[XXXXXXX X. XXXX]
EXHIBIT 10.27
AMENDMENT 3 TO SUPPLEMENTAL RETIREMENT AGREEMENT
This Amendment 3 to Supplemental Retirement Agreement (this
"Amendment") dated as of this 1st day of February, 2004 by and between Charter
One Financial, Inc., its successors and assigns (the "Company") and Xxxxxxx X.
Xxxx (the "Executive") for the purpose of modifying and amending that certain
Supplemental Retirement Agreement between the parties dated as of October 31,
1995, as amended pursuant to Amendments 1 and 2 thereto dated as of May 3, 1996,
and July 1, 2002, respectively (the "SRA").
W I T N E S S E T H :
To induce the Executive to continue his employment with the Company,
the board of directors of the Company has decided to increase the monthly
benefit under the SRA based upon his continued employment commitment to the
Company. This Amendment provides an enhanced supplemental retirement benefit to
the Executive by increasing the Accrued Benefit Percentage under Section
1(a)(ii) of the SRA and by increasing the dollar cap of the Monthly Benefit from
$45,000 to up to $73,125 under Section 1(g) of the SRA (collectively, the
"Enhanced SRA Benefit"). The Company is providing the Enhanced SRA Benefit to
the Executive as part and parcel of the 2004 Senior Executive Retention Plan of
the Company which also includes a deferred compensation benefit to be provided
by the Company to the Executive pursuant either to the Company's 2004 Senior
Executive Cash Deferred Compensation Plan or the Company's 2004 Senior Executive
Stock Unit Deferred Compensation Plan, whichever is applicable (the "2004 Senior
Executive DCP") and the Executive's associated 2004 Senior Executive Cash
Deferred Compensation Plan Agreement or 2004 Senior Executive Stock Unit
Deferred Compensation Plan Agreement, whichever is applicable (the "Executive's
DCP Plan Agreement").
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Section 1(a) of the SRA is hereby amended and fully restated
as follows:
"(a) ACCRUED BENEFIT PERCENTAGE shall mean the
aggregate of (i) .25% for each of the first 60 calendar
quarters that the Executive has heretofore been or is
hereinafter employed by the Company, any of its subsidiaries
(or any predecessors or successors thereto by merger or
purchase) plus .875% for each calendar quarter of employment
thereafter, calculated through the last day of the calendar
quarter in which the Executive (A) experiences a Separation
from Service or (B) attains Normal Retirement Age, whichever
shall first occur; plus (ii) subject to the forfeiture
provisions of Section 3(k) below, 25% if the Executive (A) is
employed by the Company or any of its subsidiaries (or any
successors thereto by merger or purchase) on December 31,
2008, (B) experiences a Separation from Service For Good
Reason prior to January 1, 2009 or (C) experiences a
Separation of Service Without Cause prior to January 1, 2009;
provided however, in no event shall the Accrued Benefit
Percentage
exceed 70%. There shall be no duplication of the Accrued
Benefit Percentage for service with more than one employer."
2. Section 1(b) of the SRA is hereby amended and fully restated
as follows:
"BENEFIT COMMENCEMENT DATE shall mean the last day of
the calendar month following the earliest of (i) Normal
Retirement Age, (ii) the date the Executive attains (or but
for his death would have attained) age 65 if prior thereto he
experiences a Separation from Service for Cause, (iii) the
date of the Executive's Separation from Service for any reason
other than Cause provided the Executive is then age 58 or
older, (iv) the date the Executive attains (or but for his
death would have attained) the age of 58 years if he
experiences a Separation from Service for any reason other
than Cause prior to his attaining age 58 or (v) 6 months after
the date of death of the Executive if he dies while employed
by the Company or any of its subsidiaries (or any successors
thereto by merger or purchase)."
3. Section 1(c) of the SRA is hereby amended and fully restated
as follows:
"(c) CAUSE shall mean a Separation from Service
by action of the Company or any of its subsidiaries (or any
successor by merger or purchase) (i) due to the Executive's
dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure
to perform stated duties, willful violation of any law, rule
or regulation (excluding violations which do not have an
adverse effect on the Company or Charter One Bank, N.A. (or
any successors thereto by merger or purchase)), or material
breach of any provision of his written employment agreement
with the Company which results in a Termination for Cause
under such employment agreement; or (ii) after the Executive
is permanently prohibited from participation in the conduct of
the affairs of the Company or any of its subsidiaries (or any
successors by merger or purchase) by a governmental or
regulatory authority.
4. Section 1(g) of the SRA is hereby amended and fully restated
as follows:
"(g) MONTHLY BENEFIT shall mean the Average
Compensation multiplied by the Accrued Benefit Percentage.
Notwithstanding the foregoing, (i) the Monthly Benefit shall
not exceed $45,000 if the Executive (A) experiences a
Separation from Service prior to January 1, 2009 for any
reason other than (1) For Good Reason or (2) Without Cause, or
(B) forfeits the Enhanced SRA under Section 3(k) below; or
(ii) the Monthly Benefit shall not exceed $73,125 if the
Executive (A) experiences (1) a Separation from Service For
Good Reason prior to January 1, 2009, (2) a Separation of
Service Without Cause prior to January 1, 2009, or (3) a
Separation from Service after December 31, 2008 and (B) has
not forfeited the Enhanced SRA under Section 3(k) below.
