Exhibit ▇▇.▇▇
UNIZAN BANK, NATIONAL ASSOCIATION
AMENDED SALARY CONTINUATION AGREEMENT
THIS AMENDED SALARY CONTINUATION AGREEMENT (this "Agreement") is
entered into as of this 1st day of August, 2002, by and between Unizan Bank,
National Association, a nationally chartered bank with its main office in
Canton, Ohio (the "Bank"), and ▇▇▇▇▇ ▇. ▇▇▇▇, Chairman of the Bank (the
"Executive").
WHEREAS, the Executive has contributed substantially to the success of
the Bank and its parent company, Unizan Financial Corp., and the Bank desires
that the Executive continue in its employ,
WHEREAS, to encourage the Executive to remain an employee of the Bank,
the Bank is willing to provide salary continuation benefits to the Executive,
payable out of the Bank's general assets,
WHEREAS, none of the conditions or events included in the definition of
the term "golden parachute payment" that is set forth in section 18(k)(4)(A)(ii)
of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in
Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR
359.1(f)(1)(ii)] exists or, to the best knowledge of the Bank, is contemplated
insofar as the Bank is concerned,
WHEREAS, on March 7, 2002 UNB Corp., an Ohio corporation and holding
company for United National Bank & Trust Co., and BancFirst Ohio Corp. completed
a merger transaction whereby BancFirst Ohio Corp. merged with and into UNB Corp.
under the terms of the September 5, 2001 Agreement of Merger and Plan of
Reorganization, with UNB Corp. being the surviving entity under the name Unizan
Financial Corp.,
WHEREAS, in connection with the merger of BancFirst Ohio Corp. with and
into UNB Corp., UNB Corp.'s banking subsidiary, United National Bank & Trust
Co., and BancFirst Ohio Corp.'s banking subsidiary, The First National Bank of
Zanesville, entered into a plan of merger under which The First National Bank of
Zanesville also merged with and into United National Bank & Trust Co., with
United National Bank & Trust Co. being the surviving institution under the name
Unizan Bank, National Association,
WHEREAS, the Bank's predecessor, United National Bank & Trust Co., and
the Executive entered into a Salary Continuation Agreement dated as of May 1,
2001, providing for specified retirement benefits for the Executive after
termination of his employment,
WHEREAS, consistent with the terms of the May 1, 2001 Salary
Continuation Agreement, as successor to United National Bank & Trust Co. the
Bank assumed United National Bank & Trust Co.'s obligations under the May 1,
2001 Salary Continuation Agreement,
WHEREAS, regulations promulgated under ERISA (the Employees Retirement
Income Security Act) that became effective on January 1, 2002 govern the
regulation of claims procedures contained in the Executive's form of Salary
Continuation Agreement,
WHEREAS, ▇▇▇▇▇/▇▇▇▇▇▇ Consulting, a benefits consulting firm involved
in the design and administration of the Executive's Salary Continuation
Agreement, is recommending to its clients that the definition of disability
should not create unwanted burdens under the revised ERISA regulations effective
January 1, 2002,
WHEREAS, the revised disability definition in this Agreement, as well
as the revised claims and review procedure in Article 6 in this document, were
drafted by ERISA counsel retained by ▇▇▇▇▇/▇▇▇▇▇▇ Consulting,
WHEREAS, the Bank and the Executive have negotiated and agreed to
certain changes in the terms and conditions of the May 1, 2001 Salary
Continuation Agreement entered into by the Bank's predecessor and the Executive,
WHEREAS, the changes the Bank and the Executive have agreed to are (1)
eliminating the Executive's right to claim a lump-sum change-in-control benefit
under Section 2.4 for voluntary termination of employment without good reason,
but preserving the Executive's entitlement to benefits under Section 2.4 if the
Executive's employment
is terminated within three years after the merger transaction with BancFirst
Ohio Corp., whether involuntarily without cause or voluntarily for good reason,
and (2) miscellaneous other changes, including revision of the definition of
"disability" in Section 1.3 of the May 1, 2001 Salary Continuation Agreement and
updating of the claims and review provisions of Article 6, and
WHEREAS, the Bank and the Executive intend that this Agreement shall
become effective immediately.
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following terms shall have the
meanings specified--
1.1 "Accrual Balance" means the amount reflected in Schedule A, which
is the amount required to be accrued by the Bank according to generally accepted
accounting principles to account for benefits that may become payable to the
Executive under this Agreement.
1.2 "Change in Control" means any one of the following events
occurs--
(a) Merger: Unizan Financial Corp. merges into or
consolidates with another corporation, or merges another
corporation into Unizan Financial Corp., and as a result less
than a majority of the combined voting power of the resulting
corporation immediately after the merger or consolidation is
held by persons who were the holders of Unizan Financial
Corp.'s voting securities immediately before the merger or
consolidation, or
(b) Acquisition of Significant Share Ownership: a report
on Schedule 13D or another form or schedule (other than
Schedule 13G) is filed or is required to be filed under
Sections 13(d) or 14(d) of the Securities Exchange Act of
1934, if the schedule discloses that the filing person or
persons acting in concert has or have become the beneficial
owner of 15% or more of a class of Unizan Financial Corp.'s
voting securities (but this clause (b) shall not apply to
beneficial ownership of voting shares of Unizan Financial
Corp. held by the Bank or another subsidiary of Unizan
Financial Corp. in a fiduciary capacity), or
(c) Change in Board Composition: during any period of two
consecutive years, individuals who constitute the board of
directors of Unizan Financial Corp. at the beginning of the
two-year period cease for any reason to constitute at least a
majority thereof; provided, however, that -- for purposes of
this clause (c) -- each director who is first elected by the
board (or first nominated by the board for election by
stockholders) by a vote of at least two-thirds (2/3) of the
directors who were directors at the beginning of the period
shall be deemed to have been a director at the beginning of
the two-year period, or
(d) Sale of Assets: Unizan Financial Corp. sells to a
third party substantially all of Unizan Financial Corp.'s
assets. For purposes of this Agreement, sale of substantially
all of Unizan Financial Corp.'s assets includes sale of the
Bank.
1.3 "Disability" means the Executive suffers a sickness, accident or
injury which has been determined by the carrier of any individual or group
disability insurance policy covering the Executive, or by the Social Security
Administration, to be a disability rendering the Executive totally and
permanently disabled. The Executive must submit proof to the Bank of the
carrier's or Social Security Administration's determination upon the request of
the Bank.
1.4 "Early Retirement Age" [Intentionally Left Blank]
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1.5 "Early Termination" means Termination of Employment with the Bank
before Normal Retirement Age, but "Early Termination" excludes Termination of
Employment as a result of death, Disability, Termination for Cause or following
a Change in Control.
1.6 "Early Termination Date" means the month, day and year in which
Early Termination occurs.
1.7 "Effective Date" means May 1, 2001.
1.8 "Good Reason" means the occurrence of any of the events or
conditions described in clauses (a) through (g) hereof without the Executive's
express written consent --
(a) Change in Office or Position or Termination as a Director:
failure to elect or reelect or otherwise to maintain the
Executive in the office or position, or a substantially
equivalent office or position, of or with Unizan Financial
Corp. and the Bank that the Executive held immediately before
the Change in Control, or the removal or failure to nominate
the Executive as a director of Unizan Financial Corp. (or any
successor thereto) if the Executive shall have been a director
of Unizan Financial Corp. immediately before the Change in
Control,
(b) Adverse Change in the Scope of His Duties or Compensation and
Benefits--
1) a significant adverse change in the nature or scope
of the authorities, powers, functions,
responsibilities, or duties associated with the
Executive's position with Unizan Financial Corp. or
the Bank compared to the nature or scope of the
authorities, powers, functions, responsibilities, or
duties associated with the position immediately
before the Change in Control,
2) a change in the Executive's reporting relationship
such that the Executive no longer reports directly to
Unizan Financial Corp.'s board of directors,
3) a reduction in the aggregate of the Executive's
annual compensation received from Unizan Financial
Corp. and the Bank, or
4) the termination or denial of the Executive's rights
to benefits under Unizan Financial Corp.'s or the
Bank's benefit, compensation, and incentive plans and
arrangements or a reduction in the scope or value
thereof, which situation is not remedied within 10
calendar days after written notice to Unizan
Financial Corp. from the Executive,
(c) Adverse Change in Circumstances: the Executive determines that
a change in circumstances has occurred after a Change in
Control, including without limitation a change in the scope of
the business or other activities for which the Executive is
responsible compared to his responsibilities immediately
before the Change in Control, (1) rendering the Executive
substantially unable to carry out, substantially hindering the
Executive's performance of, or causing the Executive to suffer
a substantial reduction in, any of the authorities, powers,
functions, responsibilities, or duties associated with the
office or position held by the Executive immediately before
the Change in Control, and (2) which situation is not remedied
within 10 calendar days after written notice to Unizan
Financial Corp. from the Executive of such determination.
