SENECA FALLS SAVINGS BANK
AMENDED AND RESTATED
2005 DEFERRED COMPENSATION PLAN
Amended and Restated Effective January 1, 2005
SENECA FALLS SAVINGS BANK
AMENDED AND RESTATED
2005 DEFERRED COMPENSATION PLAN
THIS AMENDED AND RESTATED 2005 DEFERRED COMPENSATION PLAN (the "Plan"),
sponsored by Seneca Falls Savings Bank (the "Bank"), updates and revises the
2005 Deferred Compensation Plan (the "Prior Plan") in order to bring the Prior
Plan into compliance with the final regulations issued under Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code") in April, 2007. The Bank
has herein restated the Plan with the intention that the Plan shall at all times
satisfy Code Section 409A, and the provisions of the Plan shall be construed to
effectuate such intentions. References to the "Company" mean Seneca-Cayuga
Bancorp, Inc. a federal corporation that owns 100% of the common stock of the
Bank.
ARTICLE I
PURPOSE AND EFFECTIVE DATE
Section 1.01 Purpose. The purpose of the Plan is to permit a select group
of management (at the level of vice president or higher) or highly compensated
employees and directors of the Bank to defer on a pre-tax basis al1 or a portion
of their compensation paid by the Bank in order to provide funds for retirement.
It is intended that the Plan will aid in retaining and attracting employees and
directors by providing such persons with a means to supplement their standard of
living at retirement.
Section 1.02 Effective Date. The Plan was originally effective in May,
1981. The Plan is hereby amended and restated effective January 1, 2005.
ARTICLE II
DEFINITIONS
For the purposes of this Plan, the following words and phrases shall have
the meanings indicated, unless the context clearly indicates otherwise.
Section 2.01 Bank. "Bank" means Seneca Falls Savings Bank.
Section 2.02 Beneficiary. "Beneficiary" means the person, persons or entity
designated by the Participant to receive any benefits payable under the Plan.
Any Participant Beneficiary designation shall be made in a written instrument
filed with the Bank in the form attached hereto as Exhibit B and shall become
effective only when received, accepted and acknowledged in writing by the Bank.
Section 2.03 Board. "Board" means the Board of Directors of the Bank.
Section 2.04 Change in Control. "Change in Control" of the Company or the
Bank shall mean (i) a change in ownership of the Company or the Bank under
paragraph (a) below, or (ii) a change in effective control of the Company or the
Bank under paragraph (b)
below, or (iii) a change in the ownership of a substantial portion of the assets
of the Company or the Bank under paragraph (c) below:
(a) Change in the ownership of the Company or the Bank. A change in
the ownership of the Company or the Bank shall occur on the date that
any one person, or more than one person acting as a group (as defined
in paragraph (b)), acquires ownership of stock of the corporation
that, together with stock held by such person or group, constitutes
more than 50 percent of the total fair market value or total voting
power of the stock of such corporation. However, if any one person or
more than one person acting as a group, is considered to own more than
50 percent of the total fair market value or total voting power of the
stock of a corporation, the acquisition of additional stock by the
same person or persons is not considered to cause a change in the
ownership of the corporation (or to cause a change in the effective
control of the corporation (within the meaning of paragraph (b)
below)). An increase in the percentage of stock owned by any one
person, or persons acting as a group, as a result of a transaction in
which the corporation acquires its stock in exchange for property will
be treated as an acquisition of stock for purposes of this section.
This paragraph (a) applies only when there is a transfer of stock of a
corporation (or issuance of stock of a corporation) and stock in such
corporation remains outstanding after the transaction.
(b) Change in the effective control of the Company or the Bank. A
change in the effective control of the Company or the Bank shall occur
on the date that either (i) any one person, or more than one person
acting as a group (as determined below), acquires (or has acquired
during the 12-month period ending on the date of the most recent
acquisition by such person or persons) ownership of stock of the
corporation possessing 30 percent or more of the total voting power of
the stock of such corporation; or (ii) a majority of members of the
corporation's board of directors is replaced during any 12-month
period by directors whose appointment or election is not endorsed by a
majority of the members of the corporation's board of directors prior
to the date of the appointment or election, provided that for purposes
of this paragraph (b)(ii), the term corporation refers solely to a
corporation for which no other corporation is a majority shareholder.
In the absence of an event described in paragraph (i) or (ii), a
change in the effective control of a corporation will not have
occurred. If any one person, or more than one person acting as a
group, is considered to effectively control a corporation (within the
meaning of this paragraph (b)), the acquisition of additional control
of the corporation by the same person or persons is not considered to
cause a change in the effective control of the corporation (or to
cause a change in the ownership of the corporation within the meaning
of paragraph (a)). Persons will not be considered to be acting as a
group solely because they purchase or own stock of the same
corporation at the same time, or as a result of the same public
offering.
(c) Change in the ownership of a substantial portion of the Company's
or the Bank's assets. A change in the ownership of a substantial
portion of the Company's or the Bank's assets shall occur on the date
that any one person, or more than one person acting as a group (as
determined below), acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such
person or persons) assets from the corporation that have a total gross
fair market value equal to or more than 40% of the total gross fair
market value of all of the assets of the corporation immediately prior
to such acquisition or acquisitions. For this purpose, gross fair
market value means the value of the assets of the corporation, or the
value of the assets being disposed of, determined without regard to
any liabilities associated with such assets. There is no Change in
Control event under this paragraph (c) when there is a transfer to an
entity that is controlled by the shareholders of the transferring
corporation immediately after the transfer.
