EXHIBIT 10.6
XXXXX COUNTY NATIONAL BANK
DIRECTOR DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this 1st day of January, 2001, by and between
Xxxxx County National Bank, located in Gettysburg, Pennsylvania (the "Company"),
and __________ (the "Director").
INTRODUCTION
In an effort to reward past service, encourage continued service on the
Company's Board of Directors, and as a method to attract future Directors, the
Company is willing to provide to the Director a deferred fee opportunity. The
Company will pay each Director's benefits from the Company's general assets.
AGREEMENT
The Director 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 "ANNIVERSARY DATE" means December 31 of each year.
1.1.2 "CHANGE OF CONTROL" of the Company shall mean: (i) an
event of a nature that results in a Change in Control of the Company
within the meaning of the Home Owners' Loan Act, as amended (or any
successor legislation), and applicable rules and regulations promulgated
thereunder or under the Change in Bank Control Act, by the Office of
Thrift Supervision ("OTS") (or any successor agency) as in effect at the
time of the Change in Control; or (ii) the election to the Board of
Directors of the Company of any person who was not nominated for such
election by the Board or by a nominating committee of the Board prior to
his or her election; or (iii) the merger of the Company with any other
entity, or the acquisition of all or substantially all of the assets of
the Company by another entity (in either case other than pursuant to an
involuntary merger or consolidation mandated by any governmental agency
then having jurisdiction over the Company), to which transaction the
Director has not consented.
A Change of Control shall also mean an event of a nature that: (i) would
be required to be reported in response to Item 1(a) of the current
report on Form 8-K, as in effect on the date hereof, pursuant to Section
13 or 15(D) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx");
or (ii) results in a Change of Control of the Company or the Holding
Company within the meaning of the Home Owners' Loan Act and the Rules and
Regulations promulgated by the OTS (or its predecessor agency), as in effect on
the date hereof; or (iii) without limitation such a Change of Control shall be
deemed to have occurred at such time as (a) any "Person" (as the term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company or the Holding Company representing 25%
or more of the Company's or the Holding Company's outstanding securities except
for any securities of the Company purchased by the Holding Company in connection
with the conversion of the Company to the stock form and any securities
purchased by the Company's employee stock ownership plan and trust; (b) a proxy
statement soliciting proxies from stockholders of the Company or Holding
Company, by someone other than the current management of the Company or Holding
Company, seeking stockholder approval of a plan of reorganization, merger or
consolidation of the Company or Holding Company or similar transaction with one
or more corporations as a result of which the outstanding shares of the class of
securities then subject to such plan or transaction are exchanged for or
converted into cash or property or securities not issued by the Company or the
Holding Company shall be distributed and the requisite number of proxies
approving such plan of reorganization, merger or consolidation of the Company or
Holding Company are received and voted in favor of such transactions; or (c) a
tender offer is made for 25 % or more of the outstanding securities of the
Company or Holding Company and shareholders owning beneficially or of record 25
% or more of the outstanding securities of the Company or Holding Company have
tendered or offered to sell their shares pursuant to such tender offer and such
tendered shares have been accepted by the tender offeror.
1.1.3 "CODE" means the Internal Revenue Code of 1986, as amended.
1.1.4 "DEFERRAL ACCOUNT" means the Company's accounting of the
Director's accumulated Deferrals plus accrued interest.
1.1.5 "DEFERRALS" means the amount of the Director's Fees which the
Director elects to defer according to this Agreement.
1.1.6 "DISABILITY" means the Director's inability to perform
substantially all normal duties of a Director, as determined by the Company's
Board of Directors in its sole discretion. As a condition to any benefits, the
Company may require the Director to submit to such physical or mental
evaluations and tests as the Board of Directors deems appropriate
1.1.7 "EFFECTIVE DATE" means the date of this Agreement.
1.1.8 "ELECTION FORM." means the Form attached as Exhibit 1.
1.1.9 "FEES" means the total Director's fees payable to the Director.
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1.1.10 "PLAN YEAR" means the calendar year.
1.1.11 "PRIME RATE" means the Prime Interest Rate reported in the
Wall Street Journal on the business day immediately prior to the plan
Anniversary Date.
