EXHIBIT 10(2)
DEFERRED COMPENSATION AGREEMENT
between
CITY SAVINGS BANK
and
XXXXXX XXXXXXX
Effective November 1, 2003
TABLE OF CONTENTS
Page
1. DEFINITIONS...........................................................1
2. VESTING...............................................................3
2.1 Vested Percentage............................................4
3. RETIREMENT BENEFIT....................................................4
3.1 Retirement Benefit...........................................4
3.2 Full Retirement Benefit......................................4
3.3 Payment of Retirement Benefit................................4
3.4 Effect of Employee's Death...................................4
4. DISABILITY............................................................4
4.1 Disability Benefit...........................................4
4.2 Effect of Employee's Death...................................5
4.3 Evidence of Disability.......................................5
5. CHANGE IN CONTROL; EARLY RETIREMENT BENEFIT...........................5
5.1 Early Retirement Benefit.....................................5
5.2 Effect of Employee's Death...................................5
6. DEATH BENEFIT.........................................................5
6.1 Death Benefit................................................5
6.2 Death Benefit Before Retirement..............................5
6.3 Death During Early Retirement................................6
6.4 Death During Retirement Period...............................6
6.5 Split Dollar Insurance.......................................6
6.6 Payroll Adjustment for Insurance Coverage....................6
6.7 Time of Payment..............................................6
6.8 Proof of Death...............................................6
7. SOURCE OF BENEFITS, INVESTMENT OF CONTRIBUTIONS.......................6
7.1 Benefits Payable from General Assets.........................6
7.2 Trust........................................................6
7.3 Investments to Facilitate Payment of Benefits................6
8. ADMINISTRATION OF AGREEMENT...........................................7
8.1 Appointment of Plan Administrator............................7
8.2 Plan Administrator's Rules and Powers........................7
8.3 Reliance on Certificate......................................7
8.4 Liability of Plan Administrator..............................7
8.5 Interpretation of Plan.......................................7
9. CLAIMS FOR BENEFITS...................................................8
9.1 Claims Procedures............................................8
9.2 Review Procedure.............................................8
10. MISCELLANEOUS.........................................................9
10.1 Tax Withholding..............................................9
10.2 Coverage by ERISA............................................9
10.3 Not an Employment Contract...................................9
10.4 Other Benefits...............................................9
10.5 Restrictions on Alienation of Benefits......................10
10.6 Notice......................................................10
10.7 Change of Address...........................................10
10.8 Entire Agreement............................................10
10.9 Effect of Provisions........................................10
10.10 Governing Law...............................................10
10.11 FDIC, Other Rules...........................................10
CITY SAVINGS BANK
DEFERRED COMPENSATION AGREEMENT
This Agreement is entered into effective as of November 1, 2003 (the
"Effective Date"), by and between CITY SAVINGS BANK, a thrift chartered in the
state of Indiana having its principal place of business in Michigan City,
Indiana ("Employer") and XXXXXX XXXXXXX ("Employee").
RECITALS
A. Employee has been a dedicated and productive employee for more than 22
years, and is President and Chief Executive Officer of Employer. Employee has
been substantially responsible for the growth and profitability of Employer.
B. Over the years of his service for Employer, Employee has acquired
distinctive skills and abilities and an extensive background in and knowledge of
Employer's banking business, all of which enable Employee to perform his duties
for, and fulfill his responsibilities to, Employer in an outstanding manner.
C. Employer desires to provide Employee with additional incentives to
continue his employment with Employer so that Employer will further benefit from
Employee's banking experience, skills, abilities, background and knowledge.
D. Employee desires to remain employed by Employer and to receive the
deferred compensation provided in this Agreement in addition to the compensation
and benefits otherwise available to Employee.
AGREEMENT
In consideration of Employee's past and present services for Employer and
the covenants contained in this Agreement, Employer and Employee mutually agree
as follows:
1. DEFINITIONS
For purposes of this Agreement, the following phrases or terms will have
the indicated meanings unless other meaning is clearly apparent from the
context:
"Beneficiary" means the person or persons or the estate of Employee that is
designated by Employee to receive the Death Benefit under this Agreement
pursuant to a beneficiary designation form validly executed in accordance with
the terms of this Agreement and accepted by the Plan Administrator. In the event
that Employee dies without a surviving designated Beneficiary, the Death Benefit
will be paid to the personal representative of Employee's estate.
