EXHIBIT 10.5
EXECUTIVE SUPPLEMENTAL COMPENSATION AGREEEMENT AND
LIFE INSURANCE ENDORSEMENT METHOD SPLIT DOLLAR PLAN AGREEMENT FOR
XXXXXXX X. XXXXXXXXX, XX.
EXECUTIVE SUPPLEMENTAL COMPENSATION AGREEMENT
This Agreement is made and entered into effective as of October 16, 2001, by and
between Citizens Bank, a state-chartered commercial bank with its principal
offices located in the City of Corvallis, Oregon ("Bank"), a wholly-owned
subsidiary of Citizens Bancorp (the "Holding Company") and Xxxxxxx X. Xxxxxxxxx,
an individual residing in the State of Oregon ("Executive").
RECITALS
WHEREAS, the Executive is an employee of the Bank, serving since December 31,
1995;
WHEREAS, the Bank desires to establish a compensation benefit program as a
fringe benefit for executive officers of the Bank in order to attract and retain
individuals with extensive and valuable experience in the banking industry;
WHEREAS, the Executive's experience and knowledge of the affairs of the Bank and
the banking industry are extensive and valuable;
WHEREAS, it is deemed to be in the best interests of the Bank to provide the
Executive with certain fringe benefits, on the terms and conditions set forth
herein, in order to reasonably induce the Executive to remain in the Bank's
employment; and
WHEREAS, the Executive and the Bank wish to specify in writing the terms and
conditions upon which this additional compensatory incentive will be provided to
the Executive;
NOW, THEREFORE, in consideration of the services to be performed by the
Executive in the future, as well as the mutual promises and covenants contained
herein, the Executive and the Bank agree as follows:
1. Terms and Definitions.
1.1. Administrator. The Bank shall be the "Administrator" and, solely for the
purposes of ERISA as defined in subparagraph 1.9 below, the "fiduciary" of this
Agreement where a fiduciary is required by ERISA.
1.2. Applicable Percentage. The term "Applicable Percentage" shall mean that
percentage listed on Schedule "A" attached hereto which is adjacent to the
calendar years which shall have elapsed from September 1, 2001 and ending on the
date payments are to first begin under the terms of this Agreement.
Notwithstanding the foregoing or the percentages set forth on Schedule "A" &
"B", but subject to all other terms and conditions set forth herein, the
"Applicable Percentage" shall be: one hundred percent (100%) in the event the
Executive's employment is terminated pursuant to subparagraph 5.4 upon the
occurrence of a "Change in Control" as defined in subparagraph 1.3 below, or the
Executive's "Disability" as defined in subparagraph 1.5 below or the Executive's
Death.
1.3. Change in Control. The term "Change in Control" shall mean the occurrence
of any of the following events with respect to the Bank (with the term "Bank"
being defined for purposes of determining whether a "Change in Control" has
occurred to include the Holding Company): (i) a change in control of a nature
that would be required to be reported in response to Item 6(e) of Schedule I 4A
of Regulation 1 4A promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or in response to any other form or report to the
regulatory agencies or governmental authorities having jurisdiction over the
Bank or any stock exchange on which the Bank's shares are listed which requires
the reporting of a change in control; (ii) any merger, consolidation or
substantive reorganization of the Bank regardless of whether the Bank does or
does not survive; (iii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) of any assets
of the Bank having an aggregate fair market value of fifty percent (50%) of the
total value of the assets of the Bank, reflected in the most recent balance
sheet of the Bank; (iv) a transaction whereby any "person" (as such term is used
in the Exchange Act) or any individual, corporation, partnership, trust or any
other entity becomes the beneficial owner, directly or indirectly, of securities
of the Bank representing in excess of fifty percent (50%) of the combined voting
power of the Bank's then outstanding securities; or (v) a situation where, in
any one-year period, individuals who at the beginning of such period constitute
the Board of Directors of the Bank cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for election by the
Bank's shareholders, of each new Director is approved by a vote of at least
three-quarters (3/4) of the Directors then still in office who were Directors at
the beginning of the period. Notwithstanding the foregoing or anything else
contained herein to the contrary, there shall not be a "Change of Control" for
the purposes of this Agreement if the event which would otherwise come within
the meaning of the term "Change of Control" involves: (1) an Employee Stock
Ownership Plan sponsored by the Bank or its Holding Company which is the party
that acquires "control" or is the principal participant in the transaction
constituting a "Change in Control," as described above; L2) is caused in whole
or in part by a Subchapter "S" election on the part of the Bank or the Holding
Company;
1.4. The Code. The "Code" shall mean the Internal Revenue Code of 1986, as
amended (the "Code").
1.5. Disability/Disabled. The term "Disability" or "Disabled" shall have the
same meaning given such terms in any policy of disability insurance maintained
by the Bank for the benefit of the Executive. In the absence of such a policy
which extends coverage to the Executive in the event of disability, the terms
shall mean bodily injury or disease (mental or physical) which wholly and
continuously prevents the performance of duty for at least six months.
