UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report: April 22, 2014

(Date of earliest event reported)

 

 

PEOPLES FINANCIAL SERVICES CORP.

(Exact name of registrant as specified in its charter)

 

 

001-36388

(Commission File Number)

 

PA   23-2391852

(State or other jurisdiction

of incorporation)

 

(IRS Employer of

Identification No.)

 

150 North Washington Avenue, Scranton, Pennsylvania   18503-1848
(Address of principal executive offices)   (Zip Code)

(570) 346-7741

(Registrant’s telephone number, including area code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On April 22, 2014, Peoples Security Bank and Trust Company (the “Bank”), the banking subsidiary of Peoples Financial Services Corp. (the “Company”) amended and restated the Deferred Compensation Plan #2 (the “Best Plan”) which provides certain benefits to Craig W. Best, the Company’s Chief Executive Officer. The amendment and restatement of the Best Plan clarifies that the Bank (as successor by merger to Penn Security Bank and Trust Company) and its Board of Directors are the applicable employer and administrator, respectively, under the Best Plan. The amendment and restatement provides that no elective deferral contributions will be made to the Best Plan and reflects certain other immaterial revisions. The Best Plan is an unfunded, nonqualified deferred compensation plan pursuant to which the Bank has made and will make contributions to Mr. Best’s account. The Bank made an initial contribution of $61,375 to the Best Plan on or around January 1, 2011, followed by contributions of $60,000 each August 1 beginning in 2011, with a final contribution due August 1, 2014, subject to Mr. Best’s continued employment. Notional interest is credited to Mr. Best’s deferred account which will be distributed in monthly installments over 10 years commencing upon his separation from service, or paid in a lump sum upon his death or a change in control of the Company.

Also on April 22, 2014, the Company and the Bank entered into a Supplemental Executive Retirement Plan Agreement (the “SERP”) with Joseph M. Ferretti, the Bank’s Senior Vice President and Co-Chief Lending Officer-North, as contemplated by the Company’s employment agreement with Mr. Ferretti. The SERP is an unfunded non-qualified deferred compensation plan that provides Mr. Ferretti with an annual retirement benefit of $40,000, payable over 10 years, if he remains employed by the Bank through age 65. The SERP also provides for a lesser retirement benefit that accrues over time based on the number of years Mr. Ferretti remains employed by the Bank which will become payable if, prior to his attaining age 65, Mr. Ferretti’s employment is terminated by the Bank without cause or due to his death or disability.

The foregoing descriptions of the Best Plan and the SERP are each qualified in their entirety by reference to the Best Plan and the SERP, respectively, which are filed as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K and incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

 

  (d) Exhibits

The following exhibits are filed with this Form 8-K:

 

Exhibit
No.

  

Description

10.1    Amended and Restated Deferred Compensation Plan #2, dated April 22, 2014, by and between Peoples Security Bank and Trust Company and Craig W. Best.
10.2    Supplemental Executive Retirement Plan Agreement, dated April 22, 2014, by and among Peoples Security Bank and Trust Company, Peoples Financial Services Corp. and Joseph M. Ferretti,


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

PEOPLES FINANCIAL SERVICES CORP.
By:  

/s/ Scott A. Seasock

  Scott A. Seasock
  Executive Vice President and Chief Financial Officer
  (Principal Financial Officer and Principal Accounting Officer)

Date: April 28, 2014


EXHIBIT INDEX

 

Exhibit
No.

  

Description

10.1    Amended and Restated Deferred Compensation Plan #2, dated April 22, 2014, by and between Peoples Security Bank and Trust Company and Craig W. Best.
10.2    Supplemental Executive Retirement Plan Agreement, dated April 22, 2014, by and among Peoples Security Bank and Trust Company, Peoples Financial Services Corp. and Joseph M. Ferretti.

Exhibit 10.1

AMENDED AND RESTATED

DEFERRED COMPENSATION PLAN #2

THIS DEFERRED COMPENSATION PLAN (this “Agreement”), adopted this 22nd day of April, 2014, by and between by and between Peoples Security Bank and Trust Company, successor by merger to Penn Security Bank and Trust Company, (the “Employer”), and Craig W. Best (the “Executive”), formalizes the agreements and understanding between the Employer and the Executive.

WITNESSETH :

WHEREAS, the Executive is employed by the Employer;

WHEREAS, the Executive is the only employee participating in the Penn Security Bank & Trust Company Deferred Compensation Plan #2 (the “Arrangement”);

WHEREAS, the Executive and the Employer now wish to update the Arrangement’s benefit promises by replacing the Arrangement in its entirety with this Agreement;

WHEREAS, the Employer and the Executive intend this Agreement shall at all times be administered and interpreted in compliance with Code Section 409A, and

WHEREAS, in accordance with Code Section 409A, this Agreement shall not be interpreted to change any of the benefit payment schedules provided for in the Arrangement; and

WHEREAS, the Employer intends this Agreement shall at all times be administered and interpreted in such a manner as to constitute an unfunded nonqualified deferred compensation arrangement, maintained primarily to provide supplemental retirement benefits for the Executive, a member of select group of management or highly compensated employee of the Employer;

NOW THEREFORE, in consideration of the premises and of the mutual promises herein contained, the Employer and the Executive agree as follows:

ARTICLE 1

DEFINITIONS

For the purpose of this Agreement, the following phrases or terms shall have the indicated meanings:

1.1 “Accumulation Period Crediting Rate” means the Moody’s 20 year AA Corporate Bond Rate as of the last day of the immediately preceding calendar year.

1.2 “Administrator” means the Board or its designee.

1.3 “Affiliate” means any business entity with whom the Employer would be considered a single employer under Section 414(b) and 414(c) of the Code. Such term shall be interpreted in a manner consistent with the definition of “service recipient” contained in Code Section 409A.


1.4 “Beneficiary” means the person or persons designated in writing by the Executive to receive benefits hereunder in the event of the Executive’s death.

1.5 “Board” means the Board of Directors of the Employer.

