CONSUMERS NATIONAL BANK SALARY CONTINUATION AGREEMENT (2011 AMENDMENT AND RESTATEMENT)
Exhibit
10.6
CONSUMERS
NATIONAL BANK
SALARY
CONTINUATION AGREEMENT
(2011
AMENDMENT AND RESTATEMENT)
THIS
CONSUMERS NATIONAL BANK SALARY CONTINUATION AGREEMENT (2011 Amendment and
Restatement) (this “Agreement”) is made this
_____ day of February, 2011, by and between CONSUMERS NATIONAL BANK, a
nationally chartered commercial bank located in Minerva, Ohio (the “Company”), and XXXXX XXXXX
(the “Executive”).
WHEREAS, the Company and the
Executive entered into a Consumers National Bank Salary Continuation Agreement
on August 29, 2008 (the “2008
Agreement”);
WHEREAS, the Company desires
to restrict, after the Executive’s Termination of Employment with the Company,
the Executive’s availability to other employers or entities that compete with
Consumers;
WHEREAS, to encourage the
Executive to undertake these and other covenants, the Company is willing to
provide salary continuation benefits to the Executive that are more expansive
than those provided under the 2008 Agreement;
NOW, THEREFORE, in
consideration of these premises, the mutual promises and undertakings set forth
in this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Executive and the Company
hereby agree to amend and restate the 2008 Agreement as follows.
Article
1
Definitions
Whenever
used in this Agreement, the following words and phrases shall have the meanings
specified:
1.1 “Accrual Balance” means the liability
that should be accrued by the Company, under Generally Accepted Accounting
Principles (“GAAP”), for
the Company’s obligation to the Executive under this Agreement by applying
Accounting Standards Codification Topic 715 (Compensation – Retirement Benefits)
(formerly, Accounting Principles Board Opinion Number 12, as amended by
Statement of Financial Accounting Standards Number 106) and the Discount
Rate. Any one of a variety of amortization methods may be used to
determine the Accrual Balance. However, once chosen, the method must
be consistently applied. The Accrual Balance shall be reported
annually by the Company to the Executive.
1.2 “Affiliate” means the Company
and any other entity with which the Company would be considered a single
employer under Sections 414(b) and 414(c) of the Code, applying fifty percent
(50%) instead of eighty percent (80%) both in Code Sections 1563(a)(1), (2), and
(3) for purposes of determining a controlled group of corporations under Code
Section 414(b) and in Treasury Regulation Section 1.414(c)-2 for purposes of
determining trades or businesses under common control under Code Section
414(c).
1.3 “Board” means the Board of
Directors of the Company.
1.4 “Cause” means (i) fraud; (ii)
embezzlement; (iii) conviction of, or plea of nolo contendere to, any felony;
(iv) a material breach of, or the willful failure or refusal by the Executive to
perform and discharge the Executive’s duties, responsibilities, and obligations
under this Agreement; (v) any act of moral turpitude or willful misconduct by
the Executive intended to result in personal enrichment of the Executive at the
expense of Consumers or any of its Affiliates or which has a material adverse
impact on the business or reputation of Consumers (such determination to be made
by the Board in its reasonable judgment); (vi) intentional material damage to
the property or business of Consumers; (vii) gross negligence; or (viii) the
ineligibility of the Executive to perform the Executive’s duties because of a
ruling, directive, or other action by any agency of the United States or any
state of the United States having regulatory authority over Consumers; but in
each case only if (a) the Executive has been provided with written notice of any
assertion that there is a basis for termination for Cause, which notice shall
specify in reasonable detail specific facts regarding any such assertion, (b)
such written notice is provided to the Executive in a reasonable time (and in
any event no less than three (3) business days) before the Board meets to
consider any possible termination for Cause, (c) at or prior to the meeting of
the Board to consider the matters described in the written notice, an
opportunity is provided to the Executive and his counsel to be heard before the
Board with respect to the matters described in the written notice, (d) any
resolution or other Board action held with respect to any deliberation regarding
or decision to terminate the Executive for Cause is duly adopted by a vote of at
least two-thirds (2/3) of the entire Board (excluding the Executive) at a
meeting of the Board duly called and held, and (e) the Executive is promptly
provided with a copy of the resolution or other corporate action taken with
respect to such termination. No act or failure to act by the
Executive shall be considered willful unless done or omitted to be done by him
not in good faith and without reasonable belief that his action or omission was
in the best interests of Consumers.
