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EXHIBIT 10.9
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT, made and entered into this _____ day of
_______________, 1995, by and between Second Bancorp, Incorporated, an Ohio
corporation, with principal offices and place of business in the State of Ohio
(hereinafter referred to as the "Corporation"), The Second National Bank of
Xxxxxx, a wholly owned subsidiary of Second Bancorp, Incorporated (hereinafter
referred to as the "Bank"), and Xxxx X. Xxxxx, an individual residing in the
State of Ohio (hereinafter referred to as the "Executive"),
WITNESSETH THAT:
WHEREAS, the Executive is employed by the Corporation; and
WHEREAS, the Corporation recognizes the valuable services
heretofore performed for it by the Executive and wishes to encourage his
continued employment; and
WHEREAS, the Executive wishes to be assured that he will be
entitled to a certain amount of additional compensation for some definite period
of time from and after his retirement from active service with the Corporation
or other termination of his employment and that his beneficiary will be entitled
to a similar death benefit from and after the Executive's death; and
WHEREAS, the Bank and Executive entered into a Supplemental
Pension Agreement dated December 15, 1989 (the "Supplemental Pension Agreement")
which provided Executive with certain retirement benefits in addition to those
provided under the Bank's qualified pension plan and the Supplemental Pension
Agreement was assigned to the Corporation by the Bank; and
WHEREAS, the Corporation and Executive desire to enter into this
Agreement in order to replace the Supplemental Pension Agreement and to provide
to Executive the benefit contemplated by the parties at the time of execution of
the Supplemental Pension Agreement without regard to the limitations imposed on
the Executive's benefit pursuant to Sections 415 and 401(a)(17) of the Code; and
WHEREAS, the parties hereto wish to provide the terms and
conditions upon which the Corporation shall pay such additional compensation to
the Executive after his retirement or other termination of his employment or
death benefit to his beneficiary after the Executive's death; and
WHEREAS, the parties hereto intend that this Agreement be
considered an unfunded arrangement, maintained primarily to provide deferred
compensation benefits for the Executive, a member of a select group of
management or highly compensated employees of the Corporation, for purposes of
the Employee Retirement Security Act of 1974, as amended;
NOW, THEREFORE, in consideration of the premises and of the
mutual promises herein contained, the parties hereto agree as follows:
1. DEFINITION OF TERMS.
a. For purposes of this Agreement, the following terms shall
be defined as set forth in this Section 1:
1.1 "Change in Control" shall be deemed to have
occurred if and when:
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a. Any person or group of persons acting in concert
and not presently in control of the Corporation
shall have acquired ownership of or the right to
vote or to direct the voting of shares of capital
stock of the Corporation representing 51% or more
of the total voting power of the Corporation, or
b. The Corporation shall have merged into or
consolidated with another corporation, or merged
another corporation into the Corporation, on a
basis whereby less than a majority of the total
voting power of the surviving corporation is
represented by shares held by former shareholders
of the Corporation immediately prior to such
merger or consolidation, or
c. The Corporation shall have sold substantially all
of its assets to another corporation or other
entity or person.
1.2 "Disability Plan" shall mean the long term disability plan
of the Bank currently in effect.
1.3 "Discharge for Cause" shall mean the termination of
Executive's employment with the Corporation or Bank due to
(i) Executive's conviction of either a felony involving
moral turpitude or any crime in connection with his
employment; or (ii) actions by Executive as an executive
officer which are prohibited or contrary to law, or
contrary to the best interests of the Corporation or Bank;
or (iii) Executive's willful failure to take actions
permitted or required by law and necessary to implement
policies of the Board which the Board has communicated to
him in writing; or (iv) Executive's continued failure to
attend to his duties as an executive officer as set forth
in his Employment Agreement; or (v) any condition which
either resulted from Executive's habitual drunkenness or
addiction to narcotics, or resulted from any intentionally
self-inflicted injury.
1.4 "Early Retirement" shall mean the termination of
employment of the Executive after he has attained age
fifty-five (55) and has completed such years of continued
employment with the Bank as may be required for early
retirement under the Retirement Plan computed as if
Executive had completed an additional one (1) year of
continuous employment for every full two (2) year period
of continuous employment with the Bank on or as of the
date of his retirement. In the event of a Change in
Control to which Section 1.1 of this Agreement applies,
the number of years of continuous employment as calculated
in this Section 1.4 shall be increased by an additional
five (5) years of continuous employment with the Bank on
or as of the date of Executive's retirement.
1.5 "Normal Retirement Date" shall mean the last day of the
month coincident with Executive's date of retirement or
attainment of age sixty-seven (67) whichever occurs first.
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1.6 "Retirement Plan" shall mean The Employees' Retirement
Plan of The Second National Bank of Xxxxxx, as amended
from time to time.