5. The SRA is hereby further amended by the addition of the
following new Sections 1(k) and (m):
2
"(k) FOR GOOD REASON shall mean a Separation from
Service by action of the Executive due to a material
diminution of or interference with his duties,
responsibilities or benefits which constitutes an Involuntary
Termination (as defined in the Executive's written employment
agreement with the Company) by action of the Executive.
(l) WITHOUT CAUSE shall mean a Separation from
Service by action of the Company or any of its subsidiaries
(or any successors thereto by merger or purchase), but
specifically excluding a Separation from Service for Cause or
on account of the disability of the Executive."
6. The SRA is hereby further amended by the addition of the
following new Section 3(k),:
"(k) FORFEITURE OF THE ENHANCED BENEFIT. If the
Executive forfeits his Vested Account Balance (as such term is
defined in the 2004 Senior Executive DCP) pursuant to the
terms of the 2004 Senior Executive DCP, then in any such
event, the Executive shall likewise forfeit the Enhanced SRA
Benefit and any rights of the Executive to the Enhanced SRA
Benefit shall cease and terminate (i.e. the Executive shall
not be entitled to the benefit provided in Section 1(a)(ii) or
a Monthly Benefit in excess of $45,000). The 2004 Senior
Executive DCP and the Executive's DCP Plan Agreement are
hereby incorporated herein by reference. If the Executive
commences receiving the Enhanced SRA Benefit and subsequently
forfeits the Enhanced SRA Benefit as provided above, then the
Executive shall be obligated to return to the Company the
cumulative amount of the Enhanced SRA Benefit previously paid
to the Executive.
7. Except as modified and amended herein, the SRA shall remain in full
force and effect.
The parties have caused this Amendment to be executed and delivered as
of the date first above herein written.
CHARTER ONE FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Authorized Officer
EXECUTIVE
/s/ Xxxxxxx X. Xxxx
-------------------------------------
XXXXXXX X. XXXX
3
[XXXXXXX X. XXX]
AMENDMENT 3 TO SUPPLEMENTAL RETIREMENT AGREEMENT
This Amendment 3 to Supplemental Retirement Agreement (this
"Amendment") dated as of this 1st day of February, 2004 by and between Charter
One Financial, Inc., its successors and assigns (the "Company") and Xxxxxxx X.
Xxx (the "Executive") for the purpose of modifying and amending that certain
Supplemental Retirement Agreement between the parties dated as of October 31,
1995, as amended pursuant to Amendments 1 and 2 thereto dated as of May 3, 1996,
and July 1, 2002, respectively (the "SRA").
W I T N E S S E T H :
To induce the Executive to continue his employment with the Company,
the board of directors of the Company has decided to increase the monthly
benefit under the SRA based upon his continued employment commitment to the
Company. This Amendment provides an enhanced supplemental retirement benefit to
the Executive by increasing the Accrued Benefit Percentage under Section
1(a)(ii) of the SRA and by increasing the dollar cap of the Monthly Benefit from
$40,000 to up to $65,000 under Section 1(g) of the SRA (collectively, the
"Enhanced SRA Benefit"). The Company is providing the Enhanced SRA Benefit to
the Executive as part and parcel of the 2004 Senior Executive Retention Plan of
the Company which also includes a deferred compensation benefit to be provided
by the Company to the Executive pursuant to either the Company's 2004 Senior
Executive Cash Deferred Compensation Plan or the Company's 2004 Senior Executive
Stock Unit Deferred Compensation Plan, whichever is applicable (the "2004 Senior
Executive DCP") and the Executive's associated 2004 Senior Executive Cash
Deferred Compensation Plan Agreement or 2004 Senior Executive Stock Unit
Deferred Compensation Plan Agreement, whichever is applicable (the "Executive's
DCP Plan Agreement").
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Section 1(a) of the SRA is hereby amended and fully restated
as follows:
"(a) ACCRUED BENEFIT PERCENTAGE shall mean the
aggregate of (i) .25% for each of the first 60 calendar
quarters that the Executive has heretofore been or is
hereinafter employed by the Company, any of its subsidiaries
(or any predecessors or successors thereto by merger or
purchase) plus .875% for each calendar quarter of employment
thereafter, calculated through the last day of the calendar
quarter in which the Executive (A) experiences a Separation
from Service or (B) attains Normal Retirement Age, whichever
shall first occur; plus (ii) subject to the forfeiture
provisions of Section 3(k) below, (A) 25% if the Executive (1)
is employed by the Company or any of its subsidiaries (or any
successors thereto by merger or purchase) on December 31,
2008, (2) experiences a Separation from Service For Good
Reason prior to January 1, 2009 but after Xxxxxxx X. Xxxx
ceases to be the Chief Executive Officer
of the Company for any reason other than death or (3)
experiences a Separation of Service Without Cause prior to
January 1, 2009, or (B) 1/59 of 25% for each full calendar
month of the Executive's employment with the Company or any of
its subsidiaries (or any successors thereto by merger or
purchase) commencing February 1, 2004 if the Executive
experiences a Separation from Service For Good Reason prior to
January 1, 2009 but after Xxxxxxx X. Xxxx ceases to be the
Chief Executive Officer of the Company due to death; provided
however, in no event shall the Accrued Benefit Percentage
exceed 70%. There shall be no duplication of the Accrued
Benefit Percentage for service with more than one employer."
