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Exhibit 10(d)
EXECUTIVE SALARY CONTINUATION AGREEMENT
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The Agreement, made and entered into this 7th day of December , 1994
by and between Unity Savings Bank, an Ohio Bank (hereinafter called "the
Bank"), and Xxxxxx Xxxx (hereinafter called "the Executive").
WITNESSETH:
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The Executive has been and continues to be a valued Executive of the
Bank, and is now serving the Bank as its President; and,
It is the consensus of the Board of Directors that the Executive's
services to the Bank in the past have been of exceptional merit and have
constituted an invaluable contribution to the general welfare of the Bank and
in bringing it to its present status of operating efficiency, and its present
position in its field of activity; and,
The experience of the Executive, his knowledge of the affairs of the
Bank, his reputation and contacts in the industry are so valuable that
assurance of his best continued interests to the Bank to arrange terms of
continued employment for the Executive so as to reasonably assure his remaining
in the Bank's employment during his lifetime or until the age of retirement;
and,
It is the desire of the Bank that his services be retained as herein
provided; and,
The Executive is willing to continue in the employ of the Bank
provided the Bank agrees to pay to him or his beneficiaries certain benefits in
accordance with the terms and conditions hereinafter set forth:
Accordingly, it is the desire of the Bank and the Executive to enter
into this Agreement under which the Bank will agree to make certain payments to
the Executive at retirement or his beneficiary in the event of his premature
death while employed by the Bank; and,
Furthermore, it is the intent of the parties hereto that this
Agreement be considered an unfunded arrangement maintained primarily to provide
supplemental benefits for the Executive, as a member of a select group of
management or highly compensated employees of the Bank for the purposes of the
Employee Retirement Income Security Act of 1974, (ERISA):
Now therefore, in consideration of services performed in the past and
to be performed in the future as well as of the mutual promises and covenants
herein contained it is agreed as follows:
I. EMPLOYMENT
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The Bank agrees to employ the Executive in such capacity as the Bank
may from time to time determine. The Executive will continue in the
employ of the Bank in such capacity and with such duties and
responsibilities as may be assigned to him, and with such
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compensation as may be determined from time to time by the Board of
Directors of the Bank. Active employment shall include temporary
disability not to exceed six months and other "leave of absences"
specifically granted by the Board of Directors.
II. FRINGE BENEFITS
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The salary continuation benefits provided by this Agreement are
granted by the Bank as a fringe benefit to the Executive and are not
part of any salary reduction plan or an arrangement deferring a bonus
or a salary increase. The Executive has no option to take any current
payment or bonus in lieu of these salary continuation benefits except
as set forth hereinafter.
III. RETIREMENT DATE
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If the Executive remains in the continuous employ of the Bank, he
shall retire from active employment with the Bank on the December
31st nearest his sixty-fifth (65th) birthday.
IV. RETIREMENT BENEFIT AND POST-RETIREMENT DEATH BENEFIT
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Commencing with the first day of the month following the date of
retirement, (Paragraph III above), the Bank shall pay the Executive
an annual benefit equal to $36,000 in equal monthly installments (of
1/12 of the annual benefit) for a period of two hundred twelve (212)
months, provided that if less than two hundred twelve (212) such
monthly payments have been made prior to the death of the Executive,
the Bank shall continue such monthly payments to whomever the
Executive shall have designated in writing and filed with the Bank,
until the full number of two hundred twelve (212) monthly payments
have been made. In the absence of any effective designation of
beneficiary, any such amounts becoming due and payable upon the death
of the Executive shall be payable to the duly qualified executor or
administrator of his estate.
V. DEATH BENEFIT PRIOR TO RETIREMENT
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In the event the Executive should die while actively employed by the
Bank at any time after the date of this Agreement but prior to his
attaining the age of sixty-five (65) years (or such later date as may
be agreed upon), the Bank will pay an annual benefit equal to $67,483
in equal monthly installments (each equal to 1/12 of the annual
benefit) for a period of one hundred eighty (180) months to such
individual or individuals as the Executive may have designated in
writing and filed with the Bank. The said monthly payments shall
begin the first day of the third month following the month of the
decease of the Executive. In the absence of any effective designation
of beneficiary, any such amounts becoming due and payable upon the
death of the Executive shall be payable to the duly qualified
executor or administrator of his estate. Provided, however, that
anything hereinabove to the contrary
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notwithstanding, no death benefit shall be payable hereunder if it is
determined that the Executive's death was caused by suicide on or
before June 9, 1996.
VI. BENEFIT ACCOUNTING
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The Bank shall account for this benefit using the regulatory
accounting principles of the Bank's primary federal regulator. The
Bank shall establish an accrued liability retirement account for the
Executive into which appropriate reserves shall be accrued in the
amount determined by the Bank's certified public accounting firm.
VII. VESTING
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The Executive's interest in the benefits shall be vested at a rate of
ten percent (10%) per year of service subsequent to the effective
date of this agreement.
VIII. OTHER TERMINATION OF EMPLOYMENT
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In the event that the employment of the Executive shall terminate
prior to retirement from active employment, as provided in Paragraph
III, by his voluntary action, or by his discharge by the Bank, the
Bank shall pay to the Executive as severance compensation an amount
of money equal to the accrued balance of the Executive's liability
reserve account. This severance compensation shall be paid in one
hundred eighty (180) equal annual installments with interest equal to
the one year treasury xxxx as the date of termination.
