AMENDED AND
RESTATED
SUPPLEMENTAL RETIREMENT PLAN
AGREEMENT
THIS
AGREEMENT is entered into
this ___ day of May, 2001 by FIRST REPUBLIC BANK , having
its principal offices at 1608 Walnut Street, Suite 1000,
Philadelphia, Pennsylvania 19103 (the "BANK") and NEIL I.
RODIN , (the "DIRECTOR").
RECITALS
WHEREAS , DIRECTOR and BANK entered into a Supplemental
Retirement Plan Agreement dated August 4, 1992 (the "PLAN") and the
parties hereto desire to amend and restate the PLAN as provided
herein; and
WHEREAS , the DIRECTOR has been on the Board of
Directors of the BANK since 1988, and;
WHEREAS , its Board of Directors, recognizing the past
services of the DIRECTOR, the DIRECTOR'S contribution to the BANK
and the experience and knowledge of the DIRECTOR, desires to modify
and amend the rewards the DIRECTOR receives under the Plan for his
continued valuable service and counsel.
NOW
THEREFORE , in
consideration of services performed in the past and to be performed
in the future as well as of the mutual promises and covenants
herein contained, the parties agree that the Plan is hereby amended
and restated in its entirety as follows:
ARTICLE I
CONDITIONS
1.1 The
DIRECTOR agrees to continue to devote such time and attention to
the business and affairs of the BANK as shall be required, and to
use his best efforts to furnish faithful and satisfactory service
to the Board during his tenure.
1.2 The
payment of benefits is conditioned upon the DIRECTOR not acting in
any similar capacity for any business enterprise which competes to
a substantial degree with the BANK, nor engaging in any activity
involving substantial competition with the BANK, without written
consent from the Board of Directors. This provision shall be
limited to that time while the DIRECTOR continues to serve on the
Board of Directors of the Bank (the "BOARD").
ARTICLE II
BENEFITS
2.1
Effective Date. The benefits provided to the DIRECTOR
hereunder shall be fully vested as of the date of this Agreement
and shall be payable as provided hereinafter.
2.2
Death Before Retirement. If the DIRECTOR dies while actively
serving on the Board prior to the commencement of his retirement
benefits payable hereunder, the BANK shall pay to such
beneficiary(ies) as the DIRECTOR shall designate in writing the sum
of $25,000 per year for ten years. Said payments shall be paid in
annual installments commencing when the DIRECTOR would have reached
sixty-five (65) years of age. If the DIRECTOR fails to properly
designate a beneficiary, the payments shall be made to the
DIRECTOR'S surviving spouse or if the spouse is deceased, to the
personal representative of the DIRECTOR'S estate.
2.3
Retirement Benefits. At the later to occur of DIRECTOR
ceasing to serve as a DIRECTOR of the BANK or the DIRECTOR
attaining the age sixty-five, the BANK shall pay the DIRECTOR
$25,000 per year for ten years. Such benefit payments shall be made
in annual installments beginning not later than the fifteenth
(15t11) day of the month following the fulfillment of the
requirements in this Section 2.3.
Notwithstanding
the above, in the event their is a Fundamental Change as defend in
Section 7.2 hereof, of the BANK or its parent company, the DIRECTOR
shall have the right, upon sixty (60) days written notice to BANK,
to require the BANK to assign all insurance policies applicable to
the DIRECTOR in lieu of receipt of payments by the BANK under this
Agreement, or, at the sole discretion of DIRECTOR, require the BANK
to commence payment of the $25,000 per annum for ten (10) years
provided for under Section 2.3 hereof
ARTICLE III
OTHER TERMINATIONS OF
SERVICE
3.1 If
the DIRECTOR'S service on the Board is terminated due to
disability, such termination of service shall be treated as any
other termination of service. There shall be no acceleration of
benefits and the DIRECTOR shall only be entitled to the benefit he
would have otherwise been due under this Agreement.
3.2 If
the services of the DIRECTOR is terminated, as a result of any
violation of criminal laws relating to banking, this Agreement
shall terminate upon the date of such termination of service and no
benefits or payments of any kind shall be made
hereunder.
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ARTICLE IV
FIDUCIARY
4.1 The
BANK is hereby designated the Named Fiduciary of the Plan and for
purposes of the claims procedure under this Agreement. The BANK
shall have authority to control and manage the operation and
administration of this Agreement, and it shall be responsible for
establishing and carrying any funding policy or methods consistent
with this Agreement.