2. Section 1(b) of the SRA is hereby amended and fully restated
as follows:
"BENEFIT COMMENCEMENT DATE shall mean the last day of
the calendar month following the earliest of (i) Normal
Retirement Age, (ii) the date the Executive attains (or but
for his death would have attained) age 65 if prior thereto he
experiences a Separation from Service for Cause, (iii) the
date of the Executive's Separation from Service for any reason
other than Cause provided the Executive is then age 58 or
older, (iv) the date the Executive attains (or but for his
death would have attained) the age of 58 years if he
experiences a Separation from Service for any reason other
than Cause prior to his attaining age 58 or (v) 6 months after
the date of death of the Executive if he dies while employed
by the Company or any of its subsidiaries (or any successors
thereto by merger or purchase)."
3. Section 1(c) of the SRA is hereby amended and fully restated
as follows:
"(c) CAUSE shall mean a Separation from Service
by action of the Company or any of its subsidiaries (or any
successor by merger or purchase) (i) due to the Executive's
dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure
to perform stated duties, willful violation of any law, rule
or regulation (excluding violations which do not have an
adverse effect on the Company or Charter One Bank, N.A. (or
any successors thereto by merger or purchase)), or material
breach of any provision of his written employment agreement
with the Company which results in a Termination for Cause
under such employment agreement; or (ii) after the Executive
is permanently prohibited from participation in the conduct of
the affairs of the Company or any of its subsidiaries (or any
successors by merger or purchase) by a governmental or
regulatory authority.
4. Section 1(g) of the SRA is hereby amended and fully restated
as follows:
"(g) MONTHLY BENEFIT shall mean the Average
Compensation multiplied by the Accrued Benefit Percentage.
Notwithstanding the foregoing, (i) the Monthly Benefit shall
not exceed $40,000 if the
2
Executive (A) experiences a Separation from Service prior to
January 1, 2009 for any reason other than (1) For Good Reason
after Xxxxxxx X. Xxxx is no longer the Chief Executive Officer
of the Company or (2) Without Cause, or (B) forfeits the
Enhanced SRA under Section 3(k) below; (ii) the Monthly
Benefit shall not exceed $65,000 if the Executive (A)
experiences a Separation from Service (1) For Good Reason
prior to January 1, 2009 but after Xxxxxxx X. Xxxx ceases to
be the Chief Executive Officer of the Company for any reason
other than death, (2) Without Cause prior to January 1, 2009,
or (3) for any reason after December 31, 2008 and (B) has not
forfeited the Enhanced SRA under Section 3(k) below; or (iii)
the Monthly Benefit shall not exceed the aggregate of (A)
$40,000 and (B) 1/59 of $25,000 for each full calendar month
of the Executive's employment with the Company or any of its
subsidiaries (or any successors by merger or purchase)
commencing February 1, 2004 if the Executive (1) experiences a
Separation from Service For Good Reason prior to January 1,
2009 but after Xxxxxxx X. Xxxx ceases to be the Chief
Executive Officer of the Company due to death and (2) has not
forfeited the Enhanced SRA benefit under Section 3(k) below.
5. The SRA is hereby further amended by the addition of the
following new Sections 1(k) and (m):
"(k) FOR GOOD REASON shall mean a Separation from
Service by action of the Executive due to a material
diminution of or interference with his duties,
responsibilities or benefits which constitutes an Involuntary
Termination (as defined in the Executive's written employment
agreement with the Company) by action of the Executive.
(l) WITHOUT CAUSE shall mean a Separation from
Service by action of the Company or any of its subsidiaries
(or any successors thereto by merger or purchase), but
specifically excluding a Separation from Service for Cause or
on account of the disability of the Executive.
6. The SRA is hereby further amended by the addition of the
following new Section 3(k),:
"(k) FORFEITURE OF THE ENHANCED BENEFIT. If the
Executive forfeits his Vested Account Balance (as such term is
defined in the 2004 Senior Executive DCP) pursuant to the
terms of the 2004 Senior Executive DCP, then in any such
event, the Executive shall likewise forfeit the Enhanced SRA
Benefit and any rights of the Executive to the Enhanced SRA
Benefit shall cease and terminate (i.e. the Executive shall
not be entitled to the benefit provided in Section 1(a)(ii) or
a Monthly Benefit in excess of $40,000). The 2004 Senior
Executive DCP and the Executive's DCP Plan Agreement are
hereby incorporated herein by reference."
