Exhibit 10.8
Harvard Savings Bank
Salary Continuation Agreement
HARVARD SAVINGS
BANK
SALARY CONTINUATION
AGREEMENT
This SALARY CONTINUATION AGREEMENT
(this “Agreement”) is adopted this 1
st day of January, 2008, by and between Harvard
Savings Bank, a savings bank located in Harvard, Illinois (the
“Bank”), and Donn Claussen (the
“Executive”).
The purpose of this Agreement is to
provide specified benefits to the Executive, a member of a select
group of management or highly compensated employees who contribute
materially to the continued growth, development and future business
success of the Bank. This Agreement shall be unfunded for tax
purposes and for purposes of Title I of the Employee Retirement
Income Security Act of 1974 (“ERISA”), as amended from
time to time.
Article 1
Definitions
Whenever used in this Agreement, the
following words and phrases shall have the meanings
specified:
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1.1
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“
Account Value ” means the amount shown on Schedule A
under the heading Account Value. The parties expressly acknowledge
that the Account Value may be different than the liability that
should be accrued by the Bank, under Generally Accepted Accounting
Principles (“GAAP”), for the Bank’s obligation to
the Executive under this Agreement. The Account Value on any date
other than the end of a Plan Year shall be determined by adding the
prorated increase attributable for the current Plan Year to the
Account Value for the previous Plan Year.
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1.2
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“
Beneficiary ” means each designated person or entity,
or the estate of the deceased Executive, entitled to any benefits
upon the death of the Executive pursuant to Article 4.
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1.3
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“
Beneficiary Designation Form ” means the form
established from time to time by the Plan Administrator that the
Executive completes, signs and returns to the Plan Administrator to
designate one or more Beneficiaries.
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1.4
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“
Board ” means the Board of Directors of the Bank as
from time to time constituted.
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1.5
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“
Change in Control ” means a change in the ownership or
effective control of the Bank, or in the ownership of a substantial
portion of the assets of the Bank, as such change is defined in
Code Section 409A and regulations thereunder.
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1.6
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“
Code ” means the Internal Revenue Code of 1986, as
amended, and all regulations and guidance thereunder, including
such regulations and guidance as may be promulgated after the
Effective Date.
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Harvard Savings Bank
Salary Continuation Agreement
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1.7
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“
Disability ” means the Executive: (i) is unable
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months; or
(ii) is, by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than twelve
(12) months, receiving income replacement benefits for a
period of not less than three (3) months under an accident and
health plan covering employees or directors of the Bank. Medical
determination of Disability may be made by either the Social
Security Administration or by the provider of disability insurance
covering employees or directors of the Bank provided that the
definition of “disability” applied under such insurance
program complies with the requirements of the preceding sentence.
Upon the request of the Plan Administrator, the Executive must
submit proof to the Plan Administrator of the Social Security
Administration’s or the provider’s
determination.
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1.8
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“
Early Involuntary Termination ” means a Separation
from Service (other than a Termination for Cause) prior to Normal
Retirement Age due to the independent exercise of the unilateral
authority of the Bank to terminate the Executive’s
employment, other than due to the Executive’s implicit or
explicit request, where the Executive was willing and able to
continue performing services.
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1.9
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“
Early Voluntary Termination ” means Separation from
Service before Normal Retirement Age except when such Separation
from Service is due to death, Early Involuntary Termination or
Termination for Cause.
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1.10
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“
Effective Date ” means January 1,
2008.
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1.11
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“
Normal Retirement Age ” means the Executive’s
age sixty-five (65).
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1.12
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“
Normal Retirement Date ” means the later of Normal
Retirement Age or Separation from Service.
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1.13
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“ Plan
Administrator ” means the Board or such committee or
person as the Board shall appoint.
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1.14
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“ Plan
Year ” means each twelve (12) month period
commencing on January 1 and ending on December 31 of each
year. The initial Plan Year shall commence on the Effective Date of
this Agreement and end on the following
December 31.
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1.15
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“
Schedule A ” means the schedule attached to this
Agreement and made a part hereof. Schedule A shall be updated upon
a change in any of the benefits under Articles 2 or 3.
