Death Benefits Agreement between NBT Bancorp Inc., NBT Bank, National Association and Daryl R. Forsythe made August 22, 1995.
Exhibit
10.12
Death
Benefits Agreement between NBT Bancorp Inc., NBT Bank, National Association
and
Xxxxx X. Xxxxxxxx made August 22, 1995.
THIS
AGREEMENT, made and entered into this 22nd day of August, 1995, by and among
NBT
Bancorp Inc., a Delaware corporation and registered bank holding company, and
NBT Bank, National Association, a national banking association organized under
the laws of the United States (hereinafter referred to collectively as the
"Bank") and Xxxxx X. Xxxxxxxx, an individual residing at 00 Xxxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxx, XX 00000 (hereinafter referred to as the "Employee").
WHEREAS,
the Bank has retained the Employee as its president and chief executive officer;
and
WHEREAS,
the Bank is desirous of retaining the services of the Employee; and
WHEREAS,
the Bank is desirous of assisting the Employee in carrying life insurance on
his
life; and
WHEREAS,
the Bank has determined that its interests can best be served under a
"split-dollar" arrangement; and
WHEREAS,
the Bank and the Employee have applied for Insurance Policy No. 8876212 (the
"Policy") issued by the New England Mutual Life Insurance Company ("The New
England") in the face amount of $800,000 on the
Employee's
life; and
WHEREAS,
the Bank and the Employee agree to make said insurance policy subject to this
split-dollar agreement; and
WHEREAS,
it is now understood and agreed that this split-dollar agreement is to be
effective as of the date on which the Policy was issued by The New England.
NOW,
THEREFORE, for value received and in consideration of the mutual covenants
contained herein, the parties agree as follows:
ARTICLE
I
- DEFINITIONS
For
purposes of this Agreement, the following terms will have the meanings set
forth
below:
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1.
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"Cash
Surrender Value of the Policy" will mean the Cash Value of the Policy,
plus the cash value of any paid-up additions, plus any dividend
accumulations and unpaid dividends, and less any Policy Loan Balance.
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2.
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"Cash
Value of the Policy" will mean the cash value as illustrated in the
table
of values shown in the Policy.
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3.
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"Bank's
Interest in the Policy" will be defined in Article VII.
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4.
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"Current
Loan Value of the Policy" will mean the Loan Value of the Policy
reduced
by any outstanding Policy Loan Balance.
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5.
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"Loan
Value of the Policy" will mean the amount which together with loan
interest will equal the Cash Value of the Policy and of any paid-up
additions on the next loan interest due date or on the next premium
due
date, whichever is the smaller amount.
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6.
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"Policy
Loan Balance" at any time will mean policy loans outstanding plus
interest
accrued to date.
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ARTICLE
II - ALLOCATION OF PREMIUMS
The
Bank
will pay all premiums on the Policy when due.
ARTICLE
III - WAIVER OF PREMIUMS RIDER
The
Bank
has added a rider to the Policy providing for the waiver of premiums in the
event of the Employee's disability. Any additional premium attributable to
such
rider will be payable by the Bank.
ARTICLE
IV - OTHER RIDERS AND SUPPLEMENTAL AGREEMENTS
Should
the parties to this Agreement deem it desirable, the Bank will add to the Policy
one or more of such other riders and supplemental agreements which may be
available from The New England from time to time. Any additional premium
attributable to any such rider or supplemental agreement will be payable by
the
Bank. Notwithstanding the provisions of Article VIII, any additional death
benefits provided by such rider or supplemental agreement will be paid to the
Bank, unless otherwise agreed to by the parties at the time of the adoption
of
the particular rider or supplemental agreement.
ARTICLE
V
- PAYMENT OF PREMIUMS
Any
premium or portion thereof which is payable by the Employee under any Article
of
this Agreement may at the election of the Employee be deducted from the cash
compensation otherwise payable to him, and the Bank agrees to transmit that
premium or portion, along with any premium or portion thereof payable by it,
to
The New England on or before the premium due date.
