Exhibit 10.1
Deferred Compensation Agreement
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This Agreement made the 31st day of December, 1985, by and between Xxxxxx
National Bank, a banking corporation organized under the Laws of the State of
New York ("Bank") and Xxxxxx X. Xxxxxxx ("Xxxxxxx") of Oneonta, New York.
WHEREAS, Xxxxxxx, is employed by Bank; and
WHEREAS, Bank wishes to establish a deferred compensation plan for Xxxxxxx
to provide him with a means of saving and investing for future retirement.
1. An Additional Compensation Account ("Account") shall be established for
Xxxxxxx on the Bank's books for the benefit of Xxxxxxx. The account shall be
credited in an amount equal to amounts elected to be deferred by Xxxxxxx in
accordance with Paragraphs 2 and 3 of this Agreement.
The amount credited to the Account shall not be held by Bank in trust,
escrow, or similar fiduciary capacity, and neither Xxxxxxx nor any legal
representative shall have any right against Bank with respect to any portion of
the account, except as a general unsecured creditor of Bank.
2. The account shall be credited no later than December 31 of each year
commencing December 31, 1986 with an amount that Xxxxxxx has notified Bank in
writing prior to January 1 of such year that he wishes to have deferred.
For the initial plan year, which shall commence on the effective date of
this plan, and end on December 31, 1986, Xxxxxxx shall notify Bank of the amount
to be deferred for 1986 under this plan on or prior to the effective date
hereof. Xxxxxxx'x bonuses and/or other incentive payments to which he may be
entitled shall be reduced at Xxxxxxx'x option by the amount deferred. This
agreement shall continue from year to year until canceled by either party in
writing eighty (80) days prior to the end of the year or until Xxxxxxx'x
employment is terminated by death, retirement or for any other reason.
Xxxxxxx may indicate the amount to be deferred expressed in terms of
absolute dollars, as a percentage, or by any combination thereof.
3. The amount in the Account shall be deemed to have been invested and
reinvested from time to time in such "eligible securities" as Xxxxxxx shall
designate. Eligible securities are:(a) common stock of The Xxxxxx Corporation,
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(b) U.S. Government obligations, for which price quotations are published in
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newspapers of general circulation, including "The Wall Street Journal", or (c)
equities and debt instruments, including mutual funds used as investments by the
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Trust Department of Xxxxxx National Bank. Xxxxxxx shall have the right, by
giving at least five days notice prior to the last business day in March, June
and September and prior to the first business day in January in each year to
designate eligible securities
which shall be deemed to have been purchased or sold for the Account on the date
of reference. In the case of any purchase the Account shall be charged with a
dollar amount equal to the quantity and kind of securities deemed to have been
purchased multiplied by the fair market value of such security on with a collar
amount equal to the quantity and kind of securities deemed to have been
purchased multiplied by the fair market value of such security on the date of
reference and shall be credited with the quantity and kind of securities so
deemed to have been purchased. In the case of any sale, the Account shall be
charged with the quantity and kind of securities deemed to have been sold, and
shall be credited with a dollar amount equal to the quantity and kind of
securities deemed to have been sold multiplied by the fair market value of such
security on the date of reference. As used herein "fair market value" means in
the case of a listed security the closing price on the date of reference, or if
there were no sales on such date, then the closing price on the nearest
preceding day on which there were such sales, and in the case of an unlisted
security the mean between the bid and asked prices on the date of reference, or
if no such prices are available for such date, then the mean between the bid and
asked prices on the nearest preceding day for which such prices are available.
The Account shall be credited with dollar amounts equal to cash dividends
paid from time to time upon the stocks deemed to be held therein. Dividends
shall be credited as of the payment date. The Account shall similarly be
credited as of the payment date. The Account shall similarly be credited with
interest payable on interest bearing securities deemed to be held therein.
Interest shall be credited as of the payment date, except that in the case of
purchase of interest bearing securities, the Account shall be charged with the
dollar amount of interest accrued to the date of purchase and in the case of
sales the Account shall be credited with the dollar amount of interest accrued
to the date of sale.
Xxxxxxx shall have the same right with respect to the investment and
reinvestment of dividends and interest as with respect to the balance of the
Account. The Account shall be equitably adjusted to reflect stock dividends,
stock splits, recapitalizations, mergers, consolidations, reorganizations and
other changes affecting the securities deemed to be held therein.
