AMENDMENT TO PEOPLES NATIONAL BANK SUPPLEMENTAL DIRECTOR RETIREMENT PLAN AGREEMENT FOR ALL NON-EMPLOYEE DIRECTORS OF THE COMPANY
EXHIBIT
10.10
AMENDMENT
TO
PEOPLES
NATIONAL BANK
FOR
ALL
NON-EMPLOYEE DIRECTORS OF THE COMPANY
THIS
AMENDMENT TO PEOPLES NATIONAL BANK SUPPLEMENTAL DIRECTOR RETIREMENT PLAN
AGREEMENT (“AMENDMENT”) is made and entered into this 30th
day of
December, 2004, by and between PEOPLES
NATIONAL BANK, a
national association having a place of business at ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Bank"), and all Non-Employee Directors
of
the Company,
("Director").
WITNESSETH:
WHEREAS,
the
Bank
and the Director entered into a Supplemental Director Retirement Plan Agreement
on December 3, 2004 (the “Supplemental Director Retirement Plan Agreement”)
which is attached hereto.
WHEREAS,
the
Corporation and the Director desire to amend the Supplement Director Retirement
Plan Agreement.
NOW
THEREFORE, in
consideration of the mutual covenants and agreements set forth herein and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Bank and the Director agree as follows:
1. Section
1.2 of the Supplemental Director Retirement Plan Agreement is hereby amended
by
deleting the existing definition of “Change of Control” in its entirety and by
adding a new definition of “Change of Control” as follows:
1.2 “Change
of Control” means: a Change in the Ownership of Peoples or the Bank, (as defined
below), a Change in the Effective Control of Peoples or the Bank (as defined
below), or a Change in the Ownership of a Substantial Portion of the Assets
of
Peoples or the Bank, (as defined below).
(a) Change
in the Ownership of Peoples or the Bank.
A
Change in the Ownership of Peoples or the Bank occurs on the date that any
one
person, or more than one person acting as a group (as defined below), acquires
ownership of stock of Peoples or the Bank that, together with stock held by
such
person or group, constitutes more than 50 percent of the total fair market
value
or total voting power of the stock of Peoples or the Bank. However, if any
one
person, or more than one person acting as a group, is considered to own more
than 50 percent of the total fair market value or total voting power of the
stock of Peoples or the Bank, the acquisition of additional stock by the same
person or persons is not considered to cause a Change in the Ownership of
Peoples or the Bank. An increase in the percentage of stock owned by any one
person, or persons acting as a group, as a result of a transaction in which
Peoples or the Bank acquires its stock in exchange for property will be treated
as an acquisition of stock for these purposes. A change in ownership of Peoples
or the Bank only occurs when there is a transfer or issuance of stock of Peoples
or the Bank and the stock remains outstanding after the
transaction.
(b) Change
in Effective Control of Peoples or the Bank.
A
Change in Effective Control of Peoples or the Bank occurs only on the date
that
either:
(i) Any
one
person, or more than one person acting as a group (as defined below), acquires
(or has acquired during the 12-month period ending on the date of the most
recent acquisition by such person or persons) ownership of stock of Peoples
or
the Bank possessing 35 percent or more of the total voting power of the stock
of
Peoples or the Bank; or
(ii) A
majority of members of Peoples’ Board of Directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of Peoples’ Board of Directors prior to the date of the
appointment or election.
If
any
one person, or more than one person acting as a group, is considered to
effectively control Peoples or the Bank, the acquisition of additional control
of Peoples or the Bank by the same person or persons is not considered to cause
a Change in the Effective Control of Peoples or the Bank.
(c) Change
in Ownership of a Substantial Portion of Peoples’ or the Bank’s
Assets.
A Change
in Ownership of a Substantial Portion of Peoples’ or the Bank’s Assets occurs on
the date that any one person, or more than one person acting as a group (as
defined below), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
Peoples or the Bank that have a total gross fair market value equal to or more
than 40 percent of the total gross fair market value of all of the assets of
Peoples or the Bank immediately prior to such acquisition or acquisitions.
For
this purpose, gross fair market value means the value of assets of Peoples
or
the Bank, or the value of the assets being disposed of, determined without
regard to any liabilities associated with such assets.
There
is
no Change in Control under this Paragraph 1.2(c) if there is a transfer of
assets to an entity that is:
(i) A
shareholder of Peoples or the Bank (immediately before the asset transfer)
in
exchange for or with respect to its stock;
(ii) An
entity, 50 percent or more of the total value or voting power of which is owned,
directly or indirectly, by Peoples or the Bank;
(iii) A
person,
or more than one person acting as a group, that owns, directly or indirectly,
50
percent or more of the total value or voting power of all the outstanding stock
of Peoples or the Bank; or
(iv) An
entity, at least 50 percent of the total value or voting power of which is
owned, directly or indirectly, by a person described in (i), (ii) or (iii)
above.
(d) For
purposes of this Paragraph 1.2, persons will not be considered to be acting
as a
group solely because they purchase or own stock or purchase assets of Peoples
or
the Bank at the same time. However, persons will be considered to be acting
as a
group if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of assets, or similar transaction, such
shareholder is considered to be acting as a group with other shareholders in
a
corporation only to the extent of the ownership in that corporation prior to
the
transaction giving rise to the change and not with respect to the ownership
interest in the other corporation.
2. Section
1.3 of the Supplemental Director Retirement Plan Agreement is hereby amended
by
deleting the existing definition of “Disability” in its entirety and by adding a
new definition of “Disability”, as follows:
1.3 “Disability”
means, if the Director is covered by a Bank sponsored disability policy, total
disability as defined in such policy without regard to any waiting period,
provided that the definition of disability applied under such policy complies
with the requirement of Section 1.409A-3(g)(4) of the Treasury regulations.
If
the Director is not covered by such policy, Disability means that the Director
is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months. As a condition to any benefit, the Bank may require the Director
to submit to such physical or mental evaluations and tests as the Bank’s Board
of Directors deems appropriate.
3. The
Supplemental Executive Retirement Plan Agreement is hereby amended by adding
a
new Section 2.5 to read as follows:
2.5 Key
Employee. Notwithstanding anything in this Article 2 to the contrary, in the
event Executive is determined to be a Key Employee, as that term is defined
in
Section 409A of the Code and the regulations promulgated thereunder, payments
to
the Executive under Sections 2.1. 2.2 or 2.3 of this Agreement, other than
payments on account of Disability or death, shall begin not earlier than the
first day of the seventh month following termination of employment. This will
result in the aggregate amount of the first seven months of payments payable
on
the delayed first payment date, normal monthly payments will continue
thereafter. For purposes of the foregoing, the date upon which a determination
is made as to the Key Employee status of the Executive, the Identification
Date
(as defined in Section 409A of the Code and the regulations promulgated
thereunder) shall be December 31.
4. Article
5
of the Supplemental Director Retirement Plan Agreement is hereby amended by
adding a new sentence to the end of Article 5 to read as follows:
Notwithstanding
the foregoing, this Agreement may be amended or terminated only if such
amendment or termination does not violate any of the provisions of Section
409A
of the Code and the regulations issued thereunder.
5. Except
as
hereinabove amended, the Supplemental Director Retirement Plan Agreement shall
remain unchanged and in full force and effect.
IN
WITNESS WHEREOF, Director and a duly authorized Bank officer have signed
this
Agreement.
ATTEST: PEOPLES
NATIONAL BANK ("BANK")
_____________________ By:______________________
Secretary
Chairman of the Board
WITNESS:
_____________________
_______________________
"Non-
Employee Director"