1.6. Effective Date. The term "Effective Date" shall mean the date first written
above.
1.7. ERISA. The term "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
1.8. Executive Benefit; Limitation. The term "Executive Benefit" or "Retirement
Benefit Payments" shall mean the benefits determined pursuant to subparagraphs
3.1 or 3.2 and in accordance with Schedule "B", and reduced or adjusted to the
extent: (i) required under the other provisions of this Agreement, including,
but not limited to, Paragraphs 5 and 7 hereof; (ii) required by reason of the
lawful order of any regulatory agency or body having jurisdiction over the Bank
or the Holding Company; or (iii) required in order for the Bank or the Holding
Company to properly comply with any and all applicable state and federal laws,
including, but not limited to, income, employment and disability income tax laws
(e.g., FICA, FUTA, SDI). The maximum term of any Executive Benefit or Retirement
Benefit Payments payable over time under the Agreement shall be twenty-five (25)
years from the first date of payment of such Executive Benefit.
1.9. Normal Retirement Date. The term "Normal Retirement Date" shall mean the
Retirement, as defined below, of the Executive upon attainment of age sixty-four
(64). Upon the occurrence of a "Change of Control" as defined in subparagraph
1.3 above, "Normal Retirement Date" shall mean the Retirement, as defined below,
of the Executive upon attainment of age sixty (60).
1.10. Early Retirement Date. The term "Early Retirement Date" shall mean
Retirement, as defined below, of the Executive after the attainment of age
fifty-five (55).
1.11. Plan Year. The term "Plan Year" shall mean the Bank's fiscal year.
1.12. Retirement. The term "Retirement" or "Retires" shall refer to the date
which the Executive acknowledges in writing to Bank to be the last day the
Executive will provide any significant personal services, whether as an employee
or independent consultant or contractor, to Bank or any other employer in the
financial services industry. For purposes of this Agreement, the phrase
"significant personal services" shall mean more than ten (10) hours of personal
services rendered to one or more individuals or entities in any thirty (30) day
period.
1.13. Termination for Cause. The term "Termination for Cause" shall mean
termination of the employment of the Executive by reason of any of the
following:
(a) A termination "for cause" as this term may be defined in any written
employment agreement entered into by and between the Bank and the Executive;
(b) The willful breach of duty by the Executive in the course of his employment;
(c) The Executive's willful and intentional violation of any federal banking or
securities laws, or of the Bylaws, rules, policies or resolutions of the Bank or
the Holding Company, or the rules or regulations of the Board of Governors of
the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the
Comptroller of the Currency, or any other regulatory agency or governmental
authority having jurisdiction over the Bank or the Holding Company
(collectively, "Bank Regulator") which has a material adverse effect upon the
Bank or the Holding Company;
(d) The Executive is convicted of any felony or a crime which has an adverse
effect on the Bank in the reasonable judgment of the Bank's or the Holding
Company's Board of Directors, or willfully and intentionally commits a
fraudulent or dishonest act.
2. Scope, Purpose and Effect.
2.1. Contract of Employment. Although this Agreement is intended to provide the
Executive with an additional incentive to remain in the employ of the Bank, this
Agreement shall not be deemed to constitute a contract of employment between the
Executive and the Bank nor shall any provision of this Agreement restrict or
expand the right of the Bank to terminate the Executive's employment. This
Agreement shall have no impact or effect upon any separate written Employment
Agreement which the Executive may have with the Bank, it being the parties'
intention and agreement that unless this Agreement is specifically referenced in
said Employment Agreement (or any modification thereto), this Agreement (and the
Bank's obligations hereunder) shall stand separate and apart and shall have no
effect on or be affected by, the terms and provisions of said Employment
Agreement.
2.2. Fringe Benefit; 401(A) Plan. The benefits provided by this Agreement are
granted by the Bank as a fringe benefit to the Executive, and are not a part of
any salary reduction plan or any arrangement deferring a bonus or a salary
increase. The Executive shall have no right to take any current payments or
bonus in lieu of the benefits provided by this Agreement. The Executive further
agrees to accept the benefits provided by the Agreement in lieu of participation
in the existing Citizens Bank 401(A) Profit Sharing Plan for the time period set
forth on Schedule "A." In particular, and as consideration for the benefits
provided under the Agreement, the Executive hereby agrees to forgo and forfeit
any right to contributions for the Executive's benefit to the Citizens Bank
401(A) Profit Sharing Plan for the period beginning January 1, 2001 and ending
December 31, 2011.
2.3 Prohibited Payments. Notwithstanding anything in this Agreement to the
contrary (and in particular in section 1.8 or section 3 hereof), if any payment
made under this Agreement is a "golden parachute payment" as defined in Section
28(k) of the Federal Deposit Insurance Act (12 U.S.C. section 1828(k) and Part
359 of the Rules and Regulations of the Federal Deposit Insurance Corporation
(collectively, the "FDIC Rules") or is otherwise prohibited, restricted or
subject to the prior approval of a Bank Regulator (as defined in section 1.13
(d) herein), no payment shall be made hereunder without complying with said FDIC
Rules.
