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10.17 DEFERRED COMPENSATION AGREEMENT BY AND BETWEEN SECOND BANCORP AND XXXX X.
BLOSSOM, DATED DECEMBER 6, 1999.
DEFERRED COMPENSATION AGREEMENT
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THIS AGREEMENT, made and entered into this _____ day of
_______________, 1999, by and between Second Bancorp, Incorporated, an Ohio
corporation, with principal offices and place of business in the State of Ohio
(hereinafter referred to as the "Corporation"), The Second National Bank of
Xxxxxx, a wholly owned subsidiary of Second Bancorp, Incorporated (hereinafter
referred to as the "Bank"), and Xxxx X. Blossom, an individual residing in the
State of Ohio (hereinafter referred to as the "Executive"),
WITNESSETH THAT:
WHEREAS, the Executive is employed by the Corporation; and
WHEREAS, the Corporation recognizes the valuable services
heretofore performed for it by the Executive and wishes to encourage his
continued employment; and
WHEREAS, the Executive wishes to be assured that he will be
entitled to a certain amount of additional compensation for some definite period
of time from and after his retirement from active service with the Corporation
or other termination of his employment and that his beneficiary will be entitled
to a similar death benefit from and after the Executive's death; and
WHEREAS, the Bank and Executive entered into a Letter of
Intent dated _______________, 1999 (the "Letter of Intent"), which promised
Executive certain retirement benefits in addition to those provided under the
Bank's qualified pension plan; and
WHEREAS, the Corporation and Executive desire to enter into
this Agreement in order to provide to Executive the benefit contemplated by the
parties at the time of execution of the Letter of Intent without regard to the
limitations imposed on the Executive's benefit pursuant to Sections 415 and
401(a)(17) of the Code; and
WHEREAS, the parties hereto wish to provide the terms and
conditions upon which the Corporation shall pay such additional compensation to
the Executive after his retirement or other termination of his employment or
death benefit to his beneficiary after the Executive's death; and
WHEREAS, the parties hereto intend that this Agreement be
considered an unfunded arrangement, maintained primarily to provide deferred
compensation benefits for the
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Executive, a member of a select group of management or highly compensated
employees of the Corporation, for purposes of the Employee Retirement Security
Act of 1974, as amended;
NOW, THEREFORE, in consideration of the premises and of the
mutual promises herein contained, the parties hereto agree as follows:
1. DEFINITION OF TERMS.
a. For purposes of this Agreement, the following terms
shall be defined as set forth in this Section 1:
1.1 "Change in Control" shall be deemed to have occurred
if and when:
a. Any person or group of persons acting in
concert and not presently in control of the
Corporation shall have acquired ownership of
or the right to vote or to direct the voting
of shares of capital stock of the
Corporation representing 51% or more of the
total voting power of the Corporation, or
b. The Corporation shall have merged into or
consolidated with another corporation, or
merged another corporation into the
Corporation, on a basis whereby less than a
majority of the total voting power of the
surviving corporation is represented by
shares held by former shareholders of the
Corporation immediately prior to such merger
or consolidation, or
c. The Corporation shall have sold
substantially all of its assets to another
corporation or other entity or person.
1.2 "Disability Plan" shall mean the long term
disability plan of the Bank currently in effect.
1.3 "Discharge for Cause" shall mean the termination of
Executive's employment with the Corporation or Bank
due to (i) Executive's conviction of either a felony
involving moral turpitude or any crime in connection
with his employment; or (ii) actions by Executive as
an executive officer which are prohibited or contrary
to law, or contrary to the best interests of the
Corporation or Bank;
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or (iii) Executive's willful failure to take actions
permitted or required by law and necessary to
implement policies of the Board which the Board has
communicated to him in writing; or (iv) Executive's
continued failure to attend to his duties as an
executive officer as set forth in his Employment
Agreement; or (v) any condition which either resulted
from Executive's habitual drunkenness or addiction to
narcotics, or resulted from any intentionally
self-inflicted injury.
