AMENDED AND RESTATED PARTICIPATION AGREEMENT UNDER THE NORTHEAST COMMUNITY BANK SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Exhibit 10.10
AMENDED
AND RESTATED
UNDER
THE
NORTHEAST
COMMUNITY BANK
SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
THIS
AMENDED AND RESTATED PARTICIPATION AGREEMENT (the “Amended Participation
Agreement”) is entered into as of the 1st day of January
2010 by and between NORTHEAST
COMMUNITY BANK (the “Employer”), and Xxxxxxx X. Xxxxxxxx, an executive of
the Employer (the “Participant”).
RECITALS:
WHEREAS,
the Employer has adopted the Northeast Community Bank Supplemental Executive
Retirement Plan (the “Plan”) effective as of January 1, 2006, and
WHEREAS, the Employer and the
Participant have previously entered into a Participation Agreement under the
Plan and desire to make certain modifications thereto
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 Amended Participation Agreement shall have the same meanings
as set forth in the Plan.
2. Plan. Plan means the Northeast
Community Bank Supplemental Executive Retirement Plan, 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 Amended 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 his 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
January 1, 2006 (the “Participation Date”).
5. Normal
Retirement Age.
The Participant’s Normal Retirement Age for purposes of the Plan and this
Participation Agreement is the later of the date the Participant (i) attains age
sixty (60) or (ii) completes twenty (20) years of service.
6. Year
of Service.
The Participant shall be credited with one year of service for each twelve (12)
month period the Participant has been employed by the Employer, 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 this Plan and this Amended 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 and 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 Amended Participation Agreement, and, to the extent the
Participant acquires a right to receive payment under the Plan and this Amended
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 Amended Participation Agreement.
8.
Provisions Related to SERP
Benefit.
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(a)
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Normal
Retirement SERP Benefit. Upon the Participant’s termination of
employment upon or after attaining Normal Retirement Age, the Participant
shall receive an annual benefit of fifty percent (50%) of the
Participant’s final average base salary over the immediately preceding
full thirty-six (36) calendar months prior to termination of employment,
paid for the period and on the terms provided herein. The Participant’s
base salary calculation shall be provided by Employer’s payroll
department.
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(b)
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Early
Retirement SERP Benefit. In the event the Participant
terminates employment prior to attaining age sixty (60) but after
completing at least twenty (20) years of service, the Participant shall
receive the SERP Benefit described in Paragraph 8(a), reduced by .25% for
each month by which the Participant’s age at termination of employment is
less than the Normal Retirement
Age.
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(c)
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Form
of SERP Benefit Payment. Subject to the restrictions of Section 4.3
of the Plan, the annual SERP Benefit shall be paid in equal monthly
installments beginning not later than thirty (30) days after the
Participant’s termination date until all benefits are fully
paid. The annual SERP Benefit shall be paid for the greater of
(i) the Participant’s life or (ii) fifteen (15) years, following the
Participant’s Normal Retirement, eligible Early Retirement, or termination
of employment by reason of disability (with payments beginning at age 65
if the Participant terminates employment due to
disability).
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(d)
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Post-Retirement
Death Benefit. The Participant’s annual SERP Benefit shall be
payable for a minimum period of fifteen (15) years. In the event that the
Participant dies during the minimum fifteen (15) year SERP Benefit payment
period, the Participant’s Beneficiary, as designated pursuant to this
Participation Agreement, will continue to receive such payments until the
minimum benefits are fully paid.
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(e)
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Pre-Retirement
Death Benefit. In the event of the Participant’s death prior to
Normal Retirement, the Participant’s Beneficiary(ies) shall be entitled to
a pre-retirement death benefit equal to the actuarial equivalent
(calculated as described in Paragraph 8(g) below) of the unreduced SERP
Benefit payment described in Paragraph 8(a) of this Agreement. This
benefit shall be distributed to the Participant’s Beneficiary(ies) in a
lump sum amount as soon as administratively feasible upon Employer
notification.
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(f)
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Disability
SERP Benefit. In the event of the Participant’s termination of
employment by reason of disability, if the Participant has attained Normal
Retirement Age or is eligible for Early Retirement, the Participant shall
receive a SERP benefit determined under Paragraph 8(a) or 8(b), as
appropriate. If the Participant has not attained
Normal
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Retirement
Age and is not eligible for Early Retirement on his termination date, the
Participant shall receive a SERP benefit equal to the value of the Participant’s
Accrued SERP Benefit, payable as provided in Paragraph 8(c) of this
Participation Agreement. For purposes of this Participation Agreement
and the Plan, “disability” means that the Participant (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 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 12 months, receiving income replacement benefits for a
period of not less than 3 months under a disability program covering employees
of the Employer. The Administrator shall have full and final
authority, which shall be exercised in its discretion, to determine conclusively
whether the Participant is disabled, and shall make such determination
consistent with Section 409A.
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(g)
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Change
of Control SERP Benefit. In lieu of the benefit payable
under any other provision of this Participation Agreement and the Plan,
but subject to the restrictions of Section 4.3 of the Plan, upon the
Participant’s termination of employment (other than for Cause or by reason
of his death) following a Change of Control, the Participant shall receive
the unreduced SERP Benefit described in Paragraph 8(a) (i.e., a benefit
determined without regard to the Participant’s age or Years of Service) in
the form of a lump sum payment that is actuarially equivalent to the
Normal Retirement benefit (calculated as of the date of termination and
using the discount rate specified in Code Section 1274 in effect for the
period of termination). Such payment shall be made to the
Participant (or his beneficiary) not later than thirty (30) days after the
Participant’s termination date.
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9.
General
Provisions
(a)
No
Assignment.
No
benefit under the Plan or this Amended 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 Plan or this Amended 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 Amended 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
Amended Participation Agreement shall be binding upon each of the parties and
shall also be binding upon their respective successors and 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. The subsequent
amendment or termination of the Plan by the Employer shall not affect the
Participant’s rights under this Amended Participation Agreement.
IN
WITNESS WHEREOF, each of the parties has caused this Amended and Restated
Participation Agreement to be executed as of the day first above
written.
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PARTICIPANT
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NORTHEAST
COMMUNITY BANK
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/s/
Xxxxxxx X. Xxxxxxxx
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/s/ Xxxxxxxxx Xxxxxxxx | |||
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Xxxxxxx
X. Xxxxxxxx
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By:
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Xxxxxxxxx Xxxxxxxx | ||
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Title:
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Executive Vice President & COO/CFO | |||
| /s/ Xxxxxx X. Xxxxxx | ||||
| By: | Xxxxxx X. Xxxxxx | |||
| Title: | Audit Committee Chair | |||
