Exhibit 6(c)(8)
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THE FIRST NATIONAL BANK OF MIFFLINTOWN
DIRECTOR DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this 29/th/ day of September, 1997, by and between
THE FIRST NATIONAL BANK OF MIFFLINTOWN, a national banking association located
in Mifflintown, Pennsylvania (the "Company"), and XXXXX XXXXXXXXXX (the
"Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the Company is willing to provide to the Director a deferred fee
opportunity. The Company will pay the benefits from its 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 "Change of Control" shall mean any of the following:
(A) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act"),
other than the Corporation, a subsidiary of the Corporation, an
employee benefit plan (or related trust) of the Corporation or a
direct or indirect subsidiary of the Corporation, or affiliates of the
Corporation (as defined in Rule 12b-2 under the Exchange Act), becomes
the beneficial owner (as determined pursuant to Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Corporation representing more than 20% of the combined voting power of
the Corporation's then outstanding securities or announces a tender
offer or exchange offer for securities of the Corporation representing
more than 20% of the combined voting power of the Corporation's then
outstanding securities; or
(B) the occurrence of, or execution of an agreement providing
for, a reorganization, merger, consolidation or other similar
transaction or connected series of transactions of the Corporation as
a result of which either (a) the Corporation does not survive or (b)
pursuant to which
shares of the Corporation common stock ("Common Stock") would be
converted into cash, securities or other property, unless, in case of
either (a) or (b), the holders of Corporation Common Stock immediately
prior to such transaction will, following the consummation of the
transaction, beneficially own, directly or indirectly, more than 50%
of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the
corporation surviving, continuing or resulting from such transaction;
or
(C) the liquidation or dissolution of the Corporation or the
Company or the occurrence of, or execution of an agreement providing
for, a sale of all or substantially all of the assets of the
Corporation or the Company to an entity which is not a direct or
indirect subsidiary of the Corporation; or
(D) the occurrence of, or execution of an agreement providing
for, a reorganization, merger, consolidation, or similar transaction
of the Corporation, or before any connected series of such
transactions, if, upon consummation of such transaction or
transactions, the persons who are members of the Board of Directors of
the Corporation immediately before such transaction or transactions
cease or, in the case of the execution of an agreement for such
transaction or transactions, it is contemplated in such agreement that
upon consummation such persons would cease, to constitute a majority
of the Board of Directors of the Corporation or, in a case where the
Corporation does not survive in such transaction, of the corporation
surviving, continuing or resulting from such transaction or
transactions; or
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 pursuant to this Section 1.1.1, and the agreement
subsequently expires or is terminated without the transaction or event
being consummated, and (ii) Director's service on the Company's Board
of Directors has not terminated 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 First Community Financial Corporation.
1.1.4 "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
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submit to such physical or mental evaluations and tests as the Board of
Directors deems appropriate.
1.1.5 "Election Form" means the Form attached as Exhibit A.
1.1.6 "Fees" means the total directors fees payable to the Director.
1.1.7 "Normal Benefit Age" means the Director's 72nd birthday.
1.1.8 "Normal Benefit Date" means the later of the Normal Benefit Age
or the Director's Termination of Service.
1.1.9 "Termination of Service" means the Director ceasing to be a
member of the Company's Board of Directors for any reason other than death.
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 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 and
obtaining written approval by the Board of Directors of the Company. The
modified deferral shall not be effective until the calendar year following
the year in which the subsequent Election Form is received by the Company.
The Director may not change the form of benefit payment initially elected
under Section 2.1 without the written approval of the Board of Directors of
the Company.
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 or cease 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:
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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 each anniversary of the date of this Agreement
and up until date of the Director's Termination of Service, interest is to
be credited on the Director's Deferral Account balance and compounded at an
annual rate equal to the prime lending rate reported in the Wall Street
Journal on the first business day on or before said anniversary date.
3.1.2.1 Interest Rate Reduction. Provided however, after the
Director's Termination of Service, the interest rate to be credited to
the Director's Deferral Account under Section 3.1.2 shall be 1 % under
the prime lending rate reported in the Wall Street Journal on the
first business day on or before the anniversary date of this
Agreement.
3.2 Statement of Accounts. The Company shall provide to the Director,
within one hundred twenty (120) days after each anniversary of this Agreement, 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
Lifetime Benefits
4.1 Normal Termination Benefit. Subject to the general limitations of
Article 7, upon the Director's Normal Benefit 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 as established and credited pursuant to Section
3.1.
4.1.2 Payment of Benefit. The Company shall pay the benefit to the
Director in 120 equal monthly installments commencing on the first day of
the month following the Director's Normal Benefit Date. The Company shall
amortize the Deferral Account balance using the interest rate described in
Section 3.1.2.1.
4.2 Early Termination Benefit. Subject to the general limitations of
Article 7, if the Director terminates service as a director before the Normal
Benefit Age for reasons other than
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death or Disability, the Company shall pay to the Director the benefit described
in this Section 4.2 in lieu of any other benefit under this Agreement.
