Exhibit 10.8
Form of Deferred Fee Agreement between Xxxxxxxx Federal Savings Bank
and individual directors
Exhibit 10.8
FORM OF DEFERRED FEE AGREEMENT
The Deferred Fee Agreement for the directors of Xxxxxxxx Federal are
substantially same as the following Form of Deferred Fee Agreement except as to
the following material terms:
Name of Signatory Date of Amount of Amount of Duration Receipt of
Agreement Death Benefit Deferral (Attached as Payments
under Section (Attached as Exhibit 1) (Attached as
5.1.1 Exhibit 1) Exhibit 1)
-------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx, Xx. 6/25/96 $17,336 $6,000 of For 15 In equal
annually in Annual Fees Years monthly
monthly installments
installments
for 20 years.
--------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx, XX 6/25/96 $40,825 $200 of For 10 In a lump
annually in Annual Fees Years sum
monthly
installments
for 20 years.
--------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx 6/25/96 $35,973 $100 of none In a lump
annually in Annual Fees specified sum
monthly
installments
for 20 years.
--------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. XxXxxxx 6/25/96 $72,489 $10,000 of For 24 In equal
annually in Annual Fees Years monthly
monthly installments
installments
for 20 years.
--------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 6/25/96 $12,955 $5,200 of For 15 In equal
annually in Annual Fees Years monthly
monthly installments
installments
for 20 years.
FORM OF
XXXXXXXX FEDERAL SAVINGS BANK
DEFERRED FEE AGREEMENT
THIS AGREEMENT is made thus ____ day of __________________, 199_ by and
between XXXXXXXX FEDERAL SAVINGS BANK (the "Company"), and [DIRECTOR] (the
"Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the Company is willing to provide to the Director a deferred fee
opportunity. The Company will pay the benefits from its general assets.
AGREEMENT
The Director and the Company agree as follows:
Article I
Definitions
1.1 Definitions. Whenever used in this Agreement, the following words
and phrases shall have the meanings specified:
1.1.1 "Change of Control" means the transfer of 51% or more of the
Company's outstanding voting common stock followed within twelve (12) months by
termination of the Director's status as a member of the Company's Board of
Directors.
1.1.2 "Code" means the Internal Revenue Code of 1986, as amended.
References to a Code section shall be deemed to be to that section as it now
exists and to any successor provision.
1.1.3 "Disability" means, if the Director is covered by a
Company-sponsored disability insurance policy, total disability as defined in
such policy without regard to any waiting period. If the Director is not covered
by such a policy, Disability means the Director suffering a sickness, accident
or injury which, in the judgment of a physician satisfactory to the Company,
prevents the Director from performing substantially all of the normal duties of
a director. As a condition to any benefits, the Company may require the Director
to submit to such physical or mental evaluations and tests as the Company's
Board of Directors deems appropriate.
1.1.4 "Election Form" means the Form attached as Exhibit 1.
1.1.5 "Fees" means the total directors fees payable to the
Director.
1.1.6 "Normal Termination Date" means the Director attaining age
sixty-eight (68).
1.1.7 "Termination of Service" means the Director's ceasing to be
a member of the Company's Board of Directors for any reason whatsoever.
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1.1.8 "Years of Service" means the total number of twelve-month
periods during which the Director serves as a member of the Company's Board of
Directors.
Article 2
Deferral Election
2.1 Initial Election. The Director shall make an initial deferral
election under this Agreement by filing with the Company a signed Election Form
within 30 days after the date of this Agreement. The Election Form shall set
forth the amount of Fees to be deferred and the form of benefit payment. The
Election Form shall be effective to defer only Fees earned after the date the
Election Form is received by the Company.
2.2 Election Changes
2.2.1 Generally. The Director may modify the amount of Fees to be
deferred by filing a subsequent signed Election Form with the Company. The
modified deferral shall not be effective until the calendar year following the
year in which the subsequent Election Form is received by the Company. The
Director may not change the form of benefit payment initially elected under
Section 2.1.
2.2.2 Hardship. If an unforeseeable financial emergency arising
from the death of a family member, divorce, sickness, injury, catastrophe or
similar event outside the control of the Director occurs, the Director, by
written instructions to the Company, may reduce future deferrals under this
Agreement or may cease deferrals under this Agreement.
Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a Deferral
Account on its books for the Director, and shall credit to the Deferral Account
the following amounts:
3.1.1 Deferrals. The Fees deferred by the Director as of the time
the Fees would have otherwise been paid to the Director.
