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EXHIBIT 10.11
AGREEMENT
This Agreement ("Agreement") is made and entered into this 22 day of
November, 1993 by and among The Citizens Banking Company ("Citizens"), Citizens
Bancshares, Inc. ("Bancshares") and their successors (together the "Companies"),
and Xxxxx X. Xxxx (the "Executive") and is effective as of November 22, 1993.
I. Recitals
A. The Executive is currently employed by Citizens in the capacity of
Executive Vice President and the Executive is one of the key executives of
Citizens.
B. The Executive agrees that in order to maintain consistency of
management within Citizens, he will perform his duties as Executive Vice
President for a minimum of two years pursuant to this Agreement.
C. The Board of Directors of the Companies (the "Board") is encouraging
the Executive to perform his assigned duties without distraction if Citizens
should face a potential Change-In-Control as defined below.
D. In consideration of the mutual promises contained herein and other
good and valuable consideration, receipt of which is hereby acknowledged, the
Executive and the Companies have entered into this Agreement.
II. Term of Agreement
Except as otherwise provided herein, the Companies and the Executive agree
that the Executive will remain in the employ of Citizens until January 1, 1996;
provided, however, that commencing on January 1, 1995 and every other January
1st thereafter, the term of this Agreement shall automatically be extended for
two additional years unless at least ninety (90) days prior to such January 1st
date, Bancshares, Citizens or the Executive shall have given notice that it or
he does not wish to extend this Agreement. The "Term of Agreement" shall refer
to the period commencing an the date hereof and ending on January 1, 1996 (or
any extension thereof pursuant to the preceding sentence).
During the Term of Agreement, the Companies shall:
A. pay the Executive, during the first year of the Term of Agreement, a
monthly salary at least equal to the Executive's highest base salary for any
month during the immediately preceding twelve (12) months and, during each
subsequent year of the Term of Employment, an annual salary (payable on at least
a monthly basis) at least equal to the Executive's salary for the immediately
preceding year plus an amount calculated in a manner at least as favorable to
the Executive as the manner in which the pay increases for other Citizens
executives are calculated;
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B. at its sole discretion, pay to the Executive an annual bonus;
C. provide and maintain in full force and effect through existing plans or
through equivalent plans at least the types and amounts of group insurance
coverages (including conversion features) and benefits, including life, health,
disability and hospitalization insurance, and other health care benefits,
including medical, hospital and surgical benefits and health care benelits for
the Executive's family (collectively "Health Care Benefits"), to which the
Executive was entitled or the Health Care Benefits provided by the Company to
its other executives (whichever would result in greater Health Care Benefits to
the Executive); and
D. agree that Executive will be a participant in the Citizens Profit
Sharing Plan and Trust on the same basis as all other employees.
Provided, however, the Executive may be terminated in a
non-Change-In-Control situation only if the Executive commits any material act
of dishonesty, discloses confidential information, or is guilty of gross
carelessness materially injurious to the Companies, or misconduct. Misconduct
shall mean failure by Executive to substantially perform his duties after a
written demand for improved performance is delivered by the Chief Executive
Officer of Citizens to the Executive.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements hereinafter set forth, the Companies and the Executive hereby
agree as follovs:
1. a. Change-In-Control, for purposes of this Aqreement, shall be deemed
to occur at such time as:
(i) any person, partnership, corporation, or other entity becomes a
Beneficial Owner, directly or indirectly, of shares of Bancshares' voting
stock representing at least twenty (20%) percent or more of Bancshares
issued and outstanding voting stock; or
(ii) one-half or more of the membership of the Board consists of
members not recommended for membership by the Companies or the Board.
b. Beneficial Owner, for purposes of this Agreement, shall have the
meaning ascribed to the term in Rules 13d-3 and 13-d-5(b)(1) of the General
Rules and Regulations (the "rules") under the Securities Exchange Act of 1934
(the "1934 Act") after application of the attribution or constructive ownership
rules contained in Section 318(a) ot the Internal Revenue Code of 1986.
c. Voting stock, for purposes of this Agreement, shall mean any
shares of capital stock of Bancshares entitled to vote generally in the election
of directors and any securities of Bancshares which are convertible into voting
stock at the option of the holder thereof.
d. The computational procedure of Rule 13d-3(d)(1) of the Rules under
the 1934 Act, as supplemented by the attribution rules of
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Section 318(a) of the Internal Revenue Code of 1998, shall be used to compute
the percentage of Bancshares' voting stock of which a person is deemed a
Beneficial Owner for the purpose of determining when a Change-In-Control occurs.
