exv10w7



 





Exhibit 10.7




SECOND AMENDMENT

TO THE

MERCANTILE TRUST & SAVINGS BANK

EXECUTIVE EMPLOYEE SALARY CONTINUATION AGREEMENT

DATED DECEMBER 8, 1994

AND AMENDED APRIL 26, 2004

FOR

TED T. AWERKAMP




     THIS SECOND AMENDMENT is adopted this 18th day of December 2007, effective as of January 1,
2005, by and between Mercantile Trust & Savings Bank, an Illinois corporation (the “Company”), and
Ted T. Awerkamp (the “Participant”).



     The Company and Participant executed the Executive Employee Salary Continuation Agreement
effective as of December 8, 1994, and executed a First Amendment on April 26, 2004 (the
“Agreement”).



     The undersigned hereby amend the Agreement for the purpose of bringing the Agreement into
compliance with Section 409A of the Internal Revenue Code. Therefore, the following changes shall
be made:



     The following Section G.1 shall be added to the Agreement immediately following Section G of
Article 1:




	G.1	 	Specified Employee – “Specified Employee” means an employee who at the time of
Termination of Employment is a key employee of the Company, if any stock of the Company is
publicly traded on an established securities market or otherwise. For purposes of this
Agreement, an employee is a key employee if the employee meets the requirements of Code
Section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder
and disregarding section 416(i)(5)) at any time during the 12-month period ending on December
31 (the “identification period”). If the employee is a key employee during an identification
period, the employee is treated as a key employee for purposes of this Agreement during the
twelve (12) month period that begins on the first day of April following the close of the
identification period.





     Section H of Article 1 of the Agreement shall be deleted in its entirety and replaced by the
following:




	H.	 	Termination of Employment – “Termination of Employment” means termination of the
Participant’s employment with the Company for reasons other than death. Whether a termination
of employment has occurred is determined based on whether the facts and circumstances indicate
that the Company and the Participant reasonably anticipated that no further services would be
performed after a certain date or that the level of bona fide services the Participant would
perform after such date (whether as an employee or as an independent contractor) would
permanently decrease to no more than twenty percent




 









 












	 	 	(20%) of the average level of bona fide services performed (whether as an employee or an
independent contractor) over the immediately preceding thirty-six (36) month period (or the
full period of services to the Company if the Participant has been providing services to the
Company less than thirty-six (36) months).





     Sections 3.1 and 3.2 of the Agreement shall be deleted in their entirety and replaced by the
following:




	3.1	 	Normal Retirement Benefit. Upon the Participant’s Termination of Employment on or
after the Normal Retirement Date, the Company shall pay to the Participant, as compensation
for services rendered prior to such date, the sum of Sixty-Eight Thousand Nine Hundred Dollars
($68,900) per year, payable in monthly installments of Five Thousand Seven Hundred Forty-One
Dollars and Sixty-Six Cents ($5,741.66) each, commencing on the first day of the month
coincident with or next following the date of Termination of Employment and continuing on the
first day of each month thereafter for the life of the Participant or the Participant’s
beneficiary per Section 3.5(b).
	 
	3.2	 	Early Retirement Benefit. Upon the Participant’s Termination of Employment on or
after the Early Retirement Date but prior to the Normal Retirement Date, the Company shall pay
to the Participant, as compensation for services rendered prior to such date, monthly payments
equal to one-twelfth (1/12th) the “Immediate Annual Benefit” for the Participant’s
Age at the time of Termination of Employment as described in the attached Schedule A. Such
payments shall commence on the first day of the month coincident with or next following the
date of Termination of Employment, and shall continue on the first day of each month
thereafter for a period of fifteen (15) years, but in any event until a minimum of one hundred
eighty (180) payments have been made to the Participant or the Participant’s beneficiary per
Section 3.5(b).





