SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFIT AGREEMENT FOR JEFFREY T. ARNOLD
Exhibit 10.2
THIS SUPPLEMENTAL RETIREMENT BENEFIT AGREEMENT, (this “Agreement”), is made and entered
into this 15th day of December, 2010, by and between First Columbia Bank & Trust Co., a
Pennsylvania banking institution having a place of business at 000 Xxxx Xxxxxx, Xxxxxxxxxx, XX
00000, (“Bank”), and XXXXXXX X. XXXXXX, an individual residing at 0000 Xxxxxx Xxxxx Xxxx,
Xxxxxxxxxxxxx, XX 00000, (“Executive”).
INTRODUCTION
Executive and Bank have previously entered into an “Executive Employment Agreement”, (the
“Existing Agreement”) dated December 14, 2010, pertaining to Executive’s employment as Chief
Financial Officer of Bank. To encourage Executive to remain Chief Financial Officer of Bank, Bank
is willing to provide Executive with supplemental retirement benefits. Bank will pay the benefits
from its general assets.
TERMS
1. Retirement Benefit: Subject to the vesting provisions set forth in Paragraph 2 following and
subject to the general limitations set forth in Paragraph 7 following, Bank shall pay to Executive
a supplemental retirement benefit (the “Retirement Benefit”). The fully vested Retirement Benefit
shall be Sixty-two Thousand Five Hundred ($62,500.00) Dollars per year for a total of fifteen (15)
years. Payment of the Retirement Benefit will commence with the first day of the January occurring
in the calendar year after Executive attains sixty-five (65) years of age and will be made in equal
consecutive monthly payments over the fifteen year term. Executive’s date of birth is January 18,
1967, making the first payment of any vested Retirement Benefit due on January 1, 2033.
2. Vesting Schedule: Subject to the limitations set forth in Paragraph 7 following, the
Retirement Benefit shall vest as follows:
A. Regular Vesting Schedule: In the absence of a Change of Control, as defined in the
Existing Agreement, the Retirement Benefit shall vest in the percentage amounts indicated below,
based upon continuous years of service after December 31, 2010, in full time (that is, an average
of no less than thirty-five hours a week) employment as Chief Financial Officer of Bank:
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Vesting
Schedule:
Six years (through December 31, 2016)
|
— | 0 | % | |||
January 1, 2017, after 6 continuous years
of service (i.e., January 1, 2011, through
December 31, 2016)
|
— | 20% vested | ||||
For each continuous year of service
(January 1st through December 31st) from
January 1, 2017, through
December 31, 2024
|
— | 7.5% additional vesting per year of service | ||||
For each continuous year of service
(January 1st through December 31st) from
January 1, 2025, through
December 31, 2032
|
— | 2.5% additional vesting per year of service | ||||
Full vesting
|
— | January 1, 2033 | ||||
B. Vesting Upon “Change of Control”: In the event of a “Change of Control”, as defined in
Paragraph 14 of the Existing Agreement, the Base Amount of the Retirement Benefit shall fully vest,
effective as of the “Date of Change of Control”, as defined in Paragraph 15 of the Existing
Agreement, provided that, as of the Date of Change of Control: (a) Executive shall be in
compliance with Executive’s obligations under the Existing Agreement and under this Agreement; and,
(b) Executive shall be employed as Chief Financial Officer of Bank. The parties acknowledge that
the “Date of Change of Control” shall include the deemed “Date of Change of Control” as defined
with respect to Executive’s termination in the last paragraph of Paragraph 15 of the Existing
Agreement.
C. Vesting Pertains Only to Amount: The Vesting Schedule governs only the amount of the
Retirement Benefit that will be payable and not the timing of the payment of any Retirement
Benefit.
3. Beneficiary Designation: If Executive provides in writing delivered to Bank’s Human Resource
Director a written beneficiary designation, any vested, unpaid Retirement Benefit shall be paid to
Executive’s designated beneficiary following Executive’s death. If Executive has not provided a
written beneficiary designation, any vested, unpaid Retirement Benefit shall be paid to Executive’s
estate. Executive may change Executive’s beneficiary designation from time to time. The timing
and form of payment, however, shall remain as specified in Paragraph 1 of this Agreement.
4. Non-assignment: Executive may not assign any rights under this Agreement without the prior
written consent of Bank which Bank may give or withhold in its sole discretion.
