Exhibit 10.5
UNITED NATIONAL BANK & TRUST CO.
SALARY CONTINUATION AGREEMENT
THIS SALARY CONTINUATION AGREEMENT is entered into as of this 1st day
of May, 2001, by and between United National Bank & Trust Co., a nationally
chartered bank with its main office in Canton, Ohio (the "Bank"), and
___________ , ______________________________ (the "Executive").
WHEREAS, the Executive has contributed substantially to the success of
the Bank and its parent company, UNB Corp., and the Bank desires that the
Executive continue in its employ,
WHEREAS, to encourage the Executive to remain an employee of the Bank,
the Bank is willing to provide salary continuation benefits to the Executive,
payable out of the Bank's general assets, and
WHEREAS, none of the conditions or events included in the definition of
the term "golden parachute payment" that is set forth in ss.18(k)(4)(A)(ii) of
the Federal Deposit Insurance Act [12 U.S.C. ss.1828(k)(4)(A)(ii)] and in
Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR
359.1(f)(1)(ii)] exists or, to the best knowledge of the Bank, is contemplated
insofar as the Bank is concerned.
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following terms shall have the
meanings specified:
1.1 "Accrual Balance" means the amount reflected in Schedule A, which
is the amount required to be accrued by the Bank according to generally accepted
accounting principles to account for benefits that may become payable to the
Executive under this Agreement.
1.2 "Change in Control" means any one of the following events
occurs:
(a) Merger: UNB Corp. merges into or consolidates with
another corporation, or merges another corporation into UNB
Corp., and as a result less than a majority of the combined
voting power of the resulting corporation immediately after
the merger or consolidation is held by persons who were the
holders of UNB Corp.'s voting securities immediately before
the merger or consolidation, or
(b) Acquisition of Significant Share Ownership: a report
on Schedule 13D or another form or schedule (other than
Schedule 13G) is filed or is required to be filed under
Sections 13(d) or 14(d) of the Securities Exchange Act of
1934, if the
schedule discloses that the filing person or persons acting in
concert has or have become the beneficial owner of 15% or more
of a class of UNB Corp.'s voting securities (but this clause
(b) shall not apply to beneficial ownership of voting shares
of UNB Corp. held by the Bank or another subsidiary of UNB
Corp. in a fiduciary capacity), or
(c) Change in Board Composition: during any period of two
consecutive years, individuals who constitute the Board of
Directors of UNB Corp. at the beginning of the two-year period
cease for any reason to constitute at least a majority
thereof; provided, however, that -- for purposes of this
clause (c) -- each director who is first elected by the Board
(or first nominated by the Board for election by stockholders)
by a vote of at least two-thirds (2/3) of the directors who
were directors at the beginning of the period shall be deemed
to have been a director at the beginning of the two-year
period, or
(d) Sale of Assets: UNB Corp. sells to a third party
substantially all of UNB Corp.'s assets. For purposes of this
Agreement, sale of substantially all of UNB Corp.'s assets
includes sale of the Bank.
1.3 "Disability" means, if the Executive is covered by a Bank-sponsored
disability policy, total disability as defined in such policy without regard to
any waiting period. If the Executive is not covered by such a policy, Disability
means the Executive suffers a sickness, accident or injury that, in the judgment
of a physician satisfactory to the Bank, prevents the Executive from performing
substantially all of the Executive's normal duties for the Bank. As a condition
to receiving any disability benefits, the Bank may require the Executive to
submit to such physical or mental evaluations and tests as the Bank's Board of
Directors deems appropriate.
1.4 "Early Retirement Age" means the earlier of the Executive's 55th
birthday or the date by which the Executive has at least 30 years of service
with the Bank. If the Executive does not have 30 years of service with the Bank
by the date of his 55th birthday, the Executive's Early Retirement Age means the
date on which the Executive attains age 55.
1.5 "Early Termination" means Termination of Employment with the Bank
before Normal Retirement Age for reasons other than death, Disability,
Termination for Cause or following a Change in Control.
1.6 "Early Termination Date" means the month, day and year in which
Early Termination occurs.
1.7 "Effective Date" means May 1, 2001.
1.8 "Normal Retirement Age" means the Executive's 65th birthday.
2
1.9 "Normal Retirement Date" means the later of the Normal Retirement
Age or Termination of Employment with the Bank.
1.10 "Person" means an individual, corporation, partnership, trust,
association, joint venture, pool, syndicate, sole proprietorship, unincorporated
organization or other entity.
1.11 "Plan Year" means a twelve-month period commencing on May 1 and
ending on the last day of April of each year. The initial Plan Year shall
commence on the Effective Date of this Agreement.
