Exhibit 10.10
EVANS NATIONAL BANK
EXECUTIVE LIFE INSURANCE PLAN
INTRODUCTION
Evans National Bank (the "Bank") wishes to attract and retain highly qualified
officers and directors. To further this objective, the Bank is willing to divide
the death proceeds of certain life insurance policies which are owned by the
Bank on the lives of the participating officers and directors with the
designated beneficiaries.
ARTICLE 1
DEFINITIONS
Whenever used in this Plan, the following terms shall have the meanings
specified:
"Affiliate" means Evans Bancorp, Inc. and any wholly owned subsidiary of Evans
Bancorp, Inc. (other than the Bank) or the Bank.
"Base Annual Salary" means the current base annual salary of the Participant at
the earliest of (1) the date of the Participant's death; (2) the date of the
Participant's Disability; (3) the date the Participant's employment with the
Bank terminates within two years after a Change in Control (except for
Termination for Cause); (4) the date of the Participant's termination of
employment on or after attaining Early Retirement Age; or (5) the Participant's
Normal Retirement Date.
"Change in Control" means any one of the following events occurs:
(a) Merger: The Company merges into or consolidates with another
corporation, or merges another corporation into the Company and as a
result less than a majority of the combined voting power of the
resulting corporation immediately after the merger or consolidation is
held by persons who were stockholders of the Company immediately
before the merger or consolidation;
(b) Acquisition of Significant Share Ownership: a report on Schedule 13D
or another form or schedule (other than Schedule 13G) is filed or is
required to be filed under Sections 13(d) or 14(d) of the Securities
Exchange Act of 1934, if the schedule discloses that the filing person
or persons acting in concert has or have become the beneficial owner
of 25% or more of a class of the Company's voting securities, but this
clause (b) shall not apply to beneficial ownership of Company voting
shares held in a fiduciary capacity by an entity of which Company
directly or indirectly beneficially owns 50% or more of its
outstanding voting securities;
(c) Change in Board Composition: during any period of two consecutive
years, individuals who constitute the Company's Board of Directors at
the beginning of the two-year period cease for any reason to
constitute at least a majority of the Company's Board of Directors;
provided, however, that for purposes of this clause (c) each director
who is first elected by the board (or first nominated by the board for
election by stockholders) by a vote of at least two-thirds (b) of the
directors who were directors at the beginning of the period shall be
deemed to have been a director at the beginning of the two-year
period; or
(d) Sale of Assets: The Company sells to a third party all or
substantially all of the Company's assets.
"Company" means Evans Bancorp, Inc., a New York corporation, and any successors
thereto.
"Director" means a non-employee member of the Board of Directors of the Bank or
an Affiliate.
"Disability" means the Participant's suffering a sickness, accident or injury
which has been determined by the carrier of any individual or group disability
insurance policy covering the Participant, or by the Social Security
Administration, to be a disability rendering the Participant totally and
permanently disabled. The Participant must submit proof to the Bank of the
carrier's or Social Security Administration's determination upon the request of
the Bank.
"Early Retirement Age" means the Participant has attained an age such that the
sum of the Participant's age and Years of Service (rounded up to the next full
year) at termination totals at least 75.
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"Insured" means the individual whose life is insured.
"Insurer" means the insurance company issuing the life insurance policy on the
life of the Insured.
"Normal Retirement Age" means the Participant attaining age 65.
"Normal Retirement Date" means the later of the Normal Retirement Age or the
date that the Participant terminates or is terminated for any reason other than
Termination for Cause.
"Participant" means an officer of the Bank or an Affiliate or a Director who is
designated as a Participant in Appendix A to the Plan and elects in writing to
participate in the Plan using the form attached hereto as Appendix B, and by
signing a split dollar endorsement for the Policy under which he or she is the
Insured.
"Policy" or "Policies" means the individual insurance policy or policies
acquired by the Bank for purposes of insuring a Participant's life under this
Plan.
"Plan" means this Evans National Bank Executive Life Insurance Plan.
"Terminated for Cause" or "Termination for Cause" shall mean termination because
of the Employee's personal dishonesty, incompetence, willful misconduct, breach
of fiduciary duty involving personal profit, intentional failure to perform
stated duties, willful violation of any law, rule or regulation (other than
traffic violations or similar infractions) or a final cease-and-desist order.
"Years of Service" means the total number of twelve-month periods during which
the Participant serves as an employee of the Bank.
ARTICLE 2
PARTICIPATION
2.1 PARTICIPATION. A Participant may commence participation in this Plan by
executing an Election to Participate and a split dollar endorsement for
each Policy. The split dollar endorsement shall bind the Participant and
his or her beneficiaries, assigns and transferees, to the terms and
conditions of this Plan.
2.2 TERMINATION OF PARTICIPATION. In the case of a Participant who is an
officer of the Bank or an Affiliate, a Participant's rights under this Plan
shall cease and his or her participation in this Plan shall terminate if
any of the following events occur:
(a) If the Participant is Terminated for Cause;
(b) If the Participant's employment is terminated prior to his Early
Retirement Age for reasons other than Disability or following a Change
in Control; or
(c) If the Participant terminates employment due to Disability and
thereafter becomes gainfully employed with an entity other than the
Bank.
