EXECUTIVE SALARY CONTINUATION AGREEMENT
THIS AGREEMENT, made and entered into this 27th day of December 2002, by
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and between Xxxxxx National Bank, a bank organized and existing under the laws
of the State of New York (hereinafter referred to as the "Bank"), and Xxxxxx X.
Xxxxxxx, an executive of the Bank (hereinafter referred to as the "Executive").
WITNESSETH:
WHEREAS, the Executive has been and continues to be a valued Executive of
the Bank, and is now serving the Bank as its President and CEO; and
WHEREAS, it is the consensus of the Board of Directors (hereinafter
referred to as the "Board") that the Executive's services to the Bank in the
past have been of exceptional merit and have constituted an invaluable
contribution to the general welfare of the Bank in bringing the Bank to its
present status of operating efficiency and present position in its field of
activity;
WHEREAS, the Executive's experience, knowledge of the affairs of the Bank,
reputation, and contacts in the industry are so valuable that assurance of the
Executive's continued services is essential for the future growth and profits of
the Bank and it is in the best interests of the Bank to arrange terms of
continued employment for the Executive so as to reasonably assure the
Executive's remaining in the Bank's employment during the Executive's lifetime
or until the age of retirement;
WHEREAS, it is the desire of the Bank that the Executive's services be
retained as herein provided;
WHEREAS, the Executive is willing to continue in the employ of the Bank
provided the Bank agrees to pay the Executive or the Executive's beneficiary
certain benefits in accordance with the terms and conditions hereinafter set
forth;
ACCORDINGLY, it is the desire of the Bank and the Executive to enter into
this Agreement under which the Bank will agree to make certain payments pursuant
to this Agreement to the Executive at retirement or, in the event of the
Executive's Death, the Executive's beneficiary;
FURTHERMORE, it is the intent of the parties hereto that this Executive
Plan be considered an unfunded arrangement maintained primarily to provide
supplemental retirement benefits for the Executive, and be considered a
non-qualified benefit plan for purposes of the Employee Retirement Security Act
of 1974, as amended ("ERISA"). The Executive is fully advised of the Bank's
financial status and has had substantial input in the design and operation of
this benefit plan; and
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 it is agreed as follows:
I. EMPLOYMENT
The Bank agrees to employ the Executive in such capacity as the Bank may
from time to time determine. The Executive will continue in the employ of
the Bank in such capacity and with such duties and responsibilities as may
be assigned to him, and with such compensation as may be determined from
time to time by the Board of Directors of the Bank, as provided for in that
certain employment agreement between the Executive and the Bank dated as of
January 1, 1998 (the "Employment Agreement") as such may be amended,
modified, restated or superceded from time to time.
II. FRINGE BENEFITS
The Salary continuation benefits provided by this Agreement are granted by
the Bank as a fringe benefit to the Executive and 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 except as set forth
hereinafter.
III. RETIREMENT DATE AND NORMAL RETIREMENT AGE
A. Retirement Date:
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If the Executive remains in the continuous employ of the Bank, the
Executive shall retire from active employment with the Bank on the January
1st nearest the Executive's sixty-third (63rd) birthday, unless by action
of the Board of Directors his period of active employment shall be
shortened or extended.
B. Normal Retirement Age:
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Normal Retirement Age shall mean the Executive's age at January 1, 2006.
The Executive shall not be entitled to any additional or enhanced benefit
under this Agreement if he elects to work past his Normal Retirement Age.
IV. RETIREMENT BENEFIT AND POST-RETIREMENT DEATH BENEFIT
Upon said retirement the Bank, commencing with the first day of the month
following the date of such retirement, shall pay the Executive an annual
benefit equal to Fifty Thousand and 00/100 Dollars ($50,000) multiplied by
the Executive's vested percentage determined pursuant to Paragraph VI,
below, and any other annual benefits provided for hereunder shall be
forfeited. Said benefit shall be paid in equal monthly installments (1/12
of the annual benefit) until the Executive's death at which time the
benefits provided hereunder shall be reduced by 50% and paid in equal
monthly installments (1/12 of the annual benefit) to the spouse (named in
the Beneficiary Designation Form attached) if she survives the Executive
until her death at which time the benefits provided hereunder shall cease.
If the Executive should die prior to such retirement, a benefit equal to
Twenty One Thousand and 00/100 Dollars ($21,000) multiplied by the
Executive's vested percentage determined pursuant to Paragraph VI, below,
and shall be paid in equal monthly installments (1/12 of the annual
benefit) to the spouse (named in the Beneficiary Designation Form attached)
until her death at which time the benefits provided hereunder shall cease.
Any other annual benefit provided hereunder shall be forfeited.
V. BENEFIT ACCOUNTING
The Bank shall account for this benefit using the regulatory accounting
principles of the Bank's primary federal regulator. The Bank shall
establish an accrued liability retirement account for the Executive into
which appropriate reserves shall be accrued.