III. Change-In-Control
A. In the event of a Change-In-Control, Citizens shall continue to
employ the Executive in an executive position until the earlier of (i) the date
upon which the Executive would attain age 65 ("Normal Retirement Age") and (ii)
the date that is twenty-four (24) months after the date of the Change-In-Control
(the "Change Term") upon the terms and conditions hereinafter set forth.
B. During the Change Term the Companies shall:
1. pay the Executive, during the first year of the Term of Agreement,
a monthly salary at least equal to the Executive's highest base salary for any
mouth during the twelve (12) months immediately preceding the Change-In-Control
and, during each subsequent year of the Term of Employment, an annual salary
(payable on at least a monthly basis) at least equal to the Executive's salary
for the immediately preceding year plus an amount calculated it a manner at
least as favorable to the Executive as the matter in which the pay increases for
other Citizens executives are calculated;
2. pay the Executive an annual bonus calculated in a manner at least
as favorable to the Executive as the manner in which (i) the last annual bonus
paid to the Executive prior to the Change-In-Control was calculated, or (ii)
the annual bonus paid to the Executive by the Company in the immediately
preceding year (whichever would result in a greater payment to the Executive);
3. provide and maintain in full force and effect through existing
plans or through equivalent plans at least the types and amounts of group
insurance coverages (including conversion features) and benefits, including
life, health, disability and hospitalization insurance, and other health care
benefits, including medical, hospital and surgical benefits and health care
benefits for the Executive's family (collectively "Health Care Benefits") , to
which the Executive was entitled immediately prior to the Change-In-Control or
the Health Care Benefits provided by the Company to its other executives after a
Change-In-Control (whichever would result in greater Health Care Benefits to the
Executive); and
4. agree that Executive will be a participant in Citizens Profit
Sharing Plan and Trust on the same basis as all other employees.
C. In the event of a Termination of Employment (as hereinafter
defined in Item F), the Companies shall pay or cause to be paid to the
Executive, or after the Executive's death, his designated beneficiary, or it
there be none, his personal representative, executor or administrator (for the
purposes of this paragraph, the term "Executive" shall include the Executive's
designated beneficiary, personal
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representative, executor or administrator), during each year of the
period beginning on the date of the Termination of Employment and ending on
the earlier of (i) the date upon which the Executive would attain Normal
Retirement Age and (ii) the date that is twenty-four (24) months from the date
of the Change-In-Control (the "Payment Period") an amount determined as follows:
1. a monthly salary equal to the greater at the Executive's highest
salary from Citizens for any month during the twelve (12) months
immediately preceding (a) the Change-In-Control and (b) the Termination of
Employment ("Annual Base Compensation"), plus
2. a Citizens Profit Sharing Plan and Trust contribution on the same
basis as all other employees, provided continued participation is possible
under the terms and provisions of the plan, plus
3. the greater at the average of the Annual bonuses received by the
Executive from Citizens during the three (3) calendar years immediately
preceding (a) the Change-In-Control and (b) the Termination of Employee
("Annual Bonus"), minus
4. any amount the Executive receives during such year pursuant to
Citizens long-term disability policy.
Such Payments shall be made in equal monthly installments, payments due
for any part of the Payment Period which is less than one year shall be computed
an a pro-rata basis.
