Exhibit 10.28
UNITED COMMUNITY FINANCIAL CORP. DEFERRED COMPENSATION PLAN
AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2017
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Notwithstanding the foregoing, a Change in Control shall not occur unless such transaction constitutes a change in the effective control of the Company under Section 409A of the Code.
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Employee may participate in the Plan commencing as of the Entry Date occurring on or after the date on which he or she becomes an Eligible Employee. The Committee may limit an Eligible Employee’s participation in the Plan to include less than all Plan benefits. Without limiting the generality of the foregoing, the Committee may limit an Eligible Employee’s participation to deferral of corrective amounts under the Savings Plan.
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For purposes of this Section 5.4, each payment, including each installment payment, shall be treated as a separate payment under Section 409A of the Code.
“A” is the Matching Contribution which would have been contributed to the Savings Plan and allocated to the Participant’s account (pursuant to Election 24 of the Savings Plan) for the Taxable Year, determined without the limitations imposed under Sections 401(a)(17), 401(k)(3), 401(m) (2), 402(g) and 415(c) of the Code calculated using the Participant’s Base Salary for the Taxable Year; and
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“B” is the actual Matching Contribution made on behalf of the Participant pursuant to Election 24 of the Savings Plan for the Taxable Year.
“C” is the Discretionary Nonelective Contribution which would have been contributed to the Savings Plan and allocated to the Participant (pursuant to Elections 27 and 28 of the Savings Plan) for the Taxable Year, determined without the limitations imposed by the nondiscrimination testing requirements under Sections 401(a)(4), 401(a)(17) and 415(c) of the Code calculated using the Participant’s Base Salary for the Taxable Year; and
“D” is the actual Discretionary Nonelective Contribution made on behalf of the Participant’s Account as determined in accordance with Elections 27 and 28 of the Savings Plan for the Taxable Year.
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Years of Service Vested Percentage
Less than 3 years 0%
3 years or more 100%
Notwithstanding the vesting schedule set out above, the Committee may, in its discretion, establish a different vesting schedule that will apply to Corrective Matching Contributions, Corrective Nonelective Contributions and Discretionary Contributions made to the Plan on behalf of any Participant for any Plan Year.
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In the absence of a valid election with respect to form of payment, amounts will be paid in a single lump sum payment.
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Notwithstanding the foregoing, the Committee may allow Participants to elect that payment be made in eleven (11) annual installments to be paid over a period in excess of ten (10) years. If a Participant dies prior to receiving the final installment, the remaining amount shall be paid in the single lump sum payment to the Participant’s Beneficiary on a day selected by the Company which is within the ninety (90) day period immediately following the date of the Participant’s death.
In the event that amounts are payable in three (3) installments, the first installment shall commence on a day selected by the Company which shall be within the 90-day period commencing on the applicable Distribution Date, in accordance with this Section 9, and shall equal 1/3rd of the Account balance on the Determination Date. Following the initial installment distribution, subsequent installment distributions shall be paid on the anniversary date of such initial installment in each succeeding year thereafter, and shall be calculated by multiplying the Account balance on the Distribution Date by a fraction of which the numerator is one and the denominator is one whole number less than the denominator of the fraction used in calculating the immediately preceding annual installment payment until one hundred percent (100%) of the value has been distributed to the Participant. Until the Plan pays the entire amount of a Participant’s Account, the Plan will continue to credit the Participant’s Account with Earnings, in accordance with Section 7.3.
If payments are made in eleven (11) annual installments in accordance with the preceding paragraph, the same methodology for calculating the annual installments as described above shall apply, except that the first annual installment shall equal 1/11th of the Account balance on the Determination Date.
Notwithstanding the foregoing, if the Participant’s deferrals for a Plan Year consist solely of Corrective Deferrals, the amount will be paid in three
(3) installments following the Participant’s Separation from Service.
Notwithstanding the foregoing, if the value of a Participant’s vested Account is less than Twenty Thousand One Hundred Dollars ($20,100.00), the amount will be paid in a single lump sum.
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(i) through reimbursement or compensation by insurance or otherwise; or (ii) by liquidation of the Participant’s assets to the extent that such liquidation of assets would not itself cause severe financial hardship; or (iii) by the Participant’s cessation of Corrective Deferrals under the Plan.
The Committee’s determination of whether payment may be accelerated in accordance with this Section 10 shall be made in accordance with Treas. Reg.
Section 1.409A-3(j)(4).
If the Committee reasonably anticipates that if a payment were made as scheduled under the Plan it would result in a loss of the Employer’s tax deduction due to the application of Section 162(m) of the Code, such payment can be delayed and paid (a) during the Participant’s first Taxable Year in which the Committee reasonably anticipates that the Employer’s tax deduction will not be limited or eliminated by the application of Section 162(m) of the Code or
(b) subject to Section 9.5, during the period beginning with the Participant’s Separation from Service and ending on the later of the last day of the Employer’s Taxable Year in which the
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Participant separates from service or the 15th day of the third month following the Participant’s Separation from Service. Notwithstanding the foregoing, no payment under the Plan may be deferred in accordance with this Section 11 unless all scheduled payments to the Participant that could be delayed in accordance with Treas. Reg. Section 1.409A-2(b)(7)(i) are also delayed.
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Without limiting the generality of the foregoing, the Committee shall be entitled, among other things, to make non-uniform and selective determinations with regard to: (a) the terms or conditions of any Elective Deferral; (b) the amount, terms or conditions of any Corrective Matching Contribution or Discretionary Contribution; or (c) the availability of Investment Options.
The Board may, at any time, and in its sole discretion, alter, amend, modify, suspend or terminate the Plan or any portion thereof; provided, however, that no such amendment, modification, suspension or termination shall, without the consent of a Participant, adversely affect such Participant’s right to the vested amount credited to his or her Account and provided, further, that, no payment of benefits shall occur upon termination of the Plan unless the requirements of Section 409A of the Code have been met.
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This Plan shall constitute an “account balance plan” as defined in Treas. Reg. Section 31.3121(v)(2)-1(c)(1)(ii)(A). For purposes of Section 409A of the Code, all amounts deferred or contributed under this Plan shall be aggregated with amounts deferred or contributed under other account balance plans.
The Employers may make contributions to the Trust which will be held by the Trustee and invested and distributed in accordance with the terms of the Plan and the Trust Agreement. The Company retains the right, but not the obligation, to direct that Trust assets be invested in such a manner as to mirror the hypothetical investments of the Participants.
The Trust is intended to be a rabbi trust and the assets of the Trust shall at all times be subject to the claims of the Employers’ general creditors.
Notwithstanding the existence of the Trust, the Plan is intended to be “unfunded” for purposes of ERISA and shall not be construed as providing income to Participants prior to the date that amounts deferred under the Plan are paid.
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furnish written notice of the extension to the Claimant before the end of the initial ninety (90) day period. Any notice of extension shall describe the special circumstances necessitating the additional time and the date by which the Committee expects to render its decision.
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In WITNESS WHEREOF, United Community Financial Corp. has adopted this Plan this 31 day of December, 2016, to become effective as of the Effective Date written above.
United Community Financial Corp.
By: /s/ Timothy W. Esson Name: Timothy W. Esson Title: Chief Financial Officer
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