining the benefits payable hereunder and any such determination made in good faith shall be binding on the Executive, and in accordance with section 409A of the Code.

8.4. Indemnity of Plan Administrator . The Plan Administrator shall not be liable to any person for any action taken or omitted in connection with the interpretation and administration of this Agreement, unless such action or omission is attributable to the willful misconduct of the Plan Administrator or any of its members. The Employer shall indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members.

8.5. Employer Information . To enable the Plan Administrator to perform its functions, the Employer shall supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Separation of Service of the Executive and such other pertinent information as the Plan Administrator may reasonably require.

IN WITNESS WHEREOF, the Executive and a duly authorized Officer of the Employer have signed this Agreement as of the date first written above.

 

THE EXECUTIVE:     WILSON BANK & TRUST
/s/ Elmer Richerson     By:   /s/ Randall Clemons
    Its:   CEO

 

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SCHEDULE A

WILSON BANK & TRUST

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT

Elmer Richerson

 

As of

   Early
Termination
Annual
Benefit
 

na

     na   

 

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Exhibit 10.13

WILSON BANK & TRUST

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT

This Supplemental Executive Retirement Plan Agreement (“ Agreement ”) is entered into as of this 23rd day November, 2012 (the “ Effective Date ”) by and between Wilson Bank & Trust (the “ Employer ”), and Lisa Pominski, an individual resident of Tennessee (the “ Executive ”), and establishes the Wilson Bank & Trust Supplemental Executive Retirement Plan f/b/o Lisa Pominski (the “ Plan ”).

WHEREAS, the Executive has contributed substantially to the success of the Employer and the Employer desires that the Executive continue in its employ;

WHEREAS, Employer desires to provide certain supplemental nonqualified pension benefits to Executive;

WHEREAS, Employer and Executive desire to enter into this Agreement to provide a retirement benefit under this Plan and to be paid to Executive upon Separation from Service (or other permissible payment event) as provided herein;

WHEREAS , the parties hereto intend that this Agreement shall be an unfunded arrangement maintained primarily to provide supplemental retirement benefits for the Executive, and shall be considered a plan described in section 301(a)(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”); and

WHEREAS, this Plan is intended to comply with the requirements of section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) and, accordingly, the intent of the parties hereto is that the Plan shall be operated and interpreted consistent with the requirements thereof;

WHEREAS , the Employer has purchased a Flexible Premium Indexed Deferred Annuity Contract issued by Midland National Life Insurance Company, contract #8500475514, (“Annuity Contract”); and

WHEREAS , the Employer is the sole owner of the Annuity Contract and elects to use the Annuity Contract to provide a retirement benefit to the Executive;

NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.


ARTICLE 1

DEFINITIONS

Whenever used in this Agreement, the following terms have the meanings specified:

1.1. “ Accrual Balance ” means the liability that should be accrued by the Employer under accounting principles generally accepted in the United States (“ GAAP ”) for the Employer’s obligation to the Executive under this Agreement, by applying Accounting Principles Board Opinion No. 12, as amended by Statement of Financial Accounting Standards No. 106, and the calculation method and discount rate specified hereinafter. The Accrual Balance shall be determined by the liability accrued by the Employer as of the Effective Date. The Accrual Balance shall be calculated assuming a level principal amount and interest as the discount rate is accrued each period. The principal accrual is determined such that when it is credited with interest each month, the Accrual Balance at Normal Retirement, in accordance with Section 3.1, equals the present value of the retirement benefits described in Section 3.1. At the end of each Plan Year, the Accrual Balance shall be adjusted to reflect the Employer’s obligation under Section 3.1. The discount rate means the rate used by the Plan Administrator for determining the Accrual Balance. The rate is based on the yield on a 20-year corporate bond rated Aa by Moody’s, rounded to the nearest  1 / 4 %, or as otherwise determined by the governing Regulatory body. The initial discount rate is 6.50%. In its sole discretion, the Plan Administrator may adjust the discount rate to maintain the rate within reasonable standards according to GAAP and consistent with the Interagency Advisory on Accounting for Deferred Compensation Agreements which states that the “cost of those benefits shall be accrued over that period of the Executive’s service in a systematic and rational manner.”

1.2. “ Actuarial (Actuarially) Equivalent ” means a benefit of equivalent value to the normal form of benefit determined by generally accepted actuarial principles.

1.3. “ Beneficiary ” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive, determined according to Article 4.

1.4. “ Beneficiary Designation Form ” means the form established from time to time by the Plan Administrator that the Executive completes, signs, and returns to the Plan Administrator to designate one or more Beneficiaries.

1.5. “ Board ” means the Board of Directors of the Employer.

1.6. “ Change in Control ” shall be deemed to have taken place if there occurs a “change in ownership,” a “change in the effective control,” or a “change in the ownership of a substantial portion of the assets” of the Employer as such terms are defined in Treasury Regulation §1.409A-3(i)(5) or any subsequent, applicable Treasury Regulation.

1.7. “ Disability ” shall mean the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expect to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Employer.

Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Employer, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.

 

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1.8. “ Early Retirement Date ” means the date of retirement from service which is effective prior to age sixty-five (65), provided the Executive has attained age fifty-five (55) and been continuously employed by the Employer for twenty (20) years.

1.9. “ ERISA ” means the Employee Retirement Income Security Act of 1974.

1.10. “ Rider ” means the Income Rider attached to the Annuity Contract as an endorsement.

1.11. “ Normal Retirement Age ” means age sixty-five (65).

1.12. “ Plan Administrator ” means the plan administrator described in Article 8.

1.13. “ Separation from Service ” means the Executive’s “separation from service” from the Employer as such term is defined under section 409A of the Code and section 1.409A-1(h) of the Final Treasury Regulations or the corresponding provisions in future guidance issued by the Department of the Treasury and the Internal Revenue Service.

ARTICLE 2

DEFERRED COMPENSATION AND VALUATION OF ACCOUNT

2.1. Ownership of the Annuity Contract . The Employer is the sole owner of the Annuity Contract and shall have the right to exercise all incidents of ownership. The Employer shall be the beneficiary of the death proceeds of the Annuity Contract. The Employer shall at all times be entitled to the Annuity Contract’s cash surrender value, as that term is defined in the Annuity Contract. The cash surrender value shall be determined as of the date of the surrender of the Annuity Contract or death of the Executive, as the case may be.

2.2. Right to Annuity Contract . Notwithstanding any provision hereof to the contrary, the Employer shall have the right to sell or surrender the Annuity Contract without terminating this Agreement, provided the Employer replaces the Annuity Contract with a comparable annuity policy(ies) or arrangement that provides a similar benefit as that provided under the Annuity Contract. Without limitation, the Annuity Contract at all times shall be the exclusive property of the Employer and shall be subject to the claims of the Employer’s creditors.

2.3. Rabbi Trust . Employer may establish a “rabbi trust” to which contributions may be made to provide the Employer with a source of funds for purposes of satisfying the obligations of the Employer under the Plan. The trust shall constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan. The Executive and his Beneficiaries shall have no beneficial ownership interest in any assets held in the trust.

 

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ARTICLE 3

RETIREMENT AND OTHER BENEFITS

3.1. Normal Retirement Benefit . Upon the Executive’s Separation from Service on or after Normal Retirement Age for any reason other than death or Disability, the Executive will be entitled to the benefit described in this Section 3.1 in lieu of any other benefit under this Agreement. The Normal Retirement Benefit will equal the Accrual Balance, payable in an Actuarially Equivalent single life annuity in an amount determined pursuant to the Rider, payable in equal monthly installments for the life of the Executive commencing on the first (1 st ) day of the month following the date of the Executive’s Separation from Service.

3.2. Early Retirement Benefit. Upon the Executive’s Separation from Service on or after the Early Retirement Date but prior to the Normal Retirement Date for any reason other than death or Disability, the Executive will be entitled to the benefit described in this Section 3.2 in lieu of any other benefit under this Agreement. The Early Retirement Benefit will equal the Accrual Balance, payable in an Actuarially Equivalent single life annuity in an amount determined pursuant to the Rider, payable in monthly installments for the life of the Executive commencing on the first (1 st ) day of the month following the date of the Executive’s Separation from Service.

3.3. Other Separation from Service . In the event that the Executive incurs a Separation from Service prior to the Early Retirement Date or Normal Retirement Date for any reason other than death or Disability or following a Change in Control, by his or her voluntary action or his or her discharge by the Employer without cause, the Employer shall pay to the Executive the benefit as provided in Schedule A, attached to this Agreement, payable in equal monthly installments for a period of one hundred eighty (180) months commencing on the first (1 st ) day of the month following the Executive’s Normal Retirement Age.

In the event the Executive shall be discharged by the Employer for cause, then all of the Executive’s rights under this Agreement shall terminate and he shall forfeit all benefits under this Agreement. For purposes of this Agreement, “for cause” shall mean gross negligence or willful misconduct, the commission of a felony or gross-misdemeanor involving moral turpitude, fraud, dishonesty, embezzlement, willful violation of any law or any other behavior or act that results in any adverse effect on the Employer as may be determined by the Employer in its sole discretion.

3.4. Disability Benefit. Upon the Executive’s Disability while actively employed by the Employer, but prior to his or her Normal Retirement or Early Retirement, the Executive will be entitled to the benefit described in this Section 3.4 in lieu of any other benefit under this Agreement. The Disability Benefit will equal sixty (60%) percent of the Executive’s base salary and bonus at the time of the Disability less the Disability Benefit payable under the Wilson Bank and Trust Executive Salary Continuation Agreement for Lisa Pominski, as amended and frozen as of October 1, 2012 (the “ Frozen SERP ”). The Disability Benefit is payable in equal monthly installments commencing on the first (1 st ) day of the third month following the date of the Executive’s Disability and payable until the Executive reaches Normal Retirement Age. At Normal Retirement Age, the Disability Benefit will be reduced to an amount equal to the Normal Retirement Benefit as provided for in Section 3.1 as if the Executive separated from service at the Executive’s Normal Retirement Age and such reduced amount shall continue for the life of the Executive as provided in Section 3.1.

 

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3.5. Death Benefits during Active Employment . Upon the death of the Executive while actively employed by the Employer, the Beneficiary will be entitled to a single sum payment, payable within thirty (30) days of the date of death (with the Beneficiary having no right to designate the taxable year of the payment) equal to the Accrual Balance.

3.6. Death Benefit On or After Benefit Commencement . Upon death of the Executive after the Executive is entitled to or begins receiving the Normal Retirement Benefit, Early Retirement Benefit, Other Separation from Service Benefit, Disability Benefit or Change in Control payments under Section 3.1, Section 3.2, Section 3.3 , Section 3.4 or Section 3.7 but before receiving a total of one hundred eighty (180) monthly installments of such benefit payments, the Executive’s Beneficiary will receive the monthly amount payable had the Executive lived, payable for a total of one hundred eighty (180) monthly installments less the number of monthly installments already paid.

3.7. Change in Control Benefit . Upon a Change in Control, the Executive will be one hundred percent (100%) vested in the Retirement Benefit as provided for in Section 3.1 as if the Executive separated from service at the Normal Retirement Age. Such benefits shall be payable in equal monthly installments for the life of the Executive commencing thirty (30) days following said Change in Control.

3.8. Restriction on Timing of Distributions . Notwithstanding any provision of this Agreement to the contrary, distributions under this Agreement may not commence earlier than six (6) months after the date of a Separation from Service if, pursuant to section 409A of the Code, the Executive is considered a “specified employee” (defined in section 1.409A-1(i) of the Treasury Regulations) of the Employer if any stock of the Employer is publicly traded on an established securities market or otherwise. In the event a distribution is delayed pursuant to this Section, the originally scheduled distribution shall be delayed for six (6) months, and shall commence instead on the first (1 st ) day of the seventh (7 th ) month following the Executive’s Separation from Service. If payments are scheduled to be made in installments, the first (1 st ) six (6) months of installment payments shall be delayed, aggregated, and paid instead on the first (1 st ) day of the seventh (7 th ) month, after which all installment payments shall be made on their regular schedule. If payment is scheduled to be made in a lump sum, the lump sum payment shall be delayed for six (6) months and instead be made on the first (1 st ) day of the seventh (7 th ) month.

3.9. Coordination of Benefits . Notwithstanding any other provision of this Agreement to the contrary, the parties acknowledge that the benefits to be provided hereunder are intended to, and shall be, paid at the same time and form and in the same amount as provided for under the Frozen SERP during the period during which the benefits under the Frozen SERP (as applicable) were to be provided for thereunder (as if such benefits were not frozen) as required by section 409A of the Code. Any benefits which continue to be paid under this Agreement following the time such benefits would have ceased under the Frozen SERP are in addition to and in no way are intended to replace, alter or substitute the benefits provided for under the Frozen SERP. The parties agree that this Section 3.9 shall control over any contrary provision regarding the calculation and the time and form of payment of the benefits under this Agreement and the Frozen SERP and this Agreement shall be interpreted in accordance with this Section 3.9.

 

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ARTICLE 4

BENEFICIARIES

4.1. Beneficiary Designations . The Executive shall have the right to designate at any time a Beneficiary to receive any benefits payable under this Agreement upon the death of the Executive. The Beneficiary designated under this Agreement may be the same as or different from the Beneficiary designation under any other benefit plan of the Employer in which the Executive participates.

4.2. Beneficiary Designation; Changes . The Executive shall designate a Beneficiary by completing and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated agent. The Executive’s Beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved. The Executive shall have the right to change a Beneficiary by completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures, as in effect from time to time. Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before the Executive’s death.

4.3. Acknowledgment . No designation or change in designation of a Beneficiary shall be effective until received in writing by the Plan Administrator or its designated agent.

4.4. No Beneficiary Designation . If the Executive dies without a valid Beneficiary designation, or if all designated Beneficiaries predecease the Executive, then the Executive’s spouse shall be the designated Beneficiary. If the Executive has no surviving spouse, the benefits shall be distributed to the personal representative of the Executive’s estate.

4.5. Facility of Payment . If a benefit is payable to a minor, to a person declared incapacitated, or to a person incapable of handling the disposition of his or her property, the Employer may pay such benefit to the guardian, legal representative, or person having the care or custody of the minor, incapacitated person, or incapable person. The Employer may require proof of incapacity, minority, or guardianship as it may deem appropriate before distribution of the benefit. Distribution shall completely discharge the Employer from all liability for the benefit.

ARTICLE 5

GENERAL LIMITATIONS

5.1. Limits on Payments . It is the intention of the parties that none of the payments to which the Executive is entitled under this Agreement will constitute a “golden parachute payment” within the meaning of 12 USC section 1828(k)(3) or implementing regulations of the FDIC, the payment of which is prohibited. Notwithstanding any other provision of this Agreement to the contrary, any payments due to be made by Employer for the benefit of the Executive pursuant to this Agreement, or otherwise, are subject to and conditioned on compliance with 12 USC section 1828(k) and any regulations promulgated thereunder including the receipt of all required approvals thereof by Employer’s primary federal banking regulator and/or the FDIC.