1.5 “Change of Control” means the transfer of
shares of the Company’s voting common stock such that one entity or one person,
or more than one entity or one person acting as a group, acquires (or is deemed
to acquire when applying Section 318 of the Code) more than fifty percent (50%)
of the Company’s outstanding voting common stock.
1.6 “Code” means the Internal
Revenue Code of 1986, as amended, or any successor statute, rule or regulation
of similar effect.
1.7 “Company” means Consumers
National Bank, an Ohio Banking Corporation.
1.8 “Confidential Information”
means all business and other information relating to the business of Consumers,
including without limitation, technical or nontechnical data, programs, methods,
techniques, processes, financial data, financial plans, product plans, and lists
of actual or potential customers, which (i) derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other Persons, and (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy or
confidentiality. Such information and compilations of information shall be
contractually subject to protection under this Agreement whether or not such
information constitutes a trade secret and is separately protectable at law or
in equity as a trade secret.
1.9 “Consumers” means the Company,
Consumers Bancorp, Inc., and any Affiliate.
1.10 “Customer” means any
individual, joint venturer, entity of any sort, or other business partner of
Consumers with, for, or to whom Consumers has provided Financial Products or
Services during the final two (2) years of the Executive’s employment with
Consumers, or any individual, joint venturer, entity of any sort, or business
partner whom Consumers has identified as a prospective customer of Financial
Products or Services within the final year of the Executive’s employment with
Consumers.
1.11 “Disability” means, if the Executive
is covered by a Company sponsored disability policy, total disability as defined
in such policy without regard to any waiting period. If the Executive
is not covered by such a policy, Disability means the Executive suffering a
sickness, accident, or injury which, in the judgment of a physician satisfactory
to the Company, prevents the Executive from performing substantially all of the
Executive’s normal duties for the Company. As a condition to
receiving any Disability benefits, the Company may require the Executive to
submit to such physical or mental evaluations and tests as the Company’s Board
of Directors deems appropriate.
1.12 “Discount Rate” means the rate
used by the plan administrator for determining the Accrual
Balance. The initial Discount Rate is six percent
(6%). However, in order to maintain the Discount Rate within
reasonable standards according to GAAP and/or applicable bank regulatory
guidance, the Discount Rate will adjust to reflect a rate of return on a
high-quality fixed-income debt security rounded up to the nearest quarter
percentage. For purposes of this Agreement, the Discount Rate will be
reviewed and updated annually prior to each January 1 using the twenty-
(20-) year term Xxxxx XX Corporate Rate for a high- quality fixed-income debt
security.
1.13 “Early Termination” means Termination of
Employment before Normal Retirement Age for reasons other than death,
Disability, Termination for Cause, or following a Change of
Control.
1.14 “Early Termination Date” means the month, day,
and year in which Early Termination occurs.
1.15 “Effective Date” means August 29,
2008.
1.16 “Final Pay” means the average
of the base pay plus annual performance-based incentive plan paid to the
Executive by the Company for the last three (3) full calendar years prior to
Normal Retirement Age.
1.17 “Financial Products or
Services” means any product or service that a financial institution or a
financial holding company could offer by engaging in any activity that is
financial in nature or incidental to such a financial activity under Section
4(k) of the Bank Holding Company Act of 1956 and that is offered by Consumers on
the date of the Executive’s Termination of Employment, including but not limited
to banking activities and activities that are closely related and a proper
incident to banking, or other products or services of the type in which the
Executive was involved during the Executive’s employment with
Consumers.
1.18 “Normal Retirement Age” means
the Executive’s sixty-fifth (65th)
birthday.
1.19 “Normal Retirement Date” means the later of the
Normal Retirement Age or Termination of Employment.
1.20 “Plan Administrator” means the
Company or such committee or person as the Board shall appoint.
1.21 “Plan Year” means a 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.
1.22 “Section 409A” means Section
409A of the Code and the regulations and other guidance issued thereunder by the
United States Department of Treasury and Internal Revenue Service.
1.23 “Specified Employee” means an
employee who at the time of Termination of Employment is a key employee of
Consumers, if any stock of Consumers 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)(1)(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 January following the close of the identification period.
1.24 “Termination of Employment”
means termination of the Executive’s employment with the Company for
reasons other than death, excepting a leave of absence approved by
Consumers. Whether a Termination of Employment has occurred is
determined in accordance with the requirements of Code Section 409A based on
whether the facts and circumstances indicate that the Consumers 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 Consumers if the Executive has been providing
services to Consumers less than thirty-six (36) months). Termination
of Employment shall be construed consistently with a “separation from service”
within the meaning of Section 409A.
