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Exhibit 10.s
SEVERANCE AGREEMENT
This AGREEMENT is entered into this 8th day of May, 2001, by and
between UNB Corp., an Ohio corporation (the "Corporation"), and
____________________, ___________________________________ at United National
Bank & Trust Co. (the "Executive").
WHEREAS, the Executive is a senior executive of the Corporation, is
employed by the Corporation and by United National Bank & Trust Co., a national
bank and wholly owned subsidiary of the Corporation (the "Bank"), and has made
and is expected to continue to make major contributions to the profitability,
growth and financial strength of the Corporation and the Bank;
WHEREAS, the Corporation recognizes that, as is the case for most
companies, the possibility of a Change in Control (as defined in Section 1(c))
exists;
WHEREAS, the Corporation desires to assure itself of the current and
future continuity of management and desires to establish minimum severance
benefits for certain of its officers and other key employees, including the
Executive, if a Change in Control occurs;
WHEREAS, the Corporation wishes to ensure that officers and other key
employees are not practically disabled from discharging their duties if a
proposed or actual transaction involving a Change in Control arises;
WHEREAS, the Corporation desires to provide additional inducement for
the Executive to continue to remain in the ongoing employ of the Corporation and
the Bank;
WHEREAS, none of the conditions or events included in the definition of
the term "golden parachute payment" that is set forth in ss.18(k)(4)(A)(ii) of
the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal
Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)]
exists or, to the best knowledge of the Corporation and the Bank, is
contemplated insofar as either of the Corporation or the Bank is concerned; and
WHEREAS, the Executive has an existing change of control agreement
entered into as of _______________________, which he is willing to terminate in
consideration of this Agreement becoming effective;
NOW THEREFORE, the parties hereto agree as follows:
1. CHANGE IN CONTROL COMBINED WITH EMPLOYMENT TERMINATION
(a) TERMINATION OF EXECUTIVE WITHIN THREE YEARS AFTER A CHANGE IN
CONTROL. If a Change in Control occurs during the term of this Agreement and if
either of the following occurs, the Executive shall be entitled to severance and
termination benefits specified in Section 2 of this Agreement:
(1) Termination by the Corporation or the Bank: the Executive's
employment with the Corporation or the Bank is involuntarily
terminated within three years after a Change in Control, except for
termination under Section 4 of this Agreement; or
(2) Termination by the Executive for Good Reason: the Executive
terminates his employment with the Corporation or the Bank for Good
Reason (as defined in Section 3) within three years after a Change
in Control.
If the Executive is removed from office or if his employment terminates
after discussions with a third party regarding a Change in Control commence, and
if those discussions ultimately conclude with a Change in Control, then for
purposes of this Agreement the removal of the Executive or termination of his
employment shall be deemed to have occurred after the Change in Control.
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(b) TERMINATION BY THE EXECUTIVE DURING A 90-DAY PERIOD SIX MONTHS
AFTER A CHANGE IN CONTROL. The Executive shall also be entitled to severance and
termination benefits under Section 2 of this Agreement if he terminates
employment with the Corporation and the Bank for any reason or for no reason
during the 90-day period immediately after the sixth month anniversary of the
first occurrence of a Change in Control.
(c) DEFINITION OF CHANGE IN CONTROL. For purposes of this Agreement,
"Change in Control" means any of the following events occur:
(1) Merger: the Corporation merges into or consolidates with another
corporation, or merges another corporation into the Corporation,
and as a result less than a majority of the combined voting power
of the resulting corporation immediately after the merger or
consolidation is held by persons who were the holders of the
Corporation's voting securities immediately before the merger or
consolidation. For purposes of this Agreement, the term person
means an individual, corporation, partnership, trust, association,
joint venture, pool, syndicate, sole proprietorship, unincorporated
organization or other entity;
(2) Acquisition of Significant Share Ownership: a report on Schedule
13D or Schedule TO (or any successor schedule, form or report) is
filed or is required to be filed under Sections 13(d) or 14(d) of
the Securities Exchange Act of 1934, if the schedule discloses that
the filing person or persons acting in concert has or have become
the beneficial owner of 15% or more of a class of the Corporation's
voting securities (but this clause (2) shall not apply to
beneficial ownership of voting shares of the Corporation held by a
Subsidiary (defined as an entity in which the Corporation directly
or indirectly beneficially owns 50% or more of the outstanding
voting securities) of the Corporation in a fiduciary capacity);
(3) Change in Board Composition: during any period of two consecutive
years, individuals who constitute the Board of Directors of the
Corporation at the beginning of the two-year period cease for any
reason to constitute at least a majority thereof; provided,
however, that -- for purposes of this clause (3) -- each director
who is first elected by the Board (or first nominated by the Board
for election by shareholders) by a vote of at least two-thirds
(2/3) of the directors who were directors at the beginning of the
period shall be deemed to have been a director at the beginning of
the two-year period; or
(4) Sale of Assets: the Corporation sells to a third party
substantially all of the Corporation's assets. For purposes of this
Agreement, sale of substantially all of the Corporation's assets
includes sale of the Bank.
