UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (date of earliest event reported): December 28, 2018
CORTLAND BANCORP
(Exact name of registrant as specified in its charter)
| Ohio | 000-13814 | 34-1451118 | ||
| (State or other jurisdiction | (Commission | (I.R.S. Employer | ||
| of incorporation) | File Number) | Identification No.) |
194 West Main Street, Cortland, Ohio 44410
(Address of principal executive offices, including Zip Code)
Registrant’s telephone number, including area code: (330) 637-8040
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02(e) Compensatory Arrangements of Certain Officers
Amended Salary Continuation Agreements. On December 28, 2018, The Cortland Savings and Banking Company entered into Eighth Amended Salary Continuation Agreements with President and Chief Executive Officer James M. Gasior and Executive Vice President and Chief Operating Officer Timothy Carney, a Second Amended Salary Continuation Agreement with Senior Vice President and Chief Financial Officer David J. Lucido and an Amended Salary Continuation Agreement with Senior Vice President and Chief Lending Officer Stanley P. Feret. The amendments to the Salary Continuation Agreements are summarized as follows:
| • | the Eighth Amended Salary Continuation Agreements provide for a reduction of the service requirement to age 62 for Mr. Gasior and age 60 for Mr. Carney, with the 15-year payment stream for the current specified retirement benefit amounts still commencing at age 65. |
| • | under Mr. Lucido’s existing Amended Salary Continuation Agreement, if Mr. Lucido terminates before age 65, he will receive a reduced retirement benefit, based on a vesting schedule corresponding to equal 10% increments on the first ten anniversaries of the Amended Salary Continuation Agreement’s June 1, 2010 effective date. The Second Amended Salary Continuation Agreement eliminates the vesting requirement for Mr. Lucido’s early termination benefit. As revised, the early termination benefit corresponds to the accrual balance existing at the end of the month immediately before separation of service. |
| • | Mr. Feret’s Amended Salary Continuation Agreement eliminates the vesting requirement for the early termination benefit similar to the preceding contract revision described for Mr. Lucido. |
This summary of the Salary Continuation Agreements is qualified in its entirety by reference to the attached exhibits.
Amended Split Dollar Agreements. On December 28, 2018, The Cortland Savings and Banking Company entered into Fifth Amended Split Dollar Agreements and Endorsements with President and Chief Executive Officer James M. Gasior and Executive Vice President and Chief Operating Officer Timothy Carney that provide for a reduction of the service requirement to age 62 for Mr. Gasior and age 60 for Mr. Carney. The Fifth Amended Split Dollar Agreement and Endorsement provides that if Mr. Gasior dies before age 62 in active service to the bank, instead of salary continuation agreement benefits payable to the executive, the executive’s beneficiaries will receive a life insurance death benefit. If Mr. Carney dies before age 60 in active service to the bank, instead of salary continuation agreement benefits payable to the executive, the executive’s beneficiaries will receive a life insurance death benefit. Messrs. Gasior’s and Carney’s Fifth Amended Split Dollar Agreements provide that the split dollar life insurance benefit expires when the nonqualified deferred compensation obligation is fully accrued at age 62 and 60, respectively, even if the executive is still working for the bank.
This summary of the Split Dollar Agreements and Endorsements is qualified in its entirety by reference to the attached exhibits.
Amended Severance Agreements. On December 28, 2018, Cortland Bancorp entered into Amended Severance Agreements with Messrs. Lucido and Feret that supersede all prior severance agreements with those executives. The Amended Severance Agreements with Messrs. Lucido and Feret eliminate the parachute payment tax gross-up provision in the two executives’ severance agreements.
This summary of the agreements is qualified in its entirety by reference to the exhibits attached hereto.
Item 9.01(d) Exhibits
| * | Management contract or compensatory plan or arrangement |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Cortland Bancorp | ||||||
| Date: December 28, 2018 | By: | /s/ James M. Gasior | ||||
| James M. Gasior | ||||||
| Its: | President & Chief Executive Officer | |||||
EXHIBIT 10.17
THE CORTLAND SAVINGS AND BANKING COMPANY
EIGHTH AMENDED SALARY CONTINUATION AGREEMENT
This EIGHTH AMENDED SALARY CONTINUATION AGREEMENT (this “Agreement”) is entered into , 20 , by and between The Cortland Savings and Banking Company (the “Bank”), an Ohio-chartered, FDIC-insured member bank, and Timothy Carney, Executive Vice President and Chief Operating Officer of the Bank (the “Executive”).
WHEREAS, the Executive has contributed substantially to the success of the Bank and its parent company, Cortland Bancorp, an Ohio corporation, and the Bank desires that the Executive continue in its employ,
WHEREAS, to encourage the Executive to remain an employee, the Bank is willing to provide to the Executive salary continuation benefits payable from the Bank’s general assets,
WHEREAS, as of the date of this Agreement none of the conditions or events included in the definition of the term “golden parachute payment” that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of the Bank, is contemplated insofar as the Bank is concerned,
WHEREAS, the Bank and the Executive intend that this Agreement amend and restate in its entirety the November 24, 2015 Seventh Amended Salary Continuation Agreement between the Executive and the Bank, and
WHEREAS, the parties hereto intend that this Agreement be considered an unfunded arrangement maintained primarily to provide supplemental retirement benefits for the Executive, and to be considered a non-qualified benefit plan for purposes of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The Executive is fully advised of the Bank’s financial status.
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.
ARTICLE 1
DEFINITIONS
1.1 “Accrual Balance” means the liability that should be accrued by the Bank under generally accepted accounting principles (“GAAP”) for the Bank’s obligation to the Executive under this Agreement, applying Financial Accounting Standards Board ASC 710-10-30 (formerly known as Accounting Principles Board Opinion No. 12, as amended by Statement of Financial Accounting Standards No. 106), and the calculation method and discount rate specified hereinafter. The Accrual Balance is calculated such that when it is credited with interest each month the Accrual Balance at Normal Retirement Age equals the present value of the normal retirement benefits. The discount rate means the rate used by the Plan Administrator for determining the Accrual Balance. In its sole discretion the Plan Administrator may adjust the discount rate to maintain the rate within reasonable standards according to GAAP.
1.2 “Beneficiary” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive, determined according to Article 4.
1.3 “Beneficiary Designation Form” means the form established from time to time by the Plan Administrator that the Executive completes, signs, and returns to the Plan Administrator to designate one or more Beneficiaries.
1.4 “Change in Control” means a change in control as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, applying the percentage threshold specified in each of paragraphs (a) through (c) of this section 1.4 or the related percentage threshold specified in section 409A and rules, regulations, and guidance of general application thereunder, whichever is greater –
(a) Change in ownership: a change in ownership of Cortland Bancorp occurs on the date any one person or group accumulates ownership of Cortland Bancorp stock constituting more than 50% of the total fair market value or total voting power of Cortland Bancorp’s stock,
(b) Change in effective control: (x) any one person, or more than one person acting as a group, acquires within a 12-month period ownership of Cortland Bancorp stock possessing 30% or more of the total voting power of Cortland Bancorp stock, or (y) a majority of Cortland Bancorp’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed in advance by a majority of Cortland Bancorp’s board of directors, or
(c) Change in ownership of a substantial portion of assets: a change in ownership of a substantial portion of Cortland Bancorp’s assets occurs if in a 12-month period any one person or more than one person acting as a group acquires from Cortland Bancorp assets having a total gross fair market value equal to or exceeding 40% of the total gross fair market value of all of Cortland Bancorp’s assets immediately before the acquisition or acquisitions. For this purpose, gross fair market value means the value of Cortland Bancorp’s assets, or the value of the assets being disposed of, determined without regard to any liabilities associated with the assets.
1.5 “Code” means the Internal Revenue Code of 1986, as amended, and rules, regulations, and guidance of general application issued by the Department of the Treasury under the Internal Revenue Code of 1986, as amended.
1.6 “Disability” means, because of a medically determinable physical or mental impairment that can be expected to result in death or that can be expected to last for a continuous period of at least 12 months, (x) the Executive is unable to engage in any substantial gainful activity, or (y) the Executive is receiving income replacement benefits for a period of at least three months under an accident and health plan of the employer. Medical determination of disability may be made either by the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank. Upon request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of the Social Security Administration’s or provider’s determination.
1.7 “Early Termination” means Separation from Service before Normal Retirement Age for reasons other than death, Disability, or Termination with Cause.
1.8 “Effective Date” means March 1, 2001.
1.9 “Intentional,” for purposes of this Agreement, no act or failure to act on the part of the Executive will be considered intentional if it is due primarily to an error in judgment or negligence. An act or failure to act on the Executive’s part is intentional if it is not in good faith and if it is without a reasonable belief that the action or failure to act is in the Bank’s best interests.
1.10 “Normal Retirement Age” means age 60.
1.11 “Plan Administrator” or “Administrator” means the plan administrator described in Article 7.
1.12 “Plan Year” means a twelve-month period commencing on March 1 and ending on the last day of February of each year. The initial Plan Year commenced on the Effective Date.
1.13 “Separation from Service” means separation from service as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including termination for any reason of the Executive’s service as an executive and independent contractor to the Bank and any member of a controlled group, as defined in Code section 414, other than because of a leave of absence approved by the Bank or the Executive’s death. For purposes of this Agreement, if there is a dispute about the employment status of the Executive or the date of the Executive’s Separation from Service, the Bank has the sole and absolute right to decide the dispute, unless a Change in Control has occurred.
1.14 “Termination with Cause” and “Cause” have the same meaning specified in any effective severance or employment agreement existing on the date hereof or hereafter entered into between the Executive and the Bank. If the Executive is not a party to a severance or employment agreement containing a definition of termination with cause, Termination with Cause means the Bank terminates the Executive’s employment because of –
(a) gross negligence or gross neglect of duties or intentional and material failure to perform stated duties after written notice thereof, or
(b) disloyalty or dishonesty in the performance of duties, or a breach of fiduciary duties for personal profit, in any case whether in the Executive’s capacity as a director or officer, or
(c) intentional wrongful damage to the business or property of the Bank or its affiliates, including without limitation the reputation of the Bank, which in the judgement of the Bank causes material harm to the Bank or affiliates, or
(d) willful violation of any applicable law or significant policy of the Bank or an affiliate that, in the Bank’s judgement, results in an adverse effect on the Bank or the affiliate, regardless of whether the violation leads to criminal prosecution or conviction. For purposes of this Agreement applicable laws include any statute, rule, regulatory order, statement of policy, or final cease-and-desist order of any governmental agency or body having regulatory authority over the Bank, or
(e) occurrence of any event that results in the Executive being excluded from coverage, or having coverage limited for the Executive as compared to other executives of the Bank, under the Bank’s blanket bond or other fidelity or insurance policy covering its directors, officers, or employees, or
(f) the Executive is removed from office or permanently prohibited from participating in the Bank’s affairs by an order issued under section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
(g) conviction of or plea of no contest to a felony or conviction of or plea of no contest to a misdemeanor involving moral turpitude, or the actual incarceration of the Executive for 45 consecutive days or more.
1.15 “Voluntary Termination with Good Reason” means a voluntary Separation from Service by the Executive if the following conditions (x) and (y) are satisfied: (x) a voluntary Separation from Service by the Executive will be considered a Voluntary Termination with Good Reason if any of the following occur without the Executive’s advance written consent –
1) a material diminution of the Executive’s base salary,
2) a material diminution of the Executive’s authority, duties, or responsibilities,
3) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report,
4) a material diminution in the budget over which the Executive retains authority,
5) a material change in the geographic location at which the Executive must perform services for the Bank, or
6) any other action or inaction that constitutes a material breach by the Bank of the agreement under which the Executive provides services to the Bank.
(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank has 30 days thereafter to remedy the condition. In addition, the Executive’s voluntary termination because of the existence of one or more of the conditions described in clause (x) must occur within 24 months after the initial existence of the condition.
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement. Unless Separation from Service or a Change in Control occurs before Normal Retirement Age, when the Executive attains Normal Retirement Age the Bank will pay to the Executive the benefit described in this section 2.1 instead of any other benefit under this Agreement. If the Executive’s Separation from Service thereafter is a Termination with Cause or if this Agreement terminates under Article 5, no further benefits will be paid.
| 2.1.1 | Amount of benefit. The annual benefit under this section 2.1 is $129,840. |
| 2.1.2 | Payment of benefit. Beginning with the month immediately after the month in which the Executive attains age 65, the Bank will pay the annual benefit to the Executive in equal monthly installments on the last day of each month. The annual benefit will be paid to the Executive for 15 years. |
2.2 Early Termination. Unless the Executive receives the benefit under section 2.4 after a Change in Control, upon Early Termination the Bank will pay to the Executive the benefit described in this section 2.2 instead of any other benefit under this Agreement, except that all benefits under this Agreement are forfeited if the Executive violates the covenants of Article 9.
| 2.2.1 | Amount of benefit. The annual benefit under this section 2.2 is calculated as the amount that fully amortizes the Accrual Balance existing at the end of the month immediately before the month in which Separation from Service occurs, amortizing that Accrual Balance over 15 years and taking into account interest at the discount rate or rates established by the Plan Administrator. |
| 2.2.2 | Payment of benefit. The Bank will pay the annual benefit to the Executive in equal monthly installments on the last day of each month, except that the first six monthly installments after the Executive’s Separation from Service will not be paid to the Executive until the seventh month after the month in which Separation from Service occurs. In the seventh month after the month in which Separation from Service occurs the Executive is entitled to the first six monthly installments and the regular monthly installment for the seventh month. The Executive is entitled to a total of 180 monthly installments, including the first six installments that are paid in the seventh month. |
2.3 Disability. For Separation from Service because of Disability before Normal Retirement Age, the Bank will pay to the Executive the benefit described in this section 2.3 instead of any other benefit under this Agreement. The Executive is entitled to no benefit under this section 2.3 if Separation from Service because of Disability occurs after a Change in Control.
| 2.3.1 | Amount of benefit. The annual benefit under this section 2.3 is calculated as the amount that fully amortizes the Accrual Balance existing at the end of the month immediately before the month in which Separation from Service occurs, amortizing that Accrual Balance over 15 years and taking into account interest at the discount rate or rates established by the Plan Administrator. |
| 2.3.2 | Payment of benefit. Beginning with the later of (x) the seventh month after the month in which the Executive’s Separation from Service occurs, or (y) the month immediately after the month in which the Executive attains age 65, the Bank will pay the annual benefit to the Executive in equal monthly installments on the last day of each month. If the benefit is paid under clause (x) in the seventh month after Separation from Service, the first six monthly installments after Separation from Service will not be paid to the Executive until the seventh month after the month in which Separation from Service occurs. In the seventh month the Executive is entitled to the first six monthly installments and the regular monthly installment for the seventh month. The Executive is entitled to a total of 180 monthly installments, including the first six installments that are paid in the seventh month. |
2.4 Change in Control. If a Change in Control occurs both before Normal Retirement Age and before Separation from Service, the Bank will pay to the Executive the benefit described in this section 2.4 instead of any other benefit under this Agreement.
| 2.4.1 | Amount of benefit. The benefit under this section 2.4 is the Normal Retirement Age Accrual Balance required by section 2.1, discounting the Normal Retirement Age Accrual Balance to present value using a discount rate selected by the Plan Administrator, but the discount rate selected by the Plan Administrator will not exceed the discount rate employed at the time of the Change in Control for purposes of calculating the Accrual Balance. |
| 2.4.2 | Payment of benefit. The Bank will pay the benefit under this section 2.4 to the Executive in a single lump sum three days after the Change in Control. If the Executive receives the benefit under this section 2.4 because of the occurrence of a Change in Control, the Executive is not entitled to claim additional benefits under section 2.4 if an additional Change in Control occurs thereafter. |
2.5 Lump-Sum Payout of Remaining Normal Retirement Benefit, Early Termination Benefit, or Disability Benefit When a Change in Control Occurs. If a Change in Control occurs while the Executive is receiving the Normal Retirement Age benefit under section 2.1, the Bank will pay the remaining salary continuation benefits to the Executive in a single lump sum three days after the Change in Control. If a Change in Control occurs after Separation from Service but while the Executive is receiving or is entitled to receive the Early Termination benefit under section 2.2 or the Disability benefit under section 2.3, the Bank will pay the remaining salary continuation benefits to the Executive in a single lump sum three days after the later of (x) the Change in Control or (y) the last day of the seventh month after the month in which the Executive’s Separation from Service occurs. The lump-sum payment due to the Executive as a result of a Change in Control is an amount equal to the Accrual Balance amount corresponding to the particular benefit when the Change in Control occurs.
2.6 Annual Benefit Statement. Within 120 days after the end of each Plan Year the Plan Administrator will provide or cause to be provided to the Executive an annual benefit statement showing benefits payable or potentially payable to the Executive under this Agreement. Each annual benefit statement supersedes the previous year’s annual benefit statement. If there is a contradiction between this Agreement and the annual benefit statement concerning the amount of a particular benefit payable or potentially payable to the Executive under sections 2.2, 2.3, or 2.4 hereof, the amount of the benefit determined under this Agreement controls.
2.7 Savings Clause Relating to Compliance with Code Section 409A. Despite any contrary provision of this Agreement, if when the Executive’s employment terminates the Executive is a specified employee, as defined in Code section 409A, and if any payments under Article 2 of this Agreement will result in additional tax or interest to the Executive because of section 409A, the Executive is not entitled to the payments under Article 2 until the earliest of (x) the date that is at least six months after termination of the Executive’s employment for reasons other than the Executive’s death, (y) the date of the Executive’s death, or (z) any earlier date that does not result in additional tax or interest to the Executive under section 409A. If any provision of this Agreement would subject the Executive to additional tax or interest under section 409A, the Bank will reform the provision. However, the Bank will maintain to the maximum extent practicable the original intent of the applicable provision without subjecting the Executive to additional tax or interest, and the Bank is not required to incur any additional compensation expense as a result of the reformed provision.
2.8 One Benefit Only. Despite anything to the contrary in this Agreement, the Executive and Beneficiary are entitled to one benefit only under this Agreement, which is determined by the first event to occur that is dealt with by this Agreement. Except as provided in section 2.5 or Article 3, subsequent occurrences of events dealt with by this Agreement do not entitle the Executive or Beneficiary to other or additional benefits under this Agreement.
ARTICLE 3
DEATH BENEFITS
3.1 Death in Active Service Before Normal Retirement Age. If the Executive dies both before Normal Retirement Age and before Separation from Service, instead of any other benefit payable under this Agreement the Executive’s Beneficiary is entitled at the Executive’s death solely to the benefit, if any, payable under the Split Dollar Agreement and Endorsement attached to this Agreement as Addendum A, as amended, unless the Change-in-Control benefit under section 2.4 has been paid. The Executive’s Beneficiary is entitled to no benefit under the Split Dollar Agreement and Endorsement, as amended, if the Change-in-Control benefit under section 2.4 has been paid.
3.2 Death During Benefit Period. If the Executive dies after benefit payments under Article 2 commence but before receiving all such payments, the Bank will pay the remaining benefits to the Executive’s Beneficiary at the same time and in the same amounts they would have been paid to the Executive had the Executive survived. In that case no death benefit is payable under the Split Dollar Agreement and Endorsement, as amended. If the Executive is entitled to benefit payments under Article 2 but dies before payments commence, the benefits are payable to the Executive’s Beneficiary but payments will commence on the last day of the month after the date of the Executive’s death, and no death benefit is payable under the Split Dollar Agreement and Endorsement, as amended. However, the Executive’s Beneficiary is entitled to no benefit under the Split Dollar Agreement and Endorsement, as amended, if the Change-in-Control benefit under section 2.4 has been paid.
3.3 Lump-Sum Payout of Remaining Normal Retirement Benefit, Early Termination Benefit, or Disability Benefit When a Change in Control Occurs. If a Change in Control occurs while the Beneficiary is receiving or is entitled to receive because of section 3.2 the section 2.1 Normal Retirement Age benefit after the Executive’s death or if a Change in Control occurs after the Executive’s Separation from Service but while the Beneficiary is receiving or is entitled to receive because of section 3.2 the section 2.2 Early Termination benefit or the section 2.3 Disability benefit after the Executive’s death, the Bank will pay the remaining benefits to the Beneficiary in a single lump sum three days after the Change in Control. The lump-sum payment due to the Beneficiary as a result of a Change in Control is an amount equal to the Accrual Balance amount corresponding to the particular benefit when the Change in Control occurs.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive may designate a Beneficiary to receive any benefits payable under this Agreement after the Executive’s death. The Beneficiary designated under this Agreement may be the same as or different from the beneficiary designation under any other benefit plan of the Bank in which the Executive participates.
4.2 Beneficiary Designation: Change. The Executive designates a Beneficiary by completing and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated agent. The Executive’s Beneficiary designation is automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved. The Executive may change a Beneficiary by completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures, as in effect from time to time. Upon acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed are cancelled. The Plan Administrator is entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before the Executive’s death.
4.3 Acknowledgment. No designation or change in designation of a Beneficiary is effective until received, accepted, and acknowledged in writing by the Plan Administrator or its designated agent.
4.4 No Beneficiary Designation. If the Executive dies without a valid beneficiary designation or if all designated Beneficiaries predecease the Executive, the Executive’s spouse is the designated Beneficiary. If the Executive has no surviving spouse, benefit payments will be made to the personal representative of the Executive’s estate.
4.5 Facility of Payment. If a benefit is payable to a minor, to a person declared incapacitated, or to a person incapable of handling the disposition of his or her property, the Bank may pay the benefit to the guardian, legal representative, or person having the care or custody of the minor, incapacitated person, or incapable person. The Bank may require proof of incapacity, minority, or guardianship as it deems appropriate before distribution of the benefit. Distribution completely discharges the Bank from all liability for the benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination with Cause. Despite any contrary provision of this Agreement, the Bank will not pay any benefit under this Agreement and this Agreement terminates if Separation from Service is a Termination with Cause.
5.2 Misstatement. No benefits will be paid under this Agreement or under the Split Dollar Agreement and Endorsement, as amended, if the Executive makes any material misstatement of fact on any application or resume provided to the Bank, on any application for life insurance purchased by the Bank, or on any application for benefits provided by the Bank.
5.3 Removal. If the Executive is removed from office or permanently prohibited from participating in the Bank’s affairs by an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement terminate as of the effective date of the order, and the Split Dollar Agreement and Endorsement, as amended, also terminates as of the effective date of the order.
5.4 Default. Despite any contrary provision of this Agreement, if the Bank is in “default” or “in danger of default,” as those terms are defined in section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement terminate.
5.5 FDIC Open-Bank Assistance. All obligations under this Agreement terminate, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, if the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Any rights of the parties that have already vested are not affected, however.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. The Bank will notify any person or entity that makes a claim for benefits under this Agreement (the “Claimant”) in writing, within 90 days after receiving Claimant’s written application for benefits, of his or her eligibility or noneligibility for benefits under the Agreement. If the Plan Administrator determines that the Claimant is not eligible for benefits or full benefits, the notice will state (w) the specific reasons for denial, (x) a specific reference to the provisions of the Agreement on which the denial is based, (y) a description of any additional information or material necessary for the Claimant to perfect his or her claim, and a description of why it is needed, and (z) an explanation of the Agreement’s claims review procedure and other appropriate information concerning steps to be taken if the Claimant wishes to have the claim reviewed. If the Plan Administrator determines that there are special circumstances requiring additional time to make a decision, the Bank will notify the Claimant of the special circumstances and the date by which a decision is expected to be made, and may extend the time for up to an additional 90 days.
6.2 Review Procedure. If the Claimant is determined by the Plan Administrator not to be eligible for benefits, or if the Claimant believes that he or she is entitled to greater or different benefits, the Claimant will have the opportunity to have his or her claim reviewed by the Bank by filing a petition for review with the Bank within 60 days after receipt of the notice issued by the Bank. The Claimant’s petition must state the specific reasons the Claimant believes entitle him or her to benefits or to greater or different benefits. Within 60 days after receipt by the Bank of the petition, the Plan Administrator will give the Claimant (and counsel, if any) an opportunity to present his or her position verbally or in writing, and the Claimant (or counsel) will have the right to review the pertinent documents. The Plan Administrator will notify the Claimant of the Plan Administrator’s decision in writing within the 60-day period, stating specifically the basis of its decision, written in a manner to be understood by the Claimant, and the specific provisions of the Agreement on which the decision is based. If, because of the need for a hearing, the 60-day period is not sufficient, the decision may be deferred for up to another 60 days at the election of the Plan Administrator, but notice of this deferral will be given to the Claimant.
ARTICLE 7
ADMINISTRATION OF AGREEMENT
7.1 Plan Administrator Duties. This Agreement will be administered by a Plan Administrator consisting of the Board or such committee or person as the Board appoints. The Executive may not be a member of the Plan Administrator. The Plan Administrator has the discretion and authority to (x) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (y) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
7.2 Agents. In the administration of this Agreement the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
7.3 Binding Effect of Decisions. The decision or action of the Plan Administrator about any question arising out of the administration, interpretation, and application of the Agreement and the rules and regulations promulgated hereunder is final and conclusive and binding upon all persons having any interest in the Agreement. No Executive or Beneficiary has any right, vested or nonvested, regarding the continued use of any previously adopted assumptions, including but not limited to the discount rate and calculation method employed in the determination of the Accrual Balance.
7.4 Indemnity of Plan Administrator. The Bank will indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members.
7.5 Bank Information. To enable the Plan Administrator to perform its functions, the Bank will supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Separation from Service of the Executive, and such other pertinent information as the Plan Administrator reasonably requires.
ARTICLE 8
MISCELLANEOUS
8.1 Amendments and Termination. This Agreement may be amended solely by a written agreement signed by the Bank and by the Executive. This Agreement may be terminated by the Bank without the Executive’s consent. Unless Article 5 provides that the Executive is not entitled to payment or unless when termination occurs the Executive has already received payment of benefits under this Agreement, the Bank must pay the Accrual Balance in a single lump sum to the Executive if the Bank terminates this Agreement. The lump-sum termination payment will be made to the Executive on the first day of the thirteenth month after the month in which the Bank terminates this Agreement.
8.2 Binding Effect. This Agreement binds the Executive and the Bank and their beneficiaries, survivors, executors, successors, administrators, and transferees.
8.3 No Guarantee of Employment. This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Bank’s right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executive’s right to terminate employment at any time.
8.4 Non-Transferability. Benefits under this Agreement may not be sold, transferred, assigned, pledged, attached, or encumbered.
