WEST MICHIGAN COMMUNITY
BANK
Supplemental Executive
Retirement Agreement
Exhibit 10.16
THIS
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT (the “Agreement”) is adopted this
10th day of March, 2006, by and between WEST MICHIGAN COMMUNITY BANK, a state-chartered
commercial bank located in Hudsonville, Michigan (the “Bank”) and ▇▇▇▇▇▇ ▇▇▇▇▇▇
(the “Executive”).
BACKGROUND
On
August 13, 1999, the Bank (then known as “The State Bank”) and the Executive
entered into the Incentive Supplemental Executive Retirement Agreement (the “Prior
Agreement”). The Bank and the Executive now wish to amend and restate the Prior
Agreement for the purpose of updating the terms and provisions contained therein. This new
Agreement shall rescind and replace the Prior Agreement.
The
parties intend this Amended and Restated Agreement to be a material modification of the
Prior Agreement such that all amounts earned and vested prior to December 31, 2004 shall
be subject to the provisions of Section 409A of the Code and the regulations promulgated
thereunder.
INTRODUCTION
The
purpose of this Agreement is to provide specified benefits to the Executive, a member of a
select group of management or highly compensated employees who contribute materially to
the continued growth, development, and future business success of the Bank. This Agreement
shall be unfunded for tax purposes and for purposes of Title I of the Employee Retirement
Income Security Act of 1974 (“ERISA”), as amended from time to time.
Article 1
Definitions
| |
Whenever
used in this Agreement, the following words and phrases shall have the meanings
specified: |
| 1.1 |
|
“Accrual Balance” means the liability that should be accrued by the Bank,
under Generally Accepted Accounting Principles (“GAAP”), for the Bank’s
obligation to the Executive under this Agreement, by applying Accounting Principles Board
Opinion Number 12 (“APB 12”) as amended by Statement of Financial Accounting
Standards Number 106 (“FAS 106”) and the Discount Rate. Any one of a variety of
amortization methods may be used to determine the Accrual Balance. However, once chosen,
the method must be consistently applied. The Accrual Balance shall be reported annually by
the Bank to the Executive. |
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WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
| 1.2 |
|
“Base Salary” shall mean the annual cash compensation relating to
services performed during any calendar year, excluding distributions from nonqualified
deferred compensation plans, bonuses, commissions, overtime, fringe benefits, stock
options, relocation expenses, incentive payments, non-monetary awards, and other fees, and
automobile and other allowances paid to an Executive for employment services rendered
(whether or not such allowances are included in the Executive’s gross income). Base
Salary shall be calculated before reduction for compensation voluntarily deferred or
contributed by the Executive pursuant to all qualified or non-qualified plans of the Bank
and shall be calculated to include amounts not otherwise included in the Executive’s
gross income under Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans
established by the Bank; provided, however, that all such amounts will be included in
compensation only to the extent that had there been no such plan, the amount would have
been payable in cash to the Executive. |
| 1.3 |
|
“Beneficiary” means each designated person, or the estate of the deceased
Executive, entitled to benefits, if any, upon the death of the Executive determined
pursuant to Article 4. |
| 1.4 |
|
“Beneficiary Designation Form” means the form established from time to time by
the Plan Administrator that the Executive completes, signs, and returns to the Plan
Administrator to designate one or more Beneficiaries. |
| 1.5 |
“Board” means
the Board of Directors of the Bank as from time to time constituted. |
| 1.6 |
|
“Change in Control” means a change in the ownership or effective control
of the Company or Bank, or in the ownership of a substantial portion of the assets of the
Company or Bank, as such change is defined in Section 409A of the Code and regulations
thereunder. |
| 1.7 |
“Code” means
the Internal Revenue Code of 1986, as amended. |
| 1.8 |
“Company” means
Fentura Bancorp, Inc., a registered bank holding company under the Bank Holding Company
Act of 1956, as amended. |
| 1.9 |
|
“Disability” means Executive (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, or (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. Medical determination of Disability may be made by either the
Social Security Administration or by the provider of an accident or health plan covering
employees of the Bank. Upon the request of the Plan Administrator, the Executive must
