Exhibit 10
CITIZENS NATIONAL BANK OF ELKINS
ELKINS, WEST VIRGINIA
EXECUTIVE SUPPLEMENTAL INCOME AGREEMENT
THIS AGREEMENT is effective on the 9th day of May , 1995, by and
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between the Citizens National Bank of Elkins, West Xxxxxxxx (the "Bank"), and
Xxxxxx X. Xxxxxxxxxx, (the "Officer").
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WITNESSETH:
WHEREAS, the Officer is currently employed by the Bank in an executive
capacity;
WHEREAS, the Bank desires to retain the valuable services and business
counsel of the Officer and to induce the Officer to remain in an executive
capacity with the Bank;
WHEREAS, the Bank wishes to retain the Officer in order to prevent the
substantial financial loss which the Bank could incur if the Officer were to
leave and were to enter the employment of a competitor:
WHEREAS, the Bank desires to pay the Officer the benefits provided
herein, subject to the terms and conditions set forth hereinbelow; and
WHEREAS, it is the intention of the Officer and the Bank that the
benefits referred to above will be provided pursuant to a non-qualified
supplemental income arrangement maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974.
NOW, THEREFORE, for and in consideration of the above premises, and of
the following terms, conditions and mutual covenants of the parties hereto, IT
IS HEREBY AGREED:
ARTICLE I
DEFINITIONS
1.01. "Annual Funding Amount" shall mean the amount required to be
contributed by the Bank to the Deferred Compensation Account annually pursuant
to paragraph 3.01 (a) of this Agreement.
1.02. "Beneficiary" shall mean the person or persons the Officer has
designated in writing to the Bank; if the Officer has not designated a
Beneficiary, then any payments due under this Agreement shall be paid to the
Officer's Estate.
1.03. "Benefit" shall mean the Death Benefit or the Retirement
Benefit, as the case may be.
1.04. "Buyout" shall mean a transaction or series of related
transactions by which the Bank is sold, either through the sale of a Controlling
Interest in the Bank's voting stock or through the sale of substantially all of
the Bank's assets, to a party not having a Controlling Interest in the Bank's
voting stock on the date of execution of this Agreement.
1.05. "Change in Control" shall mean a Buyout, Merger, or Substantial
Change in Ownership.
1.06. "Compensation" shall mean the total base salary paid to the
Officer by the Bank for the twelve (12) months preceding the date upon which the
Officer attains age sixty-five (65), or seeks early retirement pursuant to
paragraph 3.03 of this Agreement, as reflected on the payroll records of the
Bank, plus amount received as director's fees.
1.07 "Controlling Interest" shall mean ownership, either directly or
indirectly, of more than twenty percent (20%) of the voting stock of the Bank or
a parent company of the Bank which is a member of the same "affiliated group" as
defined in 26 U.S.C Section 1504 (a).
Exhibit 10 (cont.)
1.08. "Death Benefit" shall mean if death occurs after the Officer has
attained age fifty-five (55) and completed at least fifteen (15) years of
service, or after he/she have attained age sixty (60), the death benefit is
equal to the deferred compensation amount as shown on Exhibit A.
If death occurs prior to the above described conditions, the death
benefit is equal to one half the deferred compensation amount as shown on
Exhibit A.
1.09. "Deferred Compensation Account" shall mean the contingent
liability account to which the Bank contributes the Annual Funding Amount
pursuant to paragraph 3.01 (a) of this Agreement.
1.10. "Deferred Compensation Amount" shall mean the total amount due
to the Officer under the terms of this Contract as set forth in Exhibit A.
1.11. "Disability: shall mean a condition whereby the Officer, because
of a physical or mental Disability, is or will be unable to perform the duties
of the Officer's customary position of employment. The Board of Directors shall
determine whether the Officer is considered Disabled within this definition and
may require the Officer to submit to a physical examination in order to confirm
Disability.
1.12. "Early Retirement Age" shall mean age sixty-two (62), with
thirty (30) years of service.
1.13. "Early Retirement Benefit" shall mean one hundred eighty (180)
equal monthly installments of the Deferred Compensation Amount.
1.14 "Just Cause" shall be determined by the Board of Directors and
will include theft, fraud, embezzlement or willful misconduct causing
significant property damage to the Bank or personal injury to another employee.
