Exhibit 10.15
Amendment to the
Westbank f/k/a Park West Bank and Trust Company
Executive Supplemental Retirement Plan Agreement for
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Westbank f/k/a Park West Bank and Trust Company ("Company" or "Bank")
and *___________ ("Executive") originally entered into the Westbank f/k/a Park
West Bank and Trust Company Executive Supplemental Retirement Plan Agreement
("Agreement") on July 2, 2001. Pursuant to Subparagraph VI (C) of the Agreement,
the Bank and the Executive hereby adopt this 409A Amendment, effective January
1, 2005.
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This 409A Amendment is intended to bring the Agreement into full
compliance with the requirements of Internal Revenue Code Section 409A.
Therefore, the following changes shall be made:
1. Subparagraph I (C), Retirement, shall be deleted in its entirety and
replaced with the following:
C. Retirement:
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Retirement shall mean retirement from service with the Bank
which becomes effective when the Executive reaches the later
of the Executive's sixty-fifth (65th) birthday or Separation
from Service.
2. Subparagraph I (E), Change of Control, shall be deleted in its entirety
and replaced with the following:
I. Change of Control
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For purposes of this Agreement, "Change of Control" shall mean
a change in the ownership of Westbank Corporation or the Bank,
a change in the effective control of Westbank Corporation or
the Bank or a change in the ownership of a substantial portion
of the assets of Westbank Corporation or the Bank, in each
case as provided under Section 409 of the Internal Revenue
Code of 1986, as amended (the "Code") and the regulations
thereunder.
3. Subparagraph I (K), Separation from Service, shall be added and shall
read as follows:
K. Separation from Service:
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"Separation from Service" shall mean that the Executive has
died, retired, or otherwise experienced a Termination of
Service. In the event that an Executive continues to provide
services considered "significant" to the Bank, either as an
employee or as an independent contractor, a Separation from
Service will not be deemed to have occurred. "Significant"
services, for purposes of this Agreement, are those where (1)
the Executive provides services in the capacity as an employee
at an annual rate equal to at least 20 percent of the services
rendered on average, and the annual remuneration for such
services is equal to at least 20 percent of the average
remuneration earned, during the immediately preceding three
full calendar years of employment (or, if the Executive was
employed for less than three years, such lesser period); or
(2) the Executive continues to provide services to the Bank in
a capacity other than as an employee at an annual rate that is
50 percent or more of the services rendered, on average,
during the final three full calendar years of employment (or,
if employed less than three years, such lesser period) and the
annual remuneration for such services is 50 percent or more of
the average annual remuneration earned during the immediately
preceding three full calendar years of employment (or if
employed less than three years, such lesser period). This
definition of Separation from Service shall at all times be
construed to comply with the regulations issued under Code
Section 409A, including prior to the issuance of final
regulations under Code Section 409A, the proposed regulations
issued thereunder on September 29, 2005.
4. All references in the Agreement to "Termination of Service,"
"terminates employment," or other similar phrases shall be deleted and
replaced with the term "Separation from Service" or "Separates from
Service," as appropriate. Notwithstanding the previous sentence, the
definition of "Termination of Service" in Subparagraph I (D) shall not
be deleted.
5. Subparagraph II (L), Restriction on Timing of Distribution, shall be
added, and shall read as follows:
L. Restriction on Timing of Distribution:
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Notwithstanding any provision of this Agreement to the
contrary, distributions to the Executive may not commence
earlier than six (6) months after the date of a Separation
from Service if, pursuant to Section 409A of the Code and
regulations and guidance promulgated thereunder, the Executive
is considered a "specified employee" under Section 416(i) of
the Code and the Separation of Service is not concurrent with
a Change of Control. In the event a distribution is delayed
pursuant to this Section II (L), the originally scheduled
payment shall be delayed for 6 months, and shall commence
instead on the first day of the seventh month following the
delay. If payments are scheduled to be made in installments,
the first six months of installment payments shall be delayed,
aggregated, and paid instead on the first day of the seventh
month, after which all installment payments shall be made on
their regular schedule. If payment is scheduled to be made in
a lump sum, the lump sum payment shall be delayed for six
months and instead be made on the first day of the seventh
month.
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6. Subparagraph III (A), Retirement Benefits, shall be deleted in its
entirety and replaced with the following:
A. Retirement Benefits:
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Should the Executive continue to be employed by the Bank until
"Normal Retirement Age" defined in Subparagraph I (F), the
Executive shall be entitled to receive the benefits set forth
in this Subparagraph III (A).
An annual benefit equal to 75% of Final Compensation at
retirement, less 50% of the Social Security Benefit and the
Single Life Annuitized Value of the Executive's account
balances derived from employer provided contributions under
all qualified and non-qualified defined contribution plans
maintained by the Bank. The payment of this annual benefit
shall commence within thirty (30) days of the Executive's
retirement or in accordance with Restriction on Timing of
Distribution and shall be paid in annual installments until
the death of the Executive.
7. Subparagraph III (C), Death, shall be deleted in its entirety and
replaced with the following:
C. Death:
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Upon the death of the Executive, the Executive's
beneficiary(ies) shall be entitled to receive the benefits set
forth in this Subparagraph III(C). A benefit equal to the
amount of the accrued liability retirement account maintained
pursuant to Subparagraph I (G) existing on the date of the
Executive's death shall be paid in a lump sum within thirty
(30) days of the date of the Executive's death, to such
individual or individuals as the Executive may have designated
in writing and filed with the Bank. In the absence of any
effective beneficiary designation, any such amount becoming
due and payable upon the death of the Executive shall be paid
to the duly qualified executor or administrator of the
Executive's estate.
8. Paragraph V. CHANGE OF CONTROL, shall be deleted in its entirety and
replaced with the following:
V. CHANGE OF CONTROL
Notwithstanding any of the provisions in Paragraph III.
Benefits, upon a Change of Control (as defined in Subparagraph
I (E) herein) and irrespective of whether or not a Termination
of Service occurs, the Executive shall be entitled to receive
one hundred percent (100%) of the benefits set forth in
Subparagraph III (B) of this Agreement to be paid in a lump
sum upon the Change of Control. This Agreement shall terminate
upon the payment of such lump sum benefit.
9. Tax Withholding shall be added as Subparagraph VI (I) and shall read as
follows:
I. Tax Withholding:
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The Bank shall withhold any taxes that are required to be
withheld under applicable laws and regulations from the
benefits provided under this Agreement. The Executive
acknowledges that the Bank's sole liability regarding taxes is
to forward any amounts withheld to the appropriate taxing
authority(ies).
Therefore, the foregoing changes are agreed to.
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For the bank [executive name]
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Date
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