EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") is made as of January 14, 2005, by and between
The Oneida Savings Bank (the "Bank"), a New York chartered savings bank, Xxxxxxx
X. Xxxxxx, an individual residing in Oneida, New York, ("Executive") and Oneida
Financial Corp. (the "Company"), a federally-chartered corporation and the
holding company of the Bank, as guarantor. The Bank and Company are collectively
referred to as the "Employer".
WHEREAS, Executive and the Board of Directors of the Bank desire to enter
into an agreement setting forth the terms and conditions of Executive's
employment and provide for the continued service of the Executive; and
WHEREAS, the Bank recognizes the importance of Executive to the Bank's
operations, and desires to assure the continuity of its management and enable
the Executive to devote his full attention to management responsibilities when
faced with a possible change in control of the Bank or the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, it is hereby agreed as follows:
1. Employment.
(a) Term. The initial term of employment under this Agreement shall be for
the period commencing on the date hereof and ending on December 31, 2007. Not
later than six months prior to the expiration of this Agreement, the parties
agree to commence discussions regarding a renewal of this Agreement. If the
parties cannot reach agreement regarding the terms for a renewal agreement, this
Agreement shall automatically renew for a 12 month period unless either party
provides written notice of intent not to renew at least 60 days prior to the
expiration of this Agreement. The initial term and any renewal term are
collectively referred to herein as the "Employment Term."
(b) Duties. The Executive shall serve as President and Chief Executive
Officer of the Bank and Company during the Employment Term and shall have such
responsibilities, duties and authority as is customary for persons serving in
similar chief executive officer positions and as may from time to time be
reasonably assigned by the respective Boards of the Employer. As Chief Executive
Officer of the Company and the Bank, the Executive shall be responsible for
implementing the policies of the Board of Directors of the Company and the Board
of Directors of the Bank, and shall report to such respective Boards, as
applicable. In such capacity, Executive agrees to discharge his duties to the
best of his abilities and to devote substantially all of his working time and
attention to the performance of his duties under this Agreement. During the
Employment Term, there shall be no material decrease in the duties and
responsibilities of the Executive other than as provided herein, unless the
parties otherwise agree in writing. During the Employment Term, the Executive
shall not be required to relocate, without his consent, his place of employment
to a location more than 25 miles away from the Employer's Oneida, New York
location to perform his duties hereunder, except for reasonably required travel
by the Executive on the business of the Employer. The Executive may affiliate
with professional associations, business and civic organizations in support of
his role as President and Chief Executive Officer, provided that Executive's
involvement in such activities does not adversely affect the performance of his
duties on behalf of the Company or the Bank or the reputation of the Company or
Bank.
2. Compensation and Benefits.
(a) Base Salary. The Executive shall initially be paid a base salary at an
annualized rate of $250,000.00 (as may be adjusted from time to time in
accordance with this Agreement, "Base Salary"), payable in accordance with the
Employer's regular payroll practices for its employees. On an annual basis, the
Executive's Base Salary shall be reviewed by the Employer and may be increased
in the discretion of the Board of Directors and Compensation Committee of the
Employer. In reviewing the Executive's Base Salary, the Board of Directors of
the Employer shall consider the Executive's performance, scope of
responsibility, and such other matters as the Board of Directors or the
Compensation Committee of the Board deems appropriate. The Base Salary of the
Executive shall not be decreased at any time during the current Employment Term
from the amount then in effect, unless the Executive otherwise agrees in
writing. The Executive shall also be entitled to receive fees for serving as a
director of the Bank, except that Executive shall not be paid fees for
attendance at committee meetings.
(b) Bonuses and Incentive Compensation. The Executive shall be eligible to
participate in an equitable manner with all other employees of the Employer in
any bonus or other incentive programs (including any stock option or equity
compensation plans) as may be authorized, declared and paid by the Boards of
Directors of the Employer. This provision shall not preclude the grant of any
other bonus or compensation to the Executive as determined by the Board of
Directors of the Employer.
