EXHIBIT 10.16
THE CORTLAND SAVINGS AND BANKING COMPANY
AMENDED SALARY CONTINUATION AGREEMENT
THIS AMENDED SALARY CONTINUATION AGREEMENT (this "Agreement") is made and
entered into as of this ________ day of _________________ , 2002, by and between
The Cortland Savings and Banking Company, an Ohio-chartered, FDIC-insured member
bank with its main offices in Cortland, Ohio (the "Bank") and Xxxxxx X. Xxxxx
(the "Executive").
WHEREAS, the Executive has contributed substantially to the success of the
Bank and its parent company, Cortland Bancorp, an Ohio corporation, and the Bank
desires that the Executive continue in its employ,
WHEREAS, to encourage the Executive to remain an employee of the Bank, the
Bank is willing to provide salary continuation benefits to the Executive,
payable out of the Bank's general assets,
WHEREAS, none of the conditions or events included in the definition of the
term "golden parachute payment" that is set forth in section 18(k)(4)(A)(ii) of
the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal
Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)]
exists or, to the best knowledge of the Bank, is contemplated insofar as the
Bank is concerned,
WHEREAS, the Bank and the Executive entered into a Salary Continuation
Agreement dated as of March 1, 2001, providing for specified retirement benefits
for the Executive after termination of his employment,
WHEREAS, regulations promulgated under ERISA (the Employees Retirement
Income Security Act) that became effective on January 1, 2002 govern the
regulation of claims procedures contained in the Executive's form of Salary
Continuation Agreement,
WHEREAS, Xxxxx/Xxxxxx Consulting, a benefits consulting firm involved in
the design and administration of the Executive's Salary Continuation Agreement,
is recommending to its clients that the definition of disability should not
create unwanted burdens under the revised ERISA regulations effective January 1,
2002,
WHEREAS, the revised disability definition in this Agreement, as well as
the revised Claims and Review Procedure in Article 6 in this document, were
drafted by ERISA counsel retained by Xxxxx/Xxxxxx Consulting, and
WHEREAS, the Bank and the Executive have negotiated and agreed to
miscellaneous changes in the terms and conditions of the March 1, 2001 Salary
Continuation Agreement, including but not limited to revision of the definition
of "disability" and updating of the claims and review provisions of Article 6.
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 words and phrases shall have
the meanings specified --
1.1 "Accrual Balance" means the amount reflected in Schedule A, which is
the amount required to be accrued by the Bank according to generally accepted
accounting principles to account for benefits that may become payable to the
Executive under this Agreement.
1.2 "Change in Control" means any of the following events occur:
(a) Acquisition of Significant Stock Ownership: a report on Schedule 13D or
another form or schedule (other than Schedule 13G) is filed or is required to be
filed under Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, if
the schedule discloses that the filing person or persons acting in concert has
or have become the
beneficial owner of 25% or more of a class of Cortland Bancorp's voting
securities (but this clause (a) shall not apply to beneficial ownership of
voting shares of Cortland Bancorp held by the Bank or another subsidiary of
Cortland Bancorp in a fiduciary capacity). A Change in Control of Cortland
Bancorp shall not be deemed to have occurred solely because acquisition by
Cortland Bancorp of its own voting securities reduces the number of shares
outstanding, causing a person's beneficial ownership to exceed 25% of Cortland
Bancorp's voting securities; provided that, if after such acquisition by
Cortland Bancorp such person becomes the beneficial owner of additional Cortland
Bancorp voting securities, increasing the percentage of outstanding Cortland
Bancorp voting securities beneficially owned by such person, a Change in Control
of Cortland Bancorp shall be deemed to have occurred,
(b) Acquisition of Control under Federal Banking Law. a person acquires the
power to direct Cortland Bancorp's management or policies, if Cortland Bancorp's
board of directors determines that such acquisition constitutes or will
constitute an acquisition of control of Cortland Bancorp for the purposes of the
Bank Holding Company Act or the Change in Bank Control Act and the regulations
thereunder,
(c) Change in Board Composition: during any period of two consecutive
years, individuals who constitute Cortland Bancorp's board of directors at the
beginning of the two-year period cease for any reason to constitute at least a
majority thereof, provided, however, that -- for purposes of this clause (c) --
each director who is first elected by the board (or first nominated by the board
for election by stockholders) by a vote of at least two-thirds (2/3) of the
directors who were directors at the beginning of the two-year period shall be
deemed to have been a director at the beginning of the two-year period,
(d) Merger: Cortland Bancorp merges into or consolidates with another
corporation, or merges another corporation into Cortland Bancorp, and as a
result less than 50% of the total voting power of the surviving corporation
immediately after the merger or consolidation is held by persons who were the
stockholders of Cortland Bancorp's voting securities immediately before the
merger or consolidation, or
(e) Sale of Assets: Cortland Bancorp sells to a third party all or
substantially all of Cortland Bancorp's assets. For purposes of this Agreement,
sale of all or substantially all of Cortland Bancorp's assets includes sale of
the Bank alone.
