Exhibit 10.10
Deferred Compensation Agreement - Directors
This Agreement made as of the _______ day of [month/year], by and
between The Xxxxxx Corporation, a business corporation organized under the laws
of the State of New York (hereinafter referred to as "Xxxxxx") and
[name/address] (hereinafter referred to as "Director").
WHEREAS, Director serves Xxxxxx and/or Xxxxxx National Bank, a banking
corporation organized under the laws of the State of New York (the "Bank") as a
director; and
WHEREAS, the Director is paid fees for attendance at meetings of the
board directors ("Board Fees") of Xxxxxx and/or the Bank or for attendance at
meetings of committees of the board of directors of Xxxxxx and/or the Bank; and
WHEREAS, Xxxxxx wishes to establish a deferred compensation plan for
Director to provide Director with a means of saving and investing for future
retirement.
1. A Deferred Compensation Account ("Account") shall be established for
Director on the Xxxxxx'x books for the benefit of Director. The account shall be
credited in an amount equal to amounts elected to be deferred by Director in
accordance with Paragraphs 2 and 3 of this Agreement.
The amount credited to the Account shall not be held by Xxxxxx in
trust, escrow, or similar fiduciary capacity, and neither Director nor any legal
representative shall have any right against Xxxxxx with respect to any portion
of the account, except as a general unsecured creditor of Xxxxxx.
2. The account shall be credited monthly commencing [month/day/year]
with an amount that Director has notified Xxxxxx in writing not less than ten
(10) days prior to January 1 of such year that he wishes to have deferred.
For the initial plan year, which shall commence on the effective date
of this plan, and end on [month/day/year], Director shall notify Xxxxxx of the
amount to be deferred for [year] under this plan on or prior to the effective
date hereof. Director's Board and Committee fees to which Director may be
entitled shall be reduced at Director's option by the amount deferred. This
agreement shall continue from year to year until canceled by either party in
writing eighty (80) days prior to the end of the year or until Director's
service is terminated by death, retirement or for any other reason.
3. The amount in the Account shall be deemed to have been invested and
reinvested from time to time at the five-year Treasury note rate which shall be
set January 1 of each year.
The Account shall be credited with interest on the first day of each
calendar month and shall have been deemed to be reinvested at interest on that
date.
As of the first date on which all or an installment of deferred
compensation becomes payable, and as of each subsequent date on which an
installment is payable (hereinafter referred to as "installment payment dates")
the Account shall be valued by adding to the dollar amount credited to the
Account the interest earned to the distribution date to ascertain the current
account balance. The amount of each installment of deferred compensation shall
be determined by dividing the aggregate value of the Account by the number of
installments remaining to be paid, including the installment then due. As each
payment is made the Account shall be charged with the amount of such payment,
valued as of the installment payment date. Director shall have the right to
designate the manner in which each installment payment is to be charged to the
Account by notice to Xxxxxx prior to the installment payment date, but upon
Director's failure to do so, Xxxxxx shall have the right to charge the Account,
in dollars in the amount equal to the payment.
4. The total accumulated amount deferred hereunder shall be paid to the
Director, or the beneficiary designated by him in the event of his death, in a
lump sum within one year or in installments over a period of sixty (60) months
(in the percentages and at the times specified in the tabulation annexed hereto)
following the date the Director is no longer a member of the Board of Directors
of any Affiliate ("Service Termination Date"). For purposes of this Agreement,
"Affiliate" shall mean Xxxxxx and the members of the "affiliated group" within
the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended, of
which Xxxxxx is the common parent. The period and amounts of such payments may
be changed only in accordance with the provisions of Section 8 hereof.
In the event no selection is made by Director, payment shall be made in
a lump sum.
Benefits payable to Director shall commence not earlier than the
Service Termination Date and not later than ninety (90) days thereafter.