(d) Each of the sub-paragraphs (a) through (c) of this Section 2.04
shall be construed and interpreted consistent with the requirements of
Code Section 409A and any Treasury regulations or other guidance
issued thereunder. Notwithstanding anything in this subsection to the
contrary, a Change in Control shall not be deemed to have occurred
upon the conversion of the Seneca Falls Savings Bank, MHC, the Bank's
mutual holding company parent, to stock form, or in connection with
any reorganization used to effect such a conversion.
Section 2.05 Code. "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations promulgated thereunder.
Section 2.06 Deferral Agreement. "Deferral Agreement" means the written
form (attached hereto as Exhibit A) that is submitted by the Participant to the
human resources officer of the Bank before the relevant Election Date which
indicates the amount of compensation to be deferred, the timing and form of
distribution(s). A Deferral Agreement becomes effective when it is signed by the
Participant and the Bank in a timely manner.
Section 2.07 Deferral Benefit. "Deferral Benefit" means the benefit payable
to a Participant as calculated in Article VI hereof.
Section 2.08 Deferred Benefit Account. "Deferred Benefit Account" means the
accounts maintained on the books of account of the Bank for each Participant
pursuant to Article V. Separate Deferred Benefit Accounts shall be maintained
for each Participant. More than one Deferred Benefit Account may be maintained
for each Participant if necessary to reflect separate year deferral elections. A
Participant's Deferred Benefit Account shall be utilized solely as a device for
the measurement and determination of the amounts to be paid to the Participant
pursuant to this Plan. A Participant's Deferred Benefit Account shall not
constitute or be treated as a trust fund of any kind.
Section 2.09 Determination Date. "Determination Date" means the date on
which the amount of a Participant's Deferred Benefit Account is determined as
provided in Article V hereof. The last day of each calendar month shall be a
Determination Date.
Section 2.10 Disability. "Disability" means any case in which a
Participant: (i) is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months; (ii) is, by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than 3 months under an
accident and health plan covering employees of the Bank (or would receive such
benefits if eligible to participate in the plan); or (iii) is determined to be
totally disabled by the Social Security Administration.
Section 2.11 Election Date. The "Election Date" is the date established by
this Plan as the date on or before which a Participant must submit a valid
Deferral Agreement or Notice of Adjustment of Deferral to the Board. The
applicable Election Dates are as follows: (a) 30 days after a newly eligible
Participant is notified of his right to participate in the Plan, or (b) at least
30 days prior to January 1st of any Plan Year if (a) above does not apply.
Section 2.12 Participant. "Participant" means any individual who is
designated by the Bank to participate in this Plan and who elects to participate
by filing a Deferral Agreement as provided in Article IV.
Section 2.13 Plan. "Plan" shall mean the Seneca Falls Savings Bank Amended
and Restated 2005 Deferred Compensation Plan.
Section 2.14 Plan Administrator. "Plan Administrator" means the committee
appointed by the Board to administer the Plan.
Section 2.15 Plan Year. "Plan Year" means a twelve month period commencing
January 1 and ending the following December 31.
Section 2.16 Separation from Service. "Separation from Service" means:
(a) the Participant's retirement or termination of employment with
the Bank.
(b) No Separation from Service shall be deemed to occur due to
military leave, sick leave or other bona fide leave of absence if
the period of such leave does not exceed six months or, if
longer, so long as the Participant's right to reemployment is
provided by law or contract. If the leave exceeds six months and
the Participant's right to reemployment is not provided by law or
by contract, then the Participant shall be deemed to have a
Separation from Service on the first date immediately following
such six-month period.
(c) Whether a Separation from Service has occurred is determined
based on whether the facts and circumstances indicate that the
Bank and the Participant reasonably anticipated that no further
services would be
performed after a certain date or that the level of bona fide
services the Participant would perform after such date (whether
as an employee or as an independent contractor) would permanently
decrease to less than 50% of the average level of bona fide
services performed over the immediately preceding 36 months (or
such lesser period of time in which the Participant performed
services for the Bank). The determination of whether a
Participant has had a Separation from Service shall be made by
applying the presumptions set forth in the Treasury Regulations
under Code Section 409A.
Section 2.17 Specified Employee. "Specified Employee" means a "key
employee" of a publicly traded company within the meaning of Code Section 409A
and the final regulations or other guidance issued thereunder.
ARTICLE III
ADMINISTRATION
Section 3.01 Plan Administrator and Board Duties. This Plan shall be
administered by the Plan Administrator. Decisions of the Plan Administrator
shall be reviewable by the Board. The Board shall also have the authority to
make, amend, interpret, and enforce all appropriate rules and regulations for
the administration of this Plan and decide or resolve any and all questions
including interpretations of this Plan, as may arise in connection with the
Plan. A Participant who is a member of the Board may vote on matters affecting
all Participants but may not vote on matters solely relating to his benefits.
Section 3.02 Binding Effect of Decisions. Subject to Article IX herein, any
decision or action of the Board in respect to any question arising out of or in
connection with the administration, interpretation and application of the Plan
and the rules and regulations promulgated hereunder shall be final, conclusive
and binding upon all persons having any interest in the Plan.
