COMMUNITY FIRST BANK & TRUST SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AMENDED AND RESTATED PARTICIPATION AGREEMENT
Exhibit
10.2
COMMUNITY FIRST BANK & TRUST
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT
THIS AMENDED AND RESTATED PARTICIPATION AGREEMENT (the “Participation Agreement”) is entered
into as of this 27th day of December, 2010, by and between Community First Bank & Trust (the
“Employer”), and Xxxxxx Xxxxxxxxx, an executive of the Employer (the
“Participant”).
RECITALS:
WHEREAS, the Employer has adopted the Plan (as defined below) effective as of August 16, 2005,
as amended, and the Administrator has determined that the Participant shall be eligible to
participate in the Plan on the terms and conditions set forth in this Participation Agreement and
the Plan; and
WHEREAS, the Employer and Participant entered into a Participation Agreement, dated September
1, 2005 (the “Original Participation Agreement”) which provided for the Participant’s participation
in the Plan; and
WHEREAS, the Employer and Participant desire to provide additional clarity to the Original
Participation Agreement through the inclusion of correctional language surrounding concepts of
vesting and the Participant’s ability to receive a benefit related to her Early Retirement; and
WHEREAS, the Original Participation Agreement provides for the amending of the Original
Participation Agreement through a duly executed instrument in writing signed by the Employer and
the Participant; and
WHEREAS, the Employer and Participant desire to have this signed Participation Agreement act
as a clarification through amendment of the Original Participation Agreement by a duly executed
written instrument signed by the Employer and the Participant.
NOW, THEREFORE, in consideration of the foregoing and the agreements and covenants set forth
herein, the parties agree as follows:
1. Definitions. Except as otherwise provided, or unless the context otherwise
requires, the terms used in this Participation Agreement shall have the same meanings as set forth
in the Plan.
2. Plan. Plan means the Community First Bank & Trust Supplemental Executive
Retirement Plan, effective as of August 16, 2005, as amended, as the same may be altered or
supplemented in any validly executed Participation Agreement.
3. Incorporation of Plan. The Plan, a copy of which is attached hereto as Exhibit
A, is hereby incorporated into this Participation Agreement as if fully set forth herein and
the parties hereby agree to be bound by all of the terms and provisions contained in the Plan. The
Participant hereby acknowledges receipt of a copy of the Plan and, subject to the foregoing,
confirms her understanding and acceptance of all of the terms and conditions contained therein.
4. Effective Date of Participation. The effective date of the Participant’s
participation in the Plan shall be September 1, 2005 (the “Participation Date”).
5. Normal Retirement Age. The Participant’s Normal Retirement Age for purposes of the
Plan and this Participation Agreement is age sixty-five (65).
6. Year of Service. A Participant’s “Years of Service” shall be measured by
employment during a twelve (12) month period commencing on the Participant’s date of hire and
anniversaries thereof, whether such employment began before or after the Participation Date.
7. Prohibition Against Funding. Should any investment be acquired in connection with
the liabilities assumed under the Plan and this Participation Agreement, it is expressly understood
and agreed that the Participants and Beneficiaries shall not have any right with respect to, or
claim against, such assets nor shall any such purchase be construed to create a trust of any kind
or a fiduciary relationship between the Employer and the Participants, their Beneficiaries, or any
other person. Any such assets shall be and remain a part of the general, unpledged, unrestricted
assets of the Employer, subject to the claims of its general creditors. It is the express
intention of the parties hereto that this arrangement shall be unfunded for tax purposes and for
purposes of Title I of ERISA. The Participant shall be required to look to the provisions of the
Plan and to the Employer itself for enforcement of any and all benefits due under this
Participation Agreement, and, to the extent the Participant acquires a right to receive payment
under the Plan and this Participation Agreement, such right shall be no greater than the right of
any unsecured general creditor of the Employer. The Employer shall be designated the owner and
beneficiary of any investment acquired in connection with its obligation under the Plan and this
Participation Agreement.
8. Provisions Related to SERP Benefit.
(a) SERP Benefit. Subject to the vesting schedule as provided for herein below, the
SERP Benefit for the Participant shall be an annual benefit of twenty-five percent (25%) of
Participant’s average final base salary over the immediately preceding full twenty-four (24)
calendar months prior to the Participant’s Termination of Employment (upon Normal Retirement, Early
Retirement or other Termination of Employment, other than termination for Cause, pursuant to which
benefits are payable hereunder). Participant’s base salary calculation shall be provided by
Employer’s payroll department.