"Benefit" or "Benefits" means the Death Benefit, Disability Benefit, Early
Retirement Benefit, and/or Retirement Benefit pursuant to this Agreement.
"Cause" for termination of employment means:
(a) personal dishonesty,
(b) incompetence,
(c) material misconduct,
(d) breach of fiduciary duty involving personal profit,
(e) failure to perform duties required by his employment or failure
to perform duties of his position,
(f) willful violation of any law, rule, or regulation (other than
traffic violations or similar offenses) or final cease-and-desist
order, or
(g) violation of any rule, prescription or requirement set out in
Employer's Personnel Policy, if said Personnel Policy provides
for termination of employment.
Notwithstanding the foregoing, Employee will not be deemed to have been
terminated for Cause unless and until there has been delivered to Employee a
copy of a resolution duly adopted by the affirmative vote of not less than the
entire membership of the Board of Directors of Employer at a meeting of the
Board of Directors called and held for the purpose (after reasonable notice to
Employee and an opportunity for Employee, together with his counsel, to be heard
before the Board of Directors), finding that in the good faith opinion of the
Board of Directors Employee was guilty of conduct constituting Cause as defined
above and specifying the particulars for such finding in detail.
"Change in Control". For purposes of this Agreement, a "Change in Control"
of Employee shall mean an acquisition of "control" of the Employer or of City
Savings Financial Corporation, Employer's parent corporation (the "Holding
Company"), within the meaning of 12 C.F.R. ss. 574.4(a) (other than a change of
control resulting from a trustee or other fiduciary holding shares of common
stock under an employee benefit plan of the Holding Company or any of its
subsidiaries).
"Competing Entity" means a bank or other entity providing banking services
in Employer's Primary Service Area.
"Death Benefit" means the benefit described in Section 6 of this Agreement.
"Disability Benefit" means the Benefit described in Section 4 of this
Agreement.
"Disabled" or "Disability" means a physical or mental condition resulting
from bodily injury, disease, or mental disorder that renders Employee incapable
of continuing his usual and customary employment with Employer and which is
expected to last at that degree of severity for at least 12 months or is
expected to result in death, all as determined by a licensed physician chosen by
the Employer. The Plan Administrator will have the authority to reduce the level
of Disability required to entitle Employee to the Disability Benefit under
Article 4 in its sole discretion, but will not be obligated to do so.
"Early Retirement Benefit" means the Benefit described in Section 5 of this
Agreement.
"Effective Date" means November 1, 2003.
"Employee" means Xxxxxx Xxxxxxx.
"Employer" means City Savings Bank, a thrift chartered in the state of
Indiana, or its successor in interest.
"Plan Administrator" means the Board of Directors of Employer, as
constituted from time to time; provided however that the Board of Directors of
Employer may designate another Plan Administrator.
"Primary Service Area" means the geographic area designated by Employer as
its primary market area in its usual and customary reports and filings with the
regulatory bodies.
"Retirement " means termination of the employment of the Employee following
the Employee's sixty-fifth birthday.
"Retirement Benefit" means the Benefit described in Section 3.1 of this
Agreement.
"Vested" refers to the portion of Employee's Benefits under this Agreement
that have been earned and are no longer forfeitable if Employee voluntarily
terminates his employment with Employer or is involuntarily terminated by
Employer without Cause.
"Vested Percentage" has the meaning given in Section 2.1
2. VESTING
2.1 Vested Percentage. The portion of Employee's Benefits that are Vested
is referred to as Employee's "Vested Percentage." As of the Effective Date,
Employee's initial Vested Percentage is 0%. On each anniversary of the Effective
Date, Employee shall become Vested in his Benefits to the extent of an
additional 10%, so that at a date which is ten years following the Effective
Date his Vested Percentage shall be 100%.
3. RETIREMENT BENEFIT
3.1 Retirement Benefit. Upon Employee's termination of employment with
Employer for any reason other than involuntary termination for Cause, Employee
will be entitled to a Retirement Benefit consisting of 15 annual installments in
an amount equal to the Full Retirement Benefit (as described in Section 3.2 and
adjusted as provided in that Section) multiplied by Employee's Vested Percentage
determined as provided in Section 2, payable as provided in Section 3.3.