ARTICLE IV
PARTICIPATION
Section 4.01 Participation. Participation in the Plan shall be limited to
individuals who are vice presidents (or higher) of the Bank and directors of the
Bank who file a Deferral Agreement with the Bank. Except as provided in Section
2.11(a), a Deferral Agreement must be filed with the Plan Administrator at least
30 days prior to January 1st immediately preceding the Plan Year in which the
Participant's participation under the agreement will commence. A properly
completed and timely executed Deferral Agreement shall be effective on the first
day of the Plan Year following receipt by the Bank. With respect to a Deferral
Agreement filed by an officer or director who first becomes eligible after the
first day of a Plan Year, such Deferral Agreement shall be effective only with
respect to compensation or director's fees not yet earned and based on services
not yet performed at the time of the execution and filing of the Deferral
Agreement.
Section 4.02 Minimum Deferral. A Participant may elect in any Deferral
Agreement to defer all or a portion of his compensation and future compensation
increases. The minimum amount that may be deferred under an officer's Deferral
Agreement shall be $1,000.
Section 4.02(a) From time to time the Bank may increase or decrease the
minimum deferral set forth above (or establish a maximum deferral) by giving
reasonable written notice to the affected Participants. Such changes shall be
effective for all Deferral Agreements filed thereafter.
Section 4.02(b) A Participant's election to defer compensation shall be
irrevocable for a Plan Year upon the filing of a Deferral Agreement.
Section 4.03 Duration of Deferral Agreement. Deferral Agreements remain in
effect until revoked or modified by the filing of a new Deferral Agreement or
Notice of Adjustment of Deferral, which shall be effective for the Plan Year
following the Plan Year in which it is submitted.
Section 4.04 Revocation or Reduction of Deferral. Deferrals of future
compensation may be stopped or reduced by timely filing a Notice of Adjustment
of Deferral (attached hereto as Exhibit C). Such revocation or reduction will be
effective as of the 1st day of the next succeeding Plan Year.
Section 4.05 Increase of Deferral. A new Notice of Adjustment of Deferral
or new Deferral Agreement must be filed under the terms of Section 2.11(b) if
the Participant wishes to increase the amount of compensation being deferred.
Such an election will be effective on the 1st day of the next succeeding Plan
Year.
Section 4.06 No Deferral Without Agreement. An eligible officer or director
who has not submitted a valid Deferral Agreement to the Plan Administrator
before the relevant Election Date set forth in 2.11may not defer any
compensation until the next Plan Year. A Participant who has not submitted a
valid timely Deferral Agreement or Notice of Adjustment of Deferral to the Plan
Administrator in accordance with Section 2.11(b) shall either (i) have deferrals
deducted in accordance with the Participant's last validly filed Deferral
Agreement in accordance with Section 4.03 or, (ii) if no deferrals are being
deducted from the Participant's compensation or director's fees, then the
Participant shall not be entitled to make deferrals until the next Plan Year.
Section 4.07 When to File Deferral Agreement or Notice of Adjustment of
Deferral. A Notice of Adjustment of Deferral shall be filed to increase or
reduce deferrals in a future Plan Year or Years. A Notice of Adjustment of
Deferral shall also be filed to eliminate entirely deferrals for the next Plan
Year or for all future Plan Years. The filing of a new Deferral Agreement shall
not change the time or form of distribution of amounts credited to a
Participant's Deferred Benefit Account, and earnings on such amounts, that are
subject to a previously filed Deferral Agreement.
ARTICLE V
DEFERRED BENEFIT ACCOUNT
Section 5.01 Deferred Benefit Account. The amount that a Participant elects
to defer pursuant to a validly executed and filed Deferral Agreement, shall be
credited by the Bank to the Participant's Deferred Benefit Account. To the
extent that the Bank is required to withhold any taxes or other amounts from the
Participant's deferred compensation pursuant to any state, federal or local law,
such amounts shall first be taken out of the portion of the Participant's
compensation which is not deferred under this Plan.
Section 5.02 Vesting of Deferred Benefit Account. A Participant shall be
100% vested in his Deferred Benefit Account(s).
Section 5.03 Interest Credit. Compensation deferred by a Participant plus an
amount equal to the Participant's deemed interest shall be credited to the
Participant's Deferred Benefit Account(s) on each Determination Date. Interest
shall be credited at a rate which is annually determined by the Board.
Section 5.04 Determination of Account. Each Participant's Deferred Benefit
Account(s), as of each Determination Date, shall consist of the balance of the
Participant's Deferred Benefit Account(s) as of the immediately preceding
Determination Date. The Deferred Benefit Account(s) of each Participant shall be
reduced by the amount of all distributions, if any, made from such Deferred
Benefit Account(s) since the preceding Determination Date, and increased by any
contributions and interest credited to such Deferred Benefit Account(s) since
the preceding Determination Date.
Section 5.05 Statement of Accounts. The Bank shall submit to each
Participant, within 120 days after the close of each Plan Year, a statement in
such form as the Bank deems desirable, setting forth the balance to the credit
of such Participant in his Deferred Benefit Account(s) as of the last day of the
preceding Plan Year.
ARTICLE VI
BENEFITS
Section 6.01 Benefit Upon Separation from Service. Upon a Participant's
Separation from Service (other than due to death or Disability), a Participant
shall be entitled to a Deferral Benefit payable under Section 6.04.