1.6 “Cause” means (i) a conviction of, or the entry of a plea of guilty or no contest to, a felony (ii) fraud, embezzlement or other misappropriation of funds, excluding immaterial and inadvertent action not taken in bad faith and which is remedied by participant within ten (10) days after his receipt of written notice thereof from the Employer specifying in reasonable detail the alleged improper action; (iii) habitual insobriety or illegal use of controlled drugs; (iv) breach of this Agreement having a material adverse economic effect on the Employer taken as a whole, if not cured within thirty (30) days following the Executive’s receipt from the Employer of written notice thereof specifying in reasonable detail the alleged breach; or (v) failure to comply with the Employer’s Executive Stock Ownership Guidelines, as set forth on Appendix B of the Executive’s employment contract: or refusal to perform the lawful and reasonable directives of the Board or Company’s board of directors, unless such refusal is cured within thirty (30) days following the Executive’s receipt from the Employer of written notice thereof, specifying the directives the Executive’s allegedly refused to perform, or unless the Executive gives written notice of good faith objection to any such directive based on his reasonable belief that compliance with same would be inconsistent with fiduciary duties or with any applicable law, rule, regulation, order, ordinance, applicable accounting standard, insurance policy, employee benefit plan or any other material agreement, instrument or undertaking (“Good Faith Objection”). In the event of Good Faith Objection by the Executive, refusal to perform any directive of the Board or Company’s board of directors shall not be Cause for termination unless Executive persists in such refusal after the Board or Executive, as applicable, obtains, from an independent law firm selected by the Board or Executive in its sole and reasonable discretion, with a written reasoned legal opinion that it is more likely than not that compliance with the directive at issue would not result in any violation (an “Independent Opinion”).

1.7 “Change in Control” means a transaction or series of transactions whereby (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than any Employer employee stock ownership plan or an equivalent retirement plan, becomes the beneficial owner (as such term is used in Section 13(d) of the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding voting securities, (ii) the Company’s board of directors ceases to consist of a majority of Continuing Directors (as defined below), (iii) the consummation of a sale of all or substantially all of the Company’s assets or a liquidation (as measured by the fair value of the assets being sold compared to the fair value of all of Company’s assets), or (iv) a merger or other combination occurs such that a majority of the equity securities of the resultant entity after the transaction are not owned by those who

 

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owned a majority of the equity securities of the Company prior to the transaction. A “Continuing Director” shall mean a member of the Company’s board of directors who either (i) is a member of the Company’s board of directors as of the August 6, 2009 or (ii) is nominated or appointed to serve as a director by a majority of the then Continuing Directors. Notwithstanding the forgoing no transaction or series of transactions shall be considered a “Change in Control” hereunder unless it qualifies as a change in the ownership or effective control of the Employer, or in the ownership of a substantial portion of the assets of the Employer, as defined in Code Section 409A and regulations thereunder.

1.8 “Company” means Peoples Financial Services Corp., successor by merger to Penseco Financial Services Corporation.

1.9 “Contribution” means the amounts the Employer contributes to the Contribution Account, calculated according to the provisions of Article 2.

1.10 “Claimant” means a person who believes that he or she is being denied a benefit to which he or she is entitled hereunder.

1.11 “Code” means the Internal Revenue Code of 1986, as amended.

1.12 “Contribution Account” means the Employer’s accounting of the accumulated Contributions plus accrued interest.

1.13 “Distribution Period Crediting Rate” means the 10-year Treasury bond rate as of the date of Separation from Service, plus two percent (2%).

1.14 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

1.15 “Separation from Service” means a termination of the Executive’s employment with the Employer and its Affiliates for reasons other than death or Disability. A Separation from Service may occur as of a specified date for purposes of the Agreement even if the Executive continues to provide some services for the Employer or its Affiliates after that date, provided that the facts and circumstances indicate that the Employer and the Executive reasonably anticipated at that date that either no further services would be performed after that date, or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period (or the full period during which the Executive performed services for the Employer, if that is less than thirty-six (36) months). A Separation from Service will not be deemed to have occurred while the Executive is on military leave, sick leave, or other bona fide leave of absence if the period of such leave does not exceed six (6) months or, if longer, the period for which a statute or contract provides the Executive with the right to reemployment with the Employer. If the Executive’s leave exceeds six (6) months but the Executive is not entitled to reemployment under a statute or contract, the Executive incurs a Separation of Service on the next day following the expiration of such six (6) month period. In

 

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determining whether a Separation of Service occurs the Administrator shall take into account, among other things, the definition of “service recipient” and “employer” set forth in Treasury regulation §1.409A-1(h)(3). The Administrator shall have full and final authority, to determine conclusively whether a Separation from Service occurs, and the date of such Separation from Service.

1.16 “Specified Employee” means an individual that satisfies the definition of a “key employee” of the Employer as such term is defined in Code §416(i) (without regard to Code §416(i)(5)), provided that the stock of the Employer is publicly traded on an established securities market or otherwise, as defined in Code §1.897-1(m). If the Executive is a key employee at any time during the twelve (12) months ending on December 31, the Executive is a Specified Employee for the twelve (12) month period commencing on the first day of the following April.

ARTICLE 2

CONTRIBUTIONS

2.1 Contributions Generally . The Employer shall contribute the following amounts, at the following times, to the Contribution Account described in Article 3.

 

Date

   Contribution  

January 1, 2011

   $ 61,375   

August 1, 2011

   $ 60,000   

August 1, 2012

   $ 60,000   

August 1, 2013

   $ 60,000   

August 1, 2014

   $ 60,000   

2.2 Employer Contributions. In addition to the Contributions described in Section 2.1, the Employer may, at any time, make a discretionary contribution to the Contribution Account. Such discretionary contribution amounts may, at the election of the Employer, be subject a vesting schedule or such other provisions as the Employer may provide.

ARTICLE 3

DEFERRAL ACCOUNT

3.1 Establishing and Crediting . The Employer shall establish a Contribution Account on its books for the Executive and shall credit to the Contribution Account the following amounts:

(a) Any Contributions hereunder; and

(b) Interest as follows:

(i) on the last day of each month prior an event giving rise to benefit payment under Article 4, interest shall be credited on the Contribution Account balance at an annual rate equal to the Accumulation Period Crediting Rate, compounded monthly; and

(ii) on the last day of each month following Separation from Service, interest shall be credited on the Contribution Account balance at an annual rate equal to the Distribution Period Crediting Rate, compounded monthly.

 

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3.2 Recordkeeping Device Only . The Contribution Account is solely a device for measuring amounts to be paid under this Agreement and is not a trust fund of any kind.

ARTICLE 4

PAYMENT OF BENEFITS

4.1 Normal Benefit . Except as provided in Section 4.2, upon Separation from Service the Employer shall pay the Executive the Contribution Account balance calculated at Separation from Service in lieu of any other benefit hereunder. This benefit shall be paid in one hundred twenty (120) consecutive monthly installments and shall commence the month following Separation from Service.