In the event the Executive's death should occur after such severance
but prior to the completion of the monthly payments provided for in
this Paragraph VIII, the remaining installments shall be paid to such
individual or individuals as the Executive may have designated in
writing, and filed with the Bank. In the absence of any effective
designation of beneficiary, any such amounts shall be payable to the
duly qualified executor or administrator of his estate.
IX. PARTICIPATION IN OTHER PLANS
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The benefits provided hereunder shall be in addition to the
Executive's annual salary as determined by the Board of Directors,
and shall not affect the right of the Executive to participate in any
current or future Bank Retirement Plan, group insurance, bonus, or in
any supplemental compensation arrangement which constitutes a part of
the Bank's regular compensation structure.
X. CHANGE IN CONTROL
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In the event there is a change in control of the ownership of the
Bank the Executive shall become one hundred percent (100%) vested for
the purposes of Paragraph VIII hereinabove.
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Change in control is defined for these purposes as the cumulative
transfer to any party other than current shareholders, from the date
of this Agreement, of more than fifty percent (50%) of the stock of
the Bank. For these purposes, transactions between family members
shall be disregarded and transfers on account of death or as a gift
shall also be disregarded.
XI. ALIENABILITY
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It is agreed that neither the Executive, nor his spouse, nor any
other designee, shall have any right to commute, sell, assign,
transfer or otherwise convey the right to receive any payments
hereunder, which payments and the right thereto are expressly
declared to be non-assignable and non-transferable; and, in the event
of any attempted assignment or transfer, the Bank shall have no
further liability hereunder.
XII. RESTRICTIONS ON FUNDING
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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 Bank reserves the absolute right at its sole
discretion to either fund the obligations undertaken by this
Agreement or to refrain from funding the same and determine the
extent, nature, and method of such funding.
XIII. GENERAL ASSETS OF THE BANK
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The rights of the Executive under this Agreement and of any
beneficiary of the Executive shall be solely those of an unsecured
creditor of the Bank. If the Bank shall acquire an insurance policy
or any other asset in connection with the liabilities assumed by it
hereunder, it is expressly understood and agreed that neither the
Executive nor any beneficiary of the Executive shall have any right
with respect to, or claim against, such policy or other asset. Such
policy or asset shall not be deemed to be held under any trust for
the benefit of the Executive or his beneficiaries or to be held in
any way as collateral security for the fulfilling of the obligations
of the Bank under this Agreement. It shall be, and remain, a general,
unpledged, unrestricted asset of the Bank and the Executive or any of
his beneficiaries shall not have a greater claim to the insurance
policy or other assets, or any interest in either of them, than any
other general creditor of the Bank.
XIV. REORGANIZATION
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The Bank will not merge or consolidate with any other company or
organization, or permit its business activities to be taken over by
any other organization, unless the new entity expressly acknowledges
its obligations under this Agreement and abide by its terms.
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XV. AMENDMENT
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This Agreement may be amended in whole or in part from time to time
by the Employer, but only in writing.
XVI. NOT A CONTRACT OF EMPLOYMENT
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This Agreement shall not be deemed to constitute a contract of
employment between the parties hereto, nor shall any provision hereof
restrict the right of the Bank to discharge the Executive, or
restrict the right of the Executive to terminate his employment.
XVII. HEADINGS
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Headings and subheadings of this Agreement are inserted for reference
and convenience only and shall not be deemed a part of this
Agreement.
XVIII. APPLICABLE LAW
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The validity and interpretation of this Agreement shall be governed
by the laws of the State of Ohio.
XIX. EFFECTIVE DATE
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The effective date of this Agreement shall be December 7, 1994.
XX. CLAIMS PROCEDURE AND ARBITRATION
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A. Named Fiduciary and Plan Administrator
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The "Named Fiduciary and Plan Administrator" of this plan
shall be Xxxxx Xxxxx Xxxx until his resignation or removal
by the Board of Directors. As Named Fiduciary for the
management, control and administration of the Executive
Salary Continuation Agreement 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 a dispute arises over benefits under this Plan
Agreement and benefits are not paid to the Executive (or to
his beneficiary(ies) 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 Fiduciary
and Administrator named above within sixty (60) days from
the date payments are refused. The Plan Fiduciary and
Administrator and the Bank shall review the written claim
and if the claim is denied,
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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 if a further review of the claim
denial is desired. A claim shall be deemed denied if the
Plan Fiduciary and Administrator fails to take any action
within the aforesaid ninety-day period.
If claimants desire a second review, they shall notify the
Plan Fiduciary and 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 Plan Fiduciary and
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 Bank, one member selected by
claimant, 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.
Where a dispute arises as to the Bank's discharge of the
Executive "for cause", such dispute shall likewise be
submitted to arbitration as above described and the parties
hereto agree to be bound by the decision thereunder.
In witness whereof, the Bank has caused this Agreement to be signed
in its corporate name by its duly authorized officers, and the Executive
hereunto set his hand, all on the day and year first above written.
UNITY SAVINGS BANK
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxx Xxxx
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Witness Title Executive President
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxx
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Witness Xxxxx Xxxxx Xxxx
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BENEFICIARY DESIGNATION FORM
PRIMARY DESIGNATION:
Name Relationship
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Xxxxxxxx X. Xxxx Wife
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CONTINGENT DESIGNATION:
Xxxxx Xxxxx Xxxx Son
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Xxxxx Xxxxx Xxxx Son
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Xxxx Xxxxxxxx Xxxx Son
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/s/ Xxxxxx X. Xxxx December 7, 1994
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Xxxxxx Xxxx Date
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