Provided his determination is made in good faith, the
Executive's determination will be conclusive and binding upon
the parties hereto. The Executive's determination will be
presumed to have been made in good faith, unless Unizan
Financial Corp. establishes by clear and convincing evidence
that it was not made in good faith,
(d) Liquidation and Merger of Unizan Financial Corp. or the Bank:
the liquidation, dissolution, merger, consolidation, or
reorganization of Unizan Financial Corp. or the Bank or
transfer of all or
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substantially all of the business or assets of either Unizan
Financial Corp. or the Bank, unless the successor or
successors (by liquidation, merger, consolidation,
reorganization, transfer, or otherwise) to which all or
substantially all of the business or assets have been
transferred (directly or by operation of law) assumes all
duties and obligations of Unizan Financial Corp. and the Bank
under this Agreement,
(e) Relocation of the Executive: Unizan Financial Corp. or the
Bank relocates its principal executive offices, or requires
the Executive to have his principal location of work changed,
to any location that is more than 15 miles from the location
thereof immediately before the Change in Control, or requires
the Executive to travel away from his office in the course of
discharging his responsibilities or duties hereunder at least
20% more (in terms of aggregate days in any calendar year or
in any calendar quarter when annualized for purposes of
comparison to any prior year) than was required of Executive
in any of the three full years immediately before the Change
in Control,
(f) Change in Administrative Support: the adverse and substantial
alteration in the nature and quality of the office space
within which the Executive performs his duties, including the
size and location thereof, or a substantial reduction in the
secretarial and administrative support provided to the
Executive, or
(g) Breach of this Agreement: without limiting the generality or
effect of the foregoing, any material breach of this Agreement
by Unizan Financial Corp., the Bank, or any successor thereto.
For purposes of Section 2.4 of this Agreement only, the term "Change in
Control" as used in this Section 1.8 includes the March 7, 2002 merger between
UNB Corp. and BancFirst Ohio Corp.
1.9 "Normal Retirement Age" means the Executive's 64th birthday.
1.10 "Normal Retirement Date" means the later of the Normal Retirement
Age or Termination of Employment with the Bank.
1.11 "Person" means an individual, corporation, partnership, trust,
association, joint venture, pool, syndicate, sole proprietorship, unincorporated
organization or other entity.
1.12 "Plan Year" means a twelve-month period commencing on May 1 and
ending on the last day of April of each year. The initial Plan Year shall
commence on the Effective Date of this Agreement.
1.13 "Termination of Employment" means that the Executive shall have
ceased to be employed by the Bank for any reason whatsoever, excepting a leave
of absence approved by the Bank. For purposes of this Agreement, if there is a
dispute over the employment status of the Executive or the date of termination
of the Executive's employment, the Bank shall have the sole and absolute right
to decide the dispute, unless a Change in Control shall have occurred.
1.14 "Termination for Cause" means the definition of termination for
cause specified in any effective severance or employment agreement existing on
the date hereof or hereafter entered into between the Executive and the Bank or
Unizan Financial Corp. If the Executive is not a party to an effective severance
or employment agreement containing a definition of termination for cause,
Termination for Cause means the Bank has terminated the Executive's employment
for any of the following reasons --
(a) gross negligence or gross neglect of duties,
(b) commission of a felony or commission of a misdemeanor
involving moral turpitude, or
(c) fraud, disloyalty or willful violation of any law or
significant Bank policy committed in connection with the
Executive's employment and resulting in an adverse effect on
the Bank. No act or failure
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to act on the Executive's part shall be considered "willful"
unless the Executive has acted without good faith, or without
good faith has failed to act, and the Executive's action or
inaction is without a reasonable belief that his action or
inaction is in the Bank's best interests.
ARTICLE 2
BENEFITS
2.1 Normal Retirement Benefit. For Termination of Employment of the
Executive on or after the Normal Retirement Age for reasons other than death,
the Bank shall pay to the Executive the benefit described in this Section 2.1
instead of any other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1
is $159,400. In its sole discretion, the Bank's board of
directors may increase the annual benefit under this Section
2.1.1, but any increase shall require recalculation of
Schedule A.
2.1.2 Payment of Benefit. Beginning with the month after the
Executive's Normal Retirement Date, the Bank shall pay the
annual benefit to the Executive in 12 equal monthly
installments on the first day of each month. The annual
benefit shall be paid to the Executive for 15 years.
2.2 Early Termination Benefit. For Early Termination the Bank shall pay
to the Executive the benefit described in this Section 2.2 instead of any other
benefit under this Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
Early Termination Annual Benefit amount set forth in Schedule
A for the Plan Year ending immediately before the Early
Termination Date (except that during the first Plan Year the
benefit is the amount set forth for Plan Year 1). If the
Executive is entitled to an Early Termination Annual Benefit
amount as set forth in the attached Schedule A, interest will
be credited on the Accrual Balance at an annual rate of 7.5
percent, compounded monthly, during the period between
Termination of Employment and the Normal Retirement Date. In
its sole discretion, the Bank's board of directors may
increase the annual benefit under this Section 2.2.1, but any
increase shall require recalculation of Schedule A.
2.2.2 Payment of Benefit. Beginning with the month after the Normal
Retirement Age, the Bank shall pay the annual benefit to the
Executive in 12 equal monthly installments on the first day of
each month. The annual benefit shall be paid to the Executive
for 15 years.
2.3 Disability Benefit. For Termination of Employment of the Executive
because of Disability before the Normal Retirement Age, the Bank shall pay to
the Executive the benefit described in this Section 2.3 instead of any other
benefit under this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is the
Disability Annual Benefit amount set forth in Schedule A for
the Plan Year ending immediately before the date on which
Termination of Employment occurs (except during the first Plan
Year, the benefit is the amount set forth for Plan Year 1). In
its sole discretion, the Bank's board of directors may
increase the annual benefit under this Section 2.3.1, but any
increase shall require recalculation of Schedule A.
2.3.2 Payment of Benefit. Beginning with the month after Normal
Retirement Age, the Bank shall pay the Disability Annual
Benefit amount to the Executive in 12 equal monthly
installments on the first day of each month. The annual
benefit shall be paid to the Executive for 15 years.
2.4 Change-in-Control Benefit. The Bank shall pay to the Executive the
benefit described in this Section 2.4 instead of any other benefit under this
Agreement if, within three years after a Change in Control or at any time on or
before March 7, 2005, the Executive's Termination of Employment occurs
voluntarily for Good Reason or involuntarily. However, no benefits shall be
payable under this Agreement if Termination of Employment occurs under Article 5
of this Agreement.
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2.4.1 Amount of Benefit: The benefit under this Section 2.4 is
determined by vesting the Executive in the Normal Retirement
Age Accrual Balance ($1,441,874) required by Section 2.1,
without reduction for the time value of money or other
discount. In its sole discretion, the Bank's board of
directors may increase the benefit under this Section 2.4.1,
but any increase shall require recalculation of Schedule A.
2.4.2 Payment of Benefit: The Bank shall pay the Change-in-Control
benefit under Section 2.4 of this Agreement to the Executive
in one lump sum within three days after Termination of
Employment of the Executive.