4.2 Change in Control Benefit . If a Change in Control occurs, followed within twenty-four (24) months by Separation from Service, the Employer shall pay the Executive the Contribution Account balance in lieu of any other benefit hereunder. This benefit shall be paid in a lump sum within forty-five (45) days following Separation from Service, with the actual date of payment determined by the Employer in its sole discretion.

4.3 Death Prior to Commencement of Benefit Payments . In the event the Executive dies prior to Separation from Service, the Employer shall pay the Beneficiary the Contribution Account balance in lieu of any other benefit hereunder. This benefit shall be paid in a lump sum within forty-five (45) days of the Executive’s death, with the actual date of payment determined by the Employer in its sole discretion.

4.4 Death or Change in Control Subsequent to Commencement of Benefit Payments. In the event that, while the Executive or Beneficiary is receiving payments, but prior to receiving all payments due and owing hereunder, (i) a Change in Control takes place or (ii) the Executive dies, the Employer shall pay the Executive or Beneficiary the Contribution Account balance in a lump sum within forty-five (45) days of the Executive’s death or the Change in Control.

4.5 Termination for Cause . If the Employer terminates the Executive’s employment for Cause, then the Executive shall forfeit all amounts credited to the Contribution Account.

4.6 Restriction on Commencement of Distributions . Notwithstanding any provision of this Agreement to the contrary, if the Executive is considered a Specified Employee at the time of Separation from Service, the provisions of this Section shall govern all distributions hereunder. Distributions which would otherwise be made to the Executive due to Separation from Service shall not be made during the first six (6) months following Separation from Service. Rather, any distribution which would otherwise be paid to the Executive during such period shall be accumulated and paid to the Executive in a lump sum on the first day of the seventh month following Separation from Service, or if earlier, upon the Executive’s death. All subsequent distributions shall be paid as they would have had this Section not applied.

 

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4.7 Acceleration of Payments . Except as specifically permitted herein, no acceleration of the time or schedule of any payment may be made hereunder. Notwithstanding the foregoing, payments may be accelerated, in accordance with the provisions of Treasury Regulation §1.409A-3(j)(4) in the following circumstances: (i) as a result of certain domestic relations orders; (ii) in compliance with ethics agreements with the federal government; (iii) in compliance with the ethics laws or conflicts of interest laws; (iv) in limited cashouts (but not in excess of the limit under Code §402(g)(1)(B)); (v) to pay employment-related taxes; or (vi) to pay any taxes that may become due at any time that the Agreement fails to meet the requirements of Code Section 409A.

4.8 Delays in Payment by Employer . A payment may be delayed to a date after the designated payment date under any of the circumstances described below, and the provision will not fail to meet the requirements of establishing a permissible payment event. The delay in the payment will not constitute a subsequent deferral election, so long as the Employer treats all payments to similarly situated Participants on a reasonably consistent basis.

(a) Payments subject to Code Section 162(m) . If the Employer reasonably anticipates that the Employer’s deduction with respect to any distribution under this Agreement would be limited or eliminated by application of Code Section 162(m), then to the extent deemed necessary by the Employer to ensure that the entire amount of any distribution from this Agreement is deductible, the Employer may delay payment of any amount that would otherwise be distributed under this Agreement. The delayed amounts shall be distributed to the Executive (or the Beneficiary in the event of the Executive’s death) at the earliest date the Employer reasonably anticipates that the deduction of the payment of the amount will not be limited or eliminated by application of Code Section 162(m).

(b) Payments that would violate Federal securities laws or other applicable law . A payment may be delayed where the Employer reasonably anticipates that the making of the payment will violate Federal securities laws or other applicable law provided that the payment is made at the earliest date at which the Employer reasonably anticipates that the making of the payment will not cause such violation. The making of a payment that would cause inclusion in gross income or the application of any penalty provision of the Internal Revenue Code is not treated as a violation of law.

(c) Solvency . Notwithstanding the above, a payment may be delayed where the payment would jeopardize the ability of the Employer to continue as a going concern.

4.9 Treatment of Payment as Made on Designated Payment Date . Solely for purposes of determining compliance with Code Section 409A, any payment under this Agreement made after the required payment date shall be deemed made on the required payment date provided that such payment is made by the latest of: (i) the end of the

 

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calendar year in which the payment is due; (ii) the 15 th day of the third calendar month following the payment due date; (iii) if Employer cannot calculate the payment amount on account of administrative impracticality which is beyond the Executive’s control, the end of the first calendar year which payment calculation is practicable; and (iv) if Employer does not have sufficient funds to make the payment without jeopardizing the Employer’s solvency, in the first calendar year in which the Employer’s funds are sufficient to make the payment.

4.10 Facility of Payment . If a distribution is to be made to a minor, or to a person who is otherwise incompetent, then the Administrator may make such distribution: (i) to the legal guardian, or if none, to a parent of a minor payee with whom the payee maintains his or her residence; or (ii) to the conservator or administrator or, if none, to the person having custody of an incompetent payee. Any such distribution shall fully discharge the Employer and the Administrator from further liability on account thereof.

4.11 Changes in Form of Timing of Benefit Payments . The Employer and the Executive may, subject to the terms hereof, amend this Agreement to delay the timing or change the form of payments. Any such amendment:

(a) must take effect not less than twelve (12) months after the amendment is made;

(b) must, for benefits distributable due solely to the arrival of a specified date, or on account of Separation from Service or Change in Control, delay the commencement of distributions for a minimum of five (5) years from the date the first distribution was originally scheduled to be made;

(c) must, for benefits distributable due solely to the arrival of a specified date, be made not less than twelve (12) months before distribution is scheduled to begin; and

(d) may not accelerate the time or schedule of any distribution.

ARTICLE 5

BENEFICIARIES

5.1 Designation of Beneficiaries . The Executive may designate any person to receive any benefits payable under the Agreement upon the Executive’s death, and the designation may be changed from time to time by the Executive by filing a new designation. Each designation will revoke all prior designations by the Executive, shall be in the form prescribed by the Administrator and shall be effective only when filed in writing with the Administrator during the Executive’s lifetime. If the Executive names someone other than the Executive’s spouse as a Beneficiary, the Administrator may, in its sole discretion, determine that spousal consent is required to be provided in a form designated by the Administrator, executed by the Executive’s spouse and returned to the Administrator. 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.