3.1.2 Interest. On the first day of each month and immediately
prior to the payment of any benefits, interest on the account balance since the
preceding credit under this Section 3.1.2, if any, at an annual rate, compounded
monthly, equal to the rate determined by the Company's Board of Directors, in
its sole discretion.
3.2 Statement of Accounts. The Company shall provide to the Director,
within one hundred twenty (120) days after each anniversary of this Agreement, a
statement setting forth the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a device for
measuring amounts to be paid under this Agreement. The Deferral Account is not a
trust fund of any kind. The Director is a general unsecured creditor of the
Company for the payment of benefits. The benefits represent the mere Company
promise to pay such benefits. The Director's rights are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Director's creditors.
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Article 4
Lifetime Benefits
4.1 Normal Termination Benefit. Upon the Director's Termination of
Service, the Company shall pay to the Director the benefit described in this
Section 4.1.
4.1.1 Amount of Benefit. The benefit under this Section 4.1 is the
Deferral Account balance at the Director's Termination of Service.
4.1.2 Payment of Benefit. The Company shall pay the benefit to the
Director in the form elected by the Director on the Election Form. The Company
shall continue to credit interest under Section 3.1.2.
4.2 Early Termination Benefit. If the Director terminates service as a
director before the Normal Termination Date, and for reasons other than death or
Disability, the Company shall pay to the Director the benefit described in this
Section 4.2.
4.2.1 Amount of Benefit. The benefit under this Section 4.2 is the
Deferral Account balance at the Director's Termination of Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit to the
Director in the form elected by the Director on the Election Form. The Company
shall continue to credit interest under Section 3.1.2.
4.3 Disability Benefit. If the Director terminates service as a
director for Disability prior to the Normal Retirement Date, the Company shall
pay to the Director the benefit described in this Section 4.3.
4.3.1 Amount of Benefit. The benefit under this Section 4.3 is the
Deferral Account balance at the Director's Termination of Service.
4.3.2 Payment of Benefit. The Company shall pay the benefit to the
Director in the form elected by the Director on the Election Form. The Company
shall continue to credit interest under Section 3.1.2.
4.4 Change of Control Benefit. Upon a Change of Control while the
Director is in the active service of the Company, the Company shall pay to the
Director the benefit described in this Section 4.4 in lieu of any other benefit
under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4 is the
Deferral Account balance at the date of the Director's Termination of Service.
4.4.2 Payment of Benefit. The Company shall pay the benefit to the
Director in a lump sum within sixty (60) days after the Director's Termination
of Service.
4.5 Hardship Distribution. Upon the Company's determination (following
petition by the Director) that the Director has suffered an unforeseeable
financial emergency as described in Section 2.2.2, the Company shall distribute
to the Director all or a portion of the Deferral Account balance as determined
by the Company, but in no event shall the distribution be greater than is
necessary to relieve the financial hardship.
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Article 5
Death Benefits
5.1 Death During Active Service. If the Director dies while in the
active service of the Company, the Company shall pay to the Director's
beneficiary the benefit described in this Section 5.1
5.1.1 Amount of Benefit. The benefit under Section 5.1 is
[name of director] [amount of benefit]
5.1.2 Payment of Benefit. The Company shall pay the benefit to the
beneficiary within thirty (30) days following the Director's death. The Company
shall continue to credit interest under Section 3.1.2.
5.2 Death During Benefit Period. If the Director dies after benefit
payments have commenced under this Agreement but before receiving all such
payments, the Company shall pay the remaining benefits to the Director's
beneficiary at the same time and in the same amounts they would have been paid
to the Director had the Director survived.
Article 6
Beneficiaries
6.1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company. The Director may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Director and
accepted by the Company during the Director's lifetime. The Director's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Director, or if the Director names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Director dies without a valid
beneficiary designation, all payments shall be made to the Director's surviving
spouse, if any, and if none, to the Director's surviving children and the
descendants of any deceased child by right of representation, and if no children
or descendants survive, to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person. The Company may require proof of
incompetency, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
Article 7
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay any benefit under this Agreement that is attributable to
the Company's matching contributions or the interest earned on such
contributions:
7.1 Excess Parachute Payment. To the extent the benefit would be an
excess parachute payment under Section 280G of the Code.
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7.2 Termination for Cause. If the Company terminates the Director's
service as a director for:
7.2.1 Gross negligence or gross neglect of duties,
7.2.2 Commission of a felony or of a gross misdemeanor involving
moral turpitude; or
7.2.3 Fraud, disloyalty, dishonesty or willful violation of any
law or significant Company policy committed in connection with the Director's
service and resulting in an adverse financial effect on the Company.