4.2 The
BANK shall have the right to change the Named Fiduciary of the Plan
created under this Agreement. The BANK shall give the DIRECTOR
written notice of a change of the Named Fiduciary, or any change in
the address or telephone number of the Named Fiduciary.
ARTICLE V
CLAIMS
PROCEDURE
5.1 Benefits
shall be paid in accordance with the provisions of this Agreement.
Except in the death, the DIRECTOR or a designated recipient or any
other person claiming through the DIRECTOR shall make a written
request for benefits under this Agreement. This written claim shall
be mailed or delivered to the Named Fiduciary. Such claim shall be
reviewed by the Named Fiduciary. In the event of DIRECTOR'S death,
while receiving payments hereunder, benefits shall continue to be
timely paid to the DIRECTOR'S designated beneficiary, or if none
has been named, to his estate.
5.2 The
BANK shall only deny benefits in the event DIRECTOR shall violate
the provisions of Section 1.2 or 3.2.
ARTICLE VI
NO CONTRACT OF
EMPLOYMENT
This Agreement
shall not be deemed to constitute a contract of employment between
the parties hereto, nor shall any provisions hereof restrict the
removal of the DIRECTOR, or restrict the right of the DIRECTOR to
terminate his service.
ARTICLE VII
REORGANIZATION OR FUNDAMENTAL
CHANGE
7.1 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 and until such succeeding or continuing
bank, firm, or person agrees to assume and timely discharge the
obligations of the BANK under this Agreement.
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7.2 A
Fundamental Change shall mean:
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individuals
who, as of the date hereof constitute the Board of the BANK'S
parent company (the "COMPANY") or Board of the BANK (in either case
hereinafter referred to as the "INCUMBENT BOARD") cease for any
reason to constitute at least fifty percent (50%) of the Board of
the Company or the BANK; provided, however, that any individual
becoming a director subsequent to the date hereof whose nomination
for election by Company or BANK's shareholders was approved by a
vote of at least a majority of the directors then comprising the
INCUMBENT BOARD shall be considered as though such individual were
a member of the INCUMBENT BOARD, but excluding, for this purpose,
any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person
other than one nominated by the Board;
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the Company or
the BANK shall enter into an agreement or agreements providing for
(a) the reorganization, merger, or the sale or consolidation of the
Company's or BANK's assets with or into another entity, (b) the
exchange of all or substantially all of the stock of the Company or
the BANK for the stock of another entity or for cash, (c) the
liquidation or dissolution of the Company or the BANK, or (d) the
sale or the disposition of all or substantially all of the assets
of the Company or of the BANK.
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ARTICLE VIII
FUNDING
8.1 The
BANK'S obligation under this Agreement shall be funded in a manner
to assure DIRECTOR'S benefits shall be paid when due.
8.2 Should
the BANK determine to fund this Agreement, in whole or in part,
through the medium of life insurance, the BANK reserves the
absolute right, at its sole discretion, to terminate such life
insurance, as well as any other funding at any time, either in
whole or in part. Except as provided in Section 2.3 hereof, at no
time shall the DIRECTOR be deemed to have any right, title, or
interest in or to any specified asset or assets of the BANK,
including, but not by way of restriction, any insurance contracts
or the proceeds therefrom. Except as provided in Section 2.3
hereof, any such life insurance purchased by the BANK shall not in
any way be considered to be security for the performance of the
obligations of this Agreement. It shall be, and remain, a general,
unpledged, unrestricted asset of the BANK.
4
ARTICLE IX
INDEPENDENCE OF
BENEFITS
The benefits
payable under this Agreement shall be independent of, and in
addition to, any other benefits or compensation, whether by salary,
or bonus or otherwise payable under any other employment agreements
that now exist or may hereafter exist from time to time between the
DIRECTOR and the BANK. This Agreement does not involve a reduction
in salary or the foregoing or deferring of an increase in future
salary by the DIRECTOR. Nor does the Agreement in any way affect or
reduce the existing and future compensation and other benefits of
the DIRECTOR.
ARTICLE X
ASSIGNABILITY,
ALIENABILITY
Except in so
far as prohibited by applicable law, no sale, transfer, alienation,
assignment, pledge, collateralization, or attachment of any
benefits under this Agreement shall be valid or recognized by the
BANK. Neither the DIRECTOR, his spouse, or designated beneficiary
shall have any power to hypothecate, mortgage, commute, modify or
otherwise encumber in advance of any of the benefits payable
hereunder, nor shall any of said benefits be subject to seizure for
the payment of any debts, judgments, alimony, or separate
maintenance, owed by the DIRECTOR or his beneficiary, or be
transferable by operation of law in the event of bankruptcy,
insolvency, or otherwise.
