1
Mahoning National Bancorp, Inc.
Form 10-Q
Item 6 (a)
Exhibit 10 (e)
Executive Deferred Cash Bonus Plan
Xxxxxx X. XxXxxxx
2
EXECUTIVE DEFERRED CASH BONUS PLAN
As Restated effective September 15, 1997
AGREEMENT made this 15th day of September, 1997 (the "Effective
Date"), restates and supersedes an agreement entered into on the 19th day of
November, 1993 between The Mahoning National Bank of Youngstown (hereinafter
referred to as the "Bank"), and Xx. Xxxxxx X. XxXxxxx (hereinafter referred to
as "Executive").
In consideration of the mutual covenants, terms, conditions, and
agreements herein contained the parties hereby agree to enter into this
Executive Deferred Cash Bonus Plan (hereinafter sometimes referred to as the
"Plan"), as follows:
ARTICLE I
PURPOSES
The purposes of this Plan are: (a) to enable the Bank to retain the
Executive in its employ; and (b) to reward the Executive for the time and
effort he expends in his job and for the success achieved.
ARTICLE II
DEFINITIONS
The terms used in this Plan shall have the following meanings:
(a) "Bonus Account" shall mean the sum of all funds credited to the
Executive's account, pursuant to Article V hereof, plus interest at
the rate of 8% per annum (compounded annually), from the date of
crediting to the date of disbursement pursuant to Article VII hereof.
(b) "Change in Control" shall mean:
(i) the acquisition of ownership, holding or power to vote more than
30% of the Bank's or the Company's voting stock; or
(ii) the acquisition of the ability to control the election of a
majority of the Bank's or the Company's directors; or
1
3
(iii) the acquisition of a controlling influence over the management
or policies of the Bank or the Company by any person or by persons
acting as a "group" (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934); or
(iv) during any period of two consecutive years, individuals (the
"Continuing Directors") who at the beginning of such period constitute
the Board of Directors of the Bank or the Company (the "Existing
Board") cease for any reason to constitute at least two-thirds
thereof, provided that any individual whose election or nomination for
election as a member of the Existing Board was approved by a vote of
at least two-thirds of the Continuing Directors then in office shall
be considered a Continuing Director.
Notwithstanding the foregoing, in the case of (i), (ii) and (iii)
hereof, ownership or control of the Bank by the Company itself shall
not constitute a Change in Control. For purposes of this paragraph
only, the term "person" refers to an individual or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of
entity not specifically listed herein.
Notwithstanding the foregoing, no trust department or other designated
fiduciary or other trustee of such trust department of the Bank or a
subsidiary of the Bank, or other similar fiduciary capacity of the
Bank with direct voting control of the stock shall be included or
considered. Further, no profit-sharing, employee stock ownership,
employee stock purchase and savings, employee pension, or other
employee benefit plan of the Bank or any of its subsidiaries, and no
trustee of any such plan in its capacity as such trustee, shall be
included or considered.
(c) "Change-in-Control Account Value" shall equal the sum of (i) the
Vested Bonus Account reasonably estimated as of the closing date of
the Change in Control, and (ii) the present value, which shall in no
event be less than zero, of the difference between (a) and (b) hereof,
assuming a discount at the current long-term applicable federal rate,
compounded monthly, for a period of 8 years.
(a) The future value determined by assuming that the Vested
Bonus Account determined in accordance with clause (i) above
appreciates for 8 years at a rate equal to 8%.
(b) The future value determined by assuming that the Vested
Bonus Account determined in accordance with clause (i) above
appreciates for 8 years at a rate equal to the current
long-term applicable federal rate (compounded monthly).
(d) "Committee" means the members of the Executive Committee of the Board
of Directors of the Bank who are not participants in this Plan.
(e) "Election Form" shall mean the form attached hereto as Exhibit "A-1".
2
4
(f) "Holding Company" means Mahoning National Bancorp, Inc., which owns
all of the issued and outstanding shares of Bank.
(g) "Permanent Disability" shall mean a situation in which the Executive
is permanently physically or mentally unable to perform his customary
and/or required duties at the Bank. The determination as to whether or
not an Executive is permanently disabled shall be made by the
Committee, and such determination shall be conclusive. Provided,
however, if the Executive is disabled for purposes of the Bank's
disability insurance plan, he shall be conclusively determined to be
disabled under this Plan.