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1.16
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“
Separation from Service ” means termination of the
Executive’s employment with the Bank for reasons other than
death or Disability. Whether a Separation from Service
has
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Harvard Savings Bank
Salary Continuation Agreement
occurred is determined in accordance
with the requirements of Code Section 409A based on whether
the facts and circumstances indicate that the Bank and Executive
reasonably anticipated that no further services would be performed
after a certain date or that the level of bona fide services the
Executive would perform after such date (whether as an employee or
as an independent contractor) would permanently decrease to no more
than twenty percent (20%) of the average level of bona fide
services performed (whether as an employee or an independent
contractor) over the immediately preceding thirty-six
(36) month period (or the full period of services to the Bank
if the Executive has been providing services to the Bank less than
thirty-six (36) months).
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1.17
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“
Specified Employee ” means an employee who at the time
of Separation from Service is a key employee of the Bank, if any
stock of the Bank is publicly traded on an established securities
market or otherwise. For purposes of this Agreement, an employee is
a key employee if the employee meets the requirements of Code
Section 416(i)(l)(A)(i), (ii), or (iii) (applied in
accordance with the regulations thereunder and disregarding section
416(i)(5)) at any time during the twelve (12) month period
ending on December 31 (the “identification
period”). If the employee is a key employee during an
identification period, the employee is treated as a key employee
for purposes of this Agreement during the twelve (12) month
period that begins on the first day of April following the close of
the identification period.
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1.18
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“
Termination for Cause ” means Separation from Service
for:
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(a)
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Gross
negligence or gross neglect of duties to the Bank;
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(b)
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Conviction of a
felony or of a gross misdemeanor involving moral turpitude in
connection with the Executive’s employment with the Bank;
or
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(c)
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Fraud,
disloyalty, dishonesty or willful violation of any law or
significant Bank policy committed in connection with the
Executive’s employment and resulting in a material adverse
effect on the Bank.
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Article 2
Distributions During
Lifetime
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2.1
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Normal
Retirement Benefit . Upon
Separation from Service after attaining Normal Retirement Age, the
Bank shall distribute to the Executive the benefit described in
this Section 2.1 in lieu of any other benefit under this
Article.
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2.1.1
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Amount of
Benefit . The annual
benefit under this Section 2.1 is Fifty Two Thousand Dollars
Dollars ($52,000).
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2.1.2
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Distribution
of Benefit . The Bank
shall distribute the annual benefit to the Executive in twelve
(12) equal monthly installments commencing on the first day of
the month following the Normal Retirement Date. The annual benefit
shall be distributed to the Executive for fifteen
(15) years.
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Harvard Savings Bank
Salary Continuation Agreement
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2.2
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Early
Voluntary Termination Benefit . If Early Voluntary Termination occurs, the
Bank shall distribute to the Executive the benefit described in
this Section 2.2 in lieu of any other benefit under this
Article.
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2.2.1
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Amount of
Benefit . The benefit
under this Section 2.2 is the vested Account Value determined
as of the end of the month preceding Separation from Service. This
benefit is determined by vesting the Executive in ten percent
(10%) of the Account Value at the beginning of the second Plan
Year (January 2009), and an additional ten percent (10%) of
said amount for each succeeding year thereafter until the Executive
becomes one hundred percent (100%) vested in the Account
Value.
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2.2.2
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Distribution
of Benefit . The Bank
shall distribute the benefit to the Executive in one hundred eighty
(180) equal monthly installments commencing on the first day
of the month following Separation from Service.
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2.3
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Early
Involuntary Termination Benefit . If Early Involuntary Termination occurs, the
Bank shall distribute to the Executive the benefit described in
this Section 2.3 in lieu of any other benefit under this
Article.
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2.3.1
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Amount of
Benefit . The benefit
under this Section 2.3 is the Account Value determined as of
the end of the month preceding Separation from Service.
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2.3.2
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Distribution
of Benefit . The Bank
shall distribute the benefit to the Executive in one hundred eighty
(180) equal monthly installments commencing on the first day
of the month following Separation from Service.
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2.4
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Disability
Benefit . If the
Executive experiences a Disability prior to Normal Retirement Age,
the Bank shall distribute to the Executive the benefit described in
this Section 2.4 in lieu of any other benefit under this
Article.
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2.4.1
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Amount of
Benefit . The benefit
under this Section 2.4 is one hundred percent (100%) of
the Normal Retirement Benefit described in
Section 2.1.1.
