Exhibit 10.10
BEVERLY NATIONAL CORPORATION
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT
AGREEMENT
for
Xxxxxxxx X. Xxxxx
February 6, 2002
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT, made and entered into this 6/th/ day of February, 2002,
by and between Beverly National Corporation, its subsidiaries and affiliates,
(hereinafter called the "Corporation") and Xxxxxxxx X. Xxxxx (hereinafter called
the "Executive").
WITNESSETH:
WHEREAS, the Executive has been in the employ of the Corporation and/or
its subsidiaries and is now serving the Corporation as its President and Chief
Executive Officer; and,
WHEREAS, the Corporation has entered into a Supplemental Executive
Retirement Agreement with the Executive dated on December 24, 1996, which was
amended by First Amendment dated July 7, 1998 and Second Amendment dated
December 22, 1998 ("Original SERP"); and
WHEREAS, the Corporation and the Executive wish to further amend the
Original SERP.
NOW, THEREFORE, in consideration of services performed in the past and
to be performed in the future as well as of the mutual promises and covenants
herein contained, the Original SERP is amended and restated in its entirety as
follows:
ARTICLE ONE
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1.01 Employment. The Corporation may employ the Executive in such
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capacity as the Corporation may from time to time determine. Notwithstanding
anything contained herein, this Agreement is not an agreement of employment and
nothing herein shall restrict the Corporation concerning the terms and
conditions of the Executive's employment.
The benefits provided by this Agreement are not part of any salary
reduction plan or an arrangement deferring a bonus or a salary increase. The
Executive has no option to take any current payment or bonus in lieu of these
salary continuation benefits.
ARTICLE TWO
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2.01 Retirement Benefits.
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The Executive shall be entitled to a retirement benefit, determined as
of the effective date of his actual retirement, payable monthly, beginning one
month following his retirement and continuing on each succeeding month for
twenty (20) years. Each monthly payment shall be one-twelfth of the annual
retirement benefit, which annual retirement benefit shall be equal to
seventy-five percent (75%) of his Benefit Computation Base (hereinafter
defined), reduced by the sum of (1), (2) and (3) below.
1. Fifty percent (50%) of the Executive's projected annual primary
social security retirement benefit projected as of the date the
Executive attains age 65;
2. The annual amount of benefits payable to the Executive (or his
beneficiaries) at the effective date of his actual retirement
calculated on the optional benefit payment elected under any
qualified defined benefit pension plan maintained and funded by
the Corporation, as such plan or plans may be amended or
modified from time to time;
3. The annual amount of benefits payable under the Amended and
Restated Supplemental Executive Retirement Agreement entered into
December 24, 1996 by and between the Corporation and the
Executive, as from time to time amended.
2.02 Benefit Computation Base. The Executive's Benefit Computation Base
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shall be the Executive's 2001 compensation as shown on his W-2 for such year
(including amounts paid under any salary reduction agreements for plans under
Sections 401(k), 125 or 129 of the Internal Revenue Code of 1986, as amended).
In the event that the Executive's employment terminates prior to December 31,
2001, the Executive's 2001 compensation shall be annualized for the purposes of
this section.
2.03 Accrued Benefit. As used herein for the purposes of Section 3.01
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and 4.01, the term "Accrued Benefit" shall mean the aggregate benefit amount the
Executive or his beneficiaries or his estate would be entitled to receive during
all twenty years under Section 2.01 hereof.
2.04 Optional Forms of Payment. In lieu of the twenty (20) year
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certain payments provided in Section 2.01 above, or whenever an Accrued Benefit
is
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payable under Section 4.01 of this Agreement, the Executive may elect in the
calendar year prior to the calendar year in which payments are to begin, an
optional form of payment which shall be the actuarial equivalent (factors
defined in the Corporation's qualified defined benefit pension plan) of the said
twenty (20) year certain payments. The optional form of payment shall be any
optional form of payment which is provided to the Executive under the terms of
the Corporation's qualified defined benefit pension plan.
ARTICLE THREE
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3.01 Death of Executive.
