EXHIBIT 10.5
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
FOR
XXXXX XXXXXX
THIS AGREEMENT, (this "Agreement"), is made and entered into this
____ day of April, 2003, by and between Columbia County Farmers National Bank, a
Pennsylvania banking institution having a place of business at 000 Xxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, Pennsylvania ("Bank"), and XXXXX XXXXXX ("Executive"), an
individual residing at 000 Xxxx Xxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxx, XX 00000.
INTRODUCTION
To encourage Executive to remain an employee of Bank, Bank is
willing to provide to Executive with supplemental retirement benefits or to
provide an endorsement split dollar from the three life insurance policies on
Executive's life. Bank will pay the benefits and the life insurance premiums
from its general assets.
Article 1
GENERAL DEFINITIONS
The following terms shall have the meanings specified:
1.2 "Affiliate" means any company that controls, is controlled by, or is
under common control with Bank. For this Agreement, company includes any bank,
corporation, general or limited partnership, limited liability companies,
association or similar organization, business trust, or any other trust.
1.2 "Change in Control" means any of the following:
(A) (A) a merger, consolidation or division involving Bank, (B) a sale,
exchange, transfer or other disposition of substantially all of the
assets of Bank, or (C) a purchase by Bank of substantially all of
the assets of another entity, unless (y) such merger, consolidation,
division, sale, exchange, transfer, purchase or disposition is
approved in advance by seventy-five percent(75%) or more of the
members of the Board of Directors of Bank who are not interested in
the transaction and (z) a majority of the members of the Board of
Directors of the legal entity resulting from or existing after any
such transaction and of the Board of Directors of such entity's
parent corporation, if any, are former members of the Board of
Directors of Bank; or
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(B) any "person" (as such term is used in Sections 13(d) and 14(d) of
Securities Exchange Act of 1934 (the "Exchange Act")), other than
Bank or any "person" who on the date hereof is a director or officer
of Bank, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities
of Bank
(C) representing twenty-five (25%) percent or more of the combined
voting power of Bank's then outstanding securities, or
(D) during any period of two (2) consecutive years during the term of
Executive's employment under this Agreement, individuals who at the
beginning of such period constitute the Board of Directors of Bank
cease for any reason to constitute at least a majority thereof,
unless the election of each director who was not a director at the
beginning of such period has been approved in advance by directors
representing at least two-thirds of the directors then in office who
were directors at the beginning of the period; or
(E) any other change in control of Bank similar in effect to any of the
foregoing.
Notwithstanding anything else to the contrary set forth in this Agreement, if
(i) an agreement is executed by Bank providing for any of the transactions or
events constituting a Change in Control as defined herein, and the agreement
subsequently expires or is terminated without the transaction or event being
consummated, and (ii) Executive's employment did not terminate during the period
after the agreement and prior to such expiration or termination, for purposes of
this Agreement it shall be as though such agreement was never executed and no
Change in Control event shall be deemed to have occurred as a result of the
execution of such agreement.
1.3 "Disability" means Executive suffering a physical or mental
impairment, which, in the judgment of a physician satisfactory to Bank, prevents
Executive from performing all of the essential job functions of Executive's
position on a full time basis with or without reasonable accommodation and
without posing a direct threat to himself or others, for a period of one hundred
eighty days. As a condition to any benefits, Bank may require Executive to
submit to such physical or mental evaluations and tests as Bank's Board of
Directors deems appropriate.
1.4 "Bank" or "Corporation" means Columbia County Farmers National Bank.
1.5 "Insured" means XXXXX XXXXXX.
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1.6 "Insurer" means the Life Insurance Companies.
1.7 "Policy" means Northwestern Mutual policy no. 16 323 329, Southland
Life Insurance Company policy no. 06 6002 6509, and Massachusetts Mutual policy
no. 0051555.
1.8 "Net Death Proceeds" means the death proceeds of the Policy, in the
aggregate amount as provided in the attached endorsements.
1.9 "Normal Retirement Age" means 60 years old.
1.10 "Code" means the Internal Revenue Code of 1986, as amended.