(c) Benefit Plans. The Executive shall be eligible to participate in any
employee pension benefit plans (as that term is defined under Section 3(2) of
the Employee Retirement Income Security Act of 1974, as amended), group life
insurance plans, medical plans, dental plans, long-term disability plans, and
other fringe benefit plans or programs maintained by the employer for the
benefit of its employees ("Benefit Plans"). The Executive's participation in any
such benefit plans and programs (before or after termination) shall be based on,
and subject to satisfaction of, the eligibility requirements and other
conditions of such plans and programs notwithstanding any provisions of this
Agreement. The Executive shall be entitled to such supplemental benefits as set
forth on the attached Exhibit A to this Agreement, which may be amended from
time-to-time upon the mutual agreement of Executive and Employer.
(d) Expenses. The Executive is authorized to incur reasonable expenses in
the performance of his duties hereunder, including the costs of business
entertainment, travel, and attendance at meetings. The Employer shall reimburse
the Executive for all such expenses promptly upon periodic presentation by the
Executive of an itemized account of such expenses.
(e) Other Benefits. During the period of employment, the Executive shall
also be entitled to receive the following benefits:
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(i) Paid vacation in accordance with the Employer's Employee Handbook;
(ii) Reasonable sick leave consistent with the Bank's policy in that regard
for other executive officers; and
(iii) Reimbursement of fees or dues (but not personal expenses) for up to
two club memberships of the Executive at dining or country clubs as may be
beneficial to the Executive's role with the Bank. The choice of clubs shall be
subject to review and disapproval by the Board of Directors of the Bank at any
time.
(iv) Use of a Bank owned or leased vehicle of type commensurate with the
Executive's duties and role with the Bank as reviewed and approved by the Board
of Directors.
(f) Exclusivity of Salary and Benefits. Executive shall not be entitled to
any payments or benefits other than those provided under this Agreement or
referred to in Exhibit A.
3. Termination.
Prior to a Change of Control, the Executive's employment by the Employer
shall be subject to termination as follows:
(a) Voluntary Termination. The Executive may terminate this Agreement upon
not less than 60 days prior written notice delivered to the Employer, in which
event the Executive shall be entitled only to the compensation and benefits the
Executive has earned or accrued through the date of termination. Employer may
appropriately adjust Executive's duties upon notice of such termination.
(b) Termination Upon Death. This Agreement shall terminate upon the
Executive's death. In the event this Agreement is terminated as a result of the
Executive's death, the Employer shall continue payments of the Executive's Base
Salary and payments related to Executive's participation in the Benefit Plans
which would have otherwise been due for a period of 90 days following the
Executive's death to the Executive's estate or designated beneficiaries.
(c) Termination Upon Disability. The Employer may terminate this Agreement
upon the Executive's disability. For purposes of this Agreement, the Executive's
inability to perform the Executive's duties hereunder by reason of physical or
mental illness or injury for a period of 26 consecutive weeks (the "Disability
Period") shall constitute disability. The determination of disability shall be
made by a physician selected by the Employer. During the Disability Period, the
Executive shall be entitled to 100% of the Executive's Base Salary and continued
benefits under the Benefit Plans otherwise payable during that period, reduced
by any other Employer-provided benefits to which the Executive may be entitled
with respect to the Disability Period which benefits are specifically payable
solely on account of such disability (including, but not limited to, benefits
provided under any disability insurance policy or program, worker's compensation
law, or any other benefit program or arrangement).