3
7. Except as modified and amended herein, the SRA shall remain in
full force and effect.
The parties have caused this Amendment to be executed and delivered as
of the date first above herein written.
CHARTER ONE FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxx Xxxx
----------------------------------
Authorized Officer
EXECUTIVE
/s/ Xxxxxxx X. Xxx
--------------------------------------
XXXXXXX X. XXX
4
[XXXX X. XXXX]
AMENDMENT 3 TO SUPPLEMENTAL RETIREMENT AGREEMENT
This Amendment 3 to Supplemental Retirement Agreement (this
"Amendment") dated as of this 1st day of February, 2004 by and between Charter
One Financial, Inc., its successors and assigns (the "Company") and Xxxx X. Xxxx
(the "Executive") for the purpose of modifying and amending that certain
Supplemental Retirement Agreement between the parties dated as of October 31,
1995, as amended pursuant to Amendments 1 and 2 thereto dated as of May 3, 1996,
and July 1, 2002, respectively (the "SRA").
W I T N E S S E T H :
To induce the Executive to continue his employment with the Company,
the board of directors of the Company has decided to increase the monthly
benefit under the SRA based upon his continued employment commitment to the
Company. This Amendment provides an enhanced supplemental retirement benefit to
the Executive by increasing the Accrued Benefit Percentage under Section
1(a)(ii) of the SRA and by increasing the dollar cap of the Monthly Benefit from
$40,000 to up to $65,000 under Section 1(g) of the SRA (collectively, the
"Enhanced SRA Benefit"). The Company is providing the Enhanced SRA Benefit to
the Executive as part and parcel of the 2004 Senior Executive Retention Plan of
the Company which also includes a deferred compensation benefit to be provided
by the Company to the Executive pursuant to either the Company's 2004 Senior
Executive Cash Deferred Compensation Plan or the Company's 2004 Senior Executive
Stock Unit Deferred Compensation Plan, whichever is applicable (the "2004 Senior
Executive DCP") and the Executive's associated 2004 Senior Executive Cash
Deferred Compensation Plan Agreement or 2004 Senior Executive Stock Unit
Deferred Compensation Plan Agreement, whichever is applicable (the "Executive's
DCP Plan Agreement").
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Section 1(a) of the SRA is hereby amended and fully restated
as follows:
"(a) ACCRUED BENEFIT PERCENTAGE shall mean the
aggregate of (i) .25% for each of the first 60 calendar
quarters that the Executive has heretofore been or is
hereinafter employed by the Company, any of its subsidiaries
(or any predecessors or successors thereto by merger or
purchase) plus .875% for each calendar quarter of employment
thereafter, calculated through the last day of the calendar
quarter in which the Executive (A) experiences a Separation
from Service or (B) attains Normal Retirement Age, whichever
shall first occur; plus (ii) subject to the forfeiture
provisions of Section 3(k) below, (A) 25% if the Executive (1)
is employed by the Company or any of its subsidiaries (or any
successors thereto by merger or purchase) on December 31,
2008, (2) experiences a Separation from Service For Good
Reason prior to January 1, 2009 but after Xxxxxxx X. Xxxx
ceases to be the Chief Executive Officer
of the Company for any reason other than death or (3)
experiences a Separation of Service Without Cause prior to
January 1, 2009, or (B) 1/59 of 25% for each full calendar
month of the Executive's employment with the Company or any of
its subsidiaries (or any successors thereto by merger or
purchase) commencing February 1, 2004 if the Executive
experiences a Separation from Service For Good Reason prior to
January 1, 2009 but after Xxxxxxx X. Xxxx ceases to be the
Chief Executive Officer of the Company due to death; provided
however, in no event shall the Accrued Benefit Percentage
exceed 70%. There shall be no duplication of the Accrued
Benefit Percentage for service with more than one employer."
2. Section 1(b) of the SRA is hereby amended and fully restated
as follows:
"BENEFIT COMMENCEMENT DATE shall mean the last day of
the calendar month following the earliest of (i) Normal
Retirement Age, (ii) the date the Executive attains (or but
for his death would have attained) age 65 if prior thereto he
experiences a Separation from Service for Cause, (iii) the
date of the Executive's Separation from Service for any reason
other than Cause provided the Executive is then age 58 or
older, (iv) the date the Executive attains (or but for his
death would have attained) the age of 58 years if he
experiences a Separation from Service for any reason other
than Cause prior to his attaining age 58 or (v) 6 months after
the date of death of the Executive if he dies while employed
by the Company or any of its subsidiaries (or any successors
thereto by merger or purchase)."
3. Section 1(c) of the SRA is hereby amended and fully restated
as follows:
"(c) CAUSE shall mean a Separation from Service
by action of the Company or any of its subsidiaries (or any
successor by merger or purchase) (i) due to the Executive's
dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure
to perform stated duties, willful violation of any law, rule
or regulation (excluding violations which do not have an
adverse effect on the Company or Charter One Bank, N.A. (or
any successors thereto by merger or purchase)), or material
breach of any provision of his written employment agreement
with the Company which results in a Termination for Cause
under such employment agreement; or (ii) after the Executive
is permanently prohibited from participation in the conduct of
the affairs of the Company or any of its subsidiaries (or any
successors by merger or purchase) by a governmental or
regulatory authority.