5. Director shall have the right to designate a beneficiary to receive
all or any part of Director's Account which may remain unpaid at Director's
death, such amounts to be paid as provided in Paragraph 6. Such designation
shall be effected by filing a written notification with Xxxxxx, and may be
changed from time to time by similar action. If no such designation is made by
Director, any balance in the Account shall be paid to Director's estate as
provided in Paragraph 6.
6. Should Director select a form of payment other than a lump sum
pursuant to Paragraph 4, and in the event of Director's death after he has
commenced receiving monthly payments pursuant to Paragraph 4, monthly payments
in that amount shall continue as long as there is a balance in the Account to
the person or persons specified in accordance with Paragraph 5. In the event of
Director's death prior to Director
commencing to receive payments pursuant to Paragraph 4, the person or persons
specified in accordance with Paragraph 6 shall be paid in a lump sum, unless
otherwise directed by Director prior to Director's death.
7. Neither Director nor Director's duly designated beneficiary shall
have any right to assign, transfer, pledge, encumber or otherwise convey by Will
or inter vivos instrument the right to receive any amounts of compensation which
may become due hereunder, and any such attempt at assignment, transfer, pledge
encumbrance or other conveyance shall not be recognized by Xxxxxx and will not
be binding on Xxxxxx.
8. Director may change, but only with Xxxxxx'x consent, his election of
payment terms by executing a new Pay-back Schedule. However, no such change
shall be effective during the one-year period beginning on the day Director
executes the new Pay-back Schedule. If, during such one-year period, Director
becomes entitled to receive a payment or payments under the Plan pursuant to his
last effective payment terms election, said last effective payment terms
election shall remain in full force and effect and the new election shall be
null and void.
9. Any notice given under this agreement must be given by certified or
registered mail to the respective party at the address set forth below, or to
such substituted address as may be designated in any notice sent in accordance
with this provision.
Corporate Secretary
The Xxxxxx Corporation
000 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
10. This agreement is made pursuant to a Deferred Compensation Plan
maintained by Xxxxxx, copies of which have been delivered to Director prior to
the execution hereof.
11. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, administrators, personal
representative, successors and assigns.
Xxxxxx agrees that should its ownership in any manner be transferred or
conveyed, whether by merger, reorganization, purchase of stock or assets,
liquidation, dissolution, split-off, spin-off or otherwise, that this Agreement
shall survive, and be binding upon its successor, regardless of form.
12. In the event Director incurs a financial hardship, Xxxxxx, in its
sole discretion, may distribute all or part of the amounts credited to
Director's account prior to the time such amounts would otherwise be payable
under the terms of this Agreement. Such accelerated distribution may only be
made in the event of a financial emergency which is beyond Director's control,
and only if the disallowance of the accelerated
distribution would result in severe financial hardship to Director or Director's
immediate family. Such accelerated distribution will be made only in the amount
necessary to alleviate the financial emergency.
13. This Agreement shall be construed in accordance with the laws of
the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
THE XXXXXX CORPORATION
By:
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Director
FIRST AMENDMENT TO
DEFERRED COMPENSATION AGREEMENT - DIRECTORS
AGREEMENT TO AMEND THE DEFERRED COMPENSATION AGREEMENT (the "First
Amendment") dated as of __________, 1999, between THE XXXXXX CORPORATION, a
business corporation organized under the laws of the State of New York ("Bank")
and __[Name of employee]______ of [town], New York ("Employee").
W I T N E S S E T H:
WHEREAS, Xxxxxx and Director previously entered into a Deferred
Compensation Agreement, dated the [day] day of [month], [year] (the "Deferred
Compensation Agreement"), which, among other items, provides the Director with
the opportunity to defer receipt of Board Fees according to the terms of the
Deferred Compensation Agreement; and
WHEREAS, the enactment of the American Jobs Creation Act of 2004 added
section 409A to the Internal Revenue Code of 1986, as amended ("Code Section
409A"); and
WHEREAS, the Internal Revenue Service recently promulgated proposed
regulations implementing Code Section 409A (the "Proposed Regulations"); and
WHEREAS, the Xxxxxx and the Director desire to modify the Agreement to
comply with Code Section 409A and the Proposed Regulations.
