1
Mahoning National Bancorp, Inc.
Form 10-Q
Item 6(a)
Exhibit 10(b)
Executive Phantom Stock Bonus Plan
Xxxxx Xxxxxx
2
EXECUTIVE PHANTOM STOCK 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. Xxxxx Xxxxxx (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 Phantom Stock 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) "Aggregate Phantom Stock Account Value" shall mean the sum of the
Phantom Stock Account Value plus all distributions made to the
Executive pursuant to Article VII, Section (c), prior to the date said
Executive terminates his employment with the Bank.
(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 Net
Vested Account Value 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 15 years.
(a) The future value determined by assuming that the Net Vested
Account Value determined in accordance with clause (i) above
appreciates for 15 years at a rate equal to 8%.
(b) The future value determined by assuming that the Net Vested
Account Value determined in accordance with clause (i) above
appreciates for 15 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.
2
4
(e) "Common Stock" and/or "Shares" shall mean shares of common stock of
Mahoning National Bancorp, Inc..
(f) "Election Form" shall mean the form attached hereto as Exhibit "A-1".
(g) "Holding Company" means Mahoning National Bancorp, Inc., which owns
all of the issued and outstanding shares of Bank.
(h) "Net Vested Account Value" shall mean the Vested Account Value minus
the aggregate of all distributions to the Participant pursuant to
Article VII, Section (c).
(i) "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.
(j) "Phantom Stock Account Value" means the number of Phantom Shares
credited to a Participant's account multiplied by the average fair
market value, over the 10 business days preceding the date of any
valuation, of the Common Stock of Mahoning National Bancorp, Inc.
Notwithstanding the foregoing, in the event of the sale or merger of
the Holding Company, the sale or merger price of the Common Stock
shall determine the Executive's Phantom Stock Account Value.
(k) "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.
(l) "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.
(m) "Termination Date" means the date of Executive's severance from
employment with the Bank by reason of death, disability, retirement,
resignation, or otherwise.
(n) "Vested Account Value" shall equal the Aggregate Phantom Stock Account
Value multiplied by the applicable Vesting Percentage set forth in
Schedule A attached hereto.
(o) "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.
3
5
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.
ARTICLE IV
ESTABLISHMENT OF PHANTOM STOCK ACCOUNT
The Bank shall set up an appropriate record (hereinafter called the
"Phantom Stock Account") in the name of each Executive under the Plan, and
shall record all activities of this agreement in the respective Phantom Stock
Accounts of each 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 number of Phantom Shares
of the Holding Company to the account of each Executive. The number of
Phantom Shares to be credited each year shall be determined by
dividing the Bank's contribution by the fair market value of the
Holding Company's Common Stock as of the date of crediting (December
31). 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 number of Phantom Shares 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. Determination
of the number of Phantom Shares shall be 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.
4
6
(b) So long as this Plan remains in effect, the Bank shall credit each
Participant's account in the special ledger throughout the term of his
employment with the Bank. Phantom Shares equivalent to dividends
payable in cash or property paid from time to time on issued and
outstanding shares of Common Stock, so that the amount of each such
credit will be equivalent to dividends which the Participant would
have received had he been the owner of the number of shares of Common
Stock equal to the number of Phantom Shares in his account. No such
credit shall be made with respect to any dividend paid after a
Participant's termination of employment or after any date of
termination of this Plan, even though the record date is prior
thereto.
(c) In the event of any stock dividend on the Common Stock or any split-up
or combination of shares of the Common Stock, appropriate adjustments
shall be made by the Committee in the aggregate number of Phantom
Shares in the account of the Participant. However, the Committee shall
not be required to establish any fractional Phantom Shares.
(d) On or before January 31st of each year, the Bank shall provide to each
Executive a detail of his Phantom Share Account as of December 31 of
the previous year. This detail shall include the number of Phantom
Shares in the Executive's account, and the Net Vested Account Value.
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.
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 Net Vested Account Value of such Participant,
determined in accordance with the valuation formula set forth in
Article II, Section (j) as of the date of termination of employment of
such Participant. Such amounts will be reduced by any amounts required
by law to be withheld by the Bank. Such amounts with interest at the
rate of eight percent (8%) per annum shall be distributed in the
manner elected by the Executive on an Election Form accepted by the
5
7
Bank. The Executive may elect (1) to begin receiving distributions
from his account on EITHER the first day of the second month after
termination of service with the Bank OR the first day of second month
of the calendar year immediately after termination of service with the
Bank and (2) to receive his benefits in either a lump-sum or in
substantially equal monthly installments over a period up to 15 years.