2.5 Petition for Payment of Vested Normal Retirement Benefit, Vested
Early Termination Benefit or Vested Disability Benefit. If the Executive is
entitled to the normal retirement benefit provided by Section 2.1, the Early
Termination benefit provided by Section 2.2, or the Disability benefit provided
by Section 2.3, the Executive may petition the board of directors to have the
Accrual Balance amount corresponding to that particular benefit paid to the
Executive in a single lump sum after (a) deduction of any normal retirement
benefits, Early Termination benefits or Disability benefits already paid, and
(b) addition of interest at the rate of 7.5% on the Accrual Balance not yet paid
for the period from Termination of Employment to payment of the lump sum amount.
The board of directors shall have sole and absolute discretion about whether to
pay the remaining Accrual Balance in a lump sum. If payment of the remaining
Accrual Balance is paid in a single lump sum, the Bank shall have no further
obligations under this Agreement.
2.6 Change-in-Control Payout of Vested Normal Retirement Benefit,
Vested Early Termination Benefit or Vested Disability Benefit Being Paid to the
Executive at the Time of a Change in Control. If a Change in Control occurs at
any time during the entire 15-year salary continuation benefit payment period
and if at the time of that Change in Control the Executive is receiving the
benefit provided by Section 2.1.2, Section 2.2.2, or Section 2.3.2, the Bank
shall pay the remaining salary continuation benefits to the Executive, his
beneficiaries, or estate in a lump sum within three days after the Change in
Control. The lump-sum payment due to the Executive, his beneficiaries, or estate
as a result of a Change in Control shall be an amount equal to the Accrual
Balance amount corresponding to that particular benefit then being paid to the
Executive, his estate, or beneficiaries under Section 2.1.2, Section 2.2.2, or
Section 2.3.2 after (a) deduction of any normal retirement benefits, Early
Termination benefits, or Disability benefits already paid, and (b) addition of
interest at the rate of 7.5% on the Accrual Balance not yet paid for the period
from Termination of Employment to payment of the lump sum amount.
2.7 Contradiction in Terms of Agreement and Schedule A. If there is a
contradiction in the terms of this Agreement and the Schedule A attached hereto
concerning the benefits due under Section 2.2, 2.3, or 2.4 hereof, then the
actual amount of benefits prescribed by this Agreement shall control.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. Except as provided in Section 5.2, if
the Executive dies in active service to the Bank before Normal Retirement Age,
instead of any benefit payable under this Agreement the Bank shall pay to the
Executive's beneficiary(ies) the benefit described in the Split Dollar Agreement
and Endorsement attached to this Agreement as Addendum A.
3.2 Death During Benefit Period. If the Executive dies after benefit
payments under Article 2 of this Agreement have commenced but before receiving
all such payments, the Bank shall pay the remaining benefits to the Executive's
beneficiary at the same time and in the same amounts they would have been paid
to the Executive had the Executive survived. In that case, no death benefit
shall be payable under this Article 3.
3.3 Death After Termination of Employment But Before Benefit Payments
Commence. If the Executive is entitled to benefit payments under Article 2 but
dies before payments commence, the benefits shall be payable to the Executive's
beneficiary(ies), but payments shall commence on the first day of the month
after the date
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of the Executive's death. Payments shall be made in the same amounts they would
have been paid to the Executive had the Executive survived.
3.4 Petition for Benefit Payments. If the Executive dies before
receiving any or all benefit payments to which he is entitled under Section 2.1,
Section 2.2, or Section 2.3, respectively, the Executive's beneficiary(ies) or
estate may petition the board of directors to have the Accrual Balance
corresponding to that particular benefit paid to the Executive's
beneficiary(ies) or estate in a single lump sum after (a) deduction of any
normal retirement benefits, Early Termination benefits, or Disability benefits
already paid, and (b) addition of interest at the rate of 7.5% on the Accrual
Balance not yet paid for the period from the Executive's Termination of
Employment to payment of the lump sum amount. The board of directors shall have
sole and absolute discretion about whether to pay the remaining Accrual Balance
in a lump sum. If payment of the remaining Accrual Balance is paid in a single
lump sum, the Bank shall have no further obligations under this Agreement.
3.5 Change-in-Control Payout of Vested Normal Retirement Benefit,
Vested Early Termination Benefit or Vested Disability Benefit Being Paid to the
Executive's Estate or Beneficiaries at the Time of a Change in Control. If a
Change in Control occurs at any time during the entire 15-year salary
continuation benefit payment period and if at the time of that Change in Control
the Executive's estate or beneficiaries are receiving the benefit provided by
Section 2.1.2, Section 2.2.2, or Section 2.3.2, the Bank shall pay the remaining
salary continuation benefits to the Executive's beneficiaries or estate in a
lump sum within three days after the Change in Control. The lump-sum payment due
to the Executive's beneficiaries or estate as a result of a Change in Control
shall be an amount equal to the Accrual Balance amount corresponding to that
particular benefit then being paid to the Executive's estate or beneficiaries
under Section 2.1.2, Section 2.2.2, or Section 2.3.2 after (a) deduction of any
normal retirement benefits, Early Termination benefits, or Disability benefits
already paid, and (b) addition of interest at the rate of 7.5% on the Accrual
Balance not yet paid for the period from Termination of Employment to payment of
the lump sum amount.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary or beneficiaries by filing a written designation with the Bank. The
Executive may revoke or modify the designation at any time by filing a new
designation. However, designations will be effective only if signed by the
Executive and accepted by the Bank during the Executive's lifetime. The
Executive's beneficiary designation shall be deemed automatically revoked if the
beneficiary predeceases the Executive, or if the Executive names a spouse as
beneficiary and the marriage is subsequently dissolved. If the Executive dies
without a valid beneficiary designation, all payments shall be made to the
Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incapacitated, or to a person incapable of handling the
disposition of his or her property, the Bank may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incapacitated person or incapable person. The Bank may require such proof
of incapacity, minority or guardianship as the Bank deems appropriate before
distribution of the benefit. Distribution shall completely discharge the Bank
from all liability for such benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Bank shall not pay any benefit under this
Agreement if Termination of Employment is a result of Termination for Cause.
5.2 Suicide or Misstatement. The Bank shall not pay any benefit under
this Agreement if the Executive commits suicide within three years after the
Effective Date of this Agreement. In addition, the Bank shall not pay any
benefit under this Agreement if the Executive has made any material misstatement
of fact on an
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employment application or resume provided to the Bank, or on any application for
any benefits provided by the Bank to the Executive.
5.3 Removal. If the Executive is removed from office or permanently
prohibited from participating in the conduct of the Bank's affairs by an order
issued under section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance
Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this
Agreement shall terminate as of the effective date of the order.
5.4 Insolvency. If the Office of the Comptroller of the Currency
appoints the Federal Deposit Insurance Corporation as receiver for the Bank
under 12 U.S.C. 191, all obligations under this Agreement shall terminate as of
the date of the Bank's declared insolvency, but vested rights of the contracting
parties shall not be affected.
5.5 FDIC Open-Bank Assistance. Unless the Federal Deposit Insurance
Corporation determines that continuation of this Agreement is necessary for the
Bank's continued operation, all obligations under this Agreement shall terminate
when the Federal Deposit Insurance Corporation enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Any
rights of the parties that have already vested, however, shall not be adversely
affected by such action.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. A person or beneficiary ("claimant") who has not
received benefits under the Agreement that he or she believes should be paid
shall make a claim for such benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a claim by
submitting to the Bank a written claim for the benefits.
6.1.2 Timing of Bank Response. The Bank shall respond to such
claimant within 90 days after receiving the claim. If the Bank
determines that special circumstances require additional time
for processing the claim, the Bank can extend the response
period by an additional 90 days by notifying the claimant in
writing, prior to the end of the initial 90-day period, that
an additional period is required. The notice of extension must
set forth the special circumstances and the date by which the
Bank expects to render its decision.