 

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5.2 Absence of Beneficiary Designation . In the absence of a valid Beneficiary designation, or if, at the time any benefit payment is due to a Beneficiary, there is no living Beneficiary validly named by the Executive, the Employer shall pay the benefit payment to the Executive’s spouse. If the spouse is not living then the Employer shall pay the benefit payment to the Executive’s living descendants per stirpes , and if there no living descendants, to the Executive’s estate. In determining the existence or identity of anyone entitled to a benefit payment, the Employer may rely conclusively upon information supplied by the Executive’s personal representative, executor, or administrator.

ARTICLE 6

ADMINISTRATION

6.1 Administrator Duties . The Administrator shall be responsible for the management, operation, and administration of the Agreement. When making a determination or calculation, the Administrator shall be entitled to rely on information furnished by the Employer, Executive or Beneficiary. No provision of this Agreement shall be construed as imposing on the Administrator any fiduciary duty under ERISA or other law, or any duty similar to any fiduciary duty under ERISA or other law.

6.2 Administrator Authority . The Administrator shall enforce this Agreement in accordance with its terms, shall be charged with the general administration of this Agreement, and shall have all powers necessary to accomplish its purposes.

6.3 Binding Effect of Decision . The decision or action of the Administrator with respect to any question arising out of or in connection with the administration, interpretation or application of this Agreement and the rules and regulations promulgated hereunder shall be final, conclusive and binding upon all persons having any interest in this Agreement.

6.4 Compensation, Expenses and Indemnity . The Administrator shall serve without compensation for services rendered hereunder. The Administrator is authorized at the expense of the Employer to employ such legal counsel and recordkeeper as it may deem advisable to assist in the performance of its duties hereunder. Expense and fees in connection with the administration of this Agreement shall be paid by the Employer.

6.5 Employer Information . The Employer shall supply full and timely information to the Administrator on all matters relating to the Executive’s compensation, death, Disability or Separation from Service, and such other information as the Administrator reasonably requires.

6.6 Termination of Participation . If the Administrator determines in good faith that the Executive no longer qualifies as a member of a select group of management or highly compensated employees, as determined in accordance with ERISA, the Administrator shall have the right, in its sole discretion, to prohibit the Employer from making any additional Contributions hereunder.

 

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6.7 Compliance with Code Section 409A . The Employer and the Executive intend that the Agreement comply with the provisions of Code Section 409A to prevent the inclusion in gross income of any amounts deferred hereunder in a taxable year prior to the year in which amounts are actually paid to the Executive or Beneficiary. This Agreement shall be construed, administered and governed in a manner that affects such intent, and the Administrator shall not take any action that would be inconsistent therewith.

ARTICLE 7

CLAIMS AND REVIEW PROCEDURES

7.1 Claims Procedure . A Claimant who has not received benefits under this Agreement that he or she believes should be distributed shall make a claim for such benefits as follows.

(a) Initiation – Written Claim . The Claimant initiates a claim by submitting to the Administrator a written claim for the benefits. If such a claim relates to the contents of a notice received by the Claimant, the claim must be made within sixty (60) days after such notice was received by the Claimant. All other claims must be made within one hundred eighty (180) days of the date on which the event that caused the claim to arise occurred. The claim must state with particularity the determination desired by the Claimant.

(b) Timing of Administrator Response . The Administrator shall respond to such Claimant within ninety (90) days after receiving the claim. If the Administrator determines that special circumstances require additional time for processing the claim, the Administrator can extend the response period by an additional ninety (90) days by notifying the Claimant in writing, prior to the end of the initial ninety (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 Administrator expects to render its decision.

(c) Notice of Decision . If the Administrator denies part or all of the claim, the Administrator shall notify the Claimant in writing of such denial. The Administrator shall write the notification in a manner calculated to be understood by the Claimant. The notification shall set forth: (i) the specific reasons for the denial; (ii) a reference to the specific provisions of this Agreement on which the denial is based; (iii) a description of any additional information or material necessary for the Claimant to perfect the claim and an explanation of why it is needed; (iv) an explanation of this Agreement’s review procedures and the time limits applicable to such procedures; and (v) a statement of the Claimant’s right to bring a civil action under ERISA Section 502(a) following an adverse benefit determination on review.

 

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7.2 Review Procedure . If the Administrator denies part or all of the claim, the Claimant shall have the opportunity for a full and fair review by the Administrator of the denial as follows.

(a) Initiation – Written Request . To initiate the review, the Claimant, within sixty (60) days after receiving the Administrator’s notice of denial, must file with the Administrator a written request for review.

(b) 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 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.

(c) Considerations on Review . In considering the review, the 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.

(d) Timing of Administrator Response . The Administrator shall respond in writing to such Claimant within sixty (60) days after receiving the request for review. If the Administrator determines that special circumstances require additional time for processing the claim, the Administrator can extend the response period by an additional sixty (60) days by notifying the Claimant in writing, prior to the end of the initial sixty (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 Administrator expects to render its decision.

(e) Notice of Decision . The Administrator shall notify the Claimant in writing of its decision on review. The 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; (b) a reference to the specific provisions of this 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

AMENDMENT AND TERMINATION

8.1 Amendment . This Agreement may be amended unilaterally by the Employer at any time by providing written notice of such amendment to the Executive.

8.2 Agreement Termination Generally . This Agreement may be terminated unilaterally by the Employer at any time by providing written notice of such termination to the Executive. Such termination shall not automatically cause a distribution of benefits under this Agreement. Rather, unless the provisions of Section 8.3 apply, upon such termination benefit distributions will be made at the earliest distribution event permitted under Article 4.

8.4 Effect of Complete Termination . Notwithstanding anything to the contrary in Section 8.3, and subject to the requirements of Code Section 409A and Treasury

 

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Regulations §1.409A-3(j)(4)(ix), at certain times the Employer may completely terminate and liquidate the Agreement. In the event of such a complete termination, the Employer shall pay the Contribution Account balance to the Executive. Such complete termination of the Agreement shall occur only under the following circumstances and conditions.

(a) Corporate Dissolution or Bankruptcy . The Employer may terminate and liquidate this Agreement within twelve (12) months of a corporate dissolution taxed under Code Section 331, or with the approval of a bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that all benefits paid under the Agreement are included in the Executive’s gross income in the latest of: (i) the calendar year which the termination occurs; (ii) the calendar year in which the amount is no longer subject to a substantial risk of forfeiture; or (iii) the first calendar year in which the payment is administratively practicable.