8.5 Successors; Binding Agreement. By an assumption agreement in form and substance satisfactory to the Executive, the Bank will require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the Bank’s business or assets to expressly assume and agree to perform this Agreement in the same manner and to the same extent the Bank would be required to perform this Agreement had no succession occurred.
8.6 Tax Withholding. The Bank will withhold any taxes that are required to be withheld from the benefits provided under this Agreement.
8.7 Applicable Law. The Agreement and all rights hereunder are governed by the laws of the State of Ohio, except to the extent preempted by the laws of the United States of America.
8.8 Unfunded Arrangement. The Executive and beneficiary are general unsecured creditors of the Bank for the payment of benefits under this Agreement. The benefits represent the mere promise by the Bank to pay benefits. The rights to benefits are not subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the Executive’s life is a general asset of the Bank to which the Executive and beneficiary have no preferred or secured claim.
8.9 Entire Agreement. This Agreement and the Split Dollar Agreement and Endorsement attached to this Agreement as Addendum A, as amended, constitute the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth. This Agreement amends and restates in its entirety the November 24, 2015 Seventh Amended Salary Continuation Agreement.
8.10 Severability. If any provision of this Agreement is held invalid, invalidity does not affect any other provision of this Agreement not held invalid, and to the full extent consistent with law each such other provision continues in full force and effect. If any provision of this Agreement is held invalid in part, invalidity does not affect the remainder of the provision not held invalid, and to the full extent consistent with law the remainder of the provision, together with all other provisions of this Agreement, continues in full force and effect.
8.11 Headings. Headings are included herein solely for convenience of reference and do not affect the meaning or interpretation of any provision of this Agreement.
8.12 Notices. All notices, requests, demands and other communications hereunder must be in writing and will be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice must be given to the board of directors, The Cortland Savings and Banking Company, 194 W. Main Street, P.O. Box 98, Cortland, Ohio 44410-1466, or to such other or additional person or persons as the Bank designates to the Executive in writing. If to the Executive, notice will be given to the Executive at the Executive’s address appearing on the Bank’s records, or to such other or additional person or persons as the Executive designates to the Bank in writing.
8.13 Payment of Legal Fees. The Bank is aware that after a Change in Control management could cause or attempt to cause the Bank to refuse to comply with its obligations under this Agreement, or could institute or cause or attempt to cause the Bank to institute litigation seeking to have this Agreement declared unenforceable, or could take or attempt to take other action to deny Executive the benefits intended under this Agreement. In these circumstances the purpose of this Agreement would be frustrated. The Bank desires that the Executive not be required to incur expenses associated with enforcement of rights under this Agreement, whether by litigation or other legal action, because the cost and expense thereof would substantially detract from the benefits intended to be granted to the Executive hereunder. The Bank desires that the Executive not be forced to negotiate settlement of rights under this Agreement under threat of incurring expenses. Accordingly, if after a Change in Control it appears to Executive that (x) the Bank has failed to comply with any of its obligations under this Agreement, or (y) the Bank or any other person has taken any action to declare this Agreement void or unenforceable, or instituted any litigation or other legal action designed to deny, diminish, or recover from the Executive the benefits intended to be provided to the Executive hereunder, the Bank irrevocably authorizes the Executive to retain counsel of the Executive’s choice, at the Bank’s expense as provided in this section 8.13, to represent the Executive in the initiation or defense of any litigation or other legal action, whether by or against the Bank or any director, officer, stockholder or other person affiliated with the Bank, in any jurisdiction. Despite any existing or previous attorney-client relationship between the Bank and any counsel chosen by the Executive under this section 8.13, the Bank irrevocably consents to the Executive entering into an attorney-client relationship with that counsel, and the Bank and the Executive agree that a confidential relationship exists between the Executive and that counsel. The fees and expenses of counsel selected by the Executive will be paid or reimbursed to the Executive by the Bank on a regular, periodic basis upon presentation by the Executive of a statement or statements prepared by counsel in accordance with counsel’s customary practices, regardless of whether suit is brought and regardless of whether incurred in trial, bankruptcy, or appellate proceedings. The Bank’s obligation to pay the Executive’s legal fees under this section 8.13 operates separately from and in addition to any legal fee reimbursement obligation the Bank or the Bank’s parent Cortland Bancorp may have with the Executive under a severance, employment, or other agreement. Despite any contrary provision in this Agreement however, the Bank is not required to pay or reimburse the Executive’s legal expenses if doing so violates section 18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance Corporation [12 CFR 359.3].
8.14 Automatic Review. On the third year anniversary of the date of this Agreement and every third year thereafter the Bank will automatically review this Agreement for reasonableness of benefits, with the goal that the Executive’s benefit under this Agreement combined with other Bank-provided benefits equal a reasonable percentage of Executive’s pre-retirement compensation. For purposes of this Agreement, Bank-provided benefits include but are not limited to (x) the Bank 401(k) match and (y) the Bank portion of Social Security benefits. The term “compensation” as used in this section 8.14 means the base annual salary of the Executive projected at the Executive’s Normal Retirement Age. Base annual salary means compensation of the type that would, according to the Securities and Exchange Commission’s Regulation S-K Item 402(c) (17 CFR 229.402(c)), be required to be reported by an accelerated filer as salary in column (c) of that rule’s Summary Compensation Table. The term base annual salary specifically excludes director fees and other director compensation, bonus, option grants and any other compensation that would be reported in separate columns in the Summary Compensation Table, but it includes salary deferred at the election of the Executive.
ARTICLE 9
COMPETITION AFTER SEPARATION FROM SERVICE
9.1 Covenant Not to Solicit Employees. The Executive agrees not to solicit the services of any officer or employee of the Bank for 24 months after the Executive’s Separation from Service.
9.2 Covenant Not to Compete. (a) Without advance written consent of the Bank, the Executive covenants and agrees not to compete directly or indirectly with the Bank for 24 months after Separation from Service, plus any period during which the Executive is in violation of this covenant not to compete and any period during which the Bank seeks by litigation to enforce this covenant not to compete. For purposes of this section –
(1) the term “compete” means
(a) providing financial products or services on behalf of any financial institution for any person residing in the territory,
(b) assisting (other than through the performance of ministerial or clerical duties) any financial institution in providing financial products or services to any person residing in the territory, or
(c) inducing or attempting to induce any person who was a customer of the Bank at the date of the Executive’s Separation from Service to seek financial products or services from another financial institution.
(2) the phrase “compete directly or indirectly” means –
(a) acting as a consultant, officer, director, independent contractor, incorporator, organizer, or employee of any financial institution in competition with the Bank in the territory, or
(b) ownership of more than 5% of the voting shares of any financial institution in competition with the Bank in the territory, or
(c) communicating to such financial institution the names or addresses or any financial information concerning any person who was a customer of the Bank at the Executive’s Separation from Service.
(3) the term “customer” means any person to whom the Bank is providing financial products or services on the date of the Executive’s Separation from Service.
(4) the term “financial institution” means any bank, savings association, or bank or savings association holding company, or any other institution, including a financial institution in organization, the business of which is or will be engaging in activities that are financial in nature or incidental to such financial activities as described in section 4(k) of the Bank Holding Company Act of 1956, other than the Bank or its affiliated corporations.
(5) “financial product or service” means any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Bank or an affiliate on the date of the Executive’s Separation from Service, including, but not limited to, banking activities and activities that are closely related to and a proper incident to banking.
(6) the term “person” means any individual or individuals, corporation, partnership, fiduciary or association.
(7) the term “territory” means all of Trumbull, Mahoning, and Portage Counties in Ohio.
(b) If any provision of this section or any word, phrase, clause, sentence, or other portion thereof (including, without limitation, the geographical and temporal restrictions contained therein) is held to be unenforceable or invalid for any reason, the unenforceable or invalid provision or portion will be modified or deleted so that the provision, as modified, is legal and enforceable to the fullest extent permitted under applicable law.
9.3 Remedies. Because of the unique character of the services to be rendered by the Executive hereunder, the Executive understands that the Bank would not have an adequate remedy at law for the material breach or threatened breach by the Executive of any one or more of the Executive’s covenants set forth in this Article 9. Accordingly, the Executive agrees that the Bank’s remedies for a material breach or threatened breach of this Article 9 include, but are not limited to, (x) forfeiture of any money representing accrued salary, contingent payments, or other fringe benefits due and payable to the Executive, (y) forfeiture of any unpaid benefits under Article 2 and forfeiture of death benefits under Article 3 of this Agreement, and (z) at the Bank’s option, a suit in equity by the Bank to enjoin the Executive from the breach or threatened breach of such covenants. The Executive hereby waives the claim or defense that an adequate remedy at law is available to the Bank and the Executive agrees not to urge in any such action the claim or defense that an adequate remedy at law exists. Nothing herein prohibits the Bank from pursuing any other remedies for the breach or threatened breach.
9.4 Article 9 Survives Termination But Is Void After a Change in Control. The rights and obligations set forth in this Article 9 survive termination of this Agreement. However, Article 9 is null and void if a Change in Control occurs before or after the Executive’s Separation from Service.
IN WITNESS WHEREOF, the Executive and a duly authorized Bank officer have executed this Eighth Amended Salary Continuation Agreement as of the date first written above.
| EXECUTIVE: | BANK: | |||||
| THE CORTLAND SAVINGS AND BANKING COMPANY | ||||||
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| Timothy Carney | ||||||
| By: |
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| James M. Gasior | ||||||
| Title: | President and Chief Executive Officer | |||||
BENEFICIARY DESIGNATION
THE CORTLAND SAVINGS AND BANKING COMPANY
EIGHTH AMENDED SALARY CONTINUATION AGREEMENT
Timothy Carney
I designate the following as beneficiary of any death benefits under this Eighth Amended Salary Continuation Agreement:
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Primary: |
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Contingent: |
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Note: To name a trust as beneficiary, please provide the name of the trustee(s) and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing a new written designation with the Bank. I further understand that the designations will be automatically revoked if the beneficiary predeceases me, or, if I have named my spouse as beneficiary and our marriage is subsequently dissolved.
| Signature: |
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| Timothy Carney | ||||||
| Date: , 20 | ||||||
| Accepted by the Bank this day of , 20 | ||||||
| By: |
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| James M. Gasior | ||||||
| Title: President and Chief Executive Officer | ||||||
15
EXHIBIT 10.19
THE CORTLAND SAVINGS AND BANKING COMPANY
EIGHTH AMENDED SALARY CONTINUATION AGREEMENT
This EIGHTH AMENDED SALARY CONTINUATION AGREEMENT (this “Agreement”) is entered into , 20 by and between The Cortland Savings and Banking Company (the “Bank”), an Ohio-chartered, FDIC-insured member bank, and James M. Gasior, President and Chief Executive Officer of the Bank (the “Executive”).
WHEREAS, the Executive has contributed substantially to the success of the Bank and its parent company, Cortland Bancorp, an Ohio corporation, and the Bank desires that the Executive continue in its employ,
WHEREAS, to encourage the Executive to remain an employee, the Bank is willing to provide to the Executive salary continuation benefits payable from the Bank’s general assets,
WHEREAS, as of the date of this Agreement none of the conditions or events included in the definition of the term “golden parachute payment” that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of the Bank, is contemplated insofar as the Bank is concerned,
WHEREAS, the Bank and the Executive intend that this Agreement amend and restate in its entirety the November 24, 2015 Seventh Amended Salary Continuation Agreement between the Executive and the Bank, and
WHEREAS, the parties hereto intend that this Agreement be considered an unfunded arrangement maintained primarily to provide supplemental retirement benefits for the Executive, and to be considered a non-qualified benefit plan for purposes of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The Executive is fully advised of the Bank’s financial status.
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.
ARTICLE 1
DEFINITIONS
1.1 “Accrual Balance” means the liability that should be accrued by the Bank under generally accepted accounting principles (“GAAP”) for the Bank’s obligation to the Executive under this Agreement, applying Financial Accounting Standards Board ASC 710-10-30 (formerly known as Accounting Principles Board Opinion No. 12, as amended by Statement of Financial Accounting Standards No. 106), and the calculation method and discount rate specified hereinafter. The Accrual Balance is calculated such that when it is credited with interest each month the Accrual Balance at Normal Retirement Age equals the present value of the normal retirement benefits. The discount rate means the rate used by the Plan Administrator for determining the Accrual Balance. In its sole discretion the Plan Administrator may adjust the discount rate to maintain the rate within reasonable standards according to GAAP.
1.2 “Beneficiary” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive, determined according to Article 4.
1.3 “Beneficiary Designation Form” means the form established from time to time by the Plan Administrator that the Executive completes, signs, and returns to the Plan Administrator to designate one or more Beneficiaries.
1.4 “Change in Control” means a change in control as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, applying the percentage threshold specified in each of paragraphs (a) through (c) of this section 1.4 or the related percentage threshold specified in section 409A and rules, regulations, and guidance of general application thereunder, whichever is greater –
(a) Change in ownership: a change in ownership of Cortland Bancorp occurs on the date any one person or group accumulates ownership of Cortland Bancorp stock constituting more than 50% of the total fair market value or total voting power of Cortland Bancorp’s stock,
(b) Change in effective control: (x) any one person, or more than one person acting as a group, acquires within a 12-month period ownership of Cortland Bancorp stock possessing 30% or more of the total voting power of Cortland Bancorp stock, or (y) a majority of Cortland Bancorp’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed in advance by a majority of Cortland Bancorp’s board of directors, or
(c) Change in ownership of a substantial portion of assets: a change in ownership of a substantial portion of Cortland Bancorp’s assets occurs if in a 12-month period any one person or more than one person acting as a group acquires from Cortland Bancorp assets having a total gross fair market value equal to or exceeding 40% of the total gross fair market value of all of Cortland Bancorp’s assets immediately before the acquisition or acquisitions. For this purpose, gross fair market value means the value of Cortland Bancorp’s assets, or the value of the assets being disposed of, determined without regard to any liabilities associated with the assets.
1.5 “Code” means the Internal Revenue Code of 1986, as amended, and rules, regulations, and guidance of general application issued by the Department of the Treasury under the Internal Revenue Code of 1986, as amended.
1.6 “Disability” means, because of a medically determinable physical or mental impairment that can be expected to result in death or that can be expected to last for a continuous period of at least 12 months, (x) the Executive is unable to engage in any substantial gainful activity, or (y) the Executive is receiving income replacement benefits for a period of at least three months under an accident and health plan of the employer. Medical determination of disability may be made either by the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank. Upon request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of the Social Security Administration’s or provider’s determination.
1.7 “Early Termination” means Separation from Service before Normal Retirement Age for reasons other than death, Disability, or Termination with Cause.
1.8 “Effective Date” means March 1, 2001.
1.9 “Intentional,” for purposes of this Agreement, no act or failure to act on the part of the Executive will be considered intentional if it is due primarily to an error in judgment or negligence. An act or failure to act on the Executive’s part is intentional if it is not in good faith and if it is without a reasonable belief that the action or failure to act is in the Bank’s best interests.
1.10 “Normal Retirement Age” means age 62.
1.11 “Plan Administrator” or “Administrator” means the plan administrator described in Article 7.
1.12 “Plan Year” means a twelve-month period commencing on March 1 and ending on the last day of February of each year. The initial Plan Year commenced on the Effective Date.
1.13 “Separation from Service” means separation from service as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including termination for any reason of the Executive’s service as an executive and independent contractor to the Bank and any member of a controlled group, as defined in Code section 414, other than because of a leave of absence approved by the Bank or the Executive’s death. For purposes of this Agreement, if there is a dispute about the employment status of the Executive or the date of the Executive’s Separation from Service, the Bank has the sole and absolute right to decide the dispute, unless a Change in Control has occurred.
1.14 “Termination with Cause” and “Cause” have the same meaning specified in any effective severance or employment agreement existing on the date hereof or hereafter entered into between the Executive and the Bank. If the Executive is not a party to a severance or employment agreement containing a definition of termination with cause, Termination with Cause means the Bank terminates the Executive’s employment because of –
(a) gross negligence or gross neglect of duties or intentional and material failure to perform stated duties after written notice thereof, or
(b) disloyalty or dishonesty in the performance of duties, or a breach of fiduciary duties for personal profit, in any case whether in the Executive’s capacity as a director or officer, or
(c) intentional wrongful damage to the business or property of the Bank or its affiliates, including without limitation the reputation of the Bank, which in the judgement of the Bank causes material harm to the Bank or affiliates, or
(d) willful violation of any applicable law or significant policy of the Bank or an affiliate that, in the Bank’s judgement, results in an adverse effect on the Bank or the affiliate, regardless of whether the violation leads to criminal prosecution or conviction. For purposes of this Agreement applicable laws include any statute, rule, regulatory order, statement of policy, or final cease-and-desist order of any governmental agency or body having regulatory authority over the Bank, or
(e) occurrence of any event that results in the Executive being excluded from coverage, or having coverage limited for the Executive as compared to other executives of the Bank, under the Bank’s blanket bond or other fidelity or insurance policy covering its directors, officers, or employees, or
(f) the Executive is removed from office or permanently prohibited from participating in the Bank’s affairs by an order issued under section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
(g) conviction of or plea of no contest to a felony or conviction of or plea of no contest to a misdemeanor involving moral turpitude, or the actual incarceration of the Executive for 45 consecutive days or more.
1.15 “Voluntary Termination with Good Reason” means a voluntary Separation from Service by the Executive if the following conditions (x) and (y) are satisfied: (x) a voluntary Separation from Service by the Executive will be considered a Voluntary Termination with Good Reason if any of the following occur without the Executive’s advance written consent –
1) a material diminution of the Executive’s base salary,
2) a material diminution of the Executive’s authority, duties, or responsibilities,
3) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the board of directors,
4) a material diminution in the budget over which the Executive retains authority,
5) a material change in the geographic location at which the Executive must perform services for the Bank, or
6) any other action or inaction that constitutes a material breach by the Bank of the agreement under which the Executive provides services to the Bank.
(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank has 30 days thereafter to remedy the condition. In addition, the Executive’s voluntary termination because of the existence of one or more of the conditions described in clause (x) must occur within 24 months after the initial existence of the condition.
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement. Unless Separation from Service or a Change in Control occurs before Normal Retirement Age, when the Executive attains Normal Retirement Age the Bank will pay to the Executive the benefit described in this section 2.1 instead of any other benefit under this Agreement. If the Executive’s Separation from Service thereafter is a Termination with Cause or if this Agreement terminates under Article 5, no further benefits will be paid.
| 2.1.1 | Amount of benefit. The annual benefit under this section 2.1 is $127,555. |
| 2.1.2 | Payment of benefit. Beginning with the month immediately after the month in which the Executive attains age 65, the Bank will pay the annual benefit to the Executive in equal monthly installments on the last day of each month. The annual benefit will be paid to the Executive for 15 years. |
2.2 Early Termination. Unless the Executive receives the benefit under section 2.4 after a Change in Control, upon Early Termination the Bank will pay to the Executive the benefit described in this section 2.2 instead of any other benefit under this Agreement, except that all benefits under this Agreement are forfeited if the Executive violates the covenants of Article 9.
| 2.2.1 | Amount of benefit. The annual benefit under this section 2.2 is calculated as the amount that fully amortizes the Accrual Balance existing at the end of the month immediately before the month in which Separation from Service occurs, amortizing that Accrual Balance over 15 years and taking into account interest at the discount rate or rates established by the Plan Administrator. |
| 2.2.2 | Payment of benefit. The Bank will pay the annual benefit to the Executive in equal monthly installments on the last day of each month, except that the first six monthly installments after the Executive’s Separation from Service will not be paid to the Executive until the seventh month after the month in which Separation from Service occurs. In the seventh month after the month in which Separation from Service occurs the Executive is entitled to the first six monthly installments and the regular monthly installment for the seventh month. The Executive is entitled to a total of 180 monthly installments, including the first six installments that are paid in the seventh month. |
2.3 Disability. For Separation from Service because of Disability before Normal Retirement Age, the Bank will pay to the Executive the benefit described in this section 2.3 instead of any other benefit under this Agreement. The Executive is entitled to no benefit under this section 2.3 if Separation from Service because of Disability occurs after a Change in Control.
| 2.3.1 | Amount of benefit. The annual benefit under this section 2.3 is calculated as the amount that fully amortizes the Accrual Balance existing at the end of the month immediately before the month in which Separation from Service occurs, amortizing that Accrual Balance over 15 years and taking into account interest at the discount rate or rates established by the Plan Administrator. |
| 2.3.2 | Payment of benefit. Beginning with the later of (x) the seventh month after the month in which the Executive’s Separation from Service occurs, or (y) the month immediately after the month in which the Executive attains age 65, the Bank will pay the annual benefit to the Executive in equal monthly installments on the last day of each month. If the benefit is paid under clause (x) in the seventh month after Separation from Service, the first six monthly installments after Separation from Service will not be paid to the Executive until the seventh month after the month in which Separation from Service occurs. In the seventh month the Executive is entitled to the first six monthly installments and the regular monthly installment for the seventh month. The Executive is entitled to a total of 180 monthly installments, including the first six installments that are paid in the seventh month. |
2.4 Change in Control. If a Change in Control occurs both before Normal Retirement Age and before Separation from Service, the Bank will pay to the Executive the benefit described in this section 2.4 instead of any other benefit under this Agreement.
| 2.4.1 | Amount of benefit. The benefit under this section 2.4 is the Normal Retirement Age Accrual Balance required by section 2.1, discounting the Normal Retirement Age Accrual Balance to present value using a discount rate selected by the Plan Administrator, but the discount rate selected by the Plan Administrator will not exceed the discount rate employed at the time of the Change in Control for purposes of calculating the Accrual Balance. |
| 2.4.2 | Payment of benefit. The Bank will pay the benefit under this section 2.4 to the Executive in a single lump sum three days after the Change in Control. If the Executive receives the benefit under this section 2.4 because of the occurrence of a Change in Control, the Executive is not entitled to claim additional benefits under section 2.4 if an additional Change in Control occurs thereafter. |
2.5 Lump-Sum Payout of Remaining Normal Retirement Benefit, Early Termination Benefit, or Disability Benefit When a Change in Control Occurs. If a Change in Control occurs while the Executive is receiving the Normal Retirement Age benefit under section 2.1, the Bank will pay the remaining salary continuation benefits to the Executive in a single lump sum three days after the Change in Control. If a Change in Control occurs after Separation from Service but while the Executive is receiving or is entitled to receive the Early Termination benefit under section 2.2 or the Disability benefit under section 2.3, the Bank will pay the remaining salary continuation benefits to the Executive in a single lump sum three days after the later of (x) the Change in Control or (y) the last day of the seventh month after the month in which the Executive’s Separation from Service occurs. The lump-sum payment due to the Executive as a result of a Change in Control is an amount equal to the Accrual Balance amount corresponding to the particular benefit when the Change in Control occurs.
2.6 Annual Benefit Statement. Within 120 days after the end of each Plan Year the Plan Administrator will provide or cause to be provided to the Executive an annual benefit statement showing benefits payable or potentially payable to the Executive under this Agreement. Each annual benefit statement supersedes the previous year’s annual benefit statement. If there is a contradiction between this Agreement and the annual benefit statement concerning the amount of a particular benefit payable or potentially payable to the Executive under sections 2.2, 2.3, or 2.4 hereof, the amount of the benefit determined under this Agreement controls.
2.7 Savings Clause Relating to Compliance with Code Section 409A. Despite any contrary provision of this Agreement, if when the Executive’s employment terminates the Executive is a specified employee, as defined in Code section 409A, and if any payments under Article 2 of this Agreement will result in additional tax or interest to the Executive because of section 409A, the Executive is not entitled to the payments under Article 2 until the earliest of (x) the date that is at least six months after termination of the Executive’s employment for reasons other than the Executive’s death, (y) the date of the Executive’s death, or (z) any earlier date that does not result in additional tax or interest to the Executive under section 409A. If any provision of this Agreement would subject the Executive to additional tax or interest under section 409A, the Bank will reform the provision. However, the Bank will maintain to the maximum extent practicable the original intent of the applicable provision without subjecting the Executive to additional tax or interest, and the Bank is not required to incur any additional compensation expense as a result of the reformed provision.
2.8 One Benefit Only. Despite anything to the contrary in this Agreement, the Executive and Beneficiary are entitled to one benefit only under this Agreement, which is determined by the first event to occur that is dealt with by this Agreement. Except as provided in section 2.5 or Article 3, subsequent occurrences of events dealt with by this Agreement do not entitle the Executive or Beneficiary to other or additional benefits under this Agreement.
ARTICLE 3
DEATH BENEFITS
3.1 Death in Active Service Before Normal Retirement Age. If the Executive dies both before Normal Retirement Age and before Separation from Service, instead of any other benefit payable under this Agreement the Executive’s Beneficiary is entitled at the Executive’s death solely to the benefit, if any, payable under the Split Dollar Agreement and Endorsement attached to this Agreement as Addendum A, as amended, unless the Change-in-Control benefit under section 2.4 has been paid. The Executive’s Beneficiary is entitled to no benefit under the Split Dollar Agreement and Endorsement, as amended, if the Change-in-Control benefit under section 2.4 has been paid.
3.2 Death During Benefit Period. If the Executive dies after benefit payments under Article 2 commence but before receiving all such payments, the Bank will pay the remaining benefits to the Executive’s Beneficiary at the same time and in the same amounts they would have been paid to the Executive had the Executive survived. In that case no death benefit is payable under the Split Dollar Agreement and Endorsement, as amended. If the Executive is entitled to benefit payments under Article 2 but dies before payments commence, the benefits are payable to the Executive’s Beneficiary but payments will commence on the last day of the month after the date of the Executive’s death, and no death benefit is payable under the Split Dollar Agreement and Endorsement, as amended. However, the Executive’s Beneficiary is entitled to no benefit under the Split Dollar Agreement and Endorsement, as amended, if the Change-in-Control benefit under section 2.4 has been paid.
3.3 Lump-Sum Payout of Remaining Normal Retirement Benefit, Early Termination Benefit, or Disability Benefit When a Change in Control Occurs. If a Change in Control occurs while the Beneficiary is receiving or is entitled to receive because of section 3.2 the section 2.1 Normal Retirement Age benefit after the Executive’s death or if a Change in Control occurs after the Executive’s Separation from Service but while the Beneficiary is receiving or is entitled to receive because of section 3.2 the section 2.2 Early Termination benefit or the section 2.3 Disability benefit after the Executive’s death, the Bank will pay the remaining benefits to the Beneficiary in a single lump sum three days after the Change in Control. The lump-sum payment due to the Beneficiary as a result of a Change in Control is an amount equal to the Accrual Balance amount corresponding to the particular benefit when the Change in Control occurs.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive may designate a Beneficiary to receive any benefits payable under this Agreement after the Executive’s death. The Beneficiary designated under this Agreement may be the same as or different from the beneficiary designation under any other benefit plan of the Bank in which the Executive participates.
