EXHIBIT 10.12
THE PEOPLES STATE BANK
AMENDED AND RESTATED
SALARY CONTINUATION AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is dated February 15, 2000 and
effective January 1, 2000, by THE PEOPLES STATE BANK, a Pennsylvania banking
institution located in East Berlin, Pennsylvania (the "Company") and XXXXXXX X.
XXX (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company and Executive entered into a certain Salary Continuation Agreement
("Agreement") dated March 28, 1997 effective January 1, 1997. The Company and
Executive desire to amend and restate the Agreement as hereinafter set forth.
AGREEMENT
The Executive and the Company agree as follows:
Article 1
Definitions
1.1 Definitions. Whenever used in this Agreement, the following words
and phrases shall have the meanings specified:
1.1.1 "Change of Control" shall mean any of the following:
(A) An acquisition by any "person" or "group" (as those
terms are defined or used in Section 13(d) of the Exchange Act,
as enacted and in force on the date hereof) of "beneficial
ownership" (within the meaning of Rule 13d-3 under the Exchange
Act, as enacted and in force on the date hereof) of securities of
Company representing 24.99% or more of the combined voting power
of Company's securities then outstanding;
(B) A merger, consolidation or other reorganization of Compa
ny, except where the resulting entity is controlled, directly or
indirectly, by Company;
(C) A merger, consolidation or other reorganization of Compa
ny, except where shareholders of Company immediately prior to
consummation of any such transaction continue to hold at least a
majority of the voting power of the outstanding voting securities
of the legal entity resulting from or existing after any
transaction and a majority of the members of the Board of
Directors of the legal entity resulting from or existing after a
transaction are former members of Company's Board of Directors;
(D) A sale, exchange, transfer or other disposition of
substantially all of the assets of Company to another entity,
except to an entity controlled, directly or indirectly, by
Company or a corporate division involving Company;
(E) A contested proxy solicitation of Company's shareholders
that results in the contesting party obtaining the ability to
cast twenty-five percent (25%) or more of the votes entitled to
be cast in an election of directors of Company.
Notwithstanding anything else to the contrary set forth in this
Agreement, if (i) an agreement is executed by the Corporation or the
Company providing for any of the transactions or events constituting a
Change of Control as defined herein, and the agreement subsequently expires
or is terminated without the transaction or event being consummated, and
(ii) Executive's employment did not terminate during the period after the
agreement and prior to such expiration or termination, for purposes of this
Agreement it shall be as though such agreement was never executed and no
Change of Control event shall be deemed to have occurred as a result of the
execution of such agreement.
1.1.2 "Code" means the Internal Revenue Code of 1986, as amended.
1.1.3 "Corporation" means Community Banks, Inc.
1.1.4 "Disability" means the Executive suffering a sickness,
accident or injury which, in the judgment of a physician
satisfactory to the Company, prevents the Executive from
performing substantially all of the Executive's normal
duties for the Company for a period of nine (9) months of
any twelve (12) consecutive month period. As a condition to
any benefits, the Company may require the Executive to
submit to such physical or mental evaluations and tests as
the Company's Board of Directors deems appropriate.
1.1.5 "Early Termination" means the Termination of Employment
before Normal Retirement Age for reasons other than death,
Disability, Termination for Cause or following a Change of
Control.
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1.1.6 "Early Termination Date" mean the month, day and year in
which Early Termination occurs.
1.1.7 "Normal Retirement Age" means the Executive's 62nd
birthday.
1.1.8 "Normal Retirement Date" means the later of the Normal
Retirement Age or Termination of Employment.
1.1.9 "Plan Year" means each twelve-month period commencing with
the effective date of this Agreement.
1.1.10 "Termination for Cause" See Section 5.2.
1.1.11 "Termination of Employment" means that the Executive
ceases to be employed by the Company for any reason
whatsoever other than by reason of a leave of absence which
is approved by the Company. For purposes of this Agreement,
if there is a dispute over the employment status of the
Executive or the date of the Executive's Termination of
Employment, the Company shall have the sole and absolute
right to decide the dispute.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. Upon Termination of Employment on or
after the Normal Retirement Age for reasons other than death, the Company
shall pay to the Executive the benefit described in this Section 2.1 in
lieu of any other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual Normal Retirement Benefit
under this Section 2.1 is Forty Thousand ($40,000) Dollars.
