EXHIBIT 10.13 DIRECTORS SUPPLEMENT LIFE INSURANCE/SPLIT DOLLAR PLAN
THE JUNIATA VALLEY BANK
DIRECTOR SPLIT DOLLAR AGREEMENT
THIS AGREEMENT is made and entered into this day of
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, 2001, by and between THE JUNIATA VALLEY BANK, a
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state-chartered commercial bank located in Mifflintown, Pennsylvania (the
"Bank"), and (the "Director"), intending to be legally bound hereby.
INTRODUCTION
To encourage the Director to continue to serve on the Board of Directors of
the Bank, the Bank is willing to divide the death proceeds of a life insurance
policy on the Director's life. The Bank will pay life insurance premiums from
its general assets.
ARTICLE 1
GENERAL DEFINITIONS
The following terms shall have the meanings specified:
1.1 "Change in Control" means any of the following:
(A) any person (as such term is used in Sections 13d and 14d-2 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), other
than the Corporation, a subsidiary of the Corporation, an employee benefit
plan (or related trust) of the Corporation or a direct or indirect
subsidiary of the Corporation, or Affiliates of the Corporation (as defined
in Rule 12b-2 under the Exchange Act), becomes the beneficial owner (as
determined pursuant to Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing more than 50% of
the combined voting power of the Corporation's then outstanding securities
(other than a person owning 10% or more of the voting power of stock on the
date hereof); or
(B) the liquidation or dissolution of the Corporation or the
occurrence of, or execution of an agreement providing for a sale of all or
substantially all of the assets of the Corporation to an entity which is
not a direct or indirect subsidiary of the Corporation; or
(C) the occurrence of, or execution of an agreement providing for a
reorganization, merger, consolidation or other similar transaction or
connected series of transactions of the Corporation as a result of which
either (a) the Corporation does not survive or (b) pursuant to which shares
of the Corporation common stock ("Common Stock") would be converted into
cash, securities or other property, unless, in case of either (a) or (b),
the holders of the Corporation Common Stock immediately prior to such
transaction will, following the consummation of the transaction,
beneficially own, directly or indirectly, more than 50% of the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors of the corporation surviving,
continuing or resulting from such transaction; or
(D) the occurrence of, or execution of an agreement providing for a
reorganization, merger, consolidation or similar transaction of the
Corporation, or before any connected series of such transactions, if upon
consummation of such transaction or transactions, the persons who are
members of the Board of Directors of the Corporation immediately before
such transaction or transactions cease or, in the case of the execution of
an agreement for such transaction or transactions, it is contemplated in
such agreement that upon consummation such persons would cease to
constitute a majority of the Board of Directors of the Corporation or, in
the case where the Corporation does not survive in such transaction, of the
corporation surviving, continuing or resulting from such transaction or
transactions; or
(E) any other event which is at any time designated as a "Change in
Control" for purposes of this Agreement by a resolution adopted by the
Board of Directors of the Corporation with the affirmative vote of a
majority of the non-employee directors in office at the time the resolution
is adopted; in the event any such resolution is adopted, the Change in
Control event specified thereby shall be deemed incorporated herein by
reference and thereafter may not be amended, modified or revoked without
the written agreement of the Director; or
(F) during any period of two consecutive years during the term of this
Agreement, individuals who at the beginning of such period constitute the
Board of Directors of the Bank or Corporation cease for any reason to
constitute at least a majority thereof, unless the election of each
director who was not a director at the beginning of such period has been
approved in advance by directors representing at least two-thirds of the
directors then in office who were directors at the beginning of the period,
provided however this provision shall not apply in the event two-thirds of
the Board of Directors at the beginning of a period no longer are directors
due to death, normal retirement, or other circumstances not related to a
Change in Control.
Notwithstanding anything else to the contrary set forth in this Agreement,
if (i) an agreement is executed by the Corporation providing for any of the
transactions or events constituting a Change in Control as defined herein, and
the agreement subsequently expires or is terminated without the transaction or
event being consummated, and (ii) Director's service did not terminate during
the period after the agreement and prior to such expiration or termination, for
purposes of this Agreement it shall be as though such agreement was never
executed and no Change in Control event shall be deemed to have occurred as a
result of the execution of such agreement.