4.2 Beneficiary Designation: Change. The Executive designates a Beneficiary by completing and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated agent. The Executive’s Beneficiary designation is automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved. The Executive may change a Beneficiary by completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures, as in effect from time to time. Upon acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed are cancelled. The Plan Administrator is entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before the Executive’s death.
4.3 Acknowledgment. No designation or change in designation of a Beneficiary is effective until received, accepted, and acknowledged in writing by the Plan Administrator or its designated agent.
4.4 No Beneficiary Designation. If the Executive dies without a valid beneficiary designation or if all designated Beneficiaries predecease the Executive, the Executive’s spouse is the designated Beneficiary. If the Executive has no surviving spouse benefit payments will be made to the personal representative of the Executive’s estate.
4.5 Facility of Payment. If a benefit is payable to a minor, to a person declared incapacitated, or to a person incapable of handling the disposition of his or her property, the Bank may pay the benefit to the guardian, legal representative, or person having the care or custody of the minor, incapacitated person, or incapable person. The Bank may require proof of incapacity, minority, or guardianship as it deems appropriate before distribution of the benefit. Distribution completely discharges the Bank from all liability for the benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination with Cause. Despite any contrary provision of this Agreement, the Bank will not pay any benefit under this Agreement and this Agreement terminates if Separation from Service is a Termination with Cause.
5.2 Misstatement. No benefits will be paid under this Agreement or under the Split Dollar Agreement and Endorsement, as amended, if the Executive makes any material misstatement of fact on any application or resume provided to the Bank, on any application for life insurance purchased by the Bank, or on any application for benefits provided by the Bank.
5.3 Removal. If the Executive is removed from office or permanently prohibited from participating in the Bank’s affairs by an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement terminate as of the effective date of the order, and the Split Dollar Agreement and Endorsement, as amended, also terminates as of the effective date of the order.
5.4 Default. Despite any contrary provision of this Agreement, if the Bank is in “default” or “in danger of default,” as those terms are defined in section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement terminate.
5.5 FDIC Open-Bank Assistance. All obligations under this Agreement terminate, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, if the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Any rights of the parties that have already vested are not affected, however.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. The Bank will notify any person or entity that makes a claim for benefits under this Agreement (the “Claimant”) in writing, within 90 days after receiving Claimant’s written application for benefits, of his or her eligibility or noneligibility for benefits under the Agreement. If the Plan Administrator determines that the Claimant is not eligible for benefits or full benefits, the notice will state (w) the specific reasons for denial, (x) a specific reference to the provisions of the Agreement on which the denial is based, (y) a description of any additional information or material necessary for the Claimant to perfect his or her claim, and a description of why it is needed, and (z) an explanation of the Agreement’s claims review procedure and other appropriate information concerning steps to be taken if the Claimant wishes to have the claim reviewed. If the Plan Administrator determines that there are special circumstances requiring additional time to make a decision, the Bank will notify the Claimant of the special circumstances and the date by which a decision is expected to be made, and may extend the time for up to an additional 90 days.
6.2 Review Procedure. If the Claimant is determined by the Plan Administrator not to be eligible for benefits, or if the Claimant believes that he or she is entitled to greater or different benefits, the Claimant will have the opportunity to have his or her claim reviewed by the Bank by filing a petition for review with the Bank within 60 days after receipt of the notice issued by the Bank. The Claimant’s petition must state the specific reasons the Claimant believes entitle him or her to benefits or to greater or different benefits. Within 60 days after receipt by the Bank of the petition, the Plan Administrator will give the Claimant (and counsel, if any) an opportunity to present his or her position verbally or in writing, and the Claimant (or counsel) will have the right to review the pertinent documents. The Plan Administrator will notify the Claimant of the Plan Administrator’s decision in writing within the 60-day period, stating specifically the basis of its decision, written in a manner to be understood by the Claimant, and the specific provisions of the Agreement on which the decision is based. If, because of the need for a hearing, the 60-day period is not sufficient, the decision may be deferred for up to another 60 days at the election of the Plan Administrator, but notice of this deferral will be given to the Claimant.
ARTICLE 7
ADMINISTRATION OF AGREEMENT
7.1 Plan Administrator Duties. This Agreement will be administered by a Plan Administrator consisting of the Board or such committee or person as the Board appoints. The Executive may not be a member of the Plan Administrator. The Plan Administrator has the discretion and authority to (x) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (y) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
7.2 Agents. In the administration of this Agreement the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
7.3 Binding Effect of Decisions. The decision or action of the Plan Administrator about any question arising out of the administration, interpretation, and application of the Agreement and the rules and regulations promulgated hereunder is final and conclusive and binding upon all persons having any interest in the Agreement. No Executive or Beneficiary has any right, vested or nonvested, regarding the continued use of any previously adopted assumptions, including but not limited to the discount rate and calculation method employed in the determination of the Accrual Balance.
7.4 Indemnity of Plan Administrator. The Bank will indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members.
7.5 Bank Information. To enable the Plan Administrator to perform its functions, the Bank will supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Separation from Service of the Executive, and such other pertinent information as the Plan Administrator reasonably requires.
ARTICLE 8
MISCELLANEOUS
8.1 Amendments and Termination. This Agreement may be amended solely by a written agreement signed by the Bank and by the Executive. This Agreement may be terminated by the Bank without the Executive’s consent. Unless Article 5 provides that the Executive is not entitled to payment or unless when termination occurs the Executive has already received payment of benefits under this Agreement, the Bank must pay the Accrual Balance in a single lump sum to the Executive if the Bank terminates this Agreement. The lump-sum termination payment will be made to the Executive on the first day of the thirteenth month after the month in which the Bank terminates this Agreement.
8.2 Binding Effect. This Agreement binds the Executive and the Bank and their beneficiaries, survivors, executors, successors, administrators, and transferees.
8.3 No Guarantee of Employment. This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Bank’s right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executive’s right to terminate employment at any time.
8.4 Non-Transferability. Benefits under this Agreement may not be sold, transferred, assigned, pledged, attached, or encumbered.
8.5 Successors; Binding Agreement. By an assumption agreement in form and substance satisfactory to the Executive, the Bank will require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the Bank’s business or assets to expressly assume and agree to perform this Agreement in the same manner and to the same extent the Bank would be required to perform this Agreement had no succession occurred.
8.6 Tax Withholding. The Bank will withhold any taxes that are required to be withheld from the benefits provided under this Agreement.
8.7 Applicable Law. The Agreement and all rights hereunder are governed by the laws of the State of Ohio, except to the extent preempted by the laws of the United States of America.
8.8 Unfunded Arrangement. The Executive and beneficiary are general unsecured creditors of the Bank for the payment of benefits under this Agreement. The benefits represent the mere promise by the Bank to pay benefits. The rights to benefits are not subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the Executive’s life is a general asset of the Bank to which the Executive and beneficiary have no preferred or secured claim.
8.9 Entire Agreement. This Agreement and the Split Dollar Agreement and Endorsement attached to this Agreement as Addendum A, as amended, constitute the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth. This Agreement amends and restates in its entirety the November 24, 2015 Seventh Amended Salary Continuation Agreement.
8.10 Severability. If any provision of this Agreement is held invalid, invalidity does not affect any other provision of this Agreement not held invalid, and to the full extent consistent with law each such other provision continues in full force and effect. If any provision of this Agreement is held invalid in part, invalidity does not affect the remainder of the provision not held invalid, and to the full extent consistent with law the remainder of the provision, together with all other provisions of this Agreement, continues in full force and effect.
8.11 Headings. Headings are included herein solely for convenience of reference and do not affect the meaning or interpretation of any provision of this Agreement.
8.12 Notices. All notices, requests, demands and other communications hereunder must be in writing and will be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice must be given to the board of directors, The Cortland Savings and Banking Company, 194 W. Main Street, P.O. Box 98, Cortland, Ohio 44410-1466, or to such other or additional person or persons as the Bank designates to the Executive in writing. If to the Executive, notice will be given to the Executive at the Executive’s address appearing on the Bank’s records, or to such other or additional person or persons as the Executive designates to the Bank in writing.
8.13 Payment of Legal Fees. The Bank is aware that after a Change in Control management could cause or attempt to cause the Bank to refuse to comply with its obligations under this Agreement, or could institute or cause or attempt to cause the Bank to institute litigation seeking to have this Agreement declared unenforceable, or could take or attempt to take other action to deny Executive the benefits intended under this Agreement. In these circumstances the purpose of this Agreement would be frustrated. The Bank desires that the Executive not be required to incur expenses associated with enforcement of rights under this Agreement, whether by litigation or other legal action, because the cost and expense thereof would substantially detract from the benefits intended to be granted to the Executive hereunder. The Bank desires that the Executive not be forced to negotiate settlement of rights under this Agreement under threat of incurring expenses. Accordingly, if after a Change in Control it appears to Executive that (x) the Bank has failed to comply with any of its obligations under this Agreement, or (y) the Bank or any other person has taken any action to declare this Agreement void or unenforceable, or instituted any litigation or other legal action designed to deny, diminish, or recover from the Executive the benefits intended to be provided to the Executive hereunder, the Bank irrevocably authorizes the Executive to retain counsel of the Executive’s choice, at the Bank’s expense as provided in this section 8.13, to represent the Executive in the initiation or defense of any litigation or other legal action, whether by or against the Bank or any director, officer, stockholder or other person affiliated with the Bank, in any jurisdiction. Despite any existing or previous attorney-client relationship between the Bank and any counsel chosen by the Executive under this section 8.13, the Bank irrevocably consents to the Executive entering into an attorney-client relationship with that counsel, and the Bank and the Executive agree that a confidential relationship exists between the Executive and that counsel. The fees and expenses of counsel selected by the Executive will be paid or reimbursed to the Executive by the Bank on a regular, periodic basis upon presentation by the Executive of a statement or statements prepared by counsel in accordance with counsel’s customary practices, regardless of whether suit is brought and regardless of whether incurred in trial, bankruptcy, or appellate proceedings. The Bank’s obligation to pay the Executive’s legal fees under this section 8.13 operates separately from and in addition to any legal fee reimbursement obligation the Bank or the Bank’s parent Cortland Bancorp may have with the Executive under a severance, employment, or other agreement. Despite any contrary provision in this Agreement however, the Bank is not required to pay or reimburse the Executive’s legal expenses if doing so violates section 18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance Corporation [12 CFR 359.3].
8.14 Automatic Review. On the third year anniversary of the date of this Agreement and every third year thereafter the Bank will automatically review this Agreement for reasonableness of benefits, with the goal that the Executive’s benefit under this Agreement combined with other Bank-provided benefits equal a reasonable percentage of Executive’s pre-retirement compensation. For purposes of this Agreement, Bank-provided benefits include but are not limited to (x) the Bank 401(k) match and (y) the Bank portion of Social Security benefits. The term “compensation” as used in this section 8.14 means the base annual salary of the Executive projected at the Executive’s Normal Retirement Age. Base annual salary means compensation of the type that would, according to the Securities and Exchange Commission’s Regulation S-K Item 402(c) (17 CFR 229.402(c)), be required to be reported by an accelerated filer as salary in column (c) of that rule’s Summary Compensation Table. The term base annual salary specifically excludes director fees and other director compensation, bonus, option grants and any other compensation that would be reported in separate columns in the Summary Compensation Table, but it includes salary deferred at the election of the Executive.
ARTICLE 9
COMPETITION AFTER SEPARATION FROM SERVICE
9.1 Covenant Not to Solicit Employees. The Executive agrees not to solicit the services of any officer or employee of the Bank for 24 months after the Executive’s Separation from Service.
9.2 Covenant Not to Compete. (a) Without advance written consent of the Bank, the Executive covenants and agrees not to compete directly or indirectly with the Bank for 24 months after Separation from Service, plus any period during which the Executive is in violation of this covenant not to compete and any period during which the Bank seeks by litigation to enforce this covenant not to compete. For purposes of this section –
| (1) | the term “compete” means |
| (a) | providing financial products or services on behalf of any financial institution for any person residing in the territory, |
| (b) | assisting (other than through the performance of ministerial or clerical duties) any financial institution in providing financial products or services to any person residing in the territory, or |
| (c) | inducing or attempting to induce any person who was a customer of the Bank at the date of the Executive’s Separation from Service to seek financial products or services from another financial institution. |
| (2) | the phrase “compete directly or indirectly” means – |
| (a) | acting as a consultant, officer, director, independent contractor, incorporator, organizer, or employee of any financial institution in competition with the Bank in the territory, or |
| (b) | ownership of more than 5% of the voting shares of any financial institution in competition with the Bank in the territory, or |
| (c) | communicating to such financial institution the names or addresses or any financial information concerning any person who was a customer of the Bank at the Executive’s Separation from Service. |
| (3) | the term “customer” means any person to whom the Bank is providing financial products or services on the date of the Executive’s Separation from Service. |
| (4) | the term “financial institution” means any bank, savings association, or bank or savings association holding company, or any other institution, including a financial institution in organization, the business of which is or will be engaging in activities that are financial in nature or incidental to such financial activities as described in section 4(k) of the Bank Holding Company Act of 1956, other than the Bank or its affiliated corporations. |
| (5) | “financial product or service” means any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Bank or an affiliate on the date of the Executive’s Separation from Service, including, but not limited to, banking activities and activities that are closely related to and a proper incident to banking. |
| (6) | the term “person” means any individual or individuals, corporation, partnership, fiduciary or association. |
| (7) | the term “territory” means all of Trumbull, Mahoning, and Portage Counties in Ohio. |
(b) If any provision of this section or any word, phrase, clause, sentence, or other portion thereof (including, without limitation, the geographical and temporal restrictions contained therein) is held to be unenforceable or invalid for any reason, the unenforceable or invalid provision or portion will be modified or deleted so that the provision, as modified, is legal and enforceable to the fullest extent permitted under applicable law.
9.3 Remedies. Because of the unique character of the services to be rendered by the Executive hereunder, the Executive understands that the Bank would not have an adequate remedy at law for the material breach or threatened breach by the Executive of any one or more of the Executive’s covenants set forth in this Article 9. Accordingly, the Executive agrees that the Bank’s remedies for a material breach or threatened breach of this Article 9 include, but are not limited to, (x) forfeiture of any money representing accrued salary, contingent payments, or other fringe benefits due and payable to the Executive, (y) forfeiture of any unpaid benefits under Article 2 and forfeiture of death benefits under Article 3 of this Agreement, and (z) at the Bank’s option, a suit in equity by the Bank to enjoin the Executive from the breach or threatened breach of such covenants. The Executive hereby waives the claim or defense that an adequate remedy at law is available to the Bank and the Executive agrees not to urge in any such action the claim or defense that an adequate remedy at law exists. Nothing herein prohibits the Bank from pursuing any other remedies for the breach or threatened breach.
9.4 Article 9 Survives Termination But Is Void After a Change in Control. The rights and obligations set forth in this Article 9 survive termination of this Agreement. However, Article 9 is null and void if a Change in Control occurs before or after the Executive’s Separation from Service.
IN WITNESS WHEREOF, the Executive and a duly authorized Bank officer have executed this Eighth Amended Salary Continuation Agreement as of the date first written above.
| EXECUTIVE: | BANK: | |||||
| THE CORTLAND SAVINGS AND BANKING COMPANY | ||||||
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| James M. Gasior | ||||||
| By: | ||||||
| Title: |
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BENEFICIARY DESIGNATION
THE CORTLAND SAVINGS AND BANKING COMPANY
EIGHTH AMENDED SALARY CONTINUATION AGREEMENT
James M. Gasior
I designate the following as beneficiary of any death benefits under this Eighth Amended Salary Continuation Agreement:
| Primary: |
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| Contingent: |
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Note: To name a trust as beneficiary, please provide the name of the trustee(s) and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing a new written designation with the Bank. I further understand that the designations will be automatically revoked if the beneficiary predeceases me, or, if I have named my spouse as beneficiary and our marriage is subsequently dissolved.
| Signature: |
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| James M. Gasior | ||||
| Date: |
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, 20 | ||
Accepted by the Bank this day of , 20
By:
Title:
16
EXHIBIT 10.23
THE CORTLAND SAVINGS AND BANKING COMPANY
SECOND AMENDED SALARY CONTINUATION AGREEMENT
This SECOND AMENDED SALARY CONTINUATION AGREEMENT (this “Agreement”) is entered into as of , 2018, by and between The Cortland Savings and Banking Company (the “Bank”), an Ohio-chartered, FDIC-insured member bank, and David J. Lucido, Senior Vice President and Chief Financial Officer of the Bank (the “Executive”).
WHEREAS, the Executive has contributed substantially to the success of the Bank and its parent company, Cortland Bancorp, an Ohio corporation, and the Bank desires that the Executive continue in its employ,
WHEREAS, to encourage the Executive to remain an employee, the Bank is willing to provide to the Executive salary continuation benefits payable from the Bank’s general assets,
WHEREAS, as of the date of this Agreement none of the conditions or events included in the definition of the term “golden parachute payment” that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of the Bank, is contemplated insofar as the Bank is concerned,
WHEREAS, the Bank and the Executive intend that this Agreement amend and restate in its entirety the November 24, 2015 Amended Salary Continuation Agreement between the Executive and the Bank, and
WHEREAS, the parties hereto intend that this Agreement be considered an unfunded arrangement maintained primarily to provide supplemental retirement benefits for the Executive, and to be considered a non-qualified benefit plan for purposes of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The Executive is fully advised of the Bank’s financial status.
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.
ARTICLE 1
DEFINITIONS
1.1 “Accrual Balance” means the liability that should be accrued by the Bank under generally accepted accounting principles (“GAAP”) for the Bank’s obligation to the Executive under this Agreement, applying Financial Accounting Standards Board ASC 710-10-30 (formerly known as Accounting Principles Board Opinion No. 12, as amended by Statement of Financial Accounting Standards No. 106), and the calculation method and discount rate specified hereinafter. The Accrual Balance is calculated such that when it is credited with interest each month the Accrual Balance at Normal Retirement Age equals the present value of the normal retirement benefits. The discount rate means the rate used by the Plan Administrator for determining the Accrual Balance. In its sole discretion the Plan Administrator may adjust the discount rate to maintain the rate within reasonable standards according to GAAP.
1.2 “Beneficiary” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive, determined according to Article 4.
1.3 “Beneficiary Designation Form” means the form established from time to time by the Plan Administrator that the Executive completes, signs, and returns to the Plan Administrator to designate one or more Beneficiaries.
1.4 “Change in Control” means a change in control as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including a change in ownership, a change in effective control, or change in ownership of a substantial portion of assets.
1.5 “Code” means the Internal Revenue Code of 1986, as amended, and rules, regulations, and guidance of general application issued by the Department of the Treasury under the Internal Revenue Code of 1986, as amended.
1.6 “Disability” means, because of a medically determinable physical or mental impairment that can be expected to result in death or that can be expected to last for a continuous period of at least 12 months, (x) the Executive is unable to engage in any substantial gainful activity, or (y) the Executive is receiving income replacement benefits for a period of at least three months under an accident and health plan of the employer. Medical determination of disability may be made either by the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank. Upon request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of the Social Security Administration’s or provider’s determination.
1.7 “Early Termination” means Separation from Service before Normal Retirement Age for reasons other than death, Disability, or Termination with Cause. Early Termination excludes a Separation from Service governed by section 2.4.
1.8 “Effective Date” means June 1, 2010.
1.9 “Intentional,” for purposes of this Agreement, no act or failure to act on the part of the Executive will be considered intentional if it is due primarily to an error in judgment or negligence. An act or failure to act on the Executive’s part is intentional if it is not in good faith and if it is without a reasonable belief that the action or failure to act is in the Bank’s best interests.
1.10 “Normal Retirement Age” means age 65.
1.11 “Plan Administrator” or “Administrator” means the plan administrator described in Article 7.
1.12 “Plan Year” means a twelve-month period commencing on March 1 and ending on the last day of February of each year. The initial Plan Year commenced on the Effective Date.
1.13 “Separation from Service” means separation from service as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including termination for any reason of the Executive’s service as an executive and independent contractor to the Bank and any member of a controlled group, as defined in Code section 414, other than because of a leave of absence approved by the Bank or the Executive’s death. For purposes of this Agreement, if there is a dispute about the employment status of the Executive or the date of the Executive’s Separation from Service, the Bank has the sole and absolute right to decide the dispute, unless a Change in Control has occurred.
1.14 “Termination with Cause” and “Cause” have the same meaning specified in any effective severance or employment agreement existing on the date hereof or hereafter entered into between the Executive and the Bank. If the Executive is not a party to a severance or employment agreement containing a definition of termination with cause, Termination with Cause means the Bank terminates the Executive’s employment because of –
(a) gross negligence or gross neglect of duties or intentional and material failure to perform stated duties after written notice thereof, or
(b) disloyalty or dishonesty in the performance of duties, or a breach of fiduciary duties for personal profit, in any case whether in the Executive’s capacity as a director or officer, or
(c) intentional wrongful damage to the business or property of the Bank or its affiliates, including without limitation the reputation of the Bank, which in the judgement of the Bank causes material harm to the Bank or affiliates, or
(d) willful violation of any applicable law or significant policy of the Bank or an affiliate that, in the Bank’s judgement, results in an adverse effect on the Bank or the affiliate, regardless of whether the violation leads to criminal prosecution or conviction. For purposes of this Agreement applicable laws include any statute, rule, regulatory order, statement of policy, or final cease-and-desist order of any governmental agency or body having regulatory authority over the Bank, or
(e) occurrence of any event that results in the Executive being excluded from coverage, or having coverage limited for the Executive as compared to other executives of the Bank, under the Bank’s blanket bond or other fidelity or insurance policy covering its directors, officers, or employees, or
(f) the Executive is removed from office or permanently prohibited from participating in the Bank’s affairs by an order issued under section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
(g) conviction of or plea of no contest to a felony or conviction of or plea of no contest to a misdemeanor involving moral turpitude, or the actual incarceration of the Executive for 45 consecutive days or more.
1.15 “Voluntary Termination with Good Reason” means a voluntary Separation from Service by the Executive if the following conditions (x) and (y) are satisfied: (x) a voluntary Separation from Service by the Executive will be considered a Voluntary Termination with Good Reason if any of the following occur without the Executive’s advance written consent –
1) a material diminution of the Executive’s base salary,
2) a material diminution of the Executive’s authority, duties, or responsibilities,
3) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report,
4) a material diminution in the budget over which the Executive retains authority,
5) a material change in the geographic location at which the Executive must perform services for the Bank, or
6) any other action or inaction that constitutes a material breach by the Bank of the agreement under which the Executive provides services to the Bank.
(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank has 30 days thereafter to remedy the condition. In addition, the Executive’s voluntary termination because of the existence of one or more of the conditions described in clause (x) must occur within 24 months after the initial existence of the condition.
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement. Unless Separation from Service occurs before Normal Retirement Age, when the Executive attains Normal Retirement Age the Bank will pay to the Executive the benefit described in this section 2.1 instead of any other benefit under this Agreement. If the Executive’s Separation from Service thereafter is a Termination with Cause or if this Agreement terminates under Article 5, no further benefits will be paid.
| 2.1.1 | Amount of benefit. The annual benefit under this section 2.1 is $80,900. |
| 2.1.2 | Payment of benefit. Beginning with the month immediately after the month in which the Executive attains Normal Retirement Age, the Bank will pay the benefit under this section 2.1 to the Executive in equal monthly installments on the last day of each month. The benefit will be paid to the Executive for 180 months. |
2.2 Early Termination. For Early Termination the Bank will pay to the Executive the benefit described in this section 2.2 instead of any other benefit under this Agreement. Neither the Bank nor the Executive is entitled to elect in the 24-month period after a Change in Control between the benefit under this section 2.2 versus the benefit under section 2.4. If the Executive’s Separation from Service within 24 months after a Change in Control is an involuntary termination without Cause or a Voluntary Termination with Good Reason, no benefit is payable under this section 2.2 and the Executive is instead entitled to the benefit under section 2.4 or, if the Executive first attained Normal Retirement Age, section 2.1. No benefit is payable under this Agreement if the Executive’s Separation from Service is a Termination with Cause or if this Agreement terminates under Article 5.
| 2.2.1 | Amount of benefit. The annual benefit under this section 2.2 is calculated as the amount that fully amortizes the Accrual Balance existing at the end of the month immediately before the month in which Separation from Service occurs, amortizing that Accrual Balance over 15 years and taking into account interest at the discount rate or rates established by the Plan Administrator. |
| 2.2.2 | Payment of benefit. The Bank will pay the annual benefit to the Executive in equal monthly installments on the last day of each month, except that the first six monthly installments after the Executive’s Separation from Service will not be paid to the Executive until the seventh month after the month in which Separation from Service occurs. In the seventh month after the month in which Separation from Service occurs the Executive is entitled to the first six monthly installments and the regular monthly installment for the seventh month. The Executive is entitled to a total of 180 monthly installments, including the first six installments that are paid in the seventh month. |
2.3 Disability. For Separation from Service because of Disability before Normal Retirement Age, the Bank will pay to the Executive the benefit described in this section 2.3 instead of any other benefit under this Agreement.
| 2.3.1 | Amount of benefit. The annual benefit under this section 2.3 is calculated as the amount that fully amortizes the Accrual Balance existing at the end of the month immediately before the month in which Separation from Service occurs, amortizing that Accrual Balance over 15 years and taking into account interest at the discount rate or rates established by the Plan Administrator. |
| 2.3.2 | Payment of benefit. Beginning with the later of (x) the seventh month after the month in which the Executive’s Separation from Service occurs, or (y) the month immediately after the month in which the Executive attains Normal Retirement Age, the Bank will pay the annual benefit to the Executive in equal monthly installments on the last day of each month. If the benefit is paid under clause (x) in the seventh month after Separation from Service, the first six monthly installments after Separation from Service will not be paid to the Executive until the seventh month after the month in which Separation from Service occurs. In the seventh month the Executive is entitled to the first six monthly installments and the regular monthly installment for the seventh month. The Executive is entitled to a total of 180 monthly installments, including the first six installments that are paid in the seventh month. |
2.4 Change in Control. If the Executive’s Separation from Service is an involuntary termination without Cause or a Voluntary Termination with Good Reason, in either case within 24 months after a Change in Control, the Bank will pay to the Executive the benefit described in this section 2.4 instead of any other benefit under this Agreement. However, no benefit is payable under this Agreement if the Executive’s employment is terminated under circumstances described in Article 5 of this Agreement. Neither the Bank nor the Executive is entitled to elect in the 24-month period after a Change in Control between the benefit under this section 2.4 versus the Early Termination benefit under section 2.2. If the Executive’s Separation from Service within 24 months after a Change in Control is an involuntary termination without Cause or a Voluntary Termination
with Good Reason, no benefit is payable under section 2.2 and the Executive is instead entitled to the benefit under this section 2.4. But if the Executive has attained Normal Retirement Age when Separation from Service within 24 months after a Change in Control occurs, whether Separation from Service is voluntary or involuntary for any reason other than Termination with Cause, the Executive is entitled solely to the benefit provided by section 2.1, not this section 2.4.
| 2.4.1 | Amount of benefit. The benefit under this section 2.4 is the Accrual Balance when Separation from Service occurs. |
| 2.4.2 | Payment of benefit. The Bank will pay the benefit under this section 2.4 to the Executive in a single lump sum on the first day of the seventh month after the month in which Separation from Service occurs. |
2.5 Lump-Sum Payout of Remaining Normal Retirement Benefit, Early Termination Benefit, or Disability Benefit When a Change in Control Occurs. If a Change in Control occurs while the Executive is receiving the Normal Retirement Age benefit under section 2.1, the Bank will pay the remaining salary continuation benefits to the Executive in a single lump sum three days after the Change in Control. If a Change in Control occurs after Separation from Service but while the Executive is receiving or is entitled to receive the Early Termination benefit under sections 2.2 or the Disability benefit under section 2.3, the Bank will pay the remaining salary continuation benefits to the Executive in a single lump sum three days after the later of (x) the Change in Control or (y) the first day of the seventh month after the month in which the Executive’s Separation from Service occurs. The lump-sum payment due to the Executive as a result of a Change in Control is an amount equal to the Accrual Balance amount corresponding to the particular benefit when the Change in Control occurs.