 

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In addition, Employer and its successors retain the legal right to demand the return of any payment made hereunder which constitutes a “golden parachute payment” within the meaning of 12 USC section 1828(k)(3) or implementing regulations of the FDIC should Employer or its successors later obtain information indicating that the Executive committed, is substantially responsible for, or has violated, the respective acts or omissions, conditions, or offenses outlined under 12 C.F.R. 359.4(a)(4).

ARTICLE 6

CLAIMS AND REVIEW PROCEDURES

6.1. Claims Procedure . A person or Beneficiary (a “ claimant ”) who has not received benefits under the Agreement that he or she believes should be paid shall make a claim for such benefits as follows, and strictly in accordance with section 409A of the Code:

(a) Initiation—Written Claim . In the event that benefits under this Agreement are not paid to the Executive (or his or her Beneficiary in the case of the Executive’s death), and such person feels entitled to receive them, a claim shall be made in writing to the Plan Administrator within sixty (60) days from the date payments are not made. Such claim shall be reviewed by the Plan Administrator. If the claim is denied, in full or in part, the Plan Administrator shall provide a written notice within ninety (90) days setting forth the specific reasons for the denial specific reference to the provisions of this Agreement upon which the denial is based, and any additional material or information necessary to perfect the claim, if any. Also, such written notice shall indicate the steps to be taken if a review of the denial is desired.

If a claim is denied and a review is desired, the Executive (or his or her Beneficiary in the case of the Executive’s death), shall notify the Plan Administrator in writing within sixty (60) days and a claim shall be deemed denied if the Plan Administrator does not take any action within the aforesaid ninety (90)-day period. In requesting a review, the Executive or his or her beneficiary may review this Agreement or any documents relating to it and submit any written issue and comments he or she may feel appropriate. In its sole discretion the Plan Administrator shall then review the claim and provide a written decision within sixty (60) days. This decision likewise shall state the specific provisions of the Agreement on which the decision is based.

(b) For purposes of implementing this claims procedure, the Plan Administrator shall be responsible for the management, control, and administration of the Agreement as established herein. The Employer may delegate to certain aspects of management and operation responsibilities of the Agreement including the employment of advisors and the delegation of ministerial duties to qualified individuals.

All claim determinations under this Section 6.1 shall be made in accordance with section 409A of the Code and the Regulations thereunder.

 

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ARTICLE 7

MISCELLANEOUS

7.1. Amendments and Termination . Strictly in compliance with section 409A of the Code, (a) this Agreement may be amended solely by a written agreement signed by the Employer and by the Executive, and (b) except as otherwise provided herein, this Agreement may be terminated solely by the Employer in its sole discretion. Any acceleration of payments or change in the form of payments under this Agreement, including upon the amendment, modification or termination of the Agreement, shall be made strictly as permitted and in accordance with section 409A of the Code, including 1.409A-3(j)(4) of the Treasury Regulations.

7.2. Binding Effect . This Agreement shall bind the Executive and the Employer and their beneficiaries, survivors, executors, successors, administrators, legal representatives, and transferees.

7.3. No Guarantee of Employment . This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Employer, nor does it interfere with the Employer’s right to discharge the Executive. It also does not require the Executive to remain an employee nor interfere with the Executive’s right to terminate employment at any time.

7.4. Non-Transferability . Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached, or encumbered in any manner.

7.5. Tax Withholding . The Employer shall withhold any taxes that are required to be withheld from the benefits provided under this Agreement.

7.6. Applicable Law . Except to the extent preempted by the laws of the United States of America, the validity, interpretation, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to the principles of conflict of laws of such state.

7.7. Unfunded Arrangement . The Executive and the Executive’s Beneficiary are general unsecured creditors of the Employer for the payment of benefits under this Agreement. The benefits represent the mere promise by the Employer 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, annuity contract or other asset purchased by Employer to fund its obligations under this Agreement shall be a general asset of the Employer to which the Executive and Beneficiary have no preferred or secured claim.

7.8. Severability . If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.

7.9. Headings . The headings of sections herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement.

 

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7.10. Notices . All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to the address of the Executive on the books and records of the Employer at the time of the delivery of such notice, and properly addressed to the Employer if addressed to the Board of Directors, at 51 Germantown Court, Suite 100, Cordova, Tennessee 38018.

7.11. Entire Agreement . This Agreement constitutes the entire agreement between the Employer and the Executive concerning the subject matter hereof. No rights are granted to the Executive under this Agreement other than those specifically set forth herein.

7.12. Payment of Legal Fees . In the event litigation ensues between the parties concerning the enforcement of the obligations of the parties under this Agreement, the Employer shall pay all costs and expenses in connection with such litigation until such time as a final determination (excluding any appeals) is made with respect to the litigation. If the Employer prevails on the substantive merits of the each material claim in dispute in such litigation, the Employer shall be entitled to receive from the Executive all reasonable costs and expenses, including without limitation attorneys’ fees, incurred by the Employer on behalf of the Executive in connection with such litigation, and the Executive shall pay such costs and expenses to the Employer promptly upon demand by the Employer.

ARTICLE 8

ADMINISTRATION OF AGREEMENT

8.1. Plan Administrator Duties . This Agreement shall be administered by a Plan Administrator consisting of the Board of Directors of the Employer or such committee or person(s) as the Board of Directors of the Employer shall appoint. The Plan Administrator shall have the sole and absolute discretion and authority to interpret and enforce all appropriate rules and regulations for the administration of this Agreement and the rights of the Executive under this Agreement, to decide or resolve any and all questions or disputes arising under this Agreement, including benefits payable under this Agreement and all other interpretations of this Agreement, as may arise in connection with the Agreement, and in accordance with section 409A of the Code.

8.2. Agents . In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Employer.

8.3. Binding Effect of Decisions . The decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation, and application of the Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Agreement. Without limiting the foregoing, it is acknowledged that the value of the benefits payable hereunder may be difficult to determine in the event the Employer does not actually purchase and maintain the Annuity Contract as contemplated hereunder; therefore, in such event, the Employer shall have the right to make any reasonable assumptions in determining the benefits payable hereunder and any such determination made in good faith shall be binding on the Executive, and in accordance with section 409A of the Code.

 

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8.4. Indemnity of Plan Administrator . The Plan Administrator shall not be liable to any person for any action taken or omitted in connection with the interpretation and administration of this Agreement, unless such action or omission is attributable to the willful misconduct of the Plan Administrator or any of its members. The Employer shall indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members.

8.5. Employer Information . To enable the Plan Administrator to perform its functions, the Employer shall supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Separation of Service of the Executive and such other pertinent information as the Plan Administrator may reasonably require.

IN WITNESS WHEREOF, the Executive and a duly authorized Officer of the Employer have signed this Agreement as of the date first written above.

 

THE EXECUTIVE:     WILSON BANK & TRUST
/s/ Lisa Pominski     By:   /s/ Elmer Richerson
    Its:   President

 

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SCHEDULE A

WILSON BANK & TRUST

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT

Lisa Pominski

 

As of

   Early
Termination
Annual
Benefit
 

Jan 2012

     115   

Jan 2013

     516   

Jan 2014

     1,009   

Jan 2015

     1,602   

Jan 2016

     2,303   

Jan 2017

     3,121   

Jan 2018

     3,987   

 

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Exhibit 10.14

WILSON BANK & TRUST

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT

This Supplemental Executive Retirement Plan Agreement (“ Agreement ”) is entered into as of this 23rd day November, 2012 (the “ Effective Date ”) by and between Wilson Bank & Trust (the “ Employer ”), and Gary Whitaker, an individual resident of Tennessee (the “ Executive ”), and establishes the Wilson Bank & Trust Supplemental Executive Retirement Plan f/b/o Gary Whitaker (the “ Plan ”).

WHEREAS, the Executive has contributed substantially to the success of the Employer and the Employer desires that the Executive continue in its employ;

WHEREAS, Employer desires to provide certain supplemental nonqualified pension benefits to Executive;

WHEREAS, Employer and Executive desire to enter into this Agreement to provide a retirement benefit under this Plan and to be paid to Executive upon Separation from Service (or other permissible payment event) as provided herein;

WHEREAS , the parties hereto intend that this Agreement shall be an unfunded arrangement maintained primarily to provide supplemental retirement benefits for the Executive, and shall be considered a plan described in section 301(a)(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”); and

WHEREAS, this Plan is intended to comply with the requirements of section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) and, accordingly, the intent of the parties hereto is that the Plan shall be operated and interpreted consistent with the requirements thereof;

WHEREAS , the Employer has purchased a Flexible Premium Indexed Deferred Annuity Contract issued by Great American Life Insurance Company, contract #1195057984, (“Annuity Contract”); and

WHEREAS , the Employer is the sole owner of the Annuity Contract and elects to use the Annuity Contract to provide a retirement benefit to the Executive;

NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.


ARTICLE 1

DEFINITIONS

Whenever used in this Agreement, the following terms have the meanings specified:

1.1. “ Accrual Balance ” means the liability that should be accrued by the Employer under accounting principles generally accepted in the United States (“ GAAP ”) for the Employer’s obligation to the Executive under this Agreement, by applying Accounting Principles Board Opinion No. 12, as amended by Statement of Financial Accounting Standards No. 106, and the calculation method and discount rate specified hereinafter. The Accrual Balance shall be determined by the liability accrued by the Employer as of the Effective Date. The Accrual Balance shall be calculated assuming a level principal amount and interest as the discount rate is accrued each period. The principal accrual is determined such that when it is credited with interest each month, the Accrual Balance at Normal Retirement, in accordance with Section 3.1, equals the present value of the retirement benefits described in Section 3.1. At the end of each Plan Year, the Accrual Balance shall be adjusted to reflect the Employer’s obligation under Section 3.1. The discount rate means the rate used by the Plan Administrator for determining the Accrual Balance. The rate is based on the yield on a 20-year corporate bond rated Aa by Moody’s, rounded to the nearest  1 / 4 %, or as otherwise determined by the governing Regulatory body. The initial discount rate is 6.50%. In its sole discretion, the Plan Administrator may adjust the discount rate to maintain the rate within reasonable standards according to GAAP and consistent with the Interagency Advisory on Accounting for Deferred Compensation Agreements which states that the “cost of those benefits shall be accrued over that period of the Executive’s service in a systematic and rational manner.”

1.2. “ Actuarial (Actuarially) Equivalent ” means a benefit of equivalent value to the normal form of benefit determined by generally accepted actuarial principles.

1.3. “ Beneficiary ” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive, determined according to Article 4.

1.4. “ Beneficiary Designation Form ” means the form established from time to time by the Plan Administrator that the Executive completes, signs, and returns to the Plan Administrator to designate one or more Beneficiaries.

1.5. “ Board ” means the Board of Directors of the Employer.

1.6. “ Change in Control ” shall be deemed to have taken place if there occurs a “change in ownership,” a “change in the effective control,” or a “change in the ownership of a substantial portion of the assets” of the Employer as such terms are defined in Treasury Regulation §1.409A-3(i)(5) or any subsequent, applicable Treasury Regulation.

1.7. “ Disability ” shall mean the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expect to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Employer.

 

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Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Employer, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.

1.8. “ Early Retirement Date ” means the date of retirement from service which is effective prior to age sixty-five (65), provided the Executive has attained age fifty-five (55) and been continuously employed by the Employer for twenty (20) years.

1.9. “ ERISA ” means the Employee Retirement Income Security Act of 1974.

1.10. “ Rider ” means the Income Rider attached to the Annuity Contract as an endorsement.

1.11. “ Normal Retirement Age ” means age sixty-five (65).

1.12. “ Plan Administrator ” means the plan administrator described in Article 8.

1.13. “ Separation from Service ” means the Executive’s “separation from service” from the Employer as such term is defined under section 409A of the Code and section 1.409A-1(h) of the Final Treasury Regulations or the corresponding provisions in future guidance issued by the Department of the Treasury and the Internal Revenue Service.

ARTICLE 2

DEFERRED COMPENSATION AND VALUATION OF ACCOUNT

2.1. Ownership of the Annuity Contract . The Employer is the sole owner of the Annuity Contract and shall have the right to exercise all incidents of ownership. The Employer shall be the beneficiary of the death proceeds of the Annuity Contract. The Employer shall at all times be entitled to the Annuity Contract’s cash surrender value, as that term is defined in the Annuity Contract. The cash surrender value shall be determined as of the date of the surrender of the Annuity Contract or death of the Executive, as the case may be.

2.2. Right to Annuity Contract . Notwithstanding any provision hereof to the contrary, the Employer shall have the right to sell or surrender the Annuity Contract without terminating this Agreement, provided the Employer replaces the Annuity Contract with a comparable annuity policy(ies) or arrangement that provides a similar benefit as that provided under the Annuity Contract. Without limitation, the Annuity Contract at all times shall be the exclusive property of the Employer and shall be subject to the claims of the Employer’s creditors.

2.3. Rabbi Trust . Employer may establish a “rabbi trust” to which contributions may be made to provide the Employer with a source of funds for purposes of satisfying the obligations of the Employer under the Plan. The trust shall constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan. The Executive and his Beneficiaries shall have no beneficial ownership interest in any assets held in the trust.

 

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ARTICLE 3

RETIREMENT AND OTHER BENEFITS

3.1. Normal Retirement Benefit . Upon the Executive’s Separation from Service on or after Normal Retirement Age for any reason other than death or Disability, the Executive will be entitled to the benefit described in this Section 3.1 in lieu of any other benefit under this Agreement. The Normal Retirement Benefit will equal the Accrual Balance, payable in an Actuarially Equivalent single life annuity in an amount determined pursuant to the Rider, payable in equal monthly installments for the life of the Executive commencing on the first (1 st ) day of the month following the date of the Executive’s Separation from Service.

3.2. Early Retirement Benefit. Upon the Executive’s Separation from Service on or after the Early Retirement Date but prior to the Normal Retirement Date for any reason other than death or Disability, the Executive will be entitled to the benefit described in this Section 3.2 in lieu of any other benefit under this Agreement. The Early Retirement Benefit will equal the Accrual Balance, payable in an Actuarially Equivalent single life annuity in an amount determined pursuant to the Rider, payable in monthly installments for the life of the Executive commencing on the first (1 st ) day of the month following the date of the Executive’s Separation from Service.

3.3. Other Separation from Service . In the event that the Executive incurs a Separation from Service prior to the Early Retirement Date or Normal Retirement Date for any reason other than death or Disability or following a Change in Control, by his or her voluntary action or his or her discharge by the Employer without cause, the Employer shall pay to the Executive the benefit as provided in Schedule A, attached to this Agreement, payable in equal monthly installments for a period of one hundred eighty (180) months commencing on the first (1 st ) day of the month following the Executive’s Normal Retirement Age.

In the event the Executive shall be discharged by the Employer for cause, then all of the Executive’s rights under this Agreement shall terminate and he shall forfeit all benefits under this Agreement. For purposes of this Agreement, “for cause” shall mean gross negligence or willful misconduct, the commission of a felony or gross-misdemeanor involving moral turpitude, fraud, dishonesty, embezzlement, willful violation of any law or any other behavior or act that results in any adverse effect on the Employer as may be determined by the Employer in its sole discretion.