Article
2
Benefits
2.1 Retirement
Benefit. Upon Termination
of Employment on or after Normal Retirement Age for reasons other than death,
the Company shall pay to the Executive the benefit described in this Section 2.1
(the “Retirement
Benefit”) in lieu of any other benefit under this Agreement.
2.1.1 Amount of
Retirement Benefit. The annual
benefit under this Section 2.1 is fifty-three percent (53%) of Final Pay at the
Normal Retirement Date.
2.1.2 Payment
of Retirement Benefit. Subject
to Section 2.5, the Company shall pay the annual Retirement Benefit to the
Executive in twelve (12) equal monthly installments payable on the first day of
each month commencing with the month following the Executive’s Normal Retirement
Date for fifteen (15) years.
2.2 Early
Termination Benefit. Upon Early
Termination, the Company shall pay to the Executive the benefit described in
this Section 2.2 (the “Early
Termination Benefit”) in lieu of any other benefit under
this Agreement.
2.2.1 Amount of
Early Termination Benefit. The Early
Termination Benefit is the vested Accrual Balance determined as of the month
preceding Termination of Employment. The Early Termination Benefit is
determined by vesting the Executive in six and two-thirds percent (6.67%) of the
Accrual Balance for the Plan Year during employment with the Company in which
the Executive attains age fifty (50), and an additional six and two-thirds
percent (6.67%) of said amount for each succeeding year during Company
employment thereafter until the Executive becomes one hundred percent (100%)
vested in the Accrual Balance.
2.2.2 Payment
of Early Termination Benefit. Subject
to Section 2.5, the Early Termination Benefit to the Executive shall be a fixed
annuity payable in one hundred eighty (180) equal monthly installments, with
interest credited on the unpaid balance at an annual rate equal to the Discount
Rate, compounded monthly, payable on the first day of each month commencing with
the month following Termination of Employment.
2.3 Disability
Benefit. If the Executive
incurs a Termination of Employment due to Disability prior to Normal Retirement
Age, the Company shall pay to the Executive the benefit described in this
Section 2.3 (the “Disability
Benefit”) in lieu of any other benefit under this Agreement.
2.3.1 Amount of
Disability Benefit. The
Disability Benefit is one hundred percent (100%) of the Accrual Balance
determined as of the end of the month preceding Termination of
Employment.
2.3.2 Payment
of Disability Benefit. Subject
to Section 2.5, the Disability Benefit to the Executive shall be a fixed annuity
payable in one hundred eighty (180) equal monthly installments, with interest
credited on the unpaid balance at an annual rate equal to the Discount Rate,
compounded monthly, payable on the first day of each month commencing with the
month following Termination of Employment.
2.4 Change of
Control Benefit. Upon the
Executive’s Termination of Employment within twelve (12) months following a
Change of Control for reasons other than death, Disability, or Retirement, the
Company shall pay to the Executive the benefit described in this Section 2.4
(the “Change in Control
Benefit”) in lieu of any other benefit under this Agreement.
2.4.1 Amount of
Change in Control Benefit. The
Change in Control Benefit is the greater of (i) two (2) times the Executive’s
base salary in effect immediately preceding the Termination of Employment or
(ii) one hundred percent (100%) of the Accrual Balance determined as of the end
of the month preceding Termination of Employment.
2.4.2 Payment
of Change in Control Benefit. Subject
to Section 2.5, the Company shall pay the Change in Control Benefit to the
Executive in a lump sum within sixty (60) days following Termination of
Employment; provided that if such sixty- (60-) day period begins in one calendar
year and ends in another, the Executive shall not have the right to designate
the calendar year of payment).
2.4.3 Excess
Parachute Payment. Notwithstanding
any provision of this Agreement to the contrary, the Company shall not pay any
Change in Control Benefit under this Agreement to the extent the benefit would
create an excise tax under the excess parachute rules of Sections 280G and 4999
of the Code.