6.1.3 Notice of Decision. If the Bank denies part or all of the
claim, the Bank shall notify the claimant in writing of such
denial. The Bank shall write the notification in a manner
calculated to be understood by the claimant. The notification
shall set forth:
6.1.3.1 The specific reasons for the denial,
6.1.3.2 A reference to the specific provisions of
the Agreement on which the denial is based,
6.1.3.3 A description of any additional information
or material necessary for the claimant to
perfect the claim and an explanation of why
it is needed,
6.1.3.4 An explanation of the Agreement's review
procedures and the time limits applicable to
such procedures, and
6.1.3.5 A statement of the claimant's right to bring
a civil action under ERISA (Employees
Retirement Income Security Act) Section
502(a) following an adverse benefit
determination on review.
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6.2 Review Procedure. If the Bank denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Bank of
the denial, as follows:
6.2.1 Initiation - Written Request. To initiate the review, the
claimant, within 60 days after receiving the Bank's notice of
denial, must file with the Bank a written request for review.
6.2.2 Additional Submissions - Information Access. The claimant
shall then have the opportunity to submit written comments,
documents, records and other information relating to the
claim. The Bank shall also provide the claimant, upon request
and free of charge, reasonable access to, and copies of, all
documents, records and other information relevant (as defined
in applicable ERISA regulations) to the claimant's claim for
benefits.
6.2.3 Considerations on Review. In considering the review, the Bank
shall take into account all materials and information the
claimant submits relating to the claim, without regard to
whether such information was submitted or considered in the
initial benefit determination.
6.2.4 Timing of Bank Response. The Bank shall respond in writing to
such claimant within 60 days after receiving the request for
review. If the Bank determines that special circumstances
require additional time for processing the claim, the Bank can
extend the response period by an additional 60 days by
notifying the claimant in writing, prior to the end of the
initial 60-day period, that an additional period is required.
The notice of extension must set forth the special
circumstances and the date by which the Bank expects to render
its decision.
6.2.5 Notice of Decision. The Bank shall notify the claimant in
writing of its decision on review. The Bank shall write the
notification in a manner calculated to be understood by the
claimant. The notification shall set forth:
6.2.5.1 The specific reason for the denial,
6.2.5.2 A reference to the specific provisions of
the Agreement on which the denial is based,
6.2.5.3 A statement that the claimant is entitled to
receive, upon request and free of charge,
reasonable access to, and copies of, all
documents, records and other information
relevant (as defined in applicable ERISA
regulations) to the claimant's claim for
benefits, and
6.2.5.4 A statement of the claimant's right to bring
a civil action under ERISA Section 502(a).
ARTICLE 7
MISCELLANEOUS
7.1 Amendments and Termination. This Agreement may be amended or
terminated only by a written agreement signed by the Bank and the Executive.
7.2 Binding Effect. This Agreement shall bind the Executive and the
Bank, and their beneficiaries, survivors, executors, successors, administrators
and transferees.
7.3 No Guarantee of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain an
employee of the Bank, nor does it interfere with the Bank's right to discharge
the Executive. It also does not require the Executive to remain an employee nor
interfere with the Executive's right to terminate employment at any time.
7.4 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached, or encumbered in any manner.
9
7.5 Successors; Binding Agreement. By an assumption agreement in form
and substance satisfactory to the Executive, the Bank will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Bank to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent the Bank would be required to perform this Agreement if no such
succession had occurred. The Bank's failure to obtain such an assumption
agreement before the succession becomes effective shall be considered a breach
of this Agreement and shall entitle the Executive to the Change-in- Control
Benefit provided in Section 2.4.
7.6 Tax Withholding. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
7.7 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Ohio, except to the extent preempted by the
laws of the United States of America.
7.8 Unfunded Arrangement. The Executive and his beneficiary(ies) are
general unsecured creditors of the Bank for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Bank 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 Executive's life is a general
asset of the Bank to which the Executive and beneficiary have no preferred or
secured claim.
7.9 Entire Agreement. This Agreement constitutes the entire agreement
between the Bank and the Executive as to the subject matter hereof. No rights
are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
7.10 Administration. The Bank shall have the powers that are necessary
to administer this Agreement, including but not limited to the power to--
(a) interpret the provisions of the Agreement,
(b) establish and revise the method of accounting for the
Agreement,
(c) maintain a record of benefit payments, and
(d) establish rules and prescribe forms necessary or desirable to
administer the Agreement.
7.11 Named Fiduciary. The Bank shall be the named fiduciary and plan
administrator under this Agreement. The named fiduciary 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.
7.12 Severability. If for any reason any provision of this Agreement is
held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall, to the full
extent consistent with the law, continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the remainder of such provision, not held so invalid, and the
remainder of such provision, together with all other provisions of this
Agreement shall, to the full extent consistent with the law, continue in full
force and effect.
7.13 Headings. The headings of Sections herein are included solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Agreement.
7.14 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice.
10
(a) If to the Bank, to:
Board of Directors
Unizan Bank, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(b) If to the Executive, to:
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and to such other or additional person or persons as either
party shall have designated to the other party in writing by
like notice.
7.15 Payment of Legal Fees. (a) The Executive May Enforce this
Agreement Through Legal Action. Provided that a Change in Control has occurred,
the Bank irrevocably authorizes the Executive to retain from time to time
counsel of the Executive's choice to advise and represent him in the
interpretation, enforcement or defense of the parties' rights and
responsibilities under this Agreement, if--
(1) the Executive concludes that the Bank has failed to comply
with any of its obligations under this Agreement following a
Change in Control, or
(2) if the Bank or any or any other person following a Change in
Control takes or threatens to take any action to declare this
Agreement void or unenforceable, or institutes any litigation
or other action or proceeding designed to deny, or to recover
from, the Executive the benefits provided or intended to be
provided to the Executive under this Agreement,
including without limitation the initiation or defense of any litigation or
other legal action, whether by or against the Bank or any director, officer,
stockholder or other person affiliated with the Bank, in any jurisdiction.
(b) Fees and Expenses Will Be Paid by the Bank. The Bank desires that
the Executive not be required to incur legal fees and the related costs and
expenses associated with the interpretation, enforcement or defense of
Executive's rights under this Agreement by litigation or otherwise, because the
amounts thereof would substantially detract from the benefits intended to be
extended to the Executive under this Agreement. Therefore, even if the Executive
does not prevail in whole or in part in the litigation or other legal action
associated with the interpretation, enforcement or defense of Executive's rights
under this Agreement, the Bank hereby agrees to pay and be solely financially
responsible for any and all attorneys' and related fees, costs and expenses
incurred by the Executive in the litigation or other legal action, up to a
maximum of $500,000. The fees and expenses of counsel selected by the Executive
shall be paid or reimbursed to the Executive by the Bank on a regular, periodic
basis, upon presentation by the Executive of a statement or statements prepared
by such counsel in accordance with counsel's customary practices. Anything
herein to the contrary notwithstanding, nothing in this Agreement authorizes the
Bank to pay or the Executive to demand payment of fees, costs and expenses if
and to the extent payment of fees, costs and expenses constitutes a "prohibited
indemnification payment" within the meaning of Federal Deposit Insurance
Corporation Rule 359.1(l)(1) [12 CFR 359.1(l)(1)].This Section 7.15 (b) shall
not be operative unless there has first been a Change in Control. The Bank's
obligation to pay the Executive's legal fees provided by this Section 7.15
operates separately from, and in addition to, any legal fee reimbursement
obligation the Bank or the Bank's parent Unizan Financial Corp. may have with
the Executive by virtue of any separate employment, severance, or other
agreement between the Executive and the Bank or Unizan Financial Corp.
(c) Cost of Living Adjustment for Cap on Legal Fee Reimbursement. Upon
the occurrence of a Change in Control, the $500,000 cap on legal fee
reimbursement provided by Section 7.15(b) will be subject to a cost of living
adjustment equal to the value of the expression A x B, in which expression--
11
A = $500,000; and
B = Cost of living adjustment or inflation factor. This is
computed by dividing the Consumer Price Index for All Urban
Consumers ("CPI-U") prepared by the U.S. Bureau of Labor
Statistics, or any successor thereto, for the CPI-U for
January of the year during which the Change in Control occurs
by the CPI-U for January 2000.