2.6 Annual Benefit Statement. Within 120 days after the end of each Plan Year the Plan Administrator will provide or cause to be provided to the Executive an annual benefit statement showing benefits payable or potentially payable to the Executive under this Agreement. Each annual benefit statement supersedes the previous year’s annual benefit statement. If there is a contradiction between this Agreement and the annual benefit statement concerning the amount of a particular benefit payable or potentially payable to the Executive under sections 2.2, 2.3, or 2.4 hereof, the amount of the benefit determined under this Agreement controls.
2.7 Savings Clause Relating to Compliance with Code Section 409A. Despite any contrary provision of this Agreement, if when the Executive’s employment terminates the Executive is a specified employee, as defined in Code section 409A, and if any payments under Article 2 of this Agreement will result in additional tax or interest to the Executive because of section 409A, the Executive is not entitled to the payments under Article 2 until the earliest of (x) the date that is at least six months after termination of the Executive’s employment for reasons other than the Executive’s death, (y) the date of the Executive’s death, or (z) any earlier date that does not result in additional tax or interest to the Executive under section 409A. If any provision of this Agreement would subject the Executive to additional tax or interest under section 409A, the Bank will reform the provision. However, the Bank will maintain to the maximum extent practicable the original intent of the applicable provision without subjecting the Executive to additional tax or interest, and the Bank is not required to incur any additional compensation expense as a result of the reformed provision.
2.8 One Benefit Only. Despite anything to the contrary in this Agreement, the Executive and Beneficiary are entitled to one benefit only under this Agreement, which is determined by the first event to occur that is dealt with by this Agreement. Except as provided in section 2.5 or Article 3, subsequent occurrence of events dealt with by this Agreement does not entitle the Executive or Beneficiary to other or additional benefits under this Agreement.
ARTICLE 3
DEATH BENEFITS
Unless the Accrual Balance is paid to the Executive under sections 2.4 or 2.5 after a Change in Control, if at death the Executive is receiving or entitled to receive benefits under sections 2.1, 2.2, or 2.3 but dies before receiving all 180 monthly benefit payments under sections 2.1, 2.2, or 2.3, at the Executive’s death the Bank will pay to the Executive’s Beneficiary the Accrual Balance existing at the time of the Executive’s death. If a benefit is payable to the Executive’s Beneficiary, the benefit will be paid in a single lump sum 90 days after the Executive’s death.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive may designate a Beneficiary to receive any benefits payable under this Agreement after the Executive’s death. The Beneficiary designated under this Agreement may be the same as or different from the beneficiary designation under any other benefit plan of the Bank in which the Executive participates.
4.2 Beneficiary Designation: Change. The Executive designates a Beneficiary by completing and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated agent. The Executive’s Beneficiary designation is automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved. The Executive may change a Beneficiary by completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures, as in effect from time to time. Upon acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed are cancelled. The Plan Administrator is entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before the Executive’s death.
4.3 Acknowledgment. No designation or change in designation of a Beneficiary is effective until received, accepted, and acknowledged in writing by the Plan Administrator or its designated agent.
4.4 No Beneficiary Designation. If the Executive dies without a valid beneficiary designation or if all designated Beneficiaries predecease the Executive, the Executive’s spouse is the designated Beneficiary. If the Executive has no surviving spouse, benefit payments will be made to the personal representative of the Executive’s estate.
4.5 Facility of Payment. If a benefit is payable to a minor, to a person declared incapacitated, or to a person incapable of handling the disposition of his or her property, the Bank may pay the benefit to the guardian, legal representative, or person having the care or custody of the minor, incapacitated person, or incapable person. The Bank may require proof of incapacity, minority, or guardianship as it may deem appropriate before distribution of the benefit. Distribution completely discharges the Bank from all liability.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination with Cause. Despite any contrary provision of this Agreement, the Bank will not pay any benefit under this Agreement and this Agreement terminates if Separation from Service is a Termination with Cause.
5.2 Misstatement. No benefits will be paid under this Agreement if the Executive makes any material misstatement of fact on any application or resume provided to the Bank, on any application for life insurance purchased by the Bank, or on any application for benefits provided by the Bank.
5.3 Removal. If the Executive is removed from office or permanently prohibited from participating in the Bank’s affairs by an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement terminate as of the effective date of the order.
5.4 Default. Despite any contrary provision of this Agreement, if the Bank is in “default” or “in danger of default,” as those terms are defined in section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement terminate.
5.5 FDIC Open-Bank Assistance. All obligations under this Agreement terminate, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, if the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Any rights of the parties that have already vested are not affected, however.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. The Bank will notify any person or entity that makes a claim for benefits under this Agreement (the “Claimant”) in writing, within 90 days after receiving Claimant’s written application for benefits, of his or her eligibility or noneligibility for benefits under the Agreement. If the Plan Administrator determines that the Claimant is not eligible for benefits or full benefits, the notice will state (w) the specific reasons for denial, (x) a specific reference to the provisions of the Agreement on which the denial is based, (y) a description of any additional information or material necessary for the Claimant to perfect his or her claim, and a description of why it is needed, and (z) an explanation of the Agreement’s claims review procedure and other appropriate information concerning steps to be taken if the Claimant wishes to have the claim reviewed. If the Plan Administrator determines that there are special circumstances requiring additional time to make a decision, the Bank will notify the Claimant of the special circumstances and the date by which a decision is expected to be made, and may extend the time for up to an additional 90 days.
6.2 Review Procedure. If the Claimant is determined by the Plan Administrator not to be eligible for benefits, or if the Claimant believes that he or she is entitled to greater or different benefits, the Claimant will have the opportunity to have his or her claim reviewed by the Bank by filing a petition for review with the Bank within 60 days after receipt of the notice issued by the Bank. The Claimant’s petition must state the specific reasons the Claimant believes entitle him or her to benefits or to greater or different benefits. Within 60 days after receipt by the Bank of the petition, the Plan Administrator will give the Claimant (and counsel, if any) an opportunity to present his or her position verbally or in writing, and the Claimant (or counsel) will have the right to review the pertinent documents. The Plan Administrator will notify the Claimant of the Plan Administrator’s decision in writing within the 60-day period, stating specifically the basis of its decision, written in a manner to be understood by the Claimant, and the specific provisions of the Agreement on which the decision is based. If, because of the need for a hearing, the 60-day period is not sufficient, the decision may be deferred for up to another 60 days at the election of the Plan Administrator, but notice of this deferral will be given to the Claimant.
ARTICLE 7
ADMINISTRATION OF AGREEMENT
7.1 Plan Administrator Duties. This Agreement will be administered by a Plan Administrator consisting of the Board or such committee or person as the Board appoints. The Executive may not be a member of the Plan Administrator. The Plan Administrator has the discretion and authority (x) to make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (y) to decide or resolve any and all questions that may arise, including interpretations of this Agreement.
7.2 Agents. In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
7.3 Binding Effect of Decisions. The decision or action of the Plan Administrator about any question arising out of the administration, interpretation, and application of the Agreement and the rules and regulations promulgated hereunder is final and conclusive and binding upon all persons having any interest in the Agreement. No Executive or Beneficiary has any right, vested or nonvested, regarding the continued use of any previously adopted assumptions, including but not limited to the discount rate and calculation method employed in the determination of the Accrual Balance.
7.4 Indemnity of Plan Administrator. The Bank will indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act regarding this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members.
7.5 Bank Information. To enable the Plan Administrator to perform its functions, the Bank will supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Separation from Service of the Executive, and such other pertinent information as the Plan Administrator reasonably requires.
ARTICLE 8
MISCELLANEOUS
8.1 Amendments and Termination. This Agreement may be amended solely by a written agreement signed by the Bank and by the Executive. This Agreement may be terminated by the Bank without the Executive’s consent. Unless Article 5 provides that the Executive is not entitled to payment or unless when termination occurs the Executive has already received payment of benefits under this Agreement, the Bank must pay the Accrual Balance in a single lump sum to the Executive if the Bank terminates this Agreement. The lump-sum termination payment will be made to the Executive on the first day of the thirteenth month after the month in which the Bank terminates this Agreement.
8.2 Binding Effect. This Agreement binds the Executive and the Bank and their beneficiaries, survivors, executors, successors, administrators, and transferees.
8.3 No Guarantee of Employment. This Agreement is not an employment policy or contract. This Agreement does not give the Executive the right to remain an employee of the Bank nor does this Agreement interfere with the Bank’s right to discharge the Executive. This Agreement also does not require the Executive to remain an employee or interfere with the Executive’s right to terminate employment at any time.
8.4 Non-Transferability. Benefits under this Agreement may not be sold, transferred, assigned, pledged, attached, or encumbered.
8.5 Successors; Binding Agreement. By an assumption agreement in form and substance satisfactory to the Executive, the Bank will require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the Bank’s business or assets to expressly assume and agree to perform this Agreement in the same manner and to the same extent the Bank would be required to perform this Agreement had no succession occurred.
8.6 Tax Withholding. The Bank will withhold any taxes that are required to be withheld from the benefits provided under this Agreement.
8.7 Applicable Law. The Agreement and all rights hereunder are governed by the laws of the State of Ohio, except to the extent preempted by the laws of the United States of America.
8.8 Unfunded Arrangement. The Executive and beneficiary are general unsecured creditors of the Bank for the payment of benefits under this Agreement. The benefits represent the mere promise by the Bank to pay benefits. The rights to benefits are not subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the Executive’s life is a general asset of the Bank to which the Executive and beneficiary have no preferred or secured claim.
8.9 Entire Agreement. This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth. This Agreement amends and restates in its entirety the November 24, 2015 Amended Salary Continuation Agreement.
8.10 Severability. If any provision of this Agreement is held invalid, invalidity does not affect any other provision of this Agreement not held invalid, and to the full extent consistent with law each such other provision continues in full force and effect. If any provision of this Agreement is held invalid in part, invalidity does not affect the remainder of the provision not held invalid, and to the full extent consistent with law the remainder of the provision, together with all other provisions of this Agreement, continues in full force and effect.
8.11 Headings. Headings are included herein solely for convenience of reference and do not affect the meaning or interpretation of any provision of this Agreement.
8.12 Notices. All notices, requests, demands and other communications hereunder must be in writing and will be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice must be given to the board of directors, The Cortland Savings and Banking Company, 194 W. Main Street, P.O. Box 98, Cortland, Ohio 44410-1466, or to such other or additional person or persons as the Bank designates to the Executive in writing. If to the Executive, notice will be given to the Executive at the Executive’s address appearing on the Bank’s records, or to such other or additional person or persons as the Executive designates to the Bank in writing.
8.13 Payment of Legal Fees. The Bank is aware that after a Change in Control management could cause or attempt to cause the Bank to refuse to comply with its obligations under this Agreement, or could institute or cause or attempt to cause the Bank to institute litigation seeking to have this Agreement declared unenforceable, or could take or attempt to take other action to deny Executive the benefits intended under this Agreement. In these circumstances the purpose of this Agreement would be frustrated. The Bank desires that the Executive not be required to incur expenses associated with enforcement of rights under this Agreement, whether by litigation or other legal action, because the cost and expense thereof would substantially detract from the benefits intended to be granted to the Executive hereunder. The Bank desires that the Executive not be forced to negotiate settlement of rights under this Agreement under threat of incurring expenses. Accordingly, if after a Change in Control it appears to Executive that (x) the Bank has failed to comply with any of its obligations under this Agreement, or (y) the Bank or any other person has taken any action to declare this Agreement void or unenforceable, or instituted any litigation or other legal action designed to deny, diminish, or recover from the Executive the benefits intended to be provided to the Executive hereunder, the Bank irrevocably authorizes the Executive to retain counsel of the Executive’s choice, at the Bank’s expense as provided in this section 8.13, to represent the Executive in the initiation or defense of any litigation or other legal action, whether by or against the Bank or any director, officer, stockholder or other person affiliated with the Bank, in any jurisdiction. Despite any existing or previous attorney-client relationship between the Bank and any
counsel chosen by the Executive under this section 8.13, the Bank irrevocably consents to the Executive entering into an attorney-client relationship with that counsel, and the Bank and the Executive agree that a confidential relationship exists between the Executive and that counsel. The fees and expenses of counsel selected by the Executive will be paid or reimbursed to the Executive by the Bank on a regular, periodic basis upon presentation by the Executive of a statement or statements prepared by counsel in accordance with counsel’s customary practices, regardless of whether suit is brought and regardless of whether incurred in trial, bankruptcy, or appellate proceedings. The Bank’s obligation to pay the Executive’s legal fees under this section 8.13 operates separately from and in addition to any legal fee reimbursement obligation the Bank or the Bank’s parent Cortland Bancorp may have with the Executive under a severance, employment, or other agreement. Despite any contrary provision in this Agreement however, the Bank is not required to pay or reimburse the Executive’s legal expenses if doing so violates section 18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance Corporation [12 CFR 359.3].
8.14 Automatic Review. On the third year anniversary of the date of this Agreement and every third year thereafter the Bank will automatically review this Agreement for reasonableness of benefits, with the goal that the Executive’s benefit under this Agreement combined with other Bank-provided benefits equal a reasonable percentage of Executive’s pre-retirement compensation. For purposes of this Agreement, Bank-provided benefits include but are not limited to (x) the Bank 401(k) match and (y) the Bank portion of Social Security benefits. The term “compensation” as used in this section 8.14 means the base annual salary of the Executive projected at the Executive’s Normal Retirement Age. Base annual salary means compensation of the type that would, according to the Securities and Exchange Commission’s Regulation S-K Item 402(c) (17 CFR 229.402(c)), be required to be reported by an accelerated filer as salary in column (c) of that rule’s Summary Compensation Table. The term base annual salary specifically excludes director fees and other director compensation, bonus, option grants and any other compensation that would be reported in separate columns in the Summary Compensation Table, but it includes salary deferred at the election of the Executive.
[Signatures are on the following page]
IN WITNESS WHEREOF, the Executive and a duly authorized Bank officer have executed this Second Amended Salary Continuation Agreement as of the date first written above.
| EXECUTIVE: | BANK: | |||||
| THE CORTLAND SAVINGS AND BANKING COMPANY | ||||||
|
|
By: |
| ||||
| David J. Lucido | James M. Gasior | |||||
| Title: President and Chief Executive Officer | ||||||
BENEFICIARY DESIGNATION
THE CORTLAND SAVINGS AND BANKING COMPANY
SECOND AMENDED SALARY CONTINUATION AGREEMENT
I, David J. Lucido, designate the following as beneficiary of any death benefits under this Second Amended Salary Continuation Agreement:
Primary:
.
Contingent:
.
Note: To name a trust as beneficiary, please provide the name of the trustee(s) and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing a new written designation with the Bank. I further understand that the designations will be automatically revoked if the beneficiary predeceases me or if I have named my spouse as beneficiary and our marriage is subsequently dissolved.
| Signature: |
||||||
| David J. Lucido | ||||||
| Date: |
|
, 2018 | ||||
Accepted by the Bank this day of , 2018.
| By: |
| James M. Gasior |
| Title: President and Chief Executive Officer |
14
EXHIBIT 10.24
ADDENDUM A
THE CORTLAND SAVINGS AND BANKING COMPANY
FIFTH AMENDED SPLIT DOLLAR AGREEMENT AND ENDORSEMENT
This FIFTH AMENDED SPLIT DOLLAR AGREEMENT AND ENDORSEMENT (this “Agreement”) is entered into as of this day of , 2018, by and between The Cortland Savings and Banking Company, an Ohio-chartered commercial bank (the “Bank”), and Timothy Carney, Executive Vice President and Chief Operating Officer of the Bank (the “Executive”). This Agreement shall append the Split Dollar Policy Endorsement entered into on even date herewith or as subsequently amended, by and between the aforementioned parties.
WHEREAS, to encourage the Executive to remain a Bank employee, the Bank and the Executive entered into a Fourth Amended Split Dollar Agreement and Endorsement dated as of April 19, 2011, providing for division of the death proceeds of a life insurance policy or policies on the Executive’s life,
WHEREAS, the Bank and the Executive entered into an Eighth Amended Salary Continuation Agreement dated as of December , 2018, providing for specified retirement benefits and amending and restating in its entirety the Seventh Amended Salary Continuation Agreement, which was dated as of November 24, 2015, and
WHEREAS, the Bank and the Executive intend that this Fifth Amended Split Dollar Agreement and Endorsement shall be attached as Addendum A to the Eighth Amended Salary Continuation Agreement, amending and restating in its entirety the Fourth Amended Split Dollar Agreement and Endorsement.
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms not otherwise defined in this Agreement are used herein as defined in the Eighth Amended Salary Continuation Agreement dated as of December , 2018, between the Bank and the Executive. The following terms shall have the meanings specified.
1.1 Administrator means the administrator described in Article 7.
1.2 Executive’s Interest means the benefit set forth in section 2.2.
1.3 Insured means the Executive.
1.4 Insurer means each life insurance carrier for which there is a Split Dollar Policy Endorsement attached to this Agreement.
1.5 Net Death Proceeds means the total death proceeds of the Policy minus the cash surrender value.
1.6 Policy means the specific life insurance policy or policies issued by the Insurer(s).
1.7 Salary Continuation Agreement means the Eighth Amended Salary Continuation Agreement dated as of December , 2018, between the Bank and the Executive, as the same may hereafter be amended.
1.8 Separation from Service means separation from service as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including termination for any reason of the Executive’s service as an executive and independent contractor to the Bank and any member of a controlled group, as defined in Code section 414, other than because of leave of absence approved by the Bank or the Executive’s death.
1.9 Split Dollar Policy Endorsement means the form required by the Administrator or the Insurer to indicate the Executive’s interest, if any, in a Policy on such Executive’s life.
ARTICLE 2
POLICY OWNERSHIP/INTERESTS
2.1 Bank Ownership. The Bank is the sole owner of the Policy and shall have the right to exercise all incidents of ownership. The Bank shall be the beneficiary of the remaining death proceeds of the Policy after the Executive’s interest is paid according to section 2.2 below.
2.2 Death Benefit. Provided the Executive’s death occurs both before the Executive’s Separation from Service and before the Executive attains age 60, at the Executive’s death the Executive’s beneficiary designated in accordance with the Split Dollar Policy Endorsement shall be entitled to Policy proceeds in an amount equal to the lesser of (x) 100% of the Net Death Proceeds or (y) $1,147,374 (the lesser of the amounts specified in clauses (x) and (y) being referred to in this Agreement as the “Executive’s Interest”). The Executive’s Interest shall be extinguished at the earliest of the date of the Executive’s Separation from Service, the date the Executive attains age 60, or the date on which the Executive receives payment of the benefit provided under the Salary Continuation Agreement for a Change in Control, and the Executive’s beneficiary shall be entitled to no benefits under the Agreement of the Executive’s death occurring thereafter. The Executive shall have the right to designate the beneficiary of the Executive’s Interest.
2.3 Option to Purchase. Upon termination of this Agreement, the Bank shall not sell, surrender, or transfer ownership of the Policy without first giving the Executive or the Executive’s transferee the option to purchase the Policy for a period of 60 days from written notice of such intention. The purchase price shall be an amount equal to the cash surrender value of the Policy.
2.4 Comparable Coverage. The Bank may replace the Policy with a comparable insurance policy to cover the benefit provided under this Agreement, in which case the Bank and the Executive shall execute a new Split Dollar Policy Endorsement for the comparable insurance policy.
2.5 Internal Revenue Code Section 1035 Exchanges. The Executive recognizes and agrees that the Bank may after this Agreement is adopted wish to exchange the Policy of life insurance on the Executive’s life for another contract of life insurance insuring the Executive’s life. Provided that the Policy is replaced (or intended to be replaced) with a comparable policy of life insurance, the Executive agrees to provide medical information and cooperate with medical insurance-related testing required by a prospective insurer for implementing the Policy or, if necessary, for modifying or updating to a comparable insurer.
ARTICLE 3
PREMIUMS
3.1 Premium Payment. The Bank shall pay any premiums due on the Policy.
3.2 Economic Benefit. The Administrator shall annually determine the economic benefit attributable to the Executive based on the life insurance premium factor for the Executive’s age multiplied by the aggregate death benefit payable to the Executive’s beneficiary. The “life insurance premium factor” is the minimum factor applicable under guidance published pursuant to Treasury Reg. section 1.61-22(d)(3)(ii) or any subsequent authority.
3.3 Imputed Income. The Bank shall impute the economic benefit to the Executive on an annual basis by adding the economic benefit to the Executive’s W-2, or if applicable, Form 1099.
ARTICLE 4
ASSIGNMENT
The Executive may irrevocably assign without consideration all of the Executive’s interest in the Policy and in this Agreement to any person, entity, or trust established by the Executive or the Executive’s spouse. If the Executive transfers all of the Executive’s interest in the Policy, all of the Executive’s interest in the Policy and in the Agreement shall be vested in the Executive’s transferee, who shall be substituted as a party hereunder and the Executive shall have no further interest in this Agreement.
ARTICLE 5
INSURER
The Insurer shall be bound by the terms of the Policy only. Any payments the Insurer makes or actions it takes in accordance with the Policy shall fully discharge it from all claims, suits, and demands of all entities or persons. The Insurer shall not be bound by or be deemed to have notice of the provisions of this Agreement.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. The Bank will notify any person or entity that makes a claim for benefits under this Agreement (the “claimant”) in writing, within 90 days after receiving claimant’s written application for benefits, of his or her eligibility or noneligibility for benefits under the Agreement. If the Administrator determines that the claimant is not eligible for benefits or full benefits, the notice will state (w) the specific reasons for denial, (x) a specific reference to the provisions of the Agreement on which the denial is based, (y) a description of any additional information or material necessary for the claimant to perfect his or her claim, and a description of why it is needed, and (z) an explanation of the Agreement’s claims review procedure and other appropriate information concerning steps to be taken if the claimant wishes to have the claim reviewed. If the Administrator determines that there are special circumstances requiring additional time to make a decision, the Bank will notify the claimant of the special circumstances and the date by which a decision is expected to be made, and may extend the time for up to an additional 90 days.
6.2 Review Procedure. If the claimant is determined by the Administrator not to be eligible for benefits, or if the claimant believes that he or she is entitled to greater or different benefits, the claimant will have the opportunity to have his or her claim reviewed by the Bank by filing a petition for review with the Bank within 60 days after receipt of the notice issued by the Bank. The claimant’s petition must state the specific reasons the claimant believes entitle him or her to benefits or to greater or different benefits. Within 60 days after receipt by the Bank of the petition, the Administrator will give the claimant (and counsel, if any) an opportunity to present his or her position verbally or in writing, and the claimant (or counsel) will have the right to review the pertinent documents. The Administrator will notify the claimant of the Administrator’s decision in writing within the 60-day period, stating specifically the basis of its decision, written in a manner to be understood by the claimant, and the specific provisions of the Agreement on which the decision is based. If, because of the need for a hearing, the 60-day period is not sufficient, the decision may be deferred for up to another 60 days at the election of the Administrator, but notice of this deferral will be given to the claimant.
ARTICLE 7
ADMINISTRATION OF AGREEMENT
7.1 Administrator Duties. This Agreement shall be administered by an Administrator, which shall consist of the Board or such committee as the Board shall appoint. The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (x) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (y) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
7.2 Agents. In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as the Administrator sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
7.3 Binding Effect of Decisions. The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Agreement.
7.4 Indemnity of Administrator. The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members.
7.5 Information. To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the retirement, death, or Separation from Service of the Executive, and such other pertinent information as the Administrator may reasonably require.
ARTICLE 8
MISCELLANEOUS
8.1 Amendment and Termination of Agreement. This Agreement may be amended or terminated solely by a written agreement signed by the Bank and the Executive. However, this Agreement shall terminate upon the first to occur of (u) payment to the Executive of the benefit provided under the Salary Continuation Agreement for a Change in Control, or (v) surrender, lapse, or other termination of the Policy by the Bank, or (w) distribution of the death benefit proceeds in accordance with section 2.2 above, or (x) termination of the Salary Continuation Agreement under Article 5 of the Salary Continuation Agreement, or (y) the Executive’s Separation from Service, or (z) the date the Executive attains age 60.
8.2 Binding Effect. This Agreement shall bind the Executive and the Bank and their beneficiaries, survivors, executors, administrators, and transferees, and any Policy beneficiary.