3.2 Full Retirement Benefit. The Full Retirement Benefit (when Employee is
fully Vested) is 15 annual payments. The first annual payment will be 70% of the
prior 12 months W-2 income. The second year of Full Retirement Benefit will be
increased by a 3.0% cost of living adjustment. Furthermore, subsequent annual
payments will also be increased by a 3.0% per annum cost of living adjustment.
Thus, for example, if payment commences in 2020, and Employee earned $150,000
during the 12 months prior to retirement, the Full Retirement Benefit payment
will be 105,000 for 2020; $108,150 of for 2021, the payment for 2022 will be
$111,395, etc.
3.3 Payment of Retirement Benefit. Payment of the Retirement Benefit will
commence on the later of January 1, 2020, or the first day of the calendar year
following Employee's Retirement from Employer. The Retirement Benefit will be
payable in annual or other mutually agreed upon convenient installments.
3.4 Effect of Employee's Death. In the event Employee dies before retiring
from Employer or after retirement and before all installments of Retirement
Benefit due as provided in this Section 3 have been paid, Employee's Beneficiary
will receive the Death Benefit described in Section 6 and will not be entitled
to receive any further installments of Retirement Benefit. In the event Employee
dies after receiving all installments of Retirement Benefit, Employee's
Beneficiary will be entitled to receive the Death Benefit outlined in Section 6.
4. DISABILITY
4.1 Disability Benefit. Upon termination of Employee's employment with
Employer due to Disability:
(a) Employee's Vested Percentage will automatically become 100%;
(b) Employee will be entitled to a Disability Benefit consisting of
15 annual installments. The first installment will be an amount
equal to 70% of the prior 12 months W-2 income. The second and
each subsequent installment of Disability Benefit will be
increased by a 3.0% per annum cost of living adjustment in the
same manner as described in Section 3.2. The Disability Benefit
will be payable in annual or other mutually agreed upon
convenient installments.
(c) Payment of Disability Benefit will be in lieu of Retirement
Benefit or Early Retirement Benefit.
4.2 Effect of Employee's Death. In the event of Employee's death after
termination by reason of Disability but before payment in full of all
installments of Disability Benefit, Employee's Beneficiary will receive the
Death Benefit described in Section 6 without reduction for any prior
installments of Disability Benefit and will not be entitled to receive any
further installments of Disability Benefit.
4.3 Evidence of Disability. It will be the responsibility of Employee to
provide evidence of his entitlement to Disability Benefits under this Agreement
to the Plan Administrator.
5. CHANGE IN CONTROL; EARLY RETIREMENT BENEFIT
5.1 Early Retirement Benefit. If a Change in Control of Employer occurs and
Employee's employment is terminated within two years of the Change in Control,
but prior to January 1, 2020, or if the Employee either resigns or is terminated
by Employer without Cause prior to January 1, 2020, but not earlier than January
1, 2011, Employee will be entitled to an Early Retirement Benefit consisting 15
annual installments. The first installment will be 70% of prior 12 months W-2
income, as of the date of termination. The second and each subsequent
installment of Early Retirement Benefit will be increased by a 3.0% per annum
cost of living adjustment in the same manner as described in Section 3.2. The
Early Retirement Benefit will be payable in annual or other mutually agreed upon
convenient installments. Payment of Early Retirement Benefit will be in lieu of
payment of Retirement Benefit or Disability Benefit.
5.2 Effect of Employee's Death. In the event of Employee's death after
termination as described in Section 5.1 but before payment in full of all
installments of Early Retirement Benefit, Employee's Beneficiary will receive
the Death Benefit described in Section 6 without reduction for any prior
installments of Early Retirement Benefit and will not be entitled to receive any
further installments of Early Retirement Benefit.
6. DEATH BENEFIT
6.1 Death Benefit. Upon Employee's death at any time while this Agreement
is in effect (including without limitation during the period after Employee's
retirement or other termination of employment) Employee's Beneficiary will be
entitled to a Death Benefit consisting of the greater of the Death Benefit
provided in Section 6.2, or $500,000. Employee's Beneficiary will not be
entitled to any installments of Retirement Benefits.