ARTICLE
VI - APPLICATION OF POLICY DIVIDENDS
All
dividends attributable to the Policy will be to provide paid-up additional
insurance.
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ARTICLE
VII - RIGHTS IN THE POLICY
The
Employee will have the sole right to designate the beneficiary of the death
proceeds of the Policy in excess of the Bank's Interest in the Policy. The
Bank
will have and may exercise, except as limited hereinafter, all ownership rights
in the Policy. The Bank will not surrender the policy for cancellation except
upon expiration of the thirty (30) day period described in Article X. The Bank
will not without the written consent of the Employee assign its rights in the
Policy, other than for the purposes of obtaining a loan against the Policy,
to
anyone other than the Employee. The Bank will not take any action dealing with
The New England that would impair any right or interest of the Employee in
the
Policy. The Bank will have the right to borrow from The New England and to
secure that loan by the Policy, an amount which, together with the unpaid
interest accrued thereon, will at no time exceed the lesser of (a) the Bank's
Interest in the Policy or (b) the Loan Value of the Policy. "Bank's Interest
in
the Policy" will mean, at any time at which the value of such interest is to
be
determined under this Agreement, the Cash Surrender Value of the Policy at
such
time.
ARTICLE
VIII - RIGHTS TO THE PROCEEDS AT DEATH
In
the
event of the Employee's death while this Agreement is in force, the beneficiary
designated by the Employee will receive $600,000 from the Policy proceeds.
The
Bank will receive the remainder of the Policy proceeds.
ARTICLE
IX - TERMINATION OF AGREEMENT
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1.
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This
Agreement may be terminated at any time while the Employee is living
by
written notice thereof by either the Bank or the Employee to the
other;
and, in any event, this Agreement will terminate upon termination
of the
Employee's employment.
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2.
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In
the event of the Employee's total disability, as defined in the rider,
which begins while the Employee is employed, while the rider is in
force,
and which continues for at least six months, the benefits provided
under
this Agreement will continue until midnight before the Employee's
65th
birthday. If at any time following the initial six month period of
disability as defined in the rider The New England stops waiving
premiums,
then Section 1 of this Article will again be applicable.
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ARTICLE
X
- EMPLOYEE RIGHTS UPON TERMINATION
Upon
termination of the Agreement, the Employee will transfer all of his right,
title
and interest in the Policy to the Bank, by executing such documents as are
necessary to transfer such right, title and interest as of the date of
termination. The Bank will thereafter be able to deal with the Policy in any
way
it may see fit.
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ARTICLE
XI - PLAN MANAGEMENT
For
purposes of the Employee Retirement Income Security Act of 1974 ("ERISA"),
the
Bank will be the "Named Fiduciary" and "Plan Administrator" of the split dollar
life insurance plan (the "Plan") for which this Agreement is hereby designated
the written plan instrument. The Bank's board of directors may authorize a
person or group of persons to fulfill the responsibilities of the Bank as Plan
Administrator. The Named Fiduciary or the Plan Administrator may employ others
to render advice with regard to its responsibilities under this Plan. The Named
Fiduciary may also allocate fiduciary responsibilities to others and may
exercise any other powers necessary for the discharge of its duties to the
extent not in conflict with ERISA.
ARTICLE
XII - CLAIMS PROCEDURE
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1.
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Filing
Claims: Any insured, beneficiary or other individual (hereinafter
"Claimant") entitled to benefits under the Plan or under the Policy
will
file a claim request with the Plan Administrator with respect to
benefits
under the Plan with The New England with respect to benefits under
the
Policy. The Plan Administrator will, upon written request of the
Claimant,
make available copies of any claim forms or instructions provided
by The
New England or advise the Claimant where such forms or instructions
may be
obtained.
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2.