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(a) If the Executive dies prior to the commencement of the payment of
benefits under Section 2.01, 4.01, or 10.01, the Corporation will
pay to the Executive's named beneficiaries, for a period of
twenty (20) years certain commencing on the first day of the
month next following the delivery to the Corporation of a death
certificate, a total annual amount equal to the Accrued Benefit.
(b) If the Executive dies following the commencement of the payment
of benefits under Section 2.01, 4.01, or 10.01, such payment of
benefits shall continue to the named beneficiaries of the
Executive until all such benefits have been paid.
3.02 Beneficiaries. The Executive may designate, in writing to the
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Corporation, one or more beneficiaries. If no beneficiary is so named or if no
named beneficiary is living at the time a payment is due, benefit payments shall
be made, when due, to the Executive's estate.
ARTICLE FOUR
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4.01 Disability Prior to Retirement. In the event the Executive shall
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become disabled, the Corporation will pay no disability benefits hereunder.
Disability benefits (if any) will be paid to the Executive through such
insurance programs as may be sponsored by the Corporation. Upon termination of
the Executive's employment on account of disability, the Executive shall
commence receiving payment of his Accrued Benefit. The Accrued Benefit shall be
paid in monthly installments for twenty (20) years certain commencing on the
first day of the month following the month in which the Executive's disability
benefits (if any) terminate.
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ARTICLE FIVE
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5.01 Employment by Competition. Anything to the contrary in this
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Agreement notwithstanding, in the event that after he shall have begun to
receive benefits under this Agreement, the Executive shall compete with the
business of the Corporation, then all payments which might otherwise be due and
payable hereunder shall be immediately forfeited and all rights of the Executive
and his beneficiaries hereunder shall become void. The Executive will be deemed
to have competed with the business of the Corporation if, during the one-year
period following termination of his employment with the Corporation, he,
directly or indirectly, whether as partner, shareholder (other than as the owner
of less than 2% of the outstanding capital stock of a publicly traded
corporation), consultant, agent, employee, co-venturer, or otherwise, or through
any Person (as hereafter defined),
(i) competes in the Corporation's market area (defined as the area
within 20 miles of any branch or facility of the Corporation)
with, or is employed in such market area by a Person which
competes with, the banking or any other business conducted by
the Corporation during the period of his employment,
(ii) attempts to hire any employee of the Corporation, assists in
such hiring by any other Person, or encourages any such
employee to terminate his relationship with the Corporation, or
(iii) solicits or encourages any customer of the Corporation to
terminate its relationship with the Corporation or to conduct
with any other Person any business or activity which such
customer conducts or could conduct with the Corporation.
For purposes of this Section 5.01, the term "Person" shall mean an individual, a
corporation, an association, a partnership, an estate, a trust and any other
entity or organization, and shall include an affiliate office within the
Corporation's "market area" as defined in this Section 5.01, of a Person whose
headquarters or parent organization is located outside the "market area" as so
defined.
5.02 Forfeiture. Anything to the contrary in this Agreement
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notwithstanding (other than Section 10.01), benefits under this Agreement shall
be immediately forfeited and all rights of the Executive and his beneficiaries
hereunder shall become null and void, if the Executive's employment with the
Corporation is terminated for cause. For this purpose, a termination shall be a
termination for "Cause" only if the termination is for one or more of the
following:
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(i) the willful and continued failure of him to substantially
perform his duties (other than any such failure resulting from
his incapacity due to physical or mental illness) after a
demand for substantial performance is delivered to him by the
Board of Directors of the Corporation which specifically
identifies the manner in which such Board believes that he has
not substantially performed his duties, or
(ii) willful misconduct by him which is materially injurious to the
Corporation monetarily or otherwise.
For purposes of this paragraph, no act, or failure to act, on the Executive's
part shall be considered "willful" unless done, or omitted to be done, by him
not in good faith and without reasonable belief that his action or omission was
in the best interests of the Corporation.