2. SEVERANCE AND TERMINATION BENEFITS
(a) SEVERANCE AND TERMINATION BENEFITS. The severance and termination
benefits to which the Executive is entitled under Section 1 are as follows:
(1) Lump Sum Payment: the Corporation shall make a lump sum payment to
the Executive in an amount in cash equal to three times the
Executive's annual compensation. For purposes of this Agreement,
annual compensation means (a) the Executive's then current annual
base salary at the date of Change in Control or the Executive's
termination of employment (at whichever date the Executive's
current annual base salary is greater), plus (b) the average of the
bonuses or incentive compensation earned for the three calendar
years immediately preceding the year in which the Change in Control
occurs, regardless of when the bonus or incentive compensation
earned for the preceding three calendar years is paid. As of the
date this Agreement is entered into, the parties recognize that the
bonus/incentive compensation earned by the Executive for a
particular year's calendar service is paid by the Bank in the year
following the calendar year in which such bonus/incentive
compensation is earned. The amount payable to the Executive
hereunder shall not
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be reduced to account for the time value of money or discounted to
present value. The payment required under this Section 2(a)(1) is
payable no later than 5 business days after the date the
Executive's employment terminates. If the Executive terminates
employment for Good Reason, the date of termination shall be the
date specified by the Executive in his notice of termination.
(2) Benefit Plans: the Corporation shall cause the Executive to become
fully vested in any qualified and non-qualified plans, programs or
arrangements in which the Executive participated, notwithstanding
any provisions contained in the respective agreement of the plan,
program or arrangement. The Corporation also shall contribute or
cause the Bank to contribute to the Executive's 401(k) Plan account
and his United National Bank & Trust Co. Employees Profit Sharing
Plan account the matching and profit sharing contribution, if any,
that would have been paid had the Executive's employment not
terminated before the end of the plan year.
(3) Insurance Coverage: the Corporation shall cause to be continued
life, health and disability insurance coverage substantially
identical to the coverage maintained for the Executive before his
termination. The insurance coverage may cease when the Executive
becomes employed by another employer or 36 months after the
Executive's termination, whichever occurs first. At the end of the
36-month period, the Executive shall have the option to continue
health insurance coverage at his own expense for a period not less
than the number of months by which the Consolidated Omnibus Budget
Reconciliation Act (COBRA) continuation period exceeds 36 months.
(b) GROSS-UP FOR TAXES. Additional Payment to Account for Excise Taxes.
If the Executive becomes entitled to severance and termination benefits under
this Agreement, including accelerated vesting of stock options granted under the
Corporation's 1997 Stock Option Plan and 1987 Stock Option and Performance Unit
Plan and acceleration of benefits under any other benefit, compensation or
incentive plan or arrangement with the Corporation or the Bank (collectively,
the "Total Benefits"), and if any part of the Total Benefits is subject to the
Excise Tax under Section 280G of the Internal Revenue Code (the "Excise Tax"),
the Corporation shall pay to the Executive an amount (the "Gross-Up Payment(s)")
in addition to the amount set forth in Section 2(a) such that -- after payment
by the Executive of all taxes (including any Excise Tax, income tax or payroll
tax) imposed upon the Gross-Up Payment, together with any interest or penalties
imposed with respect to such taxes -- the Executive will retain an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Total Benefits.