The cost of living adjustment provided in this Section 7.15(c) shall be
considered to be part of the Executive's payment of legal fees for purposes of
this Agreement.
Illustration of Cost of Living Adjustment. To explain the cost of
living adjustment calculation for Payment of Legal Fees, we use the following
example.
First, we determine the appropriate CPI-Us. The Agreement calls for the
use of the CPI-Us for January 2000 and the January of the year during which the
Change in Control occurs. Assume a Change in Control occurs in April 2009. For
illustrative purposes only, the CPI-U for January 2000 is 156.7, and the CPI-U
for January 2009 is 213.3.
Second, we calculate the cost of living adjustment or inflation factor.
To do this, we divide the CPI-U for January 2009 (213.3) by the CPI-U for
January 2000 (156.7). Our result is 1.361 (i.e., a 36.1 percent increase).
Finally, we calculate the raw cost of living adjustment. To do this, we
multiply the base Payment of Legal Fees amount by the inflation factor. In our
example, $500,000 multiplied by the inflation factor of 1.361 equals $680,500.
(d) The Executive May Choose the Bank's or Unizan Financial Corp.'s
Counsel. Notwithstanding any existing or previous attorney-client relationship
between the Bank or Unizan Financial Corp. and any counsel chosen by the
Executive under Section 7.15(a), the Bank irrevocably consents to the
Executive's entering into an attorney-client relationship with that counsel, and
the Bank and the Executive agree that a confidential relationship shall exist
between the Executive and that counsel.
7.16 Internal Revenue Code Section 280G Gross Up. (a) Additional
Payment to Account for Excise Taxes. If as a result of a Change in Control the
Executive becomes entitled to acceleration of benefits under this Agreement or
under any other plan or agreement of or with the Bank or Unizan Financial Corp.,
including accelerated vesting of stock options granted under the "UNB Corp. 1997
Stock Option Plan" and "1987 Stock Option and Performance Unit Plan" and
acceleration of benefits under any other benefit, compensation, or incentive
plan or arrangement with Unizan Financial Corp. or the Bank (collectively, the
"Total Benefits"), and if any part of the Total Benefits is subject to the
Excise Tax under section 280G and section 4999 of the Internal Revenue Code (the
"Excise Tax"), Unizan Financial Corp. shall pay to the Executive the following
additional amounts, consisting of (1) a payment equal to the Excise Tax payable
by the Executive under section 4999 on the Total Benefits (the "Excise Tax
Payment") and (2) a payment equal to the amount necessary to provide the Excise
Tax Payment net of all income, payroll, and excise taxes. Together, the
additional amounts described in clauses (1) and (2) are referred to in this
Agreement as the "Gross-Up Payment." Payment of the Gross-Up Payment shall be
made in addition to the amount set forth in Section 2.4.
(b) Calculating the Excise Tax. For purposes of determining whether any
of the Total Benefits will be subject to the Excise Tax and for purposes of
determining the amount of the Excise Tax,
(1) Determination of "Parachute Payments" Subject to the Excise
Tax: any other payments or benefits received or to be received
by the Executive in connection with a Change in Control or the
Executive's Termination of Employment (whether under the terms
of this Agreement or any other agreement, the 1997 Stock
Option Plan and 1987 Stock Option and Performance Unit Plan or
any other benefit plan or arrangement with Unizan Financial
Corp., the Bank, any person whose actions result in a Change
in Control or any
12
person affiliated with Unizan Financial Corp., the Bank, or
such person) shall be treated as "parachute payments" within
the meaning of section 280G(b)(2) of the Internal Revenue
Code, and all "excess parachute payments" within the meaning
of section 280G(b)(1) shall be treated as subject to the
Excise Tax, unless in the opinion of the certified public
accounting firm that is retained by Unizan Financial Corp. as
of the date immediately before the Change in Control (the
"Accounting Firm") such other payments or benefits do not
constitute (in whole or in part) parachute payments, or such
excess parachute payments represent (in whole or in part)
reasonable compensation for services actually rendered within
the meaning of section 280G(b)(4) of the Internal Revenue Code
in excess (as defined in section 280G(b)(3) of the Internal
Revenue Code), or are otherwise not subject to the Excise Tax,
(2) Calculation of Benefits Subject to Excise Tax: the amount of
the Total Benefits that shall be treated as subject to the
Excise Tax shall be equal to the lesser of (a) the total
amount of the Total Benefits reduced by the amount of such
Total Benefits that in the opinion of the Accounting Firm are
not parachute payments, or (b) the amount of excess parachute
payments within the meaning of section 280G(b)(1) (after
applying clause (1), above), and
(3) Value of Noncash Benefits and Deferred Payments: the value of
any noncash benefits or any deferred payment or benefit shall
be determined by the Accounting Firm in accordance with the
principles of sections 280G(d)(3) and (4) of the Internal
Revenue Code.
(c) Assumed Marginal Income Tax Rate. For purposes of determining the
amount of the Gross-Up Payments, the Executive shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation in the
calendar years in which the Gross-Up Payments are to be made and state and local
income taxes at the highest marginal rate of taxation in the state and locality
of the Executive's residence on the date of Termination of Employment, net of
the reduction in federal income taxes that can be obtained from deduction of
such state and local taxes (calculated by assuming that any reduction under
section 68 of the Internal Revenue Code in the amount of itemized deductions
allowable to the Executive applies first to reduce the amount of such state and
local income taxes that would otherwise be deductible by the Executive, and
applicable federal FICA and Medicare withholding taxes).
(d) Return of Reduced Excise Tax Payment or Payment of Additional
Excise Tax. If the Excise Tax is later determined to be less than the amount
taken into account hereunder when the Executive's employment terminated, the
Executive shall repay to Unizan Financial Corp. -- when the amount of the
reduction in Excise Tax is finally determined -- the portion of the Gross-Up
Payments attributable to the reduction (plus that portion of the Gross-Up
Payments attributable to the Excise Tax, federal, state and local income taxes
and FICA and Medicare withholding taxes imposed on the Gross-Up Payments being
repaid by the Executive to the extent that the repayment results in a reduction
in Excise Tax, FICA and Medicare withholding taxes and/or a federal, state or
local income tax deduction).
If the Excise Tax is later determined to be more than the amount taken
into account hereunder when the Executive's employment terminated (due, for
example, to a payment whose existence or amount cannot be determined at the time
of the Gross-Up Payments), Unizan Financial Corp. shall make an additional
Gross-Up Payment to the Executive for that excess (plus any interest, penalties
or additions payable by the Executive for the excess) when the amount of the
excess is finally determined.
7.17 (a) Accounting Firm Gross-Up Determination. Subject to the
provisions of Section 7.16, all determinations required to be made under this
Section 7.17 -- including whether and when a Gross-Up Payment is required, the
amount of the Gross-Up Payment, and the assumptions to be used to arrive at the
determination (collectively, the "Determination") -- shall be made by the
Accounting Firm, which shall provide detailed supporting calculations both to
Unizan Financial Corp. and the Executive within 15 business days after receipt
of
13
notice from Unizan Financial Corp. or the Executive that there has been a
Gross-Up Payment, or such earlier time as is requested by Unizan Financial Corp.
(b) Fees and Expenses of the Accounting Firm and Agreement with the
Accounting Firm. All fees and expenses of the Accounting Firm shall be borne
solely by Unizan Financial Corp. or the Bank. Unizan Financial Corp. and the
Bank shall enter into any agreement requested by the Accounting Firm in
connection with the performance of its services hereunder.
(c) Accounting Firm's Opinion. If the Accounting Firm determines that
no Excise Tax is payable by the Executive, the Accounting Firm shall furnish the
Executive with a written opinion to that effect, and to the effect that failure
to report Excise Tax, if any, on the Executive's applicable federal income tax
return will not result in the imposition of a negligence or similar penalty.
(d) Accounting Firm's Determination Is Binding. The Determination by
the Accounting Firm shall be binding on Unizan Financial Corp., the Bank and the
Executive.