8.3 No Guarantee of Employment. This Agreement is not an employment policy or contract. This Agreement does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Bank’s right to discharge the Executive. This Agreement also does not require the Executive to remain an employee or interfere with the Executive’s right to terminate employment at any time.
8.4 Successors; Binding Agreement. By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
8.5 Applicable Law. This Agreement and all rights hereunder shall be governed by and construed according to the laws of the State of Ohio, except to the extent preempted by the laws of the United States of America.
8.6 Entire Agreement. This Agreement and the Salary Continuation Agreement constitute the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth. This Agreement amends and restates in its entirety the April 19, 2011 Fourth Amended Split Dollar Agreement and Endorsement.
8.7 Severability. If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of the provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
8.8 Headings. Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement.
8.9 Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice shall be given to the board of directors, The Cortland Savings and Banking Company, 194 W. Main Street, P.O. Box 98, Cortland, Ohio 44410-1466, or to such other or additional person or persons as the Bank shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executive’s address appearing on the Bank’s records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.
IN WITNESS WHEREOF, the Executive and a duly authorized representative of the Bank have executed this Agreement as of the date first written above.
| EXECUTIVE: | BANK: | |||||
| The Cortland Savings and Banking Company | ||||||
| By: |
| |||||
| Timothy Carney | James M. Gasior | |||||
| Title: | President and Chief Executive Officer | |||||
AGREEMENT TO COOPERATE WITH INSURANCE UNDERWRITING INCIDENT TO INTERNAL REVENUE CODE SECTION 1035 EXCHANGE
I acknowledge that I have read the Fifth Amended Split Dollar Agreement and Endorsement and agree to be bound by its terms, particularly the covenant on my part set forth in section 2.5 of the Fifth Amended Split Dollar Agreement and Endorsement to provide medical information and cooperate with medical insurance-related testing required by an insurer to issue a comparable insurance policy to cover the benefit provided under this Fifth Amended Split Dollar Agreement and Endorsement.
|
Witness |
Timothy Carney |
SPLIT DOLLAR POLICY ENDORSEMENT
Insured: Timothy Carney
Insurer:
Policy No.
According to the terms of The Cortland Savings and Banking Company Fifth Amended Split Dollar Agreement and Endorsement dated as of , 2018, the undersigned Owner requests that the above-referenced policy issued by the Insurer provide for the following beneficiary designation and limited contract ownership rights to the Insured:
1. Upon the death of the Insured, proceeds shall be paid in one sum to the Owner, its successors or assigns, to the extent of the Owner’s interest in the policy. It is hereby provided that the Insurer may rely solely upon a statement from the Owner concerning the amount of proceeds the Owner is entitled to receive under this paragraph.
2. Any proceeds at the death of the Insured in excess of the amount paid under the provisions of the preceding paragraph shall be paid in one sum to:
PRIMARY BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
CONTINGENT BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
The exclusive rights to change the beneficiary for the proceeds payable under this paragraph and to assign all rights and interests granted under this paragraph are hereby granted to the Insured. The sole signature of the Insured shall be sufficient to exercise the rights. The Owner retains all contract rights not granted to the Insured under this paragraph.
3. It is agreed by the undersigned that this designation and limited assignment of rights shall be subject in all respects to the contractual terms of the policy.
4. Any payment directed by the Owner under this endorsement shall be a full discharge of the Insurer, and such discharge shall be binding on all parties claiming any interest under the policy.
The undersigned for the Owner is signing in a representative capacity and warrants that he or she has the authority to bind the entity on whose behalf this document is executed.
Signed at , Ohio this day of , 2018.
| INSURED: | OWNER: | |||||
| The Cortland Savings and Banking Company | ||||||
|
|
By: | |||||
| Timothy Carney | Its: | |||||
SPLIT DOLLAR POLICY ENDORSEMENT
Insured: Timothy Carney
Insurer:
Policy No.
According to the terms of The Cortland Savings and Banking Company Fifth Amended Split Dollar Agreement and Endorsement dated as of , 2018, the undersigned Owner requests that the above-referenced policy issued by the Insurer provide for the following beneficiary designation and limited contract ownership rights to the Insured:
1. Upon the death of the Insured, proceeds shall be paid in one sum to the Owner, its successors or assigns, to the extent of the Owner’s interest in the policy. It is hereby provided that the Insurer may rely solely upon a statement from the Owner concerning the amount of proceeds the Owner is entitled to receive under this paragraph.
2. Any proceeds at the death of the Insured in excess of the amount paid under the provisions of the preceding paragraph shall be paid in one sum to:
PRIMARY BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
CONTINGENT BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
The exclusive rights to change the beneficiary for the proceeds payable under this paragraph and to assign all rights and interests granted under this paragraph are hereby granted to the Insured. The sole signature of the Insured shall be sufficient to exercise the rights. The Owner retains all contract rights not granted to the Insured under this paragraph.
3. It is agreed by the undersigned that this designation and limited assignment of rights shall be subject in all respects to the contractual terms of the policy.
4. Any payment directed by the Owner under this endorsement shall be a full discharge of the Insurer, and such discharge shall be binding on all parties claiming any interest under the policy.
The undersigned for the Owner is signing in a representative capacity and warrants that he or she has the authority to bind the entity on whose behalf this document is executed.
Signed at , Ohio this day of , 2018.
| INSURED: | OWNER: | |||||
| The Cortland Savings and Banking Company | ||||||
|
|
By: | |||||
| Timothy Carney | Its: | |||||
EXHIBIT 10.25
THE CORTLAND SAVINGS AND BANKING COMPANY
AMENDED SALARY CONTINUATION AGREEMENT
This AMENDED SALARY CONTINUATION AGREEMENT (this “Agreement”) is entered into as of , 2018, by and between The Cortland Savings and Banking Company (the “Bank”), an Ohio-chartered, FDIC-insured member bank, and Stanley P. Feret, Senior Vice President and Chief Lending Officer of the Bank (the “Executive”).
WHEREAS, the Executive has contributed substantially to the success of the Bank and its parent company, Cortland Bancorp, an Ohio corporation, and the Bank desires that the Executive continue in its employ,
WHEREAS, to encourage the Executive to remain an employee, the Bank is willing to provide to the Executive salary continuation benefits payable from the Bank’s general assets,
WHEREAS, as of the date of this Agreement none of the conditions or events included in the definition of the term “golden parachute payment” that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of the Bank, is contemplated insofar as the Bank is concerned,
WHEREAS, the Bank and the Executive intend that this Agreement amend and restate in its entirety the June 1, 2010 Salary Continuation Agreement between the Executive and the Bank, and
WHEREAS, the parties hereto intend that this Agreement be considered an unfunded arrangement maintained primarily to provide supplemental retirement benefits for the Executive, and to be considered a non-qualified benefit plan for purposes of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The Executive is fully advised of the Bank’s financial status.
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.
ARTICLE 1
DEFINITIONS
1.1 “Accrual Balance” means the liability that should be accrued by the Bank under generally accepted accounting principles (“GAAP”) for the Bank’s obligation to the Executive under this Agreement, applying Financial Accounting Standards Board ASC 710-10-30 (formerly known as Accounting Principles Board Opinion No. 12, as amended by Statement of Financial Accounting Standards No. 106), and the calculation method and discount rate specified hereinafter. The Accrual Balance is calculated such that when it is credited with interest each month the Accrual Balance at Normal Retirement Age equals the present value of the normal retirement benefits. The discount rate means the rate used by the Plan Administrator for determining the Accrual Balance. In its sole discretion the Plan Administrator may adjust the discount rate to maintain the rate within reasonable standards according to GAAP.
1.2 “Beneficiary” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive, determined according to Article 4.
1.3 “Beneficiary Designation Form” means the form established from time to time by the Plan Administrator that the Executive completes, signs, and returns to the Plan Administrator to designate one or more Beneficiaries.
1.4 “Change in Control” means a change in control as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including a change in ownership, a change in effective control, or change in ownership of a substantial portion of assets.
1.5 “Code” means the Internal Revenue Code of 1986, as amended, and rules, regulations, and guidance of general application issued by the Department of the Treasury under the Internal Revenue Code of 1986, as amended.
1.6 “Disability” means, because of a medically determinable physical or mental impairment that can be expected to result in death or that can be expected to last for a continuous period of at least 12 months, (x) the Executive is unable to engage in any substantial gainful activity, or (y) the Executive is receiving income replacement benefits for a period of at least three months under an accident and health plan of the employer. Medical determination of disability may be made either by the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank. Upon request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of the Social Security Administration’s or provider’s determination.
1.7 “Early Termination” means Separation from Service before Normal Retirement Age for reasons other than death, Disability, or Termination with Cause. Early Termination excludes a Separation from Service governed by section 2.4.
1.8 “Effective Date” means June 1, 2010.
1.9 “Intentional,” for purposes of this Agreement, no act or failure to act on the part of the Executive will be considered intentional if it is due primarily to an error in judgment or negligence. An act or failure to act on the Executive’s part is intentional if it is not in good faith and if it is without a reasonable belief that the action or failure to act is in the Bank’s best interests.
1.10 “Normal Retirement Age” means age 65.
1.11 “Plan Administrator” or “Administrator” means the plan administrator described in Article 7.
1.12 “Plan Year” means a twelve-month period commencing on March 1 and ending on the last day of February of each year. The initial Plan Year commenced on the Effective Date.
1.13 “Separation from Service” means separation from service as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including termination for any reason of the Executive’s service as an executive and independent contractor to the Bank and any member of a controlled group, as defined in Code section 414, other than because of a leave of absence approved by the Bank or the Executive’s death. For purposes of this Agreement, if there is a dispute about the employment status of the Executive or the date of the Executive’s Separation from Service, the Bank has the sole and absolute right to decide the dispute, unless a Change in Control has occurred.
1.14 “Termination with Cause” and “Cause” have the same meaning specified in any effective severance or employment agreement existing on the date hereof or hereafter entered into between the Executive and the Bank. If the Executive is not a party to a severance or employment agreement containing a definition of termination with cause, Termination with Cause means the Bank terminates the Executive’s employment because of –
(a) gross negligence or gross neglect of duties or intentional and material failure to perform stated duties after written notice thereof, or
(b) disloyalty or dishonesty in the performance of duties, or a breach of fiduciary duties for personal profit, in any case whether in the Executive’s capacity as a director or officer, or
(c) intentional wrongful damage to the business or property of the Bank or its affiliates, including without limitation the reputation of the Bank, which in the judgement of the Bank causes material harm to the Bank or affiliates, or
(d) willful violation of any applicable law or significant policy of the Bank or an affiliate that, in the Bank’s judgement, results in an adverse effect on the Bank or the affiliate, regardless of whether the violation leads to criminal prosecution or conviction. For purposes of this Agreement applicable laws include any statute, rule, regulatory order, statement of policy, or final cease-and-desist order of any governmental agency or body having regulatory authority over the Bank, or
(e) occurrence of any event that results in the Executive being excluded from coverage, or having coverage limited for the Executive as compared to other executives of the Bank, under the Bank’s blanket bond or other fidelity or insurance policy covering its directors, officers, or employees, or
(f) the Executive is removed from office or permanently prohibited from participating in the Bank’s affairs by an order issued under section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
(g) conviction of or plea of no contest to a felony or conviction of or plea of no contest to a misdemeanor involving moral turpitude, or the actual incarceration of the Executive for 45 consecutive days or more.
1.15 “Voluntary Termination with Good Reason” means a voluntary Separation from Service by the Executive if the following conditions (x) and (y) are satisfied: (x) a voluntary Separation from Service by the Executive will be considered a Voluntary Termination with Good Reason if any of the following occur without the Executive’s advance written consent –
1) a material diminution of the Executive’s base salary,
2) a material diminution of the Executive’s authority, duties, or responsibilities,
3) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report,
4) a material diminution in the budget over which the Executive retains authority,
5) a material change in the geographic location at which the Executive must perform services for the Bank, or
6) any other action or inaction that constitutes a material breach by the Bank of the agreement under which the Executive provides services to the Bank.
(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank has 30 days thereafter to remedy the condition. In addition, the Executive’s voluntary termination because of the existence of one or more of the conditions described in clause (x) must occur within 24 months after the initial existence of the condition.
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement. Unless Separation from Service occurs before Normal Retirement Age, when the Executive attains Normal Retirement Age the Bank will pay to the Executive the benefit described in this section 2.1 instead of any other benefit under this Agreement. If the Executive’s Separation from Service thereafter is a Termination with Cause or if this Agreement terminates under Article 5, no further benefits will be paid.
| 2.1.1 | Amount of benefit. The annual benefit under this section 2.1 is $92,000. |
| 2.1.2 | Payment of benefit. Beginning with the month immediately after the month in which the Executive attains Normal Retirement Age, the Bank will pay the benefit under this section 2.1 to the Executive in equal monthly installments on the last day of each month. The benefit will be paid to the Executive for 180 months. |
2.2 Early Termination. For Early Termination the Bank will pay to the Executive the benefit described in this section 2.2 instead of any other benefit under this Agreement. Neither the Bank nor the Executive is entitled to elect in the 24-month period after a Change in Control between the benefit under this section 2.2 versus the benefit under section 2.4. If the Executive’s Separation from Service within 24 months after a Change in Control is an involuntary termination without Cause or a Voluntary Termination with Good Reason, no benefit is payable under this section 2.2 and the Executive is instead entitled to the benefit under section 2.4 or, if the Executive first attained Normal Retirement Age, section 2.1. No benefit is payable under this Agreement if the Executive’s Separation from Service is a Termination with Cause or if this Agreement terminates under Article 5.
| 2.2.1 | Amount of benefit. The annual benefit under this section 2.2 is calculated as the amount that fully amortizes the Accrual Balance existing at the end of the month immediately before the month in which Separation from Service occurs, amortizing that Accrual Balance over 15 years and taking into account interest at the discount rate or rates established by the Plan Administrator. |
| 2.2.2 | Payment of benefit. The Bank will pay the annual benefit to the Executive in equal monthly installments on the last day of each month, except that the first six monthly installments after the Executive’s Separation from Service will not be paid to the Executive until the seventh month after the month in which Separation from Service occurs. In the seventh month after the month in which Separation from Service occurs the Executive is entitled to the first six monthly installments and the regular monthly installment for the seventh month. The Executive is entitled to a total of 180 monthly installments, including the first six installments that are paid in the seventh month. |
2.3 Disability. For Separation from Service because of Disability before Normal Retirement Age, the Bank will pay to the Executive the benefit described in this section 2.3 instead of any other benefit under this Agreement.
| 2.3.1 | Amount of benefit. The annual benefit under this section 2.3 is calculated as the amount that fully amortizes the Accrual Balance existing at the end of the month immediately before the month in which Separation from Service occurs, amortizing that Accrual Balance over 15 years and taking into account interest at the discount rate or rates established by the Plan Administrator. |
| 2.3.2 | Payment of benefit. Beginning with the later of (x) the seventh month after the month in which the Executive’s Separation from Service occurs, or (y) the month immediately after the month in which the Executive attains Normal Retirement Age, the Bank will pay the annual benefit to the Executive in equal monthly installments on the last day of each month. If the benefit is paid under clause (x) in the seventh month after Separation from Service, the first six monthly installments after Separation from Service will not be paid to the Executive until the seventh month after the month in which Separation from Service occurs. In the seventh month the Executive is entitled to the first six monthly installments and the regular monthly installment for the seventh month. The Executive is entitled to a total of 180 monthly installments, including the first six installments that are paid in the seventh month. |
2.4 Change in Control. If the Executive’s Separation from Service is an involuntary termination without Cause or a Voluntary Termination with Good Reason, in either case within 24 months after a Change in Control, the Bank will pay to the Executive the benefit described in this section 2.4 instead of any other benefit under this Agreement. However, no benefit is payable under this Agreement if the Executive’s employment is terminated under circumstances described in Article 5 of this Agreement. Neither the Bank nor the Executive is entitled to elect in the 24-month period after a Change in Control between the benefit under this section 2.4 versus the Early Termination benefit under section 2.2. If the Executive’s Separation from Service within 24 months after a Change in Control is an involuntary termination without Cause or a Voluntary Termination with Good Reason, no benefit is payable under section 2.2 and the Executive is instead entitled to the benefit under this section 2.4. But if the Executive has attained Normal Retirement Age when Separation from Service within 24 months after a Change in Control occurs, whether Separation from Service is voluntary or involuntary for any reason other than Termination with Cause, the Executive is entitled solely to the benefit provided by section 2.1, not this section 2.4.
| 2.4.1 | Amount of benefit. The benefit under this section 2.4 is the Accrual Balance when Separation from Service occurs. |
| 2.4.2 | Payment of benefit. The Bank will pay the benefit under this section 2.4 to the Executive in a single lump sum on the first day of the seventh month after the month in which Separation from Service occurs. |
2.5 Lump-Sum Payout of Remaining Normal Retirement Benefit, Early Termination Benefit, or Disability Benefit When a Change in Control Occurs. If a Change in Control occurs while the Executive is receiving the Normal Retirement Age benefit under section 2.1, the Bank will pay the remaining salary continuation benefits to the Executive in a single lump sum three days after the Change in Control. If a Change in Control occurs after Separation from Service but while the Executive is receiving or is entitled to receive the Early Termination benefit under sections 2.2 or the Disability benefit under section 2.3, the Bank will pay the remaining salary continuation benefits to the Executive in a single lump sum three days after the later of (x) the Change in Control or (y) the first day of the seventh month after the month in which the Executive’s Separation from Service occurs. The lump-sum payment due to the Executive as a result of a Change in Control is an amount equal to the Accrual Balance amount corresponding to the particular benefit when the Change in Control occurs.
2.6 Annual Benefit Statement. Within 120 days after the end of each Plan Year the Plan Administrator will provide or cause to be provided to the Executive an annual benefit statement showing benefits payable or potentially payable to the Executive under this Agreement. Each annual benefit statement supersedes the previous year’s annual benefit statement. If there is a contradiction between this Agreement and the annual benefit statement concerning the amount of a particular benefit payable or potentially payable to the Executive under sections 2.2, 2.3, or 2.4 hereof, the amount of the benefit determined under this Agreement controls.
2.7 Savings Clause Relating to Compliance with Code Section 409A. Despite any contrary provision of this Agreement, if when the Executive’s employment terminates the Executive is a specified employee, as defined in Code section 409A, and if any payments under Article 2 of this Agreement will result in additional tax or interest to the Executive because of section 409A, the Executive is not entitled to the payments under Article 2 until the earliest of (x) the date that is at least six months after termination of the Executive’s employment for reasons other than the Executive’s death, (y) the date of the Executive’s death, or (z) any earlier date that does not result in additional tax or interest to the Executive under section 409A. If any provision of this Agreement would subject the Executive to additional tax or interest under section 409A, the Bank will reform the provision. However, the Bank will maintain to the maximum extent practicable the original intent of the applicable provision without subjecting the Executive to additional tax or interest, and the Bank is not required to incur any additional compensation expense as a result of the reformed provision.
2.8 One Benefit Only. Despite anything to the contrary in this Agreement, the Executive and Beneficiary are entitled to one benefit only under this Agreement, which is determined by the first event to occur that is dealt with by this Agreement. Except as provided in section 2.5 or Article 3, subsequent occurrence of events dealt with by this Agreement does not entitle the Executive or Beneficiary to other or additional benefits under this Agreement.
ARTICLE 3
DEATH BENEFITS
Unless the Accrual Balance is paid to the Executive under sections 2.4 or 2.5 after a Change in Control, if at death the Executive is receiving or entitled to receive benefits under sections 2.1, 2.2, or 2.3 but dies before receiving all 180 monthly benefit payments under sections 2.1, 2.2, or 2.3, at the Executive’s death the Bank will pay to the Executive’s Beneficiary the Accrual Balance existing at the time of the Executive’s death. If a benefit is payable to the Executive’s Beneficiary, the benefit will be paid in a single lump sum 90 days after the Executive’s death.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive may designate a Beneficiary to receive any benefits payable under this Agreement after the Executive’s death. The Beneficiary designated under this Agreement may be the same as or different from the beneficiary designation under any other benefit plan of the Bank in which the Executive participates.
4.2 Beneficiary Designation: Change. The Executive designates a Beneficiary by completing and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated agent. The Executive’s Beneficiary designation is automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved. The Executive may change a Beneficiary by completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures, as in effect from time to time. Upon acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed are cancelled. The Plan Administrator is entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before the Executive’s death.
4.3 Acknowledgment. No designation or change in designation of a Beneficiary is effective until received, accepted, and acknowledged in writing by the Plan Administrator or its designated agent.
4.4 No Beneficiary Designation. If the Executive dies without a valid beneficiary designation or if all designated Beneficiaries predecease the Executive, the Executive’s spouse is the designated Beneficiary. If the Executive has no surviving spouse, benefit payments will be made to the personal representative of the Executive’s estate.
4.5 Facility of Payment. If a benefit is payable to a minor, to a person declared incapacitated, or to a person incapable of handling the disposition of his or her property, the Bank may pay the benefit to the guardian, legal representative, or person having the care or custody of the minor, incapacitated person, or incapable person. The Bank may require proof of incapacity, minority, or guardianship as it may deem appropriate before distribution of the benefit. Distribution completely discharges the Bank from all liability.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination with Cause. Despite any contrary provision of this Agreement, the Bank will not pay any benefit under this Agreement and this Agreement terminates if Separation from Service is a Termination with Cause.
5.2 Misstatement. No benefits will be paid under this Agreement if the Executive makes any material misstatement of fact on any application or resume provided to the Bank, on any application for life insurance purchased by the Bank, or on any application for benefits provided by the Bank.
5.3 Removal. If the Executive is removed from office or permanently prohibited from participating in the Bank’s affairs by an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement terminate as of the effective date of the order.
5.4 Default. Despite any contrary provision of this Agreement, if the Bank is in “default” or “in danger of default,” as those terms are defined in section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement terminate.
5.5 FDIC Open-Bank Assistance. All obligations under this Agreement terminate, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, if the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Any rights of the parties that have already vested are not affected, however.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. The Bank will notify any person or entity that makes a claim for benefits under this Agreement (the “Claimant”) in writing, within 90 days after receiving Claimant’s written application for benefits, of his or her eligibility or noneligibility for benefits under the Agreement. If the Plan Administrator determines that the Claimant is not eligible for benefits or full benefits, the notice will state (w) the specific reasons for denial, (x) a specific reference to the provisions of the Agreement on which the denial is based, (y) a description of any additional information or material necessary for the Claimant to perfect his or her claim, and a description of why it is needed, and (z) an explanation of the Agreement’s claims review procedure and other appropriate information concerning steps to be taken if the Claimant wishes to have the claim reviewed. If the Plan Administrator determines that there are special circumstances requiring additional time to make a decision, the Bank will notify the Claimant of the special circumstances and the date by which a decision is expected to be made, and may extend the time for up to an additional 90 days.
6.2 Review Procedure. If the Claimant is determined by the Plan Administrator not to be eligible for benefits, or if the Claimant believes that he or she is entitled to greater or different benefits, the Claimant will have the opportunity to have his or her claim reviewed by the Bank by filing a petition for review with the Bank within 60 days after receipt of the notice issued by the Bank. The Claimant’s petition must state the specific reasons the Claimant believes entitle him or her to benefits or to greater or different benefits. Within 60 days after receipt by the Bank of the petition, the Plan Administrator will give the Claimant (and counsel, if any) an opportunity to present his or her position verbally or in writing, and the Claimant (or counsel) will have the right to review the pertinent documents. The Plan Administrator will notify the Claimant of the Plan Administrator’s decision in writing within the 60-day period, stating specifically the basis of its decision, written in a manner to be understood by the Claimant, and the specific provisions of the Agreement on which the decision is based. If, because of the need for a hearing, the 60-day period is not sufficient, the decision may be deferred for up to another 60 days at the election of the Plan Administrator, but notice of this deferral will be given to the Claimant.
ARTICLE 7
ADMINISTRATION OF AGREEMENT
7.1 Plan Administrator Duties. This Agreement will be administered by a Plan Administrator consisting of the Board or such committee or person as the Board appoints. The Executive may not be a member of the Plan Administrator. The Plan Administrator has the discretion and authority (x) to make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (y) to decide or resolve any and all questions that may arise, including interpretations of this Agreement.
7.2 Agents. In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
7.3 Binding Effect of Decisions. The decision or action of the Plan Administrator about any question arising out of the administration, interpretation, and application of the Agreement and the rules and regulations promulgated hereunder is final and conclusive and binding upon all persons having any interest in the Agreement. No Executive or Beneficiary has any right, vested or nonvested, regarding the continued use of any previously adopted assumptions, including but not limited to the discount rate and calculation method employed in the determination of the Accrual Balance.
7.4 Indemnity of Plan Administrator. The Bank will indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act regarding this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members.
7.5 Bank Information. To enable the Plan Administrator to perform its functions, the Bank will supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Separation from Service of the Executive, and such other pertinent information as the Plan Administrator reasonably requires.
ARTICLE 8
MISCELLANEOUS
8.1 Amendments and Termination. This Agreement may be amended solely by a written agreement signed by the Bank and by the Executive. This Agreement may be terminated by the Bank without the Executive’s consent. Unless Article 5 provides that the Executive is not entitled to payment or unless when termination occurs the Executive has already received payment of benefits under this Agreement, the Bank must pay the Accrual Balance in a single lump sum to the Executive if the Bank terminates this Agreement. The lump-sum termination payment will be made to the Executive on the first day of the thirteenth month after the month in which the Bank terminates this Agreement.
8.2 Binding Effect. This Agreement binds the Executive and the Bank and their beneficiaries, survivors, executors, successors, administrators, and transferees.
8.3 No Guarantee of Employment. This Agreement is not an employment policy or contract. This Agreement does not give the Executive the right to remain an employee of the Bank nor does this Agreement interfere with the Bank’s right to discharge the Executive. This Agreement also does not require the Executive to remain an employee or interfere with the Executive’s right to terminate employment at any time.
8.4 Non-Transferability. Benefits under this Agreement may not be sold, transferred, assigned, pledged, attached, or encumbered.
8.5 Successors; Binding Agreement. By an assumption agreement in form and substance satisfactory to the Executive, the Bank will require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the Bank’s business or assets to expressly assume and agree to perform this Agreement in the same manner and to the same extent the Bank would be required to perform this Agreement had no succession occurred.
8.6 Tax Withholding. The Bank will withhold any taxes that are required to be withheld from the benefits provided under this Agreement.