1.1.12 "TERMINATION OF SERVICE" means the Director ceasing to be a
member of the Company's Board of Directors for any reason whatsoever.
ARTICLE 2
DEFERRAL ELECTION
2.1 INITIAL ELECTION. The Director shall make an initial deferral election
under this Agreement by filing with the Company a signed Election Form within
thirty (30) days after the Effective Date of this Agreement. The Election Form
shall set forth the amount of Fees to be deferred. The Election Form shall be
effective to defer only Fees earned after the date the Election Form is received
by the Company.
2.2 ELECTION. CHANGES
2.2.1 GENERALLY. The Director may modify the amount of Fees to be
deferred annually by filing a new Election Form with the Company prior to
the beginning of the Plan Year in which the Fees are to be deferred. The
modified deferral election shall not be effective until the calendar year
following the year in which the subsequent Election Form is received and
approved by the Company. The new Election Form may be used to change the
Director's distribution option; however, the change shall not be effective
before the first day of the Plan Year immediately following the date that
the Election Form was executed.
2.2.2 HARDSHIP. If an unforeseeable financial emergency arising
from the death of a family member, divorce, sickness, injury, catastrophe
or similar event outside the control of the Director occurs, the Director,
by written instructions to the Company, may reduce future deferrals under
this Agreement.
ARTICLE 3
DEFERRAL ACCOUNT
3.1 ESTABLISHING AND CREDITING. The Company shall establish a Deferral
Account on its books for the Director and shall credit to the Deferral Account
the following amounts:
3.1.1 DEFERRALS. The Fees deferred by the Director as of the time
the Fees would have otherwise been paid to the Director.
3.1.2 INTEREST. On the first day of each month and immediately
prior to the payment of any benefits, interest on the account balance
since the preceding credit under this Section 3.1.3, if any,
at an annual rate, compounded monthly, equal to the Prime Rate for
the previous Anniversary Date. HOWEVER, THE ACTUAL
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CREDITING RATE WILL EQUAL THE PRIME RATE UNLESS PRIME IS LESS THAN
SIX (6%) OR GREATER THAN TWELVE (12%). IN WHICH CASE THE MAXIMUM
CREDITING RATE SHALL BE TWELVE (12%) AND THE MINIMUM SHALL BE SIX (6%).
3.2 STATEMENT OF ACCOUNTS. The Company shall provide to the
Director, within one hundred twenty (120) days after each Anniversary
Date, a statement setting forth the Deferral Account balance.
3.3 ACCOUNTING DEVICE ONLY. The Deferral Account is solely a device for
measuring amounts to be paid under this Agreement. The Deferral Account is not a
trust fund of any kind. The Director is a general unsecured creditor of the
Company for the payment of benefits. The benefits represent the mere Company
promise to pay such benefits. The Director's rights are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Director's creditors.
ARTICLE 4
DISTRIBUTION OF BENEFITS
4.1 TERMINATION OF SERVICE BENEFIT. Upon the participants termination of
service Date, the Company shall pay to the Director the benefit described in
this Section 4.1 in lieu of any other benefit under this Agreement.
4.1.1 AMOUNT OF BENEFIT. The benefit under this Section 4.1 is the
Deferral Account balance at the Director's Termination of Service Date.
4.1.2 PAYMENT OF BENEFIT. The Company shall pay the benefit to the
Director in the form elected by the Director on the Election Form. If
the Director elected to receive his benefit in the form of installments,
the Company shall continue to credit interest on the remaining account
balance during any applicable installment period fixed at the rate in
effect under Section 3.1.2 on the Director's Retirement Date. HOWEVER,
THIS FIXED RATE SHALL NOT BE GREATER THAN (9.00%).
4.2 PRE-TERMINATION OF SERVICE BENEFIT. THE PARTICIPANT SHALL HAVE A
ONE-TIME OPTION TO RECEIVE BENEFIT PAYMENTS PRIOR THEIR TERMINATION OF SERVICE.
HOWEVER, THE DIRECTOR SHALL NOT HAVE THE ABILITY TO DEFER FUTURE COMPENSATION.
4.2.1 AMOUNT OF BENEFIT. THE BENEFIT UNDER THIS SECTION 4.2 IS THE
DEFERRAL ACCOUNT BALANCE ON THE DATE THE DIRECTOR ELECTS TO RECEIVE
BENEFIT PAYMENTS.