(e) Underpayment and Overpayment. Because of the uncertainty in
determining whether any of the Total Benefits will be subject to the Excise Tax
at the time of the Determination, it is possible that Gross-Up Payments that
should have been made will not have been made by Unizan Financial Corp.
("Underpayment"), or that Gross-Up Payments will be made that should not have
been made by Unizan Financial Corp. ("Overpayment").
If, after a Determination by the Accounting Firm, the Executive is
required to make a payment of additional Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred. The Underpayment
(together with interest at the rate provided in section 1274(d)(2)(B) of the
Internal Revenue Code) shall be paid promptly by Unizan Financial Corp. to or
for the benefit of the Executive.
If the amount of the Gross-Up Payment exceeds the amount necessary to
reimburse the Executive for his Excise Tax, the Accounting Firm shall determine
the amount of the Overpayment that has been made. The Overpayment (together with
interest at the rate provided in section 1274(d)(2)(B) of the Internal Revenue
Code) shall be paid promptly by the Executive to or for the benefit of Unizan
Financial Corp. Provided that his expenses are reimbursed by Unizan Financial
Corp. or the Bank, the Executive shall cooperate with any reasonable requests by
Unizan Financial Corp. in any contests or disputes with the Internal Revenue
Service relating to the Excise Tax.
(f) Accounting Firm Conflict of Interest. If the Accounting Firm is
serving as accountant or auditor for the individual, entity, or group effecting
the Change in Control, the Executive may appoint another nationally recognized
public accounting firm to make the Determinations required hereunder (in which
case the term "Accounting Firm" as used in this Agreement shall be deemed to
refer to the accounting firm appointed by the Executive under this paragraph).
7.18 Automatic Review Procedure. On the third year anniversary of the
Effective Date of this Agreement, and continuing on each subsequent third year
anniversary, the Bank will automatically review this Agreement for
reasonableness of benefits with the intent that the Executive's target benefit
shall be 75 percent of compensation less Bank-provided benefits. For purposes of
this Agreement, Bank-provided benefits shall include, but are not limited to,
the Bank 401(k) match, benefit accruals by the Bank under the United National
Bank & Trust Company Pension Plan and Trust through the plan's termination as of
April 14, 2002, and the Bank portion of Social Security benefits. The term
"compensation" as used in this Section 7.18 means the base annual salary of the
Executive projected at the Executive's Normal Retirement Age. Base annual salary
refers to compensation of the type that would be required to be reported by
Securities and Exchange Commission Rule 228.402(b) (17 CFR 228.402(b)),
specifically column (c) of that rule's Summary Compensation Table (or any
successor provision), excluding director fees but including elective deferred
compensation.
14
IN WITNESS WHEREOF, the Executive and a duly authorized Bank officer
have signed this Agreement as of the day and year first written above.
THE EXECUTIVE: THE BANK:
UNIZAN BANK, NATIONAL ASSOCIATION
By:
--------------------------- -----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇ Its:
Unizan Financial Corp., by its undersigned officer hereunto duly
authorized, hereby (1) agrees to and adopts such of the terms, conditions and
obligations of this Amended Salary Continuation Agreement between Unizan Bank,
National Association and ▇▇▇▇▇ ▇. ▇▇▇▇ as apply by their terms to Unizan
Financial Corp., specifically the obligations stated in Section 7.16 and Section
7.17 concerning Gross-Up Payments, and (2) notwithstanding any existing or
previous attorney-client relationship between Unizan Financial Corp. and any
counsel chosen by the Executive under Section 7.15(a), irrevocably consents to
the Executive's entering into an attorney-client relationship with that counsel,
and Unizan Financial Corp. agrees that a confidential relationship shall exist
between the Executive and that counsel.
UNIZAN FINANCIAL CORP.
By:
-------------------------------
Its:
15
SCHEDULE A
UNIZAN BANK, NATIONAL ASSOCIATION
AMENDED SALARY CONTINUATION AGREEMENT
▇▇▇▇▇ ▇. ▇▇▇▇
EARLY DISABILITY
TERMINATION ANNUAL
ANNUAL BENEFIT BENEFIT CHANGE-IN-
PLAN AGE AT EARLY PAYABLE AT PAYABLE AT CONTROL
YEAR PLAN ACCRUAL TERMINATION VESTED NORMAL NORMAL BENEFIT
PLAN ENDING YEAR BALANCE @ VESTING ACCRUAL RETIREMENT RETIREMENT PAYABLE IN A
YEAR APRIL END 7.5% (1) SCHEDULE BALANCE AGE (2) AGE LUMP SUM
-------- --------- --------------------- -------------- ------------ ---------------- ------------- --------------
1 2002 60 $255,552 100% (3) $255,552 $37,863 $37,863 $1,441,874
2 2003 61 $530,944 100% $530,944 $72,999 $72,999 $1,441,874
3 2004 62 $827,715 100% $827,715 $105,603 $105,603 $1,441,874
4 2005 63 $1,147,525 100% $1,147,525 $135,859 $135,859 $1,441,874
5 2006 64 $1,441,874(4) 100% $1,441,874 $159,400 $159,400 $1,441,874
6 2007 65 $1,383,092 $1,383,092
7 2008 66 $1,324,438 $1,324,438
8 2009 67 $1,261,232 $1,261,232
9 2010 68 $1,193,118 $1,193,118
10 2011 69 $1,119,716 $1,119,716
11 2012 70 $1,040,617 $1,040,617
12 2013 71 $955,376 $955,376
13 2014 72 $863,518 $863,518
14 2015 73 $764,529 $764,529
15 2016 74 $657,855 $657,855
16 2017 75 $542,899 $542,899
17 2018 76 $419,020 $419,020
18 2019 77 $285,523 $285,523
19 2020 78 $141,662 $141,662
20 2021 79 $0 $0
(1) The Accrual balance reflects payment at the beginning of each month
during retirement.
(2) Benefit is based on present value of the current payment stream of the
vested accrual balance using a standard discount rate (7.50%).
(3) Participant is 100 percent vested upon effective date of the Salary
Continuation Agreement.
(4) Reflects 11 months data prior to projected retirement in March 2006.
16
ADDENDUM A
UNIZAN BANK, NATIONAL ASSOCIATION
AMENDED SPLIT DOLLAR AGREEMENT
THIS AMENDED SPLIT DOLLAR AGREEMENT is entered into as of this 1st day
of August, 2002, by and between Unizan Bank, National Association, a nationally
chartered, FDIC-insured bank with its main office in Canton, Ohio (the "Bank")
and ▇▇▇▇▇ ▇. ▇▇▇▇, its Chairman of the Board (the "Executive"). This Amended
Split Dollar Agreement shall append the Split Dollar Endorsement entered into on
even date herewith, or as subsequently amended, by and between the
aforementioned parties.