Notwithstanding the foregoing, the Executive may elect, within sixty
(60) days after the date of the Termination of Employment, to receive a single
lump-sum payment in an amount equal to the present value of the total unpaid
amount due to the Executive under this paragraph, such present value as
determined by discount based upon an interest rate two (2) percentage points
less than the National prime rate in effect at the date of Termination of
Employment. If the Executive elects to receive a single lump-sum payment, the
company shall pay the Executive the amount of such payment within thirty (30)
days following the date of such election by the Executive.
The Executive's right to receive compensation from the Companies
pursuant to this agreement shall not be affected by the Executive's receipt of
compensation in connection vith any subseqatut employment by any other
corporation or other entity, provided that, if such corporation or other entity
is engaged in a business directly competitive with that of the Companies and
located in Columbiana, Carroll, Stark, Jefferson Counties, or the Village at
Sebring at the time of a Change-In-Control or any Successor Organization the
Companies may offset from, but only from, any unpaid monthly installments at
of the Executive's compensation under this paragraph, the amount of salary or
other direct monetary compensation paid to the Executive for such month by such
other corporation or other entity.
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D. In the event that following a Change-In-Control the Executive
ceases to be employed by Citizens for any reason, including retirement at or
at any time before Normal Retirement Age, Termination of Employment or
dismissal by the Companies for reasons other than misconduct (pursuant to the
procedure set out in Item III C hereof), the Executive and/or his spouse shall
continue to receive from Citizens, until the date the Executive attains or would
have attained Normal Retirement Age, Health Care Benefits equivalent to the
greater of the Health Care Benefits to which the Executive was entitled (i)
immediately preceding the date the Executive ceased to be employed by Citizens
and (ii) immediately preceding the Change-In-Control (proved that Citizens may
reduce such Health Care Benefits to the extent of any duplication of the types
and amounts of coverages and benefits provided to the Executive in connection
with any subsequent employment by any other corporation or other entity prior to
the Executive attaining Normal Retirement Aqe), and from and after the date the
Executive attains or would have attained Normal Retirement Age, the Executive
and/or his spouse shall receive the Health Care Benefits to which he would be
entitled as a retired executive employee under the Companies' benefit plans and
programs in effect immediately prior to the Change-In-Control or immediately
prior to the date the Executive ceased to be employed by Citizens (whichever
would result in greater benefits to the Executive). Misconduct shall mean
failure by Executive to substantially perform his duties after a written demand
for improved performance is delivered by the Chief Executive Officer of Citizens
to the Executive.
E. In the event that following a Change-in-Control, the Companies
require the Executive to relocate his office more than 70 miles from Salem,
Ohio, city limits, or 40 miles from Salineville, Ohio, city limits, any personal
moving expense the Executive incurs shall be at the Companies' expense, in
accordance with the Companies' relocation policy as in effect on the date
hereof, or if the Companies have no relocation policy, then the Executive
shall receive reimbursement of domicile expenses connected with a relocation not
to exceed $5,000.00 (whichever would result in greater benefits to
the Executive).
F. Termination of Employment, for the purposes of this Agreement,
shall occur if the Executive's employment in an executive position is terminated
during the Term of Employment:
1. by the Companies for any reason, including disability or
incapacity, but excepting misconduct by the Executive, or
2. by the Executive for cause which shall be deemed to exist upon the
occurrence of any of the following events;
a. the Companies request the Executive's resignation or
retirement (other than retirement upon reaching Normal Retirement Age); or
b. a change in the location of the Executive's place of
employment or office to a site more than 70 miles from Salem, Ohio, city
limits or 40 miles from Salineville, Ohio, city limits at time of the
change; or
c. the breach by the Companies of any provision of this
Agreement.
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In the event of the death of the Executive during the Term at
Employment, in addition to the amounts, if any, payable pursuant to
Item B hereof, the estate of the Executive shall receive benefits at
least equal to the greater of:
(i) such other benefits which would have been payable to the
estate of Executive by the Companies if such event had occurred
immediately prior to the date of the Change-In-Control and
(ii) such other benefits payable to the estate of the Executive
under benefit plans and programs at the Companies existing as of the
date of the Executive's death,
d. within six (6) months of a Change-In-Control the
Executive, at his option, may terminate his employment and receive 12
months' salary equal to the Executive's monthly salary for the month
prior to the Change-In-Control, plus an amount equal to the Executive's
previous year's bonus divided by 12, times the number of full months
the Executive has worked during the calendar year in which the
Executive terminates his employment.
