WAYNE BANK
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is made effective this First day of October 1999, by and
between WAYNE BANK, a state bank located in Honesdale, Pennsylvania (the
"Company") and Joseph A. Kneller (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide salary continuation benefits to the Executive. The
Company will pay the benefits from its general assets.
AGREEMENT
The Executive and the Company agree as follows:
Article 1
Definitions
1.1 Definitions. Whenever used in this Agreement, the following words and
phrases shall have the meanings specified:
1.1.1 "Change of Control" shall mean any one of the following
events: (i) the acquisition of ownership, holding or power to vote
more than 25% of the Company's or the Corporation's voting stock, (ii)
the acquisition of the ability to control the election of a majority
of the Company's or the Corporation's directors, (iii) the acquisition
of a controlling influence over the management or policies of the
Company or the Corporation by any person or by persons acting as a
"group" (within the meaning of Section 13(d) of the Securities
Exchange Act of 1934), or (iv) during any period of two consecutive
years,
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individuals (the "Continuing Directors") who at the beginning of such
period constitute the Board of Directors of the Company or the
Corporation (the "Existing Board") cease for any reason to constitute
at least two-thirds thereof, provided that any individual whose
election or nomination for election as a member of the Existing Board
was approved by a vote of at least two-thirds of the Continuing
Directors then in office shall be considered a Continuing Director.
Notwithstanding the foregoing, in the case of (i), (ii) and (iii)
hereof, ownership or control of the Company by the Corporation itself
shall not constitute a Change in Control. For purposes of this
paragraph only, the term "person" refers to an individual or a
corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or any
other form of entity not specifically listed herein.
1.1.2 "Code" means the Internal Revenue Code of 1986, as amended.
1.1.3 "Corporation" means Norwood Financial Corp.
1.1.4 "Disability" means the Executive shall be deemed totally
and permanently disabled if he becomes unable to perform a substantial
portion of his duties under this agreement and a physician selected by
Bank determines such inability will continue for a period of six (6)
months or more and is likely to be permanent and the Executive
qualifies to receive total disability benefits under Bank's disability
insurance plan.
1.1.5 "Early Termination" means the Termination of Employment
before Normal Retirement Age for reasons other than death, Disability,
Termination for Cause or following a Change of Control.
1.1.6 "Early Termination Date" means the month, day and year in
which Early Termination occurs.
1.1.7 "Normal Retirement Age" means the Executive's 62nd
birthday.
1.1.8 "Normal Retirement Date" means the later of the Normal
Retirement Age or Termination of Employment.
1.1.9 "Plan Year" means each twelve-month period commencing with
the effective date of this Agreement.
1.1.10 "Termination for Cause" See Section 5.2.
1.1.11 "Termination of Employment" means that the Executive
ceases to be employed by the Company for any reason whatsoever
other than by reason of a leave of absence which is approved by
the Company. For purposes of this Agreement, if there is
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a dispute over the employment status of the Executive or the date
of the Executive's Termination of Employment, the Company shall
have the sole and absolute right to decide the dispute.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. Upon Termination of Employment on or after
the Normal Retirement Age for reasons other than death, the Company shall pay to
the Executive the benefit described in this Section 2.1 in lieu of any other
benefit under this Agreement.
2.1.1 Amount of Benefit. The annual Normal Retirement Benefit
under this Section 2.1 is $14,000 (fourteen thousand dollars). The
Company may increase the annual benefit under this Section 2.1 at the
sole and absolute discretion of the Company's Board of Directors. Any
increase in the annual benefit shall require the recalculation of all
the amounts on Schedule A attached hereto. The annual benefit amounts
on Schedule A are calculated by amortizing the annual normal
retirement benefit using the interest method of accounting, a 7.50%
discount rate, monthly compounding and monthly payments.
2.1.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Executive's Normal Retirement Date and continuing for 179 additional
months.