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Effective January 1, 2005, the Deferred Compensation Agreement is
amended by deleting the first sentence that comprises the entire first paragraph
of Paragraph "2" and replacing it with the following two sentences: "The
Director may elect to defer Board Fees by completing and executing a Deferred
Compensation Election - Form A in the form attached hereto which specifies the
amount of the Director's Board and Committee Fees to be deferred and filing it
with Xxxxxx not less than ten (10) days prior to the January 1st of the year in
which such deferrals shall be made. Deferrals to the Account will be credited
monthly".
2. Effective January 1, 2005, the Deferred Compensation Agreement is
amended by deleting the last sentence of the second paragraph of Paragraph
"2"and substituting the following in its place:
"An election to defer Board and Committee fees hereunder may
be modified (including revocation) only as of the first day of a Plan
Year. No election, modification or revocation is permissible with
respect to Board and Committee fees to which the Director may be
entitled paid prior to the execution of Deferred Compensation Election
Form. This Agreement shall continue from year to year as modified
hereunder until Director's service is terminated by death, retirement
or for any other reason."
3. Effective January 1, 2005, the Deferred Compensation Agreement is
amended by replacing Paragraph "4" thereof with the following two paragraphs:
"Solely with respect to amounts deferred into a Deferred
Compensation Account prior to January 1, 2006, the total accumulated
amount deferred hereunder shall be paid to the Director following the
date
the Director is no longer a member of the Board of Directors of any
Affiliate ("Service Termination Date") in the form of either a lump sum
on the one hand or in monthly, quarterly or annual installments for a
period of up to five (5) years on the other hand. Director shall elect
the form and time of distribution of the Account on the Director's
Service Termination Date by completing a Deferred Compensation Election
Form in the form attached hereto and filing it with Xxxxxx no later
than December 31, 2005. Upon filing with Xxxxxx, such "Deferred
Compensation Election Form - Form A" shall be incorporated by reference
herein. This election of the form and timing of the distribution of the
Account may not be changed once made and may not (i) change the form of
payments that Director would otherwise receive in 2006 and (ii) may not
cause a benefit to be paid to Director in 2006 that otherwise would
have been made at a later time.
The form or timing of the distribution of amounts deferred
after December 31, 2004 may not be modified. All such amounts deferred
after December 31, 2004 will be paid in the same form and at the same
time as elected by the Director on the Deferred Compensation Election
Form."
4. The following is inserted as the new third sentence of Paragraph "5"
of the Deferred Compensation Agreement:
"Effective January 1, 2005, such designation (or a change in
such designation) shall be made by filing a `Beneficiary Election Form
- Form B' in the form attached hereto."
5. The following is inserted as the new fourth sentence of Paragraph
"8" of the Deferred Compensation Agreement:
"Effective January 1, 2005, such designation (or a change in
such designation) shall be made in accordance with the terms of
Paragraph 4."
6. Effective January 1, 2005, the second sentence of Paragraph "12" of
the Deferred Compensation Agreement is deleted and replaced with the following
two sentences:
"Such accelerated distribution will be made only in the amount
necessary to alleviate the financial emergency (including any amounts
necessary to pay federal, state or local income taxes reasonably
anticipated to result from the distribution. For the purposes of this
Paragraph 12, `hardship' shall mean a severe financial hardship to
Director resulting from an illness or accident of Director, Director's
spouse or dependent (as defined in Section 152(a) of the Code), loss of
Director's property due to casualty or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of Director."
7. Capitalized terms used herein, but not otherwise defined herein,
shall have the meanings ascribed to them in the Deferred Compensation Agreement.
8. All other terms of the Deferred Compensation Agreement remain in
full force and effect.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of
the day and year first above written.
THE XXXXXX CORPORATION
by:
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[Name]
[Title]
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[Name of Director]