Section 6.02 Death. If a Participant dies after the commencement of
payments of his Deferral Benefit, his Beneficiary shall receive the remaining
installments of his Deferred Benefit Account in accordance with the
Participant's existing distribution election. If a Participant has not
designated a Beneficiary under the Plan, or if no designated Beneficiary is
living on the date of distribution hereunder, amounts distributable pursuant to
this Section shall be distributed first to the Participant's surviving spouse,
or if none, to the Participant's estate. If a Participant dies prior to any
payments of a Deferral Benefit, his Beneficiary shall receive a lump sum payment
equal to his Deferred Benefit Account as of the Determination Date within
thirty (30) days following such death or in annual installments as provided in
the Participant's Deferral Agreement.
Section 6.03 Disability. In the event of Disability prior to Separation
from Service, the disabled Participant, unless he otherwise elects in his
Deferral Agreement, shall have his payments commence in the form specified in
Section 6.04 over a 5 year period.
Section 6.04 Form of Benefit Payment. Upon the occurrence of an event
described in Sections 6.01 or 6.03, the Bank shall pay to the Participant the
amount specified in periodic installments as set forth in the Participant's
Deferral Agreement. Payments commencing under Section 6.05 shall be paid over
the specified period designated in the Participant's Deferral Agreement.
Notwithstanding the foregoing, in the event a Participant fails to elect a form
of payment of his Deferral Benefit the Participant's Deferral Agreement, the
Deferral Benefit shall be distributed to the Participant in substantially equal
quarterly payments over a period of five years.
Section 6.05 Benefit Payment Prior to Separation from Service. A
Participant may elect in his Deferral Agreement to have payments from his
Deferred Benefit Account commence prior to Separation from Service at a
specified date set forth in the Deferral Agreement. If the Participant elects to
have benefits paid at a specified date or dates, such benefits shall be paid in
either annual or quarterly installments over a period of five or ten years (as
designated in the Participant's Deferral Agreement).
Section 6.06 Withholding: Payroll Taxes and Code Section 409A Taxes. Any
distribution under this Plan shall be reduced by the amount of taxes required to
be withheld from such distribution. This Plan shall permit the acceleration of
the time or schedule of a payment to pay employment related taxes as permitted
under Treasury Regulation Section 1.409A-3(j) or to pay any taxes that may
become due at any time that the arrangement fails to meet the requirements of
Code Section 409A and the regulations and other guidance promulgated thereunder.
In the latter case, such payments shall not exceed the amount required to be
included in income as a result of the failure to comply with the requirements of
Code Section 409A.
Section 6.07 Commencement of Payments. Commencement of payments under this
Plan shall begin no later than one month following the event which entitles a
Participant (or a Beneficiary) to payments under this Plan. Notwithstanding any
provision of this Plan to the contrary, if the Participant is considered a
Specified Employee, then solely to the extent necessary to avoid penalties under
Code Section 409A, no distribution shall be made during the first six (6) months
following Separation from Service. Rather, any distribution which would
otherwise be paid to the Participant during such period shall be accumulated and
paid to the Participant in a lump sum on the first day of the seventh month
following Separation from Service. All subsequent distributions shall be paid in
the manner specified in the Plan.
Section 6.08 Early Distributions. In the following circumstances and to the
following extent, the Plan Administrator may, in its sole discretion, authorize
the acceleration of the payment of benefits under the Plan.
(a) Unforeseeable Emergency.
At the request of a Participant, or at the request of the
Participant's Beneficiary after the Participant's death, the
Board may, in its sole discretion, accelerate any pay all or part
of the value of a Participant's Deferred Benefit Account due
under this Plan. Accelerated distributions at the request of the
Participant or a Participant's Beneficiary may be allowed only in
the event of an "unforeseeable emergency." For these purposes an
"unforeseeable emergency" means a severe financial hardship to
the Participant resulting from an illness or accident of the
Participant, the Participant's spouse, or a dependent (as defined
in Code Section 152(a)) of the Participant, loss of the
Participant's property due to casualty, the need to pay for
medical expenses, including nonrefundable deductibles, as well as
for the costs of prescription drug medication, the need to pay
for the funeral expenses of a spouse, a Beneficiary, or a
dependent (as defined in Code Section 152, without regard to Code
Section 152(b)(1)(, (b)(2), and (d)(1)(B)), or other similar
extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant. Amounts allowed
as a hardship distribution may not exceed the amounts necessary
to satisfy such emergency plus amounts necessary to pay taxes
reasonably anticipated as a result of the distribution, after
taking into account the extent to which such hardship is or may
be relieved through reimbursement or compensation by insurance or
otherwise, or by liquidation of the Participant's assets (to the
extent the liquidation of such assets would not itself cause
severe financial hardship). All hardship distributions shall be
made in a single cash lump sum distribution within thirty (30)
days following the date on which the Participant suffers an
"unforeseeable emergency."
(b) Compliance with Domestic Relations Order.
To the extent required to comply with the terms of a domestic
relations order (within the meaning of Section 414(p) of the
Code) directed to and served upon the Plan, the Plan
Administrator may direct the payment of all or any portion of the
benefit to which a Participant is entitled to at any time or in
accordance with any benefit payment schedule set forth in such
order. Such lump sum payment shall be in lieu of the benefits
that would otherwise be payable to a Participant.