1.12 "Termination of Employment" means that the Executive shall have
ceased to be employed by the Bank for any reason whatsoever, excepting a leave
of absence approved by the Bank. For purposes of this Agreement, if there is a
dispute over the employment status of the Executive or the date of termination
of the Executive's employment, the Bank shall have the sole and absolute right
to decide the dispute, unless a Change in Control shall have occurred.
1.13 "Termination for Cause." See Section 5.1.
ARTICLE 2
BENEFITS
2.1 Normal Retirement Benefit. Upon Termination of Employment of the
Executive on or after the Normal Retirement Age for reasons other than death,
the Bank shall pay to the Executive the benefit described in this Section 2.1
instead of any other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1
is $__________. The Bank's Board of Directors may, in its sole
discretion, increase the annual benefit under this Section
2.1.1, but any increase shall require recalculation of
Schedule A.
2.1.2 Payment of Benefit. Beginning with the month after the
Executive's Normal Retirement Date, the Bank shall pay the
annual benefit to the Executive in 12 equal monthly
installments on the first day of each month. The annual
benefit shall be paid to the Executive for 15 years.
2.2 Early Termination Benefit. Upon Early Termination, the Bank shall
pay to the Executive the benefit described in this Section 2.2 instead of any
other benefit under this Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
Early Termination Annual Benefit amount set forth in Schedule
A for the Plan Year ending
3
immediately before the Early Termination Date (except that
during the first Plan Year the benefit is the amount set forth
for Plan Year 1). To the extent the Executive is entitled to
an Early Termination Annual Benefit amount as set forth in the
attached Schedule A, interest will be credited on the Accrual
Balance at an annual rate of 7.5 percent, compounded monthly,
during the period between Termination of Employment and the
Normal Retirement Date. The Bank's Board of Directors may, in
its sole discretion, increase the annual benefit under this
Section 2.2.1, but any increase shall require recalculation of
Schedule A.
2.2.2 Payment of Benefit. Beginning with the month after the Normal
Retirement Age, the Bank shall pay the annual benefit to the
Executive in 12 equal monthly installments on the first day of
each month. The annual benefit shall be paid to the Executive
for 15 years.
2.3 Disability Benefit. Upon Termination of Employment of the Executive
because of Disability before the Normal Retirement Age, the Bank shall pay to
the Executive the benefit described in this Section 2.3 instead of any other
benefit under this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is the
Disability Annual Benefit amount set forth in Schedule A for
the Plan Year ending immediately before the date on which
Termination of Employment occurs (except during the first Plan
Year, the benefit is the amount set forth for Plan Year 1).
The Bank's Board of Directors may, in its sole discretion,
increase the annual benefit under this Section 2.3.1, but any
increase shall require recalculation of Schedule A.
2.3.2 Payment of Benefit. Beginning with the month after Normal
Retirement Age, the Bank shall pay the Disability Annual
Benefit amount to the Executive in 12 equal monthly
installments on the first day of each month. The annual
benefit shall be paid to the Executive for 15 years.
2.4 Change-in-Control Benefit. Upon the Executive's Termination of
Employment within three years after a Change in Control, the Bank shall pay to
the Executive the benefit described in this Section 2.4 instead of any other
benefit under this Agreement. However, no benefits shall be payable under this
Agreement if Termination of Employment occurs under Article 5 of this Agreement.
2.4.1 Amount of Benefit: The benefit under this Section 2.4 is the
Change-in-Control Benefit set forth in Schedule A for the Plan
Year ending immediately before the date on which Termination
of Employment occurs (except during the first Plan Year, the
benefit is the amount set forth for Plan Year 1), determined
by vesting the Executive in the Normal Retirement Age Accrual
Balance ($________), without reduction for the time value of
money or other discount. The Bank's
4
Board of Directors may, in its sole discretion, increase the
benefit under this Section 2.4.1, but any increase shall
require recalculation of Schedule A.
2.4.2 Payment of Benefit: The Bank shall pay the Change-in-Control
Benefit under Section 2.4 of this Agreement to the Executive
in one lump sum within three days after Termination of
Employment of the Executive.
2.5 Petition for Payment of Vested Normal Retirement Benefit, Vested
Early Termination Benefit or Vested Disability Benefit. To the extent the
Executive is entitled to the normal retirement benefit provided by Section 2.1,
the Early Termination benefit provided by Section 2.2, or the Disability benefit
provided by Section 2.3, the Executive may petition the Board of Directors to
have the Accrual Balance amount corresponding to that particular benefit paid to
the Executive in a single lump sum after (i) deduction of any normal retirement
benefits, Early Termination benefits or Disability benefits already paid and
(ii) addition of interest at the rate of 7.5% on the Accrual Balance not yet
paid for the period from Termination of Employment to payment of the lump sum
amount. The Board of Directors shall have sole and absolute discretion about
whether to pay the remaining Accrual Balance in a lump sum. If payment of the
remaining Accrual Balance is paid in a single lump sum, the Bank shall have no
further obligations under this Agreement.