3. Executive Benefits Payments.
3.1. Payments Commence Upon Early Retirement Date. In the event the Executive
elects to Retire on a date which constitutes an Early Retirement Date, as
defined in subparagraph 1.10 above, the Executive shall be entitled to be paid
the Applicable Percentage of the Executive Benefits as
described in Schedules A & B, in substantially equal monthly installments on the
first day of each month, beginning with the month following the month in which
the Early Retirement Date occurs or upon such later date as may be mutually
agreed upon by the Executive and the Bank in advance of said Early Retirement
Date.
3.2. Payments Commence Upon Normal Retirement Date. If the Executive shall
remain in the continuous employment of the Bank until attaining sixty-four (64)
years of age, the Executive shall be entitled to be paid the Applicable
Percentage of the Executive Benefits, as defined in Schedules A & B, in
substantially equal monthly installments on the first day of each month,
beginning with the month following the month in which the Executive Retires or
upon such later date as may be mutually agreed upon by the Executive and the
Bank in advance of said Retirement date, payable until the Executive's death.
3.3. Payments Upon Demotion. If the Executive is subject to a Demotion, the
effective date of the Demotion shall be deemed to be an Early Retirement Date,
as defined in subparagraph 1.10 above, and the Executive shall be entitled to be
paid the Applicable Percentage of the Executive Benefits as described in
Schedules A & B, in substantially equal monthly installments on the first day of
each month, beginning with the month following the month in which the Demotion
occurs or upon such later date as may be mutually agreed upon by the Executive
and the Bank in advance of said Demotion. "Demotion" means a substantial
reduction in the Executive's pay, job title, or duties, including without
limitation a reduction of work hours to fewer than forty (40) hours per week.
4. Payments in the Event Disability Occurs Prior to Retirement. In the event the
Executive becomes Disabled while actively employed by the Bank at any time after
the Effective Date of this Agreement but prior to Retirement, the Executive
shall be entitled to be paid the Applicable Percentage of the Executive
Benefits, as defined above, in substantially equal monthly installments on the
first day of each month, beginning with the month following the month in which
the Executive becomes Disabled, payable until the Executive's death.
5. Payments in the Event Executive Is Terminated Prior to Retirement. As
indicated in subparagraph 2.1 above, the Bank reserves the right to terminate
the Executive's employment, with or without Cause but subject to any written
employment agreement which may then exist, at any time prior to the Executive's
Retirement. In the event that the employment of the Executive shall be
terminated, other than by reason of Disability or Retirement, then this
Agreement shall terminate upon the date of such termination of employment;
provided, however, that the Executive shall be entitled to the following
benefits as may be applicable depending upon the circumstances surrounding the
Executive's termination:
5.1. Termination Without Cause. If the Executive's employment is terminated by
the Bank without cause, and such termination is not subject to the provisions of
subparagraph 5.4 below, the Executive shall be entitled to be paid the
Applicable Percentage of the Executive Benefits, as defined above, in
substantially equal monthly installments on the first day of each month,
beginning with the month following the month in which the Executive attains
fifty-five (55) years of age, or any month thereafter, as requested in writing
by the Executive and delivered to the Bank or its successor thirty (30) days
prior to the commencement of installment payments; provided, however, that in
the event the Executive does not request a commencement date as specified, such
installments shall be paid on the first day of each month, beginning with the
month following the month in which the Executive attains sixty-four (64) years
of age.
5.2. Voluntary Termination by the Executive.
(a) If the Applicable Percentage is one hundred percent (100%), the Executive
shall be entitled to be paid the Applicable Percentage of the Executive
Benefits, as defined in Schedule B, in substantially equal monthly installments
on the first day of each month, beginning with the month following the month in
which the Executive attains fifty-five (55) years of age, or any month
thereafter, as requested in writing by the Executive and delivered to the Bank
or its successor thirty (30) days prior to the commencement of installment
payments; provided, however, that in the event the Executive does not request a
commencement date as specified, such installments shall be paid on the first day
of each month, beginning with the month following the month in which the
Executive attains sixty-four (64) years of age.
(b) Except as provided in Section 5.2(c), if the Executive's employment is
terminated by voluntary resignation prior to the date specified in Schedule A
which corresponds to an Applicable Percentage equal to one hundred percent
(100%) and such resignation is not subject to the provisions of subparagraph 5.4
below, the Executive shall forfeit any and all rights and benefits he may have
under the terms of this Agreement and shall have no right to be paid any of the
amounts which would otherwise be due or paid to the Executive by the Bank
pursuant to the terms of this Agreement.