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2.4.2
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Distribution
of Benefit . The Bank
shall distribute the annual benefit to the Executive in twelve
(12) equal monthly installments commencing on the first day of
the month following Normal Retirement Age. The annual benefit shall
be distributed to the Executive for fifteen
(15) years.
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2.5
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Change in
Control Benefit . If a
Change in Control occurs, the Bank shall distribute to the
Executive the benefit described in this Section 2.5 in lieu of
any other benefit under this Article.
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2.5.1
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Amount of
Benefit . The annual
benefit under this Section 2.5 is the Normal Retirement
Benefit amount described in Section 2.1.1.
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Harvard Savings Bank
Salary Continuation Agreement
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2.5.2
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Distribution
of Benefit . The Bank
shall distribute the annual benefit to the Executive in twelve
(12) equal monthly installments commencing on the first day of
the month following Normal Retirement Age. The annual benefit shall
be distributed to the Executive for fifteen
(15) years.
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2.5.3
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Parachute
Payments .
Notwithstanding any provision of this Agreement to the contrary,
and to the extent allowed by Code Section 409A, if any benefit
payment under this Section 2.5 would be treated as an
“excess parachute payment” under Code
Section 280G, the Bank shall reduce such benefit payment to
the extent necessary to avoid treating such benefit payment as an
excess parachute payment.
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2.6
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Restriction
on Commencement of Distributions . Notwithstanding any provision of this
Agreement to the contrary, if the Executive is considered a
Specified Employee, the provisions of this Section 2.6 shall
govern all distributions hereunder. If benefit distributions which
would otherwise be made to the Executive due to Separation from
Service are limited because the Executive is a Specified Employee,
then such distributions shall not be made during the first six
(6) months following Separation from Service. Rather, any
distribution which would otherwise be paid to the Executive during
such period shall be accumulated and paid to the Executive in a
lump sum on the first day of the seventh month following Separation
from Service. All subsequent distributions shall be paid in the
manner specified.
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2.7
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Distributions Upon Taxation of Amounts
Deferred . If, pursuant
to Code Section 409A, the Federal Insurance Contributions Act
or other state, local or foreign tax, the Executive becomes subject
to tax on the amounts deferred hereunder, then the Bank may make a
limited distribution to the Executive in a manner that conforms to
the requirements of Code section 409A. Any such distribution will
decrease the Executive’s benefits distributable under this
Agreement.
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2.8
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Change in
Form or Timing of Distributions . For distribution of benefits under this
Article 2, the Executive and the Bank may, subject to the terms of
Section 8.1, amend this Agreement to delay the timing or
change the form of distributions. Any such amendment:
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(a)
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may not
accelerate the time or schedule of any distribution, except as
provided in Code Section 409A;
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(b)
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must, for
benefits distributable under Sections 2.4 and 2.5 be made at least
twelve (12) months prior to the first scheduled
distribution;
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(c)
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must, for
benefits distributable under Sections 2.1, 2.2, 2.3 and 2.5, delay
the commencement of distributions for a minimum of five
(5) years from the date the first distribution was originally
scheduled to be made; and
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(d)
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must take
effect not less than twelve (12) months after the amendment is
made.
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Harvard Savings Bank
Salary Continuation Agreement
Article 3
Distribution at
Death
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3.1
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Death During
Active Service . If the
Executive dies prior to Separation from Service, the Bank shall
distribute to the Beneficiary the benefit described in this
Section 3.1. This benefit shall be distributed in lieu of any
benefit under Article 2.
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3.1.1
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Amount of
Benefit . The benefit
under this Section 3.1 is the Normal Retirement Benefit amount
described in Section 2.1.1.
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3.1.2
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Distribution
of Benefit . The Bank
shall distribute the annual benefit to the Beneficiary in twelve
(12) equal monthly installments commencing on the first day of
the fourth month following the Executive’s death. The annual
benefit shall be distributed to the Beneficiary for fifteen
(15) years. The Beneficiary shall be required to provide the
Executive’s death certificate to the Bank.
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3.2
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Death During
Distribution of a Benefit . If the Executive dies after any benefit
distributions have commenced under this Agreement but before
receiving all such distributions, the Bank shall distribute to the
Beneficiary the remaining benefits at the same time and in the same
amounts they would have been distributed to the Executive had the
Executive survived.
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3.3
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Death Before
Benefit Distributions Commence . If the Executive
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