In order to be effective with respect to the timing of distributions,
the Executive's Election Form must be submitted to the Bank EITHER
more than one year before the date on which the Executive's service
with the Bank terminates for any reason OR within 30 days of the
Plan's Effective Date. In the absence of a validly completed Election
Form, the Executive's account shall be paid in 60 substantially equal
monthly payments beginning on the first day of the second month after
termination of service with 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 Net Vested Account Value, 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).
(c) At the time of the college education of a child of an
Executive, an amount of money equal to the actual expenses
associated with such child's education may, upon application
of the Executive, be disbursed for such purposes by the
Committee, in the Committee's sole discretion, from the Net
Vested Account Value of the Executive's Phantom Stock
Account.
6
8
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 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.
7
9
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.
(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.
8
10
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 Phantom Stock
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 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.
9
11
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.
10
12
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/ Xxxxx Xxxxxx
---------------------------- ----------------------------
Xxxxx Xxxxxx
11
13
SCHEDULE "A"
THE MAHONING NATIONAL BANK OF YOUNGSTOWN
EXECUTIVE PHANTOM STOCK BONUS PLAN
Vesting Schedule for Xxxxx Xxxxxx
--------------------------- -------------------------- ------------------------
Age on 12/31 Preceding Retirement & Termination Death, Permanent
Termination of Employment Vesting Schedule Disability or
Change in Control
--------------------------- -------------------------- ------------------------
39 5.9% 100%
--------------------------- -------------------------- ------------------------
40 11.8% 100%
--------------------------- -------------------------- ------------------------
41 17.7% 100%
--------------------------- -------------------------- ------------------------
42 23.6% 100%
--------------------------- -------------------------- ------------------------
43 29.5% 100%
--------------------------- -------------------------- ------------------------
44 35.4% 100%
--------------------------- -------------------------- ------------------------
45 41.3% 100%
--------------------------- -------------------------- ------------------------
46 47.2% 100%
--------------------------- -------------------------- ------------------------
47 53.1% 100%
--------------------------- -------------------------- ------------------------
48 59.0% 100%
--------------------------- -------------------------- ------------------------
49 64.9% 100%
--------------------------- -------------------------- ------------------------
50 70.8% 100%
--------------------------- -------------------------- ------------------------
51 76.7% 100%
--------------------------- -------------------------- ------------------------
52 82.6% 100%
--------------------------- -------------------------- ------------------------
53 88.5% 100%
--------------------------- -------------------------- ------------------------
54 94.4% 100%
--------------------------- -------------------------- ------------------------
55 and over 100% 100%
--------------------------- -------------------------- ------------------------
12
14
EXHIBIT "A-1"
THE MAHONING NATIONAL BANK OF YOUNGSTOWN
EXECUTIVE PHANTOM STOCK BONUS PLAN
-------------------------------
ELECTION FORM
-------------------------------
AGREEMENT, made this ____ day of ________, 19__, by and between the
undersigned executive (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 Phantom Stock Bonus Plan
(the "Plan") entered into by the parties on September 15, 1997.
NOW THEREFORE, it is mutually agreed as follows:
1. FORM OF PAYMENT. The Executive elects to have his account
distributed as follows:
____ in one lump sum payment.
____ in substantially equal monthly payments over a
period of _____ years (no more than 15).
The Executive must make this election either at least one year before
terminating his service with the Bank or by October 15, 1997 in order for it to
be valid and supersede a prior election.
2. The Executive elects to have distributions from his account begin:
____ on the first day of the second month immediately
following the date in which the Executive ceases
service with the Bank.
____ on the first day of the second month of the calendar
year immediately following the year in which the
Executive ceases service with the Bank.
3. In the event of the Executive's death, his account shall be
distributed:
____ in one lump sum payment.
____ in accordance with the payment schedule
selected in paragraph 1 hereof (with
payments 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).
15
Election Form
Page 2
4. 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
----------------------- --------------------- --------------------
%
----------------------- --------------------- --------------------
%
======================= ===================== ====================
5. 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
-------------------------- ------------------- ----------------------
%
-------------------------- ------------------- ----------------------
%
========================== =================== ======================
6. EFFECT OF ELECTION. The elections made in paragraph 1 hereof shall
become IRREVOCABLE one year prior to the Executive's termination of service.
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.
7. 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.
16
Election Form
Page 3
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:
-------------------------- --------------------------
Executive