2.6 Change-in-Control Payout of Vested Normal Retirement Benefit,
Vested Early Termination Benefit or Vested Disability Benefit Being Paid to the
Executive at the Time of a Change in Control. If a Change in Control occurs at
any time during the entire 15-year salary continuation benefit payment period
and if at the time of that Change in Control the Executive is receiving the
benefit provided by Section 2.1.2, Section 2.2.2 or Section 2.3.2, the Bank
shall pay the remaining salary continuation benefits to the Executive, his
beneficiaries, or estate in a lump sum within three days after the Change in
Control. The lump-sum payment due to the Executive, his beneficiaries or estate
as a result of a Change in Control shall be an amount equal to the Accrual
Balance amount corresponding to that particular benefit then being paid to the
Executive, his estate or beneficiaries pursuant to Section 2.1.2, Section 2.2.2
or Section 2.3.2 after (i) deduction of any normal retirement benefits, Early
Termination benefits or Disability benefits already paid and (ii) addition of
interest at the rate of 7.5% on the Accrual Balance not yet paid for the period
from Termination of Employment to payment of the lump sum amount.
2.7 Contradiction in Terms of Agreement and Schedule A. If there is a
contradiction in the terms of this Agreement and the Schedule A attached hereto
with the actual amount of a particular amount due the Executive pursuant to
Section 2.2, 2.3, or 2.4 hereof, then the actual amount of said benefit set
forth in the Agreement shall control.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. Except as provided in Section 5.2, if
the Executive dies in active service to the Bank before Normal Retirement Age,
instead of any benefit payable
5
under this Agreement the Bank shall pay to United National Bank & Trust Co.,
Trustee of the ______________ Irrevocable Insurance Trust the benefit described
in the Split Dollar Agreement and Endorsement attached to this Agreement as
Addendum A, if payment under this Section 3.1 is not includible in the taxable
estate of ______________. If the payment under this Section 3.1 is includible in
the taxable estate of ______________, then such payment shall be made to
_____________ if she survives him, and if not, to the Trustee of the
______________ Trust. Notwithstanding any other provision of this Agreement, the
Executive shall have no right to name a beneficiary and shall have no right to
modify or revoke a beneficiary designation made with respect to this Agreement
or any other documents incorporated by reference.
3.2 Death During Benefit Period. If the Executive dies after benefit
payments under Article 2 of this Agreement have commenced but before receiving
all such payments, the Bank shall pay the remaining benefits to ____________, if
she survives him, and if not, to the Trustee of the ______________ Trust at the
same time and in the same amounts they would have been paid to the Executive had
the Executive survived. In that case, no death benefit shall be payable under
this Article 3.
3.3 Death After Termination of Employment But Before Benefit Payments
Commence. If the Executive is entitled to benefit payments under Article 2 but
dies before payments commence, the benefits shall be payable to __________, if
she survives him, and if not, to the Trustee of the ______________ Trust, but
payments shall commence on the first day of the month after the date of the
Executive's death. Payments shall be made in the same amounts they would have
been paid to the Executive had the Executive survived.
3.4 Petition for Benefit Payments. To the extent that the Executive
dies before receiving any or all benefit payments to which he is entitled under
Section 2.1, Section 2.2, or Section 2.3, respectively, the Executive's
beneficiary or estate may petition the Board of Directors to have the Accrual
Balance corresponding to that particular benefit paid to the Executive's
beneficiary or estate in a single lump sum after (i) deduction of any normal
retirement benefits, Early Termination benefits or Disability benefits already
paid and (ii) addition of interest at the rate of 7.5% on the Accrual Balance
not yet paid for the period from the Executive's Termination of Employment to
payment of the lump sum amount. The Board of Directors shall have sole and
absolute discretion about whether to pay the remaining Accrual Balance in a lump
sum. If payment of the remaining Accrual Balance is paid in a single lump sum,
the Bank shall have no further obligations under this Agreement.
