409A Amendment to the Citizens National Bank of Elkins Executive Supplemental Retirement Plan Executive Agreement
Exhibit
No. 10.5
409A
Amendment
to
the
Citizens
National Bank of Xxxxxx
Citizens
National Bank of Xxxxxx (“Bank”) and (“Executive”) originally entered into the
Citizens National Bank of Xxxxxx Executive Supplemental Retirement Plan
Executive Agreement (“Agreement”) on January 14, 2003. Pursuant to
Subparagraph V (C) of the Agreement, the Bank and the Executive hereby adopt
this 409A Amendment, effective January 1, 2005. The First Amendment
to the Executive Supplemental Retirement Plan Executive Agreement dated January
1, 2004, is effectively revoked.
RECITALS
This
Amendment is intended to bring the Agreement into compliance with the
requirements of Internal Revenue Code Section 409A. Accordingly, the
intent of the parties hereto is that the Agreement shall be operated and
interpreted consistent with the requirements of Section
409A. Therefore, the following changes shall be made:
1.
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The
following provision regarding “Separation from Service” distributions
shall be added as a new subparagraph (J) under Section I, as
follows:
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Separation
from Service:
Notwithstanding
anything to the contrary in this Agreement, to the extent that any benefit
under
this Agreement is payable upon a “Termination of Employment,”
“Termination of Service,” or other event involving the Executive’s cessation of
services, such payment(s) shall not be made unless such event constitutes a
“Separation from Service” as defined in Treasury Regulations Section
1.409A-1(h).
2.
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Subparagraph
II (A), “Retirement Benefits”, shall be deleted in its entirety and
replaced with the following Subparagraph II
(A):
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Retirement
Benefits:
Subject
to Subparagraph II (D) hereinafter, an Executive who remains in the employ
of
the Bank until the Normal Retirement Age (Subparagraph I [I]) shall be entitled
to receive the balance in the Pre-Retirement Account in one hundred twenty
(120)
equal monthly installments commencing thirty (30) days following the Executive’s
retirement. In addition to these payments and commencing in
conjunction therewith, the Index Retirement Benefit (Subparagraph I [F]) for
each Plan Year subsequent to the Executive’s retirement, and including the
remaining portion of the Plan Year in which the Executive retires, shall be
paid
in monthly installments to the Executive until the Executive’s
death.
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3.
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Subparagraph
II (B), “Termination of Service”, shall be deleted in its entirety and
replaced with the following Subparagraph II
(B):
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Termination
of Service:
Subject
to Subparagraph II (D), should an Executive suffer a Termination of Service
the
Executive shall be entitled to receive the percentage set forth hereinbelow
that
corresponds to the number of full years of employment with the Bank from the
date of first employment with the Bank and to the Age of the Executive while
employed by the Bank only (to a maximum of 100%), times the balance in the
Pre-Retirement Account payable to the Executive in one hundred twenty (120)
equal monthly installments commencing thirty (30) days following the Executive’s
Normal Retirement Age (Subparagraph I [I]). In addition to these
payments and commencing in conjunction therewith, the percentage set forth
hereinbelow that corresponds to the number of full years of employment with
the
Bank from the date of first employment with the Bank and to the Age of the
Executive while employed by the Bank only (to a maximum of 100%), times the
Index Retirement Benefit for each Plan Year subsequent to the year in which
the
Executive attains the Normal Retirement Age, and including the remaining portion
of the Plan Year in which the Executive attains Normal Retirement Age, shall
be
paid in monthly installments to the Executive until the Executive’s
death.
Total
years of Employment and Age while Employed only
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Vested
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Less
than Age 65 and less than 30 full years of employment
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0%
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Age
62, 63, or 64 and 30 full years of employment
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100%
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Age
65 or older regardless of years of employment shall apply
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100%
and Subparagraph II (A)
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4.
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Subparagraph
II (C), “Death”, shall be deleted in its entirety and replaced with the
following Subparagraph II (C):
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Death:
Should
the Executive die while there is a balance in the Executive’s Pre-Retirement
Account (Subparagraph I [E]), said unpaid balance of the Executive’s
Pre-Retirement Account shall be paid in one hundred twenty (120) equal monthly
installments to the individual or individuals the Executive may have designated
in writing and filed with the Bank. In the absence of any effective
beneficiary designation, the unpaid balance shall be paid as set forth herein
to
the duly qualified executor or administrator of the Executive’s
estate. Said payments due hereunder shall commence the first day of
the second month following the decease of the Executive and continue until
paid
in full.