1.3 "Disability" means the Executive suffers a sickness, accident or injury
that is determined by the carrier of any individual or group disability
insurance policy covering the Executive, or by the Social Security
Administration, to be a disability rendering the Executive totally and
permanently disabled. At the Bank's request, the Executive must submit to the
Bank proof of the carrier's or Social Security Administration's determination.
1.4 "Early Retirement Age" means the Executive's 65th birthday.
1.5 "Early Termination" means Termination of Employment before Normal
Retirement Age for reasons other than death, Disability, Termination for Cause,
or within one year after a Change in Control.
1.6 "Early Termination Date" means the month, day, and year in which Early
Termination occurs.
1.7 "Effective Date" means March 1, 2001.
1.8 "Normal Retirement Age" means the Executive's 70th birthday.
1.9 "Normal Retirement Date" means the later of the Normal Retirement Age
or Termination of Employment.
1.10 "Person" means an individual, corporation, partnership, trust,
association, joint venture, pool, syndicate, sole proprietorship, unincorporated
organization or other entity.
1.11 "Plan Year" means a twelve-month period commencing on March 1 and
ending on the last day of February of each year. The initial Plan Year shall
commence on the Effective Date of this Agreement.
1.12 "Termination for Cause" means the Bank terminates the Executive's
employment for any one of the following reasons --
(a) gross negligence or gross neglect of duties,
(b) commission of a felony or commission of a misdemeanor involving moral
turpitude, or
(c) fraud, disloyalty, dishonesty, or willful violation of any law or
significant Bank policy committed in connection with the Executive's employment
and resulting in an adverse effect on the Bank.
1.13 "Termination of Employment" means that the Executive ceases to be
employed by the Bank for any reason whatsoever, other than because of a leave of
absence approved by the Bank. For purposes of this Agreement, if there is a
dispute over the employment status of the Executive or the date of the
Executive's Termination of Employment, the Bank shall have the sole and absolute
right to decide the dispute, unless a Change in Control shall have occurred.
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement Benefit. For Termination of Employment on or after
the Normal Retirement Age for reasons other than death, the Bank shall pay to
the Executive the benefit described in this Section 2.1 instead of any other
benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1 is
$60,000. In its sole discretion, the Bank's board of directors may
increase the annual benefit under this Section 2.1.1, but any increase
shall require recalculation of Schedule A.
2.1.2 Payment of Benefit. The Bank shall pay the annual benefit to the
Executive in 12 equal monthly installments, payable on the last day of
each month, beginning with the month after the Executive's Normal
Retirement Date. The annual benefit shall be paid to the Executive for
15 years.
2.2 Early Termination Benefit. For Early Termination on or after the
Executive's Early Retirement Age, the Bank shall pay to the Executive the
benefit described in this Section 2.2 instead of any other benefit under this
Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the Early
Termination annual benefit amount set forth in Schedule A for the Plan
Year ending immediately before the Early Termination Date (except
during the first Plan Year, the benefit is the amount set forth for
Plan Year 1). If the Bank's board of directors increases the annual
benefit under Section 2.1.1, the increase shall require recalculation
of the Early Termination annual benefit on Schedule A.
2.2.2 Payment of Benefit. The Bank shall pay the Early Termination annual
benefit to the Executive in 12 equal monthly installments, payable on
the last day of each month, beginning with the month after the Normal
Retirement Age. The annual benefit shall be paid to the Executive for
15 years.
2.3 Disability Benefit. For Termination of Employment because of Disability
before the Normal Retirement Age, the Bank shall pay to the Executive the
benefit described in this Section 2.3 instead of any other benefit under this
Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is the
Disability annual benefit amount set forth in Schedule A for the Plan
Year ending immediately before the date on which Termination of
Employment occurs (except during the first Plan Year, the benefit is
the amount set forth for Plan
Year 1). If the Bank's board of directors increases the annual benefit
under Section 2.1.1, the increase shall require recalculation of the
Disability annual benefit on Schedule A.
2.3.2 Payment of Benefit. The Bank shall pay the Disability annual benefit
amount to the Executive in 12 equal monthly installments, payable on
the last day of each month, beginning with the month after the Normal
Retirement Age. The annual benefit shall be paid to the Executive for
15 years.
2.4 Change-in-Control Benefit. If the Executive's employment with Cortland
Bancorp or the Bank terminates within one year after a Change in Control
(excepting Termination for Cause), the Bank shall pay to the Executive the
benefit described in this Section 2.4 instead of any other benefit under this
Agreement.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is the
Change-in-Control benefit set forth in Schedule A. If the Bank's board
of directors increases the annual benefit under Section 2.1.1, the
increase shall require recalculation of the Change-in-Control lump sum
benefit on Schedule A.
2.4.2 Payment of Benefit. The Bank shall pay the Change-in-Control benefit
to the Executive in one lump sum within 3 days after the Executive's
Termination of Employment.