Just Cause shall also include any single action and/or inaction or series of
actions and/or inactions which result in the Officer not performing the
Officer's duties in the manner expected of the Officer of the Bank. The
existence of Just Cause shall be determined upon recommendation by the Chief
Executive Officer and by vote of seventy percent (70%) of the members of the
Board of Directors.
1.15. "Merger" shall mean a transaction or series of transactions
wherein the Bank is combined with another business entity, and after which the
persons or entities who had owned, either directly or indirectly, a Controlling
Interest in the Bank's voting stock on the date of execution of this Agreement
own less than a Controlling Interest in the voting stock of the combined entity.
1.16. "Retirement Age" shall mean age sixty-five (65), or later at the
election of the Board and Officer.
1.17. "Retirement Benefit" shall mean one hundred eighty (180) equal
monthly installments of the Deferred Compensation Amount.
1.18. "Substantial Change in Ownership" shall mean a transaction or
series of transactions in which a Controlling Interest in the Bank is acquired
by or for a person or business entity, either of which did not own, either
directly or indirectly, a Controlling Interest in the Bank on the date that this
Agreement was executed.
1.19 "Year of Service" shall mean a twelve (12) consecutive month
period during which the Officer is considered a full-time employee of the Bank.
A fractional Year of Service shall accrue at a rate of one-twelfth (1/12) of a
Year of Service for each full month of continuous employment .
ARTICLE II
PAYMENT OF DEATH BENEFIT
2.01. If covered by the provisions of the Agreement, the Bank agrees
that if the Officer dies prior to attaining retirement age or commencement of
payments under Early Retirement, the Bank will pay the Officer's Beneficiary the
Death Benefit. The Death Benefit shall be payable in a lump sum within sixty
(60) days of the death of the Officer. The payment of such Death Benefit will be
subject to the conditions and limitations set forth elsewhere in this Agreement.
Exhibit 10 (cont.)
2.02. Notwithstanding the provisions of this Article II, the Bank
shall have no obligation under this Agreement if the Officer's death results
from suicide, whether sane or insane, within two years of the effective date of
this Agreement.
ARTICLE III
PAYMENT OF RETIREMENT BENEFIT
3.01 Retirement Benefit.
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(a) The Bank shall credit to the Deferred Compensation Account
for each year the Officer is covered by this Agreement, the Annual Funding
Amount which is projected to be necessary to fund his/her Retirement Benefit.
The Deferred Compensation Account shall be segregated from other accounts on the
books and records of the Bank as a contingent liability of the Bank to the
Officer.
3.02. Retirement.
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On or after Retirement Age, the Officer may elect to terminate
service and commence the receipt of the Retirement Benefit in equal monthly
installments commencing on the first business day of the month after the
Officers termination of employment.
3.03. Early Retirement.
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If the Officer has at least thirty (30) years of service with
the Bank, the Officer may retire and begin to receive the Early Retirement
Benefit under this Article III at any time after attaining age sixty-two (62).
However, if there has been a Change in Control, the Officer can retire and begin
receiving Early Retirement Benefit payment at any time after attaining age
sixty-two (62) without satisfying any minimum years of service requirement.
3.04. Post-Retirement Death Benefit.
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If covered by this Agreement, in the event the Officer dies on
or after commencement of Retirement Benefit payments under this Article III, the
Officer's remaining Retirement Benefit payments shall be paid in a lump sum to
the Officer's Beneficiary.
ARTICLE IV
CONDITIONS
4.01. Continuous Employment.
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Eligibility for Benefits under this Agreement is conditioned
upon the Officer's continuous employment in an eligible capacity (periods of
Disability and authorized leave of absence shall be considered as periods of
employment) with the Bank from the date of execution of this Agreement until the
earlier of the date the Officer attains Retirement Age, qualifies for and elects
Early Retirement or dies. Benefit payments are conditioned upon the Officer's
compliance with the terms of this Agreement so long as the Officer lives and
payments are due under the terms of this Agreement. However, in the event of a
Change in Control, continuous employment of the officer shall be required only
until the date of the officer's voluntary termination, permanent Disability or
discharge without Just Cause.
4.02. Change in Control.
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In the event of a Change in Control, this contract shall be
continued in its entirety as set forth in Exhibit A and the amounts credited to
the Deferred Compensation Account and all Subsequent credits thereto, as
credited, shall be fully vested and nonforfeitable.