2.1.3 Benefit Increases. Commencing on the first anniversary of
the first benefit payment, and continuing on each subsequent
anniversary, the Company's Board of Directors, in its sole discretion,
may increase the benefit.
2.2 Early Termination Benefit. Upon Early Termination, the Company
shall pay to the Executive the benefit described in this Section 2.2 in lieu of
any other benefit under this Agreement.
2.2.1 Amount of Benefit. The annual benefit under this Section
2.2 is the Early Termination Annual Benefit set forth in Schedule A
for the Plan Year ending immediately prior to the Early Termination
Date.
2.2.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Executive's Normal Retirement Age and continuing for 179 additional
months.
2.2.3 Benefit Increases. Benefit payments may be increased as
provided in Section 2.1.3.
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2.3 Disability Benefit. If the Executive terminates employment due to
Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.3 in lieu of any other benefit
under this Agreement.
2.3.1 Amount of Benefit. The annual benefit under this Section
2.3 is the Disability Benefit amount set forth in Schedule A for the
Plan Year ending immediately prior to the date in which Termination of
Employment occurs.
2.3.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments commencing
within 90 days after the date of the Executive's Termination of
Employment and continuing for 179 additional months.
2.3.3 Benefit Increases. Benefit payments may be increased as
provided in Section 2.1.3.
2.4 Change of Control Benefit. If the Executive is in the active
service of the Company at the time of a Change of Control, the Company shall pay
to the Executive the benefit described in this Section 2.4 in lieu of any other
benefit under this Agreement.
2.4.1 Amount of Benefit. The annual benefit under this Section
2.4 is the Normal Retirement Benefit described in Section 2.1.1.
2.4.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following Normal
Retirement Age and continuing for 179 additional months.
2.4.3 Benefit Increases. Benefit payments may be increased as
provided in Section 2.1.3
2.4.4 Rabbi Trust. Within 10 days of a Change of Control, a rabbi
trust shall be established and shall at all times be funded with
assets at least equal to the present value of the unpaid balance of
the Normal Retirement Benefit. A discount rate no greater then the ten
year Treasury note shall be used in calculating present value.
2.4.5 Excise tax Reimbursement. The Company shall indemnify and
hold the Executive harmless from any and all loss, expense or
liability that he may ever incur under Code ss. 4999, or a successor,
as the result of benefits he collects pursuant to this Agreement.
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Article 3
Death Benefits
3.1 Death During Active Service. If the Executive dies while in the
active service of the Company, the Company shall pay to the Executive's
beneficiary the benefit described in this Section 3.1. This benefit shall be
paid in lieu of the Lifetime Benefits of Article 2.
3.1.1 Amount of Benefit. The annual benefit under this Section 3.1
is the Normal Retirement Benefit described in Section 2.1.1.
3.1.2 Payment of Benefit. The Company shall pay the annual benefit
to the beneficiary in 12 equal monthly installments payable on the first
day of each month commencing with the month following the Executive's
death and continuing for 179 additional months.
3.2 Death During Benefit Period. If the Executive dies after the
benefit payments have commenced under this Agreement but before receiving all
such payments, the Company shall 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.
3.3 Death Following Termination of Employment But Before Benefits
Commence. If the Executive is entitled to benefits under this Agreement, but
dies prior to receiving said benefits, the Company shall pay to the Executive's
beneficiary the same benefits, in the same manner, they would have been paid to
the Executive had the Executive survived; however, said benefit payments will
commence upon the Executive's death.
Article 4
Beneficiaries
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Company. The Executive may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive and
accepted by the Company during the Executive's lifetime. The Executive's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Executive, or if the Executive names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
4.2 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 Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incapacitated person or incapable person. The Company may require proof
of incapacity, minority or guardianship as it may deem appropriate prior to
distribution of
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the benefit. Such distribution shall completely discharge the Company from all
liability with respect to such benefit.
