This excerpt taken from the GIW 8-K filed Jan 6, 2006.
SECOND AMENDMENT TO DEFERRED COMPENSATION AGREEMENT
AGREEMENT TO AMEND THE DEFERRED COMPENSATION AGREEMENT (the Second Amendment) dated as of __________, 2005, between WILBER NATIONAL BANK, a banking corporation organized under the laws of the State of New York (Bank) and Alfred S. Whittet (Whittet) of West Oneonta, New York.
W I T N E S S E T H:
WHEREAS, Bank and Employee previously entered into a Deferred Compensation Agreement, dated the 28th day of December, 2000 (the Deferred Compensation Agreement), which, among other items, provides the Employee with choices of deemed or actual investments for the Employees compensation deferred according to the terms of the Deferred Compensation Agreement; and
WHEREAS, Bank and Employee previously entered into the First Amendment of the Deferred Compensation Agreement, dated the 28th Day of December, 2000 (the First Amendment), which amended the choices of deemed or actual investments for the Employees compensation deferred according to the terms of the Deferred Compensation Agreement; and
WHEREAS, the enactment of the American Jobs Creation Act of 2004 added section 409A to the Internal Revenue Code of 1986, as amended (Code Section 409A); and
WHEREAS, the Internal Revenue Service recently promulgated proposed regulations implementing Code Section 409A (the Proposed Regulations); and
WHEREAS, the Bank and the Employee desire to freeze accruals to the Account as of December 31, 2004 and to modify the Agreement, as amended by the First Amendment, to comply with Code Section 409A and the Proposed Regulations.
NOW, THEREFORE, in consideration of the mutual promises of the parties hereto, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. The Deferred Compensation Agreement is further amended by adding the following as the new final paragraph of Paragraph 2:
Effective December 31, 2004, future deferrals to the Account shall be discontinued and any deferrals made hereunder after January 1, 2005 shall be returned and paid as salary or wages to Whittet no later than December 31, 2005.
2. Effective January 1, 2005, the Deferred Compensation Agreement is further amended by replacing Paragraph 4 thereof with the following:
Distributions upon the termination of Whittets employment with the Bank shall be paid in the form of either a lump sum on the one hand or in monthly, quarterly or annual installments for a period of up to five (5) years on the other hand. Whittet shall elect the form and time of distribution of the Account on the termination of [his/her] employment with the Bank by completing a Deferred Compensation Election Form in the form attached hereto and filing it with the Bank no later than December 31, 2005. Upon filing with the Bank, such Deferred Compensation Election Form shall be incorporated by reference herein. This election of the form and timing of the distribution of the Account may not be changed once made and may not (i) change the form of payments that Whittet would otherwise receive in 2006 and (ii) may not cause a benefit to be paid to Whittet in 2006 that otherwise would have been made at a later time.
3. The following is inserted as the new third sentence of Paragraph 5 of the Deferred Compensation Agreement:
Effective January 1, 2005, such designation (or a change in such designation) shall be made by filing a Beneficiary Election Form in the form attached hereto.
4. Effective January 1, 2005, the third sentence of Paragraph 9 of the Deferred Compensation Agreement is deleted and replaced with the following two sentences:
Such accelerated distribution will be made only in the amount necessary to alleviate the financial emergency (including any amounts necessary to pay federal, state or local income taxes reasonably anticipated to result from the distribution. For the purposes of this Paragraph 9, hardship shall mean a severe financial hardship to Whittet resulting from an illness or accident of Whittet, Whittets spouse or dependent (as defined in Section 152(a) of the Code), loss of Whittets property due to casualty or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of Whittet.
6. Capitalized terms used herein, but not otherwise defined herein, shall have the meanings ascribed to them in the Deferred Compensation Agreement.
7. All other terms of the Deferred Compensation Agreement remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as of the day and year first above written.
WILBER NATIONAL BANK