ARTICLE XI
ADMINISTRATIVE
CLAUSE
Any payment
required to be made pursuant to this Agreement to a person who is
under a legal disability at the time such payment is due may be
made by the BANK to or for the benefit of such person in such of
the following ways as the BANK shall determine: (a) directly to the
person entitled to the payment; (b) to the legal representative of
such person; (c) to some near relative of such person to be used
for the latter's benefit; (d) directly in payment of expenses of
support, maintenance or education of such person. Any such payment
by the BANK shall, to the extent thereof be a complete discharge of
any liability under this Agreement with respect to such payment.
The BANK shall not be required to see to the application by any
third party of any payments made pursuant to this
paragraph.
ARTICLE XII
MARITAL, DEDUCTION
PROVISION
If the DIRECTOR
designates his spouse to receive payments to be made after his
death, she shall have the right to direct the BANK as to the
distribution of the sums, if any,
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payable after
her death. The DIRECTOR'S spouse has the right to direct any such
payments which may be payable after her death be paid to such
person(s) or to her own estate as she appoints and directs by a
written direction fled with the BANK during her lifetime or by her
last will and testament specifically referring to this power of
appointment and to the extent the DIRECTOR'S spouse does not
effectively exercise the power of appointment, such sums shall upon
her death be distributed to her estate.
ARTICLE XIII
PAYMENTS
UNSECURED
The DIRECTOR,
his beneficiary and any other person or persons having or claiming
a right to payments hereunder or to any interest in this Agreement
shall rely solely on the unsecured promises of the BANK set forth
herein, and nothing in this Agreement shall be construed to give
the DIRECTOR, his beneficiary or any other persons any right,
title, interest or claim in or to any specific asset, fund,
reserve, account or property of any kind whatsoever owned by the
BANK or in which it may have any right, title or interest now or in
the future, but DIRECTOR, his beneficiary or any other person or
persons having any right to payments hereunder shall have the right
to enforce his claim against the BANK in the same manner as any
unsecured creditor.
ARTICLE XIV
AMENDMENT
During the
lifetime of the DIRECTOR, this Agreement may be amended or revoked
at any time, in whole or in part, by mutual agreement of the
Parties.
ARTICLE XV
NOTICES
Any notice,
consent or demand required or permitted to be given under the
provisions of this Agreement shall be in writing, and shall be
signed by the party giving or making the same. If such notice,
consent or demand is mailed to a party hereto, it shall be sent by
United States certified mail, postage prepaid, addressed to such
party's last known address as shown on the records of the BANK. The
date of such mailing shall be deemed the date of notice, consent or
demand.
ARTICLE XVI
LAW
GOVERNING
This Agreement
shall be governed by the laws of the Commonwealth of Pennsylvania.
This Agreement shall be binding upon the designated recipients,
beneficiaries, heirs,
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executors and
administrators of the DIRECTOR and upon the successors and assigns
of the BANK.
ARTICLE XVII
PRIOR
AGREEMENTS
This Agreement
shall amend and restate in its entirety that certain agreement
between the BANK and the DIRECTOR dated August 4, 1992.
ARTICLE XVIII
MISCELLANEOUS
18.1 No
modification of this Agreement shall be binding or enforceable in
any court unless in writing and signed by the parties.
18.2 If
any provision of this Agreement shall be or shall become illegal or
unenforceable in whole or in part, for any reason whatsoever, the
remaining provisions shall nevertheless be deemed valid, binding,
and subsisting.
18.3 The
waiver by either party of a breach or violation of any provision of
this Agreement shall not operate as or be construed to be a waiver
of any subsequent breach or violation thereof.
18.4 In
the event any dispute shall arise between the BANK or its successor
and the DIRECTOR as to the terms or interpretations of this
Agreement, whether instituted by formal legal proceedings or
otherwise, including any action taken by the DIRECTOR to enforce
the terms of this Agreement or in defending against any action
taken by the BANK or its successor, the BANK shall reimburse
DIRECTOR for all costs and expenses, including reasonable
attorneys' fees and costs, arising from such dispute, proceedings,
or actions, notwithstanding the ultimate outcome thereof. Such
reimbursement shall be paid within ten (10) days of DIRECTOR
furnishing to the BANK written evidence, which may be in the form,
among other things, of a canceled check or receipt, of any costs or
expenses incurred by DIRECTOR. Any such request for reimbursement
by DIRECTOR shall be made no more frequently than at thirty (30)
day intervals.