(b) Change in Control . The Employer may terminate and liquidate this Agreement by taking irrevocable action to terminate and liquidate within the thirty (30) days preceding or the twelve (12) months following a Change in Control. This Agreement will then be treated as terminated only if all substantially similar arrangements sponsored by the Company which are treated as deferred under a single plan under Treasury Regulations §1.409A-1(c)(2) are terminated and liquidated with respect to each participant who experienced the Change in Control so that the Executive and any participants in any such similar arrangements are required to receive all amounts of compensation deferred under the terminated arrangements within twelve (12) months of the date the Employer takes the irrevocable action to terminate the arrangements.

(c) Discretionary Termination . The Employer may terminate and liquidate this Agreement provided that: (i) the termination does not occur proximate to a downturn in the financial health of the Company; (ii) all arrangements sponsored by the Employer and Affiliates that would be aggregated with any terminated arrangements under Treasury Regulations §1.409A-1(c) are terminated; (iii) no payments, other than payments that would be payable under the terms of this Agreement if the termination had not occurred, are made within twelve (12) months of the date the Employer takes the irrevocable action to terminate this Agreement; (iv) all payments are made within twenty-four (24) months following the date the Employer takes the irrevocable action to terminate and liquidate this Agreement; and (v) neither the Employer nor any of its Affiliates adopt a new arrangement that would be aggregated with any terminated arrangement under Treasury Regulations §1.409A-1(c) if the Executive participated in both arrangements, at any time within three (3) years following the date the Employer takes the irrevocable action to terminate this Agreement.

ARTICLE 9

MISCELLANEOUS

9.1 No Effect on Other Rights . This Agreement constitutes the entire agreement between the Employer 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

 

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herein. Nothing contained herein will confer upon the Executive the right to be retained in the service of the Employer nor limit the right of the Employer to discharge or otherwise deal with the Executive without regard to the existence hereof.

9.2 State Law . To the extent not governed by ERISA, the provisions of this Agreement shall be construed and interpreted according to the internal law of the Commonwealth of Pennsylvania without regard to its conflicts of laws principles.

9.3 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 or invalid provision had never been inserted herein.

9.4 Nonassignability . Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached or encumbered in any manner.

9.5 Unsecured General Creditor Status . Payment to the Executive or any Beneficiary hereunder shall be made from assets which shall continue, for all purposes, to be part of the general, unrestricted assets of the Employer and no person shall have any interest in any such asset by virtue of any provision of this Agreement. The Employer’s obligation hereunder shall be an unfunded and unsecured promise to pay money in the future. In the event that the Employer purchases an insurance policy insuring the life of the Executive to recover the cost of providing benefits hereunder, neither the Executive nor the Beneficiary shall have any rights whatsoever in said policy or the proceeds therefrom.

9.6 Life Insurance . If the Employer chooses to obtain insurance on the life of the Executive in connection with its obligations under this Agreement, the Executive hereby agrees to take such physical examinations and to truthfully and completely supply such information as may be required by the Employer or the insurance company designated by the Employer.

9.7 Unclaimed Benefits . The Executive shall keep the Employer informed of the Executive’s current address and the current address of the Beneficiary. If the location of the Executive is not made known to the Employer within three years after the date upon which any payment of any benefits may first be made, the Employer shall delay payment of the Executive’s benefit payment(s) until the location of the Executive is made known to the Employer; however, the Employer shall only be obligated to hold such benefit payment(s) for the Executive until the expiration of three (3) years. Upon expiration of the three (3) year period, the Employer may discharge its obligation by payment to the Beneficiary. If the location of the Beneficiary is not made known to the Employer by the end of an additional two (2) month period following expiration of the three (3) year period, the Employer may discharge its obligation by payment to the Executive’s estate. If there is no estate in existence at such time or if such fact cannot be determined by the Employer, the Executive and Beneficiary shall thereupon forfeit all rights to any benefits provided under this Agreement.

 

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9.8 Removal . Notwithstanding anything in this Agreement to the contrary, the Employer shall not distribute any benefit under this Agreement if the Executive is subject to a final removal or prohibition order issued pursuant to Section 8(e) of the Federal Deposit Insurance Act. Furthermore, any payments made to the Executive pursuant to this Agreement shall, if required, comply with 12 U.S.C. 1828, FDIC Regulation 12 CFR Part 359 and any other regulations or guidance promulgated thereunder.

9.9 Notice . Any notice, consent or demand required or permitted to be given to the Employer or Administrator under this Agreement shall be sufficient if in writing and hand-delivered or sent by registered or certified mail to the Employer’s principal business office. Any notice or filing required or permitted to be given to the Executive or Beneficiary under this Agreement shall be sufficient if in writing and hand-delivered or sent by mail to the last known address of the Executive or Beneficiary, as appropriate. Any 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 or on the receipt for registration or certification.

9.10 Headings and Interpretation . Headings and sub-headings in this Agreement are inserted for reference and convenience only and shall not be deemed part of this Agreement. 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.

9.11 Alternative Action . In the event it becomes impossible for the Employer or the Administrator to perform any act required by this Agreement due to regulatory or other constraints, the Employer or Administrator may perform such alternative act as most nearly carries out the intent and purpose of this Agreement and is in the best interests of the Employer, provided that such alternative act does not violate Code Section 409A.

9.12 Coordination with Other Benefits . The benefits provided for the Executive or the Beneficiary under this Agreement are in addition to any other benefits available to the Executive under any other plan or program for employees of the Employer. This Agreement shall supplement and shall not supersede, modify, or amend any other such plan or program except as may otherwise be expressly provided herein.

9.13 Inurement . This Agreement shall be binding upon and shall inure to the benefit of the Employer, its successor and assigns, and the Executive, the Executive’s successors, heirs, executors, administrators, and the Beneficiary.

9.14 Tax Withholding . The Employer may make such provisions and take such action as it deems necessary or appropriate for the withholding of any taxes which the Employer is required by any law or regulation to withhold in connection with any benefits under the Agreement. The Executive shall be responsible for the payment of all individual tax liabilities relating to any benefits paid hereunder.

9.15 Aggregation of Agreement . If the Employer offers other account balance deferred compensation plans in addition to this Agreement, this Agreement and those plans shall be treated as a single plan to the extent required under Code Section 409A.