In the case of a Participant who is a Director, participation shall
terminate only upon Termination for Cause.
In the event that the Bank decides to maintain the Policy after the
Participant's termination of participation in the Plan, the Bank shall be
the direct beneficiary of the entire death proceeds of the Policy.
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2.3 MAINTAINING THE POLICY AND ENDORSEMENT UNTIL DEATH. If any of the events
listed below occur, the Bank shall maintain the Policy in full force and
effect and, in no event, shall the Bank amend, terminate or otherwise
abrogate the Participant's interest in the Policy, unless the Participant
agrees pursuant to Section 8.1. The Bank may replace the Policy with a
comparable insurance policy to cover the benefit provided under this
Agreement if the Bank and Participant execute a new split dollar policy
endorsement for a comparable benefit.
(a) Disability. If the Participant's employment is terminated due to
Disability, except as set forth in section 2.2(c) herein.
(b) Retirement. If the Participant's employment is terminated on or after
Early Retirement Age (except for Termination for Cause).
(c) Change in Control. If the Participant's employment terminates within
two years after a Change in Control (except for Termination for
Cause).
ARTICLE 3
POLICY OWNERSHIP/INTERESTS
3.1 PARTICIPANT'S INTEREST. With respect to each Policy, the Participant or the
Participant's assignee shall have the right to designate the beneficiary of
one of the following death benefits:
(a) If the Participant is an officer of the Bank or an Affiliate and was
first employed by the Bank or an Affiliate on or before May 2, 1992,
the death benefit shall be 3.75 times the Participant's Base Annual
Salary, less the Participant's $50,000 group term life insurance
benefit under the Bank's group term life insurance policy.
(b) If the Participant is an officer of the Bank or an Affiliate and was
first employed by the Bank or an Affiliate after May 2, 1992, the
death benefit shall be two times the Participant's Base Annual Salary,
less the Participant's $50,000 group term life insurance benefit under
the Bank's group term life insurance policy.
(c) In the case of a Participant who is a Director, the death benefit
shall be $200,000.
The Participant shall also have the right to elect and change settlement
options with the consent of the Bank and the Insurer to the extent of the
Participant's death benefits.
3.2 BANK'S INTEREST. Except to the extent provided in Section 2.3, the Bank
shall own the Policies and shall have the right to exercise all incidents
of ownership except that the Bank shall not sell, surrender or transfer
ownership of a Policy so long as a Participant has an interest in the
Policy. With respect to each Policy, the Bank shall be the direct
beneficiary of the remaining death proceeds of the Policy after the
Participant's interest is determined according to section 3.1.
ARTICLE 4
PREMIUMS
4.1 PREMIUM PAYMENT. The Bank shall pay all premiums due on all Policies.
4.2 IMPUTED INCOME. The Bank shall annually impute income to each Participant
in the minimum amount required under applicable federal tax law based on
the net death benefit payable to the Participant's beneficiary during the
calendar year.
ARTICLE 5
ASSIGNMENT
Any Participant may assign without consideration all interests in his or her
Policy and in this Plan to any person, entity or trust. In the event a
Participant shall transfer all of his or her interest in the Policy, then all of
that Participant's interest in his or her Policy and in the Plan shall be vested
in his or her transferee, who shall be substituted as a party hereunder, and
that Participant shall have no further interest in his or her Policy or in this
Plan.
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ARTICLE 6
INSURER
The Insurer shall be bound only by the terms of their corresponding Policy. Any
payments the Insurer makes or actions it takes in accordance with a Policy shall
fully discharge it from all claims, suits and demands of all persons relating to
that Policy. The Insurer shall not be bound by the provisions of this Plan. The
Insurer shall have the right to rely on the Bank's representations with regard
to any definitions, interpretations, or Policy interests as specified under this
Plan.
ARTICLE 7
ADMINISTRATION AND CLAIM
Section 7.1 ADMINISTRATION.
The administration of the Plan, the exclusive power to interpret it, and
the responsibility for carrying out its provisions are vested in the Board,
which may, at any time, by resolution of the Board, delegate such functions
to a committee of the Board. The Board shall have the authority to resolve
any question under the Plan. The determination of the Board as to the
interpretation of the Plan or any disputed question shall be conclusive and
final to the extent permitted by applicable law.
Section 7.2 CLAIMS PROCEDURES.
(a) Claims for benefits under the Plan shall be submitted in writing to
the Chairman of the Board.
(b) If any claim for benefits is wholly or partially denied, the claimant
shall be given written notice within a reasonable period following the
date on which the claim is filed, which notice shall set forth:
(i) the specific reason or reasons for the denial;
(ii) specific reference to pertinent Plan provisions on which the
denial is based;
(iii) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary;
and
(iv) an explanation of the Plan's claim review procedure.
If the claim has not been granted and written notice of the denial of the
claim is not furnished in a timely manner following the date on which the
claim is filed, the claim shall be deemed denied for the purpose of
proceeding to the claim review procedure.