3.4. Disability Benefit. Upon the Executive’s Disability while actively employed by the Employer, but prior to his or her Normal Retirement or Early Retirement, the Executive will be entitled to the benefit described in this Section 3.4 in lieu of any other benefit under this Agreement. The Disability Benefit will equal sixty (60%) percent of the Executive’s base salary and bonus at the time of the Disability less the Disability Benefit payable under the Wilson Bank and Trust Executive Salary Continuation Agreement for Gary Whitaker, as amended and frozen as of October 1, 2012 (the “ Frozen SERP ”). The Disability Benefit is payable in equal monthly installments commencing on the first (1 st ) day of the third month following the date of the Executive’s Disability and payable until the Executive reaches Normal Retirement Age. At Normal Retirement Age, the Disability Benefit will be reduced to an amount equal to the Normal Retirement Benefit as provided for in Section 3.1 as if the Executive separated from service at the Executive’s Normal Retirement Age and such reduced amount shall continue for the life of the Executive as provided in Section 3.1.

 

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3.5. Death Benefits during Active Employment . Upon the death of the Executive while actively employed by the Employer, the Beneficiary will be entitled to a single sum payment, payable within thirty (30) days of the date of death (with the Beneficiary having no right to designate the taxable year of the payment) equal to the Accrual Balance.

3.6. Death Benefit On or After Benefit Commencement . Upon death of the Executive after the Executive is entitled to or begins receiving the Normal Retirement Benefit, Early Retirement Benefit, Other Separation from Service Benefit, Disability Benefit or Change in Control payments under Section 3.1, Section 3.2, Section 3.3 , Section 3.4 or Section 3.7 but before receiving a total of one hundred eighty (180) monthly installments of such benefit payments, the Executive’s Beneficiary will receive the monthly amount payable had the Executive lived, payable for a total of one hundred eighty (180) monthly installments less the number of monthly installments already paid.

3.7. Change in Control Benefit . Upon a Change in Control, the Executive will be one hundred percent (100%) vested in the Retirement Benefit as provided for in Section 3.1 as if the Executive separated from service at the Normal Retirement Age. Such benefits shall be payable in equal monthly installments for the life of the Executive commencing thirty (30) days following said Change in Control.

3.8. Restriction on Timing of Distributions . Notwithstanding any provision of this Agreement to the contrary, distributions under this Agreement may not commence earlier than six (6) months after the date of a Separation from Service if, pursuant to section 409A of the Code, the Executive is considered a “specified employee” (defined in section 1.409A-1(i) of the Treasury Regulations) of the Employer if any stock of the Employer is publicly traded on an established securities market or otherwise. In the event a distribution is delayed pursuant to this Section, the originally scheduled distribution shall be delayed for six (6) months, and shall commence instead on the first (1 st ) day of the seventh (7 th ) month following the Executive’s Separation from Service. If payments are scheduled to be made in installments, the first (1 st ) six (6) months of installment payments shall be delayed, aggregated, and paid instead on the first (1 st ) day of the seventh (7 th ) month, after which all installment payments shall be made on their regular schedule. If payment is scheduled to be made in a lump sum, the lump sum payment shall be delayed for six (6) months and instead be made on the first (1 st ) day of the seventh (7 th ) month.

3.9. Coordination of Benefits . Notwithstanding any other provision of this Agreement to the contrary, the parties acknowledge that the benefits to be provided hereunder are intended to, and shall be, paid at the same time and form and in the same amount as provided for under the Frozen SERP during the period during which the benefits under the Frozen SERP (as applicable) were to be provided for thereunder (as if such benefits were not frozen) as required by section 409A of the Code. Any benefits which continue to be paid under this Agreement following the time such benefits would have ceased under the Frozen SERP are in addition to and in no way are intended to replace, alter or substitute the benefits provided for under the Frozen SERP. The parties agree that this Section 3.9 shall control over any contrary provision regarding the calculation and the time and form of payment of the benefits under this Agreement and the Frozen SERP and this Agreement shall be interpreted in accordance with this Section 3.9.

 

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ARTICLE 4

BENEFICIARIES

4.1. Beneficiary Designations . The Executive shall have the right to designate at any time a Beneficiary to receive any benefits payable under this Agreement upon the death of the Executive. The Beneficiary designated under this Agreement may be the same as or different from the Beneficiary designation under any other benefit plan of the Employer in which the Executive participates.

4.2. Beneficiary Designation; Changes . The Executive shall designate a Beneficiary by completing and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated agent. The Executive’s Beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved. The Executive shall have the right to change a Beneficiary by completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures, as in effect from time to time. Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before the Executive’s death.

4.3. Acknowledgment . No designation or change in designation of a Beneficiary shall be effective until received in writing by the Plan Administrator or its designated agent.

4.4. No Beneficiary Designation . If the Executive dies without a valid Beneficiary designation, or if all designated Beneficiaries predecease the Executive, then the Executive’s spouse shall be the designated Beneficiary. If the Executive has no surviving spouse, the benefits shall be distributed to the personal representative of the Executive’s estate.

4.5. Facility of Payment . If a benefit is payable to a minor, to a person declared incapacitated, or to a person incapable of handling the disposition of his or her property, the Employer may pay such benefit to the guardian, legal representative, or person having the care or custody of the minor, incapacitated person, or incapable person. The Employer may require proof of incapacity, minority, or guardianship as it may deem appropriate before distribution of the benefit. Distribution shall completely discharge the Employer from all liability for the benefit.

ARTICLE 5

GENERAL LIMITATIONS

5.1. Limits on Payments . It is the intention of the parties that none of the payments to which the Executive is entitled under this Agreement will constitute a “golden parachute payment” within the meaning of 12 USC section 1828(k)(3) or implementing regulations of the FDIC, the payment of which is prohibited. Notwithstanding any other provision of this Agreement to the contrary, any payments due to be made by Employer for the benefit of the Executive pursuant to this Agreement, or otherwise, are subject to and conditioned on compliance with 12 USC section 1828(k) and any regulations promulgated thereunder including the receipt of all required approvals thereof by Employer’s primary federal banking regulator and/or the FDIC.

 

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In addition, Employer and its successors retain the legal right to demand the return of any payment made hereunder which constitutes a “golden parachute payment” within the meaning of 12 USC section 1828(k)(3) or implementing regulations of the FDIC should Employer or its successors later obtain information indicating that the Executive committed, is substantially responsible for, or has violated, the respective acts or omissions, conditions, or offenses outlined under 12 C.F.R. 359.4(a)(4).

ARTICLE 6

CLAIMS AND REVIEW PROCEDURES

6.1. Claims Procedure . A person or Beneficiary (a “ claimant ”) who has not received benefits under the Agreement that he or she believes should be paid shall make a claim for such benefits as follows, and strictly in accordance with section 409A of the Code:

(a) Initiation—Written Claim . In the event that benefits under this Agreement are not paid to the Executive (or his or her Beneficiary in the case of the Executive’s death), and such person feels entitled to receive them, a claim shall be made in writing to the Plan Administrator within sixty (60) days from the date payments are not made. Such claim shall be reviewed by the Plan Administrator. If the claim is denied, in full or in part, the Plan Administrator shall provide a written notice within ninety (90) days setting forth the specific reasons for the denial specific reference to the provisions of this Agreement upon which the denial is based, and any additional material or information necessary to perfect the claim, if any. Also, such written notice shall indicate the steps to be taken if a review of the denial is desired.

If a claim is denied and a review is desired, the Executive (or his or her Beneficiary in the case of the Executive’s death), shall notify the Plan Administrator in writing within sixty (60) days and a claim shall be deemed denied if the Plan Administrator does not take any action within the aforesaid ninety (90)-day period. In requesting a review, the Executive or his or her beneficiary may review this Agreement or any documents relating to it and submit any written issue and comments he or she may feel appropriate. In its sole discretion the Plan Administrator shall then review the claim and provide a written decision within sixty (60) days. This decision likewise shall state the specific provisions of the Agreement on which the decision is based.

(b) For purposes of implementing this claims procedure, the Plan Administrator shall be responsible for the management, control, and administration of the Agreement as established herein. The Employer may delegate to certain aspects of management and operation responsibilities of the Agreement including the employment of advisors and the delegation of ministerial duties to qualified individuals.

All claim determinations under this Section 6.1 shall be made in accordance with section 409A of the Code and the Regulations thereunder.

 

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ARTICLE 7

MISCELLANEOUS

7.1. Amendments and Termination . Strictly in compliance with section 409A of the Code, (a) this Agreement may be amended solely by a written agreement signed by the Employer and by the Executive, and (b) except as otherwise provided herein, this Agreement may be terminated solely by the Employer in its sole discretion. Any acceleration of payments or change in the form of payments under this Agreement, including upon the amendment, modification or termination of the Agreement, shall be made strictly as permitted and in accordance with section 409A of the Code, including 1.409A-3(j)(4) of the Treasury Regulations.

7.2. Binding Effect . This Agreement shall bind the Executive and the Employer and their beneficiaries, survivors, executors, successors, administrators, legal representatives, and transferees.

7.3. No Guarantee of Employment . This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Employer, nor does it interfere with the Employer’s right to discharge the Executive. It also does not require the Executive to remain an employee nor interfere with the Executive’s right to terminate employment at any time.

7.4. Non-Transferability . Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached, or encumbered in any manner.

7.5. Tax Withholding . The Employer shall withhold any taxes that are required to be withheld from the benefits provided under this Agreement.

7.6. Applicable Law . Except to the extent preempted by the laws of the United States of America, the validity, interpretation, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to the principles of conflict of laws of such state.

7.7. Unfunded Arrangement . The Executive and the Executive’s Beneficiary are general unsecured creditors of the Employer for the payment of benefits under this Agreement. The benefits represent the mere promise by the Employer 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, annuity contract or other asset purchased by Employer to fund its obligations under this Agreement shall be a general asset of the Employer to which the Executive and Beneficiary have no preferred or secured claim.

7.8. Severability . If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.

7.9. Headings . The headings of sections herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement.

 

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7.10. Notices . All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to the address of the Executive on the books and records of the Employer at the time of the delivery of such notice, and properly addressed to the Employer if addressed to the Board of Directors, at 51 Germantown Court, Suite 100, Cordova, Tennessee 38018.

7.11. Entire Agreement . This Agreement constitutes the entire agreement between the Employer and the Executive concerning the subject matter hereof. No rights are granted to the Executive under this Agreement other than those specifically set forth herein.

7.12. Payment of Legal Fees . In the event litigation ensues between the parties concerning the enforcement of the obligations of the parties under this Agreement, the Employer shall pay all costs and expenses in connection with such litigation until such time as a final determination (excluding any appeals) is made with respect to the litigation. If the Employer prevails on the substantive merits of the each material claim in dispute in such litigation, the Employer shall be entitled to receive from the Executive all reasonable costs and expenses, including without limitation attorneys’ fees, incurred by the Employer on behalf of the Executive in connection with such litigation, and the Executive shall pay such costs and expenses to the Employer promptly upon demand by the Employer.

ARTICLE 8

ADMINISTRATION OF AGREEMENT

8.1. Plan Administrator Duties . This Agreement shall be administered by a Plan Administrator consisting of the Board of Directors of the Employer or such committee or person(s) as the Board of Directors of the Employer shall appoint. The Plan Administrator shall have the sole and absolute discretion and authority to interpret and enforce all appropriate rules and regulations for the administration of this Agreement and the rights of the Executive under this Agreement, to decide or resolve any and all questions or disputes arising under this Agreement, including benefits payable under this Agreement and all other interpretations of this Agreement, as may arise in connection with the Agreement, and in accordance with section 409A of the Code.

8.2. Agents . In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Employer.

8.3. Binding Effect of Decisions . The decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation, and application of the Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Agreement. Without limiting the foregoing, it is acknowledged that the value of the benefits payable hereunder may be difficult to determine in the event the Employer does not actually purchase and maintain the Annuity Contract as contemplated hereunder; therefore, in such event, the Employer shall have the right to make any reasonable assumptions in determining the benefits payable hereunder and any such determination made in good faith shall be binding on the Executive, and in accordance with section 409A of the Code.

 

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8.4. Indemnity of Plan Administrator . The Plan Administrator shall not be liable to any person for any action taken or omitted in connection with the interpretation and administration of this Agreement, unless such action or omission is attributable to the willful misconduct of the Plan Administrator or any of its members. The Employer shall indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members.

8.5. Employer Information . To enable the Plan Administrator to perform its functions, the Employer shall supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Separation of Service of the Executive and such other pertinent information as the Plan Administrator may reasonably require.

IN WITNESS WHEREOF, the Executive and a duly authorized Officer of the Employer have signed this Agreement as of the date first written above.

 

THE EXECUTIVE:     WILSON BANK & TRUST
/s/ Gary Whitaker     By:   /s/ Elmer Richerson
    Its:   President

 

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SCHEDULE A

WILSON BANK & TRUST

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT

Gary Whitaker

 

As of

   Early
Termination
Annual
Benefit
 

Jan 2012

     967   

Jan 2013

     3,987   

Jan 2014

     7,195   

Jan 2015

     10,605   

 

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Exhibit 10.15

WILSON BANK & TRUST

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT

This Supplemental Executive Retirement Plan Agreement (“ Agreement ”) is entered into as of this 23rd day of November, 2012 (the “ Effective Date ”) by and between Wilson Bank & Trust (the “ Employer ”), and John C. McDearman III, an individual resident of Tennessee (the “ Executive ”), and establishes the Wilson Bank & Trust Supplemental Executive Retirement Plan f/b/o John McDearman (the “ Plan ”).

WHEREAS, the Executive has contributed substantially to the success of the Employer and the Employer desires that the Executive continue in its employ;

WHEREAS, Employer desires to provide certain supplemental nonqualified pension benefits to Executive;

WHEREAS, Employer and Executive desire to enter into this Agreement to provide a retirement benefit under this Plan and to be paid to Executive upon Separation from Service (or other permissible payment event) as provided herein;

WHEREAS , the parties hereto intend that this Agreement shall be an unfunded arrangement maintained primarily to provide supplemental retirement benefits for the Executive, and shall be considered a plan described in section 301(a)(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”); and

WHEREAS, this Plan is intended to comply with the requirements of section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) and, accordingly, the intent of the parties hereto is that the Plan shall be operated and interpreted consistent with the requirements thereof;

WHEREAS , the Employer has purchased a Flexible Premium Indexed Deferred Annuity Contract issued by Midland National Life Insurance Company, contract #8500475511, (“Annuity Contract”); and

WHEREAS , the Employer is the sole owner of the Annuity Contract and elects to use the Annuity Contract to provide a retirement benefit to the Executive;

NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.