3.5 Change-in-Control Payout of Vested Normal Retirement Benefit,
Vested Early Termination Benefit or Vested Disability Benefit Being Paid to the
Executive's Estate or Beneficiaries at the Time of a Change in Control. If a
Change in Control occurs at any time during the entire 15-year salary
continuation benefit payment period and if at the time of that Change in Control
the Executive's estate or beneficiaries is receiving the benefit provided by
Section 2.1.2, Section 2.2.2 or Section 2.3.2, the Bank shall pay the remaining
salary continuation benefits to the Executive's beneficiaries or estate in a
lump sum within three days after the Change in Control. The lump-sum payment due
to the Executive's beneficiaries or estate as a result of a Change in Control
shall be an amount equal to the Accrual Balance amount
6
corresponding to that particular benefit then being paid to the Executive's
estate or beneficiaries pursuant to Section 2.1.2, Section 2.2.2 or Section
2.3.2 after (i) deduction of any normal retirement benefits, Early Termination
benefits or Disability benefits already paid and (ii) addition of interest at
the rate of 7.5% on the Accrual Balance not yet paid for the period from
Termination of Employment to payment of the lump sum amount.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. [Intentionally Left Blank]
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incapacitated, or to a person incapable of handling the
disposition of his or her property, the Bank may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incapacitated person or incapable person. The Bank may require such proof
of incapacity, minority or guardianship as the Bank deems appropriate before
distribution of the benefit. Distribution shall completely discharge the Bank
from all liability for such benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Bank shall not pay any benefit under this
Agreement if Termination of Employment is due to the Executive's actions that
have caused the Executive to be terminated for cause under any severance
agreement existing on the date hereof or hereafter entered into between the
Executive and UNB Corp.
5.2 Suicide or Misstatement. The Bank shall not pay any benefit under
this Agreement if the Executive commits suicide within three years after the
date of this Agreement. In addition, the Bank shall not pay any benefit under
this Agreement if the Executive has made any material misstatement of fact on an
employment application or resume provided to the Bank, or on any application for
any benefits provided by the Bank to the Executive.
5.3 Removal. If the Executive is removed from office or permanently
prohibited from participating in the conduct of the Bank's affairs by an order
issued under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement
shall terminate as of the effective date of the order.
5.4 Insolvency. If the Office of the Comptroller of the Currency
appoints the Federal Deposit Insurance Corporation as receiver for the Bank
under 12 U.S.C. 191, all obligations under this Agreement shall terminate as of
the date of the Bank's declared insolvency, but vested rights of the contracting
parties shall not be affected.
7
5.5 FDIC Open-Bank Assistance. Unless the Federal Deposit Insurance
Corporation determines that continuation of this Agreement is necessary for the
Bank's continued operation, all obligations under this Agreement shall terminate
when the Federal Deposit Insurance Corporation enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
Section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Any
rights of the parties that have already vested, however, shall not be adversely
affected by such action.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. The Bank shall notify in writing any person or
entity making a claim under this Agreement (a "Claimant") of his or her
eligibility or ineligibility for benefits under this Agreement. The Bank shall
provide the written notice within 90 days after the Claimant's written
application for benefits. If the Bank determines that the Claimant is not
eligible for benefits or full benefits, the notice shall set forth (a) the
specific reasons for the denial, (b) a specific reference to the provision(s) of
this Agreement on which denial is based, (c) a description of any additional
information or material necessary for the Claimant to perfect his or her claim,
and a description of why it is needed, and (d) an explanation of the Agreement's
claims review procedure and other appropriate information concerning the steps
to be taken if the Claimant wishes to have the claim reviewed. If the Bank
determines that there are special circumstances requiring additional time to
make a decision, the Bank shall notify the Claimant of the special circumstances
and the date by which a decision is expected to be made, extending the time for
up to an additional 90 days.
6.2 Review Procedure. If the Bank determines that the Claimant is not
eligible for benefits or full benefits, or if the Claimant believes that he or
she is entitled to greater or different benefits, the Claimant shall have the
opportunity to have his or her claim reviewed by the Bank by filing a petition
for review with the Bank within 60 days after receipt of the written notice
issued by the Bank. The Claimant's petition shall state the specific reasons the
Claimant believes entitle him or her to benefits or to greater or different
benefits. Within 60 days after the Bank's receipt of the petition, the Bank
shall give the Claimant (and counsel, if any) an opportunity to present his or
her position to the Bank verbally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Bank shall notify
the Claimant of the Bank's decision in writing within the 60-day period, stating
specifically the basis of its decision and identifying the specific provisions
of the Agreement on which the Bank's decision is based. If, because of the need
for a hearing, the 60-day period is not sufficient, the decision may be deferred
for up to another 60 days at the election of the Bank, but notice of this
deferral must be given to the Claimant.
ARTICLE 7
MISCELLANEOUS
7.1 Amendments and Termination. This Agreement may be amended or
terminated only by a written agreement signed by the Bank and the Executive.
8
7.2 Binding Effect. This Agreement shall bind the Executive and the
Bank, and their beneficiaries, survivors, executors, successors, administrators
and transferees.
7.3 No Guarantee of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain an
employee of the Bank, nor does it interfere with the Bank's right to discharge
the Executive. It also does not require the Executive to remain an employee nor
interfere with the Executive's right to terminate employment at any time.
7.4 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached, or encumbered in any manner.