1.7 "Retirement Plan Benefit" shall mean any amount payable
under the Retirement Plan in effect at the Early or Normal
Retirement Date of Executive.
1.8 "Deferred Compensation Benefit" shall mean the amount
payable to Executive under this Agreement.
2. RETIREMENT BENEFIT.
a. From and after termination of the Executive's employment,
other than by reason of his death, whether by retirement of the Executive from
the active service of the Corporation or otherwise, the Corporation shall
thereafter pay the Executive, commencing on the date of the termination of
employment, a Deferred Compensation Benefit in an amount determined pursuant to
the following formula:
(1) The Retirement Plan Benefit which would have been payable
to Executive, computed as if he had completed an
additional one (1) year of continuous employment for every
full two (2) year period of continuous employment with the
Corporation on or as of the date of his retirement, and as
if the Retirement Plan did not contain limitations imposed
on the Executive's Retirement Plan Benefit pursuant to
Sections 415 and 401(a)(17) of the Code;
(2) Minus Executive's Retirement Plan Benefit.
(An example of the calculation of the Deferred Compensation
Benefit as of March 31, 1995, is attached hereto as Exhibit A.)
b. In the event of the Executive's death after termination of his
employment, the Corporation shall provide the Deferred Compensation Benefit to
Executive's spouse and family in the form of payment as he shall have elected
under the Retirement Plan, but calculated in accordance with this Agreement.
c. In the event that the employment of Executive is terminated by
the Corporation within one (1) year after a Change in Control occurs, and at
such Change in Control Executive is less than sixty-five (65) years old, the
Corporation shall pay Executive the benefit defined in paragraph 2(a) above,
except that the Retirement Plan Benefit which shall be paid to Executive shall
be computed as if he had completed an additional five (5) years of continuous
employment with the Corporation and an additional one (1) year of continuous
employment for every full two (2) year period of continuous employment with the
Corporation on or as of the date of his retirement.
3. DEATH BENEFIT.
a. In the event of the death of the Executive while employed by
the Corporation, the Deferred Compensation Benefit shall be paid to Executive's
spouse and family in the form of payment as he shall have elected under the
Retirement Plan.
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b. If no such election has been received by the Corporation from
the Executive prior to his death, the Deferred Compensation Benefit shall be
paid in the manner and form of payment in accordance with the terms of the
Retirement Plan.
4. NON-COMPETITION DURING EMPLOYMENT. In consideration of the
foregoing agreements of the Corporation and of the payments to be made by the
Corporation pursuant thereto, the Executive hereby agrees that, so long as he
remains employed by the Corporation, he will devote substantially all of his
time, skill, diligence, and attention to the business of the Corporation, and
will not actively engage, either directly or indirectly, in any business or
other activity which is or may be deemed to be in any way competitive with or
adverse to the best interests of the business of the Corporation.
5. NO TRUST CREATED. Nothing contained in this Agreement, and no
action taken pursuant to its provisions by either party hereto, shall create,
nor be construed to create, a trust of any kind or a fiduciary relationship
between the Corporation and the Executive, his designated beneficiary, any other
beneficiary of the Executive, or any other person.
6. BENEFITS PAYABLE ONLY FROM GENERAL CORPORATE ASSETS; UNSECURED
GENERAL CREDITOR STATUS OF EXECUTIVE.
a. The payments to the Executive, his designated beneficiary, or
any other beneficiary hereunder shall be made from assets which shall continue,
for all purposes, to be a part of the general, unsecured assets of the
Corporation; no person shall have nor acquire any interest in any such assets by
virtue of the provisions of this Agreement. The Corporation's obligation
hereunder shall be an unfunded and unsecured promise to pay money in the future.
To the extent that the Executive or any person acquires a right to receive
payments from the Corporation under the provisions hereof, such right shall be
no greater than the right of any unsecured general creditor of the Corporation;
no such person shall have nor require any legal or equitable right, interest, or
claim in or to any property or assets of the Corporation.
b. In the event that, in its sole discretion, the Corporation
purchases an insurance policy or policies insuring the life of the Executive (or
any other property) to allow the Corporation to recover the cost of providing
the benefits, in whole or in part, hereunder, neither the Executive, his
designated beneficiary, any other beneficiary, nor any other person shall have
nor acquire any rights whatsoever therein or in the proceeds therefrom. The
Corporation shall be the sole owner and beneficiary of any such policy or
policies and, as such, shall possess and may exercise all incidents of ownership
therein. No such policy, policies, or other property shall be held in any trust
for the Executive or any other person nor as collateral security for any
obligation of the Corporation hereunder.
7. NO CONTRACT OF EMPLOYMENT. Nothing contained herein shall be
construed to be a contract of employment for any term of years, nor as
conferring upon the Executive the right to continue to be employed by the
Corporation, in any capacity. It is expressly understood by the parties hereto
that this Agreement relates exclusively to additional compensation for the
Executive's services, payable after termination of his employment with the
Corporation, and is not intended to be an employment agreement.