8.7 Applicable Law. The Agreement and all rights hereunder are governed by the laws of the State of Ohio, except to the extent preempted by the laws of the United States of America.
8.8 Unfunded Arrangement. The Executive and beneficiary are general unsecured creditors of the Bank for the payment of benefits under this Agreement. The benefits represent the mere promise by the Bank to pay benefits. The rights to benefits are not subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the Executive’s life is a general asset of the Bank to which the Executive and beneficiary have no preferred or secured claim.
8.9 Entire Agreement. This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth. This Agreement amends and restates in its entirety the June 1, 2010 Salary Continuation Agreement.
8.10 Severability. If any provision of this Agreement is held invalid, invalidity does not affect any other provision of this Agreement not held invalid, and to the full extent consistent with law each such other provision continues in full force and effect. If any provision of this Agreement is held invalid in part, invalidity does not affect the remainder of the provision not held invalid, and to the full extent consistent with law the remainder of the provision, together with all other provisions of this Agreement, continues in full force and effect.
8.11 Headings. Headings are included herein solely for convenience of reference and do not affect the meaning or interpretation of any provision of this Agreement.
8.12 Notices. All notices, requests, demands and other communications hereunder must be in writing and will be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice must be given to the board of directors, The Cortland Savings and Banking Company, 194 W. Main Street, P.O. Box 98, Cortland, Ohio 44410-1466, or to such other or additional person or persons as the Bank designates to the Executive in writing. If to the Executive, notice will be given to the Executive at the Executive’s address appearing on the Bank’s records, or to such other or additional person or persons as the Executive designates to the Bank in writing.
8.13 Payment of Legal Fees. The Bank is aware that after a Change in Control management could cause or attempt to cause the Bank to refuse to comply with its obligations under this Agreement, or could institute or cause or attempt to cause the Bank to institute litigation seeking to have this Agreement declared unenforceable, or could take or attempt to take other action to deny Executive the benefits intended under this Agreement. In these circumstances the purpose of this Agreement would be frustrated. The Bank desires that the Executive not be required to incur expenses associated with enforcement of rights under this Agreement, whether by litigation or other legal action, because the cost and expense thereof would substantially detract from the benefits intended to be granted to the Executive hereunder. The Bank desires that the Executive not be forced to negotiate settlement of rights under this Agreement under threat of incurring expenses. Accordingly, if after a Change in Control it appears to Executive that (x) the Bank has failed to comply with any of its obligations under this Agreement, or (y) the Bank or any other person has taken any action to declare this Agreement void or unenforceable, or instituted any litigation or other legal action designed to deny, diminish, or recover from the Executive the benefits intended to be provided to the Executive hereunder, the Bank irrevocably authorizes the Executive to retain counsel of the Executive’s choice, at the Bank’s expense as provided in this section 8.13, to represent the Executive in the initiation or defense of any litigation or other legal action, whether by or against the Bank or any director, officer, stockholder or other person affiliated with the Bank, in any jurisdiction. Despite any existing or previous attorney-client relationship between the Bank and any counsel chosen by the Executive under this section 8.13, the Bank irrevocably consents to the Executive entering into an attorney-client relationship with that counsel, and the Bank and the Executive agree that a confidential relationship exists between the Executive and that counsel. The
fees and expenses of counsel selected by the Executive will be paid or reimbursed to the Executive by the Bank on a regular, periodic basis upon presentation by the Executive of a statement or statements prepared by counsel in accordance with counsel’s customary practices, regardless of whether suit is brought and regardless of whether incurred in trial, bankruptcy, or appellate proceedings. The Bank’s obligation to pay the Executive’s legal fees under this section 8.13 operates separately from and in addition to any legal fee reimbursement obligation the Bank or the Bank’s parent Cortland Bancorp may have with the Executive under a severance, employment, or other agreement. Despite any contrary provision in this Agreement however, the Bank is not required to pay or reimburse the Executive’s legal expenses if doing so violates section 18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance Corporation [12 CFR 359.3].
8.14 Automatic Review. On the third year anniversary of the date of this Agreement and every third year thereafter the Bank will automatically review this Agreement for reasonableness of benefits, with the goal that the Executive’s benefit under this Agreement combined with other Bank-provided benefits equal a reasonable percentage of Executive’s pre-retirement compensation. For purposes of this Agreement, Bank-provided benefits include but are not limited to (x) the Bank 401(k) match and (y) the Bank portion of Social Security benefits. The term “compensation” as used in this section 8.14 means the base annual salary of the Executive projected at the Executive’s Normal Retirement Age. Base annual salary means compensation of the type that would, according to the Securities and Exchange Commission’s Regulation S-K Item 402(c) (17 CFR 229.402(c)), be required to be reported by an accelerated filer as salary in column (c) of that rule’s Summary Compensation Table. The term base annual salary specifically excludes director fees and other director compensation, bonus, option grants and any other compensation that would be reported in separate columns in the Summary Compensation Table, but it includes salary deferred at the election of the Executive.
[Signatures are on the following page]
IN WITNESS WHEREOF, the Executive and a duly authorized Bank officer have executed this Amended Salary Continuation Agreement as of the date first written above.
| EXECUTIVE: | BANK: | |||||
| THE CORTLAND SAVINGS AND BANKING COMPANY | ||||||
|
|
By: |
| ||||
| Stanley P. Feret | James M. Gasior | |||||
| Title: President and Chief Executive Officer | ||||||
BENEFICIARY DESIGNATION
THE CORTLAND SAVINGS AND BANKING COMPANY
AMENDED SALARY CONTINUATION AGREEMENT
I, Stanley P. Feret, designate the following as beneficiary of any death benefits under this Amended Salary Continuation Agreement:
Primary:
.
Contingent:
.
Note: To name a trust as beneficiary, please provide the name of the trustee(s) and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing a new written designation with the Bank. I further understand that the designations will be automatically revoked if the beneficiary predeceases me or if I have named my spouse as beneficiary and our marriage is subsequently dissolved.
| Signature: |
| |||
| Stanley P. Feret | ||||
| Date: |
|
, 2018 | ||
Accepted by the Bank this day of , 2018.
By:
James M. Gasior
Title: President and Chief Executive Officer
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EXHIBIT 10.26
ADDENDUM A
THE CORTLAND SAVINGS AND BANKING COMPANY
FIFTH AMENDED SPLIT DOLLAR AGREEMENT AND ENDORSEMENT
This FIFTH AMENDED SPLIT DOLLAR AGREEMENT AND ENDORSEMENT (this “Agreement”) is entered into as of this day of , 2018, by and between The Cortland Savings and Banking Company, an Ohio-chartered commercial bank (the “Bank”), and James M. Gasior, President and Chief Executive Officer of the Bank (the “Executive”). This Agreement shall append the Split Dollar Policy Endorsement entered into on even date herewith or as subsequently amended, by and between the aforementioned parties.
WHEREAS, to encourage the Executive to remain a Bank employee, the Bank and the Executive entered into a Fourth Amended Split Dollar Agreement and Endorsement dated as of April 19, 2011, providing for division of the death proceeds of a life insurance policy or policies on the Executive’s life,
WHEREAS, the Bank and the Executive entered into an Eighth Amended Salary Continuation Agreement dated as of December , 2018, providing for specified retirement benefits and amending and restating in its entirety the Seventh Amended Salary Continuation Agreement, which was dated as of November 24, 2015, and
WHEREAS, the Bank and the Executive intend that this Fifth Amended Split Dollar Agreement and Endorsement shall be attached as Addendum A to the Eighth Amended Salary Continuation Agreement, amending and restating in its entirety the Fourth Amended Split Dollar Agreement and Endorsement.
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms not otherwise defined in this Agreement are used herein as defined in the Eighth Amended Salary Continuation Agreement dated as of December , 2018, between the Bank and the Executive. The following terms shall have the meanings specified.
1.1 Administrator means the administrator described in Article 7.
1.2 Executive’s Interest means the benefit set forth in section 2.2.
1.3 Insured means the Executive.
1.4 Insurer means each life insurance carrier for which there is a Split Dollar Policy Endorsement attached to this Agreement.
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1.5 Net Death Proceeds means the total death proceeds of the Policy minus the cash surrender value.
1.6 Policy means the specific life insurance policy or policies issued by the Insurer(s).
1.7 Salary Continuation Agreement means the Eighth Amended Salary Continuation Agreement dated as of December _____, 2018, between the Bank and the Executive, as the same may hereafter be amended.
1.8 Separation from Service means separation from service as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including termination for any reason of the Executive’s service as an executive and independent contractor to the Bank and any member of a controlled group, as defined in Code section 414, other than because of leave of absence approved by the Bank or the Executive’s death.
1.9 Split Dollar Policy Endorsement means the form required by the Administrator or the Insurer to indicate the Executive’s interest, if any, in a Policy on such Executive’s life.
ARTICLE 2
POLICY OWNERSHIP/INTERESTS
2.1 Bank Ownership. The Bank is the sole owner of the Policy and shall have the right to exercise all incidents of ownership. The Bank shall be the beneficiary of the remaining death proceeds of the Policy after the Executive’s interest is paid according to section 2.2 below.
2.2 Death Benefit. Provided the Executive’s death occurs both before the Executive’s Separation from Service and before the Executive attains age 62, at the Executive’s death the Executive’s beneficiary designated in accordance with the Split Dollar Policy Endorsement shall be entitled to Policy proceeds in an amount equal to the lesser of (x) 100% of the Net Death Proceeds or (y) $1,118,817 (the lesser of the amounts specified in clauses (x) and (y) being referred to in this Agreement as the “Executive’s Interest”). The Executive’s Interest shall be extinguished at the earliest of the date of the Executive’s Separation from Service, the date the Executive attains age 62, or the date on which the Executive receives payment of the benefit provided under the Salary Continuation Agreement for a Change in Control, and the Executive’s beneficiary shall be entitled to no benefits under the Agreement of the Executive’s death occurring thereafter. The Executive shall have the right to designate the beneficiary of the Executive’s Interest.
2.3 Option to Purchase. Upon termination of this Agreement, the Bank shall not sell, surrender, or transfer ownership of the Policy without first giving the Executive or the Executive’s transferee the option to purchase the Policy for a period of 60 days from written notice of such intention. The purchase price shall be an amount equal to the cash surrender value of the Policy.
2.4 Comparable Coverage. The Bank may replace the Policy with a comparable insurance policy to cover the benefit provided under this Agreement, in which case the Bank and the Executive shall execute a new Split Dollar Policy Endorsement for the comparable insurance policy.
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2.5 Internal Revenue Code Section 1035 Exchanges. The Executive recognizes and agrees that the Bank may after this Agreement is adopted wish to exchange the Policy of life insurance on the Executive’s life for another contract of life insurance insuring the Executive’s life. Provided that the Policy is replaced (or intended to be replaced) with a comparable policy of life insurance, the Executive agrees to provide medical information and cooperate with medical insurance-related testing required by a prospective insurer for implementing the Policy or, if necessary, for modifying or updating to a comparable insurer.
ARTICLE 3
PREMIUMS
3.1 Premium Payment. The Bank shall pay any premiums due on the Policy.
3.2 Economic Benefit. The Administrator shall annually determine the economic benefit attributable to the Executive based on the life insurance premium factor for the Executive’s age multiplied by the aggregate death benefit payable to the Executive’s beneficiary. The “life insurance premium factor” is the minimum factor applicable under guidance published pursuant to Treasury Reg. section 1.61-22(d)(3)(ii) or any subsequent authority.
3.3 Imputed Income. The Bank shall impute the economic benefit to the Executive on an annual basis by adding the economic benefit to the Executive’s W-2, or if applicable, Form 1099.
ARTICLE 4
ASSIGNMENT
The Executive may irrevocably assign without consideration all of the Executive’s interest in the Policy and in this Agreement to any person, entity, or trust established by the Executive or the Executive’s spouse. If the Executive transfers all of the Executive’s interest in the Policy, all of the Executive’s interest in the Policy and in the Agreement shall be vested in the Executive’s transferee, who shall be substituted as a party hereunder and the Executive shall have no further interest in this Agreement.
ARTICLE 5
INSURER
The Insurer shall be bound by the terms of the Policy only. Any payments the Insurer makes or actions it takes in accordance with the Policy shall fully discharge it from all claims, suits, and demands of all entities or persons. The Insurer shall not be bound by or be deemed to have notice of the provisions of this Agreement.
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ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. The Bank will notify any person or entity that makes a claim for benefits under this Agreement (the “claimant”) in writing, within 90 days after receiving claimant’s written application for benefits, of his or her eligibility or noneligibility for benefits under the Agreement. If the Administrator determines that the claimant is not eligible for benefits or full benefits, the notice will state (w) the specific reasons for denial, (x) a specific reference to the provisions of the Agreement on which the denial is based, (y) a description of any additional information or material necessary for the claimant to perfect his or her claim, and a description of why it is needed, and (z) an explanation of the Agreement’s claims review procedure and other appropriate information concerning steps to be taken if the claimant wishes to have the claim reviewed. If the Administrator determines that there are special circumstances requiring additional time to make a decision, the Bank will notify the claimant of the special circumstances and the date by which a decision is expected to be made, and may extend the time for up to an additional 90 days.
6.2 Review Procedure. If the claimant is determined by the Administrator not to be eligible for benefits, or if the claimant believes that he or she is entitled to greater or different benefits, the claimant will have the opportunity to have his or her claim reviewed by the Bank by filing a petition for review with the Bank within 60 days after receipt of the notice issued by the Bank. The claimant’s petition must state the specific reasons the claimant believes entitle him or her to benefits or to greater or different benefits. Within 60 days after receipt by the Bank of the petition, the Administrator will give the claimant (and counsel, if any) an opportunity to present his or her position verbally or in writing, and the claimant (or counsel) will have the right to review the pertinent documents. The Administrator will notify the claimant of the Administrator’s decision in writing within the 60-day period, stating specifically the basis of its decision, written in a manner to be understood by the claimant, and the specific provisions of the Agreement on which the decision is based. If, because of the need for a hearing, the 60-day period is not sufficient, the decision may be deferred for up to another 60 days at the election of the Administrator, but notice of this deferral will be given to the claimant.
ARTICLE 7
ADMINISTRATION OF AGREEMENT
7.1 Administrator Duties. This Agreement shall be administered by an Administrator, which shall consist of the Board or such committee as the Board shall appoint. The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (x) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (y) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
7.2 Agents. In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as the Administrator sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
7.3 Binding Effect of Decisions. The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Agreement.
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7.4 Indemnity of Administrator. The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members.
7.5 Information. To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the retirement, death, or Separation from Service of the Executive, and such other pertinent information as the Administrator may reasonably require.
ARTICLE 8
MISCELLANEOUS
8.1 Amendment and Termination of Agreement. This Agreement may be amended or terminated solely by a written agreement signed by the Bank and the Executive. However, this Agreement shall terminate upon the first to occur of (u) payment to the Executive of the benefit provided under the Salary Continuation Agreement for a Change in Control, or (v) surrender, lapse, or other termination of the Policy by the Bank, or (w) distribution of the death benefit proceeds in accordance with section 2.2 above, or (x) termination of the Salary Continuation Agreement under Article 5 of the Salary Continuation Agreement, or (y) the Executive’s Separation from Service, or (z) the date the Executive attains age 62.
8.2 Binding Effect. This Agreement shall bind the Executive and the Bank and their beneficiaries, survivors, executors, administrators, and transferees, and any Policy beneficiary.
8.3 No Guarantee of Employment. This Agreement is not an employment policy or contract. This Agreement does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Bank’s right to discharge the Executive. This Agreement also does not require the Executive to remain an employee or interfere with the Executive’s right to terminate employment at any time.
8.4 Successors; Binding Agreement. By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
8.5 Applicable Law. This Agreement and all rights hereunder shall be governed by and construed according to the laws of the State of Ohio, except to the extent preempted by the laws of the United States of America.
8.6 Entire Agreement. This Agreement and the Salary Continuation Agreement constitute the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth. This Agreement amends and restates in its entirety the April 19, 2011 Fourth Amended Split Dollar Agreement and Endorsement.
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8.7 Severability. If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of the provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
8.8 Headings. Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement.
8.9 Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice shall be given to the board of directors, The Cortland Savings and Banking Company, 194 W. Main Street, P.O. Box 98, Cortland, Ohio 44410-1466, or to such other or additional person or persons as the Bank shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executive’s address appearing on the Bank’s records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.
IN WITNESS WHEREOF, the Executive and a duly authorized representative of the Bank have executed this Agreement as of the date first written above.
| EXECUTIVE: | BANK: | |||||
| The Cortland Savings and Banking Company | ||||||
| By: |
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|
James M. Gasior |
||||||
| Title: |
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AGREEMENT TO COOPERATE WITH INSURANCE UNDERWRITING INCIDENT TO INTERNAL REVENUE CODE SECTION 1035 EXCHANGE
I acknowledge that I have read the Fifth Amended Split Dollar Agreement and Endorsement and agree to be bound by its terms, particularly the covenant on my part set forth in section 2.5 of the Fifth Amended Split Dollar Agreement and Endorsement to provide medical information and cooperate with medical insurance-related testing required by an insurer to issue a comparable insurance policy to cover the benefit provided under this Fifth Amended Split Dollar Agreement and Endorsement.
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Witness |
James M. Gasior |
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SPLIT DOLLAR POLICY ENDORSEMENT
Insured: James M. Gasior
Insurer:
Policy No.
According to the terms of The Cortland Savings and Banking Company Fifth Amended Split Dollar Agreement and Endorsement dated as of , 2018, the undersigned Owner requests that the above-referenced policy issued by the Insurer provide for the following beneficiary designation and limited contract ownership rights to the Insured:
1. Upon the death of the Insured, proceeds shall be paid in one sum to the Owner, its successors or assigns, to the extent of the Owner’s interest in the policy. It is hereby provided that the Insurer may rely solely upon a statement from the Owner concerning the amount of proceeds the Owner is entitled to receive under this paragraph.
2. Any proceeds at the death of the Insured in excess of the amount paid under the provisions of the preceding paragraph shall be paid in one sum to:
PRIMARY BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
CONTINGENT BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
The exclusive rights to change the beneficiary for the proceeds payable under this paragraph and to assign all rights and interests granted under this paragraph are hereby granted to the Insured. The sole signature of the Insured shall be sufficient to exercise the rights. The Owner retains all contract rights not granted to the Insured under this paragraph.
3. It is agreed by the undersigned that this designation and limited assignment of rights shall be subject in all respects to the contractual terms of the policy.
4. Any payment directed by the Owner under this endorsement shall be a full discharge of the Insurer, and such discharge shall be binding on all parties claiming any interest under the policy.
The undersigned for the Owner is signing in a representative capacity and warrants that he or she has the authority to bind the entity on whose behalf this document is executed.
Signed at , Ohio this day of , 2018.
| INSURED: | OWNER: | |||||
| The Cortland Savings and Banking Company | ||||||
| By: |
| |||||
|
James M. Gasior |
||||||
| Its: |
| |||||
SPLIT DOLLAR POLICY ENDORSEMENT
Insured: James M. Gasior
Insurer:
Policy No.
According to the terms of The Cortland Savings and Banking Company Fifth Amended Split Dollar Agreement and Endorsement dated as of , 2018, the undersigned Owner requests that the above-referenced policy issued by the Insurer provide for the following beneficiary designation and limited contract ownership rights to the Insured:
1. Upon the death of the Insured, proceeds shall be paid in one sum to the Owner, its successors or assigns, to the extent of the Owner’s interest in the policy. It is hereby provided that the Insurer may rely solely upon a statement from the Owner concerning the amount of proceeds the Owner is entitled to receive under this paragraph.
2. Any proceeds at the death of the Insured in excess of the amount paid under the provisions of the preceding paragraph shall be paid in one sum to:
PRIMARY BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
CONTINGENT BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
The exclusive rights to change the beneficiary for the proceeds payable under this paragraph and to assign all rights and interests granted under this paragraph are hereby granted to the Insured. The sole signature of the Insured shall be sufficient to exercise the rights. The Owner retains all contract rights not granted to the Insured under this paragraph.
3. It is agreed by the undersigned that this designation and limited assignment of rights shall be subject in all respects to the contractual terms of the policy.
4. Any payment directed by the Owner under this endorsement shall be a full discharge of the Insurer, and such discharge shall be binding on all parties claiming any interest under the policy.
The undersigned for the Owner is signing in a representative capacity and warrants that he or she has the authority to bind the entity on whose behalf this document is executed.
Signed at , Ohio this day of , 2018.
| INSURED: | OWNER: | |||||
| The Cortland Savings and Banking Company | ||||||
| By: |
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James M. Gasior |
||||||
| Its: |
| |||||
EXHIBIT 10.31.3
AMENDED SEVERANCE AGREEMENT
This AMENDED SEVERANCE AGREEMENT (this “Agreement”) is entered into and is effective as of , 2018 by and between Cortland Bancorp, an Ohio corporation, and David J. Lucido (the “Executive”), Senior Vice President and Chief Financial Officer of Cortland Bancorp and The Cortland Savings and Banking Company, an Ohio-chartered bank and wholly owned subsidiary of Cortland Bancorp (the “Bank”).
WHEREAS, recognizing the contributions to the profitability, growth, and financial strength of Cortland Bancorp and the Bank that the Executive has made and is expected to continue to make, intending to assure itself of the current and future continuity of management and establish minimum severance benefits for certain officers and other key employees and ensure that officers and other key employees are not practically disabled from discharging their duties if a proposed or actual transaction involving a change in control arises, and finally desiring to provide additional inducement for the Executive to remain in the employ of Cortland Bancorp and the Bank, Cortland Bancorp desires to enter into a severance agreement with the Executive,
WHEREAS, Cortland Bancorp and the Executive intend that this Agreement amend and restate in its entirety the November 24, 2015 Severance Agreement between the Executive and Cortland Bancorp, and
WHEREAS, as of the effective date of this Agreement none of the conditions or events included in the definition of the term “golden parachute payment” that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 C.F.R. 359.1(f)(1)(ii)] exists or, to the best knowledge of Cortland Bancorp, is contemplated insofar as Cortland Bancorp or any of its subsidiaries is concerned.
NOW THEREFORE, in consideration of these premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.
1. Termination after a Change in Control. (a) Cash benefit for termination after a Change in Control. If the Executive’s employment terminates involuntarily but without Cause or voluntarily but with Good Reason, in either case within 24 months after a Change in Control, five business days after the Executive’s employment termination Cortland Bancorp will pay to the Executive cash equal to two times the Executive’s compensation. For this purpose the Executive’s compensation means the sum of (x) the Executive’s base salary when the Change in Control occurs or when employment termination occurs, whichever amount is greater, including salary deferred at the Executive’s election, plus (y) any bonus awarded for the most recent whole calendar year before the year in which the Change in Control occurs or for the most recent whole calendar year before the year in which employment termination occurs, whichever amount is greater, regardless of whether the bonus is paid in the year earned and regardless of whether the bonus is vested or subject to elective deferral. The term bonus means cash or non-cash compensation of the type that under SEC rules is required to be reported by accelerated filers as bonus in the Summary Compensation Table, specifically Regulation S-K Item 402 (17 C.F.R. 229.402, currently Item 402(c)(2)(iv)). The amount payable under this section 1(a) will not be reduced to account for the time value of money or discounted to present value.
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(b) Possible payment delay because of Internal Revenue Code section 409A. If when employment termination occurs the Executive is a specified employee within the meaning of section 409A of the Internal Revenue Code of 1986, if the cash severance benefit under section 1(a) is considered deferred compensation under section 409A, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) is not available, the benefit under section 1(a) will be paid to the Executive in a single lump sum without interest on the first day of the seventh month after the month in which the Executive’s employment terminates. References in this Agreement to section 409A of the Internal Revenue Code of 1986 include rules, regulations, and guidance of general application issued by the Department of the Treasury under Internal Revenue Code section 409A.
(c) Change in Control defined. For purposes of this Agreement the term Change in Control means a change in control as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including –
(1) Change in ownership: a change in ownership of Cortland Bancorp occurs on the date any one person or group accumulates ownership of Cortland Bancorp stock constituting more than 50% of the total fair market value or total voting power of Cortland Bancorp stock,
(2) Change in effective control: (x) any one person or more than one person acting as a group acquires within a 12-month period ownership of Cortland Bancorp stock possessing 30% or more of the total voting power of Cortland Bancorp stock, or (y) a majority of Cortland Bancorp’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed in advance by a majority of Cortland Bancorp’s board of directors, or
(3) Change in ownership of a substantial portion of assets: a change in ownership of a substantial portion of Cortland Bancorp’s assets occurs if in a 12-month period any one person or more than one person acting as a group acquires from Cortland Bancorp assets having a total gross fair market value equal to or exceeding 40% of the total gross fair market value of all of Cortland Bancorp’s assets immediately before the acquisition or acquisitions. For this purpose, gross fair market value means the value of Cortland Bancorp’s assets or the value of the assets being disposed of, determined without regard to any liabilities associated with the assets.
(d) Involuntary termination with Cause defined. For purposes of this Agreement, involuntary termination of the Executive’s employment is an involuntary termination with Cause if the Executive commits any of the following acts –
(1) an act of fraud, embezzlement, or theft while employed by Cortland Bancorp or the Bank, or conviction of or plea of no contest to a felony or conviction of or plea of no contest to a misdemeanor involving moral turpitude, or the actual incarceration of the Executive for 45 consecutive days or more, or
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(2) gross negligence, insubordination, disloyalty, or dishonesty in the performance of duties as an officer of Cortland Bancorp or the Bank; willful or reckless failure to adhere to Cortland Bancorp’s or the Bank’s written policies; intentional wrongful damage to the business or property of Cortland Bancorp or the Bank, including, without limitation, its reputation, which in Cortland Bancorp’s sole judgment causes material harm to Cortland Bancorp or the Bank; breach of fiduciary duties to Cortland Bancorp and its stockholders, whether in the Executive’s capacity as an officer or as a director of Cortland Bancorp or the Bank,
(3) removal of the Executive from office or permanent prohibition of the Executive from participating in the Bank’s affairs by an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
(4) intentional wrongful disclosure of secret processes or confidential information of Cortland Bancorp or the Bank, which in Cortland Bancorp’s sole judgment causes material harm to Cortland Bancorp or the Bank, or
(5) any actions that cause the Executive to be terminated for cause under any employment agreement existing on the date hereof or hereafter entered into between the Executive and Cortland Bancorp or the Bank, or
(6) the occurrence of any event that results in the Executive being excluded from coverage, or having coverage limited for the Executive as compared to other executives of Cortland Bancorp or the Bank, under a blanket bond or other fidelity or insurance policy covering directors, officers, or employees.
