409A Amendment to the Wilson Bank and Trust Executive Salary Continuation Agreement for Gary Whitaker
Exhibit 10.5
409A Amendment
to the
Xxxxxx Bank and Trust
Executive Salary Continuation Agreement for
Xxxx Xxxxxxxx
to the
Xxxxxx Bank and Trust
Executive Salary Continuation Agreement for
Xxxx Xxxxxxxx
Xxxxxx Bank and Trust (“Bank”) and (“Executive”) originally entered into the Xxxxxx Bank and
Trust Executive Salary Continuation Agreement (“Agreement”) on March 30, 1995, which was
subsequently amended and restated on October 7, 2002. Pursuant to Paragraph 17 of the Agreement,
the Bank and the Executive hereby adopt this 409A Amendment, effective January 1, 2009.
RECITALS
This Amendment is intended to bring the Plan into compliance with the requirements of Internal
Revenue Code Section 409A. Accordingly, the intent of the parties hereto is that the Plan shall be
operated and interpreted consistent with the requirements of Section 409A. Therefore, the
following changes shall be made:
| 1. | Subparagraph 3 (a) shall be deleted in its entirety and replaced with the following Subparagraph 3 (a): |
If the Executive remains in the continuous employ of the Bank, he shall retire from active
employment with the Bank as of the December 31st nearest his sixty-fifth (65th) birthday,
or such later date as the Executive may actually retire.
| 2. | Subparagraph 3 (b) shall be deleted in its entirety and replaced with the following Subparagraph 3 (b): |
Early Retirement Date shall mean a retirement from service which is effective prior to age
sixty-five (65), provided the Executive has attained age fifty-five (55) and been continuously
employed by the Employer for twenty (20) years.
| 3. | The following provision regarding “Separation from Service” distributions shall be added as a new subparagraph (c) under Paragraph 3, as follows: |
SEPARATION FROM SERVICE
Notwithstanding anything to the contrary in this Agreement, to the extent that any benefit
under this Agreement is payable upon a cessation of services by the Execuitve, such
payment(s) shall not be made unless such event constitutes a “Separation from Service” as
defined in Treasury Regulations Section 1.409A-1(h).
| 4. | Subparagraph 4 (a), including 4 (a) (i), shall be deleted in its entirety and replaced with the following subparagraph 4(a): |
Upon retirement in accordance with Paragraph 3(a) and commencing with the first day of
the month following the date of such retirement, the Bank shall pay Executive an annual
benefit equal to twenty percent (20%) of the Executive’s salary at the time of
retirement payable in equal monthly installments (of 1/12 of the annual benefit) for a
period of one hundred eighty (180) months.
| 5. | Subparagraph 4 (b) shall be deleted in its entirety and replaced with the following subparagraph 4 (b): |
Upon retirement in accordance with Paragraph 3(b) and commencing with the first day of
the month following the date of such retirement, the Bank shall pay Executive a benefit
equal to the Accrual Balance earned as of the last day of the Plan Year immediately
preceding the Executive’s Early Retirement Date and as detailed on Schedule A, payable in
equal monthly installments (of 1/12 of the annual benefit) for a period of one hundred
eighty (180) months.
| 6. | Paragraph 5, “Death Benefit”, shall be deleted in its entirety and replaced with the following Paragraph 5: |
DEATH BENEFIT
5 (a) Death During Active Service. If the Executive dies while employed by the Bank, the
Bank shall pay to the Executive’s Beneficiary the Accrual Balance earned as of the last
day of the Plan Year immediately preceding the Executive’s Date of Death and as detailed
on Schedule A, payable within thirty (30) days after the Executive’s death, with the date
of payment determined by the bank in its sole discretion.
5 (b) Death During Benefit Period. If the Executive dies after benefit payments under
Paragraph 4 of this Agreement commences but before receiving all such payments, or if the
Executive is entitled to benefit payments under Paragraph 4 but dies before payments
commence, the remaining Accrual Balance shall be payable to the Executive’s Beneficiary in
accordance with the applicable payment provisions of Paragraph 4, until fully disbursed.