(c) If the Executive's employment is terminated by voluntary resignation prior
to the date specified in Schedule A which corresponds to an Applicable
Percentage equal to one hundred percent (100%) and such resignation follows the
termination, retirement, death or disability of Xxxxxxx Xxxxxxxxx, the Executive
shall be entitled to be paid the Applicable Percentage of the Executive
Benefits, as defined above, in substantially equal monthly installments on the
first day of each month, beginning with the month following the month in which
the Executive attains fifty-five (55) years of age, or any month thereafter, as
requested in writing by the Executive and delivered to the Bank or its successor
thirty (30) days prior to the commencement of installment payments; provided,
however, that in the event the Executive does not request a commencement date as
specified, such installments shall be paid on the first day of each month,
beginning with the month following the month in which the Executive attains
sixty-two (62) years of age.
5.3. Termination for Cause. The Executive agrees that if his employment with the
Bank is terminated "for cause," as defined in subparagraph 1.13 of this
Agreement, he shall forfeit any and all rights and benefits he may have under
the terms of this Agreement and shall have no right to be paid any of the
amounts which would otherwise be due or paid to the Executive by the Bank
pursuant to the terms of this Agreement; provided however, if the Executive is
terminated for disability, he shall be entitled to benefits under Section 4.
5.4. Termination on Account of or After a Change in Control. In the event: (i)
the Executive's employment with the Bank is terminated by the Bank in
conjunction with, or by reason of, a "Change in Control" (as defined in
subparagraph 1.3 above) whether or not the Executive favored or opposed the
Change in Control; or (ii) by reason of the Bank's actions any adverse and
material change occurs in the scope of the Executive's position,
responsibilities, duties, salary, benefits, or location of employment after a
Change in Control occurs; or (iii) the Bank causes an event to occur which
reasonably constitutes or results in a demotion, a significant diminution of
responsibilities or authority, or a constructive termination (by forcing a
resignation or otherwise) of the Executive's employment after a Change in
Control occurs, then the Executive shall be entitled to be paid the Applicable
Percentage of the Executive Benefits, as defined above, in substantially equal
monthly installments on the first day of each month, beginning with the month
following the month in which the Executive attains fifty-five (55) years of age
or any month thereafter, as requested in writing by the Executive and delivered
to the Bank or its successor thirty (30) days prior to the commencement of
installment payments; provided, however, that in the event the Executive does
not request a commencement date as specified, such installments shall be paid on
the first day of each month, beginning with the month following the month in
which the Executive attains sixty-four (64) years of age. The installments shall
be payable until the Executive's death.
6. Right To Determine Funding Methods. The Bank reserves the right to determine,
in its sole and absolute discretion, whether, to what extent and by what method,
if any, to provide for the payment of the amounts which may be payable to the
Executive, under the terms of this Agreement. In the event that the Bank elects
to fund this Agreement, in whole or in part, through the use of life insurance
or annuities, or both, the Bank shall determine the ownership and beneficial
interests of any such policy of life insurance or annuity. The Bank further
reserves the right, in its sole and absolute discretion, to terminate any such
policy, and any other devise used to fund its obligations under this Agreement,
at any time, in whole or in part. Consistent with Paragraph 8 below, the
Executive shall have no right, title or interest in or to any funding source or
amount utilized by the Bank pursuant to this Agreement, and any such funding
source or amount shall not constitute security for the performance of the Bank's
obligations pursuant to this Agreement. In connection with the foregoing, the
Executive agrees to execute such documents and undergo such medical examinations
or tests which the Bank may request and which may be reasonably necessary to
facilitate any funding for this Agreement including, without limitation, the
Bank's acquisition of any policy of insurance or annuity.
7. Claims Procedure; Review.
7.1 Filing Claim - Procedure. In accordance with the Bank's obligations to
comply with ERISA, a claim for benefits under the Agreement shall be made in
writing and delivered to the Bank as the Named Fiduciary. Within a reasonable
time after receipt of the claim, the Bank shall provide a written notice of
decision to the claimant. If a claim is wholly or partially denied, the
following shall apply:
7.1.1 The written notice shall be provided to each claimant, shall state in
plain language the specific reason or reasons for the denial, shall make
specific reference to the pertinent provisions of the Agreement on which the
denial is based, and shall describe any additional material or information
necessary to perfect the claim and an explanation of why such information is
necessary.
7.1.2 The written notice shall also contain an explanation of the review
procedure established under the Agreement.
7.2 Review Procedure. The review procedure set forth in this Section is for the
purpose of allowing a claimant under the Agreement to have a reasonable
opportunity to appeal a denial of a claim and to receive a full and fair review.
7.2.1 Within sixty (60) days of the denial, in whole or in part, of a claim for
benefits under the Agreement, the claimant may file a written request with the
Bank as Named Fiduciary under the Agreement for a review of the denial. The
request may contain issues and comments, and may include any other materials or
information that may be pertinent to the review. The claimant may also request
and review any pertinent documents relating to the claim.
7.2.2 Within sixty (60) days of the receipt of a written request for review, the
Named Fiduciary shall make a decision on the request. The Named Fiduciary may in
its discretion (i) extend the time for decision to no more than one hundred and
twenty (120) days of the receipt of a written request for review, (ii) hold a
hearing on the denied claim, and (iii) request additional information from the
claimant.
