EXHIBIT 10.1
AMENDMENT
TO THE
XXXXXXXX TRUSTCO, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
This Amendment is dated this 26 day of June, 2006 between Xxxxxxxx
Trustco., Inc. (the "Company") and Xxxxx X. Xxxxxx, residing at 000 Xxxxxxxx
Xxxx, Xxxxxx, Xxx Xxxx 00000 (the "Executive").
WHEREAS, the Company as the successor-in-interest to Xxxxxxxx Trust
Company and the Executive entered into a Supplemental Executive Retirement
Agreement dated July 12, 1994 (the "Agreement") which remains in full force and
effect; and
WHEREAS, the enactment of Internal Revenue Code 409A, effective January
1, 2005, requires that the Agreement be amended to be brought into compliance
with the Internal Revenue Code;
NOW, THEREFORE, it is agreed as follows:
1. This Amendment shall be effective January 1, 2005.
2. Section 2.1(b) defining "Early Retirement Date" is hereby
deleted and all references throughout the Agreement relating to the early
retirement of the Executive or an Early Retirement Date are hereby deleted.
3. The last paragraph of Section 2.2 is hereby amended to read as
follows:
Notwithstanding the foregoing, no provision of this Agreement
shall be construed or interpreted to treat service in
non-competitive, business-related capacities as "Competition
with the Company", including by way of example and not
limitation, service on the Board of the New York Business
Development Corporation.
4. Section 3.2 is hereby deleted in its entirety.
5. Section 3.4 is hereby amended to read as follows:
The annual benefit under this Agreement shall be payable in
the form of a 50% joint and survivor annuity under which the
Executive shall receive an annual benefit equal to 90% of the
annual benefit amount determined as a straight life annuity
form of payment and, upon the Executive's death, the Surviving
Spouse shall receive an annual benefit equal to 50% of the
amount which the Executive was receiving prior to death. In
the event the Executive is unmarried at the time the annual
benefit is to commence, the annual benefit shall be payable as
a straight life annuity for the life of the Executive.
6. Section 3.5 is hereby deleted in its entirety.
7. The first sentence of Section 4.1 is hereby amended to read as
follows:
The annual benefits payable in accordance with Section III
shall be payable in twelve equal monthly installments and
shall commence on the Executive's date of Retirement;
provided, however, that in the event the Executive is
determined to be a "key employee", as such term is defined in
Section 416(i) of the Internal Revenue Code of 1986, as
amended, or any successor to such statute of like import, then
any monthly benefit otherwise payable on or before the date
which is six (6) months after the Executive's termination of
employment date shall be delayed until the earlier of the
Executive's date of death or the date which is six (6) months
after the Executive's termination of employment date.
8. The last sentence of Section 4.1 is hereby amended to read as
follows:
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The last payment to the Executive will be on the first day of
the month of the later to occur of the Executive's death or
the Surviving Spouse's death; provided, however, that in the
event the straight life annuity form of payment is in effect,
then the last payment shall be on the first day of the month
in which the Executive dies.
9. Section 4.2 is hereby deleted in its entirety.
10. Section 5.1 is hereby amended to read as follows:
If the Executive dies while employed by the Company and before
his Postponed Retirement Date, the benefit payable under this
Agreement shall be determined as if the Executive retired on
the day preceding the date of his death and the Surviving
Spouse shall receive the survivor benefit as set forth in
Section 3.4. If there is no Surviving Spouse, then no benefit
shall be payable under this Agreement upon the death of the
Executive before his Postponed Retirement Date.
11. Section 5.2 is hereby deleted in its entirety.
12. The last sentence of Section 6.3 of the Agreement is hereby
amended to read as follows:
The annual disability benefit shall be payable as a 50% joint
and survivor annuity form of benefit under Section 3.4;
provided, however, that if the Executive is unmarried at the
time of a disability retirement, the annual disability benefit
shall be payable as a straight life annuity for the
Executive's life.
13. Subsection (a) of Section 7.2 is hereby deleted in its
entirety.
14. The following sentence is hereby added at the end of Section
7.4:
In no event shall the benefits payable under this Agreement be
funded through an offshore trust.
15. The following provisions are hereby added at the end of
Section 7.11:
The Company and Executive intend for the Agreement to comply
with the provisions of Section 409A of the Internal Revenue
Code of 1986, as amended. Therefore, this Agreement shall be
construed and interpreted in a manner consistent with the
parties' intent to comply with Section 409A.
IN WITNESS WHEREOF, this Amendment has been executed on the date first
above written.
XXXXXXXX TRUSTCO, INC.
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Executive Vice President
Title: Chairman of the Board and
Chief Executive Officer
/s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx ("Executive")
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