(b) Normal Retirement Vesting. Participant shall vest in her SERP Benefit based on
the following schedule:
| Participant’s | Percentage (%) vested in | |||||
| Years of Service | Participant’s SERP Benefit | |||||
1-10 |
0% | |||||
11 |
20% | |||||
12 |
40% | |||||
13 |
60% | |||||
14 |
80% | |||||
15 |
100% | |||||
(c) Early Retirement Vesting. Notwithstanding anything to the contrary contained
herein, in the event Participant has attained sixty (60) years of age and has completed fifteen
(15) Years of Service prior to her Termination of Employment, Participant shall become one-hundred
percent (100%) vested in her SERP Benefit and eligible for a SERP Benefit distribution pursuant to
Participant’s Early Retirement. For purposes of the Plan and this Participation Agreement, Early
Retirement shall mean Participant’s voluntary Termination of Employment, subsequent to the
satisfying the Early Retirement requirements contained herein, prior to Participant’s attainment of
Normal Retirement Age.
(d) Change of Control. Participant shall be one hundred percent (100%) vested in her
SERP Benefit upon a Change of Control, as provided for herein. Upon a Change of Control (as
defined in the Plan and as is consistent with Section 1.409A-3(i)(5) of the Regulations), the
payment of Participant’s SERP Benefit determined hereunder, shall not be distributed to Participant
or her Beneficiary until the Participant’s Termination of Employment from the Employer. Subject to
the restrictions of Section 4.3 of the Plan, upon Participant’s Termination of Employment within
two (2) years after a Change of Control (other than by Normal Retirement or Early Retirement), the
present value (as of the date of the Termination of Employment and using the discount rate
specified in Code Section 1274 in effect at the time of Participant’s Termination of Employment;
discounted back from the Participant’s Normal Retirement Age) of the Participant’s aggregate SERP
Benefit shall be paid out in a lump sum distribution to the Participant, or her Beneficiary, as
soon as administratively feasible following Participant’s Termination of Employment, but no later
than ninety (90) days, following such Termination of Employment. Notwithstanding the foregoing, if
the Participant’s Termination of Employment occurs after two (2) years following a Change of
Control (other than upon Normal Retirement or Early Retirement), the Participant’s SERP Benefit
shall be paid in accordance with Section 8(e) below.
(e) Form of SERP Benefit Payment. Subject to the restrictions of Section 4.3 of the
Plan, the annual SERP Benefit (other than in connection with Participant’s death, Disability or
Termination of Employment within two (2) years following a Change of Control) shall be paid each
year in equal monthly installments as of the first day of each calendar month and shall be paid for
ten (10) years following the Participant’s Normal Retirement, Early Retirement, Termination of
Employment occurring more than two (2) years following a Change of Control or in the case of
Termination of Employment other than in connection with Normal Retirement or Early Retirement upon
the Participant’s attaining Normal Retirement Age, as applicable.
(f) Post Retirement Death Benefit. Participant’s SERP Benefit shall be payable for
ten (10) years. In the event Participant dies during the ten (10) year SERP Benefit distribution
period, Participant’s Beneficiary, as designated pursuant to this Participation Agreement, will
receive the present value of the remaining SERP Benefit distributions in a lump sum. For purposes
of this Participation Agreement, the present value of the remaining SERP Benefit shall be
calculated based on the discount rate found in Code Section 1274, in effect at the time of
Participant’s death; discounted back from the Participant’s Normal Retirement Age. Such
distribution under this subsection shall occur as soon as administratively feasible following
Participant’s death, but no later than ninety (90) days following such death.
(g) Pre-Retirement Death Benefit Distribution. In the event of Participant’s death
prior to Normal Retirement, such Participant’s Beneficiary(ies) shall be entitled to a
Pre-Retirement
Death Benefit equal to the present value of the aggregate SERP Benefit payments,
irrespective of any vesting provisions herein. This Pre-Retirement Death Benefit shall be distributed to
Participant’s Beneficiary(ies) in a lump sum amount as soon as administratively feasible following
the Participant’s death, but no later than ninety (90) days following such death. For purposes of
this Agreement, the present value of the SERP Benefit shall be calculated based on the discount
rate found in Code Section 1274, in effect at the time of Participant’s death; discounted back from
the Participant’s Normal Retirement Age.
