EXHIBIT 10.5
AMENDED AND RESTATED
FARMERS CITIZENS BANK DIRECTOR RETIREMENT AGREEMENT
THIS AGREEMENT is made this 11 day of November, 1999, by and between
FARMERS CITIZENS BANK, located in Bucyrus, Ohio (the "Company"), and Xxxxx X.
Xxxxxx (the "Director"), amending and restating the Director Retirement
Agreement between the Company and the Director dated April 29, 1999 (the
"Agreement"). The Effective Date of this Agreement is April 29, 1999.
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the company is willing to provide Director Emeritus benefits to the
Director. 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" means the transfer of 20% or more of the
Company's outstanding voting common stock followed within twenty-four (24)
months by replacement of fifty percent (50%) or more of the members of the
Company's Board of Directors.
1.1.2 "Code" means the Internal Revenue Code of 1986, as amended.
References to a Code section shall be deemed to be to that section as it
now exists and to any successor provision.
1.1.3 "Disability" means the Director suffering a sickness, accident
or injury which, in the judgment of a physician satisfactory to the
Company, prevents the Director from performing substantially all of the
Director's normal duties for the Company. As a condition to any benefits,
the Company may require the Director to submit to such physical or mental
evaluations and tests as the Company's Board of Directors deems
appropriate.
1.1.4 "Early Retirement Date" means the Director completing 15 Years
of Service.
1.1.5 "Normal Retirement Date" means the Director attaining age 70
and completing 15 Years of Service.
1.1.6 "Termination of Service" means the Director ceasing to be a
member of the Company's Board of Directors for any reason whatsoever.
1.1.7 "Years of Service" means the total number of twelve-month
periods during which the Director serves as a member of the Company's Board
of Directors.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. If the Director terminates service on or
after the Normal Retirement Date for reasons other than death, Disability or
Change of Control, the Company shall pay to the Director 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 benefit under this Section 2.1
is equal to the greater of : (a) $10,283, which is the Plan Year 1 Benefit
Level of $7,200 increased 2 percent at the end of each plan year as set
forth in Schedule A; or (b) the amount of the Director's board fees in the
year prior to retirement.
2.1.2 Payment of Benefit. The Company shall pay the annual benefit
to the Director in 12 equal monthly installments payable on the first day
of each month commencing with the month following the Normal Retirement
Date. This annual benefit shall be paid to the Director for 15 years.
2.2 Early Retirement Benefit. If the Director terminates service after
the Early Retirement Date but before the Normal Retirement Date for reasons
other than death, Disability or Change of Control, the Company shall pay to the
Director the benefit described in this Section 2.2 in lieu of any other benefit
under this Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
benefit determined under Schedule A based on the date of the Director's
Termination of Service, which is determined by vesting the Director in 100
percent of the Accrual Balance. Schedule A shall be adjusted to reflect
any benefit level increases determined by the Board of Directors under
Section 2.1.1 prior to the Director's Termination of Service. Schedule A
is calculated using the interest method of accounting, an 8% discount rate,
monthly compounding and monthly benefit payments.
2.2.2 Payment of Benefit. The Company shall pay the annual benefit
to the Director in 12 equal monthly installments payable on the first day
of each month commencing with the month following the Director's Normal
Retirement Date. This annual benefit shall be paid to the Director for 15
years.
2.3 Disability Benefit. If the Director terminates service due to a
Disability prior to the Normal Retirement Date, the Company shall pay to the
Director the benefit described in this Section 2.3 in lieu of any other benefit
under this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is the
benefit determined under Schedule A based on the date of the Director's
Termination of Service, which is determined by vesting the Director in 100
percent of the Accrual Balance. Schedule A shall be adjusted to reflect
any benefit level increases determined by the Board of Directors under
Section 2.1.1 prior to the Director's Termination of Service.
2.3.2 Payment of Benefit. The Company shall pay the annual benefit
to the Director in 12 equal monthly installments payable on the first day
of each month commencing with the month following the Director's
Termination of Service. This annual benefit shall be paid to the Director
for 15 years.