1.2 "Corporation" means The Juniata Valley Financial Corp.
1.3 "Disability" means the Director suffering a sickness, accident or
injury which, in the judgment of a physician satisfactory to the Bank,
permanently prevents the Director from performing substantially all of the
Director's normal duties for the Bank. As a condition to any benefits, the Bank
may require the Director to submit to such physical or mental evaluations and
tests as the Bank's Board of Directors deems appropriate.
1.4 "Insured" means the Director.
1.5 "Insurer" means Jefferson Pilot Life Insurance Company.
1.6 "Policy" means insurance policy # JP0053696 issued by the Insurer.
1.7 "Termination of Service" means the Director ceasing to be a member of
the Board of Directors of the Bank or the Corporation for any reason other than
death.
1.8 "Vested Insurance Benefit" means the Bank will provide the Director
with continued insurance coverage from the date of vesting until death, subject
to the forfeiture provisions detailed in Article 5. Article 3 explains how a
Director achieves vested status.
1.9 "Years of Service" means the total number of continuous years of
service as a director of the Bank or the Corporation, inclusive of any years of
service as a director of Lewistown Trust Company and inclusive of any approved
leaves of absences.
ARTICLE 2
POLICY OWNERSHIP/INTERESTS
2.1 Bank Ownership. The Bank is the sole owner of the Policy and shall be
the direct beneficiary of the death proceeds of the Policy remaining after the
Director's interest is determined according to Section 2.2 below.
2.2 Director's Interest. Subject to the forfeiture provisions of Section
3.2, the Director shall have the right to designate the beneficiary of $25,000
of death proceeds while serving on the Bank's (or Corporation's) Board, or if
not serving on the Board, if the Director has a Vested Insurance Benefit
pursuant to Section 3.1. The Director shall also have the right to elect and
change settlement options that may be permitted.
2.3 Comparable Coverage. If the Director has a Vested Insurance Benefit
that has not been forfeited, the Bank shall maintain the Policy in full force
and effect and in no event shall the Bank amend, terminate or otherwise abrogate
the Director's interest in the Policy. However, the Bank may replace the Policy
with a comparable insurance policy to cover the benefit provided under this
Agreement. The Policy or any comparable policy shall be subject to the claims of
the Bank's creditors.
2.4 Offer to Purchase. The Bank shall not sell, surrender or transfer
ownership of the Policy while this Agreement is in effect without first giving
the Director or the Director's transferee the option to purchase the Policy for
a period of thirty (30) days from written notice of such intention. The purchase
price shall be an amount equal to the cash surrender value of the Policy. This
provision shall not apply if the Director terminated service without attaining a
Vested Insurance Benefit or if a forfeiture of benefits occurred pursuant to
Section 3.2, in either of which events Bank may sell, surrender or transfer
ownership of the Policy without notice to Director or Director's beneficiary.
ARTICLE 3
VESTING
3.1 Vested Insurance Benefit. The Director shall have a Vested Insurance
Benefit equal to the Director's interest as set forth in paragraph 2.2 herein at
the earliest of the following events:
3.1.1 If death occurs while the Director is a member of the Board of
Directors of the Bank or the Corporation;
3.1.2 Continuing to serve on the Board until the combination of the
Director's age and Years of Service equals or exceeds 72;
3.1.3 Termination of Service on or after age 65;
3.1.4 Termination of Service due to Disability;
3.1.5 The occurrence of a Change in Control while the Director is a
member of the Board of Directors of the Bank or the Corporation, provided
that the Director does not resign his position as a member of the Board of
Directors prior to consummation of the transaction which constitutes the
Change in Control; or
3.1.6 At the discretion of the Board of Directors if there are other
circumstances not addressed in Sections 3.1.2, 3.1.3, 3.1.4 or 3.1.5 of
this Agreement.
3.2 Forfeiture of Benefit. Notwithstanding the provisions of Section 3.1,
the Director will forfeit his or her Vested Insurance Benefit: (1) if the
Director violates any of the provisions detailed in Article 5 or, (2) if the
payment of the benefit would violate any federal or state banking regulations.