G. The compensation and benefits provided pursuant to Item III
hereof, to the extent received by the Executive, are granted to the Executive in
lieu of any compensation, benefits or amounts the Executive might otherwise be
entitled to under the Companies' severance policy or otherwise from the
Companies by reason of a Termination of Employment. Except as otherwise set
forth herein, this Agreement. shall not in any way alter the rights and
obligations of the Companies and the Executive under any of the Companies'
benefit plans.
H. The rights of the Executive under this Agreement shall not be
transferable by assignment or otherwise, shall not be subject to cummutation or
encumbrance and shall not be subject to the claims of the creditors of the
Executive.
I. This Agreement shall be binding upon and inure to the benefit of
the Executive, his designated beneficiary, personal representative, executor or
administrator, the Companies and any successor, including any organization
which shall succeed to substantially all of the business and property of the
Companies, whether by means of merger, consolidation, acquisition or
substantially all of the assets of the Companies or otherwise, including by
operation of law (a "Successor Organization"). The Companies shall not merge,
reorganize, consolidate, sell all or substantially all of its assets, combine by
operation of law or otherwise, to or with any Successor Organization, unless, as
a condition to such transaction, the Successor Organization assumes the
obligations of the Companies under this Agreement. For purposes of this
Agreement the terms Citizens and Bancshares shall include any Successor
Organization. Also, for purposes of this Agreement, although the term Citizens
sometimes refers to a subsidiary of Bancshares (or any combinations thereof)
where such subsidiary is prohibited by law or regulation from entering into
such a contract with the Executive, the contract shall nevertheless be the
enforceable, legal obligation of
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Bancshares, the sole shareholder of such subsidiary or the sole shareholder of a
parent of such subsidiary.
J. This Agreement supercedes and makes void any prior agreement
between the parties and sets forth the entire agreement and understandinq of the
parties hereto with respect to the matters covered hereby and may not be
amended or modified except by further written agreement of the parties. Any
beneficiary designation, or any termination or amendment to any existing
designation under this Agreement shall be by written instrument executed by the
Executive and delivered to the Companies.
K. This Agreement has been made in and shall be governed and
construed in accordance with the laws of the State of Ohio.
L. The invalidity of any term of the Agreement shall not invalidate
or otherwise affect any other term of this Agreement.
IV. Arbitration
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in Lisbon, Ohio, in
accordance with the rules of the American Arbitration Association then in
effect; provided that all arbitration expenses shall be borne by the Companies.
Notwithstanding the pendency of any dispute or controversy concerning
termination or the effects thereof, the Companies will continue to pay the
Executive his full compensation in effect immediately before any Notice of
Termination giving rise to the dispute was given (including, but not limited to,
base salary and incentive pay) and continue him as a participant in all
compensation, benefit and insurance plans in which he was then participating,
until the dispute is finally resolved. Amounts paid under this paragraph are in
addition to all other amounts due under this Agreement and shall not be offset
against or reduce any other amounts due under this Agreement. Judgment may be
entered on the arbitrators' award in any court having jurisdiction; provided,
however, that the Executive shall be entitled to seek specific performance of
his right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
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IN WITNESS WHEREOF, the undersigned have set their hands and seals or
caused this Agreement to be signed by a duly authorized officer, on the date
first set out above.
ATTEST: CITIZENS BANCSHARES, INC. &
THE CITIZENS BANKING COMPANY
\s\ Xxxxxxx X. Xxxxxxx BY: \s\ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President & CEO
BY: \s\ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
Chairman of Board's Compensation
Committee
WITNESS: EXECUTIVE:
\s\ Xxxxxxx X. Xxxxxxx \s\
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