2.4 Change of Control Benefit. Upon a Change of Control while the
Director is in the active service of the Company, the Company shall pay to the
Director the benefit described in this Section 2.4 in lieu of any other benefit
under this Agreement.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is the
benefit determined under Schedule A based on the date of the Director's
Termination of Service, which is determined by vesting the Director in 100
percent of the Accrual Balance. Schedule A shall be adjusted to reflect
any benefit level increases determined by the Board of Directors under
Section 2.1.1 prior to the Director's Termination of Service.
2.4.2 Payment of Benefit. The Company shall pay the benefit to the
Director in a lump sum within 60 days following Termination of Service.
Article 3
Death Benefits
3.1 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 3.1 in lieu of any benefit
under 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 Director's beneficiary in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Director's death. This annual benefit shall be paid to the Director's
beneficiary for 15 years.
3.2 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.
Article 4
Beneficiaries
4.1 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 surviving spouse, if
any, and if none, to the Director's surviving children and the descendants of
any deceased child by right of representation, and if no children or descendants
survive, to the Director's estate.
4.2 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 5
General Limitations
5.1 Excess Parachute Payment. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement to the extent the benefit would be an excess parachute payment under
Section 280G of the Code.
5.2 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 Director's service for:
(a) Gross negligence or gross neglect of duties;
(b) Commission of a felony or of a gross misdemeanor involving moral
turpitude; or
(c) 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.
5.4 Suicide. No benefits shall be payable 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 6
Claims and Review Procedures
6.1 Claims Procedure. The Company shall notify the Director's beneficiary
in writing, within ninety (90) days of his or her written application for
benefits, of his or her eligibility or noneligibility for benefits under the
Agreement. If the Company determines that the beneficiary 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 beneficiary 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 beneficiary 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 beneficiary is determined by the Company
not to be eligible for benefits, or if the beneficiary believes that he or she
is entitled to greater or different benefits, the beneficiary 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
beneficiary 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 beneficiary (and counsel, if any) an opportunity to
present his or her position to the Company orally or in writing, and the
beneficiary (or counsel) shall have the right to review the pertinent documents.
The Company shall notify the beneficiary 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 beneficiary 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 beneficiary.
Article 7
Amendments and Termination
7.1 This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Director.
7.2 Notwithstanding Section 7.1, 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 the event of any such
amendment or termination, the Director shall be 100 percent vested in the
Accrual Balance under Schedule A.
Article 8
Miscellaneous
8.1 Binding Effect. The Bank/Company expressly agrees that it shall not
merge or consolidate into or with another bank/company or sell substantially all
of its assets to another bank/company, firm or person until such bank/company
firm or person expressly agrees, in writing, to assume and discharge the duties
and obligations of the Bank/Company under this agreement. This agreement shall
be binding upon the parties hereto, their successors, beneficiary(ies), heirs
and personal representatives.
8.2 No Guarantee of Employment. 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 service 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 Ohio, except to the extent preempted by the laws of the
United States of America.
8.6 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 general
asset of the Company to which the Director and beneficiary have no preferred or
secured claim.
IN WITNESS WHEREOF, the Director and the Company have signed this
Agreement.
DIRECTOR: COMPANY:
FARMERS CITIZENS BANK
/s/ Xxxxx X. Xxxxxx By /s/ X. X. Xxxxxx
----------------------------- ---------------------------------
Xxxxx X. Xxxxxx Title President & CEO
----------------------------
BENEFICIARY DESIGNATION
FARMERS CITIZENS BANK DIRECTOR RETIREMENT AGREEMENT
I designate the following as beneficiary of any death benefits under this
Agreement:
Primary: ___________________________________________________________
____________________________________________________________________
Contingent: ________________________________________________________
____________________________________________________________________
Note: To name a trust as beneficiary, please provide the name of the trustee(s)
and the exact name and date of the trust agreement.
-----
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the
designations will be automatically revoked if the beneficiary predeceases me,
or, if I have named my spouse as beneficiary and our marriage is subsequently
dissolved.
Signature _______________________
Date _______________________
Accepted by the Company this day of , 1999.
By ___________________________
Title ______________________
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED
FARMERS CITIZENS BANK DIRECTOR RETIREMENT AGREEMENT
FOR
XXXXX X. XXXXXX
THIS AMENDMENT is made this 3/rd/ day of August, 2000, by and between
FARMERS CITIZENS BANK, located in Bucyrus, Ohio (the "Company"), and Xxxxx X.