 

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IN WITNESS WHEREOF, the Executive and a representative of the Employer have executed this Agreement document as indicated below:

 

Executive:     Employer:
    Peoples Security Bank and Trust Company

/s/ Craig W. Best

    By:  

/s/ Michael Jake

Craig W. Best     Its:  

Executive Vice President

 

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Exhibit 10.2

Peoples Financial Services Corp.

Supplemental Executive Retirement Plan Agreement

This Supplemental Executive Retirement Plan Agreement (this “ Agreement ”) is adopted effective as of April 22, 2014, by and among Peoples Security Bank and Trust Company, a Pennsylvania state chartered bank (the “ Bank ”), Peoples Financial Services Corp., a Pennsylvania corporation (the “ Corporation ”), and Joseph M. Ferretti (the “ Executive ”).

WHEREAS , 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, in accordance with section 3.4(d) of that certain Employment Agreement, dated as of December 1, 2013, by and among the Corporation, the Bank and the Executive; and

WHEREAS , the Executive is currently employed by the Bank, and is qualified by education and experience to serve as the Bank’s Senior Vice President and Co-Chief Lending Officer – North.

NOW THEREFORE , the parties hereto, intending to be legally bound, agree as follows:

Article 1

Definitions

Whenever used in this Agreement, the following words and phrases shall have the meanings specified:

 

1.1 Beneficiary ” means each designated person or entity, or the estate of the deceased Executive, entitled to any benefits upon the death of the Executive pursuant to Article 4.

 

1.2 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.

 

1.3 Board ” means the Board of Directors of the Corporation as from time to time constituted.

 

1.4 Change in Control ” shall have the meaning given it in the Employment Agreement.

 

1.5 Code ” means the Internal Revenue Code of 1986, as amended, and all regulations and guidance thereunder, including such regulations and guidance as may be promulgated after the Effective Date.

 

1.6 Disability ” shall have the meaning given it in the Employment Agreement.

 

1.7 Effective Date ” means the Effective Time as defined in the Merger Agreement.

 

1.8 Employment Agreement ” means that certain Employment Agreement, dated as of December 1, 2013, by and among the Corporation, the Bank and the Executive, as may be amended from time to time.

 

1.9 Normal Retirement Age ” means age sixty-five (65).

 

1.10 Normal Retirement Date ” means the later of Normal Retirement Age or Separation from Service.

 

1.11 Plan Administrator ” means the Board or such committee or person as the Board shall appoint.

 

1.12 Plan Year ” means each twelve (12) month period commencing on January 1 and ending on December 31 of each year.


1.13 Separation from Service ” means termination of the Executive’s employment with the Bank (and Corporation, if applicable) constituting a “separation from service” within its meaning under Treasury Regulations Section 1.409A-1(h).

 

1.14 Schedule A ” means the schedule attached to this Agreement and made a part hereof. Schedule A shall be updated upon a change in any of the benefit amounts under Article 2 or 3.

 

1.15 Specified Employee ” means a “specified employee” as defined in Treasury Regulations Section 1.409A-1(i).

 

1.16 Termination for Cause ” means a Separation from Service in connection with a termination of Executive’s employment by the Bank for Cause (as defined in the Employment Agreement).

 

1.17 Termination without Cause ” means a Separation from Service in connection with a termination of Executive’s employment by the Bank without Cause (as defined in the Employment Agreement).

Article 2

Distributions During Lifetime

 

2.1 Normal Retirement Benefit . Upon Separation from Service on or after attaining Normal Retirement Age, 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 Forty Thousand Dollars ($40,000).

 

  2.1.2 Distribution of Benefit . The Bank shall distribute the annual benefit to the Executive in twelve (12) equal monthly installments commencing on the first day of the month following Normal Retirement Date. The annual benefit shall be distributed to the Executive for ten (10) years.

 

2.2 Disability Benefit. If the Executive experiences a Disability which results in a Separation from Service prior to Normal Retirement Age, 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 Disability Benefit set forth on Schedule A for the Plan Year ended immediately prior to the date in which Separation from Service due to Disability occurs. Additionally, the annual benefit amount shall be increased by a pro-rated amount relative to the Executive’s service during the partial Plan Year in which Separation from Service takes place. This amount will be added to the Annual Benefit amount at the end of the preceding Plan Year on Schedule A.

 

  2.2.2 Distribution of Benefit . The Bank shall distribute the annual benefit to the Executive in twelve (12) equal monthly installments commencing on the first day of the month following Separation from Service. The annual benefit shall be distributed to the Executive for ten (10) years.

 

2.3 Change in Control Benefit . If a Change in Control occurs prior to Normal Retirement Age followed by a Termination without Cause within twenty-four (24) months following the Change in Control, the Bank shall distribute to the Executive the benefit described in this Section 2.3 in lieu of any other benefit under this Article.

 

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  2.3.1 Amount of Benefit . The annual benefit under this Section 2.3 is the Change in Control benefit set forth on Schedule A for the Plan Year ended immediately prior to the date Separation from Service occurs. Additionally, the annual benefit amount shall be increased by a pro-rated amount relative to the Executive’s service during the partial Plan Year in which Separation from Service takes place. This amount will be added to the Annual Benefit amount at the end of the preceding Plan Year on Schedule A.

 

  2.3.2 Distribution of Benefit . The Bank shall distribute the annual benefit to the Executive in twelve (12) equal monthly installments commencing on the first day of the month following Separation from Service. The annual benefit shall be distributed to the Executive for ten (10) years.

 

2.4 Termination without Cause Prior to Normal Retirement Age . If the Executive experiences a Termination without Cause during or before the Plan Year in which the Executive attains Normal Retirement Age, 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 Termination without Cause Benefit set forth on Schedule A for the Plan Year ended immediately prior to the date in which the Termination without Cause prior to Normal Retirement Age occurs. Additionally, the annual benefit amount shall be increased by a pro-rated amount relative to the Executive’s service during the partial Plan Year in which such Separation from Service takes place. This amount will be added to the Annual Benefit amount at the end of the preceding Plan Year on Schedule A.

 

  2.4.2 Distribution of Benefit . The Bank shall distribute the annual benefit to the Executive in twelve (12) equal monthly installments commencing on the first day of the month following the Termination without Cause. The annual benefit shall be distributed to the Executive for ten (10) years.