Calculating the Excise Tax. For purposes of determining whether any of
the Total Benefits will be subject to the Excise Tax and for purposes of
determining the amount of the Excise Tax,
(1) Determination of "Parachute Payments" Subject to the Excise Tax:
any other payments or benefits received or to be received by the
Executive in connection with a Change in Control or the Executive's
termination of employment (whether under the terms of this
Agreement or any other agreement, the 1997 Stock Option Plan and
1987 Stock Option and Performance Unit Plan or any other benefit
plan or arrangement with the Corporation, the Bank, any person
whose actions result in a Change in Control or any person
affiliated with the Corporation or such person) shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of
the Internal Revenue Code, and all "excess parachute payments"
within the meaning of Section 280G(b)(1) shall be treated as
subject to the Excise Tax, unless in the opinion of the certified
public accounting firm that is retained by the Corporation as of
the date immediately before the Change in Control (the "Accounting
Firm") such other payments or benefits do not constitute (in whole
or in part) parachute payments, or such excess parachute payments
represent (in whole or in part) reasonable compensation for
services actually rendered within the meaning of Section 280G(b)(4)
of the Internal Revenue Code in excess (as defined in Section
280G(b)(3) of the Internal Revenue Code), or are otherwise not
subject to the Excise Tax,
(2) Calculation of Benefits Subject to Excise Tax: the amount of the
Total Benefits that shall be treated as subject to the Excise Tax
shall be equal to the lesser of (a) the total amount of the Total
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Benefits reduced by the amount of such Total Benefits that in the
opinion of the Accounting Firm are not parachute payments, or (b)
the amount of excess parachute payments within the meaning of
Section 280G(b)(1) (after applying clause (1), above), and
(3) Value of Noncash Benefits and Deferred Payments: the value of any
noncash benefits or any deferred payment or benefit shall be
determined by the Accounting Firm in accordance with the principles
of Sections 280G(d)(3) and (4) of the Internal Revenue Code.
Assumed Marginal Income Tax Rate. For purposes of determining the
amount of the Gross-Up Payments, the Executive shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation in the
calendar years in which the Gross-Up Payments are to be made and state and local
income taxes at the highest marginal rate of taxation in the state and locality
of the Executive's residence on the date of termination of employment, net of
the reduction in federal income taxes that can be obtained from deduction of
such state and local taxes (calculated by assuming that any reduction under
Section 68 of the Internal Revenue Code in the amount of itemized deductions
allowable to the Executive applies first to reduce the amount of such state and
local income taxes that would otherwise be deductible by the Executive, and
applicable federal FICA and Medicare withholding taxes.)
Return of Reduced Excise Tax Payment or Payment of Additional Excise
Tax. If the Excise Tax is later determined to be less than the amount taken into
account hereunder when the Executive's employment terminated, the Executive
shall repay to the Corporation -- when the amount of the reduction in Excise Tax
is finally determined -- the portion of the Gross-Up Payments attributable to
the reduction (plus that portion of the Gross-Up Payments attributable to the
Excise Tax, federal, state and local income taxes and FICA and Medicare
withholding taxes imposed on the Gross-Up Payments being repaid by the Executive
to the extent that the repayment results in a reduction in Excise Tax, FICA and
Medicare withholding taxes and/or a federal, state or local income tax
deduction).
If the Excise Tax is later determined to be more than the amount taken
into account hereunder when the Executive's employment terminated (due, for
example, to a payment whose existence or amount cannot be determined at the time
of the Gross-Up Payments), the Corporation shall make an additional Gross-Up
Payment to the Executive for that excess (plus any interest, penalties or
additions payable by the Executive for the excess) when the amount of the excess
is finally determined.
(c) RESPONSIBILITIES OF THE ACCOUNTING FIRM AND THE CORPORATION.
Determinations Shall Be Made by the Accounting Firm. Subject to the provisions
of Section 2(b), all determinations required to be made under this Section 2(c)
-- including whether and when a Gross-Up Payment is required, the amount of the
Gross-Up Payment and the assumptions to be used to arrive at the determination
(collectively, the "Determination") -- shall be made by the Accounting Firm,
which shall provide detailed supporting calculations both to the Corporation and
the Executive within 15 business days after receipt of notice from the
Corporation or the Executive that there has been a Gross-Up Payment, or such
earlier time as is requested by the Corporation.