ARTICLE 1

DEFINITIONS

Whenever used in this Agreement, the following terms have the meanings specified:

1.1. “ Accrual Balance ” means the liability that should be accrued by the Employer under accounting principles generally accepted in the United States (“ GAAP ”) for the Employer’s obligation to the Executive under this Agreement, by applying Accounting Principles Board Opinion No. 12, as amended by Statement of Financial Accounting Standards No. 106, and the calculation method and discount rate specified hereinafter. The Accrual Balance shall be determined by the liability accrued by the Employer as of the Effective Date. The Accrual Balance shall be calculated assuming a level principal amount and interest as the discount rate is accrued each period. The principal accrual is determined such that when it is credited with interest each month, the Accrual Balance at Normal Retirement, in accordance with Section 3.1, equals the present value of the retirement benefits described in Section 3.1. At the end of each Plan Year, the Accrual Balance shall be adjusted to reflect the Employer’s obligation under Section 3.1. The discount rate means the rate used by the Plan Administrator for determining the Accrual Balance. The rate is based on the yield on a 20-year corporate bond rated Aa by Moody’s, rounded to the nearest  1 / 4 %, or as otherwise determined by the governing Regulatory body. The initial discount rate is 6.50%. In its sole discretion, the Plan Administrator may adjust the discount rate to maintain the rate within reasonable standards according to GAAP and consistent with the Interagency Advisory on Accounting for Deferred Compensation Agreements which states that the “cost of those benefits shall be accrued over that period of the Executive’s service in a systematic and rational manner.”

1.2. “ Actuarial (Actuarially) Equivalent ” means a benefit of equivalent value to the normal form of benefit determined by generally accepted actuarial principles.

1.3. “ Beneficiary ” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive, determined according to Article 4.

1.4. “ Beneficiary Designation Form ” means the form established from time to time by the Plan Administrator that the Executive completes, signs, and returns to the Plan Administrator to designate one or more Beneficiaries.

1.5. “ Board ” means the Board of Directors of the Employer.

1.6. “ Change in Control ” shall be deemed to have taken place if there occurs a “change in ownership,” a “change in the effective control,” or a “change in the ownership of a substantial portion of the assets” of the Employer as such terms are defined in Treasury Regulation §1.409A-3(i)(5) or any subsequent, applicable Treasury Regulation.

1.7. “ Disability ” shall mean the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expect to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Employer.

Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Employer, provided that the definition of Disability applied under such Disability insurance program complies with the requirements of section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of Social Security Administration’s or the provider’s determination.

 

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1.8. “ Early Retirement Date ” means the date of retirement from service which is effective prior to age sixty-five (65), provided the Executive has attained age fifty-five (55) and been continuously employed by the Employer for twenty (20) years.

1.9. “ ERISA ” means the Employee Retirement Income Security Act of 1974.

1.10. “ Rider ” means the Income Rider attached to the Annuity Contract as an endorsement.

1.11. “ Normal Retirement Age ” means age sixty-five (65).

1.12. “ Plan Administrator ” means the plan administrator described in Article 8.

1.13. “ Separation from Service ” means the Executive’s “separation from service” from the Employer as such term is defined under section 409A of the Code and section 1.409A-1(h) of the Final Treasury Regulations or the corresponding provisions in future guidance issued by the Department of the Treasury and the Internal Revenue Service.

ARTICLE 2

DEFERRED COMPENSATION AND VALUATION OF ACCOUNT

2.1. Ownership of the Annuity Contract . The Employer is the sole owner of the Annuity Contract and shall have the right to exercise all incidents of ownership. The Employer shall be the beneficiary of the death proceeds of the Annuity Contract. The Employer shall at all times be entitled to the Annuity Contract’s cash surrender value, as that term is defined in the Annuity Contract. The cash surrender value shall be determined as of the date of the surrender of the Annuity Contract or death of the Executive, as the case may be.

2.2. Right to Annuity Contract . Notwithstanding any provision hereof to the contrary, the Employer shall have the right to sell or surrender the Annuity Contract without terminating this Agreement, provided the Employer replaces the Annuity Contract with a comparable annuity policy(ies) or arrangement that provides a similar benefit as that provided under the Annuity Contract. Without limitation, the Annuity Contract at all times shall be the exclusive property of the Employer and shall be subject to the claims of the Employer’s creditors.

2.3. Rabbi Trust . Employer may establish a “rabbi trust” to which contributions may be made to provide the Employer with a source of funds for purposes of satisfying the obligations of the Employer under the Plan. The trust shall constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan. The Executive and his Beneficiaries shall have no beneficial ownership interest in any assets held in the trust.

 

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ARTICLE 3

RETIREMENT AND OTHER BENEFITS

3.1. Normal Retirement Benefit . Upon the Executive’s Separation from Service on or after Normal Retirement Age for any reason other than death or Disability, the Executive will be entitled to the benefit described in this Section 3.1 in lieu of any other benefit under this Agreement. The Normal Retirement Benefit will equal the Accrual Balance, payable in an Actuarially Equivalent single life annuity in an amount determined pursuant to the Rider, payable in equal monthly installments for the life of the Executive commencing on the first (1 st ) day of the month following the date of the Executive’s Separation from Service.

3.2. Early Retirement Benefit. Upon the Executive’s Separation from Service on or after the Early Retirement Date but prior to the Normal Retirement Date for any reason other than death or Disability, the Executive will be entitled to the benefit described in this Section 3.2 in lieu of any other benefit under this Agreement. The Early Retirement Benefit will equal the Accrual Balance, payable in an Actuarially Equivalent single life annuity in an amount determined pursuant to the Rider, payable in monthly installments for the life of the Executive commencing on the first (1 st ) day of the month following the date of the Executive’s Separation from Service.

3.3. Other Separation from Service . In the event that the Executive incurs a Separation from Service prior to the Early Retirement Date or Normal Retirement Date for any reason other than death or Disability or following a Change in Control, by his or her voluntary action or his or her discharge by the Employer without cause, the Employer shall pay to the Executive the benefit as provided in Schedule A, attached to this Agreement, payable in equal monthly installments for a period of one hundred eighty (180) months commencing on the first (1 st ) day of the month following the Executive’s Normal Retirement Age.

In the event the Executive shall be discharged by the Employer for cause, then all of the Executive’s rights under this Agreement shall terminate and he shall forfeit all benefits under this Agreement. For purposes of this Agreement, “for cause” shall mean gross negligence or willful misconduct, the commission of a felony or gross-misdemeanor involving moral turpitude, fraud, dishonesty, embezzlement, willful violation of any law or any other behavior or act that results in any adverse effect on the Employer as may be determined by the Employer in its sole discretion.

3.4. Disability Benefit. Upon the Executive’s Disability while actively employed by the Employer, but prior to his or her Normal Retirement or Early Retirement, the Executive will be entitled to the benefit described in this Section 3.4 in lieu of any other benefit under this Agreement. The Disability Benefit will equal sixty (60%) percent of the Executive’s base salary and bonus at the time of the Disability less the Disability Benefit payable under the Wilson Bank and Trust Executive Salary Continuation Agreement for John McDearman, as amended and frozen as of October 1, 2012 (the “ Frozen SERP ”). The Disability Benefit is payable in equal monthly installments commencing on the first (1 st ) day of the third month following the date of the Executive’s Disability and payable until the Executive reaches Normal Retirement Age. At Normal Retirement Age, the Disability Benefit will be reduced to an amount equal to the Normal Retirement Benefit as provided for in Section 3.1 as if the Executive separated from service at the Executive’s Normal Retirement Age and such reduced amount shall continue for the life of the Executive as provided in Section 3.1.

 

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3.5. Death Benefits during Active Employment . Upon the death of the Executive while actively employed by the Employer, the Beneficiary will be entitled to a single sum payment, payable within thirty (30) days of the date of death (with the Beneficiary having no right to designate the taxable year of the payment) equal to the Accrual Balance.

3.6. Death Benefit On or After Benefit Commencement . Upon death of the Executive after the Executive is entitled to or begins receiving the Normal Retirement Benefit, Early Retirement Benefit, Other Separation from Service Benefit, Disability Benefit or Change in Control payments under Section 3.1, Section 3.2, Section 3.3 , Section 3.4 or Section 3.7 but before receiving a total of one hundred eighty (180) monthly installments of such benefit payments, the Executive’s Beneficiary will receive the monthly amount payable had the Executive lived, payable for a total of one hundred eighty (180) monthly installments less the number of monthly installments already paid.

3.7. Change in Control Benefit . Upon a Change in Control, the Executive will be one hundred percent (100%) vested in the Retirement Benefit as provided for in Section 3.1 as if the Executive separated from service at the Normal Retirement Age. Such benefits shall be payable in equal monthly installments for the life of the Executive commencing thirty (30) days following said Change in Control.

3.8. Restriction on Timing of Distributions . Notwithstanding any provision of this Agreement to the contrary, distributions under this Agreement may not commence earlier than six (6) months after the date of a Separation from Service if, pursuant to section 409A of the Code, the Executive is considered a “specified employee” (defined in section 1.409A-1(i) of the Treasury Regulations) of the Employer if any stock of the Employer is publicly traded on an established securities market or otherwise. In the event a distribution is delayed pursuant to this Section, the originally scheduled distribution shall be delayed for six (6) months, and shall commence instead on the first (1 st ) day of the seventh (7 th ) month following the Executive’s Separation from Service. If payments are scheduled to be made in installments, the first (1 st ) six (6) months of installment payments shall be delayed, aggregated, and paid instead on the first (1 st ) day of the seventh (7 th ) month, after which all installment payments shall be made on their regular schedule. If payment is scheduled to be made in a lump sum, the lump sum payment shall be delayed for six (6) months and instead be made on the first (1 st ) day of the seventh (7 th ) month.

3.9. Coordination of Benefits . Notwithstanding any other provision of this Agreement to the contrary, the parties acknowledge that the benefits to be provided hereunder are intended to, and shall be, paid at the same time and form and in the same amount as provided for under the Frozen SERP during the period during which the benefits under the Frozen SERP (as applicable) were to be provided for thereunder (as if such benefits were not frozen) as required by section 409A of the Code. Any benefits which continue to be paid under this Agreement following the time such benefits would have ceased under the Frozen SERP are in addition to and in no way are intended to replace, alter or substitute the benefits provided for under the Frozen SERP. The parties agree that this Section 3.9 shall control over any contrary provision regarding the calculation and the time and form of payment of the benefits under this Agreement and the Frozen SERP and this Agreement shall be interpreted in accordance with this Section 3.9.

 

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ARTICLE 4

BENEFICIARIES

4.1. Beneficiary Designations . The Executive shall have the right to designate at any time a Beneficiary to receive any benefits payable under this Agreement upon the death of the Executive. The Beneficiary designated under this Agreement may be the same as or different from the Beneficiary designation under any other benefit plan of the Employer in which the Executive participates.

4.2. Beneficiary Designation; Changes . The Executive shall designate a Beneficiary by completing and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated agent. The Executive’s Beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved. The Executive shall have the right to change a Beneficiary by completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures, as in effect from time to time. Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before the Executive’s death.

4.3. Acknowledgment . No designation or change in designation of a Beneficiary shall be effective until received in writing by the Plan Administrator or its designated agent.

4.4. No Beneficiary Designation . If the Executive dies without a valid Beneficiary designation, or if all designated Beneficiaries predecease the Executive, then the Executive’s spouse shall be the designated Beneficiary. If the Executive has no surviving spouse, the benefits shall be distributed to the personal representative of the Executive’s estate.

4.5. Facility of Payment . If a benefit is payable to a minor, to a person declared incapacitated, or to a person incapable of handling the disposition of his or her property, the Employer may pay such benefit to the guardian, legal representative, or person having the care or custody of the minor, incapacitated person, or incapable person. The Employer may require proof of incapacity, minority, or guardianship as it may deem appropriate before distribution of the benefit. Distribution shall completely discharge the Employer from all liability for the benefit.

ARTICLE 5

GENERAL LIMITATIONS

5.1. Limits on Payments . It is the intention of the parties that none of the payments to which the Executive is entitled under this Agreement will constitute a “golden parachute payment” within the meaning of 12 USC section 1828(k)(3) or implementing regulations of the FDIC, the payment of which is prohibited. Notwithstanding any other provision of this Agreement to the contrary, any payments due to be made by Employer for the benefit of the Executive pursuant to this Agreement, or otherwise, are subject to and conditioned on compliance with 12 USC section 1828(k) and any regulations promulgated thereunder including the receipt of all required approvals thereof by Employer’s primary federal banking regulator and/or the FDIC.

 

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In addition, Employer and its successors retain the legal right to demand the return of any payment made hereunder which constitutes a “golden parachute payment” within the meaning of 12 USC section 1828(k)(3) or implementing regulations of the FDIC should Employer or its successors later obtain information indicating that the Executive committed, is substantially responsible for, or has violated, the respective acts or omissions, conditions, or offenses outlined under 12 C.F.R. 359.4(a)(4).

ARTICLE 6

CLAIMS AND REVIEW PROCEDURES

6.1. Claims Procedure . A person or Beneficiary (a “ claimant ”) who has not received benefits under the Agreement that he or she believes should be paid shall make a claim for such benefits as follows, and strictly in accordance with section 409A of the Code:

(a) Initiation—Written Claim . In the event that benefits under this Agreement are not paid to the Executive (or his or her Beneficiary in the case of the Executive’s death), and such person feels entitled to receive them, a claim shall be made in writing to the Plan Administrator within sixty (60) days from the date payments are not made. Such claim shall be reviewed by the Plan Administrator. If the claim is denied, in full or in part, the Plan Administrator shall provide a written notice within ninety (90) days setting forth the specific reasons for the denial specific reference to the provisions of this Agreement upon which the denial is based, and any additional material or information necessary to perfect the claim, if any. Also, such written notice shall indicate the steps to be taken if a review of the denial is desired.

If a claim is denied and a review is desired, the Executive (or his or her Beneficiary in the case of the Executive’s death), shall notify the Plan Administrator in writing within sixty (60) days and a claim shall be deemed denied if the Plan Administrator does not take any action within the aforesaid ninety (90)-day period. In requesting a review, the Executive or his or her beneficiary may review this Agreement or any documents relating to it and submit any written issue and comments he or she may feel appropriate. In its sole discretion the Plan Administrator shall then review the claim and provide a written decision within sixty (60) days. This decision likewise shall state the specific provisions of the Agreement on which the decision is based.

(b) For purposes of implementing this claims procedure, the Plan Administrator shall be responsible for the management, control, and administration of the Agreement as established herein. The Employer may delegate to certain aspects of management and operation responsibilities of the Agreement including the employment of advisors and the delegation of ministerial duties to qualified individuals.

All claim determinations under this Section 6.1 shall be made in accordance with section 409A of the Code and the Regulations thereunder.

 

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ARTICLE 7

MISCELLANEOUS

7.1. Amendments and Termination . Strictly in compliance with section 409A of the Code, (a) this Agreement may be amended solely by a written agreement signed by the Employer and by the Executive, and (b) except as otherwise provided herein, this Agreement may be terminated solely by the Employer in its sole discretion. Any acceleration of payments or change in the form of payments under this Agreement, including upon the amendment, modification or termination of the Agreement, shall be made strictly as permitted and in accordance with section 409A of the Code, including 1.409A-3(j)(4) of the Treasury Regulations.

7.2. Binding Effect . This Agreement shall bind the Executive and the Employer and their beneficiaries, survivors, executors, successors, administrators, legal representatives, and transferees.

7.3. No Guarantee of Employment . This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Employer, nor does it interfere with the Employer’s right to discharge the Executive. It also does not require the Executive to remain an employee nor interfere with the Executive’s right to terminate employment at any time.

7.4. Non-Transferability . Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached, or encumbered in any manner.

7.5. Tax Withholding . The Employer shall withhold any taxes that are required to be withheld from the benefits provided under this Agreement.