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(d) Termination for Cause. The Employer may terminate the Executive's
employment for Cause by written notice to the Executive. For purposes of this
Agreement, "Cause" shall mean the Executive's (1) personal dishonesty,
incompetence, or willful misconduct; (2) breach of fiduciary duty involving
personal profit or intentional failure to perform material stated duties; (3)
willful violation of any law, rule, or regulation (other than traffic violations
or similar offenses); (4) being a specific subject of a final cease and desist
order from, written agreement with, or other order or supervisory direction
from, any federal or state regulatory authority; or (5) conviction or indictment
of Executive for a felony or any misdemeanor involving moral turpitude, deceit,
dishonesty or fraud. In determining incompetence, the acts or omissions shall be
measured against standards generally prevailing in the financial institutions
industry; provided, it shall be the burden of the Employer to establish the
alleged acts and omissions and the prevailing nature of the standards the
Employer shall have alleged are violated by such acts and/or omissions.
Notwithstanding any other term or provision of this Agreement to the
contrary, if the Executive's employment is terminated for Cause, the Executive
shall forfeit all rights to payments and benefits otherwise provided pursuant to
this Agreement; provided, however, that Base Salary shall be paid through the
date of termination.
(e) Termination Without Cause. The Employer may terminate the Executive's
employment for reasons other than Cause upon not less than 60 days prior written
notice delivered to the Executive, in which event the Employer shall (i) pay to
the Executive, within 30 days of the date of termination, a lump sum payment
equal to the unpaid Base Salary that would have been paid to or earned by the
Executive pursuant to this Agreement, if the Executive had remained employed
under the terms of this Agreement through the end of the Employment Term, or for
a period of 6 months following the date of termination, whichever period is
longer, and (ii) continue payments related to Executive's participation in any
medical, dental and life insurance benefit plans at the same levels that existed
prior to the termination for a period of 18 months following the termination
date. If the Executive terminates his employment with the Employer during the
Employment Term for "Good Reason" (defined in Section 4(d) below), other than
following a Change of Control, such termination shall be deemed to have been a
termination by the Employer of the Executive's employment without Cause.
Notwithstanding the foregoing, if Executive's employment ends prior to
December 31, 2007 for reasons other than Cause and under circumstances that
entitled the Executive to payments and benefits under paragraph 4(a) of this
Agreement (regarding a "Change of Control," then amounts that may be payable
under this paragraph 3(e) shall be reduced by payments made to Employee under
paragraph 4(a). (f) Change of Control. If the Executive's employment by the
Employer shall cease for any reason other than Cause, death or disability of
Executive, or termination for Good Reason by Executive within six months prior
to, or 12 months following, a Change of Control that occurs during the
Employment Term, the provisions of paragraph 4 below shall apply even if the
Employment Term under this Agreement has expired.
(g) Resignation. Effective upon the Executive's termination of employment
for any reason, the Executive hereby resigns from any and all offices and
positions (including any director positions) related to the Executive's
employment with the Employer and any subsidiaries or affiliates thereof, and
held by the Executive at the time of termination.
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(h) Regulatory Limits. Notwithstanding any other provision in this
Agreement, (i) the Employer may terminate or suspend this Agreement and the
employment of the Executive hereunder, as if such termination were for Cause
under Section 3(d) hereof, to the extent required by applicable Federal or state
law related to banking, deposit insurance or bank or savings institution holding
companies or by regulations or orders issued by the Federal Deposit Insurance
Corporation or any other state or federal banking regulatory agency having
jurisdiction over the Company or the Bank and (ii) no payment shall be required
to be made to or for the benefit of the Executive under this Agreement to the
extent such payment is prohibited by applicable law, regulation or order issued
by a banking agency or a court of competent jurisdiction; provided that it shall
be the Employer's burden to establish that any such action was so required.
4. Termination Following a Change of Control.
(a) Subject to the limits set forth in Section 4(b), in the event the
Employer terminates the Executive's employment for reasons other than Cause,
death or disability of Executive, or the Executive terminates employment with
Good Reason, in either case within six months prior to, or 12 months after, a
Change of Control, the Employer shall, within 60 days of termination, (i) pay to
the Executive a lump sum cash payment equal to 2.99 times the average annual
compensation paid to the Executive by Employer and included in the Executive's
gross income for income tax purposes during the five full calendar years, or
shorter period of employment, that immediately precede the year during which the
Change of Control occurs, and (ii) provide for Executive's continued
participation in any medical, dental and life insurance benefit plans, or the
cash equivalent of such benefits, on substantially the same terms in existence
at the time of termination for a period of 18 months following the termination
date.
(b) Limitation. Notwithstanding anything in this Agreement to the contrary,
in the event that the amount payable to the Executive pursuant to Section 4(a)
above, when added to all other amounts paid or to be paid to, and the value of
all property received or to be received by the Executive in anticipation of or
following a Change of Control, whether paid or received pursuant to this
Agreement or otherwise (such other amounts and property being referred to herein
as "Other Change in Control Payments"), would constitute an excess parachute
payment within the meaning of Section 280G of the Internal Revenue Code of 1986,
as amended (or any successor or renumbered section), then the amount payable
pursuant to Section 4(a) of this Agreement shall be reduced to the maximum
amount which, when added to such Other Change in Control Payments, would not
constitute an excess parachute payment. The allocation of any reduction required
by this subparagraph among various payments shall be made based on the
directions of the Executive.
(c) For purposes of this Agreement, a "Change of Control" shall mean:
(1) Acquisition of Significant Share Ownership: The acquisition by any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a
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"Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 25% or more of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this subsection (1), the following acquisitions
shall not constitute a Change of Control: (i) any acquisition directly from the
Company or Oneida Financial, MHC, (ii) any acquisition by the Company or Oneida
Financial, MHC, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or Oneida Financial, MHC, the Bank
or any other corporation controlled by the Company or Oneida Financial, MHC,
(iv) the reorganization of Oneida Financial MHC to a converted stock entity, or
(v) any acquisition by any corporation pursuant to a transaction that complies
with clauses (i), (ii), and (iii) of subsection (3) of this Section 4(c); or
(2) Change in Board Composition: Individuals who, as of the date hereof,
constitute the Board of Directors of the Company (the "Incumbent Board") cease
for any reason to constitute at least a majority of such Board of Directors (the
"Company Board"); provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by
Company 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 the Company Board; or
(3) Merger with Third Party: Consummation of reorganization, merger or
consolidation of the Company with another entity (a "Business Combination"),
unless, following such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners of the Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors of the
corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns the Company
or all or substantially all of the Company's assets either directly or through
one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination, (ii) no Person
(excluding any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company, the Bank, such
corporation resulting from such Business Combination or a corporation controlled
by any of them) beneficially owns, directly or indirectly, 25% or more of the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, providing for such Business Combination; or
(4) Sale of Assets: The Company sells or deposes of all or substantially
all of its assets to a third party.
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(d) "Good Reason" shall mean
(1) the assignment to the Executive by the Company or the Bank of duties
materially inconsistent with the Executive's position, duties, responsibilities,
and status with the Employer, a material adverse change in the Executive's
titles or offices, any removal of the Executive from or any failure to reelect
the Executive to any of such positions, except in connection with the
termination of his employment for Cause, or any action that would have a
material adverse effect on the physical conditions in which the executive
performs his employment duties;
(2) a reduction by the Employer in the Executive's Base Salary as in effect
on the date hereof or as the same may be increased from time to time during the
Employment Term;
(3) the taking of any action by the Employer that would materially
adversely affect the Executive's participation in or materially reduce the
Executive's benefits under any employee benefit plan on a basis different than
other executives of the Employer generally;
(4) any requirement that the Executive relocate to any place more than 25
miles away from the Bank's Oneida, New York location to perform his duties
hereunder, except for reasonably required travel by the Executive on the
business of the Employer or the Bank; or
(5) any other action or inaction that constitutes a material breach by the
Employer of this Agreement.
5. Covenants.
(a) Confidentiality. The Executive shall not, without the prior written
consent of the Employer, disclose or use in any way, either during the
Employment Term or thereafter, except as required in the course of his
employment by Employer, any confidential business or technical information or
trade secret acquired in the course of the Executive's employment by the
Employer. The Executive acknowledges and agrees that it would be difficult to
fully compensate the Employer for damages resulting from the breach or
threatened breach of the foregoing provision and, accordingly, that the Employer
shall be entitled to temporary preliminary injunctions and permanent injunctions
to enforce such provision. This provision with respect to injunctive relief
shall not, however, diminish the Employer's right to claim and recover damages.
The Executive covenants to use his best efforts to prevent the publication or
disclosure of any trade secret or any confidential information concerning the
business or finances of Employer or Employer's affiliates, or any of their
dealings, transactions or affairs which may come to the Executive's knowledge in
the pursuance of his duties or employment.
(b) No Competition. The Executive's employment is subject to the condition
that during the term of his employment hereunder and for a period of 24 months
following the date his employment ceases for any reason, the Executive (i) shall
not, directly or indirectly, own, manage, operate, control or participate in the
ownership, management, operation or control of, or be connected as an officer,
employee, partner, director, individual proprietor, lender, consultant or
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otherwise with, or have any financial interest in, or aid or assist anyone else
in the conduct of, any entity or business (a "Competitive Operation") which
competes in the banking industry or with any other business conducted by the
Employer or by any group, affiliate, division or subsidiary of the Employer, in
Madison, Oneida or Onondaga County, (ii) will refrain from directly or
indirectly employing, attempting to employ, recruiting or otherwise soliciting,
inducing or influencing any person to leave employment with the Employer; and
(iii) will refrain from soliciting or encouraging any customer to terminate or
otherwise modify adversely its business relationship with the Employer. The
Executive shall fully advise the Employer as to any activity, interest, or
investment the Executive may be involved in that might violate the terms of this
paragraph upon the request of Employer.
(c) Termination of Payments. Upon the breach by the Executive of any
covenant under this Section 5, the Employer may terminate, offset and/or recover
from the Executive immediately any and all benefits paid to the Executive
pursuant to this Agreement, in addition to any and all other remedies available
to the Employer under the law or in equity.
(d) Modification. Although the parties consider the restrictions contained
in this Section 5 reasonable as to protected business, duration, and geographic
area, in the event that any court of competent jurisdiction deems them to be
unreasonable, then such restrictions shall apply to the broadest business,
longest period, and largest geographic territory as may be considered reasonable
by such court, and this Section 5, as so amended, shall be enforced.
(e) Other Agreements. The Executive represents and warrants that neither
the Executive's employment with the Employer nor the Executive's performance of
his obligations hereunder will conflict with or violate the Executive's
obligations under the terms of any agreement with a previous employer or other
party including agreements to refrain from competing, directly or indirectly,
with the business of such previous employer or any other party.
6. Miscellaneous.
(a) Withholding. The Employer shall deduct and withhold from compensation
and benefits provided under this Agreement all necessary income and employment
taxes and any other similar sums required by law to be withheld.
(b) Rules, Regulations and Policies. The Executive shall use his best
efforts to abide by and comply with all of the rules, regulations, and policies
of the Employer, including without limitation the Employer's policy of strict
adherence to, and compliance with, any and all requirements of the banking,
securities, and antitrust laws and regulations.
(c) Return of Employer's Property. After the Executive has received notice
of termination or at the end of his period of employment with Employer,
whichever first occurs, the Executive shall immediately return to Employer all
documents and other property in his possession belonging to Employer.
(d) Construction and Severability. The invalidity of anyone or more
provisions of this Agreement or any part thereof, all of which are inserted
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conditionally upon their being valid in law, shall not affect the validity of
any other provisions to this Agreement; and in the event that one or more
provisions contained herein shall be invalid, as determined by a court of
competent jurisdiction, this Agreement shall be construed as if such invalid
provisions had not been inserted.
(e) Governing Law. This Agreement shall be governed by the laws of the
United States, where applicable, and otherwise by the laws of the State of New
York other than the choice of law rules thereof.
(f) Assignability and Successors. This Agreement may not be assigned by the
Executive or the Employer, except that this Agreement shall be binding upon and
shall inure to the benefit of the successor of the Employer through merger or
corporate reorganization including the successor to the Company resulting from
any reorganization of Oneida Financial, MHC to a stock entity.
(g) Jurisdiction and Venue. The jurisdiction of any proceeding between the
parties arising out of, or with respect to, this Agreement shall be in a court
of competent jurisdiction in New York State, and venue shall be in Madison or
Onondaga County. Each party shall be subject to the personal jurisdiction of the
courts of New York State.
(h) Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out of the
Executive's employment or the termination of that employment (including, without
limitation, any claims of unlawful employment discrimination whether based on
age or otherwise) shall, to the fullest extent permitted by law, be settled by
arbitration in any forum and form agreed upon by the parties or, in the absence
of such an agreement, under the auspices of the American Arbitration Association
("AAA") in Syracuse, New York in accordance with the rules of the AAA,
including, but not limited to, the rules and procedures applicable to the
selection of arbitrators. Judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. Notwithstanding the
foregoing, this Section shall not preclude either party from pursuing a court
action for the sole purpose of obtaining a temporary restraining order or a
preliminary injunction in circumstances in which such relief is appropriate;
provided that any other relief shall be pursued through an arbitration
proceeding pursuant to this Section.
(i) Entire Agreement; Amendment. This Agreement constitutes the entire
understanding and Agreement between the parties with respect to the subject
matter hereof and shall supersede all prior understandings and agreements. This
Agreement cannot be amended, modified, or supplemented in any respect, except by
a subsequent written agreement entered into by the parties hereto.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
THE ONEIDA SAVINGS BANK
By:________________________________
Xxxxxxx X. Xxxxxxxx
Chairman
By:________________________________
Xxxxxxxx X. Xxxxxx
Chairman of Compensation Committee
ONEIDA FINANCIAL CORP.
By:________________________________
Xxxxxxx X. Xxxxxxxx
Chairman
By:________________________________
Xxxxxxxx X. Xxxxxx
Chairperson of Compensation Committee
EXECUTIVE:
------------------------------------
Xxxxxxx X. Xxxxxx
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Exhibit A
SUPPLEMENTAL BENEFITS
In accordance with Section 2(c) of the Employment Agreement, dated January 14,
2005 between Xxxxxxx X. Xxxxxx, The Oneida Savings Bank and Oneida Financial
Corp. (the "Employment Agreement"), this Exhibit contains the exclusive listing
of supplemental benefits which the Executive is entitled to in addition to the
compensation and benefits expressly referenced in the Employment Agreement. This
Exhibit may be amended from time-to-time upon the mutual agreement of the
Executive and the Compensation Committee and board of directors of Employer.
1. Supplemental Life Insurance - The Company will provide the Executive with
additional term life insurance with a stated death benefit of $450,000.00,
the cost of this policy to be paid by the Company with the Executive
responsible for the personal income tax consequences of the additional
benefit. The additional term life insurance provided under this agreement
is a supplement to the group term life insurance provided to all employees
of the Company that provides a death benefit equal to three and one-half
times base salary with a maximum benefit of $300,000.00.
2. Supplemental Long-Term Disability Insurance - The Company will provide the
Executive with a long-term disability policy to supplement the group
coverage provided to all employees of the Company. The group coverage
provides a benefit equal to two-thirds of Base Salary with a maximum
benefit of $6,000.00 per month. The supplemental long-term disability
insurance will wrap the current group policy to provide an overall benefit
to the Executive equal to two-thirds of Base Salary without a benefit cap.
The cost of this benefit to be paid by the Company.
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