7.2.3 The decision of the Named Fiduciary on the request for review shall be
provided to each claimant, shall state in plain language the specific reason or
reasons for the decision, and shall make specific reference to the pertinent
provisions of the Agreement on which the decision is based.
8. Status as an Unsecured General Creditor. Notwithstanding anything contained
herein to the contrary: (i) the Executive shall have no legal or equitable
rights, interests or claims in or to any specific property or assets of the Bank
as a result of this Agreement; (ii) none of the Bank's assets shall be held in
or under any trust for the benefit of the Executive or held in any way as
security for the fulfillment of the obligations of the Bank under this
Agreement; (iii) all of the Bank's assets shall be and remain the general
unpledged and unrestricted assets of the Bank; (iv) the Bank's obligation under
this Agreement shall be that of an unfunded and unsecured promise by the Bank to
pay money in the future; and (v) the Executive shall be an unsecured general
creditor with respect to any benefits which may be payable under the terms of
this Agreement. Notwithstanding subparagraphs (i) through (v) above, the Bank
and the Executive acknowledge and agree that, in the event of a Change in
Control, upon request of the Executive, or in the Bank's discretion if the
Executive does not so request and the Bank nonetheless deems it appropriate, the
Bank shall establish, concurrent with this agreement, a Rabbi Trust or multiple
Rabbi Trusts (the "Trust" or "Trusts") upon such terms and conditions as the
Bank, in its sole discretion, deems appropriate and in compliance with
applicable provisions of the Code, in order to permit the Bank to make
contributions and/or transfer assets to the Trust or Trusts to discharge its
obligations pursuant to this Agreement. The principal of the Trust or Trusts and
any earnings thereon shall be held separate and apart from other funds of the
Bank to be used exclusively for discharge of the Bank's obligations pursuant to
this Agreement and shall continue to be subject to the claims of the Bank's
general creditors until paid to the Executive in such manner and at such times
as specified in this Agreement.
9. Discretion of Board to Modify Terms. Notwithstanding any other provision of
the Agreement, the Board of Directors of the Bank or the Holding Company may,
its sole and absolute discretion: (i) accelerate the payment of the amounts due
under the terms of this Agreement, provided that the Executive consents to the
revised payout terms determined appropriate by the Board of Directors; (ii)
modify other terms or conditions of the Agreement, as the Board of Directors
deems necessary or appropriate, in response to changes in legislation, to rules,
regulations or rulings issued under the Internal Revenue Code, or to other
similar events having a substantial impact on the costs and benefits to the Bank
of its obligations under the Agreement, provided that the Executive shall
receive a substantially equivalent benefit in the event that a benefit existing
under the Agreement is canceled as a result of such modification.
10. Miscellaneous.
10.1. Opportunity To Consult With Independent Advisors. The Executive
acknowledges that he or she has been afforded the opportunity to consult with
independent advisors of his choosing including, without limitation, accountants
or tax advisors and counsel regarding both the benefits granted to him under the
terms of this Agreement and the (1) terms and conditions which may affect the
Executive's right to these benefits and (ii) personal tax effects of such
benefits including, without limitation, the effects of any federal or state
taxes, Section 280G of the Code, and any other taxes, costs, expenses or
liabilities whatsoever related to such benefits, which in any of the foregoing
instances the Executive acknowledges and agrees shall be the sole responsibility
of the Executive notwithstanding any other term or provision of this Agreement.
The Executive further acknowledges and agrees that the Bank shall have no
liability whatsoever related to any such personal tax effects or other personal
costs, expenses, or liabilities applicable to the Executive and further
specifically waives any right for himself or herself; and his or her heirs,
beneficiaries, legal representatives, agents, successor and assign to claim or
assert liability on the part of the Bank related to the matters described above
in this subparagraph 10.1. The Executive further acknowledges that he or she has
read, understands and consents to all of the terms and conditions of this
Agreement, and that he or she enters into this Agreement with a full
understanding of its terms and conditions.
10.2. Arbitration of Disputes. All claims, disputes and other matters in
question arising out of or relating to this Agreement or the breach or
interpretation thereof, other than those matters which are to be determined by
the Bank in its sole and absolute discretion, shall be resolved by binding
arbitration before a representative member, selected by the mutual agreement of
the parties, of the Judicial Arbitration and Mediation Services, Inc. ("JAMS"),
located in Portland, Oregon. In the event JAMS is unable or unwilling to conduct
the arbitration provided for under the terms of this Paragraph, or has
discontinued its business, the parties agree that a representative member,
selected by the mutual agreement of the parties of the American Arbitration
Association ("AAA") located in Portland, Oregon, shall conduct the binding
arbitration referred to in this Paragraph. Notice of the demand for arbitration
shall be filed in writing with the other party to this Agreement and with JAMS
(or AAA, if necessary). In no event shall the demand for arbitration be made
after the date when institution of legal or equitable proceedings based on such
claim, dispute or other matter in question would be barred by the applicable
statute of limitations. The arbitration shall be subject to such rules of
procedure used or established by JAMS, or if there are none, the rules of
procedure used or established by AAA. Any award rendered by JAMS or AAA shall be
final and binding upon the parties, and as applicable, their respective heirs,
beneficiaries, legal representatives, agents, successors and assigns, and may be
entered in any court having jurisdiction thereof. Any arbitration hereunder
shall be conducted in Corvallis, Oregon, unless otherwise agreed to by the
parties.