1.11 "Vesting" means the accrual of the benefits over a period of time.
Article 2
Lifetime Benefits
2.2 Normal Retirement Benefit. If Executive terminates employment on or
after the Normal Retirement Age for reasons other than death, Bank shall pay to
Executive the benefit described in this Section 2.1.
2.1.1 Amount of Benefit. The benefit under this Section 2.1 is $50,000.00
per year.
2.1.2. Payment of Benefit. Bank shall pay the benefit to Executive on the
first day of the month following the Executive's birthday, commencing with the
month following the month in which Executive reaches Normal Retirement Age and
continuing for 15 years.
2.2. Early Termination Benefit. If Executive's employment is terminated
before the Normal Retirement Age absent a Change of Control and for reasons of
Executive's voluntary termination of employment, non-renewal of the Executive
Employment Agreement, Disability, or if Bank terminates Executive's employment
for reasons other than for Cause, Bank shall pay to Executive the benefit
described in this Section 2.2.
2.2.3 Amount of Benefit. The Executive's benefit under this Section 2.2 is
the amount accrued for the benefit set forth in Section 2.1, as calculated in
accordance with GAAP and reflected in the accounting records of Bank, on the
date of termination of Executive's employment. The determination of the amount
of this benefit by the Bank's independent auditors shall be final, binding and
conclusive on the parties.
2.2.4 Payment of Benefit. Bank shall pay, pro rata, the benefit to
Executive on the first day of the month following Executive's birthday,
commencing with the month following the month in which Executive reaches Normal
Retirement Age and continuing for 15 years.
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2.6. Change of Control Benefit. If Executive is actively employed by Bank
at the time of a Change of Control, Bank shall pay to Executive the benefit
described in Section 2.1.
2.6.1. Payment of Benefit. Bank shall pay the benefit to Executive on the
first day of the month following Executive's birthday, commencing with the month
following the month in which Executive reaches Normal Retirement Age and
continuing for 15 years.
2.7. Exclusive Benefits. Any Lifetime Benefits paid under this Agreement
are exclusive. If Lifetime Benefits are paid, no Death Benefits will be paid
under this Agreement or the appended Endorsements.
2.8. Vesting Schedule. The Executive shall be subject to the following
vesting schedule as to the retirement benefit.
Prior to 5 years - 0%
After 5 years - 50%
After 8 years - 75%
After 10 years - 100%
2.6 Change of Control. This Agreement shall be binding upon and inure to
the benefit of Bank, its successors and assigns, and Executive, Executive's
heirs, executors, administrators and legal representatives. Bank shall not merge
or consolidate with any bank or other third party ("entity"), or reorganize,
unless and until such succeeding or continuing entity agrees to assume and
discharge the obligations of Bank under this Agreement.
Article 3
Death Benefits
3.2. Death Before Normal Retirement Age. If Executive dies while actively
employed by Bank before reaching the Normal Retirement Age, Executive's
beneficiary shall receive from the Insurer the Endorsement Split Dollar benefit
described in this Section 3.1.
3.1.1. Amount of Benefit. The benefit under Section 3.1 is a death benefit
in the amount of THREE HUNDRED FIFTY- FIVE THOUSAND ($355,000.00) DOLLARS.
3.1.2. Payment of Benefit. The benefit shall be paid to the beneficiary by
Insurer, as provided in the Policy and in the split agreement and as reflected
in the beneficiary designation.
3.1.3. Death After Normal Retirement Age, But Before Receipt of Lifetime
Benefits. If Executive dies after reaching the Normal Retirement Age, but before
receiving any Lifetime Benefit payments under this Agreement, the death benefit
identified in Section 3.1 shall be paid in accordance with Section 3.1.2. If
such death benefit is paid, no Lifetime Benefits under this Agreement will be
paid.
3.1.4. Death Following Normal Retirement Age, But After Receipt of
Lifetime Benefit.