4. Section 1(g) of the SRA is hereby amended and fully restated
as follows:
"(g) MONTHLY BENEFIT shall mean the Average
Compensation multiplied by the Accrued Benefit Percentage.
Notwithstanding the foregoing, (i) the Monthly Benefit shall
not exceed $40,000 if the
2
Executive (A) experiences a Separation from Service prior to
January 1, 2009 for any reason other than (1) For Good Reason
after Xxxxxxx X. Xxxx is no longer the Chief Executive Officer
of the Company or (2) Without Cause, or (B) forfeits the
Enhanced SRA under Section 3(k) below; (ii) the Monthly
Benefit shall not exceed $65,000 if the Executive (A)
experiences a Separation from Service (1) For Good Reason
prior to January 1, 2009 but after Xxxxxxx X. Xxxx ceases to
be the Chief Executive Officer of the Company for any reason
other than death, (2) Without Cause prior to January 1, 2009,
or (3) for any reason after December 31, 2008 and (B) has not
forfeited the Enhanced SRA under Section 3(k) below; or (iii)
the Monthly Benefit shall not exceed the aggregate of (A)
$40,000 and (B) 1/59 of $25,000 for each full calendar month
of the Executive's employment with the Company or any of its
subsidiaries (or any successors by merger or purchase)
commencing February 1, 2004, if the Executive (1) experiences
a Separation from Service For Good Reason prior to January 1,
2009 but after Xxxxxxx X. Xxxx ceases to be the Chief
Executive Officer of the Company due to death and (2) has not
forfeited the Enhanced SRA benefit under Section 3(k) below.
5. The SRA is hereby further amended by the addition of the
following new Sections 1(k) and (m):
"(k) FOR GOOD REASON shall mean a Separation from
Service by action of the Executive due to a material
diminution of or interference with his duties,
responsibilities or benefits which constitutes an Involuntary
Termination (as defined in the Executive's written employment
agreement with the Company) by action of the Executive.
(l) WITHOUT CAUSE shall mean a Separation from
Service by action of the Company or any of its subsidiaries
(or any successors thereto by merger or purchase), but
specifically excluding a Separation from Service for Cause or
on account of the disability of the Executive.
6. The SRA is hereby further amended by the addition of the
following new Section 3(k),:
"(k) FORFEITURE OF THE ENHANCED BENEFIT. If the
Executive forfeits his Vested Account Balance (as such term is
defined in the 2004 Senior Executive DCP) pursuant to the
terms of the 2004 Senior Executive DCP, then in any such
event, the Executive shall likewise forfeit the Enhanced SRA
Benefit and any rights of the Executive to the Enhanced SRA
Benefit shall cease and terminate (i.e. the Executive shall
not be entitled to the benefit provided in Section 1(a)(ii) or
a Monthly Benefit in excess of $40,000). The 2004 Senior
Executive DCP and the Executive's DCP Plan Agreement are
hereby incorporated herein by reference."
3
7. Except as modified and amended herein, the SRA shall remain in
full force and effect.
The parties have caused this Amendment to be executed and delivered as
of the date first above herein written.
CHARTER ONE FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxx Xxxx
----------------------------------
Authorized Officer
EXECUTIVE
/s/ Xxxx X. Xxxx
-------------------------------------
XXXX X. XXXX
4
[XXXX X. XXXXXX]
AMENDMENT 3 TO SUPPLEMENTAL RETIREMENT AGREEMENT
This Amendment 3 to Supplemental Retirement Agreement (this
"Amendment") dated as of this 1st day of February, 2004 by and between Charter
One Financial, Inc., its successors and assigns (the "Company") and Xxxx X.
Xxxxxx (the "Executive") for the purpose of modifying and amending that certain
Supplemental Retirement Agreement between the parties dated as of October 31,
1995, as amended pursuant to Amendments 1 and 2 thereto dated as of May 3, 1996,
and July 1, 2002, respectively (the "SRA").
W I T N E S S E T H :
To induce the Executive to continue his employment with the Company,
the board of directors of the Company has decided to increase the monthly
benefit under the SRA based upon his continued employment commitment to the
Company. This Amendment provides an enhanced supplemental retirement benefit to
the Executive by increasing the Accrued Benefit Percentage under Section
1(a)(ii) of the SRA and by increasing the dollar cap of the Monthly Benefit from
$40,000 to up to $65,000 under Section 1(g) of the SRA (collectively, the
"Enhanced SRA Benefit"). The Company is providing the Enhanced SRA Benefit to
the Executive as part and parcel of the 2004 Senior Executive Retention Plan of
the Company which also includes a deferred compensation benefit to be provided
by the Company to the Executive pursuant either to the Company's 2004 Senior
Executive Cash Deferred Compensation Plan or the Company's 2004 Senior Executive
Stock Unit Deferred Compensation Plan, whichever is applicable (the "2004 Senior
Executive DCP") and the Executive's associated 2004 Senior Executive Cash
Deferred Compensation Plan Agreement or 2004 Senior Executive Stock Unit
Deferred Compensation Plan Agreement, whichever is applicable (the "Executive's
DCP Plan Agreement").