(c) Compliance with Certificate of Divestiture.
To the extent necessary to effect compliance with a certificate
of divestiture (within the meaning of Section 1043(b)(2) of the
Code), the Plan Administrator may permit a lump sum payment in an
amount up to the present value of the then remaining benefits
otherwise payable to the Participant under this Plan. Such lump
sum payment shall be in lieu of the benefits that would otherwise
be payable to a Participant.
Section 6.09 Payments in the Event of a Change in Control. In the event of
a Change in Control, a Participant's Deferred Benefit Account(s) may be paid to
the Participant,
irrespective of whether the Participant suffers a Separation from Service if the
Participant has elected a distribution upon a Change in Control in the
Participant's Deferral Agreement.
Section 6.10 Cashout of Small Benefits. Notwithstanding anything in this
Plan to the contrary, if at any time the total present value of the payments due
and payable to a Participant is equal to or less than the applicable dollar
amount under Code Section 402(g)(1)(B) for year in which the Participant
Separates from Service, such entire present value shall be paid to the recipient
as soon as practicable. Any such payment shall be in full settlement of such
person's interest under this Plan.
Section 6.11 Transition Election Form. Notwithstanding anything in the Plan
to the contrary, a Participant who previously filed a Deferral Agreement with
the Bank may elect to change the time and manner of payment of the Deferral
Benefit to another permissible time and form by filing with the Bank a
Transition Year Election Form (attached hereto as Exhibit D), provided that such
election is made by on or before December 31, 2008.
ARTICLE VII
BENEFICIARY DESIGNATION
Section 7.01 Beneficiary Designation. Each Participant shall have the
right, at any time, to designate any person or persons as his Beneficiary or
Beneficiaries to whom payment under this Plan shall be paid in the event of his
death prior to complete distribution to the Participant of the benefits due
under the Plan.
Section 7.02 Amendments. Any Beneficiary designation may be changed by a
Participant by the written filing of such change on a form prescribed by the
Bank. The filing of a new Beneficiary designation form will cancel all
Beneficiary designations previously filed.
Section 7.03 No Beneficiary Designation. If a Participant fails to
designate a Beneficiary as provided above, or if all designated Beneficiaries
predecease the Participant, then any amounts to be paid to the Beneficiary shall
be paid first to the Participant's surviving spouse, if any, otherwise, to the
Participant's estate.
Section 7.04 Effect of Payment. The payment to the deemed Beneficiary shall
completely discharge the Bank's obligations under this Plan.
ARTICLE VIII
AMENDMENT AND TERMINATION OF PLAN
Section 8.01 Amendment. The Board may at any time amend the Plan in whole
or in part; provided, however, that no amendment shall be effective to decrease
or restrict any Deferred Benefit Account at the time of such amendment and no
amendment shall be made which shall affect the rights of a Participant under a
validly executed and filed Deferral Agreement.
Section 8.02 Termination of the Plan. The Bank may, in its discretion,
elect to terminate the Plan in any of the following three circumstances provided
below and accelerate the
payment of the entire unpaid balance or payments of the
Participant's benefits as if the Participant experienced a Separation from
Service on the date of the termination of the Plan and in accordance with Code
Section 409A:
(a) The Board of Directors may terminate the Plan within 12 months of
a corporate dissolution taxed under Code section 331, or with
approval of a bankruptcy court pursuant to 11 U.S.C.
ss.503(b)(1)(A), provided that the amounts deferred under the
Plan are included in the Participant's gross income in the latest
of (i) the calendar year in which the Plan terminates; (ii) the
calendar year in which the amount is no longer subject to a
substantial risk of forfeiture; or (iii) the first calendar year
in which the payment is administratively practicable.
(b) The Board of Directors may terminate the Plan within the 30 days
preceding a Change in Control (but not following a Change in
Control), provided that the Plan shall only be treated as
terminated if all substantially similar arrangements sponsored by
the Bank are terminated so that the Participant and all
participants under substantially similar arrangements are
required to receive all amounts of compensation deferred under
the terminated arrangements within 12 months of the date of the
termination of the arrangements.
(c) The Board of Directors may terminate the Plan provided that (i)
the termination and liquidation does not occur proximate to a
downturn in the financial health of the Bank, (ii) all
arrangements sponsored by the Bank that would be aggregated with
this Plan under Treasury Regulations Section 1.409A-1(c) if the
Participant covered by this Plan was also covered by any of those
other arrangements are also terminated; (iii) no payments other
than payments that would be payable under the terms of the
arrangement if the termination had not occurred are made within
12 months of the termination of the arrangement; (iv) all
payments are made within 24 months of the termination of the
arrangements; and (v) the Bank does not adopt a new arrangement
that would be aggregated with any terminated arrangement under
Treasury Regulations Section 1.409A-1(c) if the Participant
participated in both arrangements, at any time within three years
following the date of termination of the arrangement.
ARTICLE IX
CLAIMS PROCEDURE
Section 9.01 Claim for Benefits. Benefits shall be paid in accordance with
the provisions of this agreement. The Participant or a Beneficiary or any other
person claiming through the Participant, shall make a written request for
benefits under this agreement. This written claim shall be mailed or delivered
to the Plan Administrator. Such claim shall be reviewed by the Plan
Administrator or its delegate.