1.4 "Early Retirement" shall mean the termination of
employment of the Executive after he has attained age
fifty-five (55) and has completed such years of
continued employment with the Bank as may be required
for early retirement under the Retirement Plan
computed as if Executive had completed an additional
one (1) year of continuous employment for every full
two (2) year period of continuous employment with the
Bank on or as of the date of his retirement. In the
event of a Change in Control to which Section 1.1 of
this Agreement applies, the number of years of
continuous employment as calculated in this Section
1.4 shall be increased by an additional five (5)
years of continuous employment with the Bank on or as
of the date of Executive's retirement.
1.5 "Normal Retirement Date" shall mean the last day of
the month coincident with Executive's date of
retirement or attainment of age sixty-five (65)
whichever occurs first.
1.6 "Retirement Plan" shall mean The Employees'
Retirement Plan of The Second National Bank of
Xxxxxx, as amended from time to time.
1.7 "Retirement Plan Benefit" shall mean any amount
payable under the Retirement Plan in effect at the
Early or Normal Retirement Date of Executive.
1.8 "Deferred Compensation Benefit" shall mean the amount
payable to Executive under this Agreement and more
fully discussed in the October 13, 1999, letter from
Xxxxxx Xxxxx which is attached hereto as Exhibit A.
2. RETIREMENT BENEFIT.
a. From and after termination of the Executive's employment,
other than by reason of his death, whether by retirement of the Executive from
the active service of the
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Corporation or otherwise, the Corporation shall thereafter pay the Executive,
commencing on the date of the termination of employment, a Deferred Compensation
Benefit in an amount determined pursuant to the following formula:
(1) The Retirement Plan Benefit which would have been
payable to Executive, computed as if he had completed
an additional one (1) year of continuous employment
for every full two (2) year period of continuous
employment with the Corporation on or as of the date
of his retirement, and as if the Retirement Plan did
not contain limitations imposed on the Executive's
Retirement Plan Benefit pursuant to Sections 415 and
401(a)(17) of the Code;
(2) Minus the sum of (a) the Executive's Retirement Plan
Benefit, and (b) the accrued benefits payable to
Executive under the First Financial Bancorp
Employees' Pension Plan at retirement.
For purposes of the above calculations only, the
Retirement Plan Benefit shall not be reduced for
early commencement.
Benefits payable under the Agreement shall be paid
either on a 10-Year Certain and Life, 50% Joint and
Survivor, 75% Joint and Survivor, or 100% Joint and
Survivor basis, as elected by the Executive. Forms of
payment shall be reduced actuarially in accordance
with the Retirement Plan.
(For illustrative purposes, an example of the
calculation of the Deferred Compensation Benefit as
of September 5, 2005, is attached hereto as Exhibit
B.)
b. In the event of the Executive's death after termination of
his employment, the Corporation shall provide the Deferred Compensation Benefit
to Executive's spouse and family in the form of payment as he shall have elected
under the Retirement Plan, but calculated in accordance with this Agreement.
c. In the event that the employment of Executive is terminated
by the Corporation within one (1) year after a Change in Control occurs, and at
such Change in Control Executive is less than sixty-five (65) years old, the
Corporation shall pay Executive the benefit defined in paragraph 2(a) above,
except that the Retirement Plan Benefit which shall be paid to Executive shall
be computed as if he had completed an additional five (5) years of continuous
employment with the Corporation and an additional one (1) year of continuous
employment for
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every full two (2) year period of continuous employment with the Corporation on
or as of the date of his retirement.
3. DEATH BENEFIT.
a. In the event of the death of the Executive while employed
by the Corporation, the Deferred Compensation Benefit shall be paid to
Executive's spouse and family in the form of payment as he shall have elected
under the Retirement Plan.
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b. If no such election has been received by the Corporation
from the Executive prior to his death, the Deferred Compensation Benefit shall
be paid in the manner and form of payment in accordance with the terms of the
Retirement Plan.