submit proof to the Plan Administrator of Social Security Administration’s or the
provider’s determination. |
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WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
| 1.10 |
|
“Discount Rate” means the rate used by the Plan Administrator for
determining the Accrual Balance. The initial Discount Rate is six percent (6%). However,
the Plan Administrator, in its discretion, may adjust the Discount Rate to maintain the
rate within reasonable standards according to GAAP and/or applicable bank regulatory
guidance. |
| 1.11 |
|
“Early Termination” means Separation from Service before Normal
Retirement Age for reasons other than death, Disability, Termination for Cause, or within
twelve (12) months following a Change in Control. |
| 1.12 |
“Effective
Date” means January 15, 1999. |
| 1.13 |
“Normal
Retirement Age” means the Executive attaining age sixty five (65). |
| 1.14 |
“Normal
Retirement Date” means the later of Normal Retirement Age or Separation from
Service. |
| 1.15 |
“Plan
Administrator” means the plan administrator described in Article 6. |
| 1.16 |
“Plan
Year” means the calendar year. |
| 1.17 |
|
“Separation from Service” means the termination of the Executive’s
employment with the Bank for reasons other than death or Disability. Whether a Separation
from Service takes place is determined by the Plan Administrator based on the facts and
circumstances surrounding the termination of the Executive’s employment and whether
the Bank and the Executive intended for the Executive to provide significant services for
the Bank following such termination. A termination of employment will not be considered a
Separation from Service if: |
| |
(a) |
the Executive continues to provide services as an employee of the Bank at an
annual rate that is twenty percent (20%) or more of the services rendered, on
average, during the immediately preceding three full calendar years of
employment (or, if employed less than three years, such lesser period) and the
annual remuneration for such services is twenty percent (20%) or more of the
average annual remuneration earned during the final three full calendar years of
employment (or, if less, such lesser period), or |
| |
(b) |
the Executive continues to provide services to the Bank in a capacity other than
as an employee of the Bank at an annual rate that is fifty percent (50%) or more
of the services rendered, on average, during the immediately preceding three
full calendar years of employment (or if employed less than three years, such
lesser period) and the annual remuneration for such services is fifty percent
(50%) or more of the average annual remuneration earned during the final three
full calendar years of employment (or if less, such lesser period). |
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WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
| 1.18 |
|
“Specified Employee” means a key employee (as defined in Section 416(i)
of the Code without regard to paragraph 5 thereof) of the Bank if any stock of the Bank is
publicly traded on an established securities market or otherwise. |
| 1.19 |
“Termination
for Cause” has that meaning set forth in Article 5. |
Article 2
Distributions
During Lifetime
| 2.1 |
Normal
Retirement Benefit. Upon the Normal Retirement Date, the Bank shall distribute to
the Executive the benefit described in this Section 2.1 in lieu of any other
benefit under this Article. |
| |
2.1.1 |
|
Amount of Benefit. The annual benefit under this Section 2.1 is twenty percent
(20%) of the Executive’s Base Salary at the Normal Retirement Date. |
| |
2.1.2 |
|
Distribution of Benefit. The Bank shall distribute the annual benefit to the
Executive in twelve (12) equal monthly installments commencing on within thirty (30) days
following the Normal Retirement Date. The annual benefit shall be distributed to the
Executive for fifteen (15) years. |
| 2.2 |
Early
Termination Benefit. Upon the Executive's Early Termination, the Bank shall
distribute to the Executive the benefit described in this Section 2.2 in lieu
of any other benefit under this Article. |
| |
2.2.1 |
|
Amount of Benefit. The benefit under this Section 2.2 is the Accrual Balance
determined as of the month preceding Separation from Service, subject to the following
vesting schedule: |
| Age |
Vested Percentage |
| Less than 55 |
|
0% |
|
| 55 | |
50% | |
| 56 | |
60% | |
| 57 | |
70% | |
| 58 | |
80% | |
| 59 | |
90% | |
| 60 or greater | |
100% | |
| |
2.2.2 |
|
Distribution of Benefit. The Bank shall distribute the benefit to the Executive in
one hundred eighty (180) consecutive equal monthly installments commencing within thirty
(30) days following the Executive’s Separation from Service. On December 31 of each
Plan Year during the applicable installment period, the Bank shall credit interest on the