(h) Disability. The Participant shall be one hundred percent (100%) vested in her
Accrued SERP Benefit (as calculated in accordance with the vesting schedule provided in Section
8(b) above) upon her Disability, as provided for herein. For purposes of the Plan and this
Participation Agreement, a Participant shall be considered disabled if the Participant 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 Employer. Subject to the restrictions found in
Plan Section 4.3, Distributions to Specified Employees (to the extent applicable), the
Participant’s Accrued SERP Benefit upon Participant’s Disability under this subsection shall be
distributed to Participant as soon as administratively feasible, but no later than ninety (90) days
following Participant’s Disability, in a single lump sum.
(i) Non-Compete Agreement. Notwithstanding anything contrary contained herein,
Participant acknowledges and agrees with the Employer that Participant’s services to the Employer
are unique in nature and that the Employer would be irreparably damaged if Participant were to
provide similar services to any person or entity competing with the Employer. Participant
accordingly covenants and agrees that for a period commencing on the date of this Agreement and
ending one (1) year after he or she ceases to be employed by the Employer, Participant will not
directly or indirectly own, operate, manage, control, participate in, consult with, render for
service, be employed by or assist in any way any entity within thirty (30) miles of any Employer
affiliated office which is competitive with the Employer. For purposes hereof, an entity shall be
considered to be “competing with” or “competitive with” the Employer if its core business is in the
banking and/or financial services industry. In the event of Participant’s violation of this
non-compete agreement, the Participant shall immediately forfeit all benefits associated with
Participant’s participation in the Plan and this Participation Agreement back to the Employer.
9. General Provisions
(a) No Assignment. No benefit under the Participation Agreement shall be subject in
any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge,
and any such action shall be void for all purposes of the Participation Agreement. No benefit
shall in any manner be subject to the debts, contracts, liabilities, engagements, or torts of any
person, nor shall it be subject to attachments or other legal process for or against any person,
except to such extent as may be required by law.
(b) Headings. The headings contained in the Participation Agreement are inserted only
as a matter of convenience and for reference and in no way define, limit, enlarge, or describe the
scope or intent of this Plan nor in any way shall they affect this Participation Agreement or the
construction of any provision thereof.
(c) Terms. Capitalized terms shall have meanings as defined herein. Singular nouns
shall be read as plural, masculine pronouns shall be read as feminine, and vice versa, as
appropriate.
(d) Successors. This Participation Agreement shall be binding upon each of the
parties and shall also be binding upon their respective successors the Employer’s assigns.
(e) Amendments. This Participant Agreement may not be modified or amended except by a
duly executed instrument in writing signed by the Employer and the Participant.
(f) Payment Periods. For the avoidance of doubt, any payment due under this
Participation Agreement within a period following Participant’s Termination of Employment, death,
Disability or other event, shall be made on a date during such period as determined by the Employer
in its sole discretion.
(g) Section 409A. It is intended that this Participation Agreement and the Plan shall
comply with the provisions of Code Section 409A and the Regulations relating thereto so as not to
subject Participant to the payment of additional taxes and interest under Code Section 409A. In
furtherance of this intent, this Participation Agreement and the Plan shall be interpreted,
operated, and administered in a manner consistent with these intentions.
IN WITNESS WHEREOF, each of the parties has caused this Participation Agreement to be executed as
of the day first above written.
| PARTICIPANT: | COMMUNITY FIRST BANK & TRUST: | |||||||
| Xxxxxx Xxxxxxxxx | By: | /s/ Xxxx Xxxxxx | ||||||
| /s/ Xxxxxx Xxxxxxxxx | Title: President & CEO | |||||||
| Signature of Participant | ||||||||
| ATTESTED: | ATTESTED: | |||||||
By:
|
/s/ Xxx Xxxxxxxx | By: | /s/ Xxxx Xxxxxxxx | |||||
| Title: Controller | Title: SVP / COO | |||||||
LIST OF COLLATERAL DOCUMENTS
EXHIBIT A
COMMUNITY FIRST BANK & TRUST
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
EXHIBIT B
COMMUNITY FIRST BANK & TRUST
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
BENEFICIARY DESIGNATION