4.2.2 PAYMENT OF BENEFIT. THE COMPANY SHALL PAY THE BENEFIT TO THE
DIRECTOR IN THE FORM ELECTED BY THE DIRECTOR ON THE ELECTION FORM. IF
THE DIRECTOR ELECTED TO RECEIVE HIS BENEFIT. IN THE FORM OF
INSTALLMENTS, THE COMPANY SHALL CONTINUE TO CREDIT INTEREST ON THE
REMAINING ACCOUNT BALANCE DURING ANY APPLICABLE
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INSTALLMENT PERIOD FIXED AT THE RATE IN EFFECT UNDER SECTION 3.1.2ON
THE DIRECTOR'S RETIREMENT. DATE. HOWEVER, THIS FIXED RATE SHALL NOT BE
GREATER THAN (9.00%).
4.3 CHANGE F CONTROL BENEFIT. UPON TERMINATION OF SERVICE WITHIN 12
MONTHS OF A CHANGE OF CONTROL, THE COMPANY SHALL PAY TO THE DIRECTOR THE
BENEFIT DESCRIBED IN THIS SECTION 4.3 IN LIEU OF ANY OTHER BENEFIT. UNDER
THIS AGREEMENT.
4.3.1 AMOUNT OF BENEFIT. THE BENEFIT UNDER THIS SECTION 4.3 SHALL BE
THE DEFERRAL ACCOUNT ON THE TERMINATION OF SERVICE.
4.3.2 PAYMENT OF BENEFIT. THE COMPANY SHALL PAY THE BENEFIT TO THE
DIRECTOR IN THE FORM OF A LUMP SUM PAYMENT. THIS LUMP-SUM PAYMENT SHALL
OCCUR WITHIN 30 DAYS AFTER THE DATE OF TERMINATION OF SERVICE.
4.4 HARDSHIP DISTRIBUTION. Upon the Board of Director's determination
(following petition by the Director) that the Director has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the Company
shall distribute to the Director all or a portion of the Deferral Account
balance as determined by the Company, but in no event shall the distribution be
greater than is necessary to relieve the financial hardship.
ARTICLE 5
DEATH BENEFITS
5.1 DEATH DURING ACTIVE SERVICE. If the Director dies while in the
active service of the Company, the Company shall pay to the Director's
beneficiary the benefit described in this Section 5.1 in lieu of any other
benefit under this Agreement.
5.1.1 AMOUNT OF BENEFIT. The benefit under Section 5.1 is the
Account balance on the date of the Director's death.
5.1.2 PAYMENT OF BENEFIT. The Company shall pay the benefit to the
beneficiary in the form elected by the Director on the Election Form. If
the Director elected to receive his benefit in the form of installments,
the Company shall continue to credit interest on the remaining account
balance during any applicable installment period fixed at the rate in
effect under Section 3.1.2 on the date of the Director's death. HOWEVER,
THIS FIXED RATE SHALL NOT BE GREATER THAN (9.00%).
5.2 DEATH DURING BENEFIT PERIOD. If the Director dies after benefit
payments have commenced under this Agreement but before receiving all such
payments, the Company shall pay the remaining benefits to the Director's
beneficiary at the same time and in the same amounts they would have been paid
to the Director had the Director survived.
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ARTICLE 6
BENEFICIARIES
6.1 BENEFICIARY DESIGNATIONS. The Director shall designate a beneficiary
by filing a written designation with the Company. The Director may revoke or
modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Director and accepted by
the Company during the Director's lifetime. The Director's beneficiary
designation shall be deemed automatically revoked if the beneficiary predeceases
the Director, or if the Director names a spouse as beneficiary and the marriage
is subsequently dissolved. If the Director dies without a valid beneficiary
designation, all payments shall be made to the Director's estate.
6.2 FACILITY OF PAYMENT. If a benefit is payable to a minor, to a person
declared incompetent, 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, incompetent
person or incapable person. The Company may require proof of incompetence,
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.
ARTICLE 7
CLAIMS AND REVIEW PROCEDURES
7.1 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 his or her written application for benefits, of his or her
eligibility or non-eligibility 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.