For purposes of this Agreement, no act or failure to act on the Executive’s part will be considered intentional if it is due primarily to an error in judgment or negligence. An act or failure to act on the Executive’s part is intentional if it is not in good faith and if it is without a reasonable belief that the action or failure to act is in Cortland Bancorp’s best interests. Any act or failure to act based upon authority granted by resolutions duly adopted by the board of directors or based upon the advice of counsel for Cortland Bancorp is conclusively presumed to be in good faith and in Cortland Bancorp’s best interests.
(e) Voluntary termination with Good Reason defined. For purposes of this Agreement, a voluntary termination by the Executive will be considered a voluntary termination with Good Reason if the conditions stated in both clauses (x) and (y) are satisfied –
(x) a voluntary termination by the Executive is a voluntary termination with Good Reason if any of the following occur without the Executive’s advance written consent, and the term Good Reason means the occurrence of any of the following without the Executive’s advance written consent –
1) a material diminution of the Executive’s base salary,
2) a material diminution of the Executive’s authority, duties, or responsibilities,
3) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report,
4) a material diminution in the budget over which the Executive retains authority,
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5) a material change in the geographic location at which the Executive must perform services, or
6) any other action or inaction that constitutes a material breach by Cortland Bancorp of this Agreement.
(y) the Executive must give notice to Cortland Bancorp of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and Cortland Bancorp has 30 days thereafter to remedy the condition. In addition, the Executive’s voluntary termination because of the existence of one or more of the conditions described in clause (x) must occur within 24 months after the initial existence of the condition.
2. Additional Benefits after Employment Termination. (a) If the Executive’s employment terminates involuntarily but without Cause or voluntarily but with Good Reason, in either case within 24 months after a Change in Control, Cortland Bancorp will provide at Cortland Bancorp’s expense and on behalf of the Executive a benefit consisting of reimbursement by Cortland Bancorp of a portion of the Executive’s cost to continue medical, dental, accident, disability, and life insurance coverage substantially identical to the coverage maintained for the Executive at termination, except to the extent coverage may be changed in its application to all employees, including reimbursement of a portion of the Executive’s cost to obtain coverage under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) [Pub. L. 99-272, 100 Stat. 82]. Regardless of whether it is sufficient to reimburse the Executive’s entire monthly cost for continued medical, dental, accident, disability, and life insurance coverage, the amount of the Employer’s reimbursement under this section 2(a) is equal to the monthly medical, dental, accident, disability, and life insurance premium cost incurred by Cortland Bancorp and the Bank on account of the Executive’s participation in Cortland Bancorp and the Bank’s medical, dental, accident, disability, and life insurance plan in the month immediately before the month in which the Executive’s employment terminated. If providing the medical, dental, accident, disability, and life insurance coverage reimbursement benefit would result in Cortland Bancorp or any of its affiliates breaching the terms of any insurance policy with an applicable insurer or incurring any penalty or additional tax for failing to comply with any applicable law, instead of receiving the insurance coverage reimbursement benefit the Executive will be entitled to elect continuation coverage under COBRA section 4980B(f) and, beginning with the first payroll period after the first day of the seventh month after the month in which the Executive’s employment terminates, Cortland Bancorp will pay to the Executive a monthly cash amount equal to the monthly premium amount the Employer would have paid for the Executive’s medical, dental, accident, disability, and life coverage had the Executive remained actively employed, less any applicable tax withholdings (each such payment, an “Employer Payment”). The first Employer Payment will include the amount that the Executive would have received in the seven-month period after the date of employment termination had the Executive otherwise received the Employer Payments during the seven-month period. Any benefit provided by Cortland Bancorp in accordance with the preceding sentences after employment termination will not count toward the medical and dental plan’s obligation to provide continuation coverage under COBRA or any applicable provision of Cortland Bancorp and the Bank’s health plans that provide for continuing coverage for the Executive, and the last day of the post-termination period in which the Executive is entitled to the benefit under this section will be deemed to be the date of the Executive’s “qualifying event” for purposes of COBRA, provided that if application of this sentence would result in Cortland Bancorp or any of its affiliates incurring any penalty or additional tax for failing to comply with any applicable law, this section will be applied without giving effect to this sentence.
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(b) Cortland Bancorp’s obligation to pay benefits under section 2(a) will terminate on the first to occur of (w) the date the Executive becomes eligible for medical, dental, accident, disability, and life insurance coverage under plans provided by another employer, (x) the Executive’s death, or (y) 36 months after the Executive’s employment terminates. Termination of the benefit under section 2(a) does not, however, relieve Cortland Bancorp of its obligation to make a reimbursement payment due but not yet paid to the Executive. Section 2 will not be interpreted to limit any benefits to which the Executive or the Executive’s dependents or beneficiaries may be entitled under any of Cortland Bancorp and the Bank’s employee benefit plans, agreements, programs, or practices after the Executive’s employment termination, including without limitation retiree medical benefits.
3. Termination for Which No Benefits Are Payable. The Executive is not entitled to benefits under this Agreement if the Executive’s employment terminates with Cause, if the Executive dies while actively employed by Cortland Bancorp or the Bank, or if the Executive becomes totally disabled while actively employed by Cortland Bancorp or the Bank. For purposes of this Agreement, the term totally disabled means that because of injury or sickness the Executive is unable to perform the Executive’s duties. The benefits, if any, payable to the Executive or the Executive’s beneficiary or estate relating to the Executive’s death or disability will be determined solely by such benefit plans or arrangements as Cortland Bancorp or the Bank may have with the Executive relating to death or disability, not by this Agreement. This section 3 does not apply to or operate to prevent payment of special compensation to which the Executive is entitled under section 18 after employment termination.
4. Term of Agreement. The initial term of this Agreement is three years, commencing on the effective date of this Agreement first written above. On the first anniversary of the effective date of this Agreement and on each anniversary thereafter this Agreement will be extended automatically for one additional year, unless Cortland Bancorp’s board of directors gives notice to the Executive in writing at least 90 days before the anniversary that the term will not be extended. If the board of directors determines not to extend the term, the board will promptly notify the Executive. References herein to the term of this Agreement mean the initial term and extensions of the initial term. Unless terminated earlier, this Agreement terminates when the Executive attains age 65. If the board of directors decides not to extend the term of this Agreement, this Agreement nevertheless remains in force until its term expires.
5. This Agreement Is Not an Employment Contract. The parties hereto acknowledge and agree that this Agreement is not a management or employment agreement and that nothing in this Agreement gives the Executive any rights or impose any obligations to continued employment by Cortland Bancorp or the Bank or successor of Cortland Bancorp.
6. Payment of Legal Fees. Cortland Bancorp is aware that after a Change in Control management could cause or attempt to cause Cortland Bancorp to refuse to comply with its obligations under this Agreement, or could institute or cause or attempt to cause Cortland Bancorp to institute litigation seeking to have this Agreement declared unenforceable, or could take or attempt to take other action to deny Executive the benefits intended under this Agreement. In these circumstances the purpose of this Agreement would be frustrated. Cortland Bancorp desires that the Executive not be required to incur expenses associated with enforcement of rights under this Agreement, whether by litigation or other legal action, because the cost and expense thereof would substantially detract from
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the benefits intended to be granted to the Executive hereunder. Cortland Bancorp desires that the Executive not be forced to negotiate settlement of rights under this Agreement under threat of incurring expenses. Accordingly, if after a Change in Control it appears to the Executive that (x) Cortland Bancorp has failed to comply with any of its obligations under this Agreement or (y) Cortland Bancorp or any other person has taken any action to declare this Agreement void or unenforceable, or instituted any litigation or other legal action designed to deny, diminish, or to recover from the Executive the benefits intended to be provided to the Executive hereunder, Cortland Bancorp irrevocably authorizes the Executive from time to time to retain counsel of the Executive’s choice, at Cortland Bancorp’s expense as provided in this section 6, to represent the Executive in the initiation or defense of any litigation or other legal action, whether by or against Cortland Bancorp or any director, officer, stockholder, or other person affiliated with Cortland Bancorp, in any jurisdiction. Despite any existing or previous attorney-client relationship between Cortland Bancorp and any counsel chosen by the Executive under this section 6, Cortland Bancorp irrevocably consents to the Executive entering into an attorney-client relationship with that counsel, and Cortland Bancorp and the Executive agree that a confidential relationship exists between the Executive and that counsel. The fees and expenses of counsel selected from time to time by the Executive will be paid or reimbursed to the Executive by Cortland Bancorp on a regular, periodic basis upon presentation by the Executive of a statement or statements prepared by counsel in accordance with counsel’s customary practices, whether suit is brought or not, and regardless of whether incurred in trial, bankruptcy, or appellate proceedings. Cortland Bancorp’s obligation to pay the Executive’s legal fees under this section 6 operates separately from and in addition to any legal fee reimbursement obligation Cortland Bancorp may have with the Executive under any separate severance, employment, salary continuation, or other agreement. Despite anything in this Agreement to the contrary, however, Cortland Bancorp is not required to pay or reimburse the Executive’s legal expenses if doing so violates section 18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance Corporation [12 CFR 359.3].
7. Withholding of Taxes. Cortland Bancorp may withhold from any benefits payable under this Agreement all federal, state, local or other taxes as may be required by law, governmental regulation, or ruling.
8. Successors and Assigns. (a) This Agreement is binding on Cortland Bancorp’s successors. This Agreement is binding upon and enforceable by Cortland Bancorp and any successor to Cortland Bancorp, including any persons acquiring directly or indirectly all or substantially all of the business or assets of Cortland Bancorp by purchase, merger, consolidation, reorganization, or otherwise. But this Agreement and Cortland Bancorp’s obligations under this Agreement are not otherwise assignable, transferable, or delegable by Cortland Bancorp. By agreement in form and substance satisfactory to the Executive, Cortland Bancorp will require any successor to all or substantially all of the business or assets of Cortland Bancorp expressly to assume and agree to perform this Agreement in the same manner and to the same extent Cortland Bancorp would be required to perform had no succession occurred.
(b) This Agreement is enforceable by the Executive’s heirs. This Agreement inures to the benefit of and is enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributes, and legatees.
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(c) This Agreement is personal. This Agreement is personal in nature. The Executive’s right to receive payments hereunder is not assignable or transferable, whether by pledge, creation of a security interest, or otherwise, except for a transfer by Executive’s will or by the laws of descent and distribution. If the Executive attempts an assignment or transfer that is contrary to this section 8, Cortland Bancorp has no liability to pay any amount to the assignee or transferee.
9. Notices. Any notice under this Agreement will be deemed to have been effectively made or given if in writing and personally delivered, delivered by mail properly addressed in a sealed envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight delivery service, or sent by facsimile. Unless otherwise changed by notice, notice is properly addressed to the Executive if addressed to the address of the Executive on the books and records of Cortland Bancorp at the time of the delivery of the notice, and properly addressed to Cortland Bancorp if addressed to the Board of Directors, Cortland Bancorp, 194 West Main Street, Cortland, Ohio 44410, Attention: Corporate Secretary.
10. Captions and Counterparts. The headings and subheadings used in this Agreement are included solely for convenience and shall not affect the interpretation of this Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together constitute one and the same agreement.
11. Amendments and Waivers. No provision of this Agreement may be modified, waived, or discharged unless the waiver, modification, or discharge is agreed to in a writing signed by the Executive and by Cortland Bancorp. No waiver by either party hereto at any time of any breach by the other party hereto or waiver of compliance with any condition or provision of this Agreement to be performed by the other party is a waiver of other provisions or conditions at the same or at any other time.
12. Severability. The provisions of this Agreement are severable. The invalidity or unenforceability of any provision does not affect the validity or enforceability of the other provisions of this Agreement. Any provision held to be invalid or unenforceable will be reformed to the extent (and only to the extent) necessary to make it valid and enforceable.
13. Governing Law. The validity, interpretation, construction, and performance of this Agreement are governed by and construed in accordance with the substantive laws of the State of Ohio, without giving effect to the principles of conflict of laws of the State of Ohio.
14. Entire Agreement. This Agreement constitutes the entire agreement between Cortland Bancorp and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth. No agreements or representations, oral or otherwise, expressed or implied concerning the subject matter have been made by either party that are not set forth expressly in this Agreement. As of the effective date of this Agreement the November 24, 2015 Severance Agreement is void and of no force or effect.
15. No Mitigation Required. Cortland Bancorp hereby acknowledges that it will be difficult and could be impossible (x) for the Executive to find reasonably comparable employment after termination and (y) to measure the amount of damages the Executive suffers because of termination. Additionally, Cortland Bancorp acknowledges that its general severance pay plans do not
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provide for mitigation, offset, or reduction of any severance payment received thereunder. Cortland Bancorp further acknowledges that the payment of benefits by Cortland Bancorp under this Agreement is reasonable and will be liquidated damages. The Executive is not required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor will any profits, income, earnings, or other benefits from any source whatsoever create any mitigation, offset, reduction, or any other obligation on the part of the Executive hereunder or otherwise.
16. Internal Revenue Code Section 409A. Cortland Bancorp and the Executive intend that their exercise of authority or discretion under this Agreement comply with section 409A of the Internal Revenue Code of 1986. If when the Executive’s employment terminates the Executive is a specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if any payments or benefits under this Agreement will result in additional tax or interest to the Executive because of section 409A, then despite any provision of this Agreement to the contrary the Executive is not entitled to the payments or benefits until the earliest of (x) the date that is at least six months after termination of the Executive’s employment for reasons other than the Executive’s death, (y) the date of the Executive’s death, or (z) any earlier date that does not result in additional tax or interest to the Executive under section 409A. As promptly as possible after the end of the period during which payments or benefits are delayed under this provision, the entire amount of the delayed payments will be paid to the Executive in a single lump sum. If any provision of this Agreement does not satisfy the requirements of section 409A, the provision will nevertheless be applied in a manner consistent with those requirements. If any provision of this Agreement would subject the Executive to additional tax or interest under section 409A, Cortland Bancorp will reform the provision. However, Cortland Bancorp will maintain to the maximum extent practicable the original intent of the applicable provision without subjecting the Executive to additional tax or interest, and Cortland Bancorp is not required to incur any additional compensation expense as a result of the reformed provision. References in this Agreement to section 409A of the Internal Revenue Code of 1986 include rules, regulations, and guidance of general application issued by the Department of the Treasury under Internal Revenue Code section 409A.
17. No Violation of Golden Parachute Rules. Cortland Bancorp, the Bank, and the Executive acknowledge and agree that any payment to the Executive under this Agreement and any agreement to make a payment to the Executive are or may be subject to the golden parachute limitations of 12 U.S.C. 1828(k) and FDIC rules at 12 C.F.R. Part 359. Cortland Bancorp, the Bank, and the Executive acknowledge and agree that if any payment or agreement to make a payment under this Agreement would be considered a golden parachute payment under 12 C.F.R. 359.1(f), neither Cortland Bancorp nor the Bank has a contractual or other obligation to make the payment to the Executive, and the agreement to make the payment is void, unless (x) the payment receives the prior approval of the appropriate Federal banking agency, if required at that time by 12 U.S.C. section 1828(k), 12 C.F.R. Part 359, or other federal or state laws, rules or regulations, and (y) the obligation and the payment comply in all other respects with 12 U.S.C. section 1828(k), 12 C.F.R. Part 359, and other federal and state laws, rules or regulations, to the extent applicable at the time.
18. Restrictions on the Executive’s Post-Employment Activities. The restrictions in this section 18 have been negotiated, presented to, and accepted by the Executive contemporaneous with the offer and acceptance by the Executive of this Agreement. Cortland Bancorp’s decision to enter into this Agreement is conditioned upon the Executive’s agreement to be bound by the restrictions contained in this section 18.
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(a) Promise of no solicitation. The Executive promises and agrees that during the Restricted Period (as defined below) and in the Restricted Territory (as defined below) the Executive will1:
1. not directly or indirectly solicit or attempt to solicit any Customer (as defined below) to accept or purchase Financial Products or Services (as defined below) of the same nature, kind, or variety as provided to the Customer by the Bank during the two years immediately before the Executive’s employment termination with the Bank,
2. not directly or indirectly influence or attempt to influence any Customer, joint venturer, or other business partner of the Bank to alter that person or entity’s business relationship with the Bank in any respect, and
3. not accept the Financial Products or Services business of any Customer or provide Financial Products or Services to any Customer on behalf of anyone other than the Bank.
(b) Promise of no competition. The Executive promises and agrees that during the Restricted Period in the Restricted Territory the Executive will not engage, undertake, or participate in the business of providing, selling, marketing, or distributing Financial Products or Services of a similar nature, kind, or variety (x) as offered by the Bank to Customers during the two years immediately before the Executive’s employment termination with the Bank, or (y) as offered by the Bank to any of its Customers during the Restricted Period.2 Subject to the above provisions and conditions of this subparagraph (b), the Executive promises that during the Restricted Period the Executive will not become employed by or serve as a director, partner, consultant, agent, or owner of 5% or more of the outstanding stock of or contractor to any entity providing these prohibited Financial Products or Services that is located in or conducts business in the Restricted Territory.
(c) Promise of no raiding/hiring. The Executive promises and agrees that during the Restricted Period the Executive will not solicit or attempt to solicit and will not encourage or induce in any way any employee, joint venturer, or business partner of Cortland Bancorp or the Bank to terminate an employment or contractual relationship with Cortland Bancorp or the Bank. The Executive agrees that the Executive will not hire any person employed by Cortland Bancorp or the Bank during the two-year period before the Executive’s employment termination with the Bank or any person employed by Cortland Bancorp or the Bank during the Restricted Period.
(d) Promise of no disparagement. The Executive promises and agrees that during the Restricted Period the Executive will not cause statements to be made (whether written or oral) that reflect negatively on the business reputation of Cortland Bancorp or the Bank. Cortland Bancorp and the Bank likewise promise and agree that during the Restricted Period Cortland Bancorp and the Bank will not cause statements to be made (whether written or oral) that reflect negatively on the reputation of the Executive.
| 1 | For example, the promise of no solicitation applies if the Executive is conducting prohibited business in the Restricted Territory or if the entity with, for, or to whom the Executive is conducting prohibited business is located within the Restricted Territory. |
| 2 | For example, the promise of no competition applies if the Executive is conducting prohibited business in the Restricted Territory or if the entity with, for, or to whom the Executive is conducting prohibited business is located within the Restricted Territory. |
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(e) Acknowledgment. The Executive and Cortland Bancorp acknowledge and agree that the provisions of this section 18 have been negotiated and carefully determined to be reasonable and necessary for the protection of legitimate business interests of Cortland Bancorp and the Bank. Both parties agree that a violation of section 18 is likely to cause immediate and irreparable harm that will give rise to the need for court ordered injunctive relief. If a breach or threatened breach by the Executive of any provision of this Agreement occurs, Cortland Bancorp, including its successors and assigns, is entitled to obtain an injunction without bond restraining the Executive from violating the terms of this Agreement and to institute an action against the Executive to recover damages from the Executive for the breach. These remedies for default or breach are in addition to any other remedy or form of redress provided under Ohio law. The parties acknowledge that the provisions of this section 18 survive termination of the employment relationship and are enforceable by Cortland Bancorp and Cortland Bancorp’s successors and assigns. The parties agree that if any of the provisions of this section 18 are deemed unenforceable by a court of competent jurisdiction, the unenforceable provisions may be stricken as independent clauses by the court in order to enforce the remaining territory restrictions and that the intent of the parties is to afford the broadest restriction on post-employment activities as set forth in this Agreement. Without limiting the generality of the foregoing, without limiting the remedies available to Cortland Bancorp for violation of this Agreement, and without constituting an election of remedies, if the Executive violates any of the terms of section 18 the Executive forfeits on the Executive’s own behalf and that of beneficiary(ies) any rights to and interest in any severance or other benefits under this Agreement or other contract the Executive has with Cortland Bancorp or the Bank.
(f) Definitions:
1. “Restricted Period,” as used herein, means the one-year period immediately after the Executive’s termination and/or separation of employment with Cortland Bancorp or the Bank, regardless of the reason for termination and/or separation and regardless of whether the term of this Agreement expires before the Executive’s employment termination or expires under section 5 during the one-year period immediately after the Executive’s termination and/or separation of employment with the Bank. The Restricted Period will be extended in an amount equal to any time period during which a violation of section 18 of this Agreement is proven.
2. “Restricted Territory,” as used herein, means all of Trumbull, Portage, and Mahoning Counties in Ohio.
3. “Customer,” as used herein, means any individual, joint venturer, entity of any sort, or other business partner of Cortland Bancorp or the Bank with, for, or to whom Cortland Bancorp or the Bank has provided Financial Products or Services during the last two years of the Executive’s employment with Cortland Bancorp or the Bank, or any individual, joint venturer, entity of any sort, or business partner whom Cortland Bancorp or the Bank has identified as a prospective customer of Financial Products or Services within the last two years of the Executive’s employment with Cortland Bancorp or the Bank.
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4. “Financial Products or Services,” as used herein, means any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under section 4(k) of the Bank Holding Company Act of 1956 and that is offered by Cortland Bancorp or the Bank or an affiliate on the date of the Executive’s employment termination, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type of which the Executive was involved during the Executive’s employment with Cortland Bancorp or the Bank.
(g) Special compensation. The Executive and Cortland Bancorp acknowledge and agree that the post-employment restrictions in this section 18 apply in the Restricted Period without regard to whether a Change in Control has previously occurred. Because the Executive may be subject to the post-employment restrictions of this section 18 without also being entitled to Change-in-Control benefits under this Agreement, Cortland Bancorp hereby agrees that the Executive is entitled to one times compensation, as the term compensation is defined in section 1(a), under this section 18(g), payable in a single lump sum, without reduction to account for the time value of money or discounting to present value, except that the Executive is not entitled to any compensation under this section 18(g) if (x) the Executive is entitled to receive or has received Change-in-Control compensation under this Agreement or (y) the Executive’s employment termination is on account of retirement or occurs after the Executive attains age 65. The provisions of section 3, prohibiting payment of severance in specified cases, do not apply to or operate to prevent payment of special compensation to which the Executive is entitled under this section 18 after employment termination.
The special compensation payable under this section 18(g) will be paid to the Executive five days after the Executive’s employment termination, but if when the Executive’s employment terminates the Executive is a specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if the special compensation payable under this section 18(g) would be considered nonqualified deferred compensation under section 409A, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) is not available, rather than being payable five days after employment termination the special compensation payable under this section 18(g) will be paid to the Executive in a single lump sum without interest on the first day of the seventh month after the month in which the Executive’s employment terminates.
(h) Enforcement by successors. The provisions of this section are binding upon and enforceable by Cortland Bancorp and any successor to Cortland Bancorp, including any person acquiring directly or indirectly all or substantially all of the business, assets, or stock of Cortland Bancorp by purchase, merger, consolidation, reorganization, or otherwise. The Executive’s consent is not necessary for any assignment or transfer of the rights and obligations of this section that occurs or is deemed to occur as the result of any person acquiring directly or indirectly all or substantially all of the business, assets, or stock of Cortland Bancorp by purchase, merger, consolidation, reorganization, or otherwise.
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IN WITNESS WHEREOF, the parties have executed this Amended Severance Agreement as of the date first written above.
| EXECUTIVE | CORTLAND BANCORP | |||||||
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By: |
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| David J. Lucido | James M. Gasior | |||||||
| Its: | President and Chief Executive Officer | |||||||
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EXHIBIT 10.34
AMENDED SEVERANCE AGREEMENT
This AMENDED SEVERANCE AGREEMENT (this “Agreement”) is entered into and is effective as of , 2018 by and between Cortland Bancorp, an Ohio corporation, and Stanley P. Feret (the “Executive”), Senior Vice President and Chief Lending Officer of The Cortland Savings and Banking Company, an Ohio-chartered bank and wholly owned subsidiary of Cortland Bancorp (the “Bank”).
WHEREAS, recognizing the contributions to the profitability, growth, and financial strength of Cortland Bancorp and the Bank that the Executive has made and is expected to continue to make, intending to assure itself of the current and future continuity of management and establish minimum severance benefits for certain officers and other key employees and ensure that officers and other key employees are not practically disabled from discharging their duties if a proposed or actual transaction involving a change in control arises, and finally desiring to provide additional inducement for the Executive to remain in the employ of Cortland Bancorp and the Bank, Cortland Bancorp desires to enter into a severance agreement with the Executive,
WHEREAS, Cortland Bancorp and the Executive intend that this Agreement amend and restate in its entirety the November 24, 2015 Severance Agreement between the Executive and Cortland Bancorp, and
WHEREAS, as of the effective date of this Agreement none of the conditions or events included in the definition of the term “golden parachute payment” that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 C.F.R. 359.1(f)(1)(ii)] exists or, to the best knowledge of Cortland Bancorp, is contemplated insofar as Cortland Bancorp or any of its subsidiaries is concerned.
NOW THEREFORE, in consideration of these premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.
1. Termination after a Change in Control. (a) Cash benefit for termination after a Change in Control. If the Executive’s employment terminates involuntarily but without Cause or voluntarily but with Good Reason, in either case within 24 months after a Change in Control, five business days after the Executive’s employment termination Cortland Bancorp will pay to the Executive cash equal to two times the Executive’s compensation. For this purpose the Executive’s compensation means the sum of (x) the Executive’s base salary when the Change in Control occurs or when employment termination occurs, whichever amount is greater, including salary deferred at the Executive’s election, plus (y) any bonus awarded for the most recent whole calendar year before the year in which the Change in Control occurs or for the most recent whole calendar year before the year in which employment termination occurs, whichever amount is greater, regardless of whether the bonus is paid in the year earned and regardless of whether the bonus is vested or subject to elective deferral. The term bonus means cash or non-cash compensation of the type that under SEC rules is required to be reported by accelerated filers as bonus in the Summary Compensation Table, specifically Regulation S-K Item 402 (17 C.F.R. 229.402, currently Item 402(c)(2)(iv)). The amount payable under this section 1(a) will not be reduced to account for the time value of money or discounted to present value.
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(b) Possible payment delay because of Internal Revenue Code section 409A. If when employment termination occurs the Executive is a specified employee within the meaning of section 409A of the Internal Revenue Code of 1986, if the cash severance benefit under section 1(a) is considered deferred compensation under section 409A, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) is not available, the benefit under section 1(a) will be paid to the Executive in a single lump sum without interest on the first day of the seventh month after the month in which the Executive’s employment terminates. References in this Agreement to section 409A of the Internal Revenue Code of 1986 include rules, regulations, and guidance of general application issued by the Department of the Treasury under Internal Revenue Code section 409A.