Payments shall be made in the same amounts they would have been made to the Executive had
the Executive survived.
| 7. | Paragraph 6, “Disability Benefit Prior to Retirement”, shall be deleted in its entirety and replaced with the following Paragraph 6: |
DISABILITY BENEFIT PRIOR TO RETIREMENT
In the event the Executive should become Disabled while actively employed by the Bank
anytime after the effective date of this Agreement but prior to retirement
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or
early retirement, the Bank will pay an annual benefit equal to sixty
percent (60%) of
the Executive’s salary and bonus at the time of Disability, payable in equal monthly
installments (1/12th of the annual benefit) for a period of one hundred eighty (180)
months. “Disability” shall mean Executive: (i) is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a continuous period
of not less than twelve (12) months; or (ii) is, by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be expected
to last for a continuous period of not less than twelve (12) months, receiving income
replacement benefits for a period of not less than three (3) months under an accident and
health plan covering employees of the Bank. Medical determination of Disability may be
made by either the Social Security Administration or by the provider of an accident or
health plan covering employees of the Bank, provided that the definition of Disability
applied under such Disability insurance program complies with the requirements of Section
409A. Upon the request of the Plan Administrator, the Executive must submit proof to the
Plan Administrator of Social Security Administration’s or the provider’s determination.
The said monthly payments shall begin the first day of the third month following the month
that the Executive becomes Disabled.
| 8. | Subparagraph 7 (a) shall be deleted in its entirety and replaced with the following Subparagraph 7 (a): |
In the event that the Executive’s employment shall terminate for any reason other than
death, disability (as defined in Paragraph 6) or retirement (in accordance with Paragraph
3), by his voluntary action or his discharge by the Bank without cause, the Bank shall pay
to the Executive the vested portion of his Accrual Balance paid in equal monthly
installments for a period of one hundred eighty (180) months commencing on the first day of
the month following the Executive’s sixty-fifth (65th) birthday.
| 9. | Paragraph 8, “Vesting”, shall be deleted in its entirety and replaced with the following Paragraph 8: |
VESTING
8 (a) Vesting. The Participant shall become one hundred percent (100%) vested in the
Accrual Balance earned as of the last day of the immediately preceding Plan Year upon
attaining age fifty-five (55) and completing twenty (20) years of continuous employment
with the Bank. Thereafter, the Participant shall be one hundred percent (100%) vested in
the Accrual Balance earned as of the last day of the Plan Year during each additional year
of service, until retirement.
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8 (b) Accrual Balance. The term “Accrual Balance” as used throughout this Agreement means
the liability that should be accrued by the Bank under accounting principles generally
accepted in the United States (“GAAP”) for the Bank’s obligation to the Executive under
this Agreement, by applying Accounting Principles Board Opinion No. 12, as amended by
Statement of Financial Accounting Standards No. 106, and the calculation method and
discount rate specified hereinafter. The Accrual Balance shall be determined by the
liability accrued by the Bank as of the Effective Date. The projected Accrual Balance is
detailed on Schedule A including annual accruals. The Accrual Balance shall be calculated
assuming a level principal amount and interest as the discount rate is accrued each period.
The principal accrual is determined such that when it is credited with interest each month,
the Accrual Balance at retirement, in accordance with Paragraph 3, equals the present value
of the retirement benefits described in Paragraph 4(a). At the end of each Plan Year, the
Accrual Balance shall be adjusted to reflect the Employer’s obligation under Paragraph 4(a)
in terms of the Executive’s actual base salary for that Plan Year. The discount rate means
the rate used by the Plan Administrator for determining the Accrual Balance. The rate is
based on the yield on a 20- year corporate bond rated Aa by Moody’s, rounded to the nearest
1/4%, or as otherwise determined by the governing Regulatory body. The initial discount
rate is 6.50%. In its sole discretion, the Plan Administrator may adjust the discount rate
to maintain the rate within reasonable standards according to GAAP and consistent with the
Interagency Advisory on Accounting for Deferred Compensation Agreements which states that
the “cost of those benefits shall be accrued over that period of the employee’s service in
a systematic and rational manner.”