6.2 Death Before Retirement. The Full Death Benefit (when Employee is fully
Vested) is an amount equal to the present value, as of the date of death, of the
Full Retirement Benefit that would have been payable commencing as of January 1,
2020, using a discount rate equal to the Federal Open Market Committee Federal
Funds Target Rate as in effect on the date of death.
6.3 Employer Payment of Death Benefit. Employer expressly agrees to pay
from its own funds the Death Benefit described in this Section 6 to Employee's
Beneficiary without regard to life insurance policy(ies) being in force on the
life of the employee and being payable to the Employer.
6.4 Time of Payment. Employee will pay the Death Benefit as described in
Section 6.1 in a lump sum cash payment to Employee's Beneficiary as soon as
administratively feasible after Employee's death and a proof of claim has been
submitted to the insurance carrier or carriers.
6.5 Proof of Death. Proof of death in such form as is acceptable to the
Plan Administrator must be furnished prior to distribution of Death Benefit to a
Beneficiary. If the Plan Administrator has any doubt as to the proper
Beneficiary to receive payment of Death Benefit under this Agreement, the Plan
Administrator will have the right to withhold payment until the matter is
finally adjudicated or to interplead the Death Benefit in a court of competent
jurisdiction. Any payment of Death Benefit made by Employer in good faith and in
accordance with the provisions of this Agreement and of Employee's Beneficiary
designation will fully discharge Employer and Plan Administrator from all
further obligations with respect to such payment.
7. SOURCE OF BENEFITS, INVESTMENT OF CONTRIBUTIONS
7.1 Benefits Payable from General Assets. Benefits under this Agreement are
unfunded and will be paid exclusively from the general assets of Employer, and
no person entitled to payment under the Agreement will have any claim, right,
priority, security interest, or other interest in any fund, trust, account, or
other asset of Employer that may be looked to for such payment. Nothing in this
Agreement will be deemed to create a trust of any kind or to create any
fiduciary relationship. The rights of Employee and any Beneficiary to receive
any payments from Employer pursuant to this Agreement are no greater than the
rights of a general unsecured creditor of Employer.
7.2 Trust. Notwithstanding the provisions of Section 7.1, Employer will
deposit funds or other assets under the City Savings Bank Deferred Compensation
Trust (the "Trust") for the sole purpose of paying Benefits under this Agreement
(and similar agreements entered into by Employer) from those assets unless the
Trust assets are required to satisfy the obligations of Employer to its general
creditors. The Trust must meet the requirements of a so-called "rabbi trust"
under IRS Revenue Procedure 92-64, 1992-2 CB 422.
7.3 Investments to Facilitate Payment of Benefits. Although Employer is not
obligated to invest in any specific asset or fund or insurance policy in order
to provide the means for the payment of any Benefits under this Agreement,
Employer may elect to do so. In such event, Employee will not have any interest
whatever in such asset or fund or policy. Employee also understands and agrees
that his cooperation or participation, in any manner, in the acquisition of any
insurance policy or any other general asset by Employer for purposes of funding
this Agreement will not constitute a representation to Employee, his
Beneficiary, or any person claiming through Employee that any of them has a
special, identified, or beneficial interest in such general asset. Although
Employer may earmark, invest or segregate assets representing its commitment to
Employee under this Agreement, no such action will give Employee or any person
claiming through him any claim to any such earmarked or segregated account or
investment asset at any time. All such investments and accounts will remain the
general assets of Employer. Similarly, no investment earnings, increases or
gains realized or unrealized upon any such earmarked or segregated account or
investment will inure to the benefit of Employee directly or indirectly, but all
will remain the property of Employer. To the extent that Employer funds are
actually invested, earmarked and/or segregated for the purpose of performing
Employer's obligations under this Agreement, (1) no secured arrangement will be
deemed to have been created because of such investment, earmarking or
segregation, (2) all earnings, gains, losses and expenses experienced on such
investments will remain the property of Employer and will have no effect on
Employer's obligations to Employee, and (3) all such assets or funds will remain
subject to the claims of Employer's general creditors.
8. ADMINISTRATION OF AGREEMENT
8.1 Appointment of Plan Administrator. The general administration of this
Agreement, as well as its construction and interpretation, is vested in the Plan
Administrator.