Fees and Expenses of the Accounting Firm and Agreement with the
Accounting Firm. All fees and expenses of the Accounting Firm shall be borne
solely by the Corporation. The Corporation shall enter into any agreement
requested by the Accounting Firm in connection with the performance of its
services hereunder.
Accounting Firm's Opinion. If the Accounting Firm determines that no
Excise Tax is payable by the Executive, the Accounting Firm shall furnish the
Executive with a written opinion to that effect, and to the effect that failure
to report Excise Tax, if any, on the Executive's applicable federal income tax
return will not result in the imposition of a negligence or similar penalty.
Accounting Firm's Determination Is Binding; Underpayment and
Overpayment. The Determination by the Accounting Firm shall be binding on the
Corporation and the Executive. Because of the uncertainty in determining whether
any of the Total Benefits will be subject to the Excise Tax at the time of the
Determination, it is possible
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that Gross-Up Payments that should have been made will not have been made by the
Corporation ("Underpayment"), or that Gross-Up Payments will be made that should
not have been made by the Corporation ("Overpayment"). If, after a Determination
by the Accounting Firm, the Executive is required to make a payment of
additional Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred. The Underpayment (together with interest at the
rate provided in Section 1274(d)(2)(B) of the Internal Revenue Code) shall be
paid promptly by the Corporation to or for the benefit of the Executive. If the
amount of the Gross-Up Payment exceeds the amount necessary to reimburse the
Executive for his Excise Tax, the Accounting Firm shall determine the amount of
the Overpayment that has been made. The Overpayment (together with interest at
the rate provided in Section 1274(d)(2)(B) of the Internal Revenue Code) shall
be paid promptly by the Executive to or for the benefit of the Corporation.
Provided that his expenses are reimbursed by the Corporation, the Executive
shall cooperate with any reasonable requests by the Corporation in any contests
or disputes with the Internal Revenue Service relating to the Excise Tax.
Accounting Firm Conflict of Interest. If the Accounting Firm is serving
as accountant or auditor for the individual, entity or group effecting the
Change in Control, the Executive may appoint another nationally recognized
public accounting firm to make the Determinations required hereunder (in which
case the term "Accounting Firm" as used in this Agreement shall be deemed to
refer to the accounting firm appointed by the Executive under this paragraph).
(d) NO MITIGATION REQUIRED. The Corporation hereby acknowledges that it
will be difficult and could be impossible (1) for the Executive to find
reasonably comparable employment after his employment terminates, and (2) to
measure the amount of damages the Executive may suffer as a result of
termination. Additionally, the Corporation acknowledges that its general
severance pay plans do not provide for mitigation, offset or reduction of any
severance payment received thereunder. Accordingly, the Corporation further
acknowledges that the payment of severance and termination benefits by the
Corporation under this Agreement is reasonable and will be liquidated damages,
and the Executive shall not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment or otherwise, nor
will any profits, income, earnings or other benefits from any source whatsoever
create any mitigation, offset, reduction or any other obligation on the part of
the Executive hereunder or otherwise.
3. GOOD REASON
(a) DEFINITION OF GOOD REASON. For purposes of this Agreement, "Good
Reason" means the occurrence of any of the events or conditions described in
clauses (1) through (6) hereof without the Executive's express written consent:
(1) Change in Office or Position or Termination as a Director: failure
to elect or reelect or otherwise to maintain the Executive in the
office or position, or a substantially equivalent office or
position, of or with the Corporation and the Bank that the
Executive held immediately before the Change in Control, or the
removal or failure to nominate the Executive as a director of the
Corporation (or any successor thereto) if the Executive shall have
been a director of the Corporation immediately before the Change in
Control;
(2) Adverse Change in the Scope of His Duties or Compensation and
Benefits:
(a) a significant adverse change in the nature or scope of the
authorities, powers, functions, responsibilities or duties
associated with the Executive's position with the Corporation
or the Bank compared to the nature or scope of the authorities,
powers, functions, responsibilities or duties associated with
the position immediately before the Change in Control;
(b) a reduction in the aggregate of the Executive's annual
compensation received from the Corporation and the Bank; or
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(c) the termination or denial of the Executive's rights to benefits
under the Corporation's or the Bank's benefit, compensation and
incentive plans and arrangements or a reduction in the scope or
value thereof, which situation is not remedied within 10
calendar days after written notice to the Corporation from the
Executive;
(3) Adverse Change in Circumstances: the Executive determines that a
change in circumstances has occurred after a Change in Control,