7.5 Successors; Binding Agreement. By an assumption agreement in form
and substance satisfactory to the Executive, the Bank will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Bank to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent the Bank would be required to perform this Agreement if no such
succession had occurred. The Bank's failure to obtain such an assumption
agreement before the succession becomes effective shall be considered a breach
of this Agreement and shall entitle the Executive to the Change-in-Control
Benefit provided in Section 2.4.
7.6 Tax Withholding. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
7.7 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Ohio, except to the extent preempted by the
laws of the United States of America.
7.8 Unfunded Arrangement. The Executive and his beneficiary(ies) are
general unsecured creditors of the Bank for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Bank to pay 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 is a general
asset of the Bank to which the Executive and beneficiary have no preferred or
secured claim.
7.9 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.
7.10 Administration. The Bank shall have the powers that are necessary
to administer this Agreement, including but not limited to the power to:
(a) interpret the provisions of the Agreement,
(b) establish and revise the method of accounting for the
Agreement,
9
(c) maintain a record of benefit payments, and
(d) establish rules and prescribe forms necessary or desirable to
administer the Agreement.
7.11 Named Fiduciary. The Bank shall be the named fiduciary and plan
administrator under this Agreement. The named fiduciary may delegate to others
certain aspects of the management and operation responsibilities of the plan,
including the employment of advisors and the delegation of ministerial duties to
qualified individuals.
7.12 Severability. If for any reason any provision of this Agreement is
held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall, to the full
extent consistent with the law, continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the remainder of such provision, not held so invalid, and the
remainder of such provision, together with all other provisions of this
Agreement shall, to the full extent consistent with the law, continue in full
force and effect.
7.13 Headings. The headings of Sections herein are included solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Agreement.
7.14 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice.
(a) If to the Bank, to:
Board of Directors
United National Bank & Trust Co.
United Bank Plaza
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxx 00000
(b) If to the Executive, to:
--------------
--------------
--------------
and to such other or additional person or persons as either
party shall have designated to the other party in writing by
like notice.
7.15 Payment of Legal Fees. (a) The Executive May Enforce this
Agreement Through Legal Action. Provided that a Change in Control has occurred,
the Bank irrevocably authorizes the Executive to retain from time to time
counsel of the Executive's choice to advise and represent him
10
in the interpretation, enforcement or defense of the parties' rights and
responsibilities under this Agreement, if:
(1) the Executive concludes that the Bank has failed to comply
with any of its obligations under this Agreement following a
Change in Control: or
(2) if the Bank or any or any other person following a Change in
Control takes or threatens to take any action to declare this
Agreement void or unenforceable, or institutes any litigation
or other action or proceeding designed to deny, or to recover
from, the Executive the benefits provided or intended to be
provided to the Executive under this Agreement,
including without limitation the initiation or defense of any litigation or
other legal action, whether by or against the Bank or any director, officer,
stockholder or other person affiliated with the Bank, in any jurisdiction.
(b) Fees and Expenses Will Be Paid by the Bank. The Bank desires that
the Executive not be required to incur legal fees and the related costs and
expenses associated with the interpretation, enforcement or defense of
Executive's rights under this Agreement by litigation or otherwise, because the
amounts thereof would substantially detract from the benefits intended to be
extended to the Executive under this Agreement. Therefore, even if the Executive
does not prevail in whole or in part in the litigation or other legal action
associated with the interpretation, enforcement or defense of Executive's rights
under this Agreement, the Bank hereby agrees to pay and be solely financially
responsible for any and all attorneys' and related fees, costs and expenses
incurred by the Executive in the litigation or other legal action, up to a
maximum of $500,000. The fees and expenses of counsel selected by the Executive
shall be paid or reimbursed to the Executive by the Bank on a regular, periodic
basis, upon presentation by the Executive of a statement or statements prepared
by such counsel in accordance with counsel's customary practices. Anything
herein to the contrary notwithstanding, nothing in this Agreement authorizes the
Bank to pay or the Executive to demand payment of fees, costs and expenses if
and to the extent payment of fees, costs and expenses constitutes a "prohibited
indemnification payment" within the meaning of Federal Deposit Insurance
Corporation Rule 359.1(l)(1) [12 CFR 359.1(l)(1)].This Section 7.15(b) shall not
be operative unless there has first been a Change in Control. The Bank's
obligation to pay the Executive's legal fees provided by this Section 7.15
operates separately from, and in addition to, any legal fee reimbursement
obligation the Bank or the Bank's parent UNB Corp. may have with the Executive
by virtue of any separate employment, severance, or other agreement between the
Executive and the Bank or UNB Corp.