Article 5
General Limitations
5.1 Excess Parachute or Golden Parachute Payment. Notwithstanding any
provision of this Agreement to the contrary, the Company shall not pay any
benefit under this Agreement to the extent the benefit would be a prohibited
golden parachute payment pursuant to 12 C.F.R.ss.357.2 and for which the
appropriate federal banking agency has not given written consent to pay pursuant
to 12 C.F.R.ss.359.4.
5.2 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement, if the Company terminates the Executives employment for:
5.2.1 Gross negligence or gross neglect of duties;
5.2.2 Commission of a felony or of a gross misdemeanor involving
moral turpitude; or
5.2.3 Fraud, disloyalty, dishonesty or willful violation of any
law or significant Company policy committed in connection with the
Executive's employment and resulting in an adverse effect on the
Company.
5.2.4 Removal. Notwithstanding any provision of this Agreement to
the contrary, the Company shall not pay any benefit under this
Agreement if the Executive is subject to a final removal or
prohibition order issued by an appropriate federal banking agency
pursuant to Section 8(e) of the Federal Deposit Insurance Act.
5.3 Competition After Termination of Employment. No benefits shall be
payable if the Executive, without the prior written consent of the Company,
violates the following described restrictive covenants.
5.3.1 Non-compete Provision. The Executive shall not, for the
term of this Agreement and until all benefits have been distributed,
directly or indirectly, either as an individual or as a proprietor,
stockholder, partner, officer, director, employee, agent, consultant
or independent contractor of any individual, partnership, corporation
or other entity (excluding an ownership interest of one percent (1%)
or less in the stock of a publicly traded company):
(i) become employed by, participate in, or be connected in
any manner with the ownership, management, operation or
control of any bank, savings and loan or
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other similar financial institution if the Executive's
responsibilities will include providing banking or
other financial services; or
(ii) participate in any way in hiring or otherwise engaging,
or assisting any other person or entity in hiring or
otherwise engaging, on a temporary, part-time or
permanent basis, any individual who was employed by the
Corporation or any of its subsidiaries during the three
(3) year period immediately prior to the termination of
the Executive's employment; or
(iii) assist, advise, or serve in any capacity,
representative or otherwise, any third party in any
action against the Corporation or any of its
subsidiaries or transaction involving the Corporation
or any of its subsidiaries; or
(iv) sell, offer to sell, provide banking or other financial
services, assist any other person in selling or
providing banking or other financial services, or
solicit or otherwise compete for, either directly or
indirectly, any orders, contract, or accounts for
services of a kind or nature like or substantially
similar to the services performed or products sold by
the Corporation or any of its subsidiaries (the
preceding hereinafter referred to as "Services"), to or
from any person or entity from whom the Executive or
the Corporation or any of its subsidiaries provided
banking or other financial services, sold, offered to
sell or solicited orders, contracts or accounts for
Services during the three (3) year period immediately
prior to the termination of the Executive's employment;
or
(v) divulge, disclose, or communicate to others in any
manner whatsoever, any confidential information of the
Corporation or any of its subsidiaries, including, but
not limited to, the names and addresses of customers of
the Corporation or any of its subsidiaries, as they may
have existed from time to time or of any of the
Corporation's or any of its subsidiaries prospective
customers, work performed or services rendered for any
customer, any method and/or procedures relating to
projects or other work developed for the Corporation or
any of its subsidiaries, earnings or other information
concerning the Corporation or any of its subsidiaries.
The restrictions contained in this subparagraph (v)
apply to all information regarding the Corporation or
any of its subsidiaries, regardless of the source who
provided or compiled such information. Notwithstanding
anything to the contrary, all information referred to
herein shall not be disclosed unless and until it
becomes known to the general public from sources other
than the Executive.