 

2.5 Restriction on Commencement of Distributions . Notwithstanding any provision of this Agreement to the contrary, if the Executive is considered a Specified Employee, the provisions of this Section 2.5 shall govern all distributions hereunder. If benefit distributions which would otherwise be made to the Executive due to Separation from Service are limited because the Executive is a Specified Employee, then such distributions shall not be made during the first six (6) months following Separation from Service. Rather, any distribution which would otherwise be paid to the Executive during such period shall be accumulated and paid to the Executive in a lump sum on the first day of the seventh month following Separation from Service. All subsequent distributions shall be paid in the manner specified.

 

2.6 Distributions Upon Taxation of Amounts Deferred . If, pursuant to Code Section 409A, the Federal Insurance Contributions Act or other state, local or foreign tax, the Executive becomes subject to tax on the amounts deferred hereunder, then the Bank may make a limited distribution to the Executive in a manner that conforms to the requirements of Code Section 409A. Any such distribution will decrease the Executive’s benefits distributable under this Agreement.

 

2.7 Change in Form or Timing of Distributions . For distribution of benefits under this Article 2, the Executive and the Bank may, subject to the terms of Section 8.1, amend this Agreement to delay the timing or change the form of distributions. Any such amendment shall be subject to approval by the Bank in its sole and absolute discretion and:

 

  (a) may not accelerate the time or schedule of any distribution, except as provided in Code Section 409A;

 

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  (b) except for benefits distributable under Section 2.2, must delay the commencement of distributions for a minimum of five (5) years from the date the distribution was originally scheduled to be made; and

 

  (c) must take effect not less than twelve (12) months after the amendment is made.

 

Article 3

Distribution at Death

 

3.1 Death During Active Service . If the Executive dies prior to Separation from Service, the Bank shall distribute to the Beneficiary the benefit described in this Section 3.1. This benefit shall be distributed in lieu of any benefit under Article 2.

 

  3.1.1 Amount of Benefit . The benefit under this Section 3.1 is the Normal Retirement Benefit as described in Section 2.1.1.

 

  3.1.2 Distribution of Benefit . The Bank shall distribute the annual benefit to the Beneficiary in twelve (12) equal monthly installments commencing within sixty (60) days following the Executive’s death. The annual benefit shall be distributed to the Beneficiary for ten (10) years. The Beneficiary shall be required to provide to the Bank the Executive’s death certificate.

 

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 the remaining benefits to the Beneficiary at the same time and in the same amounts they would have paid to the Executive had the Executive survived. The Beneficiary shall be required to provide to the Bank the Executive’s death certificate.

Article 4

Beneficiaries

 

4.1 In General . The Executive shall have the right, at any time, to designate a Beneficiary to receive any benefit distributions under this Agreement upon the death of the Executive. The Beneficiary designated under this Agreement may be the same as or different from the beneficiary designated under any other plan of the Bank in which the Executive participates.

 

4.2 Designation . 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. If the Executive names someone other than the Executive’s spouse as a Beneficiary, the Plan Administrator may, in its sole discretion, determine that spousal consent is required to be provided in a form designated by the Plan Administrator, executed by the Executive’s spouse and returned to the Plan Administrator. 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. 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.

 

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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, any benefit shall be paid to 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 Beneficiary, as the case may be, and shall completely discharge any liability under this Agreement for such distribution amount.

Article 5

General Limitations

 

5.1 Termination for Cause; Other Events . Notwithstanding any provision of this Agreement to the contrary, the Bank shall not distribute any benefit under this Agreement if (i) the Executive’s employment with the Bank is terminated by the Bank due to a Termination for Cause or (ii) the Executive has a Separation from Service other than one explicitly described under Sections 2.1 through 2.4 or Article 3.

 

5.2 Suicide or Misstatement . No benefit shall be distributed if the Executive commits suicide within two (2) years after the Effective Date, 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.

 

5.4 Regulatory Restrictions . Notwithstanding anything herein to the contrary, any payments made to the Executive pursuant to this Agreement, or otherwise, shall be subject upon compliance with 12 U.S.C. 1828 and FDIC Regulation 12 CFR Part 359, Golden Parachute Indemnification Payments and any other regulations or guidance promulgated thereunder.

 

5.5 Section 280G . If any payment or benefit due under this Agreement, together with all other payments and benefits that the Executive receives or is entitled to receive from the Bank, the Corporation or any of their subsidiaries, affiliates or related entities, would (if paid or provided) constitute a “parachute payment” (within the meaning under Section 280G(b)(2) of the Code) or an excise tax under Section 4999 of the Code, the amounts otherwise payable under this Agreement will be limited to the minimum extent necessary to ensure that no portion thereof will fail to be tax-deductible to the Corporation and Bank by reason of Section 280G of the Code or subject to an excise tax under Section 4999 of the Code.

 

5.6 Competition after Separation from Service . Any unpaid benefits shall be forfeited if the Executive breaches the Employment Agreement, including, without limitation, any restrictive covenant in Article IV thereof.

 

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Article 6

Administration of Agreement

 

6.1 Plan Administrator Duties . The Plan Administrator shall administer this Agreement according to its express terms and 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 this Agreement to the extent the exercise of such discretion and authority does not conflict with Code Section 409A.

 

6.2 Agents . In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as the Plan Administrator 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.

 

6.3 Binding Effect of Decisions . Any decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation or application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.

 

6.4 Indemnity of Plan Administrator . The Bank shall indemnify and hold harmless 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.

 

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 Executive’s death, Disability or Separation from Service, and such other pertinent information as the Plan Administrator may reasonably require.

Article 7

Claims And Review Procedures

 

7.1 Claims Procedure . An Executive or Beneficiary (“ claimant ”) who has not received benefits under this 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. If such a claim relates to the contents of a notice received by the claimant, the claim must be made within sixty (60) days after such notice was received by the claimant. All other claims must be made within one hundred eighty (180) days of the date on which the event that caused the claim to arise occurred. The claim must state with particularity the determination desired by the claimant.

 

  7.1.2 Timing of Plan Administrator Response. The Plan Administrator shall respond to such claimant within thirty (30) 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 thirty (30) days by notifying the claimant in writing, prior to the end of the initial thirty (30) day period, which 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.

 

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  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;

 

  (b) A reference to the specific provisions of this 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 this 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 the entire 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 sixty (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 thirty (30) 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 thirty (30) days by notifying the claimant in writing, prior to the end of the initial thirty (30) day period, which 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;

 

  (b) A reference to the specific provisions of this 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).