WHEREAS, to encourage the Executive to remain an employee of the Bank,
the Bank is willing to divide the death proceeds of a life insurance policy on
the Executive's life to be effective until the Executive's Normal Retirement Age
of 64. The Bank will pay life insurance premiums from its general assets,
WHEREAS, effective as of May 1, 2001 the Bank's predecessor, United
National Bank & Trust Co., and the Executive entered into a Salary Continuation
Agreement providing for specified retirement benefits for the Executive after
termination of his employment, and a Split Dollar Agreement attached thereto as
Addendum A, providing for division of the death proceeds of a life insurance
policy on the Executive's life to be effective until the Executive's Normal
Retirement Age of 64,
WHEREAS, on March 7, 2002 UNB Corp., an Ohio corporation and holding
company for United National Bank & Trust Co., and BancFirst Ohio Corp. completed
a merger transaction whereby BancFirst Ohio Corp. merged with and into UNB Corp.
under the terms of the September 5, 2001 Agreement of Merger and Plan of
Reorganization, with UNB Corp. being the surviving entity under the name Unizan
Financial Corp.,
WHEREAS, in connection with the merger of BancFirst Ohio Corp. with and
into UNB Corp., UNB Corp.'s banking subsidiary, United National Bank & Trust
Co., and BancFirst Ohio Corp.'s banking subsidiary, The First National Bank of
Zanesville, entered into a plan of merger under which The First National Bank of
Zanesville also merged with and into United National Bank & Trust Co., with
United National Bank & Trust Co. being the surviving institution under the name
Unizan Bank, National Association,
WHEREAS, consistent with the terms of the May 1, 2001 Salary
Continuation Agreement and the Split Dollar Agreement attached thereto as
Addendum A, as successor to United National Bank & Trust Co. the Bank assumed
United National Bank & Trust Co.'s obligations under the May 1, 2001 Salary
Continuation Agreement and the Split Dollar Agreement,
WHEREAS, regulations promulgated under ERISA (the Employees Retirement
Income Security Act) that became effective on January 1, 2002 govern the
regulation of claims procedures contained in the Executive's form of Salary
Continuation Agreement and Split Dollar Agreement attached thereto as Addendum
A,
WHEREAS, the Bank and the Executive have negotiated and agreed to
certain changes in the terms and conditions of the May 1, 2001 Salary
Continuation Agreement and the Split Dollar Agreement attached thereto as
Addendum A, including revision of the claims and review provisions of Article 6
and miscellaneous other changes,
WHEREAS, the revised Claims and Review Procedure in Article 6 in this
document were drafted by ERISA counsel retained by ▇▇▇▇▇/▇▇▇▇▇▇ Consulting,
WHEREAS, the Bank and the Executive are entering into an Amended Salary
Continuation Agreement effective as of the date hereof, superseding and
replacing in its entirety the May 1, 2001 Salary Continuation Agreement, and the
Bank and the Executive intend that this Amended Split Dollar Agreement shall be
attached as Addendum A to the Amended Salary Continuation Agreement, superseding
and replacing in its entirety the Split Dollar Agreement attached as Addendum A
to the May 1, 2001 Salary Continuation Agreement, and
WHEREAS, the Bank and the Executive intend that this Amended Split
Dollar Agreement shall become effective immediately.
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
GENERAL DEFINITIONS
Capitalized terms not otherwise defined in this Amended Split Dollar
Agreement are used herein as defined in the Amended Salary Continuation
Agreement of even date herewith. The following terms shall have the meanings
specified:
"Insurer" means West Coast Life Insurance Company.
"Policy" means insurance policy no. ZUA385988 issued by the Insurer.
"Insured" means the Executive.
ARTICLE 2
POLICY OWNERSHIP/INTERESTS
2.1 Bank Ownership. The Bank is the sole owner of the Policy and shall
have the right to exercise all incidents of ownership. The Bank shall be the
beneficiary of any death proceeds remaining after the Executive's interest has
been paid under Section 2.2 of this Amended Split Dollar Agreement.
2.2 Executive's Interest. The Executive shall have the right to
designate the beneficiary(ies) of death proceeds in the amount of $1,441,874.
The Executive shall also have the right to elect and change settlement options
specified in the Policy that may be permitted. However, the Executive, the
Executive's transferee, or the Executive's beneficiary(ies) shall have no rights
or interests in the Policy for that portion of the death proceeds designated in
this Section 2.2 if the Executive is not in the full-time employment of the Bank
at the time of death, except for reason of a leave of absence approved by the
Bank.
2.3 Option to Purchase. The Bank shall not sell, surrender, or transfer
ownership of the Policy while this Amended Split Dollar Agreement is in effect
without first giving the Executive or the Executive's transferee a right of
first refusal to purchase the Policy for the Policy's interpolated terminal
reserve value. The right of first refusal to purchase the Policy must be
exercised within 60 days from the date the Bank gives written notice of the
Bank's intention to sell, surrender, or transfer ownership of the Policy. This
provision shall not impair the right of the Bank to terminate this Amended Split
Dollar Agreement.
2.4 Comparable Coverage. Upon execution of this Amended Split Dollar
Agreement, the Bank shall maintain the Policy in full force and effect, and the
Bank shall not amend, terminate, or otherwise abrogate the Executive's interest
in the Policy unless the Bank (a) replaces the Policy with a comparable
insurance policy to cover the benefit provided under this Amended Split Dollar
Agreement and (b) executes a new Split Dollar Agreement and Endorsement for the
comparable insurance policy. The Policy or any comparable policy shall be
subject to the claims of the Bank's creditors.
ARTICLE 3
PREMIUMS
3.1 Premium Payment. The Bank shall pay any premiums due on the Policy.
3.2 Imputed Income. The Bank shall impute income to the Executive in an
amount equal to (a) the current term rate for the Executive's age, multiplied by
(b) the net death benefit payable to the Executive's beneficiary(ies). The
"current term rate" is the minimum amount required to be imputed under Revenue
Rulings 64- 328 and 66-110, or any subsequent applicable authority.
2
ARTICLE 4
ASSIGNMENT
The Executive may assign without consideration all interests in the
Policy and in this Amended Split Dollar Agreement to any person, entity, or
trust. If the Executive transfers all of the Executive's interest in the Policy,
then all of the Executive's interest in the Policy and in the Amended Split
Dollar Agreement shall be vested in the Executive's transferee, who shall be
substituted as a party hereunder, and the Executive shall have no further
interest in the Policy or in this Amended Split Dollar Agreement.
ARTICLE 5
INSURER
The Insurer shall be bound only by the terms of the Policy. Any
payments the Insurer makes or actions it takes in accordance with the Policy
shall fully discharge it from all claims, suits, and demands of all entities or
persons. The Insurer shall not be bound by or be deemed to have notice of the
provisions of this Amended Split Dollar Agreement.
ARTICLE 6
CLAIMS PROCEDURE
6.1 Claims Procedure. A person or beneficiary ("claimant") who has not
received benefits under this Amended Split Dollar Agreement that he or she
believes should be paid shall make a claim for such benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a claim by
submitting to the Bank a written claim for the benefits.
6.1.2 Timing of Bank Response. The Bank shall respond to such
claimant within 90 days after receiving the claim. If the Bank
determines that special circumstances require additional time
for processing the claim, the Bank can extend the response
period by an additional 90 days by notifying the claimant in
writing, prior to the end of the initial 90-day period, that
an additional period is required. The notice of extension must
set forth the special circumstances and the date by which the
Bank expects to render its decision.
6.1.3 Notice of Decision. If the Bank denies part or all of the
claim, the Bank shall notify the claimant in writing of such
denial. The Bank shall write the notification in a manner
calculated to be understood by the claimant. The notification
shall set forth:
6.1.3.1 The specific reasons for the denial,
6.1.3.2 A reference to the specific provisions of this
Amended Split Dollar Agreement on which the denial is
based,
6.1.3.3 A description of any additional information or
material necessary for the claimant to perfect the
claim and an explanation of why it is needed,
6.1.3.4 An explanation of this Amended Split Dollar
Agreement's review procedures and the time limits
applicable to such procedures, and
6.1.3.5 A statement of the claimant's right to bring a civil
action under ERISA (Employees Retirement Income
Security Act) Section 502(a) following an adverse
benefit determination on review.
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6.2 Review Procedure. If the Bank denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Bank of
the denial, as follows:
6.2.1 Initiation - Written Request. To initiate the review, the
claimant, within 60 days after receiving the Bank's notice of
denial, must file with the Bank a written request for review.
6.2.2 Additional Submissions - Information Access. The claimant
shall then have the opportunity to submit written comments,
documents, records and other information relating to the
claim. The Bank shall also provide the claimant, upon request
and free of charge, reasonable access to, and copies of, all
documents, records and other information relevant (as defined
in applicable ERISA regulations) to the claimant's claim for
benefits.
6.2.3 Considerations on Review. In considering the review, the Bank
shall take into account all materials and information the
claimant submits relating to the claim, without regard to
whether such information was submitted or considered in the
initial benefit determination.