8. DETERMINATION OF BENEFITS, CLAIMS PROCEDURE, AND
ADMINISTRATION.
a. Claim.
The Executive or his beneficiary who believes that he is being
denied a benefit to which he is entitled under the Agreement (hereinafter
referred to as a "Claimant") may file a written request for
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such benefit with the Corporation, setting forth his claim. The request must be
addressed to the President of the Corporation at its then principal place of
business.
b. Claim Decision.
Upon receipt of a claim, the Corporation shall advise the
Claimant that a reply will be forthcoming within ninety (90) days and shall, in
fact, deliver such reply within such period. The Corporation may, however,
extend the reply period for an additional ninety (90) days for reasonable cause.
If the claim is denied in whole or in part, the Corporation shall
adopt a written opinion, using language calculated to be understood by the
Claimant, setting forth:
(1) The specific reason or reasons for such denial;
(2) The specific reference to pertinent provisions of this
Agreement on which such denial is based;
(3) A description of any additional material or information
necessary for the Claimant to perfect his claim and an
explanation why such material or such information is
necessary;
(4) Appropriate information as to the steps to be taken if the
Claimant wishes to submit the claim for review; and
(5) The time limits for requesting a review under subsection
c. and for review under subsection d. hereof.
c. Request for Review.
Within sixty (60) days after the receipt by the Claimant of the
written opinion described above, the Claimant may request in writing that the
Secretary of the Corporation review the determination of the Corporation. Such
request must be addressed to the Secretary of the Corporation, at its then
principal place of business. The Claimant or his duly authorized representative
may, but need not, review the pertinent documents and submit issues and comments
in writing for consideration by the Corporation. If the Claimant does not
request a review of the Corporation's determination by the Secretary of the
Corporation within such sixty (60) day period, he shall be barred and estopped
from challenging the Corporation's determination.
d. Review of Decision.
Within sixty (60) days after the Secretary's receipt of a request
for review, he will review the Corporation's determination. After considering
all materials presented by the Claimant, the Secretary will render a written
opinion, written in a manner calculated to be understood by the Claimant,
setting forth the specific reasons for the decision and containing specific
references to the pertinent provisions of this Agreement on which the decision
is based. If special circumstances require that the sixty (60) day time period
be extended, the Secretary will so notify the Claimant and will render the
decision as soon as possible, but no later than one hundred twenty (120) days
after receipt of the request for review.
9. NON-ASSIGNABILITY OF BENEFITS. Neither the Executive, his
designated beneficiary, nor any other beneficiary under this Agreement shall
have any power or right to transfer, assign, anticipate, hypothecate, or
otherwise encumber any part or all of the amounts payable hereunder, which are
expressly declared to be unassignable and non-transferable. Any such attempted
assignment or transfer shall be void and shall terminate this Agreement; the
Corporation shall thereupon have no further liability
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hereunder. No amount payable hereunder shall, prior to actual payment thereof,
be subject to seizure by any creditor of any such beneficiary for the payment of
any debt, judgment, or other obligation, by a proceeding at law or in equity,
not transferable by operation of law in the event of the bankruptcy, insolvency,
or death of the Executive, his designated beneficiary, or any other beneficiary
hereunder.
10. AMENDMENT. This Agreement may not be amended, altered, or
modified, except by a written instrument signed by the parties hereto or their
respective successors, and may not be otherwise terminated except as provided
herein.
11. INUREMENT. This Agreement shall be binding upon and inure to
the benefit of the Corporation and its successors and assigns, and the
Executive, his successors, heirs, executors, administrators, and beneficiaries.
12. NOTICES. Any notice, consent, or demand required or permitted
to be given under the provisions of this Agreement shall be in writing, and
shall be signed by the party giving or making the same. If such notice, consent,
or demand is mailed to a party hereto, it shall be sent by United States
certified mail, postage prepaid, addressed to such party's last known address as
shown on the records of the Corporation. The date of such mailing shall be
deemed the date of notice, consent, or demand.
13. GOVERNING LAW. This Agreement, and the rights of the parties
hereunder, shall be governed by and construed in accordance with the laws of the
State of Ohio. If any provision of this Agreement or the application thereof
shall for any reason and to any extent be invalid and unenforceable, the
remainder of this Agreement shall not be affected thereby, but rather shall be
enforced to the full extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, in duplicate, as of the day and year first above written.
THE SECOND NATIONAL BANK OF XXXXXX SECOND BANCORP, INCORPORATED -
Corporation
By: By:
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Senior Vice President Senior Vice President
Attest: Attest:
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Vice President Secretary
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Xxxx X. Xxxxx - Executive
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