EXHIBIT 10.6
SENIOR EXECUTIVE SEVERANCE AGREEMENT
THIS AGREEMENT is made as of January 1, 2001 by and between CENTRAL
NATIONAL BANK, CANAJOHARIE, a national banking association located in
Canajoharie, New York (the "Bank"), CNB FINANCIAL CORP., the bank holding
company for the Bank (the "Corporation"), and XXXXXXX X. XXXXXX (the
"Executive").
WITNESSETH:
WHEREAS, the Board of Directors (the "Board") of the Corporation has
authorized the Corporation to enter into severance agreements with certain key
executives of the Corporation and the Bank; and
WHEREAS, the Executive is a key executive of the Corporation and/or the
Bank and has been selected by the Board as a key executive to be a party to this
Agreement; and
WHEREAS, should the Corporation receive any hostile proposal from a
third person concerning any possible business combination with, or
acquisition of equity securities of, the Corporation, the Board believes it
imperative that the Corporation and the Board be able to rely on the
Executive to continue in his position, and that the Corporation be able to
receive and rely upon his advice, if it requests it, as to the best interests
of the Corporation and its shareholders without concern that he might be
distracted by the personal uncertainties and risks created by such a
proposal; and
WHEREAS, should the Corporation receive any such proposals, in addition
to the Executive's regular duties, he may be called upon to assist in the
assessment of such proposals, to advise management and the Board as to whether
such proposals would be in the best interests of the Corporation and its
shareholders, and to take such other actions as the Board might determine to be
appropriate; and
WHEREAS, the Board also desires to encourage the continued dedication
of the Executive to the Corporation and the Bank and to promote the stability of
the Corporation's and the Bank's management by providing certain protections for
the Executive in the event that a hostile Change in Control (as hereinafter
defined) occurs with respect to the Corporation;
NOW, THEREFORE, to assure the Corporation and the Bank that they will
have the continued dedication of the Executive and the availability of his
advice and counsel notwithstanding the possibility, threat or occurrence of a
bid to take over control of the Corporation, and to induce the Executive to
remain in the employ of the Corporation, and for other good and valuable
consideration, the Corporation, the Bank and the Executive agree as follows:
1. SERVICES DURING CERTAIN EVENTS. In the event a person or group
begins a tender or exchange officer, circulates a proxy to shareholders, or
takes other steps seeking
to effect a Change of Control (as defined in Section 4 below), the Executive
agrees that he will not voluntarily leave the employ of the Corporation and will
render the services contemplated in the recitals to this Agreement until the
earlier of (i) the date such person or group has abandoned or terminated his or
its efforts to effect a Change of Control, or (ii) three (3) months after a
Change of Control has occurred.
2. TERMINATION AFTER CHANGE OF CONTROL.
(a) In the event of a Termination (as defined in Section 4(b)
below) of the Executive's employment with the Corporation (including
the Bank) within 24 months after a Change of Control of the
Corporation, the Corporation shall be obligated, subject to the
limitation contained in Section 2(b) below, to pay the Executive, as
compensation for services rendered to the Corporation and as
consideration for the covenant not to compete set forth in Section 6,
an amount equal to 1.99 times the Executive's base salary compensation
(exclusive of all bonus amounts) paid in the last complete calendar
year prior to the date of Termination. Such amount shall be payable to
the Executive in eight (8) equal quarterly installments (subject to any
applicable payroll or other taxes required to be withheld), over a two
(2) year period, without interest, with the first such payment made not
later than 30 days after the Executive's last day of employment with
the Corporation and each succeeding payment being due on the same day
of every third calendar month thereafter. In the event the Executive
dies at any time during the two years following his Termination, any
remaining unpaid installments provided for by this Section 2(a) shall
be paid to his estate. Notwithstanding the foregoing, at the sole
election of the Corporation, the entire amount payable to the Executive
pursuant to this Section 2(a) may be paid in a lump sum, not later than
the 30th day following the Executive's last day of employment with the
Corporation.
(b) Notwithstanding anything in this Agreement to the
contrary, in the event that the amount payable to the Executive
pursuant to Section 2(a) above, when added to all other amounts paid or
to be paid to, and the value of all property received or to be received
by, the Executive in anticipation of or following a Change of Control,
whether paid or received pursuant to this Agreement or otherwise (such
other amounts and property being referred to herein as "Other Change in
Control Payments"), would constitute an excess parachute payment within
the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (or any successor or renumbered section), then the amount
payable pursuant to Section 2(a) of this Agreement or, as directed by
the Executive, such Other Change in Control Payments shall be reduced
to the maximum amount which, when added to such Other Change in Control
Payments, does not constitute an excess parachute payment. For purposes
of determining the extent to which payments pursuant to this Agreement
and/or Other Change in Control Payments must be reduced, the value of
the covenant not to compete set forth in Section 6 shall be valued by
an independent certified public accounting firm retained by the
Corporation.
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3. OTHER EMPLOYMENT. The Executive shall not be obligated to seek other
employment for mitigation of the amounts payable or arrangements made under any
provision of this Agreement.
4. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following respective meanings:
(a) A "CHANGE OF CONTROL" shall be deemed to have taken place
if any of the following events occurs and the Board of Directors of the
Corporation, as constituted prior to event occurring, has not expressly
approved the transaction or event by at least two-thirds vote of the
entire Board:
(i) as the result of, or in connection with any
tender or exchange offer, consolidation, merger or other
business combination, sale of assets or contested election or
any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the
Corporation before the Transaction shall cease for any reason
to constitute at least 50% of the Board of Directors of the
Corporation or any successor to the Corporation; or
(ii) any "person" (as that term is used in Section
13(d) and 14(d)(2) of the Securities and Exchange Act of 1934
(the "Exchange Act") as in effect on the date hereof),
including a "group" as defined in Section 13(d)(3) of the
Exchange Act, becomes the beneficial owner, directly or
indirectly, of shares of the Corporation having more than 50%
of the total number of votes that may be cast for the election
of Directors of the Corporation; or
(iii) the Corporation is merged or consolidated with
another corporation and as a result of the merger or
consolidation less than 50% of the outstanding voting
securities of the surviving or resulting corporation shall
then be owned in the aggregate by the former stockholders of
the Corporation, other than affiliates within the meaning of
the Exchange Act or any party to the merger or consolidation;
or
(iv) a tender offer or exchange offer is made and
consummated for the ownership of securities of the Corporation
representing more than 50% of the combined voting power of the
Corporation's then outstanding voting securities; or
(v) the Bank transfers substantially all of its
assets to another Corporation which is not a direct or
indirect wholly-owned subsidiary of the Corporation.
(b) "TERMINATION" shall mean (1) termination by the
Corporation of the employment of the Executive with the Corporation
(including the Bank) for any reason other than death, Disability (as
defined in Section 4(d) or Cause (as
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defined in Section 4(c)), or (2) the resignation of the Executive for
either of the following events:
(i) A reduction in the Executive's salary and
eligibility for bonuses, incentive compensation and benefits
from that in effect in last complete calendar year prior to
the Change of Control, or (ii) a change in the location where
the Executive is required to perform services of more than 25
miles from his current residence or more than 25 miles from 00
Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxx; provided that prior to
the Executive's resignation, he provides written notice to the
Corporation of .his intent to resigns pursuant to this
paragraph and provides the Corporation a 30 days to cure the
stated condition.
(c) "CAUSE" shall mean the Executive's unreasonable neglect or
refusal to perform the material duties of his position, fraud,
misappropriation or intentional material damage to the property or
business of the Corporation or commission of a felony.
(d) "DISABILITY" shall mean the Executive's absence from his
duties with the Corporation on a full time basis for six (6) successive
months, or for shorter periods aggregating seven (7) months or more in
any year, as a result of the Executive's incapacity due to physical or
mental illness, unless within 30 days after the Corporation gives
written notice of termination following such absence the
Executive shall have returned to the full time performance of his
duties.
5. TRADE SECRETS. It is recognized that the Corporation and the Bank
have acquired and developed and will continue to acquire and develop techniques,
plans, processes, computer programs, and lists of customers and their particular
requirements which may pertain to Bank related services and equipment, and
related trade secrets, know-how, research and development, which are proprietary
and confidential in nature and are and will continue to be of unique value to
the Corporation and the Bank and its business (all hereinafter referred to as
"Confidential Information"). All Confidential Information known or in the
possession of Executive shall be kept and maintained by him as confidential and
proprietary to the Corporation and the Bank. The Executive shall not disclose
any Confidential Information at any time directly or indirectly, in any manner
to any person or firm, except to other employees of the Corporation and/or the
Bank on a "need to know" basis. Upon termination of his employment for any
reason, the Executive shall without demand therefore deliver to the Corporation
all Confidential Information in his possession. The obligations of this Section
shall survive the termination of this Agreement indefinitely.
6. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the Executive and his estate, and the Corporation and any successors
of the Corporation, but neither this Agreement nor any rights arising hereunder
may be assigned or pledged by the Executive.
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7. MISCELLANEOUS. This Agreement represents the entire agreement
between the parties with respect to the subject matter of this Agreement and
specifically supersedes any and all oral or written agreements on its subject
matter previously entered into by the parties, including without limitation the
Change in Control Agreement, dated as of May 1, 1995 and March 31, 1998, between
the Bank, the Corporation and the Executive.
8. SEVERABILITY. Any provision in this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof, and any such prohibition or
unenforceability without invalidating or affecting the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not be invalidate or render unenforceable such provision in any other
jurisdiction.
9. CONTROLLING LAW. This Agreement shall in all respects be governed
by, and construed in accordance with, the laws of the State of New York.
10. TERMS OF AGREEMENT.
(a) The initial term of this Agreement shall commence as of
January 1, 2001 and shall continue through December 31, 2001, unless
earlier terminated as provided herein; provided, however, that in no
case shall this Agreement terminate; (i) within 24 months after the
occurrence of a Change of Control, or (ii) during any period of time
when the Corporation has knowledge that any person or group (such terms
are defined in Section 4(a)(ii) above) has taken steps reasonably
calculated to effect a Change in Control until, in the opinion of the
Board, such person or group has abandoned or terminated his or its
efforts to effect a Change of Control. Any determination by the Board
that such person or group has abandoned or terminated his or its
efforts to effect a Change of Control shall be conclusive and binding
as the Executive.
(b) Notwithstanding any provisions of this Agreement, this
Agreement shall not confer upon the Executive the right to be retained
in the service of the Corporation (including the Bank) nor limit the
right of the Corporation or the Bank to discharge or otherwise deal
with the Executive. It is the express understanding of the Executive,
the Corporation and the Bank that the Executive's employment shall at
all times be "at will", notwithstanding any provisions of this
Agreement. Accordingly, the Executive or the Corporation and Bank may
terminate the Executive's employment with the Bank at any time for any
reason.
(c) This Agreement may be renewed only by the written action
of both parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date specified in the first paragraph of this Agreement.
CNB FINANCIAL CORP.
By: /s/ XxxXxxx X. Xxxxxxxx
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XxxXxxx X. Xxxxxxxx, Chair
Executive Committee
CENTRAL NATIONAL BANK, CANAJOHARIE
By: /s/ Xxxxxx L Brass
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Xxxxxx X. Brass, President
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxx
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