unpaid Accrual Balance at an annual rate equal to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ High Grade Long Term
Bond rate as published in the Wall Street Journal on the first business day of that Plan
Year, compounded monthly. |
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WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
| 2.3 |
|
Disability Benefit. If the Executive’s Disability results in
Separation from Service prior to Normal Retirement Age, the Bank shall distribute to the
Executive the benefit described in this Section 2.3 in lieu of any other benefit under
this Article. |
| |
2.3.1 |
|
Amount of Benefit. The benefit under this Section 2.3 is one hundred
percent (100%) of the Accrual Balance determined as of the end of the month preceding
Separation from Service. |
| |
2.3.2 |
|
Distribution of Benefit. The Bank shall distribute the benefit to the Executive in
one hundred eighty (180) consecutive equal monthly installments commencing within thirty
(30) days following the Executive’s Separation from Service. On December 31 of each
Plan Year during the applicable installment period, the Bank shall credit interest on the
unpaid Accrual Balance at an annual rate equal to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ High Grade Long Term
Bond rate as published in the Wall Street Journal on the first business day of that Plan
Year, compounded monthly. |
| 2.4 |
|
Change in Control Benefit. Upon a Change in Control, followed within twelve (12)
months by the Executive’s Separation from Service for reasons other than death,
Disability, or Early Termination, the Bank shall distribute to the Executive the benefit
described in this Section 2.4 in lieu of any other benefit under this Article. |
| |
2.4.1 |
|
Amount of Benefit. The benefit under this Section 2.4 is the Normal
Retirement Benefit described under Section 2.1, calculated as if the date of Separation
from Service following Change in Control was the Normal Retirement Date. |
| |
2.4.2 |
|
Distribution of Benefit. The Bank shall distribute the benefit to the
Executive in a lump sum within sixty (60) days following Separation from Service. |
| |
2.4.3 |
|
Excess Parachute Payment Gross-up. If any benefit distributable
under this Agreement would create an excise tax under the excess parachute rules of
Section 280G of the Code, the Bank shall distribute to the Executive an additional amount
(the “Gross-up”) equal to: |
the Executive’s
excise penalty tax amount
divided by
the
sum of (one minus the sum of the penalty tax rate plus the Executive’s marginal
income tax rate)
| |
The
Gross-up shall be distributed in a lump sum within sixty (60) days following Separation of
Service. |
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WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
| 2.5 |
|
Restriction on Timing of Distribution. Notwithstanding any provision of this
Agreement to the contrary, if the Executive is considered a Specified Employee at
Separation from Service under such procedures as established by the Bank in accordance
with Section 409A of the Code, benefit distributions that are made upon Separation from
Service may not commence earlier than six (6) months after the date of
such Separation from Service. Therefore, in the event this Section 2.5 is
applicable to the Executive, any distribution or series of distributions to be made due to
a Separation from Service shall commence no earlier that the first day of the seventh
month following the Separation from Service. |
| 2.6 |
|
Distributions Upon Income Inclusion Under Section 409A of the Code. Upon the
inclusion of any portion of the vested Accrual Balance into the Executive’s income as
a result of the failure of this Agreement to comply with the requirements of Section 409A
of the Code, the Bank shall distribute such portion of the vested Accrual
Balance to the Executive in a single lump sum as soon as is administratively practicable
following the discovery of such failure. |
Article 3
Distribution
at Death
| 3.1 |
|
Death During Active Service. If the Executive dies while in the active service of
the Bank, the Bank shall distribute to the Beneficiary the benefit described in this
Section 3.1. This benefit shall be distributed in lieu of the benefits under Article 2. |
| |
3.1.1 |
|
Amount of Benefit. The benefit under this Section 3.1 is the greater of (i) the
Accrual Balance at the Executive’s date of death, or (ii) three hundred thirty five
thousand three hundred fifty-six dollars ($335,356). |
| |
3.1.2 |
|
Distribution of Benefit. The Bank shall distribute the benefit to the Beneficiary
in one hundred eighty (180) consecutive equal monthly installments commencing within
thirty (30) days following receipt by the Bank of the Executive’s death certificate.