including without limitation a change in the scope of the business
or other activities for which the Executive is responsible compared
to his responsibilities immediately before the Change in Control,
(a) which renders the Executive substantially unable to carry out,
substantially hinders the Executive's performance of, or causes the
Executive to suffer a substantial reduction in, any of the
authorities, powers, functions, responsibilities or duties
associated with the office or position held by the Executive
immediately before the Change in Control, and (b) which situation
is not remedied within 10 calendar days after written notice to the
Corporation from the Executive of such determination. Provided his
determination is made in good faith, the Executive's determination
will be conclusive and binding upon the parties hereto. The
Executive's determination will be presumed to have been made in
good faith, unless the Corporation establishes by clear and
convincing evidence that it was not made in good faith;
(4) Liquidation and Merger of the Corporation or the Bank: the
liquidation, dissolution, merger, consolidation or reorganization
of the Corporation or the Bank or transfer of all or substantially
all of the business or assets of either the Corporation or the
Bank, unless the successor or successors (by liquidation, merger,
consolidation, reorganization, transfer or otherwise) to which all
or substantially all of the business or assets have been
transferred (directly or by operation of law) assumes all duties
and obligations of the Corporation under this Agreement;
(5) Relocation of the Executive: the Corporation or the Bank relocates
its principal executive offices, or requires the Executive to have
his principal location of work changed, to any location that is
more than 15 miles from the location thereof immediately before the
Change in Control, or requires the Executive to travel away from
his office in the course of discharging his responsibilities or
duties hereunder at least 20% more (in terms of aggregate days in
any calendar year or in any calendar quarter when annualized for
purposes of comparison to any prior year) than was required of
Executive in any of the three full years immediately before the
Change in Control; or
(6) Breach of this Agreement: without limiting the generality or effect
of the foregoing, any material breach of this Agreement by the
Corporation or any successor thereto.
(b) NO EFFECT ON EMPLOYEE BENEFITS. Termination by the Corporation
under Section 1(a)(1) (termination within three years after a Change in
Control), termination by the Executive under Section 1(a)(2) (termination for
Good Reason) and termination by the Executive under Section 1(b) (termination
during the 90-day period after the six month anniversary of a Change in Control)
will not affect any rights the Executive may have under any benefit,
compensation or incentive agreement, policy, plan, program or arrangement of the
Corporation or the Bank, which rights shall be governed by the terms thereof.
4. TERMINATION FOR WHICH NO SEVERANCE OR TERMINATION BENEFITS ARE PAYABLE
(a) NO SEVERANCE FOR TERMINATION FOR CAUSE. Anything in this Agreement
to the contrary notwithstanding, under no circumstance shall the Executive be
entitled to severance or termination benefits if his employment terminates for
Cause.
(1) Cause Means Commission of Any of the Following Acts: For purposes
of this Agreement, "Cause" means the Executive shall have committed
any of the following acts:
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(a) Fraud, Embezzlement or Theft: an intentional act of fraud,
embezzlement or theft in connection with his duties or in the
course of his employment with the Corporation or the Bank;
(b) Intentional Harm: intentional wrongful damage to property of
the Corporation or the Bank, causing material harm to the
Corporation or the Bank;
(c) Disclosure of Trade Secrets: intentional wrongful disclosure of
secret processes or confidential information of the Corporation
or the Bank, causing material harm to the Corporation or the
Bank;
(d) Competing with the Corporation or the Bank: intentional
wrongful engagement in any competitive activity. For purposes
of this Agreement, competitive activity means the Executive's
participation, without the written consent of an officer of the
Corporation, in the management of any business enterprise if
(1) the enterprise engages in substantial and direct
competition with the Corporation or the Bank, (2) the
enterprise's revenues derived from any product or service
competitive with any product or service of the Corporation or
the Bank amounted to 10% or more of such enterprise's revenues
for its most recently completed fiscal year, and (3) the
Corporation's revenues from the product or service amounted to
10% of the Corporation's revenues for its most recently
completed fiscal year, or the Bank's revenues from the product
or service amounted to 10% of the Bank's revenues for its most
recently completed fiscal year. A competitive activity does not
include mere ownership of securities in any such enterprise and
the exercise of rights appurtenant thereto, provided the
Executive's share ownership does not give him practical or
legal control of the enterprise. For this purpose, ownership of
less than 5% of the enterprise's outstanding voting securities
shall conclusively be presumed to be insufficient for practical
or legal control, and ownership of more than 50% shall
conclusively be presumed to constitute practical and legal
control.