2.5 Potential
Restriction on Timing of Distributions. Notwithstanding
any provision of this Agreement to the contrary, if the Executive is considered
a Specified Employee at Termination of Employment under such procedures as
established by the Company in accordance with Section 409A, and if payments
under this Article 2 would be considered deferred compensation under Section
409A, and finally if an exemption from the six- (6-) month delay requirement of
Section 409A is not available, the benefit distributions that are made upon
Termination of Employment may not commence earlier than the first day of the
seventh month after the month in which the Executive’s Termination of Employment
occurs. Therefore, in the event this Section 2.5 is applicable to the
Executive, any distribution which would otherwise be paid to the Executive
within the first six months following the Termination of Employment shall be
accumulated and paid to the Executive in a lump sum on the first day of the
seventh month following the month of the Termination of
Employment. All subsequent distributions shall be paid in accordance
with the original payment schedule specified herein.
2.6 Distributions
Upon Income Inclusion Under Section 409A. Upon the
inclusion of any amount in the Executive’s income as a result of the failure of
this non-qualified deferred compensation plan to comply with the requirements of
Section 409A, to the extent such tax liability can be covered by the Accrual
Balance, a distribution shall be made within ninety (90) days following the
discovery of the plan failure; provided that if such ninety- (90-) day period
begins in one calendar year and ends in another, the Executive shall have no
right to specify the calendar year of distribution.
2.7 Change in
Form or Timing of Distributions. All changes in
the form or timing of distributions hereunder must comply with the following
requirements. The changes:
(a) may
not accelerate the time or schedule of any distribution, except as provided in
Section 409A and the regulations thereunder;
(b) must,
for benefits distributable under Sections 2.1, 2.2, 2.3 and 2.4, delay the
commencement of distributions for a minimum of five (5) years from the date the
first distribution was originally scheduled to be made;
(c) must
take effect not less than twelve (12) months after the election is made; and
(d) must
be made not less than twelve (12) months before the date that the payment is
scheduled to be paid.
Article
3
Payments
on Account of Death
3.1 Death
During Active Service. If the Executive
dies while in the active service of the Company, the Company shall pay to the
Executive’s beneficiary the benefit described in this Section
3.1. This benefit shall be paid in lieu of the benefits under Article
2.
3.1.1 Amount of
Benefit. The
annual benefit under this Section 3.1 is the same amount that would have been
paid under Section 2.1.
3.1.2 Payment
of Benefit. The
Company shall pay the benefit to the Executive’s beneficiary in twelve (12)
equal monthly installments payable on the first day of each month commencing
with the month following the Executive’s death for fifteen (15)
years.
3.2 Death
During Payment of Retirement Benefit. If the Executive
dies after any Retirement Benefit payments have commenced under this Agreement
but before receiving all such payments, the Company 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.
3.3 Death
After Termination of Employment But Before Payment of Retirement Benefit
Commences. If the Executive
is entitled to a Retirement Benefit under this Agreement, but dies prior to the
commencement of such benefit payments, the Company shall pay the same benefit
payments to the Executive’s beneficiary that the Executive was entitled to prior
to death, except that the benefit payments shall commence on the first day of
the month following the date of the Executive’s death.
Article
4
Beneficiaries
4.1 Beneficiary
Designations. The Executive
shall designate a beneficiary by filing a written designation with the
Company. The Executive may revoke or modify the designation at any
time by filing a new designation. However, designations will only be
effective if signed by the Executive and accepted by the Company 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 Company 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
Company may require proof of incapacity, minority, or guardianship as it may
deem appropriate prior to distribution of the benefit. Such
distribution shall completely discharge the Company from all liability with
respect to such benefit.
Article
5
General
Limitations
5.1 Termination
for Cause. Notwithstanding
any provision of this Agreement to the contrary, the Company shall not pay any
benefit under this Agreement if the Company terminates the Executive’s
employment for Cause.
5.2 Suicide
or Misstatement. The Company shall
not pay any benefit under this Agreement if the Executive commits suicide within
two (2) years after the date of this Agreement, or if the Executive has made any
material misstatement of fact on any application for life insurance purchased by
the Company.
Article
6
Claims
and Review Procedures
6.1 Claims
Procedure. An Executive or
beneficiary (“claimant”) who has not received benefits under this Agreement that
he or she believes should be distributed shall make a claim for such benefits as
follows:
6.1.1 Initiation
- Written Claim. The claimant
initiates a claim by submitting to the Plan Administrator a written claim for
the benefits. If such a claim relates to the contents of a notice
received by the claimant, the claim must be made within sixty (60) days after
such notice was received by the claimant. All other claims must be
made within one hundred eighty (180) days of the date on which the event that
caused the claim to arise occurred. The claim must state with
particularity the determination desired by the claimant.