ARTICLE 4
PREMIUMS
4.1 Premium Payment. The Bank shall pay any premiums due on the Policy.
4.2 Imputed Income. The Bank shall impute income to the Director in an
amount equal to the current term rate for the Director's age multiplied by the
aggregate death benefit payable to the Director's beneficiary. The "current term
rate" is the minimum amount required to be imputed under Revenue Rulings 64-328
and 66-110, or any subsequent applicable authority.
ARTICLE 5
FORFEITURE OF BENEFIT
5.1 Excess Parachute or Golden Parachute Payment. Notwithstanding any
provision of this Agreement to the contrary, the benefit provided under this
Agreement shall be forfeited to the extent the benefit would be an excess
parachute payment under Section 280G of the Code or would be a prohibited golden
parachute payment pursuant to 12 C.F.R. Section 359.2 and for which the
appropriate federal banking agency has not given written consent to pay pursuant
to 12 C.F.R. Section 359.4.
5.2 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the benefit provided under this Agreement shall be forfeited if
the Bank terminates the Director's service for:
(a) Gross negligence or gross neglect of duties;
(b) Commission of a felony or of a gross misdemeanor involving moral
turpitude; or
(c) Fraud, disloyalty, dishonesty or willful violation of any law or
significant Bank policy resulting in an adverse effect on the Bank.
5.3 Removal. Notwithstanding any provision of this Agreement to the
contrary, the benefit provided under this Agreement shall be forfeited if the
Director 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.
5.4 Competition. No benefits shall be payable if the Director, without the
prior written consent of the Bank, violates the following described restrictive
covenants.
5.4.1 Non-compete Provision. The Director 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 any financial institution, as that term is
defined in the Gramm-Leach-Bliley Act of 1999, Pub. L. 106-102, that
has its main office, a branch office, or conducts any business within
a forty (40) mile radius of Mifflintown, Pennsylvania; 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
Director's service; 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 Director 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 Director's service; 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 until
it becomes known to the general public from sources other than the
Director.
5.4.2 Judicial Remedies. In the event of a breach or threatened breach
by the Director of any provision of these restrictions, the Director
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 event of a breach or threatened breach of this Agreement, the Director
consents to the Corporation's or any of its subsidiaries' entitlement to
such ex parte, preliminary, interlocutory, temporary or permanent
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injunctive, or any other equitable relief, protecting and fully enforcing
the Corporation's or any of its subsidiaries' rights hereunder and
preventing the Director from further breaching any of his obligations set
forth herein. The Director 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 Director. The Director expressly acknowledges and agrees that: (i)
the restrictions set forth in Section 5.4.1 are reasonable, in terms of
scope, duration, geographic area, and otherwise, (ii) the protections
afforded the Corporation or any of its subsidiaries in Section 5.4.1 are
necessary to protect its legitimate business interest, (iii) the
restrictions set forth in Section 5.4.1 will not be materially adverse to
the Director's service with the Bank, and (iv) his agreement to observe
such restrictions forms a material part of the consideration for this
Agreement.
5.4.3 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.
5.4.4 The non-compete provision detailed in Section 5.4.1 shall not be
enforceable following a Change in Control.
5.5 Suicide or Misstatement. No benefits shall be payable if the Director
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
Director on any application for life insurance purchased by the Bank, or any
other reason; provided, however that the Bank shall evaluate the reason for the
denial, and upon advice of legal counsel and in its sole discretion, consider
judicially challenging any denial. The Bank shall have no liability to the
Director for any denial of coverage by the insurance company.
ARTICLE 6
ASSIGNMENT
The Director may assign without consideration all interests in the Policy
and in this Agreement to any person, entity or trust. In the event the Director
transfers all of the Director's interest in the Policy, then all of the
Director's interest in the Policy and in the Agreement shall be vested in the
Director's transferee, who shall be substituted as a party hereunder and the
Director shall have no further interest in the Policy or in this Agreement.