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In the event Executive Dies after Normal Retirement Age and after the Executive
has begun to receive any Lifetime Benefits from Columbia County Farmers National
Bank, Columbia County Farmers National Bank shall continue to pay those
benefits, as provided in Article 2, and the Executive, Executive's estate or
beneficiaries shall have no right to receive a death benefit and the rights
under the endorsements are terminated.
3.1.5. Death After Change of Control. If Executive dies following a Change
of Control, but prior to the commencement of the Lifetime Benefit payments,
provided Executive was actively employed at the time of the Change of Control,
Executive's beneficiary shall be paid the death benefit described in Section 3.1
in accordance with Section 3.1.2. If such death benefit is paid, no Lifetime
Benefits under this Agreement will be paid.
3.1.6. Payment of Benefit. The benefit shall be paid to the beneficiary by
Insurer in accordance with Section 3.1.2.
3.2 Endorsement. All death benefits paid under this Agreement shall be in
accordance with and as designated by the appended endorsement split dollar
agreement.
Article 4
POLICY OWNERSHIP/INTERESTS
4.3. Bank Ownership. Bank is the sole owner of the Policy and shall have
the right to exercise all incidents of ownership. Bank shall be the beneficiary
of the death proceeds of the Policy remaining after Executive's interest is
determined according to Section 4.2 below.
4.4. Executive's Interest. Subject to the provisions of Article 10,
Executive shall have the right to designate the beneficiary of the Net Death
Proceeds. Executive shall also have the right to elect and change settlement
options that may be permitted.
4.3. Comparable Coverage. Upon execution of this Agreement, Bank shall
maintain the Policy in full force and effect and in no event shall Bank amend,
terminate or otherwise abrogate Executive's interest in the Policy, unless Bank
replaces the Policy with comparable insurance policy to cover the benefit
provided under this Agreement. The Policy or any comparable policy shall be
subject to the claims of Bank's creditors.
4.4. Option to Purchase. Bank shall not sell, surrender or transfer
ownership of the Policy while this Agreement is in effect without first giving
Executive or Executive's transferee the option to purchase the Policy for a
period of 60 days from written notice of such intention. The purchase price
shall be an amount equal to the cash surrender value of the Policy. This
provision shall not apply if the Agreement has terminated pursuant to Article 9.
Article 5
Premiums
5.3 Premium Payment. Bank shall pay any premiums due on the Policy.
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5.4 Imputed Income. Bank shall impute income to Executive in accordance
with applicable Internal Revenue Service guidelines.
Article 6
ASSIGNMENT
Executive may assign without consideration all interests in the Policy and in
this Agreement to any person, entity or trust. In the event Executive
transfers all of the Executive's interest in the Policy, then all of
Executive's interest in the Policy and in the Agreement shall be vested in
Executive's transferee, who shall be substituted as a party hereunder and
Executive shall have no further interest in the Policy or in this Agreement.
ARTICLE 7
Insurer
The Insurer shall be bound only by the terms of the Policy. Any payments
the Insurer makes or actions it takes in accordance with the Policy shall fully
discharge it from all claims, suits and demands of all entities or persons. The
Insurer shall not be bound by or be deemed to have notice of the provisions of
this Agreement.
ARTICLE 8
Claims Procedure
8.1 Claims Procedure. Bank shall notify any person or entity that makes a
claim under this Agreement (the "Claimant") in writing, within 90 days of
Claimant's written application for benefits, of his or her eligibility for
benefits or ineligibility for benefits under this Agreement. If Bank determines
that the Claimant is not eligible for benefits or full benefits, the notice
shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of this Agreement on which the denial is based, (3)
a description of any additional information or material necessary for the
Claimant to perfect his or her claim, and a description of why it is needed, and
(4) an explanation of this Agreement's claims review procedure and other
appropriate information as to the steps to be taken if the Claimant wishes to
have the claim reviewed. If Bank determines that there are special circumstances
requiring additional time to make a decision, Bank shall notify the Claimant of
the special circumstances and the date by
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which a decision is expected to be made, and may extend the time for up to an
additional 90 days.