6.1.2 Timing of
Plan Administrator Response. The Plan
Administrator shall respond to such claimant within ninety (90) days after
receiving the claim (forty-five (45) days for a claim based upon
Disability). If the Plan Administrator determines that special
circumstances require additional time for processing the claim, the Plan
Administrator can extend the response period by an additional ninety (90) days
(thirty (30) days in the case of Disability) by notifying the claimant in
writing, prior to the end of the initial ninety (90) (or, if applicable,
forty-five (45)) day period, that an additional period is
required. The notice of extension must set forth the special
circumstances and the date by which the Plan Administrator expects to render its
decision.
6.1.3 Notice of
Decision. If the Plan
Administrator denies part or all of the claim, the Plan Administrator shall
notify the claimant in writing of such denial. The Plan Administrator
shall write the notification in a manner calculated to be understood by the
claimant. The notification shall set forth that the claim has been
allowed in full or that the Plan Administrator has reached a conclusion
contrary, in whole or in part, to the claimant’s requested
determination:
(a) The
specific reasons for the decision;
(b) A
reference to the specific provisions of this Agreement on which the denial is
based;
(c) A
description of any additional information or material necessary for the claimant
to perfect the claim and an explanation of why it is needed;
(d) An
explanation of this Agreement’s review procedures and the time limits applicable
to such procedures; and
(e) A
statement of the claimant’s right to bring a civil action under ERISA Section
502(a) following an adverse benefit determination on review.
6.2 Review
Procedure. If the Plan
Administrator denies part or all of the claim, the claimant shall have the
opportunity for a full and fair review by the Plan Administrator of the denial
as follows:
6.2.1 Initiation
- Written Request. To initiate the
review, the claimant, within sixty (60) days (one hundred eighty (180) for a
claim based upon Disability) after receiving the Plan Administrator’s notice of
denial, must file with the Plan Administrator 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 Plan Administrator
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 Plan Administrator 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. Any review of a decision involving a claim based upon
Disability shall not be conducted by an individual(s) who made the adverse
benefit determination that is the subject of the appeal, nor the subordinate of
such individual(s). If a decision on review of a claim based upon
Disability is based upon a medical judgment, a health care professional who has
appropriate training and experience in the field of medicine involved in the
medical judgment will be consulted.
6.2.4 Timing of
Plan Administrator Response. The Plan
Administrator shall respond in writing to such claimant within sixty (60) days
(forty-five (45) days for a claim based upon Disability) after receiving the
request for review. If the Plan Administrator determines that special
circumstances require additional time for processing the claim, the Plan
Administrator can extend the response period by an additional sixty (60) days
(forty-five (45) days for a claim based upon Disability) by notifying the
claimant in writing, prior to the end of the initial sixty- (60-)
(forty-five- (45-)) day period, that an additional period is
required. The notice of extension must set forth the special
circumstances and the date by which the Plan Administrator expects to render its
decision.
6.2.5 Notice of
Decision. The Plan
Administrator shall notify the claimant in writing of its decision on
review. The Plan Administrator shall write the notification in a
manner calculated to be understood by the claimant. The notification
shall set forth:
(a) The
specific reasons for the decision;
(b) A
reference to the specific provisions of this Agreement on which the denial is
based;
(c) 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
(d) A
statement of the claimant’s right to bring a civil action under ERISA Section
502(a).
6.3 Legal
Action. A claimant's compliance with the foregoing provisions
of this Article 6 is a mandatory prerequisite to a claimant's right to commence
any legal action with respect to any claim for benefits under the
Agreement.
Article
7
Amendments
and Termination
7.1 Amendments. This Agreement
may be amended only by a written agreement signed by the Company and the
Executive. However, the Company may unilaterally amend this Agreement
to conform with written directives to the Company from its auditors or Company
regulators or to comply with legislative changes or tax law, including without
limitation Section 409A.
7.2 Plan
Termination Generally. The Company and
Executive may terminate this Agreement at any time. The benefit
hereunder shall be the Accrual Balance as of the date the Agreement is
terminated. However, if the Board determines in good faith that the
Executive is no longer a member of a select group of management or highly
compensated employees, as that phrase applies to ERISA, for reasons other than
death, Disability, or retirement, the Company may terminate this
Agreement. Upon such termination, the Executive shall be one hundred
percent (100%) vested in the Accrual Balance. Except as provided in
Section 7.3, the termination of this Agreement shall not cause a distribution of
benefits under this Agreement. Rather, after such termination,
benefit distributions will be made at the earliest distribution event permitted
under Article 2 or Article 3.