7.6. Applicable Law . Except to the extent preempted by the laws of the United States of America, the validity, interpretation, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to the principles of conflict of laws of such state.

7.7. Unfunded Arrangement . The Executive and the Executive’s Beneficiary are general unsecured creditors of the Employer for the payment of benefits under this Agreement. The benefits represent the mere promise by the Employer 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, annuity contract or other asset purchased by Employer to fund its obligations under this Agreement shall be a general asset of the Employer to which the Executive and Beneficiary have no preferred or secured claim.

7.8. Severability . If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.

7.9. Headings . The headings of sections herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement.

 

8


7.10. Notices . All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to the address of the Executive on the books and records of the Employer at the time of the delivery of such notice, and properly addressed to the Employer if addressed to the Board of Directors, at 51 Germantown Court, Suite 100, Cordova, Tennessee 38018.

7.11. Entire Agreement . This Agreement constitutes the entire agreement between the Employer and the Executive concerning the subject matter hereof. No rights are granted to the Executive under this Agreement other than those specifically set forth herein.

7.12. Payment of Legal Fees . In the event litigation ensues between the parties concerning the enforcement of the obligations of the parties under this Agreement, the Employer shall pay all costs and expenses in connection with such litigation until such time as a final determination (excluding any appeals) is made with respect to the litigation. If the Employer prevails on the substantive merits of the each material claim in dispute in such litigation, the Employer shall be entitled to receive from the Executive all reasonable costs and expenses, including without limitation attorneys’ fees, incurred by the Employer on behalf of the Executive in connection with such litigation, and the Executive shall pay such costs and expenses to the Employer promptly upon demand by the Employer.

ARTICLE 8

ADMINISTRATION OF AGREEMENT

8.1. Plan Administrator Duties . This Agreement shall be administered by a Plan Administrator consisting of the Board of Directors of the Employer or such committee or person(s) as the Board of Directors of the Employer shall appoint. The Plan Administrator shall have the sole and absolute discretion and authority to interpret and enforce all appropriate rules and regulations for the administration of this Agreement and the rights of the Executive under this Agreement, to decide or resolve any and all questions or disputes arising under this Agreement, including benefits payable under this Agreement and all other interpretations of this Agreement, as may arise in connection with the Agreement, and in accordance with section 409A of the Code.

8.2. Agents . In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Employer.

8.3. Binding Effect of Decisions . The decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation, and application of the Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Agreement. Without limiting the foregoing, it is acknowledged that the value of the benefits payable hereunder may be difficult to determine in the event the Employer does not actually purchase and maintain the Annuity Contract as contemplated hereunder; therefore, in such event, the Employer shall have the right to make any reasonable assumptions in determining the benefits payable hereunder and any such determination made in good faith shall be binding on the Executive, and in accordance with section 409A of the Code.

 

9


8.4. Indemnity of Plan Administrator . The Plan Administrator shall not be liable to any person for any action taken or omitted in connection with the interpretation and administration of this Agreement, unless such action or omission is attributable to the willful misconduct of the Plan Administrator or any of its members. The Employer shall indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members.

8.5. Employer Information . To enable the Plan Administrator to perform its functions, the Employer shall supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Separation of Service of the Executive and such other pertinent information as the Plan Administrator may reasonably require.

IN WITNESS WHEREOF, the Executive and a duly authorized Officer of the Employer have signed this Agreement as of the date first written above.

 

THE EXECUTIVE:     WILSON BANK & TRUST
/s/ John C. McDearman III     By:   /s/ Elmer Richerson
    Its:   President

 

10


SCHEDULE A

WILSON BANK & TRUST

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT

John McDearman

 

As of

   Early
Termination
Annual
Benefit
 

Jan 2012

     52   

Jan 2013

     250   

Jan 2014

     517   

Jan 2015

     857   

Jan 2016

     1,277   

Jan 2017

     1,785   

Jan 2018

     2,387   

Jan 2019

     3,093   

Jan 2020

     3,911   

Jan 2021

     4,851   

Jan 2022

     5,923   

Jan 2023

     6,998   

Jan 2024

     7,878   

 

11

Exhibit 10.16

AMENDMENT

TO THE WILSON BANK AND TRUST AMENDED AND

RESTATED LIFE INSURANCE ENDORSEMENT METHOD

SPLIT DOLLAR AGREEMENT

DATED OCTOBER 7, 2002

This Amendment, made and entered into this 21 day of August, 2003, by and between Wilson Bank and Trust, a Bank organized and existing under the laws of the State of Tennessee, hereinafter referred to as the, “Bank”, and James Randall Clemons, a Key Employee and Executive of the Bank, hereinafter referred to as the, “Executive”, shall effectively amend the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Agreement dated October 7, 2002, as specifically set forth herein pursuant to Paragraph XVI of said Agreement. Said Agreement shall be amended as follows:

 

1.) To delete in its entirety, Sub Paragraph VI. A. DIVISION OF DEATH PROCEEDS and replace it with the following:

 

  A. Upon the death of the Insured while employed by the Bank, the Insured’s beneficiary(ies), designated in accordance with Paragraph III shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. Upon the death of the Insured subsequent to a termination of service, said beneficiary(ies) shall be entitled to one hundred percent (100%) of the net-at risk insurance portion of the proceeds reduced according to the schedule listed in Exhibit 1 to the Wilson Bank and Trust Executive Salary Continuation Agreement. The Executive will be credited with a year of participation for each anniversary thereafter of the effective date of the Agreement as set forth in Paragraph 22 therein, for which the Executive remains in the employ of the Bank.

 

2.) To delete in its entirety, Paragraph XVII, EFFECTIVE DATE, and replace it with the following:

XVII. EFFECTIVE DATE

The Effective Date of this Agreement shall be October 7, 2002.

 

3.) To delete the second paragraph of page one (1) of the split dollar agreement in its entirety as there was no prior agreement to supersede and replace.

To the extent that any paragraph, term, or provision of said agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term, or provision shall remain in full force and effect as set forth in said agreement.


IN WITNESS WHEREOF , the parties hereto acknowledge that each has carefully read this Amendment and executed the original thereof on the first day set forth hereinabove, and that, upon execution, each has received a conforming copy.

 

     

WILSON BANK AND TRUST

Lebanon, Tennessee

/s/ Becky F. Taylor

     

/s/ Elmer Richerson                                                      Pres.

Witness

      Title

/s/ Becky F. Taylor

     

/s/ Randall Clemons

Witness

      James Randall Clemons

Exhibit 10.17

AMENDMENT

TO THE WILSON BANK AND TRUST AMENDED AND

RESTATED LIFE INSURANCE ENDORSEMENT METHOD

SPLIT DOLLAR AGREEMENT

DATED OCTOBER 7, 2002

This Amendment, made and entered into this 21 day of August, 2003, by and between Wilson Bank and Trust, a Bank organized and existing under the laws of the State of Tennessee, hereinafter referred to as the, “Bank”, and H. Elmer Richerson, a Key Employee and Executive of the Bank, hereinafter referred to as the, “Executive”, shall effectively amend the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Agreement dated October 7, 2002, as specifically set forth herein pursuant to Paragraph XVI of said Agreement. Said Agreement shall be amended as follows:

 

1.) To delete in its entirety, Sub Paragraph VI. A. DIVISION OF DEATH PROCEEDS and replace it with the following:

 

  A. Upon the death of the Insured while employed by the Bank, the Insured’s beneficiary(ies), designated in accordance with Paragraph III shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. Upon the death of the Insured subsequent to a termination of service, said beneficiary(ies) shall be entitled to one hundred percent (100%) of the net-at risk insurance portion of the proceeds reduced according to the schedule listed in Exhibit 1 to the Wilson Bank and Trust Executive Salary Continuation Agreement. The Executive will be credited with a year of participation for each anniversary thereafter of the effective date of the Agreement as set forth in Paragraph 22 therein, for which the Executive remains in the employ of the Bank.

 

2.) To delete in its entirety, Paragraph XVII, EFFECTIVE DATE, and replace it with the following:

XVII. EFFECTIVE DATE

The Effective Date of this Agreement shall be October 7, 2002.

 

3.) To delete the second paragraph of page one (1) of the split dollar agreement in its entirety as there was no prior agreement to supersede and replace.

To the extent that any paragraph, term, or provision of said agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term, or provision shall remain in full force and effect as set forth in said agreement.


IN WITNESS WHEREOF , the parties hereto acknowledge that each has carefully read this Amendment and executed the original thereof on the first day set forth hereinabove, and that, upon execution, each has received a conforming copy.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

/s/ Becky F. Taylor

   

/s/ Randall Clemons                                                      CEO

Witness

    Title

/s/ Becky F. Taylor

   

/s/ H. Elmer Richerson

Witness

    H. Elmer Richerson

Exhibit 10.18

AMENDMENT

TO THE WILSON BANK AND TRUST AMENDED AND

RESTATED LIFE INSURANCE ENDORSEMENT METHOD

SPLIT DOLLAR AGREEMENT

DATED OCTOBER 7, 2002

This Amendment, made and entered into this 21 day of August, 2003, by and between Wilson Bank and Trust, a Bank organized and existing under the laws of the State of Tennessee, hereinafter referred to as the, “Bank”, and Lisa Pominski, a Key Employee and Executive of the Bank, hereinafter referred to as the, “Executive”, shall effectively amend the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Agreement dated October 7, 2002, as specifically set forth herein pursuant to Paragraph XVI of said Agreement. Said Agreement shall be amended as follows:

 

1.) To delete in its entirety, Sub Paragraph VI. A. DIVISION OF DEATH PROCEEDS and replace it with the following:

 

  A. Upon the death of the Insured while employed by the Bank, the Insured’s beneficiary(ies), designated in accordance with Paragraph III shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. Upon the death of the Insured subsequent to a termination of service, said beneficiary(ies) shall be entitled to one hundred percent (100%) of the net-at risk insurance portion of the proceeds reduced according to the schedule listed in Exhibit 1 to the Wilson Bank and Trust Executive Salary Continuation Agreement. The Executive will be credited with a year of participation for each anniversary thereafter of the effective date of the Agreement as set forth in Paragraph 22 therein, for which the Executive remains in the employ of the Bank.

 

2.) To delete in its entirety, Paragraph XVII, EFFECTIVE DATE, and replace it with the following:

XVII. EFFECTIVE DATE

The Effective Date of this Agreement shall be October 7, 2002.

 

3.) To delete the second paragraph of page one (1) of the split dollar agreement in its entirety as there was no prior agreement to supersede and replace.

To the extent that any paragraph, term, or provision of said agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term, or provision shall remain in full force and effect as set forth in said agreement.


IN WITNESS WHEREOF , the parties hereto acknowledge that each has carefully read this Amendment and executed the original thereof on the first day set forth hereinabove, and that, upon execution, each has received a conforming copy.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

/s/ Becky F. Taylor

   

/s/ Elmer Richerson                                                      Pres.

Witness

    Title

/s/ Becky F. Taylor

   

/s/ Lisa Pominski

Witness

    Lisa Pominski

Exhibit 10.19

AMENDMENT

TO THE WILSON BANK AND TRUST AMENDED AND

RESTATED LIFE INSURANCE ENDORSEMENT METHOD

SPLIT DOLLAR AGREEMENT

DATED OCTOBER 7, 2002

This Amendment, made and entered into this 21 day of August, 2003, by and between Wilson Bank and Trust, a Bank organized and existing under the laws of the State of Tennessee, hereinafter referred to as the, “Bank”, and Gary Whitaker, a Key Employee and Executive of the Bank, hereinafter referred to as the, “Executive”, shall effectively amend the Wilson Bank and Trust Amended and Restated Life Insurance Endorsement Method Split Dollar Agreement dated October 7, 2002, as specifically set forth herein pursuant to Paragraph XVI of said Agreement. Said Agreement shall be amended as follows:

 

1.) To delete in its entirety, Sub Paragraph VI. A. DIVISION OF DEATH PROCEEDS and replace it with the following:

 

  A. Upon the death of the Insured while employed by the Bank, the Insured’s beneficiary(ies), designated in accordance with Paragraph III shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. Upon the death of the Insured subsequent to a termination of service, said beneficiary(ies) shall be entitled to one hundred percent (100%) of the net-at risk insurance portion of the proceeds reduced according to the schedule listed in Exhibit 1 to the Wilson Bank and Trust Executive Salary Continuation Agreement. The Executive will be credited with a year of participation for each anniversary thereafter of the effective date of the Agreement as set forth in Paragraph 22 therein, for which the Executive remains in the employ of the Bank.

 

2.) To delete in its entirety, Paragraph XVII, EFFECTIVE DATE, and replace it with the following:

XVII. EFFECTIVE DATE

The Effective Date of this Agreement shall be October 7, 2002.

 

3.) To delete the second paragraph of page one (1) of the split dollar agreement in its entirety as there was no prior agreement to supersede and replace.

To the extent that any paragraph, term, or provision of said agreement is not specifically amended herein, or in any other amendment thereto, said paragraph, term, or provision shall remain in full force and effect as set forth in said agreement.


IN WITNESS WHEREOF , the parties hereto acknowledge that each has carefully read this Amendment and executed the original thereof on the first day set forth hereinabove, and that, upon execution, each has received a conforming copy.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

/s/ Becky F. Taylor

   

/s/ Elmer Richerson                                                      Pres.

Witness

    Title

/s/ Becky F. Taylor

   

/s/ Gary Whitaker

Witness

    Gary Whitaker

Exhibit 10.20

AMENDED AND RESTATED

LIFE INSURANCE

ENDORSEMENT METHOD SPLIT DOLLAR PLAN

AGREEMENT

 

Insurer:

   Tennessee Farmers

Policy Number:

   174537 & 200569

Bank:

   Wilson Bank & Trust

Insured:

   James Randall Clemons

Relationship of Insured to Bank:

   Executive

The respective rights and duties of the Bank and the Insured in the above-referenced policy shall be pursuant to the terms set forth below:

This Agreement shall supersede the Life Insurance Endorsement Method Split Dollar Plan Agreement originally effective the 30 th day of March, 1995, and shall constitute the entire agreement of the parties pertaining to this particular Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement.

 

I. DEFINITIONS

Refer to the policy contract for the definition of all terms in this Agreement.

 

II. POLICY TITLE AND OWNERSHIP

Title and ownership shall reside in the Bank for its use and for the use of the Insured all in accordance with this Agreement. The Bank alone may, to the extent of its interest, exercise the right to borrow or withdraw on the policy cash values. Where the Bank and the Insured (or assignee, with the consent of the Insured) mutually agree to exercise the right to increase the coverage under the subject Split Dollar policy, then, in such event, the rights, duties and benefits of the parties to such increased coverage shall continue to be subject to the terms of this Agreement.

 

III. BENEFICIARY DESIGNATION RIGHTS

The Insured (or assignee) shall have the right and power to designate a beneficiary or beneficiaries to receive the Insured’s share of the proceeds payable upon the death of the Insured, and to elect and change a payment option for such beneficiary, subject to any right or interest the Bank may have in such proceeds, as provided in this Agreement.

 

IV. PREMIUM PAYMENT METHOD

The Bank shall pay an amount equal to the planned premiums and any other premium payments that might become necessary to keep the policy in force.