2.5 Petition for Payment of Vested Normal Retirement Benefit, Vested Early
Termination Benefit or Vested Disability Benefit. If the Executive is entitled
to the normal retirement benefit provided by Section 2.1, the Early Termination
benefit provided by Section 2.2, or the Disability benefit provided by Section
2.3, the Executive may petition the board of directors to have the Accrual
Balance amount corresponding to that particular benefit paid to the Executive in
a single lump sum after (a) deduction of any normal retirement benefits, Early
Termination benefits, or Disability benefits already paid, and (b) addition of
interest at the rate of 8.0% on the Accrual Balance not yet paid for the period
from Termination of Employment to payment of the lump sum amount. The board of
directors shall have sole and absolute discretion about whether to pay the
remaining Accrual Balance in a lump sum. If the remaining Accrual Balance is
paid in a single lump sum, the Bank shall have no further obligations under this
Agreement.
2.6 Change-in-Control Payout of Vested Normal Retirement Benefit, Vested
Early Termination Benefit or Vested Disability Benefit Being Paid to the
Executive at the Time of a Change in Control. If a Change in Control occurs at
any time during the entire 15-year salary continuation benefit payment period
and if at the time of that Change in Control the Executive is receiving the
benefit provided by Section 2.1.2, Section 2.2.2, or Section 2.3.2, the Bank
shall pay the remaining salary continuation benefits to the Executive, his
beneficiaries, or estate in a lump sum within three days after the Change in
Control. The lump-sum payment due to the Executive, his beneficiaries, or estate
as a result of a Change in Control shall be an amount equal to the Accrual
Balance amount corresponding to that particular benefit then being paid to the
Executive, his estate, or beneficiaries under Section 2.1.2, Section 2.2.2, or
Section 2.3.2 after (a) deduction of any normal retirement benefits, Early
Termination benefits, or Disability benefits already paid, and (b) addition of
interest at the rate of 8.0% on the Accrual Balance not yet paid for the period
from Termination of Employment to payment of the lump sum amount.
2.7 Contradiction in Terms of Agreement and Schedule A. If there is a
contradiction in the terms of this Agreement and Schedule A attached hereto
concerning the benefits due under Section 2.2, 2.3, or 2.4 hereof, then the
actual amount of benefits prescribed by this Agreement shall control.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. If the Executive dies before the Normal
Retirement Age while in the active service of the Bank, instead of any other
benefit payable under this Agreement the Bank shall pay to the Executive's
beneficiary(ies) the benefit described in the Amended Split Dollar Agreement and
Endorsement attached to this Agreement as Addendum A.
3.2 Death During Benefit Period. If the Executive dies after benefit
payments under Article 2 have commenced but before receiving all such payments,
the Bank shall pay the remaining benefits to the Executive's beneficiary(ies) at
the same time and in the same amounts they would have been paid to the Executive
had the Executive survived. In that case, no death benefit shall be payable
under this Article 3.
3.3 Death After Termination of Employment But Before Benefit Payments
Commence. If the Executive is entitled to benefit payments under Article 2 but
dies before payments commence, the benefits shall be payable to the Executive's
beneficiary(ies), but payments shall commence on the last day of the month after
the date of the Executive's death.
3.4 Petition for Benefit Payments. If the Executive dies before receiving
any or all benefit payments to which he is entitled under Section 2.1, Section
2.2, or Section 2.3, respectively, the Executive's beneficiary(ies) or estate
may petition the board of directors to have the Accrual Balance corresponding to
that particular benefit paid to the Executive's beneficiary(ies) or estate in a
single lump sum after (a) deduction of any normal retirement benefits, Early
Termination benefits, or Disability benefits already paid, and (b) addition of
interest at the rate of 8.0% on the Accrual Balance not yet paid for the period
from the Executive's Termination of Employment to payment of the lump sum
amount. The board of directors shall have sole and absolute discretion about
whether to pay the remaining Accrual Balance in a lump sum. If the remaining
Accrual Balance is paid in a single lump sum, the Bank shall have no further
obligations under this Agreement.
3.5 Change-in-Control Payout of Vested Normal Retirement Benefit, Vested
Early Termination Benefit or Vested Disability Benefit Being Paid to the
Executive's Estate or Beneficiaries at the Time of a Change in Control. If a
Change in Control occurs at any time during the entire 15-year salary
continuation benefit payment period and if at the time of that Change in Control
the Executive's estate or beneficiary(ies) is receiving the benefit provided by
Section 2.1.2, Section 2.2.2, or Section 2.3.2, the Bank shall pay the remaining
salary continuation benefits to the Executive's beneficiary(ies) or estate in a
lump sum within three days after the Change in Control. The lump-sum payment due
to the Executive's beneficiary(ies) or estate as a result of a Change in Control
shall be an amount equal to the Accrual Balance amount corresponding to that
particular benefit then being paid to the Executive's estate or beneficiary(ies)
under Section 2.1.2, Section 2.2.2, or Section 2.3.2 after (a) deduction of any
normal retirement benefits, Early Termination benefits, or Disability benefits
already paid, and (b) addition of interest at the rate of 8.0% on the Accrual
Balance not yet paid for the period from Termination of Employment to payment of
the lump sum amount.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a beneficiary
by filing a written designation with the Bank. The Executive may revoke or
modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Executive and accepted by
the Bank during the Executive's lifetime. 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. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
4.2 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 Bank may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incapacitated
person or incapable person. The Bank may require proof of incapacity, minority
or guardianship as it may deem appropriate prior to distribution of the benefit.