On December 31 of each Plan Year during the applicable installment period, the Bank shall
credit interest on the unpaid Accrual Balance at an annual rate equal to the ▇▇▇▇▇▇▇ ▇▇▇▇▇
High Grade Long Term Bond rate as published in the Wall Street Journal on the first
business day of that Plan Year, compounded monthly. |
| 3.2 |
|
Death During Distribution of a Benefit. If the Executive dies after any benefit
distributions have commenced under this Agreement but before receiving all such
distributions, the Bank shall distribute to the Beneficiary the remaining benefits at the
same time and in the same amounts they would have been distributed to the Executive had
the Executive survived. |
| 3.3 |
|
Death After Separation from Service But Before Benefit Distributions
Commence. If the Executive is entitled to benefit
distributions under this Agreement, but dies prior to the commencement of said benefit
distributions, the Bank shall distribute to the Beneficiary the same benefits that the
Executive was entitled to prior to death except that the benefit distributions shall
commence within thirty (30) days following receipt by the Bank of the Executive’s
death certificate. |
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WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
Article 4Beneficiaries
| 4.1 |
|
Beneficiary. The Executive shall have the right, at any time, to designate a
Beneficiary(ies) to receive any benefit distributions under this Agreement to a
Beneficiary upon the death of the Executive. The Beneficiary designated under this
Agreement may be the same as or different from the beneficiary designation under any other
plan of the Bank in which the Executive participates. |
| 4.2 |
|
Beneficiary Designation: Change. The Executive shall designate a Beneficiary by
completing and signing the Beneficiary Designation Form, and delivering it to the Plan
Administrator or its designated agent. The Executive’s beneficiary designation 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. The
Executive shall have the right to change a Beneficiary by completing, signing and
otherwise complying with the terms of the Beneficiary Designation Form and the Plan
Administrator’s rules and procedures, as in effect from time to time. Upon the
acceptance by the Plan Administrator of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall
be entitled to rely on the last Beneficiary Designation Form filed by the Executive and
accepted by the Plan Administrator prior to the Executive’s death. |
| 4.3 |
|
Acknowledgment. No designation or change in designation of a Beneficiary shall be
effective until received, accepted and acknowledged in writing by the Plan Administrator
or its designated agent. |
| 4.4 |
|
No Beneficiary Designation. If the Executive dies without a valid beneficiary
designation, or if all designated Beneficiaries predecease the Executive, then the
Executive’s spouse shall be the designated Beneficiary. If the Executive has no
surviving spouse, the benefits shall be made to the personal representative of the
Executive’s estate. |
| 4.5 |
|
Facility of Distribution. If the Plan Administrator determines in its discretion
that a benefit is to be distributed to a minor, to a person declared incompetent, or to a
person incapable of handling the disposition of that person’s property, the Plan
Administrator may direct distribution of such benefit to the guardian, legal
representative or person having the care or custody of such minor, incompetent person or
incapable person. The Plan Administrator may require proof of incompetence, minority or
guardianship as it may deem appropriate prior to distribution of the benefit. Any
distribution of a benefit shall be a distribution for the account of the Executive and the
Executive’s Beneficiary, as the case may be, and shall be a complete discharge of any
liability under the Agreement for such distribution amount. |
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WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
Article 5
General Limitations
| 5.1 |
|
Termination for Cause. Notwithstanding any provision of this Agreement to the
contrary, the Bank shall not distribute any benefit under this Agreement if
Executive’s service is terminated by the Board for: |
| |
(a) |
Gross negligence or gross neglect of duties to the Bank; or |
| |
(b) |
Conviction of a felony or of a gross misdemeanor involving moral turpitude in
connection with the Executive’s employment with the Bank; or |
| |
(c) |
Fraud, disloyalty, dishonesty or willful violation of any law or significant
Bank policy committed in connection with the Executive’s employment and
resulting in a material adverse effect on the Bank. |
| 5.2 |
|
Suicide or Misstatement. No benefits shall be distributed if the Executive commits
suicide within two years after the Effective Date of this Agreement, or if an insurance
company which issued a life insurance policy covering the Executive and owned by the Bank
denies coverage (i) for material misstatements of fact made by the Executive on an
application for such life insurance, or (ii) for any other reason. |
| 5.3 |
|
Removal. Notwithstanding any provision of this Agreement to the contrary,
the Bank shall not distribute 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. |
Article 6
Administration of Agreement
| 6.1 |
|
Plan Administrator Duties. This Agreement shall be administered by a Plan
Administrator which shall consist of the Board, or such committee or person(s) as the
Board shall appoint. The Plan Administrator shall also have the discretion and authority
to (i) make, amend, interpret and enforce all appropriate rules and regulations for the
administration of this Agreement and (ii) decide or resolve any and all questions
including interpretations of this Agreement, as may arise in connection with the
Agreement. |
| 6.2 |
|
Agents. In the administration of this Agreement, the Plan Administrator may employ