| 10. | Paragraph 12, “Change of Control”, shall be deleted in its entirety and replaced with the following Paragraph 12: |
CHANGE IN CONTROL
The Bank agrees that if there is a change in control of the ownership of the Bank or its
parent company, Xxxxxx Bank Holding Company, permits its business activities to be taken
over by any other organization, or ceases its business activities or terminates its
existence, the Executive will then be considered to be vested in one hundred percent (100%)
of the retirement benefit to be paid to the Executive pursuant to Paragraph 4 (a) or 4 (b)
above and shall not be subject to the non-compete provisions in Paragraph 11. For purposes
of this Paragraph 12, “Change in Control” shall mean a change in “ownership”, “change of
effective control” or “a change in the ownership of a substantial portion of the assets” of
the Company as defined in Treasury Regulation §1.409A-3(i)(5) or any subsequently
applicable Treasury Regulation. Upon a Change in Control, the Executive shall be entitled
to the benefits set forth in Subparagraph 4 (a) or 4(b). Said benefits shall commence
thirty (30) days following said Change in Control.
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| 11. | Paragraph 17, “Amendment”, shall be deleted in its entirety and replaced with the following Paragraph 17: |
AMENDMENT and TERMINATION
17 (a) Amendments and Termination. Subject to Section 17 (b) of this Agreement, this
Agreement may be amended solely by a written agreement signed by the Bank and by the
Executive, and except for termination occurring under Paragraph 17 (b), this Agreement may
be terminated solely by the Bank in its sole discretion.
17 (b) Termination or Modification of Agreement Because of Changes in Law, Rules or
Regulations. The Bank is entering into this Agreement on the assumption that certain
existing tax laws, rules, and regulations will continue in effect in their current form. If
that assumption materially changes and the change has a material detrimental effect on this
Agreement, then the Bank reserves the right to terminate or modify this Agreement
accordingly, This Section 17 (b) shall become null and void effective immediately if a
Change in Control occurs.
| 12. | A new Paragraph 24 shall be added as follows: |
RESTRICTION ON TIMING OF DISTRIBUTION
Notwithstanding any provision of this Agreement to the contrary, distributions under this
Agreement may not commence earlier than six (6) months after the date of a Separation from
Service (as described under the “Separation from Service” provision herein) if, pursuant to
Internal Revenue Code Section 409A, the participant hereto is considered a “specified
employee” (defined in Treasury Regulation §1.409A-1(i)) of the Bank if any stock of the
Bank is publicly traded on an established securities market or otherwise. In the event a
distribution is delayed pursuant to this Section, the originally scheduled distribution
shall be delayed for six (6) months, and shall commence instead on the first day of the
seventh month following Separation from Service. If payments are scheduled to be made in
installments, the first six (6) months of installment payments shall be delayed,
aggregated, and paid instead on the first day of the seventh month, after which all
installment payments shall be made on their regular schedule. If payment is scheduled to
be made in a lump sum, the lump sum payment shall be delayed for six (6) months and instead
be made on the first day of the seventh month.
| 13. | A new Paragraph 25 shall be added as follows: |
CERTAIN ACCELERATED PAYMENTS
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The Bank may make any accelerated distribution permissible under Treasury Regulation
1.409A-3(j)(4) to the Executive of deferred amounts, provided that such distribution(s)
meets the requirements of Section 1.409A-3(j)(4).
| 14. | A new Paragraph 26 shall be added as follows: |
SUBSEQUENT CHANGES TO TIME AND FORM OF PAYMENT
The Bank may permit a subsequent change to the time and form of benefit distributions. Any
such change shall be considered made only when it becomes irrevocable under the terms of
the Agreement. Any change will be considered irrevocable not later than thirty (30) days
following acceptance of the change by the Plan Administrator, subject to the following
rules:
| (1) | the subsequent deferral election may not take effect until at least twelve (12) months after the date on which the election is made; | ||
| (2) | the payment (except in the case of death, disability, or unforeseeable emergency) upon which the subsequent deferral election is made is deferred for a period of not less than five (5) years from the date such payment would otherwise have been paid; and | ||
| (3) | in the case of a payment made at a specified time, the election must be made not less than twelve (12) months before the date the payment is scheduled to be paid. |
Therefore, the foregoing changes are agreed to.
/s/ Xxxxx Xxxxxxxxx
|
/s/ Xxxx Xxxxxxxx | |||||
Date: December 30, 2008
|
Date: December 30, 2008 |
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