V. TAXABLE BENEFIT

Annually the Insured will receive a taxable benefit equal to the assumed cost of insurance as required by the Internal Revenue Service. The Bank (or its administrator) will report to the Insured the amount of imputed income each year on Form W-2 or its equivalent.

 

VI. DIVISION OF DEATH PROCEEDS

Subject to Paragraphs VII and IX herein, the division of the death proceeds of the policy is as follows:

 

  A. Upon the death of the Insured, the Insured’s beneficiary(ies), designated in accordance with Paragraph III, shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. The net-at-risk insurance portion is the total proceeds less the cash value of the policy.

 

  B. The Bank shall be entitled to the remainder of such proceeds.

 

  C. The Bank and the Insured (or assignees) shall share in any interest due on the death proceeds on a pro rata basis as the proceeds due each respectively bears to the total proceeds, excluding any such interest.

 

VII. DIVISION OF THE CASH SURRENDER VALUE OF THE POLICY

The Bank shall at all times be entitled to an amount equal to the policy’s cash value, as that term is defined in the policy contract, less any policy loans and unpaid interest or cash withdrawals previously incurred by the Bank and any applicable surrender charges. Such cash value shall be determined as of the date of surrender or death as the case may be.

 

VIII. RIGHTS OF PARTIES WHERE POLICY ENDOWMENT OR ANNUITY ELECTION EXISTS

In the event the policy involves an endowment or annuity element, the Bank’s right and interest in any endowment proceeds or annuity benefits, on expiration of the deferment period, shall be determined under the provisions of this Agreement by regarding such endowment proceeds or the commuted value of such annuity benefits as the policy’s cash value. Such endowment proceeds or annuity benefits shall be considered to be like death proceeds for the purposes of division under this Agreement.

 

IX. TERMINATION OF AGREEMENT

This Agreement shall terminate upon the occurrence of any one of the following:

 

  A. The Insured shall terminate employment with the Bank for any reason other than death, disability (as defined in Paragraph 6 of the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement in effect at the time of said disability), or retirement (in accordance with Paragraph 3 of the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement in effect at said retirement).

 

  B. The Insured shall be discharged from employment with the Bank for cause. The term “for cause” shall mean gross negligence or willful misconduct, the commission of a felony or gross-misdemeanor involving moral turpitude, fraud, dishonesty, embezzlement, willful violation of any law or any other behavior or act that results in any adverse effect on the Bank as may be determined by the Bank in its sole discretion; or


  C. Surrender, lapse, or other termination of the Policy by the Bank.

Upon such termination, the Insured (or assignee) shall have a fifteen (15) day option to receive from the Bank an absolute assignment of the policy in consideration of a cash payment to the Bank, whereupon this Agreement shall terminate. Such cash payment referred to hereinabove shall be the greater of:

 

  A. The Bank’s share of the cash value of the policy on the date of such assignment, as defined in this Agreement; or

 

  B. The amount of the premiums that have been paid by the Bank prior to the date of such assignment.

If, within said fifteen (15) day period, the Insured fails to exercise said option, fails to procure the entire aforestated cash payment, or dies, then the option shall terminate and the Insured (or assignee) agees that all of the Insured’s rights, interest and claims in the policy shall terminate as of the date of the termination of this Agreement.

The Insured expressly agrees that this Agreement shall constitute sufficient written notice to the Insured of the Insured’s option to receive an absolute assignment of the policy as set forth herein.

Except as provided above, this Agreement shall terminate upon distribution of the death benefit proceeds in accordance with Paragraph VI above.

 

X. INSURED’S OR ASSIGNEE’S ASSIGNMENT RIGHTS

The Insured may not, without the written consent of the Bank, assign to any individual, trust or other organization, any right, title or interest in the subject policy nor any rights, options, privileges or duties created under this Agreement.

 

XI. AGREEMENT BINDING UPON THE PARTIES

This Agreement shall bind the Insured and the Bank, their heirs, successors, personal representatives and assigns.

 

XII. ERISA PROVISIONS

The following provisions are part of this Agreement and are intended to meet the requirements of the Employee Retirement Income Security Act of 1974 (“ERISA”):

 

  A. Named Fiduciary and Plan Administrator .

The “Named Fiduciary and Plan Administrator” of this Endorsement Method Split Dollar Agreement shall be Wilson Bank & Trust until its resignation or removal by the Board of Directors. As Named Fiduciary and Plan Administrator, the Bank shall be responsible for the management, control, and administration of this Split Dollar Plan as established herein. 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 any ministerial duties to qualified individuals.


  B. Funding Policy .

The funding policy for this Split Dollar Plan shall be to maintain the subject policy in force by paying, when due, all premiums required.

 

  C. Basis of Payment of Benefits .

Direct payment by the Insurer is the basis of payment of benefits under this Agreement, with those benefits in turn being based on the payment of premiums as provided in this Agreement.

 

  D. Claim Procedures .

Claim forms or claim information as to the subject policy can be obtained by contacting Benmark, Inc. (800-544-6079). When the Named Fiduciary has a claim which may be covered under the provisions described in the insurance policy, they should contact the office named above, and they will either complete a claim form and forward it to an authorized representative of the Insurer or advise the Named Fiduciary what further requirements are necessary. The Insurer will evaluate and make a decision as to payment. If the claim is payable, a benefit check will be issued in accordance with the terms of this Agreement.

In the event that a claim is not eligible under the policy, the Insurer will notify the Named Fiduciary of the denial pursuant to the requirements under the terms of the policy. If the Named Fiduciary is dissatisfied with the denial of the claim and wishes to contest such claim denial, they should contact the office named above and they will assist in making an inquiry to the Insurer. All objections to the Insurer’s actions should be in writing and submitted to the office named above for transmittal to the Insurer.

 

XIII. GENDER

Whenever in this Agreement words are used in the masculine or neuter gender, they shall be read and construed as in the masculine, feminine or neuter gender, whenever they should so apply.

 

XIV. INSURANCE COMPANY NOT A PARTY TO THIS AGREEMENT

The Insurer shall not be deemed a party to this Agreement, but will respect the rights of the parties as herein developed upon receiving an executed copy of this Agreement. Payment or other performance in accordance with the policy provisions shall fully discharge the Insurer from any and all liability.

 

XV. CHANGE OF CONTROL

Change of Control shall be deemed to be the cumulative transfer of more than fifty percent (50%) of the voting stock of the Bank from the date of this Agreement. For the purposes of this Agreement, transfers on account of death or gifts, transfers between family members, or transfers to a qualified retirement plan maintained by the Bank shall not be considered in determining whether there has been a Change of Control. Upon a Change of Control, if the Insured’s employment is subsequently terminated, except for cause, then the Insured shall be one hundred percent (100%) vested in the benefits promised in this Agreement.


XVI. AMENDMENT OR REVOCATION

It is agreed by and between the parties hereto that, during the lifetime of the Insured, this Agreement may be amended or revoked at any time or times, in whole or in part, by the mutual written consent of the Insured and the Bank.

 

XVII. EFFECTIVE DATE

The Effective Date of this Agreement shall be March 30, 1995.

 

XVIII. SEVERABILITY AND INTERPRETATION

If a provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nonetheless be enforceable according to their terms. Further, in the event that any provision is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to law and enforced as amended.

 

XIX. APPLICABLE LAW

The validity and interpretation of this Agreement shall be governed by the laws of the State of Tennessee.

Executed at Lebanon, Tennessee this 7 day of October, 02.

 

     

WILSON BANK AND TRUST

Lebanon, Tennessee

/s/ Becky F. Taylor       /s/ Elmer Richerson                                                Pres.

Witness

      Title
/s/ Becky F. Taylor       /s/ James Randall Clemons

Witness

      James Randall Clemons

Exhibit 10.21

AMENDED AND RESTATED

LIFE INSURANCE

ENDORSEMENT METHOD SPLIT DOLLAR PLAN

AGREEMENT

 

Insurer:

   Tennessee Farmers

Policy Number:

   174539 & 200570

Bank:

   Wilson Bank & Trust

Insured:

   H. Elmer Richerson

Relationship of Insured to Bank:

   Executive

The respective rights and duties of the Bank and the Insured in the above-referenced policy shall be pursuant to the terms set forth below:

This Agreement shall supersede the Life Insurance Endorsement Method Split Dollar Plan Agreement originally effective the 30 th day of March, 1995, and shall constitute the entire agreement of the parties pertaining to this particular Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement.

 

I. DEFINITIONS

Refer to the policy contract for the definition of all terms in this Agreement.

 

II. POLICY TITLE AND OWNERSHIP

Title and ownership shall reside in the Bank for its use and for the use of the Insured all in accordance with this Agreement. The Bank alone may, to the extent of its interest, exercise the right to borrow or withdraw on the policy cash values. Where the Bank and the Insured (or assignee, with the consent of the Insured) mutually agree to exercise the right to increase the coverage under the subject Split Dollar policy, then, in such event, the rights, duties and benefits of the parties to such increased coverage shall continue to be subject to the terms of this Agreement.

 

III. BENEFICIARY DESIGNATION RIGHTS

The Insured (or assignee) shall have the right and power to designate a beneficiary or beneficiaries to receive the Insured’s share of the proceeds payable upon the death of the Insured, and to elect and change a payment option for such beneficiary, subject to any right or interest the Bank may have in such proceeds, as provided in this Agreement.

 

IV. PREMIUM PAYMENT METHOD

The Bank shall pay an amount equal to the planned premiums and any other premium payments that might become necessary to keep the policy in force.


V. TAXABLE BENEFIT

Annually the Insured will receive a taxable benefit equal to the assumed cost of insurance as required by the Internal Revenue Service. The Bank (or its administrator) will report to the Insured the amount of imputed income each year on Form W-2 or its equivalent.

 

VI. DIVISION OF DEATH PROCEEDS

Subject to Paragraphs VII and IX herein, the division of the death proceeds of the policy is as follows:

 

  A. Upon the death of the Insured, the Insured’s beneficiary(ies), designated in accordance with Paragraph III, shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. The net-at-risk insurance portion is the total proceeds less the cash value of the policy.

 

  B. The Bank shall be entitled to the remainder of such proceeds.

 

  C. The Bank and the Insured (or assignees) shall share in any interest due on the death proceeds on a pro rata basis as the proceeds due each respectively bears to the total proceeds, excluding any such interest.

 

VII. DIVISION OF THE CASH SURRENDER VALUE OF THE POLICY

The Bank shall at all times be entitled to an amount equal to the policy’s cash value, as that term is defined in the policy contract, less any policy loans and unpaid interest or cash withdrawals previously incurred by the Bank and any applicable surrender charges. Such cash value shall be determined as of the date of surrender or death as the case may be.

 

VIII. RIGHTS OF PARTIES WHERE POLICY ENDOWMENT OR ANNUITY ELECTION EXISTS

In the event the policy involves an endowment or annuity element, the Bank’s right and interest in any endowment proceeds or annuity benefits, on expiration of the deferment period, shall be determined under the provisions of this Agreement by regarding such endowment proceeds or the commuted value of such annuity benefits as the policy’s cash value. Such endowment proceeds or annuity benefits shall be considered to be like death proceeds for the purposes of division under this Agreement.

 

IX. TERMINATION OF AGREEMENT

This Agreement shall terminate upon the occurrence of any one of the following:

 

  A. The Insured shall terminate employment with the Bank for any reason other than death, disability (as defined in Paragraph 6 of the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement in effect at the time of said disability), or retirement (in accordance with Paragraph 3 of the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement in effect at said retirement).


  B. The Insured shall be discharged from employment with the Bank for cause. The term “for cause” shall mean gross negligence or willful misconduct, the commission of a felony or gross-misdemeanor involving moral turpitude, fraud, dishonesty, embezzlement, willful violation of any law or any other behavior or act that results in any adverse effect on the Bank as may be determined by the Bank in its sole discretion; or

 

  C. Surrender, lapse, or other termination of the Policy by the Bank.

Upon such termination, the Insured (or assignee) shall have a fifteen (15) day option to receive from the Bank an absolute assignment of the policy in consideration of a cash payment to the Bank, whereupon this Agreement shall terminate. Such cash payment referred to hereinabove shall be the greater of:

 

  A. The Bank’s share of the cash value of the policy on the date of such assignment, as defined in this Agreement; or

 

  B. The amount of the premiums that have been paid by the Bank prior to the date of such assignment.

If, within said fifteen (15) day period, the Insured fails to exercise said option, fails to procure the entire aforestated cash payment, or dies, then the option shall terminate and the Insured (or assignee) agees that all of the Insured’s rights, interest and claims in the policy shall terminate as of the date of the termination of this Agreement.

The Insured expressly agrees that this Agreement shall constitute sufficient written notice to the Insured of the Insured’s option to receive an absolute assignment of the policy as set forth herein.

Except as provided above, this Agreement shall terminate upon distribution of the death benefit proceeds in accordance with Paragraph VI above.

 

X. INSURED’S OR ASSIGNEE’S ASSIGNMENT RIGHTS

The Insured may not, without the written consent of the Bank, assign to any individual, trust or other organization, any right, title or interest in the subject policy nor any rights, options, privileges or duties created under this Agreement.

 

XI. AGREEMENT BINDING UPON THE PARTIES

This Agreement shall bind the Insured and the Bank, their heirs, successors, personal representatives and assigns.

 

XII. ERISA PROVISIONS

The following provisions are part of this Agreement and are intended to meet the requirements of the Employee Retirement Income Security Act of 1974 (“ERISA”):

 

  A. Named Fiduciary and Plan Administrator .

The “Named Fiduciary and Plan Administrator” of this Endorsement Method Split Dollar Agreement shall be Wilson Bank & Trust until its resignation or removal by the Board of Directors. As Named Fiduciary and Plan Administrator, the Bank shall be responsible for the management, control, and administration of this Split Dollar Plan as established herein. 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 any ministerial duties to qualified individuals.


  B. Funding Policy .

The funding policy for this Split Dollar Plan shall be to maintain the subject policy in force by paying, when due, all premiums required.

 

  C. Basis of Payment of Benefits .

Direct payment by the Insurer is the basis of payment of benefits under this Agreement, with those benefits in turn being based on the payment of premiums as provided in this Agreement.

 

  D. Claim Procedures .

Claim forms or claim information as to the subject policy can be obtained by contacting Benmark, Inc. (800-544-6079). When the Named Fiduciary has a claim which may be covered under the provisions described in the insurance policy, they should contact the office named above, and they will either complete a claim form and forward it to an authorized representative of the Insurer or advise the Named Fiduciary what further requirements are necessary. The Insurer will evaluate and make a decision as to payment. If the claim is payable, a benefit check will be issued in accordance with the terms of this Agreement.

In the event that a claim is not eligible under the policy, the Insurer will notify the Named Fiduciary of the denial pursuant to the requirements under the terms of the policy. If the Named Fiduciary is dissatisfied with the denial of the claim and wishes to contest such claim denial, they should contact the office named above and they will assist in making an inquiry to the Insurer. All objections to the Insurer’s actions should be in writing and submitted to the office named above for transmittal to the Insurer.

 

XIII. GENDER

Whenever in this Agreement words are used in the masculine or neuter gender, they shall be read and construed as in the masculine, feminine or neuter gender, whenever they should so apply.