Such distribution shall completely discharge the Bank from all liability with
respect to such benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the Bank shall not pay any benefit under this Agreement if
Termination of Employment is a result of Termination for Cause.
5.2 Suicide or Misstatement. The Bank shall not pay any benefit under this
Agreement if the Executive commits suicide within two years after the Effective
Date of this Agreement, or if the Executive has made any material misstatement
of fact on any application for life insurance purchased by the Bank.
5.3 Removal. If the Executive is removed from office or permanently
prohibited from participating in the conduct of the Bank's affairs by an order
issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement
shall terminate as of the effective date of the order.
5.4 Insolvency. If the Superintendent of Financial Institutions appoints
the Federal Deposit Insurance Corporation as receiver for the Bank pursuant to
Ohio Revised Code section 1125.20, all obligations under this Agreement shall
terminate as of the date of the Bank's declared insolvency, but vested rights of
the contracting parties shall not be affected.
5.5 FDIC Open-Bank Assistance. All obligations under this Agreement shall
be terminated, except to the extent determined that continuation of the contract
is necessary for the continued operation of the Bank, at the time the Federal
Deposit Insurance Corporation enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in section 13(c) of the
Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Any rights of the parties that
have already vested, however, shall not be affected by such action.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. A person or beneficiary ("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 --
6.1.1 Initiation - Written Claim. The claimant initiates a claim by
submitting to the Bank a written claim for the benefits.
6.1.2 Timing of Bank Response. The Bank shall respond to such claimant
within 90 days after receiving the claim. If the Bank determines that special
circumstances require additional time for processing the claim, the Bank can
extend the response period by an additional 90 days by notifying the claimant in
writing, prior to the end of the initial 90-day period, that an additional
period is required. The notice of extension must set forth the special
circumstances and the date by which the Bank expects to render its decision.
6.1.3 Notice of Decision. If the Bank denies part or all of the claim, the
Bank shall notify the claimant in writing of such denial. The Bank
shall write the notification in a manner calculated to be understood
by the claimant. The notification shall set forth --
6.1.3.1 The specific reasons for the denial,
6.1.3.2 A reference to the specific provisions of the Agreement on
which the denial is based,
6.1.3.3 A description of any additional information or material
necessary for the claimant to perfect the claim and an
explanation of why it is needed, 6.1.3.4 An explanation of the
Agreement's review procedures and the time limits applicable to
such procedures, and
6.1.3.5 A statement of the claimant's right to bring a civil action
under ERISA (Employees Retirement Income Security Act) Section
502(a) following an adverse benefit determination on review.
6.2 Review Procedure. If the Bank denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Bank of
the denial, as follows --
6.2.1 Initiation - Written Request. To initiate the review, the claimant,
within 60 days after receiving the Bank's notice of denial, must file
with the Bank a written request for review.
6.2.2 Additional Submissions - Information Access. The claimant shall then
have the opportunity to submit written comments, documents, records
and other information relating to the claim. The Bank shall also
provide the claimant, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other information
relevant (as defined in applicable ERISA regulations) to the
claimant's claim for benefits.
6.2.3 Considerations on Review. In considering the review, the Bank shall
take into account all materials and information the claimant submits
relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination.
6.2.4 Timing of Bank Response. The Bank shall respond in writing to such
claimant within 60 days after receiving the request for review. If the
Bank determines that special circumstances require additional time for
processing the claim, the Bank can extend the response period by an
additional 60 days by notifying the claimant in writing, prior to the
end of the initial 60-day period, that an additional period is
required. The notice of extension must set forth the special
circumstances and the date by which the Bank expects to render its
decision.
6.2.5 Notice of Decision. The Bank shall notify the claimant in writing of
its decision on review. The Bank shall write the notification in a
manner calculated to be understood by the claimant. The notification
shall set forth --
6.2.5.1 The specific reason for the denial,
6.2.5.2 A reference to the specific provisions of the Agreement on
which the denial is based,
6.2.5.3 A statement that the claimant is entitled to receive, upon
request and free of charge, reasonable access to, and copies of,
all documents, records and other information relevant (as defined
in applicable ERISA regulations) to the claimant's claim for
benefits, and
6.2.5.4 A statement of the claimant's right to bring a civil action
under ERISA Section 502(a).
ARTICLE 7
MISCELLANEOUS
7.1 Amendment and Termination. This Agreement may be amended or terminated
only by a written agreement signed by the Bank and the Executive.