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Section 1(a) of the SRA is hereby amended and fully restated
as follows:
"(a) ACCRUED BENEFIT PERCENTAGE shall mean the
aggregate of (i) .25% for each of the first 60 calendar
quarters that the Executive has heretofore been or is
hereinafter employed by the Company, any of its subsidiaries
(or any predecessors or successors thereto by merger or
purchase) plus .875% for each calendar quarter of employment
thereafter, calculated through the last day of the calendar
quarter in which the Executive (A) experiences a Separation
from Service or (B) attains Normal Retirement Age, whichever
shall first occur; plus (ii) subject to the forfeiture
provisions of Section 3(k) below, (A) 25% if the Executive (1)
is employed by the Company or any of its subsidiaries (or any
successors thereto by merger or purchase) on December 31,
2008, (2) experiences a Separation from Service For Good
Reason prior to January 1, 2009 but after Xxxxxxx X. Xxxx
ceases to be the Chief Executive Officer
of the Company for any reason other than death or (3)
experiences a Separation of Service Without Cause prior to
January 1, 2009, or (B) 1/59 of 25% for each full calendar
month of the Executive's employment with the Company or any of
its subsidiaries (or any successors thereto by merger or
purchase) commencing February 1, 2004 if the Executive
experiences a Separation from Service For Good Reason prior to
January 1, 2009 but after Xxxxxxx X. Xxxx ceases to be the
Chief Executive Officer of the Company due to death; provided
however, in no event shall the Accrued Benefit Percentage
exceed 70%. There shall be no duplication of the Accrued
Benefit Percentage for service with more than one employer."
2. Section 1(b) of the SRA is hereby amended and fully restated
as follows:
"BENEFIT COMMENCEMENT DATE shall mean the last day of
the calendar month following the earliest of (i) Normal
Retirement Age, (ii) the date the Executive attains (or but
for his death would have attained) age 65 if prior thereto he
experiences a Separation from Service for Cause, (iii) the
date of the Executive's Separation from Service for any reason
other than Cause provided the Executive is then age 58 or
older, (iv) the date the Executive attains (or but for his
death would have attained) the age of 58 years if he
experiences a Separation from Service for any reason other
than Cause prior to his attaining age 58 or (v) 6 months after
the date of death of the Executive if he dies while employed
by the Company or any of its subsidiaries (or any successors
thereto by merger or purchase)."
3. Section 1(c) of the SRA is hereby amended and fully restated
as follows:
"(c) CAUSE shall mean a Separation from Service
by action of the Company or any of its subsidiaries (or any
successor by merger or purchase) (i) due to the Executive's
dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure
to perform stated duties, willful violation of any law, rule
or regulation (excluding violations which do not have an
adverse effect on the Company or Charter One Bank, N.A. (or
any successors thereto by merger or purchase)), or material
breach of any provision of his written employment agreement
with the Company which results in a Termination for Cause
under such employment agreement; or (ii) after the Executive
is permanently prohibited from participation in the conduct of
the affairs of the Company or any of its subsidiaries (or any
successors by merger or purchase) by a governmental or
regulatory authority.
4. Section 1(g) of the SRA is hereby amended and fully restated
as follows:
"(g) MONTHLY BENEFIT shall mean the Average
Compensation multiplied by the Accrued Benefit Percentage.
Notwithstanding the foregoing, (i) the Monthly Benefit shall
not exceed $40,000 if the
2
Executive (A) experiences a Separation from Service prior to
January 1, 2009 for any reason other than (1) For Good Reason
after Xxxxxxx X. Xxxx is no longer the Chief Executive Officer
of the Company or (2) Without Cause, or (B) forfeits the
Enhanced SRA under Section 3(k) below; (ii) the Monthly
Benefit shall not exceed $65,000 if the Executive (A)
experiences a Separation from Service (1) For Good Reason
prior to January 1, 2009 but after Xxxxxxx X. Xxxx ceases to
be the Chief Executive Officer of the Company for any reason
other than death, (2) Without Cause prior to January 1, 2009,
or (3) for any reason after December 31, 2008 and (B) has not
forfeited the Enhanced SRA under Section 3(k) below; or (iii)
the Monthly Benefit shall not exceed the aggregate of (A)
$40,000 and (B) 1/59 of $25,000 for each full calendar month
of the Executive's employment with the Company or any of its
subsidiaries (or any successors by merger or purchase)
commencing February 1, 2004, if the Executive (1) experiences
a Separation from Service For Good Reason prior to January 1,
2009 but after Xxxxxxx X. Xxxx ceases to be the Chief
Executive Officer of the Company due to death and (2) has not
forfeited the Enhanced SRA benefit under Section 3(k) below.