5. Section 409A Limitations: It is the intention of the parties that this Agreement and the
Retirement Benefit under this Agreement meet the criteria for a non-qualified deferred compensation
plan under Section 409A of the Internal Revenue Code and its implementing regulations.
Notwithstanding any provision in this Agreement that may be construed to the contrary, the vested
Retirement Benefit under this Agreement shall not be distributed earlier than a “Permissible
Distribution Event” as defined by Section 409A of the Internal Revenue Code and implementing
regulations. No subsequent changes with respect to the timing or form of distributions may be
made except in compliance with Section 409A and its implementing regulations. Payment of the
Retirement Benefit is not subject to acceleration, except as may be permitted by Section 409A and
its implementing regulations.
6. Not a Contract For Employment: This Agreement is not a contract for employment. Executive is
employed pursuant to the Existing Agreement, the terms of which continue in full force and effect.
This Agreement is intended to supplement the provisions of the Existing Agreement. The limitations
set forth in Paragraph 7 apply only with respect to Executive’s entitlement to, and Bank’s
obligation to pay, the Retirement Benefit. The restrictive covenants pertaining to non-competition
and non-solicitation set forth in the Existing Agreement shall continue in effect and shall be
enforceable against Executive independently of this Agreement. Nothing in this Agreement shall be
construed to alter, modify, affect or impair in any manner those non-competition and
non-solicitation provisions.
7. Limitations on Payment of and Eligibility for Retirement Benefit: Executive’s entitlement to,
and Bank’s obligation to pay, the Retirement Benefit to Executive under this Agreement are subject
to the following general limitations which shall take precedence to any other provision hereof:
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A. Excess Parachute or Golden Parachute Payment: Notwithstanding any provision of this
Agreement to the contrary, if the Retirement Benefit provided under this Agreement, when added to
all other amounts or benefits provided to or on behalf of Executive in connection with his
termination of employment, would result in the imposition of an excise tax under Code Section 4999,
such payments shall be retroactively (if necessary) reduced to the extent necessary to avoid such
excise tax imposition or shall be forfeited to the extent the benefit would be a prohibited golden
parachute payment pursuant to 12 C.F.R. §359.2 and for which the appropriate federal banking agency
had not given written consent to pay pursuant to 12 C.F.R. §359.4. Upon written notice to
Executive, together with calculations of Bank’s independent auditors, Executive shall remit to Bank
the amount of the reduction plus such interest as may be necessary to avoid the imposition of such
excise tax. Notwithstanding the foregoing or any other provision of this Agreement to the
contrary, if any portion of the amount herein payable to the Executive is determined to be
non-deductible pursuant to the regulations promulgated under Section 280G of the Internal Revenue
Code of 1986, as amended (the “Code”), Bank shall be required only to pay to Executive the amount
determined to be deductible under Section 280G.
B. Termination for Cause. Notwithstanding any provision of this Agreement to the contrary,
the Retirement Benefit provided under this Agreement shall be forfeited if Bank terminates
Executive’s employment for “Cause” as defined in the Existing Agreement.
C. Removal. Notwithstanding any provision of this Agreement to the contrary, Bank shall not
pay any benefit under this Agreement if Executive is subject to a final removal or prohibition
order issued by an appropriate federal banking authority pursuant to Section 8(e) of the Federal
Deposit Insurance Act.
D. Non-Competition Provision:
(1) General Rule: Except as provided in the following subparagraph 7(D)(2), Executive shall
forfeit his right to any Retirement Benefit not yet paid to Executive, if Executive, without the
prior written consent of Bank, at any time during the period encompassing Executive’s employment
with Bank and continuing after the termination (regardless of reason) of Executive’s employment
with Bank throughout the period the Retirement Benefit would otherwise be payable:
(a) engages in, directly or indirectly, either for his own account or as agent, consultant,
employee, partner, officer, director, proprietor, investor (except as an investor owning less than
5% of the stock of a publicly owned company) or otherwise on behalf of any person, firm,
corporation or enterprise: (1) the banking (including bank or financial institution holding
company), insurance or financial services industry, or (2) any other activity in which Bank engages
during the Executive’s employment with Bank in the marketing area (the “Non-Competition Area”), of
Bank, the Non-Competition Area being defined for purposes of this Agreement as: (a) Columbia,
Montour, Northumberland, and Luzerne Counties in Pennsylvania; (b) those additional counties, if
any, in which Bank and any affiliate or subsidiary of Bank, during Executive’s continued employment
with Bank, maintains a physical presence (such as a bank or investment brokerage facility); and,
(c) all those additional counties that adjoin any of the counties encompassed within (a) and (b)
preceding; or
(b) either directly or indirectly in any capacity whatsoever (a) obtains, solicits, diverts,
appeals to, attempts to obtain, attempts to solicit, attempts to divert, or attempts to appeal to
any customers, clients or referral sources of Bank to divert their business from the Bank; or, (b)
solicits any person who is employed by Bank to leave the employ of Bank. “Customers, clients, and
referral sources” shall include all persons who are or were customers, clients or referral sources
of Bank at any time during the employment of Executive by the Bank, including employment with Bank
that predates this Agreement.