The annual benefit amounts on Schedule A are calculated by
amortizing the annual normal retirement benefit using the
interest method of accounting, a 7.00% discount rate,
monthly compounding and monthly payments.
2.1.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments
payable on the first day of each month commencing with the
month following the Executive's Normal Retirement Date and
continuing for 239 additional months. Termination, the
Company shall pay to the Executive the benefit described in
this Section 2.2 in lieu of any other benefit under this
Agreement.
2.2 Early Termination Benefit. Upon Early Termination, the company
shall pay to the Executive the benefit described in this Section 2.2 in
lieu of any other benefit under this Agreement.
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2.2.1 Amount of Benefit.The annual benefit under this Section 2.2
is the Early Termination Annual Benefit set forth in
Schedule A for the Plan Year ending immediately prior to the
Early Termination Date.
2.2.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments
payable on the first day of each month commencing with the
month following the Executive's Normal Retirement Age and
continuing for 239 additional months.
2.3 Disability Benefit. If the Executive terminates employment due to
Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.3 in lieu of any other
benefit under this Agreement.
2.3.1 Amount of Benefit. The annual benefit under this Section
2.3 is the Disability Benefit amount set forth in Schedule A
for the Plan Year ending immediately prior to the date in
which Termination of Employment occurs.
2.3.2 Payment of Benefit. The Company shall have the option to
pay the accrued benefit equivalent of the Disability Annual
Benefit to the Executive in a lump sum within sixty (60)
days after the Executive's termination of employment. The
Company shall pay the benefit to the Executive in 12 equal
monthly installments commencing within 90 days after the
date of the Executive's Termination of Employment and
continuing for 239 additional months.
2.4 Change of Control Benefit. If the Executive is in the active
service of the Company at the time of a Change of Control, the Company
shall pay to the Executive the benefit described in this Section 2.4 in
lieu of any other benefit under this Agreement.
2.4.1 Amount of Benefit. The annual benefit under this Section
2.4 is the Early Termination Benefit set forth in Schedule
A, based on two (2) years plus the number of Plan Years
completed on the date of the Executive's termination of
employment, not to exceed twenty- one (21) years.
2.4.2 Payment of Benefit.The Company shall pay the annual benefit
to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month
following the Executive's Normal Retirement Age and
continuing for 239 additional months or at the Company's
option pay the Accrued Benefit set forth on Schedule "A"
within sixty (60) days after the Executive's termination of
employment.
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Article 3
Death Benefits
3.1 Death During Active Service. If the Executive dies while in the
active service of the Company, the Company shall pay to the Executive's
beneficiary the benefit described in this Section 3.1. This benefit shall
be paid in lieu of the Lifetime Benefits of Article 2.
3.1.1 Amount of Benefit. The annual benefit under this Section
3.1 is the Normal Retirement Benefit described in Section
2.1.1.
3.1.2 Payment of Benefit. The Company shall pay the annual
benefit to the beneficiary in 12 equal monthly installments
payable on the first day of each month commencing with the
month following the Executive's death and continuing for 239
additional months.
3.2 Death During Benefit Period. If the Executive dies after the
benefit payments have commenced under this Agreement but before receiving
all such payments, the Company shall pay the remaining benefits to the
Executive's beneficiary at the same time and in the same amounts they would
have been paid to the Executive had the Executive survived.
3.3 Death Following Termination of Employment But Before Benefits
Commence. If the Executive is entitled to benefits under this Agreement,
but dies prior to receiving said benefits, the Company shall pay to the
Executive's beneficiary the same benefits, in the same manner, they would
have been paid to the Executive had the Executive survived; however, said
benefit payments will commence upon the Executive's death.
