UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 7, 2013
Farmers National Banc Corp.
(Exact name of registrant as specified in its charter)
| Ohio | 001-35296 | 34-1371693 | ||
| (State or other jurisdiction | (Commission | (IRS Employer | ||
| of incorporation) | File Number) | Identification No.) |
20 South Broad Street, P.O. Box 555, Canfield, Ohio 44406-05555
(Address of principal executive offices) (Zip Code)
(330) 533-3341
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| ITEM 5.02 | Departure of Directors or Certain Officers, Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On November 7, 2013, Farmers National Banc Corp. (the “Company”) announced that the Board of Directors of the Company had appointed Kevin J. Helmick to serve as President and Chief Executive Officer of the Company and of Farmers National Bank of Canfield, a wholly-owned subsidiary of the Company (the “Bank”). Mr. Helmick had been serving as the Interim President and Chief Executive Officer since October 4, 2013. Prior to his appointment as President and Chief Executive Officer, Mr. Helmick, 41, served as the Executive Vice President and Secretary of the Company and Executive Vice President – Retail and Wealth Management of the Bank since January 2012. Prior to that, he served as the Bank’s Vice President of Wealth Management and Retail Services since 2008.
In connection with his appointment as President and Chief Executive Officer, the Board of Directors increased Mr. Helmick’s annual base salary to $250,000, and he will continue to be eligible to participate in the Company’s health and welfare benefit plans on the same terms as other executive officers. Mr. Helmick will continue to participate in the Company’s Annual Incentive Plan and Long-Term Cash Incentive Plans with awards and grants made as determined by the Board of Directors. As with the Company’s other executive officers, and as further described below, Mr. Helmick is a participant in the Company’s newly adopted Executive Separation Policy (the “Executive Separation Policy”) and also terminated his previous written employment agreement in connection with his execution of a change in control agreement.
Executive Separation Policy and Change in Control Agreements
On November 7, 2013, the Company adopted the Executive Separation Policy, a copy of which is attached as Exhibit 10.1 hereto and incorporated by reference herein. In connection with the adoption of the Executive Separation Policy, the Company and each of its executive officers, including all of the Company’s named executive officers (Kevin Helmick, Carl Culp, Mark Graham and Joseph Gerzina) entered into Change in Control Agreements (collectively, the “Change in Control Agreements”), copies of which are attached as Exhibits 10.2 through 10.4 and incorporated herein by reference. In connection with their execution of the Change in Control Agreement, each executive officer of the Company who had an employment agreement with the Company (Messrs. Helmick, Culp, and Graham) terminated his existing employment agreement. As a result, the Company no longer has written employment agreements with any of its executive officers and the terms of employment will be governed by the Executive Separation Policy and any Change in Control Agreement. The following summaries of the Executive Separation Policy and the Change in Control Agreements do not purport to be complete and are qualified in their entirety by the texts of the attached Executive Separation Policy and Change in Control Agreements.
Executive Separation Policy
The Executive Separation Policy applies to the Company’s Chief Executive Officer and President, the Executive Vice President – Chief Financial Officer, the Executive Vice President – Chief Credit Officer, and such other persons as may be designated annually by the Board of Directors (collectively, the “Covered Executives”). Mr. Gerzina is one of the officers so designated by the Board of Directors. As such, each of Messrs. Helmick, Culp, Graham and Gerzina is a Covered Executive and a participant in the Executive Separation Policy.
In the event that a Covered Executive’s employment is terminated by the Company for Cause or by the Covered Executive without Good Reason (each as defined in the Executive Separation Policy), then the Covered Executive would be entitled to receive (i) all earned but unpaid compensation benefits for time worked through the date of termination; and (ii) such other rights and benefits (if any) as may be provided under other plans and programs of the Company (collectively, the “Accrued Obligations”).