 

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7.3 Arbitration of Claims . All claims or controversies arising out of or in connection with this Agreement shall, subject to the initial review provided for in the foregoing provisions of this Article, be resolved through arbitration. Except as otherwise mutually agreed to by the parties, any arbitration shall be administered under and by the American Arbitration Association (“ AAA ”), in accordance with the AAA procedures then in effect. The arbitration shall be held in the AAA office nearest to where the Executive is or was last employed by the Bank or at a mutually agreeable location.

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 changes or tax law, including without limitation Code Section 409A.

 

8.2 Plan Termination Generally . This Agreement may be terminated only by a written agreement signed by the Bank and the Executive. The benefit shall be the Accrual Balance (as described in Schedule A) as of the date this 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 Code Section 409A . Notwithstanding anything to the contrary in Section 8.2, the Bank may terminate this Agreement pursuant to and in accordance with Treasury Regulation Section 1.409A-3(j)(4)(ix) (or any successor provision) and, upon such termination, the Bank may distribute the Accrual Balance (as described in Schedule A), determined as of the date of the termination of this Agreement, to the Executive in a lump sum.

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 interfere with the Bank’s right to discharge the Executive. It 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.

 

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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 Code Section 409A from the benefits provided under this Agreement. The Executive acknowledges that the Bank’s sole liability regarding taxes is to forward any amounts withheld to the appropriate taxing authorities. The Bank shall satisfy all applicable reporting requirements, including those under Code Section 409A.

 

9.5 Applicable Law . This 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.

 

9.6 Unfunded Arrangement . This Agreement shall be unfunded for tax purposes and for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended from time to time (“ ERISA ”). The Executive and the 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 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. This Agreement supersedes any and all agreements, either oral or in writing between the parties with respect to the provision of a supplemental executive retirement plan agreement to Executive, including but not limited to the 2011 SERP. The Executive specifically releases all parties of any rights and obligations under the 2011 SERP and said agreement is null and void.

 

9.8 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.

 

9.9 Alternative Action . In the event it shall become impossible for the Bank or the Plan Administrator to perform any act required by this Agreement due to regulatory or other constraints, the Bank or Plan Administrator may 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, provided that such alternative act does not violate Code Section 409A.

 

9.10 Headings . Article and section headings are for convenient reference only and shall not control or affect the meaning or construction of any provision herein.

 

9.11 Validity . If 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 or invalid provision had never been included herein.

 

9.12 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:

 

 

Peoples Financial Services Corp.

 
 

150 North Washington Ave

 
 

Scranton, PA 18504

 

 

9


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.

 

9.13 Compliance with Section 409A . This Agreement shall be interpreted and administered consistent with Code Section 409A.

IN WITNESS WHEREOF, the Executive and a duly authorized representative of the Bank have signed this Agreement.

 

EXECUTIVE     PEOPLES SECURITY BANK AND TRUST COMPANY

/s/ Joseph M. Ferretti

    By:  

/s/ Linda Gordon

Joseph M. Ferretti      

 

    PEOPLES FINANCIAL SERVICES CORP.
    By:  

/s/ Michael Jake

     

Executive Vice President

 

10


LOGO

Supplemental Executive Retirement Plan

Schedule A

Joseph Ferretti

 

Birth Date: 05/11/1969

Plan Anniversary Date:
12/31/2014

Normal Retirement:
05/11/2034, Age 65

Normal Retirement
Payment: Monthly for 10
Years

        Early Termination
Without Cause

 

Amount Payable Monthly for 10
Years at Separation from Service

     Disability

 

 

Amount Payable Monthly for
10 Years Upon Disability

     Change In Control

 

 

Amount Payable Monthly for
10 Years Upon Separation

     Death

 

 

Amount Payable Monthly for
10 Years Upon Death

 

Values As Of

   Age    Annual Benefit 1      Annual Benefit 1      Annual
Benefit 1
     Annual
Benefit 1,2
 

Jun 2014

   45      0         0         0         40,000   

Dec 2014

   45      730         730         730         40,000   

Dec 2015

   46      2,026         2,026         2,026         40,000   

Dec 2016

   47      3,381         3,381         3,381         40,000   

Dec 2017

   48      4,799         4,799         4,799         40,000   

Dec 2018

   49      6,282         6,282         6,282         40,000   

Dec 2019

   50      7,833         7,833         7,833         40,000   

Dec 2020

   51      9,456         9,456         9,456         40,000   

Dec 2021

   52      11,153         11,153         11,153         40,000   

Dec 2022

   53      12,928         12,928         12,928         40,000   

Dec 2023

   54      14,784         14,784         14,784         40,000   

Dec 2024

   55      16,726         16,726         16,726         40,000   

Dec 2025

   56      18,757         18,757         18,757         40,000   

Dec 2026

   57      20,881         20,881         20,881         40,000   

Dec 2027

   58      23,103         23,103         23,103         40,000   

Dec 2028

   59      25,427         25,427         25,427         40,000   

Dec 2029

   60      27,857         27,857         27,857         40,000   

Dec 2030

   61      30,399         30,399         30,399         40,000   

Dec 2031

   62      33,059         33,059         33,059         40,000   

Dec 2032

   63      35,840         35,840         35,840         40,000   

Dec 2033

   64      38,749         38,749         38,749         40,000   

May 2034

   65         40,000         40,000         40,000   

The first line represents the initial plan values as of the plan implementation date of June 01, 2014.

 

1   The annual benefit amount will be distributed in 12 equal monthly payments for a total of 120 monthly payments.
2   Note that accounting rules may require an additional accrual at the time this benefit is triggered.

 

SERP:Peoples Security Bank and Trust Company-Scranton,PA

7514#,10436#,1976#,03/14/2014

  1   Copyright© 2014 -All Rights Reserved


LOGO

Supplemental Executive Retirement Plan

Schedule A

 

IF THERE IS A CONFLICT BETWEEN THIS SCHEDULE A AND THE AGREEMENT, THE TERMS AND PROVISIONS OF THE AGREEMENT SHALL PREVAIL. IF A TRIGGERING EVENT OCCURS, REFER TO THE AGREEMENT TO DETERMINE THE ACTUAL BENEFIT AMOUNT BASED ON THE DATE OF THE EVENT.

 

      By  

Michael Jake

Joseph Ferretti

     
      Title  

Executive Vice President

Date  

 

     
      Date  

4-22-14

 

SERP:Peoples Security Bank and Trust Company-Scranton,PA

7514#,10436#,1976#,03/14/2014

  2   Copyright© 2014 -All Rights Reserved