(h) "Retirement" means a severance from the employment of the Bank under
the Bank's qualified benefit plan as constituted at present or as may
be amended hereafter.
(i) "Salary" and or "Pay" shall mean the Executive's annual base
compensation, but does not include other compensation, including, but
not limited to hospitalization, pension benefits, etc.
(j) "Termination Date" means the date of Executive's severance from
employment with the Bank by reason of death, disability, retirement,
resignation, or otherwise.
(k) "Vested Bonus Account" shall equal the value of the Bonus Account
multiplied by the applicable Vesting Percentage set forth in Schedule
A attached hereto.
(l) "Vesting Percentage" shall mean that percentage listed on Schedule A,
which is attached hereto, which corresponds with the age of the
Executive, at any given time. However, advances and or changes in the
vesting schedule with respect to a change in the age of the Executive
shall be made only on December 31 of each calendar year during which
Executive attained the stated age.
ARTICLE III
ADMINISTRATION
(a) The complete and sole administration of this Plan is the
responsibility of those members of the Committee who are not
Participants. No member of the Committee shall be liable for any act
done or determination made in good faith.
(b) The construction and interpretation by the Committee of any provisions
of this Plan shall be final and conclusive. The Committee shall
determine, from time to time, subject to the provisions of this Plan,
the Executives who shall participate in the Plan (sometimes
hereinafter called "Participants").
(c) The Committee may, at its discretion, delegate its duties to the
outside auditors of the Bank, but may not delegate its authority to
apply or interpret the provisions of this Plan or to make
determinations specified in Section (b) of this Article III.
3
5
ARTICLE IV
ESTABLISHMENT OF BONUS ACCOUNT
The Bank shall set up an appropriate record in the name of each
Executive under the Plan, and shall record all activities of this agreement in
the respective Bonus Account of the Executive.
ARTICLE V
CREDITS TO ACCOUNTS OF EXECUTIVES
(a) As of December 31st of each year that the Executive is a full-time
employee of the Bank, the Bank shall credit a monetary amount to
Executive's Bonus Account. The contribution by the Bank each year
shall be a percentage of the Executive's salary as determined by the
return on equity of the Bank for the year pursuant to a schedule to be
established by the Committee no later than the close of the first
quarter of that year.
The ultimate computation of the monetary amount to be credited each
year will be determined by interpolation for performance between the
three levels established (i.e., threshold, target, and distinguished),
and return on equity will be calculated after projected expense
attributable to the incentive pay out. Such determinations shall be
made solely by the Committee and shall be final and binding on all
parties. Provided, however, if the XXX is below the threshold for the
year, then no crediting based on a percentage of pay for the year
shall be made.
(b) On or before January 31st of each year, the Bank shall provide to the
Executive a detail of his Bonus Account as of December 31 of the
previous year. This detail shall include the value of the Vested Bonus
Account.
ARTICLE VI
VESTING
So long as the Executive remains an employee of the Bank, he shall
continue to advance in the vesting schedule attached as Schedule A. Upon the
Executive's termination of employment with the Bank, he shall be permanently
vested according to the percentage given on Schedule A on the same line as his
age on the date of his termination of employment. Provided, however, if the
Executive, while in the employ of the Bank, dies or becomes permanently
disabled, he shall become permanently 100% vested. Moreover, if a Change in
Control shall occur while the Executive remains in the employ of the Bank, the
Executive shall also become permanently 100% vested.
4
6
ARTICLE VII
PAYMENTS OF BENEFITS
(a) Upon termination of any Participant's employment with the Bank, there
shall be paid to him, or in the event of his death to his beneficiary
or beneficiaries designated under Section (b) of this Article VII, an
amount equal to the Vested Bonus Account of such Participant,
determined as of the date of termination of employment of such
Participant. Such amounts shall be payable in equal monthly
installments with interest at the rate of eight percent (8%) per annum
over a period of eight (8) years, the first payment to be made within
two (2) months from Participant's termination date. Such payments will
be reduced by any amounts required by law to be withheld by the Bank.