7.2 Binding Effect. This Agreement shall bind the Executive and the Bank,
and their beneficiaries, survivors, executors, successors, administrators, 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 Bank, nor does it interfere with the Bank'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 Successors; Binding Agreement. By an assumption agreement in form and
substance satisfactory to the Executive, the Bank shall require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business or assets of the Bank to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Bank would be required to perform this Agreement if no such
succession had occurred. Failure of the Bank to obtain such assumption agreement
before effectiveness of any such succession shall be a breach of this Agreement
and shall entitle the Executive to the Change-in-Control benefit provided in
Section 2.4.
7.6 Tax Withholding. The Bank shall withhold any taxes that are required to
be withheld from the benefits provided under this Agreement.
7.7 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Ohio, except to the extent preempted by the
laws of the United States of America.
7.8 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Bank for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Bank to pay such
benefits. The rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors. Any insurance on the Executive's life is a general
asset of the Bank to which the Executive and beneficiary have no preferred or
secured claim.
7.9 Entire Agreement. This Agreement constitutes the entire agreement
between the Bank and the Executive as to the subject matter hereof. No rights
are granted to the Executive under this Agreement other than those specifically
set forth herein.
7.10 Administration. The Bank shall have powers which are necessary to
administer this Agreement, including but not limited to --
(a) interpreting the provisions of this Agreement,
(b) establishing and revising the method of accounting for this Agreement,
(c) maintaining a record of benefit payments, and
(d) establishing rules and prescribing any forms necessary or desirable to
administer this Agreement.
7.11 Named Fiduciary. The Bank shall be the named fiduciary and plan
administrator under this Agreement. The named fiduciary may delegate to others
certain aspects of the management and operation responsibilities of the plan,
including the employment of advisors and the delegation of ministerial duties to
qualified individuals.
7.12 Severability. If for any reason any provision of this Agreement is
held invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and to the full extent consistent with law each such
other provision shall continue in full force and effect. If any provision of
this Agreement is held invalid in part, such invalidity shall not affect the
remainder of such provision not held invalid, and to the full extent consistent
with law the remainder of such provision, together with all other provisions of
this Agreement, shall continue in full force and effect.
7.13 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.
7.14 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, to the following addresses or to such other
address as either party may designate by like notice.
(a) If to the Bank, to --
Board of Directors
The Cortland Savings and Banking Company
000 Xxxx Xxxx Xxxxxx
X.X. Xxx 00
Xxxxxxxx, Xxxx 00000-0000
(b) If to the Executive, to --
Xxxxxx X. Xxxxx
000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
7.15 Payment of Legal Fees. The Bank is aware that upon the occurrence of a
Change in Control, then current management of the Bank may cause or attempt to
cause the Bank to refuse to comply with its obligations under this Agreement, or
may cause or attempt to cause the Bank to institute, or may institute,
litigation seeking to have this Agreement declared unenforceable, or may take,
or attempt to take, other action to deny Executive the benefits intended under
this Agreement. In these circumstances, the purpose of this Agreement could be
frustrated. It is the intent of the Bank that the Executive not be required to
incur the expenses associated with the enforcement of his rights under this
Agreement by litigation or other legal action because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
Executive hereunder, nor be bound to negotiate any settlement of his rights
hereunder under threat of incurring such expenses. Accordingly, if after a
Change in Control it should appear to Executive that (a) the Bank has failed to
comply with any of its obligations under this Agreement, or (b) in the event
that the Bank or any other person takes any action to declare this Agreement
void or unenforceable, or institutes any litigation or other legal action
designed to deny, diminish or to recover from, Executive the benefits intended
to be provided to Executive hereunder, the Bank irrevocably authorizes Executive
from time to time to retain counsel of his choice at the expense of the Bank as
provided in this Section 7.15, to represent Executive in connection with the
initiation or defense of any litigation or other legal action, whether by or
against the Bank or any director, officer, stockholder or other person
affiliated with the Bank, in any jurisdiction. The fees and expenses of counsel
selected from time to time by Executive as herein above provided shall be paid
or reimbursed to Executive by the Bank on a regular, periodic basis upon
presentation by Executive of a statement or statements prepared by such counsel
in accordance with such counsel's customary practices, up to a maximum aggregate
amount of $500,000. Notwithstanding any existing or previous attorney-client
relationship between the Bank or Cortland Bancorp and any counsel chosen by the
Executive under this Section 7.15, the Bank irrevocably consents to the
Executive's entering into an attorney-client relationship with that counsel, and
the Bank and the Executive agree that a confidential relationship shall exist
between the Executive and that counsel.