agents and delegate to them such administrative duties as it sees fit, (including acting
through a duly appointed representative), and may from time to time consult with counsel
who may be counsel to the Bank. |
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WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
| 6.3 |
|
Binding Effect of Decisions. The decision or action of the Plan Administrator with
respect to any question arising out of or in connection with the administration,
interpretation and application of the Agreement and the rules and regulations promulgated
hereunder shall be final and conclusive and binding upon all persons having any interest
in the Agreement. |
| 6.4 |
|
Indemnity of Plan Administrator. The Bank shall indemnify and hold harmless the
members of the Plan Administrator against any and all claims, losses, damages, expenses or
liabilities arising from any action or failure to act with respect to this Agreement,
except in the case of willful misconduct by the Plan Administrator or any of its members. |
| 6.5 |
|
Bank Information. To enable the Plan Administrator to perform its functions, the
Bank shall supply full and timely information to the Plan Administrator on all matters
relating to the date and circumstances of the retirement, Disability, death, or Separation
from Service of the Executive, and such other pertinent information as the Plan
Administrator may reasonably require. |
| 6.6 |
|
Annual Statement. The Plan Administrator shall provide to the Executive, within one
hundred twenty (120) days after the end of each Plan Year, a statement setting forth the
benefits to be distributed under this Agreement. |
Article 7
Claims And
Review Procedures
| 7.1 |
Claims
Procedure. An Executive or Beneficiary ("claimant") who has not received
benefits under the Agreement that he or she believes should be distributed
shall make a claim for such benefits as follows: |
| |
7.1.1 |
Initiation
- Written Claim. The claimant initiates a claim by submitting to the
Plan Administrator a written claim for the benefits. |
| |
7.1.2 |
|
Timing of Plan Administrator Response. The Plan Administrator shall
respond to such claimant within 90 days after receiving the claim. If the Plan
Administrator determines that special circumstances require additional time for processing
the claim, the Plan Administrator can extend the response period by an additional 90 days
by notifying the claimant in writing, prior to the end of the initial 90-day period, that
an additional period is required. The notice of extension must set forth the special
circumstances and the date by which the Plan Administrator expects to render its decision. |
| |
7.1.3 |
|
Notice of Decision. If the Plan Administrator denies part or all of the claim, the
Plan Administrator shall notify the claimant in writing of such denial. The Plan
Administrator shall write the notification in a manner calculated to be understood by the
claimant. The notification shall set forth: |
| |
(a) |
The
specific reasons for the denial; |
9
WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
| |
(b) |
A
reference to the specific provisions of the Agreement on which the denial is
based; |
| |
(c) |
A
description of any additional information or material necessary for
the claimant to perfect the claim and an explanation of why it is
needed; |
| |
(d) |
An explanation of the Agreement’s review procedures and the time limits
applicable to such procedures; and |
| |
(e) |
A statement of the claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on review. |
| 7.2 |
Review
Procedure. If the Plan Administrator denies part or all of the claim, the claimant
shall have the opportunity for a full and fair review by the Plan Administrator
of the denial, as follows: |
| |
7.2.1 |
|
Initiation – Written Request. To initiate the review, the claimant, within 60
days after receiving the Plan Administrator’s notice of denial, must file with the
Plan Administrator a written request for review. |
| |
7.2.2 |
|
Additional Submissions – Information Access. The claimant shall then have the
opportunity to submit written comments, documents, records and other information relating
to the claim. The Plan Administrator shall also provide the claimant, upon request and
free of charge, reasonable access to, and copies of, all documents, records and other
information relevant (as defined in applicable ERISA regulations) to the claimant’s
claim for benefits. |
| |
7.2.3 |
|
Considerations on Review. In considering the review, the Plan Administrator shall
take into account all materials and information the claimant submits relating to the
claim, without regard to whether such information was submitted or considered in the
initial benefit determination. |
| |
7.2.4 |
|
Timing of Plan Administrator Response. The Plan Administrator shall respond in
writing to such claimant within 60 days after receiving the request for review. If the
Plan Administrator determines that special circumstances require additional time for
processing the claim, the Plan Administrator can extend the response period by an
additional 60 days by notifying the claimant in writing, prior to the end of the initial
60-day period, that an additional period is required. The notice of extension must set
forth the special circumstances and the date by which the Plan Administrator expects to
render its decision. |
| |
7.2.5 |
|
Notice of Decision. The Plan Administrator shall notify the claimant in writing of
its decision on review. The Plan Administrator shall write the notification in a manner
calculated to be understood by the claimant. The notification shall set forth: |
| |
(a) |
The
specific reasons for the denial; |
10
WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
| |
(b) |
A
reference to the specific provisions of the Agreement on which the denial is
based; |
| |
(c) |
A
statement that the claimant is entitled to receive, upon request and
