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EXHIBIT 10.9
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XXXXX NATIONAL BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
XXXXXXX X. XXXXX
This Plan and Agreement, executed this 16th day of February, 1999, by
and between XXXXX NATIONAL BANK, a New York Banking Corporation of 14 - 00 X.
Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000 [hereinafter referred to as "Bank"] and
XXXXXXX X. XXXXX, employee of said Bank [hereinafter referred to as
"Participant"].
W I T N E S S E T H
WHEREAS, the Participant is currently employed by the Bank, as the
Senior Vice President; and
WHEREAS, the Bank believes it is in the best interests of the Bank and
the Participant to establish a plan for the purpose of providing
certain benefits for the Participant; and
WHEREAS, the Bank wishes to offer a Supplemental Employee Retirement
Plan (SERP) inducement to Participant to remain an employee in the
form of additional compensation for services which he has rendered or
will hereafter render; and
WHEREAS, the Participant is willing to continue in said position with
the Bank on the basis stated herein;
NOW, THEREFORE, it is mutually agreed as follows:
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ARTICLE I
EMPLOYMENT
SECTION 1.1 The Bank will employ Participant as an employee at such rate
of compensation as may be so determined. The Participant will devote his full
energy, skill and best efforts to the affairs of the Bank as required. It is
contemplated that such employment will continue until the Participant attains
age sixty-five (65) or terminates employment.
ARTICLE II
BENEFIT
SECTION 2.1 DEFINED CONTRIBUTION EXCESS BENEFIT
(A) The excess benefit has been determined to be the amount of
$30,000.00 paid annually for the term of twenty (20) years certain.
It shall be payable under conditions identical as to vesting,
conditions and terms of payment and all other matters, to the benefit payable by
The Xxxxx National Bank Pension Plan, (except the benefit from this plan will
not be paid in the form of a lump sum and the benefit will not commence prior to
the first day of the month coincident with or next following the individual's
65th birthday).
(B) In the event the Participant dies prior to attaining sixty-five
(65) years of age, annual payments will be made to Participant's named
beneficiary in the amount of $30,000.00 for ten (10) consecutive years
commencing thirty (30) days after the Participant's date of death.
SECTION 2.2 DENIAL OF BENEFIT IN CERTAIN EVENTS
(A) There shall be no benefit hereunder if the Participant in question
is discharged for cause.
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(B) Discharge for Cause" shall mean a termination of employment for
proven embezzlement, intoxication or illegal drug use which materially
interferes with job performance; conflict of interest; gross insubordination, or
conviction of a felony adversely affecting the ability of said Participant to
carry on his normal duties.
SECTION 2.3 BENEFIT ON TERMINATION BEFORE RETIREMENT AT AGE 65
In the event the Participant terminates employment for any reason
except "discharge for cause", the benefit to be paid shall be the accrued
benefit as set forth in Section 2.1(A), $30,0000.00 multiplied by a fraction not
to exceed (1) the numerator of which is the actual number of MONTHS of service
of Participant in the Xxxxx National Bank Pension Plan and (2) the denominator
of which is the number of MONTHS of service in the Xxxxx National Bank Pension
Plan the participant would have completed if the participant had continued until
his normal retirement age (65).
Said amount as so determined shall be payable for a term of twenty (20)
years certain. It will not be paid in a lump sum and the benefit will not
commence prior to the first day of the month coincident with or next following
the Participant's sixty-fifth (65) birthday.
SECTION 2.4 BENEFITS PAYABLE ONLY FROM GENERAL CORPORATE ASSETS:
UNSECURED GENERAL CREDITOR STATUS OF EMPLOYEE
(A) The payments to the Employee, his designated beneficiary or any
other beneficiary hereunder shall be made from assets which shall continue, for
all purposes, to be a part of the general, unrestricted assets of the
Corporations; no person shall have nor acquire any interest in any such assets
by virtue of the provisions of this Agreement. The Corporation's obligation
hereunder shall be an unfunded and unsecured
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promise to pay money in the future. To the extent that the Employee or any
person acquires a right to receive payments from the Corporation under the
provisions hereof, such right shall be no greater than the right of any
unsecured general creditor of the Corporation; no such person shall have nor
require any legal or equitable right, interest or claim in or to any property or
assets of the Corporation.