8.2 Review Procedure. If the Claimant is determined by Bank not to be
eligible for benefits, or if the Claimant believes that he or she is entitled to
greater or different benefits, the Claimant shall have the opportunity to have
such claim reviewed by Bank by filing a petition for review with Bank within 60
days after receipt of the notice issued by Bank. Said petition shall state the
specific reasons which the Claimant believes entitle him or her position to Bank
verbally or in writing, and the Claimant (or counsel) shall have the right to
review the pertinent documents. Bank shall notify the Claimant of its decision
in writing within the 60-day period, stating specifically the basis of its
decision, referencing the specific provisions of the Agreement on which the
decision is based. If, because of the need for a hearing, the 60-day period is
not sufficient, the decision may be deferred for up to another 60-day period at
the election of Bank, but notice of this deferral shall be given to the
Claimant.
ARTICLE 9
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by Bank and Executive, except as provided in Article 10.
ARTICLE 10
General Limitations
10.1 Excess Parachute or Golden Parachute Payment. Notwithstanding any
provision of this Agreement to the contrary, any benefit provided under this
Agreement, when added to all other amounts or benefits provided to or on behalf
of Executive in connection with his termination of employment, would result in
the imposition of an excise tax under Code Section 4999, such payments shall be
retroactively (if necessary) reduced to the extent necessary to avoid such
excise tax imposition or shall be forfeited to the extent the benefit would be
prohibited golden parachute payment pursuant to 12 C.F.R. Section 359.2 and for
which the appropriate federal banking agency had not given written consent to
pay pursuant to 12 C.F.R. Section 359.4. Upon written notice to Executive,
together with calculations of Bank's independent auditors, Executive shall remit
to Bank the amount of the reduction plus such interest as may be necessary to
avoid the imposition of such excise tax. Notwithstanding the foregoing or any
other provision of this Agreement to the contrary, if any portion of the amount
herein payable to the Executive is determined to be non-deductible pursuant to
the regulations promulgated under Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), the Corporation shall be required only to pay to
Executive the amount determined to be deductible under Section 280G.
10.2 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the benefit provided under this Agreement shall be
forfeited if Bank terminates Executive's employment for:
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(A) Executive's conviction of or plea of guilty or nolo contendere
to a felony, a crime of falsehood or a crime involving moral
turpitude, or the actual incarceration of Executive for a
period of thirty (30) consecutive days or more;
(B) Executive's failure to follow the good faith lawful
instructions of the Board of Directors of Bank with respect to
its operations, after written notice from Bank and a failure
to cure such violation within sixty (60) days of said written
notice;
(C) Executive's willful failure to substantially perform
Executive's duties for Bank, other than a failure resulting
from Executive's incapacity because of physical or mental
illness, as provided in subsection (d) of this Section 4,
after written notice from Bank and a failure to cure such
violation within sixty (60) days of said written notice;
(D) Executive's intentional violation of the provision of this
Agreement, after written notice from Bank and a failure to
cure such violation within sixty (60) days of said written
notice;
(E) dishonesty of Executive in the performance of his duties;
(F) gross misconduct on the part of Executive as determined by an
affirmative vote of eighty percent (80%) of the disinterested
members of the Board of Directors which brings public
discredit to Bank;
(G) Executive's breach of fiduciary duty involving personal
profit; or
(H) Executive's willful violation of any law, rule or regulation
governing banks or bank officers or any final cease and desist
order issued by a bank regulatory authority, unless
Executive's conduct that lead to the violation was authorized
by or occurred at the instruction of Bank's Board of
Directors.
10.4 Removal. Notwithstanding any provision of this Agreement to the
contrary, Bank shall not pay any benefit under this Agreement if Executive is
subject to a final removal or prohibition order issued by an appropriate federal
banking pursuant to Section 8(e) of the Federal Deposit Insurance Act.
10.4 Competition After Termination of Employment. Executive shall forfeit
his right to any further benefits if Executive, without the prior written
consent of Bank, violates the following described restrictive covenants.