free of charge, reasonable access to, and copies of, all documents, records and other
information relevant (as defined in applicable ERISA regulations) to the claimant’s
claim for benefits; and |
| |
(d) |
A statement of the claimant’s right to bring a civil action under ERISA
Section 502(a). |
Article 8
Amendments
and Termination
| 8.1 |
|
Amendments. This Agreement may be amended only by a written agreement signed by the
Bank and the Executive. However, the Bank may unilaterally amend this Agreement to conform
with written directives to the Bank from its auditors or banking regulators or to comply
with legislative or tax law, including without limitation Section 409A of the Code and any
and all regulations and guidance promulgated thereunder. |
| 8.2 |
|
Plan Termination Generally. The Bank may unilaterally terminate this Agreement at
any time. The benefit shall be the Accrual Balance as of the date the Agreement is
terminated. Except as provided in Section 8.3, the termination of this Agreement shall not
cause a distribution of benefits under this Agreement. Rather, upon such termination
benefit distributions will be made at the earliest distribution event permitted under
Article 2 or Article 3. |
| 8.3 |
Plan
Terminations Under Section 409A. Notwithstanding anything to the contrary in Section
8.2, if the Bank terminates this Agreement in the following circumstances: |
| |
(a) |
Within thirty (30) days before, or twelve (12) months after a Change in Control,
provided that all distributions are made no later than twelve (12) months
following such termination of the Agreement and further provided that
all the Bank’s arrangements which are substantially similar to
the Agreement are terminated so the Executive and all participants in
the similar arrangements are required to receive all amounts of
compensation deferred under the terminated arrangements within twelve (12)
months of the termination of the arrangements; |
| |
(b) |
Upon the Bank’s dissolution or with the approval of a bankruptcy court
provided that the amounts deferred under the Agreement are included in the
Executive’s gross income in the latest of (i) the calendar year in which
the Agreement 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 distribution is administratively practical; or |
| |
(c) |
Upon the Bank’s termination of this and all other non-account balance plans
(as referenced in Section 409A of the Code or the regulations thereunder),
provided that all distributions are made no earlier than twelve (12) months and
no later than twenty-four (24) months following such termination, and the Bank
does not adopt any new non-account balance plans for a minimum of five (5) years
following the date of such termination; |
11
WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
Article 9
Miscellaneous
| 9.1 |
Binding
Effect. This Agreement shall bind the Executive and the Bank, and their
beneficiaries, survivors, executors, administrators and transferees. |
| 9.2 |
|
No Guarantee of Employment. This Agreement is not a contract for employment. It
does not give the Executive the right to remain as an employee of the Bank, nor does it
interfere with the Bank’s right to discharge the Executive. It also does not require
the Executive to remain an employee nor interfere with the Executive’s right to
terminate employment at any time. |
| 9.3 |
|
Non-Transferability. Benefits under this Agreement cannot be sold, transferred,
assigned, pledged, attached or encumbered in any manner. |
| 9.4 |
|
Tax Withholding and Reporting. The Bank shall withhold any taxes that are required
to be withheld, including but not limited to taxes owed under Section 409A of the Code and
regulations thereunder, from the benefits provided under this Agreement. Executive
acknowledges that the Bank’s sole liability regarding taxes is to forward any amounts
withheld to the appropriate taxing authority(ies). Further, the Bank shall satisfy all
applicable reporting requirements, including those under Section 409A of the Code and
regulations thereunder. |
| 9.5 |
|
Applicable Law. The Agreement and all rights hereunder shall be governed by the
laws of the State of Michigan, except to the extent preempted by the laws of the United
States of America. |
| 9.6 |
|
Unfunded Arrangement. The Executive and Beneficiary are general unsecured creditors
of the Bank for the distribution of benefits under this Agreement. The benefits represent
the mere promise by the Bank to distribute 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 or other informal funding asset is a general asset of the Bank to
which the Executive and Beneficiary have no preferred or secured claim. |
| 9.7 |
|
Reorganization. The Bank shall not merge or consolidate into or with another
bank, or reorganize, or sell substantially all of its assets to another bank, firm, or
person unless such succeeding or continuing bank, firm, or person agrees to assume and
discharge the obligations of the Bank under this Agreement. Upon the occurrence of such
event, the term “Bank” as used in this Agreement shall be deemed to refer to the
successor or survivor bank. |
12
WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
| 9.8 |
Entire
Agreement. This Agreement constitutes the entire agreement between the Bank 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. |
| 9.9 |
|
Interpretation. Wherever the fulfillment of the intent and purpose of this
Agreement requires, and the context will permit, the use of the masculine gender includes
the feminine and use of the singular includes the plural. |
| 9.10 |
|
Alternative Action. In the event it shall become impossible for the Bank or the
Plan Administrator to perform any act required by this Agreement, the Bank or Plan
Administrator may in its discretion perform such alternative act as most nearly carries
out the intent and purpose of this Agreement and is in the best interests of the Bank. |
| 9.11 |
Headings.