4. NON-COMPETITION DURING EMPLOYMENT. In consideration of the
foregoing agreements of the Corporation and of the payments to be made by the
Corporation pursuant thereto, the Executive hereby agrees that, so long as he
remains employed by the Corporation, he will devote substantially all of his
time, skill, diligence, and attention to the business of the Corporation, and
will not actively engage, either directly or indirectly, in any business or
other activity which is or may be deemed to be in any way competitive with or
adverse to the best interests of the business of the Corporation.
5. NO TRUST CREATED. Nothing contained in this Agreement, and
no action taken pursuant to its provisions by either party hereto, shall create,
nor be construed to create, a trust of any kind or a fiduciary relationship
between the Corporation and the Executive, his designated beneficiary, any other
beneficiary of the Executive, or any other person.
6. BENEFITS PAYABLE ONLY FROM GENERAL CORPORATE ASSETS;
UNSECURED GENERAL CREDITOR STATUS OF EXECUTIVE.
a. The payments to the Executive, his designated beneficiary,
or any other beneficiary hereunder shall be made from assets which shall
continue, for all purposes, to be a part of the general, unsecured assets of the
Corporation; no person shall have nor acquire any interest in any such assets by
virtue of the provisions of this Agreement. The Corporation's obligation
hereunder shall be an unfunded and unsecured promise to pay money in the future.
To the extent that the Executive or any person acquires a right to receive
payments from the Corporation under the provisions hereof, such right shall be
no greater than the right of any unsecured general creditor of the Corporation;
no such person shall have nor require any legal or equitable right, interest, or
claim in or to any property or assets of the Corporation.
b. In the event that, in its sole discretion, the Corporation
purchases an insurance policy or policies insuring the life of the Executive (or
any other property) to allow the Corporation to recover the cost of providing
the benefits, in whole or in part, hereunder, neither the Executive, his
designated beneficiary, any other beneficiary, nor any other person shall have
nor acquire any rights whatsoever therein or in the proceeds therefrom. The
Corporation shall be the sole owner and beneficiary of any such policy or
policies and, as such, shall possess and may exercise all incidents of ownership
therein. No such policy, policies, or other property shall be held in any trust
for the Executive or any other person nor as collateral security for any
obligation of the Corporation hereunder.
7. NO CONTRACT OF EMPLOYMENT. Nothing contained herein shall
be construed to be a contract of employment for any term of years, nor as
conferring upon the Executive the right to continue to be employed by the
Corporation, in any capacity. It is
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expressly understood by the parties hereto that this Agreement relates
exclusively to additional compensation for the Executive's services, payable
after termination of his employment with the Corporation, and is not intended to
be an employment agreement.
8. DETERMINATION OF BENEFITS, CLAIMS PROCEDURE, AND
AD-MINISTRATION.
a. Claim.
The Executive or his beneficiary who believes that he is being
denied a benefit to which he is entitled under the Agreement (hereinafter
referred to as a "Claimant") may file a written request for such benefit with
the Corporation, setting forth his claim. The request must be addressed to the
President of the Corporation at its then principal place of business.
b. Claim Decision.
Upon receipt of a claim, the Corporation shall advise the
Claimant that a reply will be forthcoming within ninety (90) days and shall, in
fact, deliver such reply within such period. The Corporation may, however,
extend the reply period for an additional ninety (90) days for reasonable cause.
If the claim is denied in whole or in part, the Corporation
shall adopt a written opinion, using language calculated to be understood by the
Claimant, setting forth:
(1) The specific reason or reasons for such denial;
(2) The specific reference to pertinent provisions of
this Agreement on which such denial is based;
(3) A description of any additional material or
information necessary for the Claimant to perfect his
claim and an explanation why such material or such
information is necessary;
(4) Appropriate information as to the steps to be taken
if the Claimant wishes to submit the claim for
review; and
(5) The time limits for requesting a review under
subsection c. and for review under subsection d.
hereof.
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c. Request for Review.
Within sixty (60) days after the receipt by the Claimant of
the written opinion described above, the Claimant may request in writing that
the Secretary of the Corporation review the determination of the Corporation.