7.3 Suicide. If the Director commits suicide within two years after the
date of this Agreement, or if the Director has made any material misstatement of
fact on any application for life insurance purchased by the Company.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. The Company shall notify the Director's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or noneligibility for
benefits under the Agreement. If the Company determines that the beneficiary is
not eligible for benefits or full benefits, the notice shall set forth (1) the
specific reasons for such denial, (2) a specific reference to the provisions of
the Agreement on which the denial is based, (3) a description of any additional
information or material necessary for the claimant to perfect his or her claim,
and a description of why it is needed, and (4) an explanation of the Agreement's
claims review procedure and other appropriate information as to the steps to be
taken if the beneficiary wishes to have the claim reviewed. If the Company
determines that there are special circumstances requiring additional time to
make a decision, the Company shall notify the beneficiary of the special
circumstances and the date by which a decision is expected to be made, and may
extend the time for up to an additional ninety-day period.
8.2 Review Procedure. If the beneficiary is determined by the Company
not to be eligible for benefits, or if the beneficiary believes that he or she
is entitled to greater or different benefits, the beneficiary shall have the
opportunity to have such claim reviewed by the Company by filing a petition for
review with the Company within sixty (60) days after receipt of the notice
issued by the Company. Said petition shall state the specific reasons which the
beneficiary believes entitle him or her to benefits or to greater or different
benefits. Within sixty (60) days after receipt by the Company of the petition,
the Company shall afford the beneficiary (and counsel, if any) an opportunity to
present his or her position to the Company orally or in writing, and the
beneficiary (or counsel) shall have the right to review the pertinent documents.
The Company shall notify the beneficiary of its decision in writing within the
sixty-day period, stating specifically the basis of its decision, written in a
manner calculated to be understood by the beneficiary and the specific
provisions of the Agreement on which the decision is based. If, because of the
need for a hearing, the sixty-day period is not sufficient, the decision may be
deferred for up to another sixty-day period at the election of the Company, but
notice of this deferral shall be given to the beneficiary.
Article 9
Amendments and Termination
The Company may amend or terminate this Agreement at any time prior to
the Director's Termination of Service by written notice to the Director. In no
event shall this Agreement be terminated without payment to the Director of the
Deferral Account balance attributable to the Director's deferrals and interest
credited on such amounts.
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Article 10
Miscellaneous
10.1 Binding Effect. This Agreement shall bind the Director and the
Company, and their beneficiaries, survivors, executors, administrators and
transferees.
10.2 No Guaranty of Employment. This Agreement is not a contract for
services. It does not give the Director the right to remain a director of the
Company, nor does it interfere with the shareholders' rights to replace the
Director. It also does not require the Director to remain a director nor
interfere with the Director's right to terminate services at any time.
10.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
10.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of OHIO, except to the extent preempted by the laws of the
United States of America.
10.6 Unfunded Arrangement. The Director and beneficiary are general
unsecured creditors of the Company for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Company to pay such
benefits. The rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors. Any insurance on the Director's life is a general
asset of the Company to which the Director and beneficiary have no preferred or
secured claim.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement.
DIRECTOR: COMPANY:
XXXXXXXX FEDERAL SAVINGS BANK
_________________________ By _____________________________
Title _________________________
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EXHIBIT I
TO
DEFERRED COMPENSATION AGREEMENT
DEFERRAL ELECTION
I elect to defer fees under my Deferred Compensation Agreement with the Company,
as follows:
Amount of Deferral Frequency of Deferral Duration
--------------------------------------------------------------------------------
I elect to defer $_____ ______________ ____ For ____ Years
of fees
--------------------------------------------------------------------------------
I understand that I may change the amount, frequency and duration of my
deferrals by filing a new election form with the Company; provided, however,
that any subsequent election will not be effective until the calendar year
following the year in which the new election is received by the Company.
Form of Benefit
I elect to receive benefits under the Agreement in the following form:
[Initial One]
____ Lump sum
____ Equal monthly installments for 240 months
I understand that I may not change the form of benefit elected, even if I later
change the amount of my deferrals under the Agreement.
I designate the following as beneficiary of benefits under the Deferred
Compensation Agreement payable following my death.
Primary: [DIRECTOR'S BENEFICIARY]
Contingent: [DIRECTOR'S BENEFICIARY]
Note: To name a trust as beneficiary, please provide the name of the trustee
and the exact date of the trust agreement.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary, in the event of the dissolution of our marriage.
Signature [DIRECTOR]_________________
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Date ______________________________
Accepted by the Company this ____ day of _________, 199__.
By: /s/ Xxxx X. Xxxxx
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Title: Executive Vice President
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