 

XIV. INSURANCE COMPANY NOT A PARTY TO THIS AGREEMENT

The Insurer shall not be deemed a party to this Agreement, but will respect the rights of the parties as herein developed upon receiving an executed copy of this Agreement. Payment or other performance in accordance with the policy provisions shall fully discharge the Insurer from any and all liability.

 

XV. CHANGE OF CONTROL

Change of Control shall be deemed to be the cumulative transfer of more than fifty percent (50%) of the voting stock of the Bank from the date of this Agreement. For the purposes of this Agreement, transfers on account of death or gifts, transfers between family members, or transfers to a qualified retirement plan maintained by the Bank shall not be considered in determining whether there has been a Change of Control. Upon a Change of Control, if the Insured’s employment is subsequently terminated, except for cause, then the Insured shall be one hundred percent (100%) vested in the benefits promised in this Agreement.


XVI. AMENDMENT OR REVOCATION

It is agreed by and between the parties hereto that, during the lifetime of the Insured, this Agreement may be amended or revoked at any time or times, in whole or in part, by the mutual written consent of the Insured and the Bank.

 

XVII. EFFECTIVE DATE

The Effective Date of this Agreement shall be March 30, 1995.

 

XVIII. SEVERABILITY AND INTERPRETATION

If a provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nonetheless be enforceable according to their terms. Further, in the event that any provision is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to law and enforced as amended.

 

XIX. APPLICABLE LAW

The validity and interpretation of this Agreement shall be governed by the laws of the State of Tennessee.

Executed at Lebanon, Tennessee this 7 day of October, 02.

 

     

WILSON BANK AND TRUST

Lebanon, Tennessee

/s/ Becky F. Taylor

      /s/ Randall Clemons                                                CEO

Witness

      Title

/s/ Becky F. Taylor

      /s/ H. Elmer Richerson

Witness

      H. Elmer Richerson

Exhibit 10.22

AMENDED AND RESTATED

LIFE INSURANCE

ENDORSEMENT METHOD SPLIT DOLLAR PLAN

AGREEMENT

 

Insurer:    Tennessee Farmers
Policy Number:    201731
Bank:    Wilson Bank & Trust
Insured:    Lisa Pominski
Relationship of Insured to Bank:    Executive

The respective rights and duties of the Bank and the Insured in the above-referenced policy shall be pursuant to the terms set forth below:

This Agreement shall supersede the Life Insurance Endorsement Method Split Dollar Plan Agreement originally effective the 21st day of March, 2001, and shall constitute the entire agreement of the parties pertaining to this particular Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement.

 

I. DEFINITIONS

Refer to the policy contract for the definition of all terms in this Agreement.

 

II. POLICY TITLE AND OWNERSHIP

Title and ownership shall reside in the Bank for its use and for the use of the Insured all in accordance with this Agreement. The Bank alone may, to the extent of its interest, exercise the right to borrow or withdraw on the policy cash values. Where the Bank and the Insured (or assignee, with the consent of the Insured) mutually agree to exercise the right to increase the coverage under the subject Split Dollar policy, then, in such event, the rights, duties and benefits of the parties to such increased coverage shall continue to be subject to the terms of this Agreement.

 

III. BENEFICIARY DESIGNATION RIGHTS

The Insured (or assignee) shall have the right and power to designate a beneficiary or beneficiaries to receive the Insured’s share of the proceeds payable upon the death of the Insured, and to elect and change a payment option for such beneficiary, subject to any right or interest the Bank may have in such proceeds, as provided in this Agreement.

 

IV. PREMIUM PAYMENT METHOD

The Bank shall pay an amount equal to the planned premiums and any other premium payments that might become necessary to keep the policy in force.


V. TAXABLE BENEFIT

Annually the Insured will receive a taxable benefit equal to the assumed cost of insurance as required by the Internal Revenue Service. The Bank (or its administrator) will report to the Insured the amount of imputed income each year on Form W-2 or its equivalent.

 

VI. DIVISION OF DEATH PROCEEDS

Subject to Paragraphs VII and IX herein, the division of the death proceeds of the policy is as follows:

 

  A. Upon the death of the Insured, the Insured’s beneficiary(ies), designated in accordance with Paragraph III, shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. The net-at-risk insurance portion is the total proceeds less the cash value of the policy.

 

  B. The Bank shall be entitled to the remainder of such proceeds.

 

  C. The Bank and the Insured (or assignees) shall share in any interest due on the death proceeds on a pro rata basis as the proceeds due each respectively bears to the total proceeds, excluding any such interest.

 

VII. DIVISION OF THE CASH SURRENDER VALUE OF THE POLICY

The Bank shall at all times be entitled to an amount equal to the policy’s cash value, as that term is defined in the policy contract, less any policy loans and unpaid interest or cash withdrawals previously incurred by the Bank and any applicable surrender charges. Such cash value shall be determined as of the date of surrender or death as the case may be.

 

VIII. RIGHTS OF PARTIES WHERE POLICY ENDOWMENT OR ANNUITY ELECTION EXISTS

In the event the policy involves an endowment or annuity element, the Bank’s right and interest in any endowment proceeds or annuity benefits, on expiration of the deferment period, shall be determined under the provisions of this Agreement by regarding such endowment proceeds or the commuted value of such annuity benefits as the policy’s cash value. Such endowment proceeds or annuity benefits shall be considered to be like death proceeds for the purposes of division under this Agreement.

 

IX. TERMINATION OF AGREEMENT

This Agreement shall terminate upon the occurrence of any one of the following:

 

  A. The Insured shall terminate employment with the Bank for any reason other than death, disability (as defined in Paragraph 6 of the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement in effect at the time of said disability), or retirement (in accordance with Paragraph 3 of the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement in effect at said retirement).


  B. The Insured shall be discharged from employment with the Bank for cause. The term “for cause” shall mean gross negligence or willful misconduct, the commission of a felony or gross-misdemeanor involving moral turpitude, fraud, dishonesty, embezzlement, willful violation of any law or any other behavior or act that results in any adverse effect on the Bank as may be determined by the Bank in its sole discretion; or

 

  C. Surrender, lapse, or other termination of the Policy by the Bank.

Upon such termination, the Insured (or assignee) shall have a fifteen (15) day option to receive from the Bank an absolute assignment of the policy in consideration of a cash payment to the Bank, whereupon this Agreement shall terminate. Such cash payment referred to hereinabove shall be the greater of:

 

  A. The Bank’s share of the cash value of the policy on the date of such assignment, as defined in this Agreement; or

 

  B. The amount of the premiums that have been paid by the Bank prior to the date of such assignment.

If, within said fifteen (15) day period, the Insured fails to exercise said option, fails to procure the entire aforestated cash payment, or dies, then the option shall terminate and the Insured (or assignee) agees that all of the Insured’s rights, interest and claims in the policy shall terminate as of the date of the termination of this Agreement.

The Insured expressly agrees that this Agreement shall constitute sufficient written notice to the Insured of the Insured’s option to receive an absolute assignment of the policy as set forth herein.

Except as provided above, this Agreement shall terminate upon distribution of the death benefit proceeds in accordance with Paragraph VI above.

 

X. INSURED’S OR ASSIGNEE’S ASSIGNMENT RIGHTS

The Insured may not, without the written consent of the Bank, assign to any individual, trust or other organization, any right, title or interest in the subject policy nor any rights, options, privileges or duties created under this Agreement.

 

XI. AGREEMENT BINDING UPON THE PARTIES

This Agreement shall bind the Insured and the Bank, their heirs, successors, personal representatives and assigns.

 

XII. ERISA PROVISIONS

The following provisions are part of this Agreement and are intended to meet the requirements of the Employee Retirement Income Security Act of 1974 (“ERISA”):

 

  A. Named Fiduciary and Plan Administrator .

The “Named Fiduciary and Plan Administrator” of this Endorsement Method Split Dollar Agreement shall be Wilson Bank & Trust until its resignation or removal by the Board of Directors. As Named Fiduciary and Plan Administrator, the Bank shall be responsible for the management, control, and administration of this Split Dollar Plan as established herein. 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 any ministerial duties to qualified individuals.


  B. Funding Policy .

The funding policy for this Split Dollar Plan shall be to maintain the subject policy in force by paying, when due, all premiums required.

 

  C. Basis of Payment of Benefits .

Direct payment by the Insurer is the basis of payment of benefits under this Agreement, with those benefits in turn being based on the payment of premiums as provided in this Agreement.

 

  D. Claim Procedures .

Claim forms or claim information as to the subject policy can be obtained by contacting Benmark, Inc. (800-544-6079). When the Named Fiduciary has a claim which may be covered under the provisions described in the insurance policy, they should contact the office named above, and they will either complete a claim form and forward it to an authorized representative of the Insurer or advise the Named Fiduciary what further requirements are necessary. The Insurer will evaluate and make a decision as to payment. If the claim is payable, a benefit check will be issued in accordance with the terms of this Agreement.

In the event that a claim is not eligible under the policy, the Insurer will notify the Named Fiduciary of the denial pursuant to the requirements under the terms of the policy. If the Named Fiduciary is dissatisfied with the denial of the claim and wishes to contest such claim denial, they should contact the office named above and they will assist in making an inquiry to the Insurer. All objections to the Insurer’s actions should be in writing and submitted to the office named above for transmittal to the Insurer.

 

XIII. GENDER

Whenever in this Agreement words are used in the masculine or neuter gender, they shall be read and construed as in the masculine, feminine or neuter gender, whenever they should so apply.

 

XIV. INSURANCE COMPANY NOT A PARTY TO THIS AGREEMENT

The Insurer shall not be deemed a party to this Agreement, but will respect the rights of the parties as herein developed upon receiving an executed copy of this Agreement. Payment or other performance in accordance with the policy provisions shall fully discharge the Insurer from any and all liability.

 

XV. CHANGE OF CONTROL

Change of Control shall be deemed to be the cumulative transfer of more than fifty percent (50%) of the voting stock of the Bank from the date of this Agreement. For the purposes of this Agreement, transfers on account of death or gifts, transfers between family members, or transfers to a qualified retirement plan maintained by the Bank shall not be considered in determining whether there has been a Change of Control. Upon a Change of Control, if the Insured’s employment is subsequently terminated, except for cause, then the Insured shall be one hundred percent (100%) vested in the benefits promised in this Agreement.


XVI. AMENDMENT OR REVOCATION

It is agreed by and between the parties hereto that, during the lifetime of the Insured, this Agreement may be amended or revoked at any time or times, in whole or in part, by the mutual written consent of the Insured and the Bank.

 

XVII. EFFECTIVE DATE

The Effective Date of this Agreement shall be March 21, 2001.

 

XVIII. SEVERABILITY AND INTERPRETATION

If a provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nonetheless be enforceable according to their terms. Further, in the event that any provision is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to law and enforced as amended.

 

XIX. APPLICABLE LAW

The validity and interpretation of this Agreement shall be governed by the laws of the State of Tennessee.

Executed at Lebanon, Tennessee this 7 day of October, 02.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

/s/ Becky F. Taylor     /s/ Elmer Richerson                                          Pres.
Witness     Title
/s/ Becky F. Taylor     /s/ Lisa Pominski
Witness     Lisa Pominski

Exhibit 10.23

AMENDED AND RESTATED

LIFE INSURANCE

ENDORSEMENT METHOD SPLIT DOLLAR PLAN

AGREEMENT

 

Insurer:    Tennessee Farmers
Policy Number:    188386
Bank:    Wilson Bank & Trust
Insured:    Gary Whitaker
Relationship of Insured to Bank:    Executive

The respective rights and duties of the Bank and the Insured in the above-referenced policy shall be pursuant to the terms set forth below:

This Agreement shall supersede the Life Insurance Endorsement Method Split Dollar Plan Agreement originally effective the 30 th day of March, 1995, and shall constitute the entire agreement of the parties pertaining to this particular Amended and Restated Life Insurance Endorsement Method Split Dollar Plan Agreement.

 

I. DEFINITIONS

Refer to the policy contract for the definition of all terms in this Agreement.

 

II. POLICY TITLE AND OWNERSHIP

Title and ownership shall reside in the Bank for its use and for the use of the Insured all in accordance with this Agreement. The Bank alone may, to the extent of its interest, exercise the right to borrow or withdraw on the policy cash values. Where the Bank and the Insured (or assignee, with the consent of the Insured) mutually agree to exercise the right to increase the coverage under the subject Split Dollar policy, then, in such event, the rights, duties and benefits of the parties to such increased coverage shall continue to be subject to the terms of this Agreement.

 

III. BENEFICIARY DESIGNATION RIGHTS

The Insured (or assignee) shall have the right and power to designate a beneficiary or beneficiaries to receive the Insured’s share of the proceeds payable upon the death of the Insured, and to elect and change a payment option for such beneficiary, subject to any right or interest the Bank may have in such proceeds, as provided in this Agreement.

 

IV. PREMIUM PAYMENT METHOD

The Bank shall pay an amount equal to the planned premiums and any other premium payments that might become necessary to keep the policy in force.


V. TAXABLE BENEFIT

Annually the Insured will receive a taxable benefit equal to the assumed cost of insurance as required by the Internal Revenue Service. The Bank (or its administrator) will report to the Insured the amount of imputed income each year on Form W-2 or its equivalent.

 

VI. DIVISION OF DEATH PROCEEDS

Subject to Paragraphs VII and IX herein, the division of the death proceeds of the policy is as follows:

 

  A. Upon the death of the Insured, the Insured’s beneficiary(ies), designated in accordance with Paragraph III, shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. The net-at-risk insurance portion is the total proceeds less the cash value of the policy.

 

  B. The Bank shall be entitled to the remainder of such proceeds.

 

  C. The Bank and the Insured (or assignees) shall share in any interest due on the death proceeds on a pro rata basis as the proceeds due each respectively bears to the total proceeds, excluding any such interest.

 

VII. DIVISION OF THE CASH SURRENDER VALUE OF THE POLICY

The Bank shall at all times be entitled to an amount equal to the policy’s cash value, as that term is defined in the policy contract, less any policy loans and unpaid interest or cash withdrawals previously incurred by the Bank and any applicable surrender charges. Such cash value shall be determined as of the date of surrender or death as the case may be.

 

VIII. RIGHTS OF PARTIES WHERE POLICY ENDOWMENT OR ANNUITY ELECTION EXISTS

In the event the policy involves an endowment or annuity element, the Bank’s right and interest in any endowment proceeds or annuity benefits, on expiration of the deferment period, shall be determined under the provisions of this Agreement by regarding such endowment proceeds or the commuted value of such annuity benefits as the policy’s cash value. Such endowment proceeds or annuity benefits shall be considered to be like death proceeds for the purposes of division under this Agreement.

 

IX. TERMINATION OF AGREEMENT

This Agreement shall terminate upon the occurrence of any one of the following:

 

  A. The Insured shall terminate employment with the Bank for any reason other than death, disability (as defined in Paragraph 6 of the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement in effect at the time of said disability), or retirement (in accordance with Paragraph 3 of the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement in effect at said retirement).
 