ARTICLE 7
INSURER
The Insurer shall be bound only by the terms of the Policy. Any payments
the Insurer makes or actions it takes in accordance with the Policy shall fully
discharge it from all claims, suits and demands of all entities or persons. The
Insurer shall not be bound by or be deemed to have notice of the provisions of
this Agreement.
ARTICLE 8
CLAIMS PROCEDURE
Any dispute, controversy or claim arising out of or under this agreement or
its performance shall first be negotiated by the parties, and if an acceptable
resolution does not result, shall be submitted to arbitration which shall be
exclusive, final, binding and conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association ("AAA"). Each party
shall bear the fees and expenses of its counsel and witnesses, and the cost of
the arbitration shall be borne as set forth in the award, or in the absence of
an award or a specific determination by the arbitrator or agreement of the
parties, shall be borne equally by the parties. At any time before the
arbitrator has served upon the parties a written award, the parties may resolve
the dispute by settlement, whereupon they shall direct the arbitrator to cease
his or her deliberations and render a final accounting of fees and expenses to
be paid by the parties in accordance with the foregoing. Any decision of the
arbitrator may be entered as a judgment in any court of competent jurisdiction
and may be enforced as such in accordance with the provisions of the award. This
agreement to arbitrate shall be specifically enforceable by the parties, and
they confirm that they intend that all disputes, controversies or claims of any
kind shall be arbitrated. Arbitration proceedings shall be held in Mifflintown,
Pennsylvania, or in such other locale on which the parties may mutually agree.
ARTICLE 9
AMENDMENT OR TERMINATION
This Agreement may be amended or terminated only by a written agreement
signed by the Bank and the Director, except for the automatic termination
provisions provided in Article 5.
ARTICLE 10
MISCELLANEOUS
10.1 Binding Effect. This Agreement shall bind the Director and the Bank,
their successors, beneficiaries, survivors, executors, administrators and
transferees, and any Policy beneficiary.
10.2 No Guarantee of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain a Director of the
Bank, nor does it interfere with the shareholders' rights to replace the
Director. It also does not require the Director to remain a Director nor
interfere with the Director's right to terminate services at any time.
10.3 Applicable Law. The Agreement and all rights hereunder shall be
governed by and construed according to the laws of the Commonwealth of
Pennsylvania, except to the extent preempted by the laws of the United States of
America.
10.4 Reorganization. The Bank shall not merge or consolidate into or with
another company, or reorganize, or sell substantially all of its assets to
another company, firm or person unless such succeeding or continuing company,
firm or person agrees to assume and discharge the obligations of the Bank.
10.5 Notice. Any notice, consent or demand required or permitted to be
given under the provisions of this Split Dollar Agreement 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 or her last known address as shown on
the records of the Bank. The date of such mailing shall be deemed the date of
such mailed notice, consent or demand.
10.6 Entire Agreement. This Agreement constitutes the entire agreement
between the Bank and the Director as to the subject matter hereof. No rights are
granted to the Director by virtue of this Agreement other than those
specifically set forth herein.
10.7 Administration. The Bank shall have powers which are necessary to
administer this Agreement, including, but not limited to:
10.7.1 Interpreting the provisions of the Agreement;
10.7.2 Establishing and revising the method of accounting for the
Agreement;
10.7.3 Maintaining a record of benefit payments; and
10.7.4 Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
10.8 Named Fiduciary. The Bank shall be the named fiduciary and plan
administrator under this Agreement. It may delegate to others certain aspects of
the management and operational responsibilities including the service of
advisors and the delegation of ministerial duties to qualified individuals.
10.9 Recovery of Estate Taxes. If the Director'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 Director's
estate, then the Director'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 Director's estate, exceeds the total
estate tax which would have been payable if the value of such benefit had not
been included in the Director'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 Bank for a lump sum payment in an amount not to exceed the
beneficiary's liability hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
DIRECTOR: BANK:
THE JUNIATA VALLEY BANK
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By execution hereof, The Juniata Valley Financial Corp. consents to and
agrees to be bound by the terms and condition of this Agreement.
ATTEST: CORPORATION:
THE JUNIATA VALLEY FINANCIAL CORP.
By
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