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10.4.2 Covenant Not to Compete. Executive hereby acknowledges and
recognizes the highly competitive nature of the business of Bank and accordingly
agrees that, during, for and after the term of his employment with Bank and
until Executive reaches the age of sixty-five (65), Executive shall not, except
as otherwise permitted in writing by Bank:
(i) be engaged, directly or indirectly, either for his own
account or as agent, consultant, employee, partner,
officer, director, proprietor, investor (except as an
investor owning less than 5% of the stock of a publicly
owned company) or otherwise of any person, firm,
corporation or enterprise engages in (1) the banking
(including bank or financial institution holding
company), insurance or financial services industry, or
(2) any other activity in which Bank is engaged during
the Employment Period, and remain so engaged at the end
of the Employment Period, in any area in which, at any
time during the Employment Period or at the date of
termination of Executives exclusively performs all such
activity outside of said twenty (20) mile area (the
"Non-Competition Area"); or
(ii) provide financial or other assistance to any person,
firm, corporation, or enterprise engages in (1) the
banking (including bank or financial institution holding
company), insurance or financial services industry, or
(2) any other activity in which Bank is engaged during
the Employment Period, in the Non-Competition Area; or
(iii) if employment in a capacity provided in (i) and (ii),
solicit current customers, during the term of this
Agreement, of Bank in the Non-Competition Area; or
(iv) solicit employees of Bank who are employed during the
term of this Agreement.
10.4.3 Judicial Remedies. In the event of a breach or threatened breach by
Executive of any provision of these restrictions, Executive recognizes the
substantial and immediate harm that a breach or threatened breach will impose
upon Bank or any of its subsidiaries or Affiliates, and further recognizes that
in such event monetary damages may be inadequate to fully protect Bank or any of
its subsidiaries or Affiliates. Accordingly, in the event of a breach or
threatened breach of this Agreement, Executive consents to Bank's or any of its
subsidiaries or Affiliates' entitlement to such preliminary, interlocutory,
temporary or permanent injunctive, or any other equitable relief, protecting and
fully enforcing Bank's or any of its subsidiaries or Affiliates' rights
hereunder and preventing Executive from further breaching any of his obligations
set forth herein. Executive expressly waives any requirement, based on any
statute, rule of procedure, or other source, that Bank or any of its
subsidiaries or Affiliates post a bond as a condition of obtaining any of the
above-described remedies. Nothing herein shall be construed as prohibiting
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Bank or any of its subsidiaries or Affiliates from pursuing any other remedies
available to Bank or any of its subsidiaries or Affiliates at law or in equity
for such breach or threatened breach, including the recovery of damages from
Executive. Executive expressly acknowledges and agrees that: (i) the
restrictions set forth in Section 10.4.1 are reasonable, in terms of scope,
duration, geographic area, and otherwise, (ii) the protections afforded Bank or
any of its subsidiaries or Affiliates in Section 10.4.1 are necessary to protect
its legitimate business interest, (iii) the restrictions set forth in Section
10.4.1 will not be materially adverse to Executive's employment with Bank, and
(iv) his agreement to observe such restrictions forms a material part of the
consideration for this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered on the day and year above written.
ATTEST: COLUMBIA COUNTY FARMERS
NATIONAL BANK
/s/ J. Xxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
----------------------------------- ------------------------------------
SECRETARY CHAIRMAN
WITNESS:
/s/ Xxxxx Xxxxx /s/ Xxxxx X. Xxxxxx
----------------------------------- ------------------------------------
XXXXX XXXXX XXXXX XXXXXX
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ENDORSEMENT SPLIT DOLLAR POLICY FOR
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
Insured: XXXXX XXXXXX
Northwestern Mutual policy no. 16 323 329
Southland Life Ins. Co. policy no. 06 6002 6509
Massachusetts Mutual policy no. 0051555
Supplementing and amending the application for insurance to Northwestern Mutual,
Southland Life Ins. Co., and Massachusetts Mutual, ("Insurer"), the applicant
requests and directs that:
BENEFICIARIES
1. Columbia County Farmers National Bank, a Pennsylvania Banking
institution located at 000 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000. Pennsylvania
("Bank") shall be the direct beneficiary of death proceeds of the Policy
remaining after the Insured's interest is determined according to paragraph (2)
below.