Such request must be addressed to the Secretary of the Corporation, at its then
principal place of business. The Claimant or his duly authorized representative
may, but need not, review the pertinent documents and submit issues and comments
in writing for consideration by the Corporation. If the Claimant does not
request a review of the Corporation's determination by the Secretary of the
Corporation within such sixty (60) day period, he shall be barred and estopped
from challenging the Corporation's determination.
d. Review of Decision.
Within sixty (60) days after the Secretary's receipt of a
request for review, he will review the Corporation's determination. After
considering all materials presented by the Claimant, the Secretary will render a
written opinion, written in a manner calculated to be understood by the
Claimant, setting forth the specific reasons for the decision and containing
specific references to the pertinent provisions of this Agreement on which the
decision is based. If special circumstances require that the sixty (60) day time
period be extended, the Secretary will so notify the Claimant and will render
the decision as soon as possible, but no later than one hundred twenty (120)
days after receipt of the request for review.
9. NON-ASSIGNABILITY OF BENEFITS. Neither the Executive, his
designated beneficiary, nor any other beneficiary under this Agreement shall
have any power or right to transfer, assign, anticipate, hypothecate, or
otherwise encumber any part or all of the amounts payable hereunder, which are
expressly declared to be unassignable and non-transferable. Any such attempted
assignment or transfer shall be void and shall terminate this Agreement; the
Corporation shall thereupon have no further liability hereunder. No amount
payable hereunder shall, prior to actual payment thereof, be subject to seizure
by any creditor of any such beneficiary for the payment of any debt, judgment,
or other obligation, by a proceeding at law or in equity, not transferable by
operation of law in the event of the bankruptcy, insolvency, or death of the
Executive, his designated beneficiary, or any other beneficiary hereunder.
10. AMENDMENT. This Agreement may not be amended, altered,
or modified, except by a written instrument signed by the parties hereto or
their respective successors, and may not be otherwise terminated except as
provided herein.
11. INUREMENT. This Agreement shall be binding upon and
inure to the benefit of the Corporation and its successors and assigns, and the
Executive, his successors, heirs, executors, administrators, and beneficiaries.
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12. NOTICES. Any notice, consent, or demand required or
permitted to be given under the provisions of this Agreement shall be in
writing, and shall be signed by the party giving or making the same. If such
notice, consent, or demand is mailed to a party hereto, it shall be sent by
United States certified mail, postage prepaid, addressed to such party's last
known address as shown on the records of the Corporation. The date of such
mailing shall be deemed the date of notice, consent, or demand.
13. GOVERNING LAW. This Agreement, and the rights of the
parties hereunder, shall be governed by and construed in accordance with the
laws of the State of Ohio. If any provision of this Agreement or the application
thereof shall for any reason and to any extent be invalid and unenforceable, the
remainder of this Agreement shall not be affected thereby, but rather shall be
enforced to the full extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, in duplicate, as of the day and year first above written.
THE SECOND NATIONAL BANK SECOND BANCORP, INCORPORATED OF XXXXXX
"Corporation"
"Bank"
By: __________________________ By: ________________________________
Its: __________________________ Its: ________________________________
_____________________________________
Xxxx X. Blossom - Executive
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EXHIBIT B
The Second National Bank of Xxxxxx
Deferred Compensation Agreement
Illustration as of September 5, 2005
Xxxx X. Blossom
Date of birth: 9-5-47
Date of hire: 9-5-99
Earnings used to calculate:
Qualified Deferred
Plan Compensation
Benefit Benefit
----------- -----------
2000 $170,000.00* $540,000.00
2001 $170,000.00* $560,600.00
2002 $170,000.00 $584,064.00
2003 $170,000.00 $607,427.00
2004 $170,000.00 $631,723.00
Service as of 9-5-2005
Benefit calculation as of 9-5-2005
Total annual accrued benefit: $109,640.00
Qualified annual accrued benefit: $ 12,485.00
Prior employer benefit $ 40,543.00
Deferred compensation annual benefit: $ 56,612.00**
*Estimated maximum recognizable compensation for qualified plans
**Benefit shown is payable unreduced at age 58 as a life annuity with 120
payments guaranteed.
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