(B) In the event that, in its discretion, the Corporation purchases an
insurance policy or policies insuring the life of the Employee (or any other
property) to allow the Corporation to recover the cost of providing the
benefits, in whole, or in part, hereunder, neither the Employee, his designated
beneficiary, any other beneficiary nor any other person shall have nor acquire
any rights whatsoever therein or in the proceeds therefrom. The Corporation
shall be the sole owner and beneficiary of any such policy or policies and, as
such, shall possess and, may exercise all incidents of ownership therein. No
such policy, policies or other property shall be held in any trust for the
Employee or any other person nor as collateral security for any obligation of
the Corporation hereunder.
SECTION 2.5 NO CONTRACT OF EMPLOYMENT
Nothing contained herein shall be construed to be a contract of
employment for any term of years, nor as conferring upon the Employee the right
to continue to be employed by the Corporation, in any capacity. It is expressly
understood by the parties hereto that this Agreement relates exclusively to
additional compensation for the Employee's services, payable after termination
of his employment with the Corporation, and it is not intended to be an
employment contract.
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SECTION 2.6 DEATH BENEFICIARY
The "death beneficiary" of the Participant shall be the person,
persons, trust, or charitable entity, living or in existence at the time for any
distribution hereunder, which Participant shall have most recently designated as
highest in priority on a form provided for that purpose by the Bank, signed by
the Participant and filed with the Bank. The death or nonexistence of any such
beneficiary, either before or after receipt or any distribution hereunder, shall
terminate the entire interest of such beneficiary in and to the then
undistributed portion of such Participant's account and such undistributed
portion shall thereafter be distributed to or for the benefit of the beneficiary
or beneficiaries designated as next highest in priority by such Participant. If
no such beneficiary be thus designated, or if all of the thus designated
beneficiaries do not survive or are no longer in existence at anytime prior to
the complete distribution of such account, such account, or the then
undistributed balance thereof, shall be distributed by the Bank directly to the
person or persons who are heirs as named in the Participant's Last Will and
Testament, except to the extent to which the specific bequests of such document
are paid by the Participant's other resources; or if there is no such document
then in existence, under the laws of descent and distribution, to those persons
who would be entitled to the Participant's personal property, and in the
proportions to which they would be so entitled, had such Participant died, at
the time for such distribution, intestate and resident of State of New York.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 GOVERNING LAW
This Agreement shall be subject to, and governed by, the laws of the
State of New York irrespective of the fact that one or more of the parties now
is, or may become, a resident of a different state.
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SECTION 3.2 VOID LANGUAGE
In the event any parts of this Agreement are found to be void, the
remaining provision of this Agreement shall nevertheless be binding with the
same effect as though the void parts were deleted.
SECTION 3.3 RULES OF CONSTRUCTION
Wherever in this Agreement, words, including pronouns, are used in the
masculine, they shall read and be construed in the feminine or neuter whenever
they would so apply, and wherever in this Agreement words, including pronouns,
are used in the singular or plural, they shall be read and construed in the
plural or singular, respectively, wherever they would so apply.
SECTION 3.4 AGREEMENT BINDING
This Agreement shall be binding upon the parties hereto, their heirs,
executors, administrators, successors and assigns. The Bank agrees it will not
be a party to any merger, consolidation or reorganization unless and until its
obligations hereunder shall be expressly assumed by its successor or successors.
SECTION 3.5 DESIGNATION OF NAMED FIDUCIARY
The Bank is hereby designated as the named fiduciary hereunder, and
shall be responsible for the management and control of the operation and
administration of the Plan including any and all decisions pertaining to the
granting or denial of benefit claims and any and all decisions pertaining to the
review of denials of benefit claims.