Section 9.02 Denial of Claim. If the claim is denied, in full or in part,
the Plan Administrator shall provide a written notice within ninety (90) days
setting forth the specific reasons for denial, and any additional material or
information necessary to perfect the claim, and an explanation of why such
material or information is necessary, and appropriate information and
explanation of the steps to be taken if a review of the denial is desired.
Section 9.03 Review of Denied Claim. If the claim is denied and a review is
desired, the Participant (or Beneficiary) shall notify the Plan Administrator in
writing within sixty (60) days (a claim shall be deemed denied if the Plan
Administrator does not take any action within the aforesaid ninety (90) day
period) after receipt of the written notice of denial. In requesting a review,
the Participant or his Beneficiary may request a review of the Plan document or
other pertinent documents with regard to the benefit created under this
agreement, may submit any written issues and comments, may request an extension
of time for such written submission of issues and comments, and may request that
a hearing be held, but the decision to hold a hearing shall be within the sole
discretion of the Board.
Section 9.04 Board Review. The decision on the review of the denied claim
shall be rendered by the Board within sixty (60) days after the receipt of the
request for review (if a hearing is held) or within sixty (60) days after the
hearing if one is held. The decision shall be written and shall state the
specific reasons for the decision including reference to specific provisions of
this Plan on which the decision is based.
ARTICLE X
NATURE OF BANK'S OBLIGATION
Section 10.01 Unsecured General Creditor. The Bank's obligations under this
Plan shall be an unfunded and unsecured promise to pay. The Bank shall not be
obligated under any circumstances to fund its financial obligations under this
Plan.
Section 10.02 General Assets. Any assets which the Bank may acquire or set
aside to help cover its financial liabilities are and must remain general assets
of the Bank subject to the claims of its creditors. Neither the Bank nor this
Plan gives the Participant any beneficial ownership interest in any asset of the
Bank. All rights of ownership in any such assets are and remain in the Bank.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Notice. Any notice which shall be or may be given under the
Plan or a Deferral Agreement shall be in writing and shall be mailed by United
States mail, postage prepaid.
Section 11.02 Change of Address. Any party may, from time to time, change
the address to which notices shall be mailed by giving, written notice of such
new address.
Section 11.03 Binding Agreement. The Plan shall be binding upon the Bank,
its assigns, and any successor, and upon a Participant, his Beneficiary,
assigns, heirs, executors and administrators.
Section 11.04 Nonassignability. Except insofar as prohibited by applicable
law, no sale, transfer, alienation, assignment, pledge, collateralization or
attachment of any benefits under this Plan shall be valid or recognized by the
Bank. Neither the Participant or Beneficiary shall have any power to
hypothecate, mortgage, commute, modify, or otherwise encumber in advance of any
of the benefits payable hereunder, nor shall any of said benefits be subject to
seizure for the payment of any debts, judgments, alimony maintenance, owed by
the Participant or his Beneficiary, or be transferable by operation of law in
the event of bankruptcy, insolvency, or otherwise.
Section 11.05 Gender and Number. Whenever the context so requires,
masculine pronouns include the feminine and singular words include the plural.
Section 11.06 Compliance with Section 409A of the Code. The Plan is
intended to be a non-qualified deferred compensation plan described in Section
409A of the Code. The Plan shall be operated, administered and construed to give
effect to such intent. To the extent that a provision of the Plan fails to
comply with Code Section 409A and a construction consistent with Code Section
409A is not possible, such provision shall be void ab initio. In addition, the
Plan shall be subject to amendment, with or without advance notice to
Participants and other interested parties, and on a prospective or retroactive
basis, including but not limited to amendment in a manner that adversely affects
the rights of Participants and other interested parties, to the extent necessary
to effect such compliance.
Section 11.07 Applicable Law. This Plan shall be governed by the laws of
the state of New York.
Exhibit A
SENECA FALLS SAVINGS BANK
AMENDED AND RESTATED 2005 DEFERRED COMPENSATION PLAN
DEFERRAL AGREEMENT WITH DISTRIBUTION ELECTIONS
I, ____________________________, and Seneca Falls Savings Bank (the "Bank")
hereby agree for good and valuable consideration, the value of which is hereby
acknowledged, that I shall participate in the Amended and Restated 2005 Deferred
Compensation Plan (the "Plan"), initially effective as of May, 1981, amended and
restated effective January 1, 2005 , and do further agree to the terms and
conditions thereof.
Pursuant to Article IV of the Plan, I understand that I may make an
election to defer the receipt of a fixed percentage of my annual compensation
and/or of my director's fees due to me during calendar year 200__. Accordingly I
hereby make the following elections:
DEFERRAL ELECTIONS (May be made on an annual basis, with subsequent elections
effective the first day of the following calendar year):
Officers
In accordance with the Plan, I hereby elect to defer _________ % (enter
whole percentage) of my annual compensation for the Plan Year 20_____. Such
deferrals shall commence on January 1, 20____, and shall renew annually
thereafter unless changed at least 30 days prior to January 1 of any year under
the Plan. I understand and agree that my deferral election applies only to
compensation attributable to services I have not yet performed.