7.16 Cost of Living Adjustment for Section 7.15 Payment of Legal Fees. Upon
the occurrence of a Change in Control, the $500,000 cap on legal fee
reimbursement provided by Section 7.15 will be subject to a cost of living
adjustment equal to the value of the expression A x B, in which expression --
A = $500,000; and
B = Cost of living adjustment or inflation factor. This is computed by
dividing the Consumer Price Index for All Urban Consumers ("CPI-U")
prepared by the U.S. Bureau of Labor Statistics, or any successor
thereto, for the January of the year during which the Change in
Control occurs by the CPI-U for January 2000.
The cost of living adjustment provided in this Section 7.16 shall be considered
to be part of the Executive's payment of legal fees for purposes of this
Agreement.
To explain the cost of living adjustment calculation for Payment of Legal
Fees, we use the following example.
First, we determine the appropriate CPI-Us. The Agreement calls for the use
of the CPI-Us for January 2000 and the January of the year during which the
Change in Control occurs. Assume a Change in Control occurs in April 2009. For
illustrative purposes only, the CPI-U for January 2000 is 156.7, and the CPI-U
for January 2009 is 213.3.
Second, we calculate the cost of living adjustment or inflation factor. To
do this, we divide the CPI-U for January 2009 (213.3) by the CPI-U for January
2000 (156.7). Our result is 1.361 (i.e., a 36.1 percent increase).
Finally, we calculate the raw cost of living adjustment. To do this, we
multiply the base Payment of Legal Fees amount by the inflation factor. In our
example, $500,000 multiplied by the inflation factor of 1.361 equals $680,500.
7.17 Modified 280G Gross Up. (a) Additional Payment to Account for Excise
Taxes. If as a result of a Change in Control the Executive becomes entitled to
acceleration of benefits under this Agreement or otherwise (collectively, the
"Total Benefits"), and if any part of the Total Benefits is subject to the
excise tax under section 280G and section 4999 of the Internal Revenue Code of
1986, as amended, (the "Excise Tax"), Cortland Bancorp shall pay to the
Executive the following additional amounts, consisting of (1) a payment equal to
the Excise Tax payable by the Executive under section 4999 on the Total Benefits
(the "Excise Tax Payment") and (2) the "Gross-Up Payment" (collectively, the
"Adjusted Gross-Up Payment Amount"). The Adjusted Gross-Up Payment Amount shall
be calculated by first determining the full gross-up amount needed to provide
the Excise Tax Payment net of all income, payroll, and excise taxes. The
difference between the full gross-up amount (which includes the Excise Tax
Payment) and the Excise Tax Payment shall then be multiplied by 80% to determine
the Gross-Up Payment. Schedule B is an illustration of how the Gross-Up Payment
and the Adjusted Gross-Up Payment Amount due the Executive are calculated.
Payment of the Adjusted Gross-Up Payment Amount shall be made in addition to the
amount set forth in Section 2.4.
(b) Calculating the Excise Tax. For purposes of determining whether any of
the Total Benefits will be subject to the Excise Tax and for purposes of
determining the amount of the Excise Tax,
(1) Determination of "Parachute Payments" Subject to the Excise Tax: any
other payments or benefits received or to be received by the Executive
in connection with a Change in Control or the Executive's Termination
of Employment (whether under the terms of this Agreement or any other
agreement, or other plan or arrangement with Cortland Bancorp, the
Bank, any person whose actions result in a Change in Control or any
person affiliated with Cortland Bancorp, the Bank, or such person)
shall be treated as "parachute payments" within the meaning of section
280G(b)(2) of the Internal Revenue Code, and all "excess parachute
payments" within the meaning of section 280G(b)(1) shall be treated as
subject to the Excise Tax, unless in the opinion of the certified
public accounting firm that is retained by Cortland Bancorp as of the
date immediately before the Change in Control (the "Accounting Firm")
such other payments or benefits do not constitute (in whole or in
part) parachute payments, or such excess parachute payments represent
(in whole or in part) reasonable compensation for services actually
rendered within the meaning of section 280G(b)(4) of the Internal
Revenue Code in excess (as defined in section 280G(b)(3) of the
Internal Revenue Code), or are otherwise not subject to the Excise
Tax,
(2) Calculation of Benefits Subject to Excise Tax: the amount of the Total
Benefits that shall be treated as subject to the Excise Tax shall be
equal to the lesser of (a) the total amount
of the Total Benefits reduced by the amount of such Total Benefits
that in the opinion of the Accounting Firm are not parachute payments,
or (b) the amount of excess parachute payments within the meaning of
section 280G(b)(1) (after applying clause (1) above), and
(3) Value of Noncash Benefits and Deferred Payments: the value of any
noncash benefits or any deferred payment or benefit shall be
determined by the Accounting Firm in accordance with the principles of
sections 280G(d)(3) and (4) of the Internal Revenue Code.
(c) Assumed Marginal Income Tax Rate. For purposes of determining the
Adjusted Gross-Up Payment Amount, the Executive shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation in the
calendar years in which the Adjusted Gross-Up Payment Amount is to be made and
state and local income taxes at the highest marginal rate of taxation in the
state and locality of the Executive's residence on the date of Termination of
Employment, net of the reduction in federal income taxes that can be obtained
from deduction of such state and local taxes (calculated by assuming that any
reduction under section 68 of the Internal Revenue Code in the amount of
itemized deductions allowable to the Executive applies first to reduce the
amount of such state and local income taxes that would otherwise be deductible
by the Executive, and applicable federal FICA and Medicare withholding taxes).