5.3.2 Judicial Remedies. In the event of a breach or threatened
breach by the Executive of any provision of these restrictions, the
Executive recognizes the substantial and immediate harm that a breach
or threatened breach will impose upon the Corporation or any of its
subsidiaries, and further recognizes that in such event monetary
damages may be inadequate to fully protect the Corporation or any of
its subsidiaries. Accordingly, in the
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event of a breach or threatened breach of this Agreement, the
Executive consents to the Corporation's or any of its subsidiaries
entitlement to such ex parte, preliminary, interlocutory, temporary or
permanent injunctive, or any other equitable relief, protecting and
fully enforcing the Corporation' or any of its subsidiaries rights
hereunder and preventing the Executive from further breaching any of
his obligations set forth herein. The Executive expressly waives any
requirement, based on any statute, rule of procedure, or other source,
that the Corporation or any of its subsidiaries post a bond as a
condition of obtaining any of the above-described remedies. Nothing
herein shall be construed as prohibiting the Corporation or any of its
subsidiaries from pursuing any other remedies available to the
Corporation or any of its subsidiaries at law or in equity for such
breach or threatened breach, including the recovery of damages from
the Executive. The Executive expressly acknowledges and agrees that:
(i) the restrictions set forth in Section 5.3.1 are reasonable, in
terms of scope, duration, geographic area, and otherwise, (ii) the
protections afforded the Corporation or any of its subsidiaries in
Section 5.3.1 are necessary to protect its legitimate business
interest, (iii) the restrictions set forth in Section 5.3.1 will not
be materially adverse to the Executive's employment with the Company,
and (iv) his agreement to observe such restrictions forms a material
part of the consideration for this Agreement.
5.3.3 Overbreadth of Restrictive Covenant. It is the intention of
the parties that if any restrictive covenant in this Agreement is
determined by a court of competent jurisdiction to be overly broad,
then the court should enforce such restrictive covenant to the maximum
extent permitted under the law as to area, breadth and duration.
5.3.4 The non-compete provision detailed in Section 5.3.1 shall
not be enforceable following a Change of Control.
5.4 Suicide or Misstatement. No benefits shall be payable if the
Executive commits suicide within two years after the date of this Agreement, or
if the insurance company denies coverage for material misstatements of fact made
by the Executive on any application for life insurance purchased by the Company,
or any other reason; provided, however that the Company shall evaluate the
reason for the denial, and upon advice of legal counsel and in its sole
discretion, consider judicially challenging any denial.
Article 6
Claims and Review Procedures
6.1 Claims Procedure. The Company shall notify any person or entity
that makes a claim against the Agreement (the "Claimant") in writing, within
ninety (90) days of Claimant's written application for benefits, of his or her
eligibility or noneligibility for benefits under the Agreement. If the Company
determines that the Claimant is not eligible for benefits or full benefits, the
notice shall set forth (1) the specific reasons for such denial, (2) a specific
reference
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to the provisions of the Agreement on which the denial is based, (3) 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 (4) an
explanation of the Agreement's claims review procedure and other appropriate
information as to the steps to be taken if the Claimant wishes to have the claim
reviewed. If the Company determines that there are special circumstances
requiring additional time to make a decision, the Company shall 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 ninety-day
period.
6.2 Review Procedure. If the Claimant is determined by the Company not
to be eligible for benefits, or if the Claimant believes that he or she is
entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Company by filing a petition for
review with the Company within sixty (60) days after receipt of the notice
issued by the Company. Said petition shall state the specific reasons which the
Claimant believes entitle him or her to benefits or to greater or different
benefits. Within sixty (60) days after receipt by the Company of the petition,
the Company shall afford the Claimant (and counsel, if any) an opportunity to
present his or her position to the Company orally or in writing, and the
Claimant (or counsel) shall have the right to review the pertinent documents.
The Company shall notify the Claimant of its decision in writing within the
sixty-day period, stating specifically the basis of its decision, written in a
manner calculated 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 sixty-day period is not sufficient, the decision may be deferred
for up to another sixty-day period at the election of the Company, but notice of
this deferral shall be given to the Claimant.