5. The SRA is hereby further amended by the addition of the
following new Sections 1(k) and (m):
"(k) FOR GOOD REASON shall mean a Separation from
Service by action of the Executive due to a material
diminution of or interference with his duties,
responsibilities or benefits which constitutes an Involuntary
Termination (as defined in the Executive's written employment
agreement with the Company) by action of the Executive.
(l) WITHOUT CAUSE shall mean a Separation from
Service by action of the Company or any of its subsidiaries
(or any successors thereto by merger or purchase), but
specifically excluding a Separation from Service for Cause or
on account of the disability of the Executive.
6. The SRA is hereby further amended by the addition of the
following new Section 3(k),:
"(k) FORFEITURE OF THE ENHANCED BENEFIT. If the
Executive forfeits his Vested Account Balance (as such term is
defined in the 2004 Senior Executive DCP) pursuant to the
terms of the 2004 Senior Executive DCP, then in any such
event, the Executive shall likewise forfeit the Enhanced SRA
Benefit and any rights of the Executive to the Enhanced SRA
Benefit shall cease and terminate (i.e. the Executive shall
not be entitled to the benefit provided in Section 1(a)(ii) or
a Monthly Benefit in excess of $40,000). The 2004 Senior
Executive DCP and the Executive's DCP Plan Agreement are
hereby incorporated herein by reference."
3
7. Except as modified and amended herein, the SRA shall remain in
full force and effect.
The parties have caused this Amendment to be executed and delivered as
of the date first above herein written.
CHARTER ONE FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxx Xxxx
----------------------------------
Authorized Officer
EXECUTIVE
/s/ Xxxx X. Xxxxxx
-------------------------------------
XXXX X. XXXXXX
4
[XXXXXX X. XXXX]
AMENDMENT 3 TO SUPPLEMENTAL RETIREMENT AGREEMENT
This Amendment 3 to Supplemental Retirement Agreement (this
"Amendment") dated as of this 1st day of February, 2004 by and between Charter
One Financial, Inc., its successors and assigns (the "Company") and Xxxxxx X.
Xxxx (the "Executive") for the purpose of modifying and amending that certain
Supplemental Retirement Agreement between the parties dated as of October 31,
1995, as amended pursuant to Amendments 1 and 2 thereto dated as of May 3, 1996,
and July 1, 2002, respectively (the "SRA").
W I T N E S S E T H :
To induce the Executive to continue his employment with the Company,
the board of directors of the Company has decided to increase the monthly
benefit under the SRA based upon his continued employment commitment to the
Company. This Amendment provides an enhanced supplemental retirement benefit to
the Executive by increasing the Accrued Benefit Percentage under Section
1(a)(ii) of the SRA and by increasing the dollar cap of the Monthly Benefit from
$25,000 to up to $40,625 under Section 1(g) of the SRA (collectively, the
"Enhanced SRA Benefit"). The Company is providing the Enhanced SRA Benefit to
the Executive as part and parcel of the 2004 Senior Executive Retention Plan of
the Company which also includes a deferred compensation benefit to be provided
by the Company to the Executive pursuant to either the Company's 2004 Senior
Executive Cash Deferred Compensation Plan or the Company's 2004 Senior Executive
Stock Unit Deferred Compensation Plan, whichever is applicable (the "2004 Senior
Executive DCP") and the Executive's associated 2004 Senior Executive Cash
Deferred Compensation Plan Agreement or 2004 Senior Executive Stock Unit
Deferred Compensation Plan Agreement, whichever is applicable (the "Executive's
DCP Plan Agreement").
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Section 1(a) of the SRA is hereby amended and fully restated
as follows:
"(a) ACCRUED BENEFIT PERCENTAGE shall mean the
aggregate of (i) .25% for each of the first 60 calendar
quarters that the Executive has heretofore been or is
hereinafter employed by the Company, any of its subsidiaries
(or any predecessors or successors thereto by merger or
purchase) plus .875% for each calendar quarter of employment
thereafter, calculated through the last day of the calendar
quarter in which the Executive (A) experiences a Separation
from Service or (B) attains Normal Retirement Age, whichever
shall first occur; plus (ii) subject to the forfeiture
provisions of Section 3(k) below, (A) 25% if the Executive (1)
is employed by the Company or any of its subsidiaries (or any
successors thereto by merger or purchase) on December 31,
2008, (2) experiences a Separation from Service For Good
Reason prior to January 1, 2009 but after Xxxxxxx X. Xxxx
ceases to be the Chief Executive Officer
of the Company for any reason other than death or (3)
experiences a Separation of Service Without Cause prior to
January 1, 2009, or (B) 1/59 of 25% for each full calendar
month of the Executive's employment with the Company or any of
its subsidiaries (or any successors thereto by merger or
purchase) commencing February 1, 2004 if the Executive
experiences a Separation from Service For Good Reason prior to
January 1, 2009 but after Xxxxxxx X. Xxxx ceases to be the
Chief Executive Officer of the Company due to death; provided
however, in no event shall the Accrued Benefit Percentage
exceed 70%. There shall be no duplication of the Accrued
Benefit Percentage for service with more than one employer."