(b) Each person shall file an Election Form with the Bank's Employee
Benefits Plan Administrator designating one or more beneficiaries to
whom payments otherwise due the Executive shall be made in the event
of his death while in the employ of the Bank or after termination
therefrom. The beneficiary or beneficiaries so designated shall be one
or more persons or entities, including a trust or estate, other than
his creditors, or the creditors of his estate, or an entity in which
any of the foregoing may have an interest. The Executive shall have
the right to change the beneficiary or beneficiaries from time to time
whether before or after termination of employment; provided, however,
that any change shall not become effective until an Election Form is
received by the Employee Benefits Plan Administrator.
If the Executive dies before receiving all amounts payable of his
Vested Bonus Account, then the remaining balance of the Executive's
account shall be distributed in a lump sum to the Executive's
designated beneficiary (or estate, in the absence of a validly named
or living beneficiary) as soon as administratively practicable
following the Executive's death; provided that the Executive may
direct on an Election Form that any death benefits payable pursuant to
this Agreement shall instead be distributed over a distribution period
that effectuates the monthly installment payments selected by the
Executive (with payments made as though the Executive survived to
collect all payments, and terminated service on the date of his death
if payments had not previously begun).
ARTICLE VIII
RESTRICTIONS UPON FUNDING
(a) The Bank shall have no obligation to set aside, earmark or entrust any
fund or money with which to pay its obligations under this Agreement.
The Executive, his beneficiaries or any successor in interest to him
shall be and remain simply a general creditor of the Bank in the same
manner as any other creditor having a general claim for matured and
unpaid compensation.
(b) Subject to subsection (d) hereof, the Bank reserves the absolute right
in its sole discretion to either fund the obligations undertaken by
this Agreement or to refrain
5
7
from funding the same and to determine the extent, nature, and method
of such funding. Should the Bank elect to fund this Agreement, in
whole or in part, through the purchase of life insurance, mutual
funds, disability policies or annuities, the Bank reserves the
absolute right, in its sole discretion, to terminate such funding at
any time, in whole or in part. At no time shall Executive be deemed to
have any lien nor right, title or interest in or to any specific
funding investment or to any assets of the Bank.
(c) If Bank elects to invest in a life insurance, disability or annuity
policy upon the life of Executive, then Executive shall assist the
Bank by freely submitting to a physical exam and supplying such
additional information necessary to obtain such insurance or
annuities.
(d) Not later than ten business days before the closing date of
a Change in Control, the Bank shall --
(i) deposit in a grantor trust (the "Trust") that is designed in
accordance with Revenue Procedure 92-64 and has a trustee
independent of the Bank and the Company an amount equal to
the Change-in-Control Account Value, unless the Executive has
previously provided a written release of any claims under
this Agreement, and
(ii) provide the trustee of the Trust with a written direction to
hold said amount and any investment return thereon in a
segregated account for the benefit of the Executive, and to
follow the payment schedule to be provided by the Executive,
based on this Agreement and the Executive's Election Form, as
to the payment of amounts from the Trust.
Upon the Trust's final payment of all amounts due under this Section
(d) of Article VIII, the trustee of the Trust shall pay to the Bank
the entire balance remaining in the segregated account maintained for
the benefit of the Executive. The Executive shall thereafter have no
further interest in the Trust.
ARTICLE IX
MISCELLANEOUS
(a) Neither Executive, his widow nor any other beneficiary under this
Agreement shall have any power or right to transfer, assign,
anticipate, hypothecate, mortgage, commute, modify or otherwise
encumber in advance any of the benefits payable hereunder, nor shall
any of said benefits be subject to seizure for the payment of any
debts, judgments, alimony or separate maintenance owed by the
Executive or his beneficiary, nor be transferable by operation of law
in the event of bankruptcy, insolvency or otherwise. In the event
Executive or any beneficiary attempts assignment, commutation,
hypothecation, transfer or disposal of the benefits hereunder, the
Bank's liabilities shall forthwith cease and terminate. However, in
such event, the Committee may, in its sole discretion, from time to
time, make payments of amounts which would otherwise be due the
Executive hereunder, to such Executive.