4.03. Noncompetition.
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Payment of the Retirement Benefit is further conditioned upon
the
Exhibit 10 (cont.)
Officer not acting in any employment capacity for any business enterprise which
competes to a substantial degree with the Bank, nor engaging in any activity
involving substantial competition with the Bank during employment with the Bank,
after retirement from the Bank, or during period of Disability while covered by
the provisions of this Agreement. In the event of violation of this provision,
all future payments shall be cancelled and discontinued. The Board of Directors
shall determine whether violations have occurred and may also waive these
conditions.
ARTICLE V
FUNDING
5.01 The Bank's obligaitons under this Agreement shall be an unfunded
and unsecured promise to pay. The Bank shall not be required under any
circumstances to fund its obligations under this Agreement. The Bank may,
however, in its sole and absolute discretion, elect to fund this Agreement in
whole or in part.
ARTICLE VI
OFFICER RIGHT TO ASSETS
6.01. The rights of the Officer or the Beneficiary shall be solely
those of an unsecured general creditor of the Bank. The Officer or the
Beneficiary shall only have the right to receive from the Bank those payments as
specified under this Agreement. The Officer or the Beneficiary shall have no
rights or interest whatsoever in any assets of the Bank. Any asset used or
acquired by the Bank in coneciton with the liabilities the Bank has assumed
under this Agreement, except as expressly provided, shall not be deemed to be
held under any trust for the benefit of the Officer or the Beneficiary, nor
shall it be considered security for the performance of the obligations of the
Bank. It shall be, and remain, a general, unpledged, and unrestricted asset of
the Bank.
ARTICLE VII
ACCELERATION OF PAYMENT
7.01. The Bank may accelerate to a single payment Benefits payable
under this Agreement with the written consent of the Officer or the Beneficiary.
In the event it is agreed to accelerate payment, the single payment shall be the
remaining credit balance under the Deferred Compensation Account.
ARTICLE VIII
LEAVES OF ABSENCE
8.01. The Bank may, in its sole discretion, permit the Officer to take
a leave of absence; each such period shall not exceed one year in length. During
such leave, the Officer shall be considered to be in the continuous emloyment of
the Bank for purposes of this Agreement.
ARTICLE IX
ASSIGNABILITY
9.01. Except insofar as this provision may be contrary to applicable
law, no sale, transfer, alienation, assignment, pledge, collateralization, or
attachment of any Benefits under this Agreement shall be valid or recognized by
the Bank.
ARTICLE X
AMENDMENT/REVOCATION
10.01. This Agreement shall not be amended, modified, or revoked at
Exhibit 10 (cont.)
any time, in whole or in part, wihtout the mutual written consent of the
Officer and the Bank; provided, however, that in the event the Officer is
Discharged for Just Cause at any time, this Agreement shall be terminated
and considered null and void with neither the Officer nor the Officer's
Beneficiary having any claim or right against the Bank.
ARTICLE XI
LAW GOVERNING/ENFORCEMENT/PARTIES
11.01. This Agreement shall be governed by the laws of the State of
West Virginia. This Agreement is solely between the Bank and the Officer.
Furthermore, the Officer or the Beneficiary shall only have recourse against the
Bank for enforcement of the Agreement. However, it shall be binding upon the
Beneficiary, heirs, executors and administrators of the Officer, and upon any
and all successors and assigns of the Bank.
11.02. The Bank is hereby designated as a fiduciary under this
Agreement. The Bank as a fiduciary shall have authority to control, interpret
and manage the operation and administration of this Agreement. Any decision by
the Bank denying a claim by the Officer or a Beneficiary for Benefits under this
Agreement shall be stated in writing and delivered or mailed to the Officer or
such Beneficiary. Such statement shall set forth the specific reasons for the
denial, written to the best of the bank's ability in a manner that may be
understood without legal or actuarial counsel. In addition, the Bank shall
afford a reasonable opportunity to the Officer or such Beneficiary for a full
and fair review of the decision denying such claim.
ARTICLE XII
SEVERABILITY
12.01. In the event that any of the provisions of this Agreement or
portion thereof, are held to be inoperative or invalid by any court of competent
jurisdiction, then: (a) insofar as is reasonable, effect will be given to the
intent manifested in the provision held invalid or inoperative; and (b) the
validity and enforceability of the remaining provisions will not be affected
thereby.