If the Executive is now or hereafter becomes subject
to an agreement not to compete with the Corporation or the
Bank, a breach by the Executive of that other non-competition
agreement shall be grounds for denial of severance and
termination benefits for Cause under this clause (d) of Section
4(a)(1). But if the Executive engages in a competitive activity
under circumstances justifying denial of severance or
termination benefits for Cause under this clause (d), that
shall not necessarily be grounds for concluding that the
Executive has also breached the other non-competition agreement
to which he is or may become subject. This clause (d) is not
intended to and shall not be construed to supersede or amend
any provision of an employment or non-competition agreement to
which the Executive is or may become subject. This clause (d)
does not grant to the Executive any right or privilege to
engage in other activities or enterprises, whether in
competition with the Corporation or the Bank or otherwise; or
(e) Termination for Cause under an Employment Agreement: any
actions that have caused the Executive to be terminated for
cause under any employment agreement existing on the date
hereof or hereafter entered into between the Executive and the
Corporation or the Bank.
(2) Definition of "Intentional": For purposes of this Agreement, no act
or failure to act on the part of the Executive shall be deemed to
have been intentional if it was due primarily to an error in
judgment or negligence. An act or failure to act on the Executive's
part shall be considered intentional if it is not in good faith and
if it is without a reasonable belief that the action or failure to
act is in the best interests of the Corporation.
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(3) Termination for Cause Can Occur Solely by Formal Board Action. The
Executive shall not be deemed to have been terminated for Cause
under this Agreement unless and until there shall have been
delivered to the Executive a copy of a resolution duly adopted by
the affirmative vote of at least three-fourths (3/4) of the
directors of the Corporation then in office at a meeting of the
Board of Directors called and held for such purpose, which
resolution shall (a) contain findings that, in the good faith
opinion of the Board, the Executive has committed an act
constituting Cause and (b) specify the particulars thereof in
detail. Notice of that meeting and the proposed termination for
Cause shall be given to the Executive a reasonable amount of time
before the Board's meeting. The Executive and his counsel (if the
Executive chooses to have counsel present) shall have a reasonable
opportunity to be heard by the Board at the meeting. Nothing in
this Agreement limits the Executive's or his beneficiaries' right
to contest the validity or propriety of the Board's determination
of Cause, and they shall have the right to contest the validity or
propriety of the Board's determination of Cause even if that right
does not exist under any employment agreement of the Executive.
(b) NO SEVERANCE UNDER THIS AGREEMENT FOR THE EXECUTIVE'S DEATH OR
DISABILITY. Anything in this Agreement to the contrary notwithstanding, under no
circumstance shall the Executive be entitled to severance payments or
termination benefits if
(1) Death: the Executive dies while actively employed by the
Corporation or the Bank; or
(2) Disability: the Executive becomes totally disabled while actively
employed by the Corporation or the Bank. For purposes of this
agreement, the term "totally disabled" means that because of injury
or sickness, the Executive is unable to perform his duties.
The benefits, if any, payable to the Executive or his beneficiary(ies)
or estate relating to his death or disability shall be determined solely by such
benefit plans or arrangements as the Corporation or the Bank may have with the
Executive relating to death or disability, not this Agreement.
5. TERM OF AGREEMENT
The initial term of this Agreement shall be for a period of three
years, commencing May 8, 2001. On the first anniversary of the May 8, 2001
effective date of this Agreement, and on each anniversary thereafter, the
Agreement shall be extended automatically for one additional year, PROVIDED THAT
Board of Directors has not given notice to the Executive in writing at least 90
days prior to such anniversary that the term of this Agreement shall not be
extended further. References herein to the term of this Agreement shall refer to
the initial term, as the same may be extended. Unless sooner terminated, this
Agreement shall terminate when the Executive reaches age 65. If the Board
decides not to extend the term of this Agreement, this Agreement shall
nevertheless remain in force until its term expires. The Board's decision not to
extend the term of this Agreement shall not -- by itself -- give the Executive
any rights under this Agreement to claim an adverse change in his position,
compensation or circumstances or otherwise to claim entitlement to severance or
termination benefits under this Agreement.