6
8
(b) The Bank expressly agrees that it shall not merge or consolidate into
or with another Bank or sell substantially all of its assets to
another corporation, firm or person until such corporation, firm or
person expressly agrees, in writing, to assume and discharge the
duties and obligations of the Bank under this Agreement. This
Agreement shall be binding upon the parties hereto, their successors,
beneficiaries, heirs and personal representatives.
(c) It is agreed by and between the parties hereto that, during the
lifetime of the Executive, this Agreement may be amended or revoked at
any time or times, in whole or in part, by the mutual written assent
of the Executive and the Bank.
(d) Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or neuter gender, whenever they should so apply.
(e) Nothing contained in this Agreement shall affect the right of the
Executive to participate in or be covered by any qualified or
non-qualified pension, profit sharing, group, bonus or other
supplemental compensation or fringe benefit plan constituting a part
of the Bank's existing or future compensation structure.
(f) Headings and Subheadings in this Agreement are inserted for reference
and convenience only and shall not be deemed a part of this Agreement.
(g) The validity and interpretation of this Agreement shall be
governed by the laws of the State of Ohio.
ARTICLE X
ERISA PROVISIONS
(a) The "Named Fiduciary and Plan Administrator" of this Plan shall be the
Bank's Employee Benefits Plan Administrator until his resignation or
removal by the Committee. As named Fiduciary and Administrator, the
Employee Benefits Plan Administrator shall be responsible for the
management, control and administration of the Executive Deferred Cash
Bonus Plan as established herein. He may delegate to others certain
aspects of the management and operation responsibilities of the Plan
including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
(b) In the event that benefits under this Plan Agreement are not paid to
the Executive (or to his beneficiary in the case of the Executive's
death) and such claimants feel they are entitled to receive such
benefits, then a written claim must be made to the Named Fiduciary and
Plan Administrator named above within sixty (60) days from the date
payments are refused. The Named Fiduciary and Plan Administrator and
the Bank shall review the written claim and if the claim is denied, in
whole or in part, they shall provide in writing within ninety (90)
days of receipt of such claim their specific
7
9
reasons for such denial, reference to the provisions of this Agreement
upon which the denial is based and any additional material or
information necessary to perfect the claim. Such written notice shall
further indicate the additional steps to be taken by claimants for a
further review of the claim denial if the Named Fiduciary and Plan
Administrator fails to take any actions within the aforesaid
ninety-day period.
If claimants desire a second review, they shall notify the Named
Fiduciary and Plan Administrator in writing within sixty (60) days of
the first claim denial. Claimants may review the Plan Agreement or any
documents relating thereto and submit any written issues and comments
they may feel appropriate. In its sole discretion, the Named Fiduciary
and Plan Administrator shall then review the second claim and provide
a written decision within sixty (60) days of receipt of such claim.
This decision shall likewise state the specific reasons for the
decision, and shall include reference to specific provisions of the
Plan Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon
completed performance of the Agreement or the meaning and effect of
the terms and conditions thereof, then claimants may submit the
dispute to a Board of Arbitration for final arbitration. Said Board
shall consist of one member selected by the claimant, one member
selected by the Bank and the third member selected by the first two
members. The Board shall operate under any generally recognized set of
arbitration rules. The parties hereto agree that they and their heirs,
personal representatives, successors and assigns shall be bound by the
decision of such Board with respect to any controversy properly
submitted to it for determination.
ARTICLE XI
REIMBURSEMENT OF EXECUTIVE FOR ENFORCEMENT PROCEEDINGS
In the event that any dispute arises between the Executive and the
Bank as to the terms or interpretation of this Agreement, whether instituted by
formal legal proceedings or otherwise, including any action that the Executive
takes to defend against any action taken by the Bank or the Company, the Bank
shall reimburse the Executive for all costs and expenses, including reasonable
attorneys' fees, arising from such dispute, proceedings or actions, provided
that the Executive obtains either a written settlement or a final judgement by
a court of competent jurisdiction substantially in his favor. Such
reimbursement shall be paid within ten days of Executive's furnishing to the
Bank written evidence, which may be in the form, among other things, of a
canceled check or receipt, of any costs or expenses incurred by the Executive.