Xxxxxx (the "Director").
On November 11, 1999, the Company and the Director executed the AMENDED AND
RESTATED FARMERS CITIZENS BANK DIRECTOR RETIREMENT AGREEMENT, amending and
restating the original agreement of April 29, 1999 (the "Agreement"). The
undersigned hereby amends, in part, said Agreement to clarify the Early
Retirement Benefit.
Article 2.2.1 of the Agreement shall be deleted in its entirety and the
following new Article 2.2.1 shall be added to the Agreement:
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
benefit determined under Schedule A based on the date of the Director's
Termination of Service. This benefit is determined by zero vesting until
the Director has completed 15 Years of Service and then vesting the
Director in 100 percent of the Accrual Balance after 15 Years of Service.
Schedule A shall be adjusted to reflect any benefit level increases
determined by the Board of Directors under Section 2.1.1 prior to the
Director's Termination of Service. Schedule A is calculated using the
interest method of accounting, an 8% discount rate, monthly compounding and
monthly benefit payments.
Schedule A of the Agreement shall be deleted in its entirety and the
attached new Schedule A shall be added to the Agreement.
IN WITNESS WHEREOF, the Director and the Company have signed this
Amendment.
DIRECTOR: FARMERS CITIZENS BANK
/s/ Xxxxx X. Xxxxxx By /s/ X.X. Xxxxxx
------------------------------- ---------------------------------
Xxxxx X. Xxxxxx Title President
-------------------------------
SCHEDULE A
FARMERS CITIZENS BANK
DIRECTOR RETIREMENT PLAN
Xxxxxx, Xxxxx X.
-------------------------------------------------------------------------------------------
Early Change Of Disability
Early Termination Control Annual
Termination Vested Annual Lump Sum Benefit
Plan Benefit Accrual Vesting Accrual Benefit Payable Payable
Year Level Balance Schedule Balance Payable At 70 Immediately Immediately
-------------------------------------------------------------------------------------------
1 7,200 1,468 0% 0 0 1,468 168
-------------------------------------------------------------------------------------------
2 7,344 3,091 0% 0 0 3,091 354
-------------------------------------------------------------------------------------------
3 7,491 4,885 0% 0 0 4,885 560
-------------------------------------------------------------------------------------------
4 7,641 6,870 0% 0 0 6,870 788
-------------------------------------------------------------------------------------------
5 7,794 9,068 0% 0 0 9,068 1,040
-------------------------------------------------------------------------------------------
6 7,949 11,504 0% 0 0 11,504 1,319
-------------------------------------------------------------------------------------------
7 8,108 14,204 0% 0 0 14,204 1,629
-------------------------------------------------------------------------------------------
8 8,271 17,202 0% 0 0 17,202 1,973
-------------------------------------------------------------------------------------------
9 8,436 20,534 0% 0 0 20,534 2,355
-------------------------------------------------------------------------------------------
10 8,605 24,243 100.00% 24,243 5,698 24,243 2,780
-------------------------------------------------------------------------------------------
11 8,777 28,378 100.00% 28,378 6,159 28,378 3,254
-------------------------------------------------------------------------------------------
12 8,952 32,999 100.00% 32,999 6,613 32,999 3,784
-------------------------------------------------------------------------------------------
13 9,131 38,177 100.00% 38,177 7,064 38,177 4,378
-------------------------------------------------------------------------------------------
14 9,314 44,000 100.00% 44,000 7,518 44,000 5,046
-------------------------------------------------------------------------------------------
15 9,500 50,581 100.00% 50,581 7,980 50,581 5,801
-------------------------------------------------------------------------------------------
16 9,690 58,075 100.00% 58,075 8,460 58,075 6,660
-------------------------------------------------------------------------------------------
17 9,884 66,710 100.00% 66,710 8,973 66,710 7,650
-------------------------------------------------------------------------------------------
18 10,082 76,889 100.00% 76,889 9,549 76,889 8,818
-------------------------------------------------------------------------------------------
19 10,283 89,672 100.00% 89,672 10,283 89,672 10,283
-------------------------------------------------------------------------------------------