(c) Change in Control defined. For purposes of this Agreement the term Change in Control means a change in control as defined in Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including –
(1) Change in ownership: a change in ownership of Cortland Bancorp occurs on the date any one person or group accumulates ownership of Cortland Bancorp stock constituting more than 50% of the total fair market value or total voting power of Cortland Bancorp stock,
(2) Change in effective control: (x) any one person or more than one person acting as a group acquires within a 12-month period ownership of Cortland Bancorp stock possessing 30% or more of the total voting power of Cortland Bancorp stock, or (y) a majority of Cortland Bancorp’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed in advance by a majority of Cortland Bancorp’s board of directors, or
(3) Change in ownership of a substantial portion of assets: a change in ownership of a substantial portion of Cortland Bancorp’s assets occurs if in a 12-month period any one person or more than one person acting as a group acquires from Cortland Bancorp assets having a total gross fair market value equal to or exceeding 40% of the total gross fair market value of all of Cortland Bancorp’s assets immediately before the acquisition or acquisitions. For this purpose, gross fair market value means the value of Cortland Bancorp’s assets or the value of the assets being disposed of, determined without regard to any liabilities associated with the assets.
(d) Involuntary termination with Cause defined. For purposes of this Agreement, involuntary termination of the Executive’s employment is an involuntary termination with Cause if the Executive commits any of the following acts –
(1) an act of fraud, embezzlement, or theft while employed by Cortland Bancorp or the Bank, or conviction of or plea of no contest to a felony or conviction of or plea of no contest to a misdemeanor involving moral turpitude, or the actual incarceration of the Executive for 45 consecutive days or more, or
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(2) gross negligence, insubordination, disloyalty, or dishonesty in the performance of duties as an officer of Cortland Bancorp or the Bank; willful or reckless failure to adhere to
Cortland Bancorp’s or the Bank’s written policies; intentional wrongful damage to the business or property of Cortland Bancorp or the Bank, including, without limitation, its reputation, which in Cortland Bancorp’s sole judgment causes material harm to Cortland Bancorp or the Bank; breach of fiduciary duties to Cortland Bancorp and its stockholders, whether in the Executive’s capacity as an officer or as a director of Cortland Bancorp or the Bank,
(3) removal of the Executive from office or permanent prohibition of the Executive from participating in the Bank’s affairs by an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
(4) intentional wrongful disclosure of secret processes or confidential information of Cortland Bancorp or the Bank, which in Cortland Bancorp’s sole judgment causes material harm to Cortland Bancorp or the Bank, or
(5) any actions that cause the Executive to be terminated for cause under any employment agreement existing on the date hereof or hereafter entered into between the Executive and Cortland Bancorp or the Bank, or
(6) the occurrence of any event that results in the Executive being excluded from coverage, or having coverage limited for the Executive as compared to other executives of Cortland Bancorp or the Bank, under a blanket bond or other fidelity or insurance policy covering directors, officers, or employees.
For purposes of this Agreement, no act or failure to act on the Executive’s part will be considered intentional if it is due primarily to an error in judgment or negligence. An act or failure to act on the Executive’s part is intentional if it is not in good faith and if it is without a reasonable belief that the action or failure to act is in Cortland Bancorp’s best interests. Any act or failure to act based upon authority granted by resolutions duly adopted by the board of directors or based upon the advice of counsel for Cortland Bancorp is conclusively presumed to be in good faith and in Cortland Bancorp’s best interests.
(e) Voluntary termination with Good Reason defined. For purposes of this Agreement, a voluntary termination by the Executive will be considered a voluntary termination with Good Reason if the conditions stated in both clauses (x) and (y) are satisfied –
(x) a voluntary termination by the Executive is a voluntary termination with Good Reason if any of the following occur without the Executive’s advance written consent, and the term Good Reason means the occurrence of any of the following without the Executive’s advance written consent –
1) a material diminution of the Executive’s base salary,
2) a material diminution of the Executive’s authority, duties, or responsibilities,
3) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report,
4) a material diminution in the budget over which the Executive retains authority,
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5) a material change in the geographic location at which the Executive must perform services, or
6) any other action or inaction that constitutes a material breach by Cortland Bancorp of this Agreement.
(y) the Executive must give notice to Cortland Bancorp of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and Cortland Bancorp has 30 days thereafter to remedy the condition. In addition, the Executive’s voluntary termination because of the existence of one or more of the conditions described in clause (x) must occur within 24 months after the initial existence of the condition.
2. Additional Benefits after Employment Termination. (a) If the Executive’s employment terminates involuntarily but without Cause or voluntarily but with Good Reason, in either case within 24 months after a Change in Control, Cortland Bancorp will provide at Cortland Bancorp’s expense and on behalf of the Executive a benefit consisting of reimbursement by Cortland Bancorp of a portion of the Executive’s cost to continue medical, dental, accident, disability, and life insurance coverage substantially identical to the coverage maintained for the Executive at termination, except to the extent coverage may be changed in its application to all employees, including reimbursement of a portion of the Executive’s cost to obtain coverage under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) [Pub. L. 99-272, 100 Stat. 82]. Regardless of whether it is sufficient to reimburse the Executive’s entire monthly cost for continued medical, dental, accident, disability, and life insurance coverage, the amount of the Employer’s reimbursement under this section 2(a) is equal to the monthly medical, dental, accident, disability, and life insurance premium cost incurred by Cortland Bancorp and the Bank on account of the Executive’s participation in Cortland Bancorp and the Bank’s medical, dental, accident, disability, and life insurance plan in the month immediately before the month in which the Executive’s employment terminated. If providing the medical, dental, accident, disability, and life insurance coverage reimbursement benefit would result in Cortland Bancorp or any of its affiliates breaching the terms of any insurance policy with an applicable insurer or incurring any penalty or additional tax for failing to comply with any applicable law, instead of receiving the insurance coverage reimbursement benefit the Executive will be entitled to elect continuation coverage under COBRA section 4980B(f) and, beginning with the first payroll period after the first day of the seventh month after the month in which the Executive’s employment terminates, Cortland Bancorp will pay to the Executive a monthly cash amount equal to the monthly premium amount the Employer would have paid for the Executive’s medical, dental, accident, disability, and life coverage had the Executive remained actively employed, less any applicable tax withholdings (each such payment, an “Employer Payment”). The first Employer Payment will include the amount that the Executive would have received in the seven-month period after the date of employment termination had the Executive otherwise received the Employer Payments during the seven-month period. Any benefit provided by Cortland Bancorp in accordance with the preceding sentences after employment termination will not count toward the medical and dental plan’s obligation to provide continuation coverage under COBRA or any applicable provision of Cortland Bancorp and the Bank’s health plans that provide for continuing coverage for the Executive, and the last day of the post-termination period in which the Executive is entitled to the benefit under this section will be deemed to be the date of the Executive’s “qualifying event” for purposes of COBRA, provided that if application of this sentence would result in Cortland Bancorp or any of its affiliates incurring any penalty or additional tax for failing to comply with any applicable law, this section will be applied without giving effect to this sentence.
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(b) Cortland Bancorp’s obligation to pay benefits under section 2(a) will terminate on the first to occur of (w) the date the Executive becomes eligible for medical, dental, accident, disability, and life insurance coverage under plans provided by another employer, (x) the Executive’s death, or (y) 36 months after the Executive’s employment terminates. Termination of the benefit under section 2(a) does not, however, relieve Cortland Bancorp of its obligation to make a reimbursement payment due but not yet paid to the Executive. Section 2 will not be interpreted to limit any benefits to which the Executive or the Executive’s dependents or beneficiaries may be entitled under any of Cortland Bancorp and the Bank’s employee benefit plans, agreements, programs, or practices after the Executive’s employment termination, including without limitation retiree medical benefits.
3. Termination for Which No Benefits Are Payable. The Executive is not entitled to benefits under this Agreement if the Executive’s employment terminates with Cause, if the Executive dies while actively employed by Cortland Bancorp or the Bank, or if the Executive becomes totally disabled while actively employed by Cortland Bancorp or the Bank. For purposes of this Agreement, the term totally disabled means that because of injury or sickness the Executive is unable to perform the Executive’s duties. The benefits, if any, payable to the Executive or the Executive’s beneficiary or estate relating to the Executive’s death or disability will be determined solely by such benefit plans or arrangements as Cortland Bancorp or the Bank may have with the Executive relating to death or disability, not by this Agreement. This section 3 does not apply to or operate to prevent payment of special compensation to which the Executive is entitled under section 18 after employment termination.
4. Term of Agreement. The initial term of this Agreement is three years, commencing on the effective date of this Agreement first written above. On the first anniversary of the effective date of this Agreement and on each anniversary thereafter this Agreement will be extended automatically for one additional year, unless Cortland Bancorp’s board of directors gives notice to the Executive in writing at least 90 days before the anniversary that the term will not be extended. If the board of directors determines not to extend the term, the board will promptly notify the Executive. References herein to the term of this Agreement mean the initial term and extensions of the initial term. Unless terminated earlier, this Agreement terminates when the Executive attains age 65. If the board of directors decides not to extend the term of this Agreement, this Agreement nevertheless remains in force until its term expires.
5. This Agreement Is Not an Employment Contract. The parties hereto acknowledge and agree that this Agreement is not a management or employment agreement and that nothing in this Agreement gives the Executive any rights or impose any obligations to continued employment by Cortland Bancorp or the Bank or successor of Cortland Bancorp.
6. Payment of Legal Fees. Cortland Bancorp is aware that after a Change in Control management could cause or attempt to cause Cortland Bancorp to refuse to comply with its obligations under this Agreement, or could institute or cause or attempt to cause Cortland Bancorp to institute litigation seeking to have this Agreement declared unenforceable, or could take or attempt to take other action to deny Executive the benefits intended under this Agreement. In these circumstances the purpose of this Agreement would be frustrated. Cortland Bancorp desires that the Executive not be required to incur expenses associated with enforcement of rights under this Agreement, whether by litigation or other legal action, because the cost and expense thereof would substantially detract from
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the benefits intended to be granted to the Executive hereunder. Cortland Bancorp desires that the Executive not be forced to negotiate settlement of rights under this Agreement under threat of incurring expenses. Accordingly, if after a Change in Control it appears to the Executive that (x) Cortland Bancorp has failed to comply with any of its obligations under this Agreement or (y) Cortland Bancorp or any other person has taken any action to declare this Agreement void or unenforceable, or instituted any litigation or other legal action designed to deny, diminish, or to recover from the Executive the benefits intended to be provided to the Executive hereunder, Cortland Bancorp irrevocably authorizes the Executive from time to time to retain counsel of the Executive’s choice, at Cortland Bancorp’s expense as provided in this section 6, to represent the Executive in the initiation or defense of any litigation or other legal action, whether by or against Cortland Bancorp or any director, officer, stockholder, or other person affiliated with Cortland Bancorp, in any jurisdiction. Despite any existing or previous attorney-client relationship between Cortland Bancorp and any counsel chosen by the Executive under this section 6, Cortland Bancorp irrevocably consents to the Executive entering into an attorney-client relationship with that counsel, and Cortland Bancorp and the Executive agree that a confidential relationship exists between the Executive and that counsel. The fees and expenses of counsel selected from time to time by the Executive will be paid or reimbursed to the Executive by Cortland Bancorp on a regular, periodic basis upon presentation by the Executive of a statement or statements prepared by counsel in accordance with counsel’s customary practices, whether suit is brought or not, and regardless of whether incurred in trial, bankruptcy, or appellate proceedings. Cortland Bancorp’s obligation to pay the Executive’s legal fees under this section 6 operates separately from and in addition to any legal fee reimbursement obligation Cortland Bancorp may have with the Executive under any separate severance, employment, salary continuation, or other agreement. Despite anything in this Agreement to the contrary, however, Cortland Bancorp is not required to pay or reimburse the Executive’s legal expenses if doing so violates section 18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance Corporation [12 CFR 359.3].
7. Withholding of Taxes. Cortland Bancorp may withhold from any benefits payable under this Agreement all federal, state, local or other taxes as may be required by law, governmental regulation, or ruling.
8. Successors and Assigns. (a) This Agreement is binding on Cortland Bancorp’s successors. This Agreement is binding upon and enforceable by Cortland Bancorp and any successor to Cortland Bancorp, including any persons acquiring directly or indirectly all or substantially all of the business or assets of Cortland Bancorp by purchase, merger, consolidation, reorganization, or otherwise. But this Agreement and Cortland Bancorp’s obligations under this Agreement are not otherwise assignable, transferable, or delegable by Cortland Bancorp. By agreement in form and substance satisfactory to the Executive, Cortland Bancorp will require any successor to all or substantially all of the business or assets of Cortland Bancorp expressly to assume and agree to perform this Agreement in the same manner and to the same extent Cortland Bancorp would be required to perform had no succession occurred.
(b) This Agreement is enforceable by the Executive’s heirs. This Agreement inures to the benefit of and is enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributes, and legatees.
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(c) This Agreement is personal. This Agreement is personal in nature. The Executive’s right to receive payments hereunder is not assignable or transferable, whether by pledge, creation of a security interest, or otherwise, except for a transfer by Executive’s will or by the laws of descent and distribution. If the Executive attempts an assignment or transfer that is contrary to this section 8, Cortland Bancorp has no liability to pay any amount to the assignee or transferee.
9. Notices. Any notice under this Agreement will be deemed to have been effectively made or given if in writing and personally delivered, delivered by mail properly addressed in a sealed envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight delivery service, or sent by facsimile. Unless otherwise changed by notice, notice is properly addressed to the Executive if addressed to the address of the Executive on the books and records of Cortland Bancorp at the time of the delivery of the notice, and properly addressed to Cortland Bancorp if addressed to the Board of Directors, Cortland Bancorp, 194 West Main Street, Cortland, Ohio 44410, Attention: Corporate Secretary.
10. Captions and Counterparts. The headings and subheadings used in this Agreement are included solely for convenience and shall not affect the interpretation of this Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together constitute one and the same agreement.
11. Amendments and Waivers. No provision of this Agreement may be modified, waived, or discharged unless the waiver, modification, or discharge is agreed to in a writing signed by the Executive and by Cortland Bancorp. No waiver by either party hereto at any time of any breach by the other party hereto or waiver of compliance with any condition or provision of this Agreement to be performed by the other party is a waiver of other provisions or conditions at the same or at any other time.
12. Severability. The provisions of this Agreement are severable. The invalidity or unenforceability of any provision does not affect the validity or enforceability of the other provisions of this Agreement. Any provision held to be invalid or unenforceable will be reformed to the extent (and only to the extent) necessary to make it valid and enforceable.
13. Governing Law. The validity, interpretation, construction, and performance of this Agreement are governed by and construed in accordance with the substantive laws of the State of Ohio, without giving effect to the principles of conflict of laws of the State of Ohio.
14. Entire Agreement. This Agreement constitutes the entire agreement between Cortland Bancorp and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth. No agreements or representations, oral or otherwise, expressed or implied concerning the subject matter have been made by either party that are not set forth expressly in this Agreement. As of the effective date of this Agreement the November 24, 2015 Severance Agreement is void and of no force or effect.
15. No Mitigation Required. Cortland Bancorp hereby acknowledges that it will be difficult and could be impossible (x) for the Executive to find reasonably comparable employment after termination and (y) to measure the amount of damages the Executive suffers because of termination. Additionally, Cortland Bancorp acknowledges that its general severance pay plans do not
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provide for mitigation, offset, or reduction of any severance payment received thereunder. Cortland Bancorp further acknowledges that the payment of benefits by Cortland Bancorp under this Agreement is reasonable and will be liquidated damages. The Executive is not required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor will any profits, income, earnings, or other benefits from any source whatsoever create any mitigation, offset, reduction, or any other obligation on the part of the Executive hereunder or otherwise.
16. Internal Revenue Code Section 409A. Cortland Bancorp and the Executive intend that their exercise of authority or discretion under this Agreement comply with section 409A of the Internal Revenue Code of 1986. If when the Executive’s employment terminates the Executive is a specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if any payments or benefits under this Agreement will result in additional tax or interest to the Executive because of section 409A, then despite any provision of this Agreement to the contrary the Executive is not entitled to the payments or benefits until the earliest of (x) the date that is at least six months after termination of the Executive’s employment for reasons other than the Executive’s death, (y) the date of the Executive’s death, or (z) any earlier date that does not result in additional tax or interest to the Executive under section 409A. As promptly as possible after the end of the period during which payments or benefits are delayed under this provision, the entire amount of the delayed payments will be paid to the Executive in a single lump sum. If any provision of this Agreement does not satisfy the requirements of section 409A, the provision will nevertheless be applied in a manner consistent with those requirements. If any provision of this Agreement would subject the Executive to additional tax or interest under section 409A, Cortland Bancorp will reform the provision. However, Cortland Bancorp will maintain to the maximum extent practicable the original intent of the applicable provision without subjecting the Executive to additional tax or interest, and Cortland Bancorp is not required to incur any additional compensation expense as a result of the reformed provision. References in this Agreement to section 409A of the Internal Revenue Code of 1986 include rules, regulations, and guidance of general application issued by the Department of the Treasury under Internal Revenue Code section 409A.
17. No Violation of Golden Parachute Rules. Cortland Bancorp, the Bank, and the Executive acknowledge and agree that any payment to the Executive under this Agreement and any agreement to make a payment to the Executive are or may be subject to the golden parachute limitations of 12 U.S.C. 1828(k) and FDIC rules at 12 C.F.R. Part 359. Cortland Bancorp, the Bank, and the Executive acknowledge and agree that if any payment or agreement to make a payment under this Agreement would be considered a golden parachute payment under 12 C.F.R. 359.1(f), neither Cortland Bancorp nor the Bank has a contractual or other obligation to make the payment to the Executive, and the agreement to make the payment is void, unless (x) the payment receives the prior approval of the appropriate Federal banking agency, if required at that time by 12 U.S.C. section 1828(k), 12 C.F.R. Part 359, or other federal or state laws, rules or regulations, and (y) the obligation and the payment comply in all other respects with 12 U.S.C. section 1828(k), 12 C.F.R. Part 359, and other federal and state laws, rules or regulations, to the extent applicable at the time.
18. Restrictions on the Executive’s Post-Employment Activities. The restrictions in this section 18 have been negotiated, presented to, and accepted by the Executive contemporaneous with the offer and acceptance by the Executive of this Agreement. Cortland Bancorp’s decision to enter into this Agreement is conditioned upon the Executive’s agreement to be bound by the restrictions contained in this section 18.
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(a) Promise of no solicitation. The Executive promises and agrees that during the Restricted Period (as defined below) and in the Restricted Territory (as defined below) the Executive will1:
1. not directly or indirectly solicit or attempt to solicit any Customer (as defined below) to accept or purchase Financial Products or Services (as defined below) of the same nature, kind, or variety as provided to the Customer by the Bank during the two years immediately before the Executive’s employment termination with the Bank,
2. not directly or indirectly influence or attempt to influence any Customer, joint venturer, or other business partner of the Bank to alter that person or entity’s business relationship with the Bank in any respect, and
3. not accept the Financial Products or Services business of any Customer or provide Financial Products or Services to any Customer on behalf of anyone other than the Bank.
(b) Promise of no competition. The Executive promises and agrees that during the Restricted Period in the Restricted Territory the Executive will not engage, undertake, or participate in the business of providing, selling, marketing, or distributing Financial Products or Services of a similar nature, kind, or variety (x) as offered by the Bank to Customers during the two years immediately before the Executive’s employment termination with the Bank, or (y) as offered by the Bank to any of its Customers during the Restricted Period.2 Subject to the above provisions and conditions of this subparagraph (b), the Executive promises that during the Restricted Period the Executive will not become employed by or serve as a director, partner, consultant, agent, or owner of 5% or more of the outstanding stock of or contractor to any entity providing these prohibited Financial Products or Services that is located in or conducts business in the Restricted Territory.
(c) Promise of no raiding/hiring. The Executive promises and agrees that during the Restricted Period the Executive will not solicit or attempt to solicit and will not encourage or induce in any way any employee, joint venturer, or business partner of Cortland Bancorp or the Bank to terminate an employment or contractual relationship with Cortland Bancorp or the Bank. The Executive agrees that the Executive will not hire any person employed by Cortland Bancorp or the Bank during the two-year period before the Executive’s employment termination with the Bank or any person employed by Cortland Bancorp or the Bank during the Restricted Period.
(d) Promise of no disparagement. The Executive promises and agrees that during the Restricted Period the Executive will not cause statements to be made (whether written or oral) that reflect negatively on the business reputation of Cortland Bancorp or the Bank. Cortland Bancorp and the Bank likewise promise and agree that during the Restricted Period Cortland Bancorp and the Bank will not cause statements to be made (whether written or oral) that reflect negatively on the reputation of the Executive.
| 1 | For example, the promise of no solicitation applies if the Executive is conducting prohibited business in the Restricted Territory or if the entity with, for, or to whom the Executive is conducting prohibited business is located within the Restricted Territory. |
| 2 | For example, the promise of no competition applies if the Executive is conducting prohibited business in the Restricted Territory or if the entity with, for, or to whom the Executive is conducting prohibited business is located within the Restricted Territory. |
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(e) Acknowledgment. The Executive and Cortland Bancorp acknowledge and agree that the provisions of this section 18 have been negotiated and carefully determined to be reasonable and necessary for the protection of legitimate business interests of Cortland Bancorp and the Bank. Both parties agree that a violation of section 18 is likely to cause immediate and irreparable harm that will give rise to the need for court ordered injunctive relief. If a breach or threatened breach by the Executive of any provision of this Agreement occurs, Cortland Bancorp, including its successors and assigns, is entitled to obtain an injunction without bond restraining the Executive from violating the terms of this Agreement and to institute an action against the Executive to recover damages from the Executive for the breach. These remedies for default or breach are in addition to any other remedy or form of redress provided under Ohio law. The parties acknowledge that the provisions of this section 18 survive termination of the employment relationship and are enforceable by Cortland Bancorp and Cortland Bancorp’s successors and assigns. The parties agree that if any of the provisions of this section 18 are deemed unenforceable by a court of competent jurisdiction, the unenforceable provisions may be stricken as independent clauses by the court in order to enforce the remaining territory restrictions and that the intent of the parties is to afford the broadest restriction on post-employment activities as set forth in this Agreement. Without limiting the generality of the foregoing, without limiting the remedies available to Cortland Bancorp for violation of this Agreement, and without constituting an election of remedies, if the Executive violates any of the terms of section 18 the Executive forfeits on the Executive’s own behalf and that of beneficiary(ies) any rights to and interest in any severance or other benefits under this Agreement or other contract the Executive has with Cortland Bancorp or the Bank.
(f) Definitions:
1. “Restricted Period,” as used herein, means the one-year period immediately after the Executive’s termination and/or separation of employment with Cortland Bancorp or the Bank, regardless of the reason for termination and/or separation and regardless of whether the term of this Agreement expires before the Executive’s employment termination or expires under section 5 during the one-year period immediately after the Executive’s termination and/or separation of employment with the Bank. The Restricted Period will be extended in an amount equal to any time period during which a violation of section 18 of this Agreement is proven.
2. “Restricted Territory,” as used herein, means all of Trumbull, Portage, and Mahoning Counties in Ohio.
3. “Customer,” as used herein, means any individual, joint venturer, entity of any sort, or other business partner of Cortland Bancorp or the Bank with, for, or to whom Cortland Bancorp or the Bank has provided Financial Products or Services during the last two years of the Executive’s employment with Cortland Bancorp or the Bank, or any individual, joint venturer, entity of any sort, or business partner whom Cortland Bancorp or the Bank has identified as a prospective customer of Financial Products or Services within the last two years of the Executive’s employment with Cortland Bancorp or the Bank.
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4. “Financial Products or Services,” as used herein, means any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under section 4(k) of the Bank Holding Company Act of 1956 and that is offered by Cortland Bancorp or the Bank or an affiliate on the date of the Executive’s employment termination, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type of which the Executive was involved during the Executive’s employment with Cortland Bancorp or the Bank.
(g) Special compensation. The Executive and Cortland Bancorp acknowledge and agree that the post-employment restrictions in this section 18 apply in the Restricted Period without regard to whether a Change in Control has previously occurred. Because the Executive may be subject to the post-employment restrictions of this section 18 without also being entitled to Change-in-Control benefits under this Agreement, Cortland Bancorp hereby agrees that the Executive is entitled to one times compensation, as the term compensation is defined in section 1(a), under this section 18(g), payable in a single lump sum, without reduction to account for the time value of money or discounting to present value, except that the Executive is not entitled to any compensation under this section 18(g) if (x) the Executive is entitled to receive or has received Change-in-Control compensation under this Agreement or (y) the Executive’s employment termination is on account of retirement or occurs after the Executive attains age 65. The provisions of section 3, prohibiting payment of severance in specified cases, do not apply to or operate to prevent payment of special compensation to which the Executive is entitled under this section 18 after employment termination.
The special compensation payable under this section 18(g) will be paid to the Executive five days after the Executive’s employment termination, but if when the Executive’s employment terminates the Executive is a specified employee, as defined in section 409A of the Internal Revenue Code of 1986, and if the special compensation payable under this section 18(g) would be considered nonqualified deferred compensation under section 409A, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) is not available, rather than being payable five days after employment termination the special compensation payable under this section 18(g) will be paid to the Executive in a single lump sum without interest on the first day of the seventh month after the month in which the Executive’s employment terminates.
(h) Enforcement by successors. The provisions of this section are binding upon and enforceable by Cortland Bancorp and any successor to Cortland Bancorp, including any person acquiring directly or indirectly all or substantially all of the business, assets, or stock of Cortland Bancorp by purchase, merger, consolidation, reorganization, or otherwise. The Executive’s consent is not necessary for any assignment or transfer of the rights and obligations of this section that occurs or is deemed to occur as the result of any person acquiring directly or indirectly all or substantially all of the business, assets, or stock of Cortland Bancorp by purchase, merger, consolidation, reorganization, or otherwise.
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IN WITNESS WHEREOF, the parties have executed this Amended Severance Agreement as of the date first written above.
| EXECUTIVE | CORTLAND BANCORP | |||||
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By: |
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| Stanley P. Feret | James M. Gasior | |||||
| Its: | President and Chief Executive Officer | |||||
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