DEFERRED COMPENSATION AGREEMENT As Amended and Restated Effective December 31, 2008
Exhibit
10.1
As Amended and Restated
Effective December 31, 2008
THIS DEFERRED COMPENSATION AGREEMENT,
made this 31st day of
December 2008, by and between AMERICAN NATIONAL BANK AND TRUST COMPANY, a
national banking association (the “Bank”), and XXXXXXX X. XXXXXX (the
“Employee”), provides as follows.
WHEREAS, the Bank values the ability of
the Employee as an important member of management and recognizes that his future
services are vital to its continued growth and profits and that the loss of his
services would result in substantial cost in the efficient and effective
operation of the Bank; and
WHEREAS, on February 22, 1993, the Bank
and the Employee entered into an agreement providing for the payment of certain
deferred compensation benefits to the Employee, which agreement was superseded
by an agreement between the Bank and the Employee dated June 12, 1997;
and
WHEREAS, on December 18, 2001, the
Bank’s Board of Directors (the “Board”) approved certain amendments to the June
12, 1997, agreement, subject to the Employee’s continued service through
December 31, 2001, which were reflected in the Deferred Compensation Agreement
as amended and restated effective January 1, 2002 (the “Prior Agreement”);
and
WHEREAS, the Bank and the Employee wish
to amend and restate the Prior Agreement as set forth herein to assure
compliance with the requirements of Section 409A of the Internal Revenue Code of
1986, as amended;
NOW THEREFORE, it is mutually agreed
that:
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1.
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This
Agreement shall be effective on December 31,
2008.
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2. The Bank
shall pay the Employee the annual sum of $50,000, payable in annual
installments, for a period of ten years. The first payment shall be
made not later than three months after the date that the Employee has a
Separation from Service from the Bank; provided, however, that if the Employee
is a Specified Employee on the date of his Separation from Service, the first
payment shall be made on the date that is six months after the date that the
Employee has a Separation from Service from the Bank. Subsequent
annual installments shall be paid on each of the first through the ninth
anniversaries of the payment date described in the preceding
sentence.
3. If the
Employee dies before receiving any payment under the preceding paragraph, the
Bank shall pay the Employee’s Designated Beneficiary the annual sum of $50,000,
payable in annual installments, for a period of ten years. The first
payment shall be made not later than three months after the date of the
Employee’s death. Subsequent annual installments shall be paid on
each of the first through the ninth anniversaries of the payment date described
in the preceding sentence.
4. If the
Employee dies after receiving at least one, but less than ten, payments under
paragraph 1, the Bank shall pay the Employee’s Designated Beneficiary the
remainder of the installments payable under paragraph 1. Such
payments shall continue on the same schedule as the benefit was being paid under
paragraph 1.
5. For
purposes of this Agreement, the term “Separation from Service” has the same
meaning as set forth in Treas. Reg. § 1.409A-1(h).
6. For
purposes of this Agreement, the term “Specified Employee” has the same meaning
as set forth in Treas. Reg. § 1.409A-1(i).
7. For
purposes of this Agreement, the term “Designated Beneficiary” means the
individual or individuals designated as such by the Employee in writing and
filed with the Bank or, in the absence of such designation, the estate of the
Employee.
8. During
the ten year period the Employee is receiving payments under this Agreement, the
Employee will not become associated with, or engage in, or render service to any
other business competitive to the business of the Bank within a fifty-mile
radius of any office of the Bank.
9. The
Employee (or Designated Beneficiary in the case of benefits payable after the
Employee’s death), shall file a claim for the payment of benefits under this
Agreement by notifying the Bank orally or in writing. If the claim is
wholly or partially denied, the Bank shall provide a written notice within 90
days specifying the reason for the denial, the provisions of the Agreement on
which the denial is based, and additional material or information necessary to
receive benefits, if any. Also, such written notice shall indicate
the steps to be taken if a review of the denial is desired.
If a claim is denied and a review is
desired, the Employee (or Designated Beneficiary in the case of benefits payable
after the Employee’s death), shall notify the Bank in writing within 60 days
after receipt of the Bank’s written notice of the denial. In
requesting a review, the Employee or Designated Beneficiary may submit any
written issues and comments he feels are appropriate. The Bank shall
then review the claim and provide a written decision within 60
days. This decision shall state the specific reasons for the decision
and shall include references to specific provisions of this Agreement on which
the decision is based.
10. Neither
the Employee nor any Designated Beneficiary shall have any right to sell,
assign, transfer or otherwise convey the right to receive any payments
hereunder.
11. Any
payments under this Agreement shall be independent of, and in addition to, those
under any other plan, program or agreement which may be in effect between the
parties hereto, or any other compensation payable by the Bank to the Employee or
the Employee’s Designated Beneficiary. This Agreement shall not be
construed as a contract of employment nor does it restrict the right of the Bank
to discharge the Employee for cause or without cause or the right of the
Employee to terminate employment.
The Bank shall be under no obligation
whatever to purchase or maintain any contract, policy or other asset to provide
the benefits under this Agreement. Further, any contract, policy or
other asset which the Bank may utilize to assure itself of the funds to provide
the benefits hereunder shall not serve in any way as security to the Employee
for the Bank’s performance under this Agreement. The rights accruing
to the Employer or any Designated Beneficiary hereunder shall be solely those of
an unsecured creditor of the Bank.
12. The
laws of the Commonwealth of Virginia shall govern this Agreement.
13. This
Agreement may not be altered, amended or revoked except by a written agreement
signed by the Bank and Employee.
14. This
Agreement shall be binding upon and shall inure to the benefit of any successor
entity of the Bank.
15. Where
appropriate in this Agreement, words used in the singular shall include the
plural and words used on the masculine shall include the feminine.
16. This
Agreement replaces and supercedes the Prior Agreement.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement.
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AMERICAN
NATIONAL BANK
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AND
TRUST COMPANY
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BY: /s/ Xxxxxx X.X. Xxxxxxx,
Xx
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TITLE:
Executive Vice
President
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XXXXXXX
X. XXXXXX
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/s/ Xxxxxxx X.
Xxxxxx
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