7.3 Plan
Terminations Under Section 409A. Notwithstanding
anything to the contrary in Section 7.2, if this Agreement terminates in the
following circumstances:
(a) Within
thirty (30) days before, or twelve (12) months after a change in the ownership
or effective control of the Company, or in the ownership of a substantial
portion of the assets of the Company as described in Section 409A(2)(A)(v) of
the Code; provided that all distributions are made no later than twelve (12)
months following such termination of the Agreement and further provided that all
the Company’s arrangements which are substantially similar to the Agreement are
terminated so the Executive and all participants in the similar arrangements are
required to receive all amounts of compensation deferred under the terminated
arrangements within twelve (12) months of the termination of the arrangements in
accordance with Treasury Regulation Section 1.409A-3(j)(4)(ix)(B);
(b) Within
twelve (12) months of the Company’s dissolution under Code Section 331 or with
the approval of a bankruptcy court; provided that the amounts deferred under the
Agreement are included in the Executive’s gross income in the latest of (i) the
calendar year in which the Agreement terminates; (ii) the first calendar year in
which the amount is no longer subject to a substantial risk of forfeiture; or
(iii) the first calendar year in which the distribution is administratively
practical; or
(c) Upon
the Company’s termination of this and all other non-account balance plans
(subject to the limitations in connection with a downturn in the financial
health of the Company in Section 409A); provided that all distributions are made
no earlier than twelve (12) months and no later than twenty-four (24) months
following such termination, and the Company does not adopt any new non-account
balance plans for a minimum of three (3) years following the date of such
termination;
the
Company may distribute the vested Accrual Balance, determined as of the date of
the termination of the Agreement, to the Executive in a lump sum subject to the
above terms.
Article
8
Covenants
against Competition, Solicitation, or
Disclosure
of Confidential Information
8.1 Competition. For and in
consideration of the payments described in Articles 2 and 3, the Executive shall
not, either separately, jointly, or in association with others, directly or
indirectly, as an agent, employee, owner, partner, member, stockholder, or
otherwise, compete with Consumers or establish, engage in, or become interested
in any business, trade, or occupation that competes with Consumers in the
Financial Products or Services industry in any county in any of the States of
the United States in which Consumers’ business is currently being conducted
during the Executive’s employment with Consumers, or is being conducted when the
Executive’s Termination of Employment occurs and all counties that are
contiguous to such counties. The Executive acknowledges and agrees
that during the term of the Executive’s employment the Executive has acquired
special and confidential knowledge regarding the operations of
Consumers. Furthermore, although not a term or condition of this
Agreement, the Company and the Executive acknowledge and agree that the
Executive’s services have been used and are being used by Consumers in
executive, managerial, and supervisory capacities throughout the areas in which
Consumers conducts business. The Executive acknowledges and agrees
that the non-compete restrictions contained herein are reasonable and fair in
scope and necessary to protect the legitimate business interests of
Consumers. Notwithstanding anything contained in this Section 8.1 the
contrary, nothing contained herein shall be construed to prohibit the Executive
from owning equity in other businesses that are competitive with Consumers;
provided that such ownership in any competitive business does not exceed the
value of the Executive’s equity ownership in Consumers.
8.2 Solicitation. For
and in consideration of the payments described in Articles 2 and 3, the
Executive shall not (x) directly or indirectly solicit or attempt to solicit any
Customer of Consumers to accept or purchase Financial Products or Services of
the same nature, kind, or variety currently being provided to the Customer by
Consumers or being provided to the Customer by Consumers when the Executive’s
Termination of Employment occurs, (y) directly or indirectly influence or
attempt to influence any Customer, joint venturer, or other business partner of
Consumers to alter that person or entity’s business relationship with Consumers
in any way, and (z) accept the Financial Products or Services business of any
Customer or provide Financial Products or Services to any Customer on behalf of
anyone other than Consumers. In addition, the Executive shall not
solicit or attempt to solicit and shall not encourage or induce in any way any
employee, joint venturer, or business partner of Consumers to terminate an
employment or contractual relationship with Consumers, and shall not hire any
person employed by Consumers during the two- (2-) year period immediately before
the Executive’s Termination of Employment or any person employed by Consumers
during the term of this covenant pursuant to this Section 8.2.