10.3 Attorneys' Fees. In the event of any arbitration or litigation concerning
any controversy, claim or dispute between the parties hereto, arising out of or
relating to this Agreement or the breach hereof; or the interpretation hereof;
the prevailing party shall be entitled to recover from the losing party
reasonable expenses, attorneys' fees and costs incurred in connection therewith
or in the enforcement or collection of any judgment or award rendered therein.
The "prevailing party" means the party determined by the arbitrator(s) or court,
as the case may be, to have most nearly prevailed, even if such party did not
prevail in all matters, not necessarily the one in whose favor a judgment is
rendered.
10.4. Notice. Any notice required or permitted of either the Executive or the
Bank under this Agreement shall be deemed to have been duly given, if by
personal delivery, upon the date received by the party or its authorized
representative; if by facsimile, upon transmission to a telephone number
previously provided by the party to whom the facsimile is transmitted as
reflected in the records of the party transmitting the facsimile and upon
reasonable confirmation of such transmission; and if by mail, on the third day
after mailing via U.S. first class mail, registered or certified, postage
prepaid and return receipt requested, and addressed to the party at the address
given below for the receipt of notices, or such changed address as may be
requested in writing by a party.
If to the Bank: President, Citizens Bank
000 XX 0xx Xxxxxx
Xxxxxxxxx, Xxxxxx 00000-0000
If to the Executive: Xxxxxxx X. Xxxxxxxxx
Personal Address
10.5. Assignment. The Executive shall have no power or right to transfer,
assign, anticipate, hypothecate, modify or otherwise encumber any part or all of
the amounts payable hereunder, nor, prior to payment in accordance with the
terms of this Agreement, shall any portion of such amounts be: (i) subject to
seizure by any creditor of the Executive, by a proceeding at law or in equity,
for the payment of any debts, judgments, alimony or separate maintenance
obligations which may be owed by the Executive; or (ii) transferable by
operation of law in the event of bankruptcy, insolvency or otherwise. Any such
attempted assignment or transfer shall be void.
10.6. Binding Effect/Merger or Reorganization. This Agreement shall be binding
upon and inure to the benefit of the Executive and the Bank. Accordingly, the
Bank shall not merge or consolidate into or with another corporation, or
reorganize or sell substantially all of its assets to another corporation, firm
or person, unless and until such succeeding or continuing corporation, firm or
person agrees to assume and discharge the obligations of the Bank under this
Agreement. In the alternative, the Holding Company may agree to assume and
discharge the
obligation of the Bank under this Agreement. Upon the occurrence
of such event, the term "Bank" as used in this Agreement shall be deemed to
refer to such surviving or successor firm, person, entity or corporation, or the
Holding Company, as the case may be.
10.7. Nonwaiver. The failure of either party to enforce at any time or for any
period of time any one or more of the terms or conditions of this Agreement
shall not be a waiver of such term(s) or condition(s) or of that party's right
thereafter to enforce each and every term and condition of this Agreement.
10.8. Partial Invalidity. If any terms, provision, covenant, or condition of
this Agreement is determined by an arbitrator or a court, as the case may be, to
be invalid, void, or unenforceable, such determination shall not render any
other term, provision, covenant or condition invalid, void or unenforceable, and
the Agreement shall remain in full force and effect notwithstanding such partial
invalidity.
10.9. Entire Agreement. This Agreement supersedes any and all other agreements,
either oral or in writing, between the parties with respect to the subject
matter of this Agreement and contains all of the covenants and agreements
between the parties with respect thereto. Each party to this Agreement
acknowledges that no other representations, inducements, promises, or
agreements, oral or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not set forth herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be valid
or binding on either party.
10.10. Modifications. Any modification of this Agreement shall be effective only
if it is in writing and signed by each party or such party's authorized
representative.
10.11. Paragraph Headings. The paragraph headings used in this Agreement are for
convenience only, and shall not affect or be used in connection with the
interpretation of this Agreement.
10.12. No Strict Construction. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any person.
10.13. Gender. Whenever in this Agreement words are used in the masculine or
neuter gender, they shall be read and construed as in the masculine, feminine or
neuter gender, whenever they should so apply.
10.14 Governing Law. The laws of the State of Oregon, other than those laws
denominated choice of law rules, and where applicable, the rules and regulations
of any regulatory agency or governmental authority having jurisdiction over the
Bank or the Holding Company, shall govern the validity, interpretation,
construction and effect of this Agreement.
IN WITNESS WFIEREOF, the Bank and the Executive have executed this Agreement on
the date first above-written in the City of Corvallis, Oregon.