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FIRST REPUBLIC
BANK
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By: /s/
Robert Davis
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Asst.
Secretary
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President
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/s/ Neil I.
Rodin
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Witness
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DIRECTOR
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7
AMENDED AND
RESTATED
SUPPLEMENTAL RETIREMENT PLAN
AGREEMENT
THIS
AGREEMENT is entered into
this day of
May , 2001 by FIRST REPUBLIC
BANK , having its principal offices at 1608 Walnut Street,
Suite 1000, Philadelphia, Pennsylvania 19103 (the "BANK") and
WILLIAM W. BATOFF , (the "DIRECTOR").
RECITALS
WHEREAS, DIRECTOR and BANK entered into a Supplemental
Retirement Plan Agreement dated August 4, 1992 (the "PLAN") and the
parties hereto desire to amend and restate the PLAN as provided
herein; and
WHEREAS, the DIRECTOR has been on the Board of Directors
of the BANK since 1988, and;
WHEREAS, its Board of Directors, recognizing the past
services of the DIRECTOR, the DIRECTOR'S contribution to the BANK
and the experience and knowledge of the DIRECTOR, desires to modify
and amend the rewards the DIRECTOR receives under the Plan for his
continued valuable service and counsel.
NOW THEREFORE, in consideration of services performed in the
past and to be performed in the future as well as of the mutual
promises and covenants herein contained, the parties agree that the
Plan is hereby amended and restated in its entirety as
follows:
ARTICLE I
CONDITIONS
1.1 The
DIRECTOR agrees to continue to devote such time and attention to
the business and affairs of the BANK as shall be required, and to
use his best efforts to furnish faithful and satisfactory service
to the Board during his tenure.
1.2 The
payment of benefits is conditioned upon the DIRECTOR not acting in
any similar capacity for any business enterprise which competes to
a substantial degree with the BANK, nor engaging in any activity
involving substantial competition with the BANK, without written
consent from the Board of Directors. This provision shall be
limited to that time while the DIRECTOR continues to serve on the
Board of Directors of the Bank (the "BOARD").
ARTICLE II
BENEFITS
2.1
Effective Date. The benefits provided to the DIRECTOR
hereunder shall be fully vested as of the date of this Agreement
and shall be payable as provided hereinafter.
2.2
Death Before Retirement. If the DIRECTOR dies while actively
serving on the Board prior to the commencement of his retirement
benefits payable hereunder, the BANK shall pay to such
beneficiary(ies) as the DIRECTOR shall designate in writing the sum
of $25,000 per year for ten years. Said payments shall be paid in
annual installments commencing when the DIRECTOR would have reached
sixty-five (65) years of age. If the DIRECTOR fails to properly
designate a beneficiary, the payments shall be made to the
DIRECTOR'S surviving spouse or if the spouse is deceased, to the
personal representative of the DIRECTOR'S estate.
2.3
Retirement Benefits. At the later to' occur of DIRECTOR
ceasing to serve as a DIRECTOR of the BANK or the DIRECTOR
attaining the age sixty-five, the BANK shall pay the DIRECTOR
$25,000 per year for ten years. Such benefit payments shall be made
in annual installments beginning not later than the fifteenth
(15th) day of the month following the fulfillment of the
requirements in this Section 2.3.
Notwithstanding
the above, in the event their is a Fundamental Change as defined in
Section 7.2 hereof, of the BANK or its parent company, the DIRECTOR
shall have the right, upon sixty (60) days written notice to BANK,
to require the BANK to assign all insurance policies applicable to
the DIRECTOR in lieu of receipt of payments by the BANK under this
Agreement, or, at the sole discretion of DIRECTOR, require the BANK
to commence payment of the $25,000 per annum for ten (10) years
provided for under Section 2.3 hereof.
ARTICLE III
OTHER TERMINATIONS OF
SERVICE
3.1 If
the DIRECTOR'S service on the Board is terminated due to
disability, such termination of service shall be treated as any
other termination of service. There shall be no acceleration of
benefits and the DIRECTOR shall only be entitled to the benefit he
would have otherwise been due under this Agreement.
3.2 If
the services of the DIRECTOR is terminated, as a result of any
violation of criminal laws relating to banking, this Agreement
shall terminate upon the date of such termination of service and no
benefits or payments of any kind shall be made
hereunder.