(c) Cost of Living Adjustment for Cap on Legal Fee Reimbursement. Upon
the occurrence of a Change in Control, the $500,000 cap on legal fee
reimbursement provided by Section 7.15(b) will be subject to a cost of living
adjustment equal to the value of the expression A x B, in which expression:
A = $500,000; and
11
B = Cost of living adjustment or inflation factor. This is
computed by dividing the Consumer Price Index for All Urban
Consumers ("CPI-U") prepared by the U.S. Bureau of Labor
Statistics, or any successor thereto, for the CPI-U for
January of the year during which the Change in Control occurs
by the CPI-U for January 2000.
The cost of living adjustment provided in this Section 7.15(c) shall be
considered to be part of the Executive's payment of legal fees for purposes of
this Agreement.
Illustration of Cost of Living Adjustment. To explain the cost of
living adjustment calculation for Payment of Legal Fees, we will use the
following example.
First, we determine the appropriate CPI-Us. The Agreement calls for the
use of the CPI-Us for January 2000 and the January of the year during which the
Change in Control occurs. Assume a Change in Control occurs in April 2009. For
illustrative purposes only, the CPI-U for January 2000 is 156.7, and the CPI-U
for January 2009 is 213.3.
Second, we calculate the cost of living adjustment or inflation factor.
To do this, we divide the CPI-U for January 2009 (213.3) by the CPI-U for
January 2000 (156.7). Our result is 1.361 (i.e., a 36.1 percent increase).
Finally, we calculate the raw cost of living adjustment. To do this, we
multiply the base Payment of Legal Fees amount by the inflation factor. In our
example, $500,000 multiplied by the inflation factor of 1.361 equals $680,500.
(d) The Executive May Choose the Bank's or UNB Corp.'s Counsel.
Notwithstanding any existing or previous attorney-client relationship between
the Bank or UNB Corp. and any counsel chosen by the Executive under Section
7.15(a), the Bank irrevocably consents to the Executive's entering into an
attorney-client relationship with that counsel, and the Bank and the Executive
agree that a confidential relationship shall exist between the Executive and
that counsel.
7.16 Internal Revenue Code Section 280G Gross Up. (a) Additional
Payment to Account for Excise Taxes. If as a result of a Change in Control the
Executive becomes entitled to acceleration of benefits under this Salary
Continuation Agreement or under any other plan or agreement of or with the Bank
or UNB Corp., including accelerated vesting of stock options granted under UNB
Corp.'s 1997 Stock Option Plan and 1987 Stock Option and Performance Unit Plan
and acceleration of benefits under any other benefit, compensation or incentive
plan or arrangement with UNB Corp. or the Bank (collectively, the "Total
Benefits"), and if any part of the Total Benefits is subject to the Excise Tax
under Section 280G and Section 4999 of the Internal Revenue Code (the "Excise
Tax"), UNB Corp. shall pay to the Executive the following additional amounts,
consisting of (1) a payment equal to the Excise Tax payable by the Executive on
the Total Benefits under Section 4999 of the Internal Revenue Code (the "Excise
Tax Payment"), and (2) a payment equal to the amount necessary to provide the
Excise Tax Payment net of all income, payroll and excise taxes. Together, the
additional amounts described in clauses (1) and (2) are referred to in this
Agreement as the "Gross-Up Payment." Payment of the Gross-Up Payment shall be
made in addition to the amount set forth in Section 2.4 hereof.
12
(b) Calculating the Excise Tax. For purposes of determining whether any
of the Total Benefits will be subject to the Excise Tax and for purposes of
determining the amount of the Excise Tax,
(1) Determination of "Parachute Payments" Subject to the Excise
Tax: any other payments or benefits received or to be received
by the Executive in connection with a Change in Control or the
Executive's Termination of Employment (whether under the terms
of this Agreement or any other agreement, the 1997 Stock
Option Plan and 1987 Stock Option and Performance Unit Plan or
any other benefit plan or arrangement with UNB Corp., the
Bank, any person whose actions result in a Change in Control
or any person affiliated with UNB Corp., the Bank or such
person) shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Internal Revenue Code,
and all "excess parachute payments" within the meaning of
Section 280G(b)(1) shall be treated as subject to the Excise
Tax, unless in the opinion of the certified public accounting
firm that is retained by UNB Corp. as of the date immediately
before the Change in Control (the "Accounting Firm") such
other payments or benefits do not constitute (in whole or in
part) parachute payments, or such excess parachute payments
represent (in whole or in part) reasonable compensation for
services actually rendered within the meaning of Section
280G(b)(4) of the Internal Revenue Code in excess (as defined
in Section 280G(b)(3) of the Internal Revenue Code), or are
otherwise not subject to the Excise Tax,
(2) Calculation of Benefits Subject to Excise Tax: the amount of
the Total Benefits that shall be treated as subject to the
Excise Tax shall be equal to the lesser of (a) the total
amount of the Total Benefits reduced by the amount of such
Total Benefits that in the opinion of the Accounting Firm are
not parachute payments, or (b) the amount of excess parachute
payments within the meaning of Section 280G(b)(1) (after
applying clause (1), above), and
(3) Value of Noncash Benefits and Deferred Payments: the value of
any noncash benefits or any deferred payment or benefit shall
be determined by the Accounting Firm in accordance with the
principles of Sections 280G(d)(3) and (4) of the Internal
Revenue Code.