(c) The claimant or his authorized representative shall have 30 days after
receipt of written notification of denial of a claim to request a
review of the denial by making written request to the Chairman of the
Board, and may review pertinent documents and submit issues and
comments in writing within such 30-day period.
(d) After receipt of the request for review, the Board shall, in a timely
manner, render and furnish to the claimant a written decision, which
shall include specific reasons for the decision and shall make
specific references to pertinent Plan provisions on which it is based.
Such decision by the Board shall not be subject to further review. If
a decision on review is not furnished to a claimant, the claim shall
be deemed to have been denied on review.
(e) No claimant shall institute any action or proceeding in any state or
federal court of law or equity or before any administrative tribunal
or arbitrator for a claim for benefits under the Plan until the
claimant has first exhausted the provisions set forth in this section.
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ARTICLE 8
AMENDMENTS AND TERMINATION
8.1 AMENDMENT OR TERMINATION OF PLAN. Except as otherwise provided in sections
2.3 and 8.2, the Bank may amend or terminate the Plan at any time.
8.2 AMENDMENT OR TERMINATION OF PLAN UPON CHANGE IN CONTROL. Notwithstanding
the provisions of section 8.1, in the event of a Change in Control, the
Bank, or its successor, shall maintain in full force and effect each Policy
that is in existence on the date the Change in Control occurs and shall not
terminate or otherwise abrogate a Participant's interest in the Policy.
However, the Bank may replace the Policy with a comparable insurance policy
to cover the benefit provided under this Plan to the Participant. This
section 8.2 shall apply to all Participants in the Plan on the date the
Change in Control occurs, including but not limited to (i) a retired
Participant who has an interest in a Policy; (ii) a disabled Participant
who has an interest in a Policy; and (iii) a Participant whose employment
terminates within two years of a Change in Control.
ARTICLE 9
MISCELLANEOUS
9.1 BINDING EFFECT. This Plan in conjunction with each split dollar endorsement
shall bind each Participant and the Bank, their beneficiaries, survivors,
executors, administrators and transferees and any Policy beneficiary.
9.2 NO GUARANTEE OF EMPLOYMENT. This Plan is not an employment policy or
contract. It does not give a Participant the right to remain an employee of
the Bank, nor does it interfere with the Bank's right to discharge a
Participant. It also does not require a Participant to remain an employee
nor interfere with a Participant's right to terminate employment at any
time.
9.3 APPLICABLE LAW. The Plan and all rights hereunder shall be governed by and
construed according to the laws of the State of New York, except to the
extent preempted by federal law.
9.4 NOTICE. Any notice, consent or demand required or permitted to be given
under the provisions of this Plan by one party to another shall be in
writing, shall be signed by the party giving or making the same, and may be
given either by delivering the same to such other party personally, or by
mailing the same, by United States certified mail, postage prepaid, to such
party, addressed to his/her last known address as shown in the records of
the Bank. The date of such mailing shall be deemed the date of such mailed
notice, consent or demand.
9.5 ENTIRE AGREEMENT. This Plan constitutes the entire agreement between the
Bank and the Participant as to the subject matter hereof. No rights are
granted to the Participants by virtue of this Plan other than those
specifically set forth herein.
9.6 DESIGNATED FIDUCIARY. For purposes of the Employee Retirement Income
Security Act of 1974, if applicable, the Bank shall be the named fiduciary
and plan administrator under the Agreement. The named fiduciary may
delegate to others certain aspects of the management and operational
responsibilities of the Plan, including the employment of advisors and the
delegation of ministerial duties to qualified individuals.
9.7 SEVERABILITY. If for any reason any provision of this Agreement is held
invalid such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall, to the
full extent consistent with the law, continue in full force and effect. If
any provision of this Agreement shall be held invalid in part, such
invalidity shall in no way affect the rest of such provision, not held so
invalid, and the rest of such provision, together with all other provisions
of this Agreement shall, to the full extent consistent with the law,
continue in full force and effect.
9.8 HEADINGS. The headings of Sections herein are included solely for
convenience of reference and shall not affect the meaning or interpretation
of any provision of this Agreement.
9.9 EFFECTIVE DATE. The effective date of the Plan is April 1, 2003.
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APPENDIX A
DIRECTORS
Phillip Brothman
Thomas H. Waring, Jr.
Robert W. Allen
William F. Barrett
James Biddle, Jr.
Laverne G. Hall
David M. Taylor
OFFICERS
James Tilley
William Glass
Mark DeBacker
Robert Miller, Jr.
Michael Noville
Jeffrey Werdein
Michael Schafer
Jeffrey White
Susan Herold
Katherine Allen
George Catalano
Howard Martin
Timothy Jachlewski
John Connerton
Mary Jo Shults
Ron Miller
Lou Atti
Fred Gould
Emily Hazlett
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APPENDIX B
ELECTION TO PARTICIPATE
I,_____________________________________ , hereby elect to become a Participant
in the Plan in accordance with Section 2.2 of the Plan. Additionally, I
acknowledge that I have read the Plan document and agree to be bound by its
terms.
Executed this ________ day of ______________, 2003.
_____________________________________
Participant
_____________________________________
Witness
Accepted by Evans National Bank:
By:__________________________________
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