Exhibit 10.7
HARVARD SAVINGS BANK
Salary Continuation Agreement
THIS SALARY CONTINUATION
AGREEMENT (the “Agreement”) is adopted this
28 th
day of December, 2006, by and
between HARVARD SAVINGS BANK, an Illinois corporation located in
Harvard, Illinois (the “Bank”), and MICHAEL T. NEESE
(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 any of the
following:
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(a)
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“
Change in Control ” shall mean (i) a change in
the ownership of the Bank, (ii) a change in the effective
control of the Bank, or (iii) a change in the ownership of a
substantial portion of the assets of the Bank, as described
below.
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(b)
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A change in the
ownership of a corporation occurs on the date that any one person,
or more than one person acting as a group (as defined in Proposed
Treasury Regulations section 1.409A-3(g)(5)(v)(B)), acquires
ownership of stock of the Bank that, together with stock held by
such person or group, constitutes more than 50 percent of the total
fair market value or total voting power of the stock of such
corporation.
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1
HARVARD SAVINGS BANK
Salary Continuation Agreement
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(c)
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A change in the
effective control of the Bank occurs on the date that either
(i) any one person, or more than one person acting as a group
(as defined in Proposed Treasury Regulations section
1.409A-3(g)(5)(v)(B)) acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such
person or persons) ownership of stock of the Bank possessing 35
percent or more of the total voting power of the stock of such
Bank, or (ii) a majority of the members of the Bank’s
board of directors is replaced during any 12-month period by
directors whose appointment or’election is not endorsed by a
majority of the members of the Bank’s board of directors
prior to the date of the appointment or election, provided that
this subsection “(ii)” is inapplicable where a majority
shareholder of the Bank is another corporation.
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(d)
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A change in a
substantial portion of the Bank’s assets occurs on the date
that any one person or more than one person acting as a group (as
defined in Proposed Treasury Regulations section
1.409A-3(g)(5)(v)(B)) acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such
person or persons) assets from the Bank that have a total gross
fair market value equal to or more man 40 percent of the total
gross fair market value of (i) all of the assets of the Bank,
or (ii) the value of the assets being disposed of, either of
which is determined without regard to any liabilities associated
with such assets. For all purposes hereunder, the definition of
Change in Control shall be construed to be consistent with the
requirements of Proposed Regulations section 1.409A-3(g)(5), except
to the extent that such Proposed Regulations are superseded by
subsequent guidance. Notwithstanding anything in this subsection to
the Contrary, a Change in Control shall not be deemed to have
occurred upon the conversion of the mutual holding company parent
of the Bank’s stock holding company to stock form, or in
connection with any reorganization used to effect such a
conversion.
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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 of this 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 an accident or health
plan 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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2
HARVARD SAVINGS BANK
Salary Continuation Agreement
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1.8
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“
Early Involuntary Termination ” means that the
Executive, prior to Normal Retirement Age, has experienced a
Separation from Service, following receipt of a written
notification from the Bank that such Separation from Service has
occurred for reasons other than Termination for Cause, Disability,
Early Voluntary Termination or following a Change of
Control.
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1.9
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“
Early Voluntary Termination ” means that the
Executive, prior to Normal Retirement Age, has experienced a
Separation from Service for reasons other than Termination for
Cause, Disability, Early Involuntary Termination, or following a
Change of Control.
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1.10
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“
Effective Date ” means November 1,
2006.
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1.11
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“ Good
Reason ” that the Executive, prior to Normal Retirement
Age, for reasons other than death, Disability or Termination for
Cause, experiences any of the following:
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(a)
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Without the
Executive’s express written consent, the assignment to the
Executive of any material duties or responsibilities inconsistent
with the Executive’s positions, or a change in the
Executive’s reporting responsibilities, titles, or offices,
or any removal of the Executive from or any failure to re-elect the
Executive to any of such positions;
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(b)
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A reduction by
the Bank in the Executive’s base salary;
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(c)
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Without the
Executive’s express written consent, the taking of any action
by the Bank which would adversely affect the Executive’s
participation in or materially reduce the Executive’s
benefits under any benefit plans, or the failure by the Bank to
provide the Executive with the number of paid vacation days to
which the Executive is then entitled on the basis of years of
service with the Bank in accordance with the Bank’s normal
vacation policy in effect on the date hereof;
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(d)
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Any failure of
the Bank to obtain the assumption of, or the agreement to perform,
this Agreement by any successor as contemplated in Section 9.7
hereof; or
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(e)
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The Bank
requiring the Executive to be based anywhere other than the
Harvard, Illinois area except for required travel on the Bank
business to an extent substantially consistent with the
Executive’s present business travel obligations or, in the
event the Executive consents to any relocation, the failure by the
Bank to pay (or reimburse the Executive) for all reasonable moving
expenses incurred by the Executive relating to a change of the
Executive’s principal residence in connection with such
relocation and to indemnify the Executive against any loss realized
on the sale of the Executive’s principal residence in
connection with any such change of residence.