(d) Return of Reduced Excise Tax Payment or Payment of Additional Excise
Tax. If the Excise Tax is later determined to be less than the amount taken into
account hereunder when the Executive's employment terminated, the Executive
shall repay to Cortland Bancorp -- when the amount of the reduction in Excise
Tax is finally determined -- the portion of the Adjusted Gross-Up Payment Amount
attributable to the reduction (plus that portion of the Adjusted Gross-Up
Payment Amount attributable to the Excise Tax, federal, state, and local income
taxes and FICA and Medicare withholding taxes imposed on the Adjusted Gross-Up
Payment Amount being repaid by the Executive to the extent that the repayment
results in a reduction in Excise Tax, FICA, and Medicare withholding taxes
and/or a federal, state, or local income tax deduction).
If the Excise Tax is later determined to be more than the amount taken into
account hereunder when the Executive's employment terminated (due, for example,
to a payment whose existence or amount cannot be determined at the time of the
Adjusted Gross-Up Payment Amount), Cortland Bancorp shall make an additional
Adjusted Gross-Up Payment Amount to the Executive for that excess (plus any
interest, penalties, or additions payable by the Executive for the excess) when
the amount of the excess is finally determined.
7.18 (a) Accounting Firm Gross-Up Determination. Subject to the provisions
of Section 7.17, all determinations required to be made under this Section 7.18
-- including whether and when an Adjusted Gross-Up Payment Amount is required,
the Adjusted Gross-Up Payment Amount and the assumptions to be used to arrive at
the determination (collectively, the "Determination") -- shall be made by the
Accounting Firm, which shall provide detailed supporting calculations both to
Cortland Bancorp and the Executive within 15 business days after receipt of
notice from Cortland Bancorp or the Executive that there has been an Adjusted
Gross-Up Payment Amount, or such earlier time as is requested by Cortland
Bancorp.
(b) Fees and Expenses of the Accounting Firm and Agreement with the
Accounting Firm. All fees and expenses of the Accounting Firm shall be borne
solely by Cortland Bancorp or the Bank. Cortland Bancorp and the Bank shall
enter into any agreement requested by the Accounting Firm in connection with the
performance of its services hereunder.
(c) Accounting Firm's Opinion. If the Accounting Firm determines that no
Excise Tax is payable by the Executive, the Accounting Firm shall furnish the
Executive with a written opinion to that effect, and to the effect that failure
to report Excise Tax, if any, on the Executive's applicable federal income tax
return will not result in the imposition of a negligence or similar penalty.
(d) Accounting Firm's Determination Is Binding. The Determination by the
Accounting Firm shall be binding on Cortland Bancorp, the Bank, and the
Executive.
(e) Underpayment and Overpayment. Because of the uncertainty in determining
whether any of the Total Benefits will be subject to the Excise Tax at the time
of the Determination, it is possible that an Adjusted Gross-Up Payment Amount
that should have been made will not have been made by Cortland Bancorp
("Underpayment"), or that an Adjusted Gross-Up Payment Amount will be made that
should not have been made by Cortland Bancorp ("Overpayment"), consistent with
the calculations for the Adjusted Gross-Up Payment Amount required to be made
hereunder.
If, after a Determination by the Accounting Firm, the Executive is required
to make a payment of additional Excise Tax, the Accounting Firm shall determine
the amount of the Underpayment that has occurred. The Underpayment (together
with interest at the rate provided in section 1274(d)(2)(B) of the Internal
Revenue Code) shall be paid promptly by Cortland Bancorp to or for the benefit
of the Executive.
If the Adjusted Gross-Up Payment Amount exceeds the amount necessary to
reimburse the Executive for his Excise Tax, the Accounting Firm shall determine
the amount of the Overpayment that has been made. The Overpayment (together with
interest at the rate provided in section 1274(d)(2)(B) of the Internal Revenue
Code) shall be paid promptly by the Executive to or for the benefit of Cortland
Bancorp. Provided that his expenses are reimbursed by Cortland Bancorp or the
Bank, the Executive shall cooperate with any reasonable requests by Cortland
Bancorp in any contests or disputes with the Internal Revenue Service relating
to the Excise Tax.
(f) Accounting Firm Conflict of Interest. If the Accounting Firm is serving
as accountant or auditor for the individual, entity, or group effecting the
Change in Control, the Executive may appoint another nationally recognized
public accounting firm to make the Determinations required hereunder (in which
case the term "Accounting Firm" as used in this Agreement shall be deemed to
refer to the accounting firm appointed by the Executive under this paragraph).
IN WITNESS WHEREOF, the Executive and a duly authorized Bank officer have
signed this Amended Salary Continuation Agreement as of the date first written
above.