2. Section 1(b) of the SRA is hereby amended and fully restated
as follows:
"BENEFIT COMMENCEMENT DATE shall mean the last day of
the calendar month following the earliest of (i) Normal
Retirement Age, (ii) the date the Executive attains (or but
for his death would have attained) age 65 if prior thereto he
experiences a Separation from Service for Cause, (iii) the
date of the Executive's Separation from Service for any reason
other than Cause provided the Executive is then age 58 or
older, (iv) the date the Executive attains (or but for his
death would have attained) the age of 58 years if he
experiences a Separation from Service for any reason other
than Cause prior to his attaining age 58 or (v) 6 months after
the date of death of the Executive if he dies while employed
by the Company or any of its subsidiaries (or any successors
thereto by merger or purchase)."
3. Section 1(c) of the SRA is hereby amended and fully restated
as follows:
"(c) CAUSE shall mean a Separation from Service
by action of the Company or any of its subsidiaries (or any
successor by merger or purchase) (i) due to the Executive's
dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure
to perform stated duties, willful violation of any law, rule
or regulation (excluding violations which do not have an
adverse effect on the Company or Charter One Bank, N.A. (or
any successors thereto by merger or purchase)), or material
breach of any provision of his written employment agreement
with the Company which results in a Termination for Cause
under such employment agreement; or (ii) after the Executive
is permanently prohibited from participation in the conduct of
the affairs of the Company or any of its subsidiaries (or any
successors by merger or purchase) by a governmental or
regulatory authority.
4. Section 1(g) of the SRA is hereby amended and fully restated
as follows:
"(g) MONTHLY BENEFIT shall mean the Average
Compensation multiplied by the Accrued Benefit Percentage.
Notwithstanding the foregoing, (i) the Monthly Benefit shall
not exceed $25,000 if the
2
Executive (A) experiences a Separation from Service prior to
January 1, 2009 for any reason other than (1) For Good Reason
after Xxxxxxx X. Xxxx is no longer the Chief Executive Officer
of the Company or (2) Without Cause, or (B) forfeits the
Enhanced SRA under Section 3(k) below; (ii) the Monthly
Benefit shall not exceed $40,625 if the Executive (A)
experiences a Separation from Service (1) For Good Reason
prior to January 1, 2009 but after Xxxxxxx X. Xxxx ceases to
be the Chief Executive Officer of the Company for any reason
other than death, (2) Without Cause prior to January 1, 2009,
or (3) for any reason after December 31, 2008 and (B) has not
forfeited the Enhanced SRA under Section 3(k) below; or (iii)
the Monthly Benefit shall not exceed the aggregate of (A)
$25,000 and (B) 1/59 of $15,625 for each full calendar month
of the Executive's employment with the Company or any of its
subsidiaries (or any successors by merger or purchase)
commencing February 1, 2004, if the Executive (1) experiences
a Separation from Service For Good Reason prior to January 1,
2009 but after Xxxxxxx X. Xxxx ceases to be the Chief
Executive Officer of the Company due to death and (2) has not
forfeited the Enhanced SRA benefit under Section 3(k) below.
5. The SRA is hereby further amended by the addition of the
following new Sections 1(k) and (m):
"(k) FOR GOOD REASON shall mean a Separation from
Service by action of the Executive due to a material
diminution of or interference with his duties,
responsibilities or benefits which constitutes an Involuntary
Termination (as defined in the Executive's written employment
agreement with the Company) by action of the Executive.
(l) WITHOUT CAUSE shall mean a Separation from
Service by action of the Company or any of its subsidiaries
(or any successors thereto by merger or purchase), but
specifically excluding a Separation from Service for Cause or
on account of the disability of the Executive.
6. The SRA is hereby further amended by the addition of the
following new Section 3(k),:
"(k) FORFEITURE OF THE ENHANCED BENEFIT. If the
Executive forfeits his Vested Account Balance (as such term is
defined in the 2004 Senior Executive DCP) pursuant to the
terms of the 2004 Senior Executive DCP, then in any such
event, the Executive shall likewise forfeit the Enhanced SRA
Benefit and any rights of the Executive to the Enhanced SRA
Benefit shall cease and terminate (i.e. the Executive shall
not be entitled to the benefit provided in Section 1(a)(ii) or
a Monthly Benefit in excess of $25,000). The 2004 Senior
Executive DCP and the Executive's DCP Plan Agreement are
hereby incorporated herein by reference." If the Executive
commences receiving the Enhanced SRA Benefit and
3
subsequently forfeits the Enhanced SRA Benefit as provided
above, then the Executive shall be obligated to return to the
Company the cumulative amount of the Enhanced SRA Benefit
previously paid to the Executive.
7. Except as modified and amended herein, the SRA shall remain in
full force and effect.
The parties have caused this Amendment to be executed and delivered as
of the date first above herein written.
CHARTER ONE FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxx Xxxx
-----------------------------------
Authorized Officer
EXECUTIVE
/s/ Xxxxxx X. Xxxx
---------------------------------------
XXXXXX X. XXXX
4