4.2.1 Amount of Benefit. The benefit under this Section 4.2 is
Deferral Account balance as established and credited pursuant to Section
3.1.
4.2.2 Payment of Benefit. The Company shall pay the benefit to the
Director in 120 equal monthly installments commencing on the first day of
the month following the Director's Normal Benefit Age. The Company shall
continue to credit interest as described in Section 3.1.2.1 on the balance
of the Deferral Account until all payments have been distributed.
4.3 Disability Benefit. Upon Termination of Service due to Disability
prior to the Normal Benefit Age, 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 is the
Deferral Account as established and credited pursuant to Section 3.1.
4.3.2 Payment of Benefit. The Company shall pay the benefit to the
Director in 120 equal monthly installments commencing on the first day of
the month following the Director's Termination of Service due to
Disability. The Company shall continue to credit interest as described in
Section 3.1.2.1 on the balance of the Deferral Account until all payments
have been distributed.
4.4 Change of Control Benefit. Upon a Change of Control regardless of
whether the Director is in the active service of the Company, the Company shall
pay to the Director the benefit described in this Section 4.4 in lieu of any
other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4 is the
Deferral Account balance as established and credited pursuant to Section
3.1.
4.4.2 Payment of Benefit. The Company shall pay the benefit to the
Director in 120 equal monthly installments commencing on the first day of
the month following the Director's Termination of Service. The Company
shall continue to credit interest as described in Section 3.1.2.1 on the
balance of the Deferral Account until all payments have been distributed.
4.5 Hardship Distribution. Upon the Company'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.
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Article 5
Death Benefits
5.1 Death Prior to Commencement of Benefit Payments. If the Director dies
prior to the commencement of benefit payments, 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 amount under Section 5.1 is the
greater of the Deferral Account balance established and credited as of the
Director's date of death or $2,125.
5.1.2 Payment of Benefit. The Company shall pay the benefit to the
Director's designated beneficiary in 120 equal monthly installments
commencing on the first day of the month following the Director's death.
The Company shall amortize the Deferral Account balance as described in
3.1.2.1. Payment of the Death Benefit is for a 120 month guaranteed term.
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 for the remaining term at the same time and in the same amounts they
would have been paid to the Director had the Director survived.
Article 6
Beneficiaries
6.1 Beneficiary Designations. The Director shall designate a beneficiary
by filing a written beneficiary 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.
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Article 7
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not, pursuant to the following, pay any benefit under this
Agreement that is attributable to interest credited on contributions to a
Director's Deferral Account:
7.1 Termination for Cause. If the Company terminates the Director's
service as a director for:
7.1.1 Gross negligence or gross neglect of duties;
7.1.2 Commission of a felony or of a gross misdemeanor involving
moral turpitude; or
7.1.3 Fraud, disloyalty, dishonesty or willful violation of any law
or significant Company policy committed in connection with the Director's
service and resulting in an adverse financial effect on the Company.
7.2 Suicide. If the Director commits suicide within two years after the
date of this Agreement, or if the Director has made any material misstatement of
fact on any application for life insurance purchased by the Company.
Article 8
Claims and Review Procedures
8.1 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 Claimant's
eligibility or ineligibility 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 Claimant's 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.
8.2 Review Procedure. If the Claimant is determined by the Company not to
be eligible for benefits, or if the Claimant believes that Claimant 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
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issued by the Company. Said petition shall state the specific reasons which the
Claimant believes entitle Claimant 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 Claimant's 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 in 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 9
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Director.
Article 10
Miscellaneous
10.1 Binding Effect. This Agreement shall bind the Director and the
Company, and their beneficiaries, successors, survivors, executors,
administrators and transferees.
10.2 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, nor does it interfere with the shareholders' rights to replace the
Director. It also does not require the Director to remain a director nor
interfere with the Director's right to terminate services at any time.
10.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
10.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 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.
10.6 Unfunded Arrangement. The Director 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 Director's life is a
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general asset of the Company to which the Director and beneficiary have no
preferred or secured claim.
10.7 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.
10.8 Administration. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
10.8.1 Interpreting the provisions of the Agreement;
10.8.2 Establishing and revising the method of accounting for the
Agreement;
10.8.3 Maintaining a record of benefit payments; and
10.8.4 Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer have
signed this Agreement.
DIRECTOR: COMPANY:
THE FIRST NATIONAL BANK OF
MIFFLINTOWN
/s/ Xxxxx X. XxXxxxxxxx By: /s/ Xxxxxx X. Xxxx
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Xxxxx XxXxxxxxxx Title: Chairman of the Board
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By execution hereof, First Community Financial Corporation consents to and
agrees to be bound by the terms and conditions of this Agreement.
ATTEST: CORPORATION:
FIRST COMMUNITY FINANCIAL
CORPORATION
/s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxx
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(Assistant) Secretary Title: Chairman of the Board
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