Notwithstanding the foregoing, he shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to him a
copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board of Directors of the
Corporation at a meeting of such Board called and held for the purpose (after
reasonable notice to him and an opportunity for him, together with his counsel,
to be heard before such Board), finding that in the good faith opinion of such
Board he was guilty of conduct set forth above in clauses (i) or (ii) of this
Section 5.02 and specifying the particulars thereof in detail.
ARTICLE SIX
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6.01 Interest. Any payment that is required to be made hereunder that
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is delayed beyond the date specified in this Agreement shall bear interest at a
variable rate which shall be the rate of interest on one year U.S. Treasury
Bills determined at the first auction of each calendar year or part thereof
during the period of which interest is to be applied to any obligation
hereunder.
ARTICLE SEVEN
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7.01 Alienability. Neither the Executive, nor any beneficiary under
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this Agreement shall have any power or right to transfer, assign, anticipate,
hypothecate, mortgage, commute, modify, or otherwise encumber in advance any of
the benefits payable hereunder, nor shall any of said benefits be subject to
seizure for the payment of any debts, judgments, alimony or separate
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maintenance, owed by the Executive or his beneficiary or any of them, or be
transferable by operation of law in the event of bankruptcy, or otherwise.
ARTICLE EIGHT
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8.01 Participation in Other Plans. Nothing contained in this Agreement
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shall be construed to alter, abridge, or in any manner affect the rights and
privileges of the Executive to participate in and be covered by any pension,
profit sharing, group insurance, bonus or any other employee plan or plans which
the Corporation may have or hereafter have.
ARTICLE NINE
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9.01 Funding.
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(a) The Corporation reserves the right at its sole and exclusive
discretion to insure or otherwise provide for the obligations
of the Corporation undertaken by this Agreement or to refrain
from same, and to determine the extent, nature and method
thereof, including the establishment of one or more trusts.
Should the Corporation elect to insure this Agreement, in
whole or in part, through the medium of insurance or
annuities, or both, the Corporation shall be the owner and
beneficiary of the policy or annuity. At no time shall the
Executive be deemed to have any right, title or interest in or
to any specified asset or assets of the Corporation, or any
trust or escrow arrangement, including, but not by way of
restriction, any insurance or annuity contracts or the
proceeds therefrom.
(b) Any such policy, contract or asset shall not in any way be
considered to be security for the performance of the
obligations of this Agreement.
(c) If the Corporation purchases a life insurance or annuity
policy on the life of the Executive, the Executive agrees to
sign any papers that may be required for that purpose and to
undergo any medical examination or tests (at the Corporation's
expense) which may be necessary, and generally cooperate with
the Corporation in securing such policy.
(d) To the extent the Executive acquires a right to receive
benefits under this Agreement, such right shall be equivalent
to the right of an unsecured general creditor of the
Corporation.
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ARTICLE TEN
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10.01 Reorganization. The Corporation shall not merge or consolidate
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into or with another corporation if such merger or consolidation shall result in
the other corporation being the survivor corporation, nor shall it sell
substantially all of its assets to another corporation, firm or person, unless
and until:
(a) The Executive and such other corporation, firm or person agree
(i) that if the Executive is then employed by the Corporation,
he shall continue in the employ of the succeeding, continuing
or acquiring corporation, firm or person, and (ii) that such
other corporation, firm or person agrees in writing without
further qualification to assume and discharge the obligations
of the Corporation under this Agreement, or;
(b) If such corporation, firm or person does not so agree to
assume and discharge such obligations, the Corporation shall pay
to the Executive, in one lump sum, his Accrued Benefit on the
date of such merger, consolidation or sale.
Upon the occurrence of any such event and the written unqualified assumption of
the obligations of the Corporation by such successor corporation, firm or
person, the term "Corporation" as used in this Agreement shall be deemed to
refer to such successor or survivor corporation, firm or person.
ARTICLE ELEVEN
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11.01 Benefits and Burdens. This Agreement shall be binding upon and
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inure to the benefit of the Executive and his personal representatives, the
Corporation, and any successor organization which shall succeed to substantially
all of the Corporation's assets and business without regard to the form of such
succession.