5.
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Subparagraph
II (F), “Disability”, shall be deleted in its entirety and replaced with
the following Subparagraph II (F):
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Disability:
Subject
to Subparagraph II (D) as it pertains to Discharge for Cause only, if the
Executive should become Disabled, this Agreement shall terminate upon the date
of said Disability and the Executive shall be paid the balance in the
Executive’s Pre-Retirement Account calculated as of the date of said Disability,
payable in one hundred twenty (120) equal monthly installments commencing thirty
(30) days following said Disability until paid in full. “Disability”
shall mean Executive: (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months; or (ii) is, by reason
of
any medically determinable physical or mental impairment which can be expected
to result in death or can be expected to last for a continuous period of not
less than twelve (12) months, receiving income replacement benefits for a period
of not less than three (3) months under an accident and health plan covering
executives of the Bank. Medical determination of Disability may be
made by either the Social Security Administration or by the provider of an
accident or health plan covering employees of the Bank, provided that the
definition of Disability applied under such Disability insurance program
complies with the requirements of Section 409A. Upon the request of
the Plan Administrator, the Executive must submit proof to the Plan
Administrator of Social Security Administration’s or the provider’s
determination.
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6.
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A
new Subparagraph II (G) shall be added as
follows:
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Restriction
on Timing of Distribution:
Notwithstanding
any provision of this Agreement to the contrary, distributions under this
Agreement may not commence earlier than six (6) months after the date of a
Separation from Service (as described under the “Separation from Service”
provision herein) if, pursuant to Internal Revenue Code Section 409A, the
participant hereto is considered a “specified employee” (under Internal
Revenue Code Section 416(i)) of the Bank if any stock of the Bank is publicly
traded on an established securities market or otherwise. In the event
a distribution is delayed pursuant to this Section, the originally scheduled
distribution shall be delayed for six (6) months, and shall commence instead
on
the first day of the seventh month following Separation from
Service. If payments are scheduled to be made in installments, the
first six (6) 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 (6) months and instead be made on the first day of the seventh
month.
7.
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A
new Subparagraph II (H) shall be added as
follows:
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Certain
Accelerated Payments:
The
Bank
may make any accelerated distribution permissible under Treasury Regulation
1.409A-3(j)(4) to the Executive of deferred amounts, provided that such
distribution(s) meets the requirements of Section 1.409A-3(j)(4).
8.
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Section
IV, “Change of Control”, shall be deleted in its entirety and replaced
with the following Section IV:
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CHANGE
IN
CONTROL
“Change
in Control” shall mean a change in ownership or control of the Bank as defined
in Treasury Regulation §1.409A-3(i)(5) or any subsequently applicable Treasury
Regulation. Upon a Change in Control, the Executive shall become one
hundred percent (100%) vested in the benefits described in Subparagraph II
(A)
herein as if the Executive had been continuously employed by the Bank until
the
Executive’s Normal Retirement Age. Such benefits shall be paid to the
Executive in the same form and with the same timing as the benefit described
in
Subparagraph II (A), except that payments shall commence at Normal Retirement
Age. In addition, the Board of Directors shall no longer have
sole discretion to amend the Opportunity Cost as set forth in Subparagraph
I
(H), and said Opportunity Cost shall be the rolling five (5) year average of
the
three (3) year Treasury Xxxx as set forth in said Subparagraph.
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9.
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A
new Subparagraph V (L) shall be added as
follows:
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Subsequent
Changes to Time and Form of Payment:
The
Bank
may permit a subsequent change to the time and form of benefit
distributions. Any such change shall be considered made only when it
becomes irrevocable under the terms of the Agreement. Any change will
be considered irrevocable not later than thirty (30) days following acceptance
of the change by the Plan Administrator, subject to the following
rules:
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(4)
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the
subsequent deferral election may not take effect until at least twelve
(12) months after the date on which the election is
made;
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(5)
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the
payment (except in the case of death, disability, or unforeseeable
emergency) upon which the subsequent deferral election is made is
deferred
for a period of not less than five (5) years from the date such payment
would otherwise have been paid; and
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(6)
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in
the case of a payment made at a specified time, the election must
be made
not less than twelve (12) months before the date the payment is scheduled
to be paid.
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Therefore,
the foregoing changes are agreed to.
For
the Bank
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Date
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Date
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