Article 4
Beneficiaries
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Company. The Executive
may revoke or modify the designation at any time by filing a new
designation. However, designations will only be effective if signed by the
Executive and accepted by the Company during the Executive's lifetime. The
Executive's beneficiary designation shall be deemed automatically revoked
if the beneficiary predeceases the Executive, or if the Executive names a
spouse as beneficiary and the marriage is subsequently dissolved. If the
Executive dies without a valid beneficiary designation, all payments shall
be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incapacitated, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incapacitated person or incapable person. The Company may require
proof of incapacity, minority or guardianship as it may deem appropriate
prior to distribution of the benefit. Such distribution shall completely
discharge the Company from all liability with respect to such benefit.
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Article 5
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay any benefit under this Agreement:
5.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement, if the Company terminates the Executives employment for:
5.1.1 Gross negligence or gross neglect of duties;
5.1.2 Commission of a felony or of a gross misdemeanor involving
moral turpitude; or
5.1.3 Fraud, disloyalty, dishonesty or willful violation of any
law or significant Company policy committed in connection
with the Executive's employment and resulting in an adverse
effect on the Company.
5.1.4 Removal. Notwithstanding any provision of this Agreement to
the contrary, the Company shall not pay any benefit under
this Agreement if the Executive is subject to a final
removal or prohibition order issued by an appropriate
federal banking agency pursuant to Section 8(e) of the
Federal Deposit Insurance Act.
5.2 Competition After Termination of Employment. No benefits shall be
payable, except for benefits paid due to a Change of Control, if the
Executive, without the prior written consent of the Company, engages in
conduct which is deemed to violate the non-competition clause of the
Executive's Employment Contract, which clause is hereby incorporated herein
by reference, both parties further hereby acknowledging having received,
read and understood a copy of said Employment Contract.
5.3 Suicide or Misstatement. If the Executive commits suicide within
two years after the date of this Agreement, or if the insurance company
denies coverage for material misstatements of fact made by the Executive on
any application for life insurance purchased by the company, or any other
reason, provided however that the Company shall evaluate the reason for the
denial, and upon advice of Counsel and in its sole discretion, consider
judicially challenging any denial.
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Article 6
Claims and Review Procedures
6.1 Claims Procedure. The Company shall notify any person or entity
that makes a claim against the Agreement (the "Claimant") in writing,
within ninety (90) days of Claimant's written application for benefits, of
his or her eligibility or noneligibility for benefits under the Agreement.
If the Company determines that the Claimant is not eligible for benefits or
full benefits, the notice shall set forth (1) the specific reasons for such
denial, (2) a specific reference to the provisions of the Agreement on
which the denial is based, (3) a description of any additional information
or material necessary for the Claimant to perfect his or her claim, and a
description of why it is needed, and (4) an explanation of the Agreement's
claims review procedure and other appropriate information as to the steps
to be taken if the Claimant wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring
additional time to make a decision, the Company shall notify the Claimant
of the special circumstances and the date by which a decision is expected
to be made, and may extend the time for up to an additional ninety- day
period.
6.2 Review Procedure. If the Claimant is determined by the Company not
to be eligible for benefits, or if the Claimant believes that he or she is
entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Company by filing a petition
for review with the Company within sixty (60) days after receipt of the
notice issued by the Company. Said petition shall state the specific
reasons which the Claimant believes entitle him or her to benefits or to
greater or different benefits. Within sixty (60) days after receipt by the
Company of the petition, the Company shall afford the Claimant (and
counsel, if any) an opportunity to present his or her position to the
Company orally or in writing, and the Claimant (or counsel) shall have the
right to review the pertinent documents. The Company shall notify the
Claimant of its decision in writing within the sixty-day period, stating
specifically the basis of its decision, written in a manner calculated to
be understood by the Claimant and the specific provisions of the Agreement
on which the decision is based. If, because of the need for a hearing, the
sixty-day period is not sufficient, the decision may be deferred for up to
another sixty-day period at the election of the Company, but notice of this
deferral shall be given to the Claimant.
Article 7
Amendments and Termination
This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Executive.
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Article 8
Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain an
employee of the Company, nor does it interfere with the Company's right to
discharge the Executive. It also does not require the Executive to remain
an employee nor interfere with the Executive's right to terminate
employment at any time.
8.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
8.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the Commonwealth of Pennsylvania, except to the
extent preempted by the laws of the United States of America.