2. The Insured shall have the right to designate the beneficiary of
XXXXX XXXXXX the death proceeds in the amount of THREE HUNDRED FIFTY FIVE
THOUSAND ($355,000.00) DOLLARS.
OWNERSHIP
3. The Owner of the policy shall be Bank. The Owner shall have all
ownership rights in the Policy except as may be specifically granted to the
Insured or the Insured's transferee in paragraph (4) of this endorsement.
4. The Insured or the Insured's transferee shall have the right to
assign his or her rights and interests in the Policy with respect to that
portion of the death proceeds designated in paragraph (2) of this endorsement,
and to exercise all settlement options with respect to such death proceeds. Any
transferee's rights shall be subject to this Endorsement.
5. Notwithstanding the provisions of paragraph (4) above, the
Insured or the Insured's transferee shall have no rights or interests in the
Policy with respect to that portion of the death proceeds designated in
paragraph (2) of this endorsement if the Insured does not comply with the
Article 10 of the Columbia County Farmers National Bank Supplemental Executive
Retirement Plan Agreement for XXXXX XXXXXX, unless agreed to in writing by Bank
and the Insured.
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MODIFICATION OF ASSIGNMENT PROVISIONS OF THE POLICY
6. Upon the death of the Insured, the interest of any Owner of the
Policy designated in (3) above shall be limited to the portion of the proceeds
described in paragraph (1) above.
OWNER'S AUTHORITY
7. The Insurer is hereby authorized to recognize the Owner's claim
to rights hereunder without investigating the reason for any action taken by the
Owner, including its statement of the amount of premiums it has paid on the
Policy. The signature of the Owner shall be sufficient for the exercise of any
rights under this Endorsement and the receipt of the Owner for any sums received
by it shall be a full discharge and release therefore to the Insurer.
Owner accepts and agrees to this split dollar endorsement. Signed at
Bloomsburg, Pennsylvania, this 15th day of April, 2003.
COLUMBIA COUNTY FARMERS
NATIONAL BANK
By: Xxxx X. Xxxxxxxx
--------------------------------------
CHAIRMAN
Insured accepts and agrees to the foregoing and, subject to the
rights of the Owner as stated above, designates
_______________________________________________________ as primary beneficiary
and ___________________________________________________ as secondary beneficiary
of the portion of the proceeds described in (1) above. Signed at _____________,
Pennsylvania, this 15th day of April, 2003.
INSURED:
/s/ Xxxxx X. Xxxxxx
--------------------------------------
XXXXX XXXXXX
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AMENDMENT TO
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
FOR
XXXXX XXXXXX
THIS AMENDMENT, (this "Amendment"), is made and entered into this 2nd day
of May, 2003, by and between Columbia County Farmers National Bank, a
Pennsylvania banking institution having a place of business at 000 Xxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, Pennsylvania ("Bank"), and Xxxxx Xxxxxx ("Executive"), an
individual residing at 00 Xxx Xxxx, Xxxxxxxxxxx, XX 00000.
INTRODUCTION
Bank has entered into an Supplemental Executive Retirement Plan Agreement,
(the "Agreement"), with Executive, effective April 1, 2003. Bank and Executive
have agreed to modify the Agreement to provide for a revised schedule of vesting
of benefits.
NOW THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Paragraph 2.5 of the Agreement is hereby modified to provide for the
following vesting schedule as to the retirement benefit, from the effective date
of the Agreement.
Prior to 5 years - 0%
After 5 years - 50%
Each additional year of service
After 5 years - 10% additional
After 10 years - 100%
2. Except as modified herein, the Agreement shall continue in full force
and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered on the day and year above written.
ATTEST: COLUMBIA COUNTY FARMERS
NATIONAL BANK
/s/ J. Xxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------- --------------------------------
SECRETARY CHAIRMAN
WITNESS:
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx Xxxxxx
--------------------------------------- --------------------------------------
XXXXX XXXXXX
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