11.02 Corporation. As used in this Agreement, Corporation shall mean
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the Beverly National Corporation, a Massachusetts Corporation, and any
affiliated entity, successor organization, parent, subsidiary or holding
company.
ARTICLE TWELVE
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12.01 Communications. Any notice or communication required of either
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party with respect to this Agreement shall be made in writing and may either be
delivered personally or sent by First Class mail, as the case may be:
To the Corporation:
c/o Clerk of the Corporation
Beverly National Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
To the Executive:
Xxxxxxxx X. Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Each party shall have the right by written notice to change the place to which
any notice may be addressed.
ARTICLE THIRTEEN
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13.01 Claims Procedure. The Corporation will be the "named fiduciary"
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and "plan administrator" of the arrangement contemplated herein. The claims
procedure set forth herein may be changed by the Corporation from time to time
by written notice to the Executive, provided no such change shall limit the
protections herein provided to the claimant except as such limitations are
imposed by applicable law, regulation, or case law. The Corporation may
establish reasonable administrative procedures for applying the Claims
Procedures.
The Executive or any beneficiary of his may file a request for benefits
with the Corporation in writing delivered to the Corporation at its address
provided in Section 12 hereof. If a claim request is wholly or partially denied,
the Corporation will furnish to the claimant a notice of its decision within
ninety (90) days in writing, and in a manner to be understood by the claimant,
which notice will contain the following information:
i. the specific reason or reasons for the denial;
ii. specific reference to pertinent provisions of this Agreement
upon which the denial is based;
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iii. a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation as to why such material or information is
necessary; and
iv. an explanation of the applicable claim-review procedure
describing the steps to be taken by a claimant who wishes to
submit his claim for review.
A claimant or his authorized representative may, with respect to any
denied claim:
i. request a review upon written application filed within sixty
(60) days after receipt by the claimant of written notice of
the denial of his claim;
ii. review pertinent documents; and
iii. submit issues and comments in writing.
Any request or submission will be in writing and will be directed to
the Corporation. The Corporation will have the sole responsibility for the
review of any denied claim and will take all appropriate steps in light of its
findings. The Corporation will render a decision upon review of a denied claim
within sixty (60) days after receipt of a request for review. If special
circumstances warrant additional time, the decision will be rendered as soon as
possible, but not later than one hundred twenty (120) days after receipt of
request for review. Written notice of any such extension will be furnished to
the claimant prior to the commencement of the extension. The decision on review
will be in writing and will include specific reasons for the decision written in
a manner to be understood by the claimant, as well as the specific references of
the pertinent provisions on which the decision is based. If the decision on
review is not furnished to the claimant within the time limits described above,
the claim will be deemed denied on review.
ARTICLE FOURTEEN
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14.01 Entire Agreement. This instrument may be altered or amended
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only by written agreement signed by the parties hereto.
14.02 Jurisdiction. The parties, terms and conditions of this
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Agreement are subject to and shall be governed by the laws of the Commonwealth
of Massachusetts.
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14.03 Gender. Any reference in this Agreement to the masculine shall
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be deemed to include the feminine where the context so requires.
14.04 Operation of Law on Corporation's Obligations. In the event that
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any governmental entity promulgates any statute, rule, regulation, policy or
order which restricts or prohibits the Corporation from making payments or
affects any operation of the Agreement to the Executive under this Agreement,
then the Corporation's obligations to make payments to the Executive (or his
beneficiary) hereunder shall terminate or be restricted or suspended (consistent
with such law or binding regulation, policy or order) for so long as such
restriction or prohibition applies to the Corporation. Nothing in this Agreement
is intended to require or shall be construed as requiring the Corporation to do
or fail to do any act in violation of any applicable law or binding regulation,
policy or order. Provisions other than payment provisions which are found to be
invalid or illegal will not be given effect and the Agreement will be enforced
as if those provisions had never been inserted.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
duly executed by its duly authorized officer and its Corporate Seal affixed at
Beverly, Massachusetts the day and year first above written.
Attest: BEVERLY NATIONAL CORPORATION
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxxxx X. Xxxxx
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Witness Executive
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