8.6 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Company for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Company to pay
such benefits. The rights to benefits are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors. Any insurance on the Executive's
life is a general asset of the Company to which the Executive and
beneficiary have no preferred or secured claim.
8.7 Recovery of Estate Taxes. If the Executive's gross estate for
federal estate tax purposes includes any amount determined by reference to
and on account of this Agreement, and if the beneficiary is other than the
Executive's estate, then the Executive's estate shall be entitled to
recover from the beneficiary receiving such benefit under the terms of the
Agreement, an amount by which the total estate tax due by the Executive's
estate, exceeds the total estate tax which would have been payable if the
value of such benefit had not been included in the Executive's gross
estate. If there is more than one person receiving such benefit, the right
of recovery shall be against each such person. In the event the beneficiary
has a liability hereunder, the beneficiary may petition the Company for a
lump sum payment in an amount not to exceed the beneficiary's liability
hereunder.
8.8 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive as to the subject matter hereof. No
rights are granted to the Executive by virtue of this Agreement other than
those specifically set forth herein.
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8.9 Administration. The Company shall have power which are necessary
to administer this Agreement, including but not limited to:
8.9.1 Interpreting the provisions of the Agreement;
8.9.2 Establishing and revising the method o accounting for the
Agreement;
8.9.3 Maintaining a record of benefit payments; and
8.9.4 Establishing rules and prescribing an forms necessary or
desirable to administer the Agreement.
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer
have signed this Agreement.
EXECUTIVE: COMPANY:
THE PEOPLES STATE BANK
/S/ Xxxxxxx X. Xxx By /S/ Xxxxx X. Xxxxxxxxxxxx
------------------------------------- -------------------------
Xxxxxxx X. Xxx Title President & CEO
--------------------
By execution hereof, Community Banks, Inc. consents to and agrees to be
bound by the terms and condition of this Agreement.
ATTEST: CORPORATION:
COMMUNITY BANKS, INC.
/S/ Xxxxxxx X. Xxxxxxx By /S/ Xxxxx X. Xxxxxxxxxxxx
------------------------------------- -------------------------
Title President & CEO
-------------------
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AGREEMENT TO MODIFY SALARY CONTINUATION AGREEMENT
THIS AGREEMENT TO MODIFY SALARY CONTINUATION AGREEMENT ("Modification") is
entered into on this 11th day of January, 2002, by COMMUNITY BANKS, a bank and
trust company organized and existing under the laws of the Commonwealth of
Pennsylvania, formerly known as The Peoples State Bank and located in
Millersburg, Pennsylvania ("Bank"), and XXXXXXX X. XXX (the "Executive").
BACKGROUND
A. Bank and Executive entered into an Amended and Restated Salary
Continuation Agreement on or about January 1, 2000 (the "Agreement").
B. Bank and Executive wish to clarify that the definition of "Change of
Control" in the Agreement applies to Community Banks, Inc. ("Corporation").
NOW, THEREFORE, in consideration of the foregoing premises and intending to
be legally bound, the parties hereby agree as follows:
1. Modification of Change of Control Definition. The term "Company", as
used in the definition of "Change of Control" in Section 1.1.1 of the Agreement,
is hereby changed to "Corporation" and shall be deemed to refer to Community
Banks, Inc.
2. Effective Date. This Modification shall be deemed to be effective as of
the date on which the parties first entered into the Agreement.
3. No Other Changes. Except as specifically modified herein, all terms and
conditions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Executive and a duly authorized Bank officer have
signed this Modification.
EXECUTIVE: COMMUNITY BANKS
/S/ Xxxxxxx X. Xxx By /S/ Xxxxx X. Xxxxxxxxxxxx
------------------------------------- -------------------------
Xxxxxxx X. Xxx Title President & CEO
--------------------
By execution hereof, Community Banks, Inc. consents to and agrees to be
bound by the terms and condition of this Modification.
WITNESS/ATTEST: COMMUNITY BANKS, INC.
/S/ Xxxxxxxx X. Xxxx By /S/ Xxxxx X. Xxxxxxxxxxxx
------------------------------------- --------------------------
Title Chairman & CEO
---------------------
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