8.2 Plan Administrator's Rules and Powers. Subject to the provisions of
this Agreement, the Plan Administrator may from time to time establish rules,
forms, and procedures for the administration of this Plan. The Plan
Administrator's decisions as to entitlement to Benefits, amount of Benefits, and
other matters will be based upon Employer records, the Plan Administrator's
records, Employer, and all other relevant information, all as interpreted by the
Plan Administrator in its sole discretion. Such decisions, actions, and records
of the Plan Administrator will be conclusive and binding upon Employer and all
persons having or claiming to have any right or interest in or under the Plan.
8.3 Reliance on Certificate. The Plan Administrator and the officers and
directors of Employer will be entitled to rely on all certificates and reports
made by any duly appointed accountants and on all opinions given by any duly
appointed legal counsel. Such legal counsel may be counsel for Employer.
8.4 Liability of Plan Administrator. No members of the Plan Administrator
will be liable for any act or omission of any other member of the Plan
Administrator except as required by applicable law. Employer will indemnify and
save harmless each Plan Administrator against any and all expenses and
liabilities arising out of his or her service as Plan Administrator, excepting
only expenses and liabilities arising out of his or her own willful misconduct.
Expenses against which a Plan Administrator will be indemnified include, without
limitation, the amount of any settlement or judgment, costs, counsel fees, and
related charges reasonably incurred in connection with a claim asserted, or a
proceeding brought, or settlement of such claim or proceeding. The foregoing
right of indemnification is in addition to any other rights to which any such
person may be entitled as a matter of law or agreement.
8.5 Interpretation of Plan. The Plan Administrator has full discretionary
authority to interpret the Agreement; such interpretations and all other
decisions and determinations made by the Plan Administrator will be final and
binding upon all parties. In the event that Employee is a member of the Plan
Administrator, however, he may not make decisions and determinations affecting
his own benefits.
9. CLAIMS FOR BENEFITS
9.1 Claims Procedures. The Plan Administrator will make all determinations
as to the right of Employee or Beneficiary to a benefit under the Agreement. If
any person does not receive the benefit to which he or she believes he or she is
entitled under this Agreement, said person may file a claim for benefits in
writing which must be signed by Employee, Beneficiary or legal representative of
Employee or Beneficiary. Claims will be granted or denied within 30 days after
receipt unless additional time is required because of special circumstances. If
additional time is required, the claimant will be notified in writing before the
expiration of 30 days from the receipt of the claim. In no event may the time
for reaching a decision with respect to a claim be extended beyond 120 days
after receipt of the claim.
In the event that the Plan Administrator denies a claim for benefits, the
claimant will be notified in writing. Such notice will set forth the specific
reasons for the denial, the specific provisions of this Agreement on which the
denial is based, a description of any additional materials or information
necessary to perfect the claim along with an explanation of why such material or
information is necessary, and an explanation of the claim review procedure.
If no action is taken by the Plan Administrator on a claim within 30 days
after its receipt, or, if the period for considering the claim has been
extended, then if no action is taken within 120 days after receipt of the claim,
the claim will be deemed to be denied for purposes of the following review
procedure.
9.2 Review Procedure. If a claim is denied in whole or in part, the
claimant may request the Plan Administrator to review its decision. This request
must be made in writing within 60 days after the claim has been denied or is
deemed to be denied under Section 9.1 and must set forth all of the grounds upon
which the request is based, any facts in support of the request, and any issues
or comments which the claimant considers relevant to the review. In preparing a
request for review, the claimant will be entitled to review any documents that
are pertinent to his or her claim at the office of Employer during regular
business hours.
The Plan Administrator will act upon each request for review as soon as
possible but not later than 60 days after the request for review is received
unless additional time is required because of special circumstances. If
additional time is required, the Claimant will be notified in writing before the
expiration of 60 days from receipt of the appeal. In no event may the time for
reaching a decision upon appeal be extended beyond 120 days after receipt of the
notice of appeal.
The Plan Administrator will make an independent determination concerning
the claim for benefits under this Agreement and will give written notice of its
decision to the claimant. The decision of the Plan Administrator on any claim
review will be final.
If the Plan Administrator fails to deliver a decision within 60 days after
receipt of the request for review, the claim will be deemed denied on review.