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SECTION 3.6 AMENDMENT
The Plan may be amended at any time, and from time to time, by a
written instrument executed by a duly authorized officer of the Bank provided
such amendment is communicated to those Participants participating in this Plan,
and approved by a majority vote of the Board of Directors of the Bank.
SECTION 3.7 NON-ASSIGNABILITY OF BENEFITS
Neither the Employee, his designated beneficiary nor any other
beneficiary under this Agreement shall have any power or right to transfer,
assign, anticipate, hypothecate or otherwise encumber any part or all of the
amounts payable hereunder, which are expressly declared to be unassignable and
non-transferable. Any such attempted assignment or transfer shall be void and
shall terminate this Agreement; the Corporation shall thereupon have no further
liability hereunder. No amount payable hereunder shall, prior to actual payment
thereof, be subject to seizure by any creditor of any such beneficiary for the
payment of any debt, judgment or other obligation, by a proceeding at law or in
equity, not transferable by operation of law in the event of the bankruptcy,
insolvency or death of the Employee, his designated beneficiary or any other
beneficiary hereunder.
SECTION 3.8 CLAIMS FOR BENEFITS
Claims for benefits under the Plan shall be made in writing to the
Bank. If such claim for benefits is wholly or partially denied, the Bank shall,
within a reasonable period of time, but no later than ninety days after receipt
of the claim, notify the claimant of the denial of the claim. Such notice of
denial (i)shall be in writing, (ii) shall be written in a manner calculated to
be understood by the claimant, and (iii) shall contain (a) the specific reason
or reasons for denial of the claim, (b) a specific reference to the pertinent
plan
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provision upon which the denial is based, (c) a description of any additional
material or information necessary for the claimant to perfect the claim, along
with an explanation why such material or information is necessary, and (d) an
explanation of the Plan's claim review procedure.
SECTION 3.9 REQUEST FOR REVIEW OF DENIAL OF CLAIM
Within one hundred twenty (120) days of the receipt by the claimant of
the written notice of denial of the claim, or such later time as shall be deemed
reasonable taking into account the nature of the benefit subject to the claim
and any other attendant circumstances or if the claim has not been granted
within a reasonable period of time, the claimant may file a written request with
the Bank that it conduct a full and fair review of the denial of the claimant's
claim for benefits, including the conduction of a hearing, if deemed necessary
by the reviewing party. In connection with the claimant's appeal of the denial
of his benefit, the claimant may review pertinent documents and may submit
issues and comments in writing.
SECTION 3.10 DECISION ON REVIEW OF DENIAL OF CLAIMS
The Bank shall deliver to the claimant a written decision on the claim
promptly, but not later than sixty days, after the receipt of the claimant's
request for review, except that if there are special circumstances (such as the
need to hold a hearing) which require an extension of time for processing, the
aforesaid sixty day period shall be extended to one hundred twenty (120) days.
Such decision shall (a) be written in a manner calculated to be understood by
the claimant, (b) include specific reasons for the decision, and (c) contain
specific references to the pertinent Plan provisions upon which the decision is
based.
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SECTION 3.11 REIMBURSEMENT OF ATTORNEYS FEES
In the event the Bank ownership changes and Participant is denied
benefits under this Plan and Participant is required to retain legal counsel to
secure said benefits, Participant shall be entitled to reimbursement of
reasonable legal fees incurred in the pursuit of said benefits. Bank shall
reimburse Participant no later than five (5) days after submission of an invoice
for said fees from an attorney admitted to practice Law in the State of New York
or such other state as may be required because of ownership of the Bank by an
out-of-state corporation
All terms and conditions of the aforementioned Agreement not
specifically changed herein, shall remain the same and are hereby ratified and
affirmed as if set forth fully herein.
SECTION 3.12 ADMINISTRATION
The Bank Secretary shall maintain a copy of the Plan, and any
amendments thereto.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
the day and year first above written.
XXXXX NATIONAL BANK Participant:
BY: /s/Xxxxxxx X. Xxxxx /s/Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President Xxxxxxx X. Xxxxx
Attest:
/s/Xxxxxx Xxxxx
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Xxxxxx Xxxxx, Secretary
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