7.2 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
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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 8
AMENDMENTS AND TERMINATION
8.1 This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Director.
8.2 Notwithstanding Section 8.1, the Company may amend or terminate this
Agreement at any time if, pursuant to legislative, judicial or regulatory
action, continuation of the Agreement would (i) cause benefits to be taxable to
the Director prior to actual receipt, or (ii) result in significant financial
penalties or other significantly detrimental ramifications to the Company (other
than the financial impact of paying the benefits). In no event shall this
Agreement be terminated under this Section 8.2 without payment to the Director
of the Deferral Account balance attributable to the Director's Deferrals and
interest credited on such amounts.
ARTICLE 9
MISCELLANEOUS
9. 1 BINDING EFFECT. This Agreement shall bind the Director and the
Company, and their beneficiaries, survivors, executors, administrators and
transferees.
9.2 NO GUARANTEE OF SERVICE. This Agreement is not a contract for
services. It does not give the Director the right to remain a Director of the
Company. It also does not require the Director to remain a Director nor
interfere with the Director's right to terminate services at any time.
9.3 NON-TRANSFERABILITY. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner
9.4 TAX WITHHOLDING. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement TAX
WITHHOLDING. The Company shall withhold any taxes that are required to be
withheld from the benefits provided under this Agreement
9.5 APPLICABLE LAW. The Plan and all rights hereunder shall be governed
by and construed according to the laws of Pennsylvania, except to the extent
preempted by the laws of the United States of America.
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9.6 RECOVERY OF ESTATE TAXES. If the Director'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 Director's
estate, then the Director'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 Director's estate, exceeds the total
estate tax which would have been payable if the value of such benefit had not
been included in the Director'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.
9.7 UNFUNDED ARRANGEMENT. The Director and the Director's 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 Director's life is
a general asset of the Company to which the Director and the Director's
beneficiary have no preferred or secured claim.
9.8 REORGANIZATION. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement.
9.9 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and the Director as to the subject matter hereof. No rights
are granted to the Director by virtue of this Agreement other than those
specifically set forth herein.
9.10 ADMINISTRATION. The Company shall have powers which are necessary
to administer this Agreement, including but not limited to:
9.10.1 Interpreting the provisions of the Agreement;
9.10.2 Establishing and revising the method of accounting for
the Agreement;
9.10.3 Maintaining a record of benefit payments; and
9.10.4 Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
9.11 NAMED FIDUCIARY. For purposes of the Employee Retirement Income
Security Act of 1974, if applicable, the Company shall be the named fiduciary
and plan administrator under the Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
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IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement.
DIRECTOR: COMPANY:
XXXXX COUNTY NATIONAL BANK
BY /S/ XXXXXX X. XXXXXX
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TITLE PRESIDENT
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XXXXX COUNTY NATIONAL BANK
EXHIBIT I
TO
DIRECTOR FEE DEFERRAL AGREEMENT
DEFERRAL ELECTION
for
I elect to defer compensation under my Director Fee Deferral Agreement
with the Bank, as follows:
AMOUNT OF DEFERRAL
[INITIAL AND COMPLETE]
___ I elect to defer ______% or $_____ of my Retainer and Board Fees
___ I elect not to defer my Retainer and Board Fees
I understand that I may change the amount, frequency and
duration of my deferral by filing a new election form with
the Bank; provided, however, that any subsequent election
will not be effective until the calendar year following the
year in which the new election is received by the Bank.
Form of Benefit
I elect to receive benefits under the Agreement in the
following form:
[INITIAL ONE]
______ Lump Sum
______ Equal monthly installments for 120 months
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XXXXX COUNTY NATIONAL BANK
BENEFICIARY DESIGNATION
I designate the following as beneficiary of benefits under the
Director Fee Deferral Agreement payable following my death:
Primary:
--------------------------------------------
Contingent:
----------------------------------------
I understand that I may change these beneficiary designations
by filing a new written designation with the Bank. I further
understand that the designations will be automatically revoked
if the beneficiary predeceases me, or, if I have named my
spouse as beneficiary, in the event of the dissolution of our
marriage.
Signature ___________________________________
Date ___________________________________
Accepted by Xxxxx County National Bank this day of, 2001.
By ____________________________________
Title ____________________________________
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