VI. VESTING
Executive's interest in the benefits that are the subject of this Agreement
shall vest as provided for herein. The Executive's vested percentage shall
be determined according to the following schedule:
the Executive Retires during the period: Vested Percentage:
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on or prior to December 31, 2003 25% (twenty-five percent)
from January 1, 2004 through December 31, 2004 50% (fifty percent)
from January 1, 2005 through December 31, 2005 75% (seventy-five percent)
on or after January 1, 2006 100% (one-hundred percent)
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VII. OTHER TERMINATION OF EMPLOYMENT
Subject to Subparagraph VII (i) hereinbelow, in the event that the
employment of the Executive shall terminate prior to retirement, as
provided in Paragraph III, or by the Executive's discharge by the Bank
without cause, then this Agreement shall terminate upon the date of such
termination of employment and the Bank shall pay to the Executive an annual
benefit equal to 84% of the benefit described in Paragraph IV (without
reduction for vesting pursuant to Paragraph VI) payable beginning at Normal
Retirement Age (i.e., an annual benefit to the Participant equal to $42,000
and an annual surviving spouse benefit of $21,000, respectively).
(i) Discharge for Cause: In the event the Executive shall be
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discharged for cause at any time, all benefits provided herein
shall be forfeited. The term "for cause" shall have the same
meaning as set forth in Section 7(d) of the Employment Agreement.
If a dispute arises as to discharge "for cause," such dispute
shall be resolved by arbitration as set forth in this Executive
Plan.
VIII. CHANGE OF CONTROL
For the purposes of this Agreement, "Change of Control" shall have the same
meaning as set forth in Section 2 of that certain Severance Compensation
Agreement between the Executive and The Xxxxxx Corporation dated as of
January 1, 1998 (the "Severance Agreement") as such may be amended,
modified, restated or superceded from time to time. Upon a Change of
Control, if the Executive subsequently suffers a Termination of Service
(voluntary or involuntary), except for cause, then the Executive shall
receive the benefits in Paragraph IV herein upon attaining Normal
Retirement Age (Subparagraph III [B]), as if the Executive had been
continuously employed by the Bank until the Executive's Normal Retirement
Age.
IX. RESTRICTIONS ON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any fund
or money with which to pay its obligations under this Executive Plan. The
Executive, their beneficiary, or any successor in interest shall be and
remain simply a general creditor of the Bank in the same manner as any
other creditor having a general claim for matured and unpaid compensation.
The Bank reserves the absolute right, at its sole discretion, to either
fund the obligations undertaken by this Executive Plan or to refrain from
funding the same and to determine the extent, nature and method of such
funding. Should the Bank elect to fund this Executive Plan, in whole or in
part, through the purchase of life insurance, mutual funds, disability
policies or annuities, the Bank reserves the absolute right, in its sole
discretion, to terminate such funding at any time, in whole or in part. At
no time shall the Executive be deemed to have any lien, right, title or
interest in any specific funding investment or assets of the Bank. If the
Bank elects to invest in a life insurance, disability or annuity policy on
the life of the Executive, then the Executive shall assist the Bank by
freely submitting to a physical exam and associated testing and supplying
such additional information necessary to obtain such insurance or
annuities.
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X. MISCELLANEOUS
A. Alienabilitv and Assignment Prohibition:
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Neither the Executive, nor the Executive's surviving spouse, nor any
other beneficiary under this Executive Plan 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 maintenance owed
by the Executive or the Executive's beneficiary, nor be transferable
by operation of law in the event of bankruptcy, insolvency or
otherwise. In the event the Executive or any beneficiary attempts
assignment, commutation, hypothecation, transfer or disposal of the
benefits hereunder, the Bank's liabilities shall forthwith cease and
terminate.
B. Binding Obligation of the Bank and any Successor in Interest:
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The Bank shall not merge or consolidate into or with another bank or
sell substantially all of its assets to another bank, firm or person
until such bank, firm or person expressly agrees, in writing, to
assume and discharge the duties and obligations of the Bank under this
Executive Plan. This Executive Plan shall be binding upon the parties
hereto, their successors, beneficiaries, heirs and personal
representatives.
C. Amendment or Revocation:
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It is agreed by and between the parties hereto that, during the
lifetime of the Executive, this Executive Plan may be amended or
revoked at any time or times, in whole or in part, by the mutual
written consent of the Executive and the Bank.
D. Gender:
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Whenever in this Executive Plan words are used in the masculine or
neuter gender, they shall be read and construed as in the masculine,
feminine or neuter gender, whenever they should so apply.
E. Effect on Other Bank Benefit Plans:
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Nothing contained in this Executive Plan shall affect the right of the
Executive to participate in or be covered by any qualified or
non-qualified pension, profit-sharing, group, bonus or other
supplemental compensation or fringe benefit plan constituting a part
of the Bank's existing or future compensation structure.
F. Headings:
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Headings and subheadings in this Executive Plan are inserted for
reference and convenience only and shall not be deemed a part of this
Executive Plan.