Directors
In accordance with the Plan, I hereby elect to defer __________ % of my
board fees for the Plan Year 200__. Such deferrals shall commence on January 1,
20_____, and shall renew annually thereafter unless changed at least 30 days
prior to January 1 of any year under the Plan. I understand and agree that my
deferral election applies only to compensation attributable to services I have
not yet performed.
I understand that my election to defer shall continue in accordance with
this Deferral Agreement with Distribution Elections until such time as I submit
a "Notice of Adjustment of Deferral" (Exhibit C hereto) to the Plan
Administrator at least 30 days prior to January 1 of any year under the Plan. A
Notice of Adjustment of Deferral can be used to adjust the amount of my annual
compensation and/or board fees to be deferred or to discontinue deferrals
altogether.
DISTRIBUTION ELECTION (To be completed only one time and shall apply to all
deferrals):
If you have previously made a distribution election, please skip this
section and sign and date the form on the last page. The Plan provides that you
may make a single distribution election, which will apply to all of your
deferrals.
In accordance with terms of the Plan, I understand and agree that all Plan
benefits shall be paid in the form I selected below, and that such distribution
form, once made by me, shall be. I also understand and agree that my Deferred
Benefit Account shall be distributed commencing on the first day of the first
month following the occurrence of the event giving rise to the distribution,
provided, however, that if I am a Specified Employee as described in Section
2.17, I understand and agree that distributions of my Deferred Benefit Account
balance will not commence until the first day of the 7th month following the
month of my Separation from Service.
Select either (i) or (ii) below:
(i) Fixed Distribution Schedule at Specified Date
In accordance with the terms of the Plan, I hereby elect a deferral period
of _____ years. Payments hereunder shall commence in the year 20__. In
accordance therewith, I hereby elect to receive the amount of my Deferred
Benefit Account in the following form (check one):
_____ Substantially equal quarterly payments over a period of 5 years
_____ Substantially equal annual payments over a period of 5 years
_____ Substantially equal quarterly payments over a period of 10 years
_____ Substantially equal annual payments over a period of 10 years
(ii) Separation from Service
In the event of my Separation from Service on the Board, or from employment
with the Bank for any reason other than cause, I hereby elect to receive my
Deferred Benefit Account in the following form (check one):
_____ Substantially equal quarterly payments over a period of 5 years
_____ Substantially equal annual payments over a period of 5 years
_____ Substantially equal quarterly payments over a period of 10 years
_____ Substantially equal annual payments over a period of 10 years
OPTIONAL PROVISIONS
Notwithstanding the foregoing, in the event of my Disability, death prior
to termination of employment or from service, or in the event of a Change in
Control of the Bank, as such terms are defined in the Plan, I hereby elect the
following alternative distribution forms. I understand that these elections are
optional, and that if not made, any relevant distribution will be made in
accordance with my selection under (i) or (ii) above:
(iii) Disability
In the event that my service on the Board or employment with the Bank is
terminated on account of my Disability, I hereby elect to receive my Deferred
Benefit Account in the following form (check one):
_____ Substantially equal quarterly payments over a period of 5 years
_____ Substantially equal annual payments over a period of 5 years
_____ Substantially equal quarterly payments over a period of 10 years
_____ Substantially equal annual payments over a period of 10 years
(iv) Death
In the event of my death prior to termination of service on the Board or
termination of employment with the Bank, I hereby elect that my Deferred Benefit
Account be distributed to my beneficiary(ies) in the following form (check one):
_____ Substantially equal quarterly payments over a period of 5 years
_____ Substantially equal annual payments over a period of 5 years
_____ Substantially equal quarterly payments over a period of 10 years
_____ Substantially equal annual payments over a period of 10 years
(v) Change in Control
In the event of a Change in Control of the Bank, I hereby elect to receive
my Deferred Benefit Account in the following form (check one):
_____ Substantially equal quarterly payments over a period of 5 years
_____ Substantially equal annual payments over a period of 5 years
_____ Substantially equal quarterly payments over a period of 10 years
_____ Substantially equal annual payments over a period of 10 years
[Signature page follows]
This Deferral Agreement with Distribution Elections shall become effective
upon execution below by both the Participant and a duly authorized officer of
the Bank.
Dated this _____ day of _______________, 20___.
--------------------------- ------------------------------
(Participant) (Bank duly authorized Officer)
Exhibit B
SENECA FALLS SAVINGS BANK AMENDED AND RESTATED 2005 DEFERRED COMPENSATION PLAN
BENEFICIARY DESIGNATION
The undersigned Participant under the terms of the Amended and Restated
Seneca Falls Savings Bank 2005 Deferred Compensation Plan, hereby designates the
following beneficiary(ies) to receive payments under such Plan following his
death:
Primary Beneficiary: -----------------------------------------
Secondary Beneficiary: ---------------------------------------
This Beneficiary Designation hereby revokes any prior Beneficiary
Designation which may have been in effect.
This Beneficiary Designation is revocable by the completion of a new
Beneficiary Designation.
Dated: __________ ____, 200___
- -------------------------------- ---------------------------------
(Witness) Participant (Print)
---------------------------------
Participant (Signature)
Exhibit C
SENECA FALLS SAVINGS BANK
AMENDED AND RESTATED 2005 DEFERRED COMPENSATION PLAN
NOTICE OF ADJUSTMENT OF DEFERRAL
To: Seneca Falls Savings Bank
Attention: Plan Administrator, Amended and Restated 2005 Deferred Compensation
Plan
I hereby give notice of my election to adjust the amount of my compensation
deferral in accordance with my Deferral Agreement, dated the _____ day of
_________, 200__. This notice is submitted at least thirty (30) days prior to
January 1st, and shall become effective as of January 1st, as specified below.