8.3 Disclosure
of Confidential Information. For and in consideration of the
payments described in Articles 2 and 3, the Executive shall not reveal to any
person, firm, or corporation any Confidential Information of any nature
concerning Consumers or the business of Consumers. The covenant in
this Section 8.3 does not prohibit disclosure required by an order of a court
having jurisdiction, a subpoena from an appropriate governmental agency, or
disclosure made by the Executive in the ordinary course of business and within
the scope of the Executive’s authority.
8.4 Duration;
No Impact on Existing Obligations under Law or Contract. The
covenants in this Article 8 shall apply during the Executive’s employment with
Consumers and throughout the twenty-four (24) month period immediately following
the Executive’s Termination of Employment, whether or not Consumers has engaged
the services of the Executive pursuant to an agreement to provide consulting
services upon the Executive’s Termination of Employment with Consumers;
provided, however, that such twenty-four (24) month period shall automatically
be reduced to six (6) months upon the occurrence of a Change of
Control. The twenty-four (24) (or, if applicable, six (6)) month
durational period referenced herein shall be tolled and shall not run during any
such time that the Executive is in breach of this Agreement and/or in violation
of any of the covenants contained herein, and once tolled hereunder shall not
begin to run again until such time as all such breach and/or violations have
ceased. The Executive acknowledges and agrees that nothing in this
Agreement is intended to or shall have any impact on the Executive’s obligations
as an officer or employee of Consumers to refrain from competing against,
soliciting Customers, officers, or employees of, or disclosing Confidential
Information of Consumers while the Executive is serving as an officer or
employee of Consumers or thereafter, whether the Executive’s obligations arise
under applicable law or under an employment agreement or otherwise.
8.5 Remedies. The
Executive acknowledges and agrees that remedies at law for the Executive’s
breach of the covenants contained herein are inadequate and that for violation
of the covenants contained herein, in addition to any and all legal and
equitable remedies that may be available, the covenants may be enforced by an
injunction in a suit in equity without the necessity of proving actual damage,
and that a temporary injunction may be granted immediately upon the commencement
of any such suit, and without notice. The parties hereto intend that
the covenants contained in this Article 8 shall be deemed to be a series of
separate covenants, one for each county of each state in which Consumers does
business. If in any judicial proceeding a court refuses to enforce
any or all of the separate covenants, the unenforceable covenants shall be
deemed eliminated from the provisions hereof for the purposes of that proceeding
to the extent necessary to permit the remaining separate covenants to be
enforced. Furthermore, if in any judicial proceeding a court refuses
to enforce any covenant because of the covenant’s duration or geographic scope,
the covenant shall be construed to have only the maximum duration or geographic
scope permitted by law.
8.6 Forfeiture
of Payments Under This Agreement. If the Executive breaches
any of the covenants in this Article 8, the Executive’s right to any of the
payments specified in Article 2 after the date of the breach shall be forever
forfeited and the right of the Executive’s designated beneficiary or estate to
any payments under this Agreement shall likewise be forever
forfeited. This forfeiture is in addition to and not instead of any
injunctive or other relief that may be available to the Company. The
Executive further acknowledges and agrees that any breach of any of the
covenants in this Article 8 shall be deemed a material breach by the Executive
of this Agreement.
Article
9
Miscellaneous
9.1 Binding
Effect. This Agreement
shall bind the Executive and the Company, and their beneficiaries, survivors,
executors, successors, administrators, and transferees.
9.2 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 Consumers, nor does it interfere with
Consumers’ 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.
9.3 Non-Transferability. Benefits under
this Agreement cannot be sold, transferred, assigned, pledged, attached, or
encumbered in any manner.
9.4 Reorganization. The Company shall
not merge or consolidate into or with another company, or reorganize, or sell
substantially all of its assets to another company, firm, or person unless such
succeeding or continuing company, firm, or person agrees to assume and discharge
the obligations of the Company under this Agreement. Upon the
occurrence of such event, the term “Company” as used in this
Agreement shall be deemed to refer to the successor or survivor
company.
9.5 Reporting
and Withholding. The Company shall
report all income in connection with, and withhold any taxes that are required
to be withheld from, the benefits provided under this Agreement.
