EXHIBIT 10.4
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
FOR
XXXXX X. XXXXX
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 X. Xxxxx ("Executive"),
an individual residing at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000.
INTRODUCTION
Bank has entered into an Executive Employment Agreement with
Executive, effective April 1, 2003. Under the terms of the Executive Employment
Agreement, Executive will hold the position of Chief Executive Officer of Bank.
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:
1.1 "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 `Cause" shall have the same meaning as set forth in Paragraph 11(b) of
the Executive Employment Agreement, said Paragraph being incorporated by
reference herein.
1.3 "Change of Control" shall have the same meaning as set forth Paragraph
15 of in the Executive Employment Agreement, which Paragraph is incorporated by
reference herein.
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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 of 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 of Control event shall be deemed to have
occurred as a result of the execution of such agreement.
1.4 "Disability" shall have that meaning as set forth in Paragraph 11(b)
of the Executive Employment Agreement, which Paragraph is incorporated by
reference herein.
1.5 "Bank" or "Corporation" means Columbia County Farmers National Bank.
1.6 "Insured" means Xxxxx X. Xxxxx.
1.7 "Insurer" means the Life Insurance Companies.
1.8 "Policy" means Northwestern Mutual policy no. 16 321 715, Southland
Life Ins. Co. policy no. 06 6002 6510, and Massachusetts Mutual policy no.
0051553.
1.9 "Net Death Proceeds" means the death proceeds of the Policy, in the
aggregate amount as provided in the attached endorsements.
1.10 "Normal Retirement Age" means 60 years old.
1.11 "Code" means the Internal Revenue Code of 1986, as amended.
1.12 "Executive Employment Agreement" means the Executive Employment
Agreement entered into between Bank and Insured, dated December 23, 2002,
effective January 1, 2003.
1.13 "Vesting" means the accrual of the benefits over a period of time.
Article 2
Lifetime Benefits
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2.1 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 $90,000.00
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.
2.2.1 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.
2.2.2 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.
2.3. 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.
2.3.1. 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.
2.4. 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.
2.5. Vesting Schedule. The Executive shall be subject to the following
vesting schedule as to the retirement benefit.
Prior to 10 years - 0%
After 10 years - 50%
After 15 years - 75%
After 20 years - 100%
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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
3.1. 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 SIX HUNDRED FORTY THOUSAND ($640,000.00) 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. 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.
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Article 4
POLICY OWNERSHIP/INTERESTS
4.1. 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.
4.2. 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
5.1 Premium Payment. Bank shall pay any premiums due on the Policy.
5.2 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.
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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 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
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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 benefits provided under this Agreement shall be
forfeited if Bank terminates Executive's employment for Cause.
10.3 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 Forfeiture by Reason of Breach. Executive shall forfeit his right to
any further benefits if Executive, without the prior written consent of Bank,
violates any of the restrictions, covenants and undertakings set forth in
Paragraphs 3, 7, 8 and 9 of the Executive Employment Agreement. Said Paragraphs
are incorporated by reference herein.
10.4.1 Judicial Remedies. In the event of a breach or threatened breach by
Executive of any provision of the restrictions, covenants or undertakings
incorporated by reference in Section 10.4, 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,
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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 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, covenants and undertakings
incorporated in Section 10.4 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 are necessary to protect its
legitimate business interest, (iii) the restrictions, covenants and undertakings
incorporated in Section 10.4 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 X. Xxxxxx /s/ Xxxxx X. Xxxxx
----------------------------------- -----------------------------------
XXXXX X. XXXXX
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ENDORSEMENT SPLIT DOLLAR POLICY FOR
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
Insured: Xxxxx X. Xxxxx
Northwestern Mutual policy no. 16 321 715
Southland Life Ins. Co. policy no. 0660026510
Massachusetts Mutual policy no. 0051553
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, ("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
X. Xxxxx the death proceeds in the amount of SIX HUNDRED FORTY THOUSAND
($640,000.00) 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 X. Xxxxx, 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 the 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: /s/ 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. Xxxxx
--------------------------------------
XXXXX X. XXXXX
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AMENDMENT TO
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
FOR
XXXXX X. XXXXX
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 X. Xxxxx ("Executive"),
an individual residing at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, 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 - 25%
Each additional year of service
After 5 years - 5% additional
After 20 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 X. Xxxxx
--------------------------------------- --------------------------------------
XXXXX X. XXXXX
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