Adjust my deferral as of: January __, 20__
Deferred Salary (if applicable)
Previous Deferral Percentage _____ %
New Deferral Percentage _____ %
N/A _____
Deferred Director's Fees (if applicable)
Previous Deferral Percentage _____ %
New Deferral Percentage _____ %
N/A _____
Dated: __________ ____, 20___
- -------------------------------- ---------------------------------
(Witness) Participant (Print)
---------------------------------
Participant (Signature)
Exhibit D
SENECA FALLS SAVINGS BANK
AMENDED AND RESTATED 2005 DEFERRED COMPENSATION PLAN
TRANSITION YEAR ELECTION FORM
Instructions: If you are a participant in the Seneca Falls Savings Bank Amended
and Restated 2005 Deferred Compensation Plan (the "Plan"), and you previously
filed a Deferral Agreement with Seneca Falls Bank (the "Bank") in which you
elected the time and manner of payment of your Deferral Benefit (e.g., quarterly
installments over five years), you have a limited period of time to use this
Transition Year Election Form to elect to change your previous distribution
options. For example, if you previously elected to receive your Plan benefits in
quarterly installments upon your Separation from Service with the Bank, you may
use this Transition Year Election Form to change your form of benefit to annual
installments.
Due to current IRS rules, individuals who participate in the Plan during 2008
must complete this form on or before December 31, 2008. You may not use this
form to change your distribution elections with respect to payments that are
scheduled to be made to you in 2008, or otherwise to cause payments to be made
to you in 2008.
Print Name:
--------------------------------------
Note: If you do not wish to change your form of payment under a previously filed
Deferral Agreement with Distribution Elections (or other similar election form),
then you do not need to complete this Transition Year Election Form.
DISTRIBUTION FORM ELECTION OPTIONS
In accordance with terms of the Plan, I understand and agree that all Plan
benefits shall be paid in the form I select below, and that such distribution
form, once made by me, shall be irrevocable. I also understand and agree that my
Deferred Benefit Account shall be distributed commencing on the first day of the
first month following the occurrence of the event giving rise to the
distribution, except that if I am a "Specified Employee," as described in
Section 2.17, I understand and agree that distributions of my Deferred Benefit
Account balance will not commence until the first day of the 7th month following
the month of my Separation from Service.
Select either (i) or (ii) below:
(i) Fixed Distribution Schedule at Specified Date
In accordance with the terms of the Plan, I hereby elect a deferral period
of _____ years. Payments hereunder shall commence in the year 20__. In
accordance therewith, I hereby elect to receive the amount of my Deferred
Benefit Account in the following form (check one):
_____ Substantially equal quarterly payments over a period of 5
years
_____ Substantially equal annual payments over a period of 5
years
_____ Substantially equal quarterly payments over a period of 10
years
_____ Substantially equal annual payments over a period of 10
years
(ii) Separation from Service
In the event of my Separation from Service on the Board, or from employment
with the Bank for any reason other than cause, I hereby elect to receive my
Deferred Benefit Account in the following form (check one):
_____ Substantially equal quarterly payments over a period of 5
years
_____ Substantially equal annual payments over a period of 5
years
_____ Substantially equal quarterly payments over a period of 10
years
_____ Substantially equal annual payments over a period of 10
years
OPTIONAL PROVISIONS
Notwithstanding the foregoing, in the event of my Disability, death prior
to termination of employment or from service, or in the event of a Change in
Control of the Bank, as such terms are defined in the Plan, I hereby elect the
following alternative distribution forms. I understand that these elections are
optional, and that if not made, any relevant distribution will be made in
accordance with my selection under (i) or (ii) above:
(iii) Disability
In the event that my service on the Board or employment with the Bank is
terminated on account of my Disability, I hereby elect to receive my Deferred
Benefit Account in the following form (check one):
_____ Substantially equal quarterly payments over a period of 5
years
_____ Substantially equal annual payments over a period of 5
years
_____ Substantially equal quarterly payments over a period of 10
years
_____ Substantially equal annual payments over a period of 10
years
(iv) Death
In the event of my death prior to termination of service on the Board or
termination of employment with the Bank, I hereby elect that my Deferred Benefit
Account be distributed to my beneficiary(ies) in the following form (check one):
_____ Substantially equal quarterly payments over a period of 5
years
_____ Substantially equal annual payments over a period of 5
years
_____ Substantially equal quarterly payments over a period of 10
years
_____ Substantially equal annual payments over a period of 10
years
(v) Change in Control
In the event of a Change in Control of the Bank, I hereby elect to receive
my Deferred Benefit Account in the following form (check one):
_____ Substantially equal quarterly payments over a period of 5
years
_____ Substantially equal annual payments over a period of 5
years
_____ Substantially equal quarterly payments over a period of 10
years
_____ Substantially equal annual payments over a period of 10
years
[Signature page follows]
This Transition Year Election Form shall become effective upon execution
below by both the Participant and a duly authorized officer of the Bank.
- ----------------------------- -------------------------------
(Participant) (Bank duly authorized Officer