(2) Exception: The non-competition condition to Executive’s eligibility to receive the
Retirement Benefit as set forth in the preceding subparagraph 7(D)(1) shall not apply following a
Change of Control event, as defined in the Existing Agreement, if, following a Change of Control,
there is a separation, voluntarily or involuntarily, of Executive from his employment with Bank
prior to his sixty-fourth (64th) birthday for reasons other than (a) Executive’s
termination for “Cause” as specified in Paragraph 7(B) preceding or (b) Executive’s removal or
prohibition as specified in Paragraph 7(C) preceding.
8. Applicable Law: This Agreement shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania and in a manner consistent with any applicable laws of the United
States of America.
9. Entire Agreement: There are no terms, conditions, promises, understandings or covenants of any
nature pertaining to the subject matter of this Agreement except as are set forth in writing
herein.
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10. Arbitration of Disputes: The parties shall submit any dispute arising under this Agreement or
under the Existing Agreement to binding arbitration under the Pennsylvania Uniform Arbitration Act.
Such disputes shall include, but not be limited to, those concerning: (a) the interpretation of
this Agreement; and, (b) the obligations and responsibilities of the parties arising under this
Agreement. Without limitation upon the scope of authority granted hereunder to the arbitrators in
any proceeding initiated pursuant hereto, the parties specifically agree that an award or decision
of the arbitrators hereunder may render an interpretation of this Agreement, award monetary
damages, and/or direct a party to take actions in compliance with the provisions hereof or any
decision of the arbitrators. The procedures to be followed in any arbitration pursuant to this
Agreement are as follows:
A. Method to Initiate: Any party, (the “Requesting Party”) desiring arbitration shall give
written notice of such request to the other party, (the “Receiving Party”), such notice to specify
the matter to be arbitrated and identifying the name, address and telephone number of the
arbitrator selected by the Requesting Party. Within twenty (20) days of such notice, the Receiving
Party shall appoint an arbitrator and shall notify the Requesting Party in writing of the name,
address, and telephone number of the arbitrator so appointed. Within fifteen (15) days of the
appointment of the last such arbitrator, the arbitrators selected by the parties shall appoint an
additional arbitrator. If either party shall fail to appoint an arbitrator, or upon the failure of
the arbitrators to select an additional arbitrator, a party may petition a court of competent
jurisdiction to secure the appointment of such arbitrator, to the end that an arbitration panel
consisting of three arbitrators shall be designated.
B. Method of Arbitration: The arbitrators so appointed shall thereupon conduct an
arbitration hearing at a location in Columbia County, Pennsylvania, and shall render a decision
within sixty (60) days of the appointment of the final arbitrator. The decision of a majority of
the arbitrators shall be final and binding, unless a party is denied a hearing or in the event that
fraud, misconduct, corruption or other irregularity causes the rendition of an unjust, inequitable
or unconscionable award or decision. The costs and expenses of the arbitration shall be paid by
the parties in accordance with the decision of the arbitrators.
11. Binding Nature: This Agreement shall be binding upon the parties, and shall inure to the
benefit of the parties and their respective successors and, to the extent assignable, their
assigns.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered on the
day and year above written.
ATTEST:
|
FIRST COLUMBIA BANK & TRUST CO. | |||
| By: | /s/ Xxxxx X. Xxxxx | |||
SECRETARY
|
CHIEF EXECUTIVE OFFICER | |||
WITNESS: |
||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| XXXXXXX X. XXXXXX | ||||
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