(c) Assumed Marginal Income Tax Rate. For purposes of determining the
amount of the Gross-Up Payments, the Executive shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation in the
calendar years in which the Gross-Up Payments are to be made and state and local
income taxes at the highest marginal rate of taxation in the state and locality
of the Executive's residence on the date of Termination of Employment, net of
the reduction in federal income taxes that can be obtained from deduction of
such state and local taxes (calculated by assuming that any reduction under
Section 68 of the Internal Revenue Code in the amount of itemized deductions
allowable to the Executive applies first to reduce the amount of
13
such state and local income taxes that would otherwise be deductible by the
Executive, and applicable federal FICA and Medicare withholding taxes.)
(d) Return of Reduced Excise Tax Payment or Payment of Additional
Excise Tax. If the Excise Tax is later determined to be less than the amount
taken into account hereunder when the Executive's employment terminated, the
Executive shall repay to UNB Corp. -- when the amount of the reduction in Excise
Tax is finally determined -- the portion of the Gross-Up Payments attributable
to the reduction (plus that portion of the Gross-Up Payments attributable to the
Excise Tax, federal, state and local income taxes and FICA and Medicare
withholding taxes imposed on the Gross-Up Payments being repaid by the Executive
to the extent that the repayment results in a reduction in Excise Tax, FICA and
Medicare withholding taxes and/or a federal, state or local income tax
deduction).
If the Excise Tax is later determined to be more than the amount taken
into account hereunder when the Executive's employment terminated (due, for
example, to a payment whose existence or amount cannot be determined at the time
of the Gross-Up Payments), UNB Corp. shall make an additional Gross-Up Payment
to the Executive for that excess (plus any interest, penalties or additions
payable by the Executive for the excess) when the amount of the excess is
finally determined.
7.17 (a) Accounting Firm Gross-Up Determination. Subject to the
provisions of Section 7.16, all determinations required to be made under this
Section 7.17 -- including whether and when a Gross-Up Payment is required, the
amount of the Gross-Up Payment and the assumptions to be used to arrive at the
determination (collectively, the "Determination") -- shall be made by the
Accounting Firm, which shall provide detailed supporting calculations both to
UNB Corp. and the Executive within 15 business days after receipt of notice from
UNB Corp. or the Executive that there has been a Gross-Up Payment, or such
earlier time as is requested by UNB Corp.
(b) Fees and Expenses of the Accounting Firm and Agreement with the
Accounting Firm. All fees and expenses of the Accounting Firm shall be borne
solely by UNB Corp. or the Bank. UNB Corp. and the Bank shall enter into any
agreement requested by the Accounting Firm in connection with the performance of
its services hereunder.
(c) Accounting Firm's Opinion. If the Accounting Firm determines that
no Excise Tax is payable by the Executive, the Accounting Firm shall furnish the
Executive with a written opinion to that effect, and to the effect that failure
to report Excise Tax, if any, on the Executive's applicable federal income tax
return will not result in the imposition of a negligence or similar penalty.
(d) Accounting Firm's Determination Is Binding. The Determination by
the Accounting Firm shall be binding on UNB Corp., the Bank and the Executive.
(e) Underpayment and Overpayment. Because of the uncertainty in
determining whether any of the Total Benefits will be subject to the Excise Tax
at the time of the Determination, it is possible that Gross-Up Payments that
should have been made will not have
14
been made by UNB Corp. ("Underpayment"), or that Gross-Up Payments will be made
that should not have been made by UNB Corp. ("Overpayment").
If, after a Determination by the Accounting Firm, the Executive is
required to make a payment of additional Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred. The Underpayment
(together with interest at the rate provided in Section 1274(d)(2)(B) of the
Internal Revenue Code) shall be paid promptly by UNB Corp. to or for the benefit
of the Executive.
If the amount of the Gross-Up Payment exceeds the amount necessary to
reimburse the Executive for his Excise Tax, the Accounting Firm shall determine
the amount of the Overpayment that has been made. The Overpayment (together with
interest at the rate provided in Section 1274(d)(2)(B) of the Internal Revenue
Code) shall be paid promptly by the Executive to or for the benefit of UNB Corp.
Provided that his expenses are reimbursed by UNB Corp. or the Bank, the
Executive shall cooperate with any reasonable requests by UNB Corp. in any
contests or disputes with the Internal Revenue Service relating to the Excise
Tax.