EXECUTIVE: BANK:
THE CORTLAND SAVINGS AND BANKING COMPANY
By:
------------------------------------- ------------------------------------
Xxxxxx X. Xxxxx
By:
------------------------------------
Xxxxxxxx X. Xxxxxxxxx
Title: Senior Vice President,
Controller,
Chief Financial Officer, and
Secretary-Treasurer
BENEFICIARY DESIGNATION
THE CORTLAND SAVINGS AND BANKING COMPANY
AMENDED SALARY CONTINUATION AGREEMENT
XXXXXX X. XXXXX
I designate the following as beneficiary of any death benefits under this
Amended Salary Continuation Agreement:
Primary: __________________________________________________________________
__________________________________________________________________
Contingent: _______________________________________________________________
_______________________________________________________________
NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE
TRUSTEE(S) AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a
new written designation with the Bank. I further understand that the
designations will be automatically revoked if the beneficiary predeceases me,
or, if I have named my spouse as beneficiary and our marriage is subsequently
dissolved.
Signature:
--------------------------
Xxxxxx X. Xxxxx
Date: ___________ , 2002
Accepted by the Bank this _______ day of _____________, 2002.
By:
---------------------------------
Xxxxxxxx X. Xxxxxxxxx
Title: Senior Vice President,
Controller,
Chief Financial Officer, and
Secretary-Treasurer
SCHEDULE A
THE CORTLAND SAVINGS AND BANKING COMPANY
AMENDED SALARY CONTINUATION AGREEMENT
XXXXXX X. XXXXX
EARLY
TERMINATION CHANGE-IN-CONTROL
ANNUAL DISABILITY LUMP SUM
VESTED BENEFIT ANNUAL BENEFIT
PLAN ACCRUAL ACCRUAL PAYABLE AT BENEFIT PAYABLE
YEAR BALANCE BALANCE 70 PAYABLE AT 70 IMMEDIATELY (1)
------ -------- -------- ----------- ------------- ----------------
1 $ 88,652 $ 88,652 $13,986 $13,986 $900,000
2 $184,661 $184,661 $26,899 $26,899 $900,000
3 $288,640 $288,640 $38,823 $38,823 $900,000
4 $401,248 $401,248 $49,834 $49,834 $900,000
5 $523,203 $523,203 $60,000 $60,000 $900,000
6 $900,000
7 $900,000
8 $900,000
9 $900,000
10
11
12
13
14
15
(1) This assumes the Executive remains employed by the Bank and has not availed
of (i) the Normal Retirement benefit following retirement after attaining
age 70, (ii) the Early Retirement benefit following retirement after
attaining age 65, or (iii) the Disability benefit.
14
AMENDED SALARY CONTINUATION AGREEMENT SCHEDULE B
ILLUSTRATION OF SECTION 280G CALCULATION AND COST OF 80% SECTION 280G GROSS-UP
CORTLAND BANCORP
TRANSACTION DATE: 11/1/00
ADJUSTED 50%
TOTAL PARACHUTE GROSS-UP PAYMENT DUE
TOTAL VALUE OF PAYMENTS WITH FULL EXECUTIVE UNDER
CHANGE-IN-CONTROL SECTION 280G SEVERANCE AGREEMENT
PAYMENTS GROSS-UP SECTION 2(B)
----------------- ------------------ --------------------
BASE AMOUNT .................................... $ 83,014
TOTAL PARACHUTE PAYMENTS:
Nonqualified benefits arising
under SERP ............................... 411,103
Total parachute payments, before
gross-up ................................. 411,103
Threshold amount ((3 x Base Amount - $1.00)) ... 249,041
Parachute payments in excess of threshold
amount ...................................... $162,062
EXCISE TAX ON PARACHUTE PAYMENT:
Total parachute payments .................... $411,103
Base Amount ................................. (83,014)
Parachute payment subject to Excise Tax ........ 328,089
Multiplied by excise tax rate .................. x20%
Initial Excise Tax on parachute payment ........ 65,618
GROSS-UP FOR TAXES, IF APPLICABLE:
Federal income tax rate ..................... 39.6000%
Excise Tax rate ............................. 20.0000%
Ohio state income tax rate .................. 7.0000%
Local income tax rate ....................... 2.0000%
FICA rate ................................... 1.4500%
Phase-out of itemized deductions ............ 1.1880%
Federal tax benefit of state and local
income tax ............................... (3.5640)%
Gross-up marginal tax rate ..................... 67.6740%
100% minus gross-up marginal rate .............. 32.3260%
Full payment to gross up for taxes ............. $202,988
ADJUSTED GROSS-UP PAYMENT AMOUNT:
Full 100% gross-up amount ................... $202,988
Minus Excise Tax payment .................... (65,618)
137,370
Multiplied by 80% ........................... x80%
109,896
Plus Excise Tax payment ..................... 65,618
Adjusted Gross-Up Payment Amount ......... $175,514
15