6. THIS AGREEMENT IS NOT AN EMPLOYMENT CONTRACT
The parties hereto acknowledge and agree that (a) this Agreement is not
a management or employment agreement and (b) nothing in this Agreement shall
give the Executive any rights or impose any obligations to continued employment
by the Bank or Corporation or any subsidiary or successor of the Bank or
Corporation, nor shall it give the Bank or Corporation any rights or impose any
obligations for the continued performance of duties by the Executive for the
Bank or Corporation or any subsidiary or successor of the Bank or Corporation.
7. PAYMENT OF LEGAL FEES
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(a) THE EXECUTIVE MAY ENFORCE THIS AGREEMENT THROUGH LEGAL ACTION. The
Corporation irrevocably authorizes the Executive to retain from time to time
counsel of Executive's choice to advise and represent him in the interpretation,
enforcement or defense of the parties' rights and responsibilities under this
Agreement, if:
(1) the Executive concludes that the Corporation has failed to comply
with any of its obligations under this Agreement, or
(2) if the Corporation or any or any other person takes or threatens to
take any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or proceeding designed to
deny, or to recover from, the Executive the benefits provided or
intended to be provided to the Executive under this Agreement,
including without limitation the initiation or defense of any litigation or
other legal action, whether by or against the Corporation or any director,
officer, stockholder or other person affiliated with the Corporation, in any
jurisdiction.
(b) FEES AND EXPENSES WILL BE PAID BY THE CORPORATION. The Corporation
desires that the Executive not be required to incur legal fees and the related
costs and expenses associated with the interpretation, enforcement or defense of
Executive's rights under this Agreement by litigation or otherwise, because the
amounts thereof would substantially detract from the benefits intended to be
extended to the Executive under this Agreement. Therefore, even if the Executive
does not prevail in whole or in part in the litigation or other legal action
associated with the interpretation, enforcement or defense of Executive's rights
under this Agreement, the Corporation hereby agrees to pay and be solely
financially responsible for any and all attorneys' and related fees, costs and
expenses incurred by the Executive in the litigation or other legal action, up
to a maximum of $500,000. The fees and expenses of counsel selected by the
Executive shall be paid or reimbursed to the Executive by the Corporation on a
regular, periodic basis, upon presentation by the Executive of a statement or
statements prepared by such counsel in accordance with counsel's customary
practices. Anything herein to the contrary notwithstanding, nothing in this
Agreement authorizes the Corporation to pay or the Executive to demand payment
of fees, costs and expenses if and to the extent payment of fees, costs and
expenses constitutes a "prohibited indemnification payment" within the meaning
of Federal Deposit Insurance Corporation Rule 359.1(l)(1) [12 CFR 359.1(l)(1)].
(c) COST OF LIVING ADJUSTMENT FOR CAP ON LEGAL FEE REIMBURSEMENT. Upon
the occurrence of a Change in Control, the $500,000 cap on legal fee
reimbursement provided by Section 7(b) will be subject to a cost of living
adjustment equal to the value of the expression A x B, in which expression:
A = $500,000; and
B = Cost of living adjustment or inflation factor. This is
computed by dividing the Consumer Price Index for All Urban
Consumers ("CPI-U") prepared by the U.S. Bureau of Labor
Statistics, or any successor thereto, for the CPI-U for
January of the year during which the Change in Control occurs
by the CPI-U for January 2000.
The cost of living adjustment provided in this Paragraph 7(c) shall be
considered to be part of the Executive's payment of legal fees for purposes of
this Agreement.
Illustration of Cost of Living Adjustment. To explain the cost of
living adjustment calculation for Payment of Legal Fees, we will use the
following example.
First, we determine the appropriate CPI-Us. The Agreement calls for the
use of the CPI-Us for January 2000 and the January of the year during which the
Change in Control occurs. Assume a Change in Control occurs in April 2009. For
illustrative purposes only, the CPI-U for January 2000 is 156.7, and the CPI-U
for January 2009 is 213.3.
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Second, we calculate the cost of living adjustment or inflation factor.