Article 7
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
Article 8
Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 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 Company, nor does it interfere with the Company's right to
discharge the Executive. It also does not require the Executive to remain an
employee nor interfere with the Executive's right to terminate employment at any
time.
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8.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
8.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the Commonwealth of Pennsylvania, except to the extent
preempted by the laws of the United States of America.
8.6 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Company for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Company to pay such
benefits. The rights to benefits are not subject in any manner 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 Company to which the Executive and beneficiary have no preferred or
secured claim.
8.7 Recovery of Estate Taxes. If the Executive's gross estate for
federal estate tax purposes includes any amount determined by reference to and
on account of this Agreement, and if the beneficiary is other than the
Executive's estate, then the Executive's estate shall be entitled to recover
from the beneficiary receiving such benefit under the terms of the Agreement, an
amount by which the total estate tax due by the Executive's estate, exceeds the
total estate tax which would have been payable if the value of such benefit had
not been included in the Executive's gross estate. If there is more than one
person receiving such benefit, the right of recovery shall be against each such
person. In the event the beneficiary has a liability hereunder, the beneficiary
may petition the Company for a lump sum payment in an amount not to exceed the
beneficiary's liability hereunder.
8.8 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive as to the subject matter hereof. No rights
are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
8.9 Administration. The Company shall have powers which are necessary
to administer this Agreement, including but not limited to:
8.9.1 Interpreting the provisions of the Agreement;
8.9.2 Establishing and revising the method of accounting for the
Agreement;
8.9.3 Maintaining a record of benefit payments; and
8.9.4 Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
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IN WITNESS WHEREOF, the Executive and a duly authorized Company officer
have signed this Agreement.
EXECUTIVE: COMPANY:
WAYNE BANK
/s/Joseph A. Kneller By /s/William W. Davis, Jr.
- ------------------------------ ------------------------
Joseph A. Kneller Title President & CEO
By execution hereof, Norwood Financial consents to and agrees to be
bound by the terms and condition of this Agreement and to guarantee said terms.
ATTEST: CORPORATION:
NORWOOD FINANCIAL
/s/Nancy A. Hart By /s/William W. Davis, Jr.
- ------------------------------ ------------------------
Assistant Secretary Title President & CEO
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SCHEDULE A
WAYNE BANK
SALARY CONTINUATION AGREEMENT
LIFETIME BENEFITS
Joseph A. Kneller
Early Change of
Termination Disability Control
Plan Vesting Accrued Annual Benefit Annual Benefit Annual Benefit
Year Schedule Benefit (1) (2) (1)
1 100.00% $10,178 $2,059 $1,132 $14,000
2 100.00% $21,147 $3,970 $2,352 $14,000
3 100.00% $32,967 $5,743 $3,667 $14,000
4 100.00% $45,704 $7,389 $5,084 $14,000
5 100.00% $59,431 $8,916 $6,611 $14,000
6 100.00% $74,223 $10,333 $8,257 $14,000
7 100.00% $90,163 $11,648 $10,030 $14,000
8 100.00% $107,341 $12,868 $11,941 $14,000
9 100.00% $125,852 $14,000 $14,000 $14,000
(5) Payments commence at Normal Retirement Age
(6) Payments commence at Termination of Employment
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BENEFICIARY DESIGNATION
WAYNE BANK
SALARY CONTINUATION AGREEMENT
Joseph A. Kneller
I designate the following as beneficiary of any death benefits under the Salary
Continuation Agreement:
Primary: Carol A. Kneller
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- --------------------------------------------------------------------------------
Contingent: Amy C. Kneller and Matthew J. Kneller
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each to receive 50% of the benefits
- --------------------------------------------------------------------------------
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 Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary, in the event of the dissolution of our marriage.
Signature /s/Joseph A. Kneller
-----------------------------
Date October 1, 1999
-----------------------------
Accepted by the Company this 1st day of October, 1999.
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By /s/William W. Davis, Jr.
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Title President & CEO
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