(f) Accounting Firm Conflict of Interest. If the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, the Executive may appoint another nationally recognized
public accounting firm to make the Determinations required hereunder (in which
case the term "Accounting Firm" as used in this Agreement shall be deemed to
refer to the accounting firm appointed by the Executive under this paragraph).
7.18 Automatic Review Procedure. Upon the third year anniversary of the
execution of this Agreement, and continuing on each subsequent third year
anniversary, the Bank will automatically review this Agreement for
reasonableness of benefits with the intent that the Executive's target benefit
shall be 75 percent of compensation less Bank-provided benefits. For purposes of
this Agreement, Bank-provided benefits shall include, but are not limited to,
the Bank 401(k) match, the UNB Corp. Pension Plan, and the Bank portion of
Social Security benefits. The term "compensation" as used in this Section 7.18
means the base annual salary of the Executive projected at the Executive's
Normal Retirement Age. Base annual salary refers to compensation of the type
that would be required to be reported by Securities and Exchange Commission Rule
228.402(b) (17 C.F.R. ss.228.402(b)), specifically column (c) of that rule's
Summary Compensation Table (or any successor provision), excluding director fees
but including elective deferred compensation.
IN WITNESS WHEREOF, the Executive and a duly authorized Bank officer
have signed this Agreement as of the day and year first written above.
THE EXECUTIVE: THE BANK:
UNITED NATIONAL BANK & TRUST CO.
------------------------------
By:
------------------------------
Its:
15
UNB Corp., by its undersigned officer hereunto duly authorized, hereby
(1) agrees to and adopts such of the terms, conditions and obligations of this
Salary Continuation Agreement between United National Bank & Trust Co. and
______________ as apply by their terms to UNB Corp., specifically the
obligations stated in Section 7.16 and Section 7.17 concerning Gross-Up
Payments, and (2) notwithstanding any existing or previous attorney-client
relationship between UNB Corp. and any counsel chosen by the Executive under
Section 7.15(a), irrevocably consents to the Executive's entering into an
attorney-client relationship with that counsel, and UNB Corp. agrees that a
confidential relationship shall exist between the Executive and that counsel.
UNB CORP.
By:
-------------------------
Its:
16
SCHEDULE A
UNITED NATIONAL BANK & TRUST CO.
SALARY CONTINUATION AGREEMENT
--------------
EARLY
TERMINATION DISABILITY
EARLY ANNUAL ANNUAL CHANGE-IN-CONTROL
PLAN YEAR EXECUTIVE'S ACCRUAL TERMINATION VESTED BENEFIT BENEFIT BENEFIT
PLAN YEAR ENDING AGE AT PLAN BALANCE @ VESTING ACCRUAL PAYABLE AT PAYABLE AT PAYABLE IN A
YEAR END 7.5% (1) SCHEDULE BALANCE NORMAL NORMAL LUMP SUM
RETIREMENT RETIREMENT
AGE (2) AGE (2)
--------------------------------------------------------------------------------------------------------------------------------
1 April 2002
2 April 2003
3 April 2004
4 April 2005
5 April 2006
6 April 2007
7 April 2008
8 April 2009
9 April 2010
10 April 2011
11 April 2012
12 April 2013
13 April 2014
14 April 2015
15 April 2016
16 April 2017
17 April 2018
18 April 2019
19 April 2020
20 April 2021
21 April 2022
22 April 2023
23 April 2024
24 April 2025
25 April 2026
26 April 2027
--------------------------------------------------------------------------------------------------------------------------------
17
EARLY
TERMINATION DISABILITY
EARLY ANNUAL ANNUAL CHANGE-IN-CONTROL
PLAN YEAR EXECUTIVE'S ACCRUAL TERMINATION VESTED BENEFIT BENEFIT BENEFIT
PLAN YEAR ENDING AGE AT PLAN BALANCE @ VESTING ACCRUAL PAYABLE AT PAYABLE AT PAYABLE IN A
YEAR END 7.5% (1) SCHEDULE BALANCE NORMAL NORMAL LUMP SUM
RETIREMENT RETIREMENT
AGE (2) AGE (2)
--------------------------------------------------------------------------------------------------------------------------------
27 April 2028
28 April 2029
29 April 2030
30 April 2031
31 April 2032
-----------------------------------------------------------------------------------------------------------------------------
(1) The Accrual balance reflects payment at the beginning of each month during
retirement.
(2) Benefit is based on present value of the current payment stream of the
vested accrual balance using a standard discount rate (7.50%).
(3) Participant becomes 100 percent vested upon reaching age 55 on June 29,
2006.
(4) Reflects two (2) months data prior to projected retirement in June 2016.
18