2
ARTICLE IV
FIDUCIARY
4.1 The
BANK is hereby designated the Named Fiduciary of the Plan and for
purposes of the claims procedure under this Agreement. The BANK
shall have authority to control and manage the operation and
administration of this Agreement, and it shall be responsible for
establishing and carrying any funding policy or methods consistent
with this Agreement.
4.2 The
BANK shall have the right to change the Named Fiduciary of the Plan
created under this Agreement. The BANK shall give the DIRECTOR
written notice of a change of the Named Fiduciary, or any change in
the address or telephone number of the Named Fiduciary.
ARTICLE V
CLAIMS
PROCEDURE
5.1 Benefits
shall be paid in accordance with the provisions of this Agreement.
Except in the death, the DIRECTOR or a designated recipient or any
other person claiming through the DIRECTOR shall make a written
request for benefits under this Agreement. This written claim shall
be mailed or delivered to the Named Fiduciary. Such claim shall be
reviewed by the Named Fiduciary. In the event of DIRECTOR'S death,
while receiving payments hereunder, benefits shall continue to be
timely paid to the DIRECTOR'S designated beneficiary, or if none
has been named, to his estate.
5.2 The
BANK shall only deny benefits in the event DIRECTOR shall violate
the provisions of Section 1.2 or 3.2.
ARTICLE VI
NO CONTRACT OF
EMPLOYMENT
This Agreement
shall not be deemed to constitute a contract of employment between
the parties hereto, nor shall any provisions hereof restrict the
removal of the DIRECTOR, or restrict the right of the DIRECTOR to
terminate his service.
ARTICLE VII
REORGANIZATION OR FUNDAMENTAL
CHANGE
7.1 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 and until such succeeding or continuing
bank, firm, or person agrees to assume and timely discharge the
obligations of the BANK under this Agreement.
3
7.2 A
Fundamental Change shall mean:
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individuals
who, as of the date hereof constitute the Board of the BANK'S
parent company (the "COMPANY") or Board of the BANK (in either case
hereinafter referred to as the "INCUMBENT BOARD") cease for any
reason to constitute at least fifty percent (50%) of the Board of
the Company or the BANK; provided, however, that any individual
becoming a director subsequent to the date hereof whose nomination
for election by Company or BANK's shareholders was approved by a
vote of at least a majority of the directors then comprising the
INCUMBENT BOARD shall be considered as though such individual were
a member of the INCUMBENT BOARD, but excluding, for this purpose,
any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person
other than one nominated by the Board;
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the. Company or
the BANK shall enter into an agreement or agreements providing for
(a) the reorganization, merger, or the sale or consolidation of the
Company's or BANK's assets with or into another entity, (b) the
exchange of all or substantially all of the stock of the Company or
the BANK for the stock of another entity or for cash, (c) the
liquidation or dissolution of the Company or the BANK, or (d) the
sale or the disposition of all or substantially all of the assets
of the Company or of the BANK.
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ARTICLE VIII
FUNDING
8.1 The
BANK'S obligation under this Agreement, shall be funded in a manner
to assure DIRECTOR'S benefits shall be paid when due.
8.2 Should
the BANK determine to fund this Agreement, in whole or in part,
through the medium of life insurance, the BANK reserves the
absolute right, at its sole discretion, to terminate such life
insurance, as well as any other funding at any time, either in
whole or in part. Except as provided in Section 2.3 hereof, at no
time shall the DIRECTOR be deemed to have any right, title, or
interest in or to any specified asset or assets of the BANK,
including, but not by way of restriction, any insurance contracts
or the proceeds therefrom. Except as provided in Section 2.3
hereof, any such life insurance purchased by the BANK shall not in
any way be considered to be security for the performance of the
obligations of this Agreement. It shall be, and remain, a general,
unpledged, unrestricted asset of the BANK.
4
ARTICLE IX
INDEPENDENCE OF BENEFITS
The benefits
payable under this Agreement shall be independent of, and in
addition to, any other benefits or compensation, whether by salary,
or bonus or otherwise payable under any other employment agreements
that now exist or may hereafter exist from time to time between the
DIRECTOR and the BANK. This Agreement does not involve a reduction
in salary or the foregoing or deferring of an increase in future
salary by the DIRECTOR. Nor does the Agreement in any way affect or
reduce the existing and future compensation and other benefits of
the DIRECTOR.
ARTICLE X
ASSIGNABILITY,
ALIENABILITY
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