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Notification
to Claimant: If a claim is wholly or partially denied, the Plan
Administrator will furnish to the Claimant a notice of the decision
within
ninety (90) days in writing and in a manner calculated to be understood
by
the Claimant, which notice will contain the following information:
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(a)
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The
specific reason or reasons for the denial;
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(b)
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Specific
reference to pertinent Plan provisions upon which the denial is based;
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(c)
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A
description of any additional material or information necessary for
the
Claimant to perfect the claim and an explanation of why such material
or
information is necessary; and
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(d)
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An
explanation of the Plan's claims review procedure describing the
steps to
be taken by a Claimant who wishes to submit his claim for review.
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In
the
case of benefits which are provided under the Policy, the initial decision
on
the claims will be make by The New England.
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3.
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Review
Procedure: A Claimant or his authorized representative may with respect
to
any denied claim:
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(a)
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Request
a review upon written application filed within sixty (60) days after
receipt by the Claimant of written notice of the denial of his claim;
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(b)
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Review
pertinent documents; and
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(c)
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Submit
issues and comments in writing.
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Any
request or submission will be in writing and will be directed to the Named
Fiduciary (or its designee). The Named Fiduciary (or its designee) will have
the
sole responsibility for the review of any denied claim and will take all steps
appropriate in the light of its findings.
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4.
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Decision
on Review: The Named Fiduciary (or its designee). The Named Fiduciary
(or
its designee) will render a decision upon review. If special circumstances
(such as the need to hold a hearing or any matter pertaining to the
denied
claim) warrant additional time, the decision will be rendered as
soon as
possible, but not later than one hundred twenty (120) days after
receipt
of the request for review. Written notice of any such extension will
be
furnished to the Claimant prior to the commencement of the extension.
The
decision on review will be in writing and will include specific reasons
for the decision, written in a manner calculated to be understood
by the
Claimant, as well as specific references to the pertinent provisions
of
the Plan on which the decision is based. If the decision on review
is not
furnished to the Claimant with the time limits prescribed above,
the claim
will be deemed denied on review.
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ARTICLE
XIII - SATISFACTION OF CLAIM
The
Employee agrees that his rights and interests, and the rights and interests
of
any persons taking under or through him, will be completely satisfied upon
compliance by the Bank with the provisions of this Agreement.
ARTICLE
XIV - AMENDMENT AND ASSIGNMENT
This
Agreement may be altered, amended or modified, including the addition of any
extra policy provisions, by a written instrument signed by the Bank and the
Employee. Either party may, subject to the limitations of Article VII, assign
its interests and obligations under this Agreement, provided, however, that
any
assignment will be subject to the terms of this Agreement.
ARTICLE
XV - POSSESSION OF POLICY
The
Bank
will keep possession of the Policy. The Bank agrees from time to time to make
the Policy available to the Employee or to The New England for the purpose
of
endorsing or filing any change of beneficiary on the Policy for that portion
of
the death proceeds in excess of the Bank's Interest in the Policy as provided
in
Article VII, but the Policy will promptly be returned to the Bank.
ARTICLE
XVI - GOVERNING LAW
This
Agreement sets forth the entire agreement of the parties hereto, and any and
all
prior agreements, to the extent inconsistent herewith, are hereby superseded.
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This
Agreement will be governed by the laws of the State of New York.
ARTICLE
XVII - INTERPRETATION
Where
appropriate in this Agreement, words used in the singular will include the
plural and words used in the masculine will include the feminine.
IN
WITNESS WHEREOF, the parties have hereunto set their hands and seals, the Bank
by its duly authorized officer, on the day and year first written above.
EMPLOYEE
/s/Xxxxx
X. Xxxxxxxx (L.S.)
Xxxxx
X.
Xxxxxxxx
/s/Xxxxxxx
X. Xxxxxxx (L.S.)
By
Its
Chairman of Board
NBT
Bank,
National Association
/s/Xxxx
X. Xxxxxxxx (L.S.)
By
Its
Compensation Committee Chairman
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