Article and section headings are for convenient reference only and shall not
control or affect the meaning or construction of any of its provisions. |
| 9.12 |
|
Validity. In case any provision of this Agreement shall be illegal or invalid for
any reason, said illegality or invalidity shall not affect the remaining parts hereof, but
this Agreement shall be construed and enforced as if such illegal and invalid provision
has never been inserted herein. |
| 9.13 |
|
Notice. Any notice or filing required or permitted to be given to the Bank or Plan
Administrator under this Agreement shall be sufficient if in writing and hand-delivered,
or sent by registered or certified mail, to the address below: |
Fentura Financial, Inc.
▇▇▇
▇. ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
| |
Such
notice shall be deemed given as of the date of delivery or, if delivery is made by mail,
as of the date shown on the postmark on the receipt for registration or certification. |
| |
Any
notice or filing required or permitted to be given to the Executive under this Agreement
shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known
address of the Executive. |
| 9.14 |
|
Compliance with Section 409A. This Agreement shall at all times be administered and
the provisions of this Agreement shall be interpreted consistent with the requirements of
Section 409A of the Code and any and all regulations thereunder, including such
regulations as may be promulgated after the Effective Date of this Agreement. |
| 9.15 |
|
Rescissions. Any modification to the terms of this Agreement that would
inadvertently result in an additional tax liability on the part of the Executive, shall
have no effect to the extent the change in the terms of the plan is rescinded by the
earlier of a date before the right is exercised (if the change grants a discretionary
right) and the last day of the calendar year during which such change occurred. |
13
WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
IN
WITNESS WHEREOF, the Executive and a duly authorized representative of the Bank have
signed this Agreement.
EXECUTIVE:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
——————————————
▇▇▇▇▇▇ ▇▇▇▇▇▇ |
|
BANK:
FENTURA FINANCIAL, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
——————————————
Title Chairman of the Board |
14
WEST MICHIGAN COMMUNITY BANK
Supplemental Executive
Retirement Agreement
{ } New Designation
{ }
Change in Designation
I, __________________________,
designate the following as Beneficiary under the Agreement:
| Notes: |
| |
• |
Please
PRINT CLEARLY or TYPE the names of the beneficiaries. |
| |
• |
To
name a trust as Beneficiary, please provide the name of the trustee(s) and the exact name
and date of the trust agreement. |
| |
• |
To
name your estate as Beneficiary, please write “Estate of [your name]”. |
| |
• |
Be
aware that none of the contingent beneficiaries will receive anything unless ALL of the
primary beneficiaries predecease you. |
I understand that I may change these
beneficiary designations by delivering a new written designation to the Plan
Administrator, which shall be effective only upon receipt and acknowledgment by the Plan
Administrator prior to my death. I further understand that the designations will be
automatically revoked if the Beneficiary predeceases me, or, if I have named my spouse as
Beneficiary and our marriage is subsequently dissolved.
Name:
_______________________________
Signature:
_______________________________ Date: _______
Received by the Plan
Administrator this ________ day of ___________________, 2___
By:
_________________________________
Title:
_________________________________