To do this, we divide the CPI-U for January 2009 (213.3) by the CPI-U for
January 2000 (156.7). Our result is 1.361 (i.e., a 36.1 percent increase).
Finally, we calculate the raw cost of living adjustment. To do this, we
multiply the base Payment of Legal Fees amount by the inflation factor. In our
example, $500,000 multiplied by the inflation factor of 1.361 equals $680,500.
(d) THE EXECUTIVE MAY CHOOSE THE CORPORATION'S COUNSEL. Notwithstanding
any existing or previous attorney-client relationship between the Corporation
and any counsel chosen by the Executive under Section 7(a), the Corporation
irrevocably consents to the Executive's entering into an attorney-client
relationship with that counsel, and the Corporation and the Executive agree that
a confidential relationship shall exist between the Executive and that counsel.
8. WITHHOLDING OF TAXES
The Corporation or the Bank may withhold from any benefits payable
under this Agreement all Federal, state, local or other taxes as may be required
by law, governmental regulation or ruling.
9. SUCCESSORS AND ASSIGNS
(a) THIS AGREEMENT IS BINDING ON THE CORPORATION'S SUCCESSORS. This
Agreement shall be binding upon the Corporation and any successor to the
Corporation, including any persons acquiring directly or indirectly all or
substantially all of the business or assets of the Corporation by purchase,
merger, consolidation, reorganization or otherwise. Any such successor shall
thereafter be deemed to be the "Corporation" for purposes of this Agreement. But
this Agreement and the Corporation's obligations under this Agreement are not
otherwise assignable, transferable or delegable by the Corporation. By agreement
in form and substance satisfactory to the Executive, the Corporation shall
require any successor to all or substantially all of the business or assets of
the Corporation expressly to assume and agree to perform this Agreement in the
same manner and to the same extent the Corporation would be required to perform
if no such succession had occurred.
(b) THIS AGREEMENT IS ENFORCEABLE BY THE EXECUTIVE AND HIS HEIRS. This
Agreement will inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributes and legatees.
(c) THIS AGREEMENT IS PERSONAL IN NATURE AND IS NOT ASSIGNABLE. This
Agreement is personal in nature. Without written consent of the other party,
neither party shall assign, transfer or delegate this Agreement or any rights or
obligations under this Agreement except as expressly provided in this Section 9.
Without limiting the generality or effect of the foregoing, the Executive's
right to receive payments hereunder is not assignable or transferable, whether
by pledge, creation of a security interest, or otherwise, except for a transfer
by Executive's will or by the laws of descent and distribution. If the Executive
attempts an assignment or transfer that is contrary to this Section 9, the
Corporation shall have no liability to pay any amount to the assignee or
transferee.
10. 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.
(a) If to the Corporation, to:
UNB Corp.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attn: Corporate Secretary
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(b) If to the Executive, to:
___________________________________
___________________________________
___________________________________
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
11. CAPTIONS AND COUNTERPARTS
The headings and subheadings used in this Agreement are included solely
for convenience and shall not affect the interpretation of this Agreement.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
12. AMENDMENTS AND WAIVERS
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in a writing or
writings signed by the Executive and by the Corporation. No waiver by either
party hereto at any time of any breach by the other party hereto or compliance
with any condition or provision of this Agreement to be performed by such other
party will be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, expressed or implied with respect to the
subject matter hereof have been made by either party that are not set forth
expressly in this Agreement.
13. SEVERABILITY
The provisions of this Agreement shall be deemed severable. The
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions of this Agreement. Any provision held to
be invalid or unenforceable shall be reformed to the extent (and only to the
extent) necessary to make it valid and enforceable.
14. GOVERNING LAW
The validity, interpretation, construction and performance of this
Agreement shall be governed by and construed in accordance with the substantive
laws of the State of Ohio, without giving effect to the principles of conflict
of laws of such State.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first written above.
WITNESSES: UNB CORP.
_____________________________ By: __________________________________
_____________________________ Its:
WITNESSES: EXECUTIVE
_____________________________ __________________________________
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__________________
County of )
) ss:
State of Ohio )
Before me this _______ day of _____________, 2001, personally appeared
the above __________________ named and __________________, who acknowledged that
they did sign the foregoing instrument and that the same was their free act and
deed.
_____________________________________
(Notary Seal) Notary Public
My Commission Expires:
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