G. Applicable Law:
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The validity and interpretation of this Agreement shall be governed by
the laws of the State of New York.
H. 12 U.S.C.S1828(k):
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Any payments made to the Executive pursuant to this Executive Plan, or
otherwise, are subject to and conditioned upon their compliance with
12 U.S.C. ss. 1828(k) or any regulations promulgated thereunder.
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I. Partial Invalidity:
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If any term, provision, covenant, or condition of this Executive Plan
is determined by an arbitrator or a court, as the case may be, to be
invalid, void, or unenforceable, such determination shall not render
any other term, provision, covenant, or condition invalid, void, or
unenforceable, and the Executive Plan shall remain in full force and
effect notwithstanding such partial invalidity.
J. Not a Contract of Employment:
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This Agreement shall not be deemed to constitute a contract of
employment between the parties hereto, nor shall any provision hereof
restrict the right of the Bank to discharge the Executive, or restrict
the right of the Executive to terminate employment.
XI. ERISA PROVISIONS
A. Named Fiduciary and Plan Administrator:
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The "Named Fiduciary and Plan Administrator" of this Executive Plan
shall be the Executive Committee of the board of directors of the Bank
until its resignation or removal by the Board. As Named Fiduciary and
Plan Administrator, it shall be responsible for the management,
control and administration of the Executive Plan. The Named Fiduciary
and Plan Administrator may delegate to others certain aspects of the
management and operation responsibilities of the Executive Plan
including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
B. Claims Procedure and Arbitration:
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In the event a dispute arises over benefits under this Executive Plan
and benefits are not paid to the Executive and such claimant feels he
or she is entitled to receive such benefits, then a written claim must
be made to the Named Fiduciary and Plan Administrator named above
within sixty (60) days from the date payments are refused. The Named
Fiduciary and Plan Administrator shall review the written claim and if
the claim is denied, in whole or in part, they shall provide in
writing within sixty (60) days of receipt of such claim the specific
reasons for such denial, reference to the provisions of this Executive
Plan upon which the denial is based and any additional material or
information necessary to perfect the claim. Such written notice shall
further indicate the additional steps to be taken by claimant if a
further review of the claim denial is desired. A claim shall be deemed
denied if the Named Fiduciary and Plan Administrator fail to take any
action within the aforesaid sixty-day period.
If a claimant desires a second review he or she shall notify the Named
Fiduciary and Plan Administrator in writing within sixty (60) days of
the first claim denial. Claimant may review this Executive Plan or any
documents relating thereto and submit any written issues and comments
he or she may feel appropriate. In their sole discretion, the Named
Fiduciary and Plan Administrator shall then seek counsel from the
Board of Directors of the Bank or its successor Board who will review
the second claim and provide a written decision within sixty (60) days
of receipt of such claim. This decision shall likewise state the
specific reasons for the decision and shall include reference to
specific provisions of the Plan Agreement upon which the decision is
based.
If a claimant continues to dispute the benefit denial based upon
completed performance of this Executive Plan or the meaning and effect
of the terms and conditions thereof, then the claimant may submit the
dispute to an arbitrator for final arbitration. The arbitrator shall
be selected by mutual agreement of the Bank and the claimant. The
arbitrator shall operate under any generally recognized set of
arbitration rules. The parties hereto agree that they and their heirs,
personal representatives, successors and assigns shall be bound by the
decision of such arbitrator with respect to any controversy properly
submitted to it for determination.
Where a dispute arises as to the Bank's discharge of the Executive
"for cause," such dispute shall likewise be submitted to arbitration
as above described and the parties hereto agree to be bound by the
decision thereunder.
The named Fiduciary and Plan Administrator and the Executive agree
that in the event an arbitrator is engaged to settle a dispute related
to this Agreement the unsuccessful party shall be solely responsible
for both parties expenses related to the arbitration process.
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XIII. TERMINATION OR MODIFICATION OF AGREEMENT BY REASON OF CHANGES IN THE LAW,
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RULES OR REGULATIONS
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The Bank is entering into this Agreement upon the assumption that
certain existing tax laws, rules and regulations will continue in
effect in their current form. If any said assumptions should change
and said change has a detrimental effect on this Executive Plan, then
the Bank reserves the right to terminate or modify this Agreement
accordingly. Upon a Change of Control (Paragraph VIII), this paragraph
shall become null and void effective immediately upon said Change of
Control.
XIV. DEATH OF THE EXECUTIVE
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Notwithstanding anything herein to the contrary, this Agreement shall
terminate upon the death of the Executive or his wife, whichever
occurs later.
* * * * *
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IN WITNESS WHEREOF, the parties hereto acknowledge that each has carefully
read this Agreement and executed the original thereof on the first date set
forth hereinabove, and that, upon execution, each has received a conforming
copy.
XXXXXX NATIONAL BANK
Oneonta, New York
/s/ Xxxxxx X. Xxxxx By:/s/ Xxxxx X. Xxxxxx
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Witness Title: Chairman
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
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Witness Executive
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