ARTICLE XIII
INCOMPETENCY
13.01. If the Bank shall find that any person to whom any payment is
payable under this Agreement is unable to care for their affairs because of
illness or accident, or is a minor, any payment due (unless a prior claim shall
have been made by a duly appointed guardian, committee, or other legal
representative) may be paid to the Spouse, a child, a parent, a brother or
sister, or a custodian determined pursuant to the Uniform Gift to Minors Act (or
similar law), or to any person deemed by the Bank to have incurred expense for
such person otherwise entitled to payment, in such manner and proportions as the
Bank may determine. Any such payment shall be a complete discharge of the
liabilities of the Bank under this Agreement.
ARTICLE XIV
NO EMPLOYMENT CONTRACT
14.01. This Agreement shall in no way be construed to create an
employment contract between the Bank and the Officer.
Exhibit 10 (cont.)
ARTICLE XV
PRIOR AGREEMENTS
15.01. This Agreement sets forth the entire understanding of the
parties hereto with respect to the transactions contemplated hereby, and any
previous Agreements or understandings between the parties hereto regarding the
subject matter hereof are merged into and superseded by this Agreement.
IN WITNESS WHEREOF, the parties acknowledge receipt of an executed
orignial of this Agreement signed this 9th day of May , 1995.
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CITIZENS NATIONAL BANK OF ELKINS
ELKINS, WEST VIRGINIA
BY /s/ Xxxxxx X. Xxxxxxxxxx
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President & CEO
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Title
/s/ Xxxxxx X. Xxxxxxxxxx
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Officer
CITIZENS FINANCIAL CORP.
ELKINS, WEST XXXXXXXX
BY /s/ Xxx X. Xxxxxxxxxx
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Chairman of Board
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Title
Exhibit 10 (cont.)
CITIZENS NATIONAL BANK OF ELKINS
ELKINS, WEST VIRGINIA
BENEFICIARY DESIGNATION
PURSUANT to the terms of the EXECUTIVE SUPPLEMENTAL INCOME PLAN
AGREEMENT dated May 9, 1995 , I hereby designate the following beneficiary(ies)
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to receive any payments which may be due under such Agreement after my death:
Primary Individual Beneficiary(ies)
NAME ADDRESS RELATIONSHIP %SHARE
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Xxxx X. Xxxxxxxxxx Elkins, WV Spouse 100%
Contingent Individual Beneficiary(ies):
NAME ADDRESS RELATIONSHIP %SHARE
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Xxxxx Xxxxxxxx Xxxxxx, WV Daughter 1/3
Xxxxxxx Xxxxx Elkins, WV Daughter 1/3
Xxxxxxx Xxxxxxxxxx Xxxxxx, WV Son 1/3
This designation hereby revokes any prior designation which may have been
in effect.
05/09/95 /s/ Xxxxxx X. Xxxxxxxxxx
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Date Officers Signature
05/09/95 /s/ Xxxxxx X. Xxxxxxxxxx, President & CEO
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Date Citizens National Bank of Elkins, WV
05/09/95 /s/ Xxx X. Xxxxxxxxxx, Chairman of Board
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Date Acknowledged By Title
Exhibit 10 (cont.)
EXHIBIT A
This Deferred Compensation amount covering the following officers
enumerates the dollar amount of benefits payable under the Executive
Supplemental Income Agreement. All rights and payment provisions are
controlled by the Executive Supplemental Income Agreement effective on the 9th
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day of May , 1995.
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DEFERRED COMPENSATION AMOUNT
XXXXXX X. XXXXXXXXXX 180 equal monthly installments at $755.08
XXXXXXX X. XXXXXXX 180 equal monthly installments at $668.50
C. M. DOLLY, JR. 180 equal monthly installments at $654.58
XXXXX X. XXXX 180 equal monthly installments at $746.50
XXXXXX X. DERBYSHIRE 180 equal monthly installments at $1069.00
XXXXXXX X. XXXXXX 180 equal monthly installments at $511.75
XXXXX X. XXXXXX 180 equal monthly installments at $214.33
XXXXXXX XXXXXXXX 180 equal monthly installments at $48.23