  B. The Insured shall be discharged from employment with the Bank for cause. The term “for cause” shall mean gross negligence or willful misconduct, the commission of a felony or gross-misdemeanor involving moral turpitude, fraud, dishonesty, embezzlement, willful violation of any law or any other behavior or act that results in any adverse effect on the Bank as may be determined by the Bank in its sole discretion; or

 

  C. Surrender, lapse, or other termination of the Policy by the Bank.

Upon such termination, the Insured (or assignee) shall have a fifteen (15) day option to receive from the Bank an absolute assignment of the policy in consideration of a cash payment to the Bank, whereupon this Agreement shall terminate. Such cash payment referred to hereinabove shall be the greater of:

 

  A. The Bank’s share of the cash value of the policy on the date of such assignment, as defined in this Agreement; or

 

  B. The amount of the premiums that have been paid by the Bank prior to the date of such assignment.

If, within said fifteen (15) day period, the Insured fails to exercise said option, fails to procure the entire aforestated cash payment, or dies, then the option shall terminate and the Insured (or assignee) agees that all of the Insured’s rights, interest and claims in the policy shall terminate as of the date of the termination of this Agreement.

The Insured expressly agrees that this Agreement shall constitute sufficient written notice to the Insured of the Insured’s option to receive an absolute assignment of the policy as set forth herein.

Except as provided above, this Agreement shall terminate upon distribution of the death benefit proceeds in accordance with Paragraph VI above.

 

X. INSURED’S OR ASSIGNEE’S ASSIGNMENT RIGHTS

The Insured may not, without the written consent of the Bank, assign to any individual, trust or other organization, any right, title or interest in the subject policy nor any rights, options, privileges or duties created under this Agreement.

 

XI. AGREEMENT BINDING UPON THE PARTIES

This Agreement shall bind the Insured and the Bank, their heirs, successors, personal representatives and assigns.

 

XII. ERISA PROVISIONS

The following provisions are part of this Agreement and are intended to meet the requirements of the Employee Retirement Income Security Act of 1974 (“ERISA”):

 

  A. Named Fiduciary and Plan Administrator .

The “Named Fiduciary and Plan Administrator” of this Endorsement Method Split Dollar Agreement shall be Wilson Bank & Trust until its resignation or removal by the Board of Directors. As Named Fiduciary and Plan Administrator, the Bank shall be responsible for the management, control, and administration of this Split Dollar Plan as established herein. 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 any ministerial duties to qualified individuals.


  B. Funding Policy .

The funding policy for this Split Dollar Plan shall be to maintain the subject policy in force by paying, when due, all premiums required.

 

  C. Basis of Payment of Benefits .

Direct payment by the Insurer is the basis of payment of benefits under this Agreement, with those benefits in turn being based on the payment of premiums as provided in this Agreement.

 

  D. Claim Procedures .

Claim forms or claim information as to the subject policy can be obtained by contacting Benmark, Inc. (800-544-6079). When the Named Fiduciary has a claim which may be covered under the provisions described in the insurance policy, they should contact the office named above, and they will either complete a claim form and forward it to an authorized representative of the Insurer or advise the Named Fiduciary what further requirements are necessary. The Insurer will evaluate and make a decision as to payment. If the claim is payable, a benefit check will be issued in accordance with the terms of this Agreement.

In the event that a claim is not eligible under the policy, the Insurer will notify the Named Fiduciary of the denial pursuant to the requirements under the terms of the policy. If the Named Fiduciary is dissatisfied with the denial of the claim and wishes to contest such claim denial, they should contact the office named above and they will assist in making an inquiry to the Insurer. All objections to the Insurer’s actions should be in writing and submitted to the office named above for transmittal to the Insurer.

 

XIII. GENDER

Whenever in this Agreement words are used in the masculine or neuter gender, they shall be read and construed as in the masculine, feminine or neuter gender, whenever they should so apply.

 

XIV. INSURANCE COMPANY NOT A PARTY TO THIS AGREEMENT

The Insurer shall not be deemed a party to this Agreement, but will respect the rights of the parties as herein developed upon receiving an executed copy of this Agreement. Payment or other performance in accordance with the policy provisions shall fully discharge the Insurer from any and all liability.

 

XV. CHANGE OF CONTROL

Change of Control shall be deemed to be the cumulative transfer of more than fifty percent (50%) of the voting stock of the Bank from the date of this Agreement. For the purposes of this Agreement, transfers on account of death or gifts, transfers between family members, or transfers to a qualified retirement plan maintained by the Bank shall not be considered in determining whether there has been a Change of Control. Upon a Change of Control, if the Insured’s employment is subsequently terminated, except for cause, then the Insured shall be one hundred percent (100%) vested in the benefits promised in this Agreement.


XVI. AMENDMENT OR REVOCATION

It is agreed by and between the parties hereto that, during the lifetime of the Insured, this Agreement may be amended or revoked at any time or times, in whole or in part, by the mutual written consent of the Insured and the Bank.

 

XVII. EFFECTIVE DATE

The Effective Date of this Agreement shall be March 30, 1995.

 

XVIII. SEVERABILITY AND INTERPRETATION

If a provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nonetheless be enforceable according to their terms. Further, in the event that any provision is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to law and enforced as amended.

 

XIX. APPLICABLE LAW

The validity and interpretation of this Agreement shall be governed by the laws of the State of Tennessee.

Executed at Lebanon, Tennessee this 7 day of October, 02.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

/s/ Becky F. Taylor     /s/ Elmer Richerson                                              Pres.
Witness     Title
/s/ Becky F. Taylor     /s/ Gary Whitaker
Witness     Gary Whitaker

Exhibit 10.24

LIFE INSURANCE

ENDORSEMENT METHOD SPLIT DOLLAR PLAN

AGREEMENT

 

Insurer:    Tennessee Farmers Life Insurance Company
Policy Number:    000229637
Bank:    Wilson Bank & Trust
Insured:    John C. McDearman, III
Relationship of Insured to Bank:    Executive

The respective rights and duties of the Bank and the Insured in the above-referenced policy shall be pursuant to the terms set forth below:

 

I. DEFINITIONS

Refer to the policy contract for the definition of all terms in this Agreement.

 

II. POLICY TITLE AND OWNERSHIP

Title and ownership shall reside in the Bank for its use and for the use of the Insured all in accordance with this Agreement. The Bank alone may, to the extent of its interest, exercise the right to borrow or withdraw on the policy cash values. Where the Bank and the Insured (or assignee, with the consent of the Insured) mutually agree to exercise the right to increase the coverage under the subject Split Dollar policy, then, in such event, the rights, duties and benefits of the parties to such increased coverage shall continue to be subject to the terms of this Agreement.

 

III. BENEFICIARY DESIGNATION RIGHTS

The Insured (or assignee) shall have the right and power to designate a beneficiary or beneficiaries to receive the Insured’s share of the proceeds payable upon the death of the Insured, and to elect and change a payment option for such beneficiary, subject to any right or interest the Bank may have in such proceeds, as provided in this Agreement.

 

IV. PREMIUM PAYMENT METHOD

The Bank shall pay an amount equal to the planned premiums and any other premium payments that might become necessary to keep the policy in force.

 

V. TAXABLE BENEFIT

Annually the Insured will receive a taxable benefit equal to the assumed cost of insurance as required by the Internal Revenue Service. The Bank (or its administrator) will report to the Insured the amount of imputed income each year on Form W-2 or its equivalent.


VI. DIVISION OF DEATH PROCEEDS

Subject to Paragraphs VII and IX herein, the division of the death proceeds of the policy is as follows:

 

  A. Upon the death of the Insured while employed by the Bank, the Insured’s beneficiary(ies), designated in accordance with Paragraph III shall be entitled to an amount equal to one hundred percent (100%) of the net-at-risk insurance portion of the proceeds. Upon the death of the Insured subsequent to a termination of employment, said beneficiary(ies) shall be entitled to one hundred percent (100%) of the net-at risk insurance portion of the proceeds reduced according to the schedule listed in Exhibit 1 to the Wilson Bank and Trust Executive Salary Continuation Agreement. The Executive will be credited with a year of participation for each anniversary thereafter of the effective date of the Agreement as set forth in Paragraph 22 therein, for which the Executive remains in the employ of the Bank.

 

  B. The Bank shall be entitled to the remainder of such proceeds.

 

  C. The Bank and the Insured (or assignees) shall share in any interest due on the death proceeds on a pro rata basis as the proceeds due each respectively bears to the total proceeds, excluding any such interest.

 

VII. DIVISION OF THE CASH SURRENDER VALUE OF THE POLICY

The Bank shall at all times be entitled to an amount equal to the policy’s cash value, as that term is defined in the policy contract, less any policy loans and unpaid interest or cash withdrawals previously incurred by the Bank and any applicable surrender charges. Such cash value shall be determined as of the date of surrender or death as the case may be.

 

VIII. RIGHTS OF PARTIES WHERE POLICY ENDOWMENT OR ANNUITY ELECTION EXISTS

In the event the policy involves an endowment or annuity element, the Bank’s right and interest in any endowment proceeds or annuity benefits, on expiration of the deferment period, shall be determined under the provisions of this Agreement by regarding such endowment proceeds or the commuted value of such annuity benefits as the policy’s cash value. Such endowment proceeds or annuity benefits shall be considered to be like death proceeds for the purposes of division under this Agreement.

 

IX. TERMINATION OF AGREEMENT

This Agreement shall terminate upon the occurrence of any one of the following:

 

  A. The Insured shall terminate employment with the Bank for any reason other than death, disability (as defined in Paragraph 6 of the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement in effect at the time of said disability), or retirement (in accordance with Paragraph 3 of the Amended and Restated Wilson Bank and Trust Executive Salary Continuation Agreement in effect at said retirement).


  B. The Insured shall be discharged from employment with the Bank for cause. The term “for cause” shall mean gross negligence or willful misconduct, the commission of a felony or

gross-misdemeanor involving moral turpitude, fraud, dishonesty, embezzlement, willful violation of any law or any other behavior or act that results in any adverse effect on the Bank as may be determined by the Bank in its sole discretion; or

 

  C. Surrender, lapse, or other termination of the Policy by the Bank.

Upon such termination, the Insured (or assignee) shall have a fifteen (15) day option to receive from the Bank an absolute assignment of the policy in consideration of a cash payment to the Bank, whereupon this Agreement shall terminate. Such cash payment referred to hereinabove shall be the greater of:

 

  A. The Bank’s share of the cash value of the policy on the date of such assignment, as defined in this Agreement; or

 

  B. The amount of the premiums that have been paid by the Bank prior to the date of such assignment.

If, within said fifteen (15) day period, the Insured fails to exercise said option, fails to procure the entire aforestated cash payment, or dies, then the option shall terminate and the Insured (or assignee) agees that all of the Insured’s rights, interest and claims in the policy shall terminate as of the date of the termination of this Agreement.

The Insured expressly agrees that this Agreement shall constitute sufficient written notice to the Insured of the Insured’s option to receive an absolute assignment of the policy as set forth herein.

Except as provided above, this Agreement shall terminate upon distribution of the death benefit proceeds in accordance with Paragraph VI above.

 

X. INSURED’S OR ASSIGNEE’S ASSIGNMENT RIGHTS

The Insured may not, without the written consent of the Bank, assign to any individual, trust or other organization, any right, title or interest in the subject policy nor any rights, options, privileges or duties created under this Agreement.

 

XI. AGREEMENT BINDING UPON THE PARTIES

This Agreement shall bind the Insured and the Bank, their heirs, successors, personal representatives and assigns.

 

XII. ERISA PROVISIONS

The following provisions are part of this Agreement and are intended to meet the requirements of the Employee Retirement Income Security Act of 1974 (“ERISA”):

 

  A. Plan Administrator .

The “Plan Administrator” of this Endorsement Method Split Dollar Agreement shall be Wilson Bank & Trust until its resignation or removal by the Board of Directors. As Plan Administrator, the Bank shall be responsible for the management, control, and administration of this Split Dollar Plan as established herein. The Plan Administrator may delegate to others certain aspects of the management and operation responsibilities of the Plan, including the employment of advisors and the delegation of any ministerial duties to qualified individuals.


  B. Funding Policy .

The funding policy for this Split Dollar Plan shall be to maintain the subject policy in force by paying, when due, all premiums required.

 

  C. Basis of Payment of Benefits .

Direct payment by the Insurer is the basis of payment of benefits under this Agreement, with those benefits in turn being based on the payment of premiums as provided in this Agreement.

 

  D. Claim Procedures .

Claim forms or claim information as to the subject policy can be obtained by contacting Benmark, Inc. (800-544-6079). When the Named Fiduciary has a claim which may be covered under the provisions described in the insurance policy, they should contact the office named above, and they will either complete a claim form and forward it to an authorized representative of the Insurer or advise the named Fiduciary what further requirements are necessary. The Insurer will evaluate and make a decision as to payment. If the claim is payable, a benefit check will be issued in accordance with the terms of this Agreement.

In the event that a claim is not eligible under the policy, the Insurer will notify the Named Fiduciary of the denial pursuant to the requirements under the terms of the policy. If the Named Fiduciary is dissatisfied with the denial of the claim and wishes to contest such claim denial, they should contact the office named above and they will assist in making an inquiry to the Insurer. All objections to the Insurer’s actions should be in writing and submitted to the office named above for transmittal to the Insurer.

 

XIII. GENDER

Whenever in this Agreement words are used in the masculine or neuter gender, they shall be read and construed as in the masculine, feminine or neuter gender, whenever they should so apply.

 

XIV. INSURANCE COMPANY NOT A PARTY TO THIS AGREEMENT

The Insurer shall not be deemed a party to this Agreement, but will respect the rights of the parties as herein developed upon receiving an executed copy of this Agreement. Payment or other performance in accordance with the policy provisions shall fully discharge the Insurer from any and all liability.

 

XV. CHANGE OF CONTROL

Change of Control shall be deemed to be the cumulative transfer of more than fifty percent (50%) of the voting stock of the Bank from the date of this Agreement. For the purposes of this Agreement, transfers on account of death or gifts, transfers between family members, or transfers to a qualified retirement plan maintained by the Bank shall not be considered in determining whether there has been a Change of Control. Upon a Change of Control, if the Insured’s employment is subsequently terminated, except for cause, then the Insured shall be one hundred percent (100%) vested in the benefits promised in this Agreement.


XVI. AMENDMENT OR REVOCATION

It is agreed by and between the parties hereto that, during the lifetime of the Insured, this Agreement may be amended or revoked at any time or times, in whole or in part, by the mutual written consent of the Insured and the Bank.

 

XVII. EFFECTIVE DATE

The Effective Date of this Agreement shall be January 1, 2006.

 

XVIII. SEVERABILITY AND INTERPRETATION

If a provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nonetheless be enforceable according to their terms. Further, in the event that any provision is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to law and enforced as amended.

 

XIX. APPLICABLE LAW

The validity and interpretation of this Agreement shall be governed by the laws of the State of Tennessee.

Executed at Lebanon, Tennessee this 28 th day of July, 2006.

 

   

WILSON BANK AND TRUST

Lebanon, Tennessee

/s/ Becky F. Taylor     /s/ Elmer Richerson                                          Pres.
Witness     Title
/s/ Becky F. Taylor     /s/ John C. McDearman, III
Witness     John C. McDearman, III