6.2.4 Timing of Bank Response. The Bank shall respond in writing to
such claimant within 60 days after receiving the request for
review. If the Bank determines that special circumstances
require additional time for processing the claim, the Bank can
extend the response period by an additional 60 days by
notifying the claimant in writing, prior to the end of the
initial 60-day period, that an additional period is required.
The notice of extension must set forth the special
circumstances and the date by which the Bank expects to render
its decision.
6.2.5 Notice of Decision. The Bank shall notify the claimant in
writing of its decision on review. The Bank shall write the
notification in a manner calculated to be understood by the
claimant. The notification shall set forth:
6.2.5.1 The specific reason for the denial,
6.2.5.2 A reference to the specific provisions of this
Amended Split Dollar Agreement on which the denial is
based,
6.2.5.3 A statement that the claimant is entitled to receive,
upon request and free of charge, reasonable access
to, and copies of, all documents, records and other
information relevant (as defined in applicable ERISA
regulations) to the claimant's claim for benefits,
and
6.2.5.4 A statement of the claimant's right to bring a civil
action under ERISA Section 502(a).
ARTICLE 7
AMENDMENTS AND TERMINATION
This Amended Split Dollar Agreement may be amended or terminated only
by a writing signed by the Bank and the Executive. However, unless otherwise
agreed to by the Bank and the Executive, this Amended Split Dollar Agreement
will automatically terminate on the Executive's 64th birthday.
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Amended Split Dollar Agreement shall bind the
Executive and the Bank and their beneficiaries, survivors, executors,
administrators, and transferees, and any Policy beneficiary.
8.2 No Guarantee of Employment. This Amended Split Dollar Agreement is
not an employment policy or contract. It does not give the Executive the right
to remain an employee of the Bank, nor does it interfere
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with the Bank's right to discharge the Executive. It also does not require the
Executive to remain an employee nor interfere with the Executive's right to
terminate employment at any time.
8.3 Successors; Binding Agreement. By an assumption agreement in form
and substance satisfactory to the Executive, the Bank shall require any
successor (whether direct or indirect, by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business or assets of the Bank to
expressly assume and agree to perform this Amended Split Dollar Agreement in the
same manner and to the same extent that the Bank would be required to perform
this Amended Split Dollar Agreement if no succession had occurred. The Bank's
failure to obtain such an assumption agreement before succession becomes
effective shall be considered a breach of the Amended Split Dollar Agreement and
shall entitle the Executive to the Change-in-Control Benefits payable under
Section 2.4 of the Amended Salary Continuation Agreement between the Bank and
the Executive of even date herewith.
8.4 Applicable Law. This Amended Split Dollar Agreement and all rights
hereunder shall be governed by and construed according to the laws of the State
of Ohio, except to the extent preempted by the laws of the United States of
America.
8.5 Entire Agreement. This Amended Split Dollar Agreement constitutes
the entire agreement between the Bank and the Executive concerning the subject
matter hereof. No rights are granted to the Executive under this Amended Split
Dollar Agreement other than those specifically set forth herein.
8.6 Administration. The Bank shall have powers which are necessary to
administer this Amended Split Dollar Agreement, including but not limited to the
power to--
(a) interpret the provisions of this Amended Split Dollar
Agreement,
(b) establish and revise the method of accounting for this Amended
Split Dollar Agreement,
(c) maintain a record of benefit payments, and
(d) establish rules and prescribe forms necessary or desirable to
administer this Amended Split Dollar Agreement.
8.7 Named Fiduciary. The Bank shall be the named fiduciary and plan
administrator under this Amended Split Dollar Agreement. The Bank may delegate
to others certain aspects of management and operational responsibilities,
including the employment of advisors and the delegation of ministerial duties to
qualified individuals.
8.8 Severability. If for any reason any provision of this Amended Split
Dollar Agreement is held invalid, such invalidity shall not affect any other
provision of this Amended Split Dollar Agreement not held so invalid, and each
such other provision shall, to the full extent consistent with the law, continue
in full force and effect. If any provision of this Amended Split Dollar
Agreement shall be held invalid in part, such invalidity shall in no way affect
the remainder of such provision, not held so invalid, and the remainder of such
provision, together with all other provisions of this Amended Split Dollar
Agreement shall, to the full extent consistent with the law, continue in full
force and effect.
8.9 Headings. The headings of sections herein are included solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Amended Split Dollar Agreement.
8.10 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice.
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(a) If to the Bank, to:
Board of Directors
Unizan Bank, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(b) If to the Executive, to:
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
IN WITNESS WHEREOF, the Bank and the Executive have signed this Amended
Split Dollar Agreement as of the date and year first written above.
THE EXECUTIVE: THE BANK:
UNIZAN BANK, NATIONAL ASSOCIATION
------------------------ By:
▇▇▇▇▇ ▇. ▇▇▇▇ --------------------------------
Its:
--------------------------------
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SPLIT DOLLAR POLICY ENDORSEMENT
UNIZAN BANK, NATIONAL ASSOCIATION
AMENDED SPLIT DOLLAR AGREEMENT
Policy No. ZUA385988 Insured: ▇▇▇▇▇ ▇. ▇▇▇▇
--------------- -----------------------------
Supplementing and amending the application for insurance to West Coast
Life Insurance Company ("Insurer") on May 29, 2001 (the application date), the
applicant requests and directs that:
BENEFICIARIES
1. Unizan Bank, National Association, located in Canton, Ohio (the
"Bank"), shall be the beneficiary of any death proceeds remaining after the
Insured's interest has been paid under paragraph (2) below.
2. The Insured or the Insured's transferee shall designate the
beneficiary(ies) of death proceeds in the amount of $1,441,874, subject to the
provisions of paragraph (5) below.
OWNERSHIP
3. The Owner of the Policy shall be the Bank. The Owner shall have all
ownership rights in the Policy except as may be specifically granted to the
Insured or the Insured's transferee in paragraph (4) of this endorsement.
4. The Insured or the Insured's transferee shall have the right to
assign his or her rights and interests in the Policy with respect to that
portion of the death proceeds designated in paragraph (2) of this endorsement,
and to exercise all settlement options with respect to such death proceeds.
5. Notwithstanding the provisions of paragraph (4) above, the Insured,
the Insured's transferee, or the Insured's beneficiary(ies) shall have no rights
or interests in the Policy with respect to that portion of the death proceeds
designated in paragraph (2) of this endorsement if the Insured is not in the
full-time employment of the Bank at the time of death, except for reason of a
leave of absence approved by the Bank.
MODIFICATION OF ASSIGNMENT PROVISIONS OF THE POLICY
6. Upon the death of the Insured, the interest of any collateral
assignee of the Owner of the Policy designated in (3) above shall be limited to
the portion of the proceeds described in paragraph (1) above.
OWNER'S AUTHORITY
7. The Insurer is hereby authorized to recognize the Owner's claim to
rights hereunder without investigating the reason for any action taken by the
Owner, including the Owner's statement of the amount of premiums the Owner has
paid on the Policy. The signature of the Owner shall be sufficient for the
exercise of any rights under this Endorsement and the receipt of the Owner for
any sums received by it shall be a full discharge and release therefor to the
Insurer. The Insurer may rely on a sworn statement in form satisfactory to it
furnished by the Owner, its successors or assigns, as to their interest and any
payments made pursuant to such statement shall discharge the Bank accordingly.
8. Any transferee's rights shall be subject to this Endorsement.
9. The Owner accepts and agrees to this split dollar endorsement.
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10. The undersigned is signing in a representative capacity and
warrants that he or she has the authority to bind the entity on whose behalf
this document is being executed.
Signed at Canton, Ohio, this day of , 2002.
--------------- ------------------
UNIZAN BANK, NATIONAL ASSOCIATION
By:
--------------------------------------------
Its:
--------------------------------------------
The Insured accepts and agrees to the foregoing and, subject to the
rights of the Owner as stated above, designates ______________________,
(relationship:________________) as primary beneficiary(ies) and
_______________________________, (relationship:___________________) as secondary
beneficiary of the portion of the proceeds described in (2) above.
Signed at Canton, Ohio, this day of , 2002.
----------- ---------------------
THE INSURED
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
8