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3
HARVARD SAVINGS BANK
Salary Continuation Agreement
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1.12
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“
Normal Retirement Age ” means the Executive attaining
age sixty-five (65).
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1.13
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“
Normal Retirement Date ” means the later of Normal
Retirement Age or Separation from Service.
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1.14
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“ Plan
Administrator ” means the Board or such committee or
person as the Board shall appoint.
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1.15
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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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1.16
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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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1.17
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“
Separation from Service ” means the termination of the
Executive’s employment with the Bank for reasons other than
death. Whether a Separation from Service takes place is determined
in accordance with the requirements of Code Section 409 A
based on the facts and circumstances surrounding the termination of
the Executive’s employment and whether the Bank and the
Executive intended for the Executive to provide significant
services for the Bank following such termination. A Separation from
Service will not have occurred if:
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(a)
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the Executive
continues to provide services as an employee of the Bank at an
annual rate that is twenty percent (20%) or more of the
services rendered, on average, during the immediately preceding
three (3) full calendar years of employment (or, if employed
less than three (3) years, such lesser period) and the annual
remuneration for such services is twenty percent (20%) or more
of the average annual remuneration earned during the final three
(3) full calendar years of employment (or, if less, such
lesser period), or
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(b)
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the Executive
continues to provide services to the Bank in a capacity other than
as an employee of the Bank at an annual rate that is fifty percent
(50%) or more of the services rendered, on average, during the
immediately preceding three (3) full calendar years of
employment (or if employed less than three (3) years, such
lesser period) and the annual remuneration for such services is
fifty percent (50%) or more of the average annual remuneration
earned during the final three (3) full calendar years of
employment (or if less, such lesser period).
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The Executive’s employment
relationship will be treated as continuing intact while the
Executive is on military leave, sick leave or other bona fide leave
of absence if the period of such leave of absence does not exceed
six (6) months, or if longer, so long as the Executive’s
right to reemployment with the Bank is provided either by statute
or by contract. If the period of leave exceeds six (6) months
and there is no right to reemployment, a Separation from Service
will be deemed to have occurred as of the first date immediately
following such six (6) month period.
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HARVARD SAVINGS BANK
Salary Continuation Agreement
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1.18
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“
Specified Employee ” means a key employee (as defined
in Section 416(i) of the Code without regard to paragraph 5
thereof) of the Bank if any stock of the Bank is publicly traded on
an established securities market or otherwise, as determined by the
Plan Administrator based on the twelve (12) month period
ending each December 31 (the “identification
period”) If the Executive is determined to be a Specified
Employee for an identification period, the Executive shall be
treated as a Specified Employee for purposes of this Agreement
during the twelve (12) month period that begins on the first
day of the fourth month following the close of the identification
period.
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1.19
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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; or
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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
the Normal Retirement Date, 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 TWENTY-FIVE THOUSAND Dollars
($25,000).
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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 Normal Retirement Date. The annual benefit
shall be distributed to the Executive for fifteen
(15) years.
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2.2
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Early
Involuntary Termination Benefit . If Early Involuntary Termination occurs, or
the Executive separates service for Good Cause, 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 Account Value determined as of
the end of the month preceding Separation from Service, with such
value annuitized using a six percent (6%) rate over the
installment period in Section 2.2.2.
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5
HARVARD SAVINGS BANK
Salary Continuation Agreement
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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) consecutive, 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
Voluntary Termination Benefit . If Early Voluntary 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 vested Account Value determined
as of the end of the month preceding Separation from Service, with
such value annuitized using a six percent (6%) rate over the
installment period in Section 2.3.2. This benefit is
determined by vesting the Executive in the Account Value, subject
to the following vesting schedule.
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Vested Percentage
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1
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10%
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2
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20%
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3
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30%
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4
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40%
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5
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50%
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6
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60%
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7+
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100%
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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) consecutive, 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 which results in a Separation
from Service 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 the annual 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 followed by the Executive’s
Separation from Service, 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 benefit
under this Section 2.4 is the annual Normal Retirement Benefit
amount described in Section 2.1.1.
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6
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 Timing of Distribution . Notwithstanding any provision of this
Agreement to the contrary, if the Executive is considered a
Specified Employee at Separation from Service, the provisions of
this Section 2.6 shall govern all distributions hereunder.
Benefit distributions that are made due to a Separation from
Service occurring while the Executive is a Specified Employee 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 the 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 Income Inclusion Under Code
Section 409A . Upon
any amount is required to be included in income by the Executive
prior to receipt due to a failure of this Agreement to meet the
requirements of Code Section 409A, the Executive may petition
the Plan Administrator for a distribution of that portion of the
amount the Bank has accrued with respect to the Bank’s
obligations hereunder that is required to be included in the
Executive’s income. Upon the grant of such a petition, which
grant shall not be unreasonably withheld, the Bank shall distribute
to the Executive immediately available funds in an amount equal to
the portion of the amount the Bank has accrued with respect to the
Bank’s obligations hereunder required to be included in
income as a result of the failure of this Agreement t
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