10. MISCELLANEOUS
10.1 Tax Withholding. Employer will withhold all applicable income and
payroll taxes from any payment of Benefits under this Agreement.
10.2 Coverage by ERISA. It is the intention of Employer that this Agreement
and the Benefits provided under this Agreement be administered as an unfunded
pension benefit plan established and maintained for a member of a select group
of management or highly compensated employees as described in Section 201(2) of
Employee Retirement Income Security Act of 1974 ("ERISA"). The Plan
Administrator will comply in all respects with the requirements imposed by ERISA
upon such plans.
10.3 Not an Employment Contract. The existence of this Agreement does not
obligate Employer to continue the employment of Employee with Employer or any
affiliate of Employer nor does it limit the right of Employer at any time and
for any reason to terminate Employee's employment. In no event may this
Agreement, by its terms or implications, constitute an employment contract of
any nature whatsoever between Employer and Employee.
10.4 Other Benefits. The benefits provided for Employee and his Beneficiary
under this Agreement are in addition to any other benefits available to Employee
under any other program or plan of Employer for its employees, and, except as
may otherwise be expressly provided, this Agreement supplements and does not
supersede, modify, or amend any other program or plan of Employer. Moreover,
benefits under this Agreement will not be considered to be compensation for the
purpose of computing deferrals or benefits under any other plan maintained by
Employer that is described in Section 401(a) or 402(b) of the Internal Revenue
Code of 1986.
10.5 Restrictions on Alienation of Benefits. No Benefit under this
Agreement will be subject to anticipation, alienation, sale, assignment, pledge,
encumbrance, transfer, or charge by Employee or any Beneficiary or any other
person, and any attempt to anticipate, alienate, sell, assign, pledge, encumber,
transfer, or charge any Benefit will be void. No Benefit under this Agreement
will in any manner be liable for or subject to the debts, contract liabilities,
or torts of the person entitled to such Benefit. If Employee or any Beneficiary
under this Agreement should become bankrupt or attempt to anticipate, alienate,
sell, assign, pledge, encumber, transfer, or charge any right to a Benefit under
this Agreement, then such Benefit will, in the discretion of the Plan
Administrator, terminate, and, in such event, the Plan Administrator will hold
or apply the Benefit or any part for the benefit of Employee or Beneficiary, his
or her spouse, children, or other dependents, or any of them, in such manner and
in such portion as the Plan Administrator, in its sole and absolute discretion,
may deem proper.
10.6 Notice. Any notice which will or may be given under this Agreement
must be in writing and will be mailed by United States mail, postage prepaid. If
notice is to be given to Employer, such notice will be addressed to Employer at:
City Savings Bank
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxx 00000
marked to the attention of the Plan Administrator,
Deferred Compensation Agreement.
10.7 Change of Address. Any party may, from time to time, change the
address to which notices will be mailed by giving written notice of such new
address to the appropriate party.
10.8 Entire Agreement. This Agreement constitutes the entire agreement
between the parties concerning nonqualified deferred compensation, and may be
amended only by means of a written document, signed by the party sought to be
charged with the amendment.
10.9 Effect of Provisions. The provisions of this Agreement will be binding
upon Employer and its successors and assigns, and upon Employee, his Beneficiary
or Beneficiaries, and any permitted assigns, heirs, executors and
administrators.
10.10 Governing Law. All questions arising with respect to this Agreement
will be determined by reference to Employee Retirement Income Security Act of
1974, to the extent applicable, and laws of the State of Indiana.
10.11 FDIC, Other Rules. This Agreement and the rights of the parties under
this Agreement will be governed by and construed in accordance with banking
regulations of the state of Indiana and of the FDIC. In the event that one or
more of the provisions of this agreement are for any reason held to be invalid,
illegal, or unenforceable in any respect under federal or state banking
regulations, to the extent applicable, such invalidity, illegality, or
unenforceability will not affect any other provision of this Agreement, but this
Agreement will be construed as if such invalid, illegal, or unenforceable
provision had never been contained in this Agreement.
EXECUTED this 11th day of November, 2003.
CITY SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Its: Xxxxxxx X. Xxxx
-------------------------------
EMPLOYEE
/s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx
