EXHIBIT 10.5
UNITED BANCORP, INC. FORM 10-K
UNITED BANCORP, INC.
SPECIAL SEVERANCE AGREEMENT
Agreement made as of the _____ day of _____________________, 199___
between United Bancorp, Inc. (the "Company") and Xxxxxx X. Xxxxxxx (the
"Executive").
W I T N E S S E T H
WHEREAS, the Company recognizes that the possibility of a change in
control may exist and that such possibility, and the uncertainty and questions
which it may raise among management, may result in the departure or distraction
of management personnel to the detriment of the Company and its stockholders.
The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of certain
members of the Company's management to their assigned duties in the face of
potential circumstances arising from the possibility of a change in control of
the Company, although no such change is now contemplated.
In order to induce the Executive to remain in the employ of the Company
and in consideration of the agreement set forth in Subsection 2(ii) hereof, the
Company agrees that the Executive shall receive the severance benefits set forth
in this Agreement in the event of a "change in control of the Company" (as
defined in Section 2 hereof) and employment of the Executive is subsequently
terminated under the circumstances described below.
1. Term of Agreement. This Agreement shall commence on the date hereof and
shall continue in effect through December 31, 1996; provided, however, that
commencing January 1, 1997, and each January 1st thereafter, the term of this
Agreement shall automatically be extended for one (1) additional year unless not
later than June 30 of 1996 and any year after, the Company shall have given
notice that it does not wish to extend this Agreement; and provided, further
that notwithstanding any such notice by the Company not to extend, this
Agreement shall continue in effect for a period of twenty-four (24) months
beyond the term provided herein if a change in control of the Company, as
defined in Section 2 hereof, shall have occurred during such term.
2. Change in Control. (i) No benefits shall be payable hereunder unless
there shall have been a change in control of the Company, as set forth below,
and the Executive employment by the Company shall thereafter have been
terminated in accordance with Section 3 below. For purposes of this Agreement, a
"change in control of the Company" shall mean a change in control of a nature
that would be required to be reported in response to Item 5(f) of Schedule
UNITED BANCORP, INC. FORM 10-K
14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), whether or not the Company is then subject to such
reporting requirement; provided that, without limitation, such a change in
control shall be deemed to have occurred if (A) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities; (B) during
any period of two (2) consecutive years, individuals who at the beginning of
such period constitute the Board, including for this purpose any new director
whose election or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period, cease for any reason to
constitute a majority thereof; or (C) the business of the Company for which your
services are principally performed is disposed of by the Company pursuant to a
partial or complete liquidation of the Company, a sale of assets (including
stock of a subsidiary) of the Company, or otherwise.
(ii) For purposes of this Agreement, a "potential change in control of the
Company" shall be deemed to have occurred if (A) the Company enters into an
agreement which provides for or contemplates a change in control of the Company;
(B) any person (including the Company) publicly announces an intention to take
or to consider taking actions which if consummated would constitute a change in
control of the Company; (C) the Board adopts a resolution to the effect that a
potential change in control of the Company for purposes of this Agreement has
occurred. Executive agrees that, subject to the terms and conditions of this
Agreement, in the event of a potential change in control of the Company, he will
remain in the employ of the Company for not less than one (1) year following the
initial occurrence of such a potential change in control of the Company.
3. Termination Following Change in Control. If any of the events described
in Section 2 hereof constituting a change in control of the Company shall have
occurred, the Executive shall be entitled to the benefits provided in Section 4
hereof upon the subsequent termination of employment during the term of this
Agreement unless such termination is (A) because of his death or retirement, (B)
by the Company for cause or disability or (C) by him other than for good reason.
(i) Disability; Retirement. If, as a result of incapacity due to physical
or mental illness, the Executive shall have been absent from duties with the
Company on a full-time basis for six (6) consecutive months, and within thirty
(30) days after written notice of termination is given, he shall not have
returned to the full-time performance of duties, the Company may terminate
employment for "disability." Termination of employment based on "retirement"
shall mean termination in accordance with the Company's retirement policy,
generally applicable to its salaried employees or in accordance with any
retirement arrangement with respect to the Executive established with his
consent.
(ii) Cause. Termination by the Company of your employment for "cause"
shall mean termination upon (A) the willful and continued failure by the
Executive substantially to perform
UNITED BANCORP, INC. FORM 10-K
duties with the Company (other than any such failure resulting from incapacity
due to physical or mental illness or any such actual or anticipated failure
resulting from termination for good reason), after a demand for substantial
performance is delivered by the Board which specifically identifies the manner
in which the Board believes that duties have not been substantially performed,
or (B) the willful engaging by the Executive in conduct which is demonstrably
and materially injurious to the Company. For purposes of this Subsection, no
act, or failure to act, shall be considered "willful" unless done, or omitted to
be done, not in good faith and without reasonable belief that such action or
omission was in the best interest of the Company.
(iii) Good Reason. The Executive shall be entitled to terminate employment
for good reason. For purposes of this Agreement, "good reason" shall, without
express written consent, mean:
(A) the assignment of any duties inconsistent with his status as an
executive of the Company or a substantial alteration in the nature or status of
responsibilities from those in effect immediately prior to a change in control
of the Company;
(B) a reduction by the Company in annual base salary as in effect on
the date hereof or as the same may be increased from time to time except for
across-the-board salary reductions similarly affecting all executives of the
Company and all executives of any person in control of the Company;
(C) the relocation of Executive's offices to a location more than fifty
(50) miles from their present location;
(D) the failure by the Company to continue in effect any current
compensation plan or program in which the Executive participates, or any
substitute plans adopted prior to the change in control, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has been
made with respect to each such plan in connection with the change in control of
the Company, or the failure by the Company to continue the Executive's
participation therein;
(E) the failure by the Company to continue to provide benefits
substantially similar to those enjoyed under any of the Company's pension, life
insurance, medical, health and accident, or disability plans in which the
Executive was participating at the time of a change in control of the Company,
the taking of any action by the Company which would directly or indirectly
materially reduce any of such benefits or deprive the Executive of any material
fringe benefit enjoyed by the Executive at the time of the change in control of
the Company, or the failure by the Company to provide the number of paid
vacation days on the basis of years of service with the Company in accordance
with the Company's normal vacation policy in effect at the time of the change in
control; or
(F) the failure of the Company to obtain a satisfactory agreement from
any successor to assume and agree to perform this Agreement, as contemplated in
Section 5 hereof.
UNITED BANCORP, INC. FORM 10-K
(iv) Notice of Termination. Any purported termination by the Company or
by the Executive shall be communicated by written Notice of Termination to the
other party hereto in accordance with Section 6 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination employment under the provision so indicated.
(v) Date of Termination, Etc. "Date of Termination" shall mean (A) if
employment is terminated for disability, thirty (30) days after Notice of
Termination is given (provided that the Executive shall not have returned to the
performance of duties on a full-time basis during such thirty (30) day period),
and (B) if employment is terminated pursuant to Subsection (ii) or (iii) above
or for any other reason, the date specified in the Notice of Termination (which,
in the case of a termination pursuant to Subsection (ii) above shall not be less
than thirty (30) days, and in the case of a termination pursuant to Subsection
(iii) above shall not be more than sixty (60) days, respectively, from the date
such Notice of Termination is given); provided that if within thirty (30) days
after any Notice of Termination is given the party receiving such notice of
termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, by a
binding arbitration award or by a final judgement, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been perfected); and provided further that the Date of Termination
shall be extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any such dispute, the
Company will continue to pay full compensation in effect when the notice giving
rise to the dispute was given (including, but not limited to, base salary) and
continue the Executive as a participant in all compensation, benefit and
insurance plans in which the Executive was participating when the notice giving
rise to the dispute was given, until the dispute is finally resolved in
accordance with this Subsection. Amounts paid under this Subsection are in
addition to all other amounts due under this Agreement and, except as provided
in Subsection 4(v) below, shall not be offset against or reduce any other
amounts due under this Agreement.
4. Compensation Upon Termination or During Disability.
(i) During any period that the Executive fails to perform duties
hereunder as a result of incapacity due to physical or mental illness, he shall
continue to receive full base salary at the rate then in effect and all
compensation, including under the Annual Incentive Plan or any other bonus or
compensation plan or policy, paid during the period until this Agreement is
terminated pursuant to Subsection 3(I) hereof. Thereafter, benefits shall be
determined in accordance with the Company's disability program then in effect.
(ii) If the Executive retires pursuant to Subsection 3(i) hereof,
this agreement is terminated.
(iii) If employment shall be terminated for Cause, the Company shall
pay full base
UNITED BANCORP, INC. FORM 10-K
salary through the Date of Termination at the rate in effect at the time Notice
of Termination is given, and the Company shall have no further obligations under
this Agreement.
(iv) If employment by the Company shall be terminated (a) by the
Company other than for Cause, Retirement or Disability or (b) for Good Reason,
then the Executive shall be entitled to the benefits provided below:
(A) the Company shall pay full base salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given;
(B) in lieu of any further salary payments for periods subsequent to
the Date of Termination, the Company shall pay as severance pay, not later than
the fifth day following the Date of Termination, a lump sum severance payment
equal to one times the sum of (I) annual base salary in effect immediately prior
to the occurrence of the circumstance giving rise to the Notice of Termination
given in respect thereof and (ii) the amount of any bonus paid pursuant to the
Annual Incentive Plan in the year preceding that in which the Date of
Termination occurs. Such payment shall be reduced as appropriate, to not exceed
the amount equal to a fraction of this payment, the numerator of which is the
number of full months remaining to the Executive's normal retirement date and
the denominator of which is (12, 24 or 36).
(C) notwithstanding any provision of the Annual Incentive Plan, the
Company shall pay, not later than the fifth day following the Date of
Termination, a lump sum amount equal to the sum of (I) any incentive
compensation which has been allocated for the fiscal year preceding that in
which the Date of Termination occurs but which has not yet been paid, and (ii)
any award under the Annual Incentive Plan which has not yet been paid for any
period which has closed prior to the Date of Termination.
(D) The Company shall also pay all legal fees and expenses incurred
as a result of the termination of employment (including all such fees and
expenses, if any, incurred in contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit provided by this Agreement).
(v) The Executive shall not be required to mitigate the amount of
any payment provided for in this Section 4 by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in this
Section 4 be reduced by any compensation earned as the result of employment by
another employer or by retirement benefits after the Date of Termination, or
otherwise, and in Subsection 4(vi) below.
(vi) In the event that any payment or benefit (whether payable
pursuant to the terms of this Agreement or otherwise) would not be deductible
because of Section 280G of the Internal Revenue Code of 1954, as amended (the
"Code"), the aggregate amount payable hereunder shall be reduced, so that after
giving effect to such reduction, no payment made or benefit under the terms of
this Agreement will not be deductible because of Section 280G of the Code. In
determining whether any payment under the terms of this Agreement would not be
UNITED BANCORP, INC. FORM 10-K
deductible under Section 280G of the Code, all present and future payments and
benefits shall be included (and, in the case of stock option, other non-cash
benefits or deferred cash payments, shall be valued by a national independent
accounting firm (at the Company's expense) acceptable to the Executive in
accordance with the principles of Sections 280G(d) (3) and (4) of the Code and
any regulations promulgated thereunder) except payments and benefits which, in
the written opinion of independent tax counsel selected by a national
independent accounting firm and acceptable to the Executive, do not constitute
"parachute payments" within the meaning of Section 280G(b) (2) of the Code.
5. Successors; Binding Agreement. (I) The Company 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 Company
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such assumption and
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle the Executive to compensation from the Company
in the same amount and on the same terms as the Executive would have been
entitled hereunder if employment is terminated for Good Reason, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(ii) This Agreement shall inure to the benefit of and be enforceable
by the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
6. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid.
7. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and such officer as may be specifically
designated by the Board. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of Ohio
applicable to instruments under seal.
UNITED BANCORP, INC. FORM 10-K
8. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
9. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in accordance
with the rules of the American Arbitration Association then in effect.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and its corporate seal to be hereunder affixed on the day and year first above
written, and the Executive has hereunto set his hand and seal on the day and
year specified.
ATTEST:
UNITED BANCORP, INC. EXECUTIVE
By__________________________________ By_________________________________
(Name and Title) (Name)