8
10
IN WITNESS WHEREOF, the parties hereto acknowledge that each has
carefully read this Agreement and executed the originals thereof on the day and
year first herein above written.
ATTEST: THE MAHONING NATIONAL BANK
OF YOUNGSTOWN
/s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxx
---------------------------- -------------------------------
Its SVP and Cashier Its duly authorized Director
WITNESS:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. XxXxxxx
---------------------------- -------------------------------
Xxxxxx X. XxXxxxx
9
11
SCHEDULE "A"
THE MAHONING NATIONAL BANK OF YOUNGSTOWN
EXECUTIVE DEFERRED CASH BONUS PLAN
Vesting Schedule for Xxxxxx X. XxXxxxx
---------------------------- ---------------------------- -------------------------------
Age on 12/31 Preceding Retirement & Termination Death, Permanent
Termination of Employment Vesting Schedule Disability or
Change in Control
---------------------------- ---------------------------- -------------------------------
60 20% 100%
---------------------------- ---------------------------- -------------------------------
61 40% 100%
---------------------------- ---------------------------- -------------------------------
62 60% 100%
---------------------------- ---------------------------- -------------------------------
63 80% 100%
---------------------------- ---------------------------- -------------------------------
64 and over 100% 100%
---------------------------- ---------------------------- -------------------------------
10
12
EXHIBIT "A-1"
THE MAHONING NATIONAL BANK OF YOUNGSTOWN
EXECUTIVE DEFERRED CASH BONUS PLAN
-------------------------------
ELECTION FORM
-------------------------------
AGREEMENT, made this ____ day of ________, 19__, by and between Xxxxxx
X. XxXxxxx (the "Executive") and The Mahoning National Bank of Youngstown (the
"Bank") with respect to distribution of the benefits pursuant to The Mahoning
National Bank of Youngstown Executive Deferred Cash Bonus Plan (the "Plan")
entered into by the parties on September 15, 1997.
NOW THEREFORE, it is mutually agreed as follows:
1. In the event of the Executive's death, his account shall be
distributed:
____ in one lump sum payment.
____ in substantially equal monthly payments over a
period of _____ years (no more than 15). Payments
would be made as though the Executive survived to
collect all benefits, and as though the Executive
terminated service on the date of his death, if
payments had not already begun.
2. PRIMARY BENEFICIARY. The Executive hereby designates the person(s)
named below to be his primary beneficiary and to receive any distributions that
become payable, after the Executive's death, under the Plan:
======================== ==================== =======================
Name of Mailing Address Percentage of
Primary Beneficiary Death Benefit
------------------------ -------------------- -----------------------
%
------------------------ -------------------- -----------------------
%
======================== ==================== =======================
13
Election Form
Page 2
3. CONTINGENT BENEFICIARY. In the event that the primary beneficiary
or beneficiaries named above are not living at the time any distributions
become payable to them under the Plan, the Executive hereby designates the
following person(s) to be his contingent beneficiary:
========================= ===================== =====================
Name of Mailing Address Percentage of
Contingent Beneficiary Death Benefit
------------------------- --------------------- ---------------------
%
------------------------- --------------------- ---------------------
%
========================= ===================== =====================
4. EFFECT OF ELECTION. The Executive may, by submitting an effective
superseding Election Form at any time and from time to time, prospectively
change the beneficiary designation and the manner of payment to a beneficiary.
Such elections shall, however, become irrevocable upon the Executive's death.
5. MUTUAL COMMITMENTS. The Bank agrees to make payment of all amounts
due the Executive in accordance with the terms of the Plan regarding the
elections made by the Executive herein. The Executive agrees to be bound by the
terms of the Plan, as in effect on the date hereof or properly amended
hereafter.
IN WITNESS WHEREOF, the parties hereto acknowledge that each has
carefully read this Agreement and executed the originals thereof on the day and
year first hereinabove written.
ATTEST: THE MAHONING NATIONAL BANK
OF YOUNGSTOWN
By
---------------------------- -----------------------------
Its SVP and Cashier Its duly authorized Director
WITNESS:
---------------------------- -----------------------------
Xxxxxx X. XxXxxxx