Citizens Bank
/s/ Xxxx Xxxxxx
Chairman of the Board
/s/ Xxxxxxx X. Xxxxxxxxx
Executive
SCHEDULE A
CALENDAR YEAR APPLICABLE PERCENTAGE
September 1, 2001 to December 31, 2001 0%
January l, 2002 10%
January 1, 2003 20%
January 1, 2004 30%
January 1, 2005 40%
January 1, 2006 50%
January 1, 2007 60%
January 1, 2008 70%
January 1, 2009 80%
January l, 2010 90%
January l, 2011 100%
SCHEDULE B
EXECUTIVE BENEFITS
The Bank shall pay to the Executive pursuant to the Agreement during the
Executive's lifetime an amount equal to One Hundred Thousand Dollars
($100,000.00) per year in twelve (12) equal monthly installments. The amount of
Executive Benefits payable under the Agreement shall be adjusted each year from
the date of commencement of payments of the Executive Benefits until the death
of the Executive as follows:
a. The Executive Benefits shall be increased at the rate of two percent (2%)
each year.
b. If the Executive elects Early Retirement, the Executive Benefits shall be
decreased by a percentage calculated by subtracting the Executive's age at Early
Retirement from the Normal Retirement Age as defined in subparagraph 1.9 of this
agreement, and multiplying the result by a factor of five. For example, a 35%
reduction of the Executive Benefits would occur if the Executive's Early
Retirement Age is 57, based on the following calculation: 64-57=5x7=35%.
LIFE INSURANCE ENDORSEMENT METHOD
SPLIT DOLLAR PLAN AGREEMENT
Insurer/Policy Number: New York Life
Bank: Citizens Bank
Insured: Xxxxxxx X. Xxxxxxxxx
Relationship of Insured to Bank: Executive Officer
Date: October 16th, 2001
The respective rights and duties of the Bank and the Insured in the above
policy(ies) (the "Policy" or Policies) shall be as follows:
I. Definitions
Refer to the Policy provisions for the definition of all terms in this
Agreement.
II. POLICY TITLE AND OWNERSHIP
Title and ownership shall reside in the Bank for its use and for the use of the
Insured all in accordance with this Agreement. The Bank alone may, to the extent
of its interest, exercise the right to borrow or withdraw the Policy cash
values. Where the Bank and the Insured (or beneficiary or assignee with the
consent of the Insured) mutually agree to exercise the right to increase the
coverage under the subject split dollar Policy, then, in such event, the rights,
duties and benefits of the parties to such increased coverage shall continue to
be subject to the terms of this Agreement.
III. BENEFICIARY DESIGNATION RIGHTS
The Insured (or beneficiary or assignee shall have the right and power to
designate a beneficiary or beneficiaries to receive his or her share of the
proceeds payable upon the death of the Insured, and to elect and change a
payment option for such beneficiary, subject to any right or interest the Bank
may have in such proceeds, as provided in this Agreement.
IV. TAXABLE BENEFIT
Annually the Insured will receive a taxable benefit equal to the assumed cost of
insurance as required by the Internal Revenue Service. The Bank (or its
administrator) will report to the Insured the amount of imputed income received
each year on Form W-2 or its equivalent.
V. DIVISION OF DEATH PROCEEDS
Subject to Paragraph VI herein, the division of the death proceeds of the Policy
is as follows:
1. If death occurs on or before the attainment of age seventy (70) the Insured's
beneficiary (ies), (designated in accordance with Paragraph III), shall be
entitled to an amount equal to the lesser of $1,000,000, or one hundred percent
(100%) of the net at risk insurance portion of the proceeds. If death occurs
after age seventy (70) but on or before age eighty (80), the Insured's
beneficiary(ies) shall be entitled to the lesser of $700,000, or one hundred
percent (100%) of the net at risk insurance proceeds. If death occurs after age
eighty (80), the Insured's beneficiary(ies) shall be entitled to the lesser of
$400,000, or one hundred percent (100%) of the net at risk insurance proceeds.
The net at risk insurance portion is the total proceeds less the cash value of
the Policy.
2. The Bank shall be entitled to the remainder of such proceeds.
3. The Bank and the Insured (or beneficiary or assignee shall share in any
interest due on the death proceeds on a pro rata basis in the ratio that the
proceeds due the Bank and the Insured, respectively, bears to the total
proceeds, excluding any such interest.
4. In the event that the Policy is terminated other than as a result of (a) a
termination of this Agreement pursuant to paragraph IX. or (b) any intentional
act of the Insured which results in the termination of the Policy, then the Bank
shall pay to the Insured's beneficiary(ies) an amount which will provide a total
after-tax death benefit equal to the benefit that the Insured would have
received if the Policy had not been terminated.
5. Provided the Insured is not eligible to receive benefits pursuant to the
terms and conditions of that certain Executive Supplemental Compensation
Agreement effective as of October 16, 2001, the Insured's beneficiary (ies),
designated in accordance with Paragraph III, shall be entitled to an amount
equal to the lesser of $50,000 or the net at risk insurance portion of the
proceeds under the Policy. The net at risk insurance portion of the proceeds is
the total proceeds less the cash value of the Policy.
VI. DIVISION OF CASH SURRENDER VALUE
The Bank shall at all times be entitled to an amount equal to the Policy's cash
value, as that term is defined in the Policy, less any Policy loans and unpaid
interest or cash withdrawals previously incurred by the Bank and any applicable
Policy surrender charges. Such cash value shall be determined as of the date of
surrender of the Policy or death of the Insured as the case may be.
VII. PREMIUM WAIVER
If the Policy contains a premium waiver provision, any such waived amounts shall
be considered for all purposes of this Agreement as having been paid by the
Bank.
VIII. RIGHTS OF PARTIES WHERE POLICY ENDOWMENT OR ANNUITY ELECTION EXISTS
In the event the Policy involves an endowment or annuity element, the Bank's
right and interest in any endowment proceeds or annuity benefits shall be
determined under the provisions of this Agreement by regarding such endowment
proceeds or the commuted value of such annuity benefits as the Policy's cash
value. Such endowment proceeds or annuity benefits shall be treated like death
proceeds for the purposes of division under this Agreement.
IX. TERMINATION OF AGREEMENT
This Agreement shall terminate at the option of the Bank following thirty (30)
days written notice to the Insured upon the happening of the following: The
Insured's right to receive benefits under that certain Executive Supplemental
Compensation Agreement effective as of October 16, 2001 shall terminate for any
reason other than the Insured's death.
Upon such termination, the Insured (or beneficiary or assignee shall have a
ninety (90) day option to receive from the Bank an absolute assignment of the
Policy in consideration of a cash payment to the Bank, whereupon this Agreement
shall terminate. Such cash payment shall be the greater of: (1) the Bank's share
of the cash value of the Policy on the date of such assignment, as defined in
this Agreement; or (2) the amount of the premiums which have been paid by the
Bank prior to the date of such assignment.
Should the Insured (or beneficiary or assignee fail to exercise this option
within the prescribed ninety (90) day period, the Insured (or beneficiary or
assignee agrees that all of his or her rights, interest and claims in the Policy
shall terminate as of the date of the termination of this Agreement.
Except as provided above, this Agreement shall terminate upon distribution of
the death benefit proceeds in accordance with Paragraph V. above.
X. INSURED OR ASSIGNEE'S ASSIGNMENT RIGHTS
The Insured may not, without the prior written consent of the Bank, assign to
any individual, trust or other organization, any right, title or interest in the
Policy nor any rights, options, privileges or duties created under this
Agreement.
XI. AGREEMENT BINDING UPON THE PARTIES
This Agreement shall be binding upon the Insured and the Bank, and their
respective heirs, successors, personal representatives and assigns, as
applicable.
XII. NAMED FIDUCIARY AND PLAN ADMINISTRATOR
The Bank is hereby designated the "Named Fiduciary" until resignation or removal
by its Board of Directors. As Named Fiduciary, the Bank shall be responsible for
the management, control, and administration of this Agreement as established
herein. The Named Fiduciary may allocate to others certain aspects of the
management and operations responsibilities of this Agreement, including the
employment of advisors and the delegation of any ministerial duties to qualified
individuals.
XIII. FUNDING POLICY
The funding Policy for this Agreement shall be to maintain the Policy in force
by paying, when due, all premiums required.
XIV. CLAIM PROCEDURES
Claim forms or claim information as to the subject Policy can be obtained by
contacting The Benefit Marketing Group, Inc. (770-952-1529). When the Named
Fiduciary has a claim which may be covered under the provisions described in the
Policy, it should contact the office named above, and they will either complete
a claim form and forward it to an authorized representative of the Insurer or
advise the named Fiduciary what further requirements are necessary. The Insurer
will evaluate and make a decision as to payment. If the claim is payable, a
benefit check will be issued to the Named Fiduciary.
In the event that a claim is not eligible under the Policy, the Insurer will
notify the Named Fiduciary of the denial pursuant to the requirements under the
terms of the Policy. If the Named Fiduciary is dissatisfied with the denial of
the claim and wishes to contest such claim denial, it should contact the office
named above and they will assist in making inquiry to the Insurer. All
objections to the Insurer's actions should be in writing and submitted to the
office named above for transmittal to the Insurer.
XV. GENDER
Whenever in this Agreement words are used in the masculine or neuter gender,
they shall be read and construed as in the masculine, feminine or neuter gender,
whenever they should so apply.
XVI. INSURANCE COMPANY NOT A PARTY TO THIS AGREEMENT
The Insurer shall not be deemed a party to this Agreement, but will respect the
rights of the parties as set forth herein upon receiving an executed copy of
this Agreement. Payment or other performance in accordance with the Policy
provisions shall fully discharge the Insurer from any and all liability.
IN WITNESS WHEREOF, the Insured and a duly authorized Bank officer have signed
this Agreement as of the above written date.
Citizens Bank
/s/ Xxxxxxx X. Xxxxxxxxx
INSURED
/s/ Xxxx Xxxxxx
Chairman of the Board