Bank shall not be required to purchase, hold or dispose of any of the
securities designated by Xxxxxxx, however, if it elects to purchase or it sell
any such securities, the Account shall be charged with brokerage fees and stock
transfer taxes with respect to such purchases and sales but no other costs of
Bank. The only obligation of Bank is its contractual obligation to make payments
to Xxxxxxx measured as set forth below. To the extent that Bank does, in its
discretion, purchase or hold any of the securities designated by Xxxxxxx, the
same shall remain the sole property of Bank subject to the claims of its general
creditors, and shall not be deemed to form part of the Account.
As of the first date on which all or an installment of deferred
compensation becomes payable, and as of each subsequent date on which an
installment is payable (hereinafter referred to as "installment payment dates")
the Account shall be valued by adding to the dollar amount credited to the
Account the fair market value of the securities deemed to be held in the Account
on the installment payment date and deducted therefrom all brokerage and
transfer taxes on securities actually sold or transferred by Bank. The amount of
each installment of deferred compensation shall be determined by dividing the
aggregate value of the Account by the number of installments remaining to be
paid, including the installment then due. As each payment is made the Account
shall be charged with the amount of such payment, either in dollars or in
securities deemed to be therein, valued as of the installment payment date.
Xxxxxxx shall have the right to designate the manner in which each installment
payment is to be charged to the Account by notice to Bank prior to the
installment payment date, but upon Xxxxxxx'x failure to do so, Bank shall have
the right to charge the Account, either in dollars or securities, in the amount
equal to the payment.
4. Xxxxxxx shall, within thirty (30) days prior to his termination of
employment or as soon after termination of employment as practicable, notify
Bank in writing as to whether he desires to receive the amounts in the
Additional Compensation Account:
A. In a lump sum to be paid no later than ninety (90) days after
termination.
B. In monthly installments for a designated number of months certain not to
exceed sixty (60) months.
C. In a combination of the above, or in any other manner permitted by law
and agreed to by both the Bank and Xxxxxxx.
In the event no selection is made by Xxxxxxx, payment shall be made in a
lump sum.
Benefits payable to Xxxxxxx shall commence not earlier than termination of
employment and not later than ninety (90) days thereafter.
5. Xxxxxxx shall have the right to designate a beneficiary to receive all
or any part of his Account which may remain unpaid at Xxxxxxx'x death, such
amounts to be paid as provided in Paragraph 6. Such designation shall be
affected by filing a written notification with Bank, and may be changed from
time to time by similar action. If no such designation is made by Xxxxxxx, any
balance in the Account shall be paid to Xxxxxxx'x estate as provided in
Paragraph 6.
6. Should Xxxxxxx select a form of payment other than a lump sum pursuant
to Paragraph 4, and in the event of Xxxxxxx'x death after he has commenced
receiving monthly payments pursuant to Paragraph 4, monthly payments in that
amount shall continue as long as there is a balance in the Account to the person
or persons specified in accordance with Paragraph 5. In the event of Xxxxxxx'x
death prior to his commencing to receive payments pursuant to Paragraph 4, the
person or persons specified in accordance with Paragraph 5 shall be paid in a
lump sum, unless otherwise directed by Xxxxxxx prior to his death.
7. Neither Xxxxxxx nor his duly designated beneficiary shall have any right
to assign, transfer, pledge, encumber or otherwise convey by Will or inter vivos
instrument the right to receive any amounts of compensation which may become due
hereunder, and any such attempt at assignment, transfer, pledge encumbrance or
other conveyance shall not be recognized by Bank and will not be binding on
Bank.
8. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, administrators, personal
representative, successors and assigns.
Bank agrees that should its ownership in any manner by transferred or
conveyed, whether by merger, reorganization, purchase of stock or assets,
liquidation, dissolution, split-off, spin-off or otherwise, that this Agreement
shall survive, and be binding upon its successor, regardless of form.
9. In the event Xxxxxxx incurs a financial hardship, Bank, in its sole
discretion, may distribute all or part of the amounts credited to Xxxxxxx'x
account prior to the time such amounts would otherwise be payable under the
terms of this Agreement. Such accelerated distribution may only be made in the
event of a financial emergency which is beyond Xxxxxxx'x control, and only if
the disallowance of the accelerated distribution would result in severe
financial hardship to Xxxxxxx or his immediate family. Such accelerated
distribution will be made only in the amount necessary to alleviate the
financial emergency.
10. This Agreement shall be construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement the date first
above written.
XXXXXX NATIONAL BANK
By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