9.6 Applicable
Law, Venue, Waiver of Right to Jury Trial. The Agreement and
all rights hereunder shall be governed by the laws of Ohio, without regard to
its conflict of laws provisions, except to the extent preempted by the laws of
the United States of America. The Executive and Consumers agree that
the exclusive venue for resolution of any disputes regarding or arising out of
this Agreement or the Executive’s employment shall be the state and federal
courts located in Xxxxx County, Ohio, or the federal courts located in the
jurisdiction of the county wherever the corporate headquarters of the Company
may be located in the future. The Executive and Consumers further
agree to waive any right to a jury trial with respect to any disputes regarding
or arising out of this Agreement or the Executive’s employment with
Consumers. The Executive and Consumers each acknowledge and agree
that this selection of venue and waiver of the right to a jury trial is
knowingly, freely, and voluntarily given, is made after opportunity to consult
with counsel of their choosing about this Agreement and its provisions, and is
in the best interests of each party hereto.
9.7 Unfunded
Arrangement. The Executive and
beneficiary are general unsecured creditors of the Company for the payment of
benefits under this Agreement. The benefits represent the mere
promise by the Company 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 Company to which the Executive and beneficiary have no preferred or
secured claim.
9.8 Entire
Agreement. This Agreement
supersedes and amends and restates the 2008 Agreement, and constitutes the
entire agreement between the Company 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.
9.9 Administration. The Company shall
have powers which are necessary to administer this Agreement, including but not
limited to:
(a) Interpreting
the provisions of the Agreement;
(b) Establishing
and revising the method of accounting for the Agreement;
(c) Maintaining
a record of benefit payments; and
(d) Establishing
rules and prescribing any forms necessary or desirable to administer the
Agreement.
9.10
Named
Fiduciary. The Company shall
be the named fiduciary and plan administrator under this
Agreement. It may delegate to others certain aspects of the
management and operational responsibilities including the employment of advisors
and the delegation of ministerial duties to qualified individuals.
9.11 Compliance
with Section 409A. This Agreement shall at all times be
administered, and the provisions of this Agreement shall be interpreted
consistent with, the requirements of Section 409A.
9.12 Tax
Treatment. Notwithstanding any other provision of this
Agreement, the federal, state, and local income and/or other tax treatment of
payments and benefits under this Agreement shall not be, and is not, warranted
or guaranteed. Neither Consumers, its directors (including, without
limitation, the Board), officers, employees, agents, attorneys, nor any of their
designees shall be liable for any taxes, penalties, or other monetary amounts
owed by the Executive or any other person as a result of the Agreement, any
deferral or payment under the Agreement, or the administration of the
Agreement.
9.13 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. If to the Company, notice shall be given to
the Board or to such other or additional person or persons as the Company shall
have designated to the Executive in writing. If to the Executive,
notice shall be given to the Executive at the Executive’s address appearing on
the Company’s records, or to such other or additional person or persons as the
Executive shall have designated to the Company in writing.
9.14 Severability. If
any provision of this Agreement is held invalid, such invalidity shall not
affect any other provision of this Agreement not held invalid, and each such
other provision shall continue in full force and effect to the full extent
consistent with law. If any provision of this Agreement is held
invalid in part, such invalidity shall not affect the remainder of the provision
not held invalid, and the remainder of such provision together with all other
provisions of this Agreement shall continue in full force and effect to the full
extent consistent with law.
9.15 Interpretation. Caption
headings and subheadings herein are included solely for convenience of reference
and shall not affect the meaning or interpretation of any provision of this
Agreement. Words used in the singular in this Agreement shall include
the plural, and words used in the masculine shall include the
feminine.
9.16 EESA
Limitations. Notwithstanding anything herein to the contrary,
the terms of this Agreement shall be construed subject to the limitations of the
Emergency Economic Stabilization Act of 2008 (“EESA”). It is
expressly understood that this Agreement will be enforced in a manner which is
consistent with Section 111 of EESA, as amended, and rules and regulations
currently issued and to be issued thereunder. Until such time that
the United States Treasury ceases to own any debt or equity or equity securities
of Consumers acquired pursuant to the Capital Purchase Program, Consumers and
Executive agree that all payments under this Agreement shall be limited to the
extent necessary to comply with Section 111 of EESA, as amended.
[Signature
page follows]
IN
WITNESS WHEREOF, the Executive and a duly authorized officer of the Company have
signed this Agreement.
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EXECUTIVE:
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COMPANY:
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XXXXX
XXXXX
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CONSUMERS
NATIONAL BANK
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By:
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By:
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Date:
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Title:
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Date:
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