     Sections 3.4, 3.4(a), 3.4(b) and 3.4(c) of the Agreement shall be deleted in their entirety
and replaced by the following:



3.4 Other Terminations of Employment.




	 	(a)	 	Voluntary Termination of Employment Prior to the Early Retirement Date.
Upon the Participant’s voluntary Termination of Employment prior to reaching the Early
Retirement Date, for reasons other than death, the Company shall pay the vested
“Year-End Accrual Balance,” if any, for the Participant’s Age at the time of voluntary
Termination of Employment as described in the attached Schedule A, and the Participant
shall have no further right to receive any additional benefit hereunder. The Company
shall pay the benefit to the Participant in one hundred eighty (180) equal monthly
installments commencing on the first day of the month coincident with or next following
the date of Termination of Employment.
	 
	 	(b)	 	Involuntary Termination of Employment Prior to the Early Retirement Date
Other Than Because of Death or Discharge for Cause. Upon the Participant’s
involuntary Termination of Employment prior to reaching the Early Retirement Date, for
reasons other than death or Discharge for Cause, the Company shall pay




 









 






	 	 	 	the vested “Immediate Annual Benefit,” if any, for the Participant’s Age at the time
of involuntary Termination of Employment as described in the attached Schedule A.
The Company shall pay the annual benefit to the Participant in twelve (12) equal
monthly installments commencing on the first day of the month coincident with or
next following the date of Termination of Employment. The annual benefit shall be
paid to the Participant for fifteen (15) years, but in any event until a minimum of
one hundred eighty (180) payments have been made to the Participant or the
Participant’s beneficiary per Section 3.5(b). For purposes of this Section 3.4(b)
only, the Participant shall be deemed to have incurred an Involuntary Termination of
Employment if the Participant quits employment as a result of the Company
significantly lessening either the Participant’s title, duties, responsibilities,
base salary or altering situs of employment without the Participant’s consent. The
Participant’s base salary shall be deemed to be significantly lessened if any
cutback is imposed except as part of an overall cutback applied proportionately to
all of the Company’s management employees or if the Participant fails to receive
periodic increases substantially proportionate to and coincident with the increases
granted to management employees.






	 	(c)	 	Termination of Employment At or After A Change in Control. If the
Participant incurs a Termination of Employment prior to reaching the Early Retirement
Date, for reasons other than death, Disability, or Discharge for Cause, but on or after
the occurrence of a Change in Control, and in connection with such change, the
Participant’s title, duties, responsibilities, or base salary is significantly lessened
or the Participant’s situs of employment is changed without the Participant’s consent,
the Company shall pay to the Participant, whether or not fully vested, an amount equal
to the “Year-end Accrual Balance” for the Age of the Participant at such Termination
of Employment as described in the attached Schedule A. For purposes hereof, the
standards set forth in Section 3.4(b) above with respect to what constitutes a
significant lessening of base salary shall apply. The Company shall pay the annual
benefit to the Participant in twelve (12) equal monthly installments commencing on the
first day of the month coincident with or next following the date of Termination of
Employment. The annual benefit shall be paid to the Participant for fifteen (15)
years, but in any event until a minimum of one hundred eighty (180) payments have been
made to the Participant or the Participant’s beneficiary per Section 3.5(b).





     The following Sections 3.7, 3.8 and 3.9 shall be added to the Agreement immediately following
Section 3.6:




	3.7	 	Restriction on Timing of Distributions.  Notwithstanding any provision of this
Agreement to the contrary, if the Participant is considered a Specified Employee, the
provisions of this Section 3.7 shall govern all distributions hereunder. If benefit
distributions which would otherwise be made to the Participant due to a Termination of
Employment are limited because the Participant is a Specified Employee, then such
distributions shall not be made during the first six (6) months following Termination of
Employment. Rather, any distribution which would otherwise be paid to the Participant during
such period




 









 






	 	 	shall be accumulated and paid to the Participant in a lump sum on the first day of the
seventh month following the Termination of Employment. All subsequent distributions shall
be paid in the manner specified.
	 
	3.8	 	Distributions Upon Income Inclusion Under Section 409A of the Code. If, pursuant to
Code Section 409A, the Federal Insurance Contributions Act or other state, local or foreign
tax, the Participant becomes subject to tax on the amounts deferred hereunder, then the
Company may make a limited distribution to the Participant in accordance with the provisions
of Treasury Regulations Section 1.409A-3(j)(vi), (vii) and (xi). Any such distribution will
decrease the Participant’s benefit hereunder.
	 
	3.9	 	Change in Form or Timing of Distributions. All changes in the form or timing of
distributions hereunder must comply with the following requirements. The changes:






	 	(a)	 	may not accelerate the time or schedule of any distribution,
except as provided in Code Section 409A and the regulations thereunder;
	 
	 	(b)	 	must, for benefits distributable under Sections 3.1, 3.2,
3.4(a), 3.4(b) and 3.4(c), delay the commencement of distributions for a
minimum of five (5) years from the date the first distribution was originally
scheduled to be made; and
	 
	 	(c)	 	must take effect not less than twelve (12) months after the
election is made.





     Article 11 of the Agreement shall be deleted in its entirety and replaced by the following:




	11.	 	Amendments and Termination.
	 
	11.1	 	Amendments. The Company may amend this Agreement unilaterally by written action.
	 
	11.2	 	Plan Termination Generally. The Company may terminate this Agreement unilaterally by
written action. The benefit hereunder shall be the amount the Company has accrued with
respect to the Company’s obligations hereunder as of the date the Agreement is terminated.
Except as provided in Section 11.3, the termination of this Agreement shall not cause a
distribution of benefits under this Agreement. Rather, after such termination benefit
distributions will be made at the earliest distribution event permitted under Article 3.
	 
	11.3	 	Plan Terminations Under Section 409A. Notwithstanding anything to the contrary in
Section 11.2, if this Agreement terminates in the following circumstances:






	 	(a)	 	Within thirty (30) days before or twelve (12) months after a
change in the ownership or effective control of the Company, or in the
ownership of a substantial portion of the assets of the Company as described in
Section 409A(a)(2)(A)(v)) of the Code, provided that all distributions are made
no later than twelve (12) months following such termination of the Agreement
and further provided that all the Company’s arrangements




 









 






	 	 	 	which are substantially similar to the Agreement are terminated so the
Participant and all participants in the similar arrangements are required to
receive all amounts of compensation deferred under the terminated
arrangements within twelve (12) months of the such terminations;






	 	(b)	 	Upon the Company’s dissolution or with the approval of a
bankruptcy court provided that the amounts deferred under the Agreement are
included in the Participant’s gross income in the latest of (i) the calendar
year in which the Agreement terminates; (ii) the calendar year in which the
amount is no longer subject to a substantial risk of forfeiture; or (iii) the
first calendar year in which the distribution is administratively practical; or
	 
	 	(c)	 	Upon the Company’s termination of this and all other
arrangements that would be aggregated with this Agreement pursuant to Treasury
Regulations Section 1.409A-1(c) if the Participant participated in such
arrangements (“Similar Arrangements”), provided that (i) the termination and
liquidation does not occur proximate to a downturn in the financial health of
the Company, (ii) all termination distributions are made no earlier than twelve
(12) months and no later than twenty-four (24) months following such
termination, and (iii) the Company does not adopt any new arrangement that
would be a Similar Arrangement for a minimum of three (3) years following the
date the Company takes all necessary action to irrevocably terminate and
liquidate the Agreement;






The Company may distribute the amount the Company has accrued with respect to the Company’s
obligations hereunder, determined as of the date of the termination of the Agreement, to the
Participant in a lump sum subject to the above terms.



     The following Article 17 shall be added to the Agreement immediately following Article 16:




	17.	 	Compliance with Code Section 409A. This Agreement shall be interpreted and
administered consistent with Code Section 409A.




 









 











     IN WITNESS OF THE ABOVE, the Company and the Participant hereby consent to this Second
Amendment.



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Participant:	 	Mercantile Trust & Savings Bank	 	 
	 
	 	 	 	 	 	 
	/s/ Ted T. Awerkamp

	 	By
	 	/s/ H. Blaine Strock	 	 
	 

	 	 	 	 	 	 
	Ted T. Awerkamp	 	Title: President/CEO