If the Covered Executives employment is terminated by the Company without Cause or by the Covered Executive with Good Reason, then, in addition to the Accrued Obligations, the Covered Executive would be eligible to receive (i) a lump sum equal to 36 months’ salary (for Messrs. Helmick, Culp and Graham) or 12 months’ salary (for Mr. Gerzina); (ii) a pro rata incentive bonus in a lump sum equal to the bonus the Covered Executive would have earned (assuming performance at the “target” level); (iii) a lump sum amount equal to the monthly COBRA premium payable by the Covered Executive to continue to receive health benefits at a level similar to which the Covered Executive and his or her spouse and dependents were receiving multiplied by 36 (for Messrs. Helmick, Culp and Graham) or 12 (for Mr. Gerzina); and (iv) a lump sum payment in an amount not to exceed $10,000 (for Mr. Helmick) or $7,500 (for Messrs. Culp, Graham and Gerzina) for reasonable outplacement services for up to one year by a firm selected by the Company.
In order to receive any payments pursuant to the Executive Separation Policy (other than the Accrued Obligations), the Covered Executive would be required to execute a general release in favor of the Company and must also (i) comply with a non-competition covenant for 12 months; (ii) comply with covenants prohibiting the solicitation of customers and employees for a period of time equal to 24 months (for Messrs. Helmick, Culp and Graham) or 12 months (for Mr. Gerzina); (iii) maintain the confidentiality of the Company’s proprietary and confidential information and (iv) comply with non-disparagement provisions. Failure to abide by these conditions requires the Covered Executive to return to the Company, within 10 days after request by the Company, any amounts the Company has paid to the Covered Executive under the Executive Separation Policy (other than the Accrued Obligations).
In the event that a Covered Executive is terminated under circumstances that would entitle him or her to payment under a Change in Control Agreement, then the terms of the Change in Control Agreement will be controlling and the Covered Executive would not be entitled to benefits under the Executive Separation Policy.
Change in Control Agreements
In the event that an executive officer’s employment is terminated by the Company, other than for Cause, or by the executive, for Good Reason, during the six month period commencing prior to a Change in Control (all as defined in the Change in Control Agreement) or the 12 month period thereafter, then the executive would be eligible to receive the benefits set forth in the Change in Control Agreement. Those benefits include (i) a payment in an amount equal to the executive’s annual base salary multiplied by three (for Mr. Helmick), two and one-half (for Messrs. Culp and Graham) or one (for all other executive officers including Mr. Gerzina); (ii) a lump sum amount equal to the average of the annual incentive bonus paid to the executive in the three years preceding termination multiplied by three (for Mr. Helmick), two and one-half (for Messrs. Culp and Graham) or one (for all other executive officers including Mr. Gerzina); (iii) a pro rata incentive bonus of the year of termination (assuming performance had been attained at the “target” level); (iv) a lump sum payment in an amount equal to the monthly COBRA premium payable by the executive to continue to receive health benefits at a level similar to which the executive and his spouse and dependents were participating multiplied by 36 (for Mr. Helmick), 30 (for Messrs. Culp and Graham) or 12 (for all other executive officers including Mr. Gerzina); and (v) a lump sum of $20,000 for outplacement services (for Messrs. Helmick, Culp and Graham).
Each of the Change in Control Agreements provide for a “cut-back” in the event of any excise tax under Section 280G of the Internal Revenue Code (the “Code”), such that the benefits payable to the executive would be reduced to $1.00 less than the amount that causes the payments to be treated as parachute payments under Section 280G of the Code; provided, however, that no reduction will occur if, on an after-tax basis in each case and taking into account all federal, state and local taxes (including any excise tax), the executive would receive a greater amount if no reduction had occurred, thus providing the “best net effect” to the executive.
In order to receive the benefits described above, the executive would be required to execute a general release in favor of the Company and must also (i) comply with covenants prohibiting the solicitation of customers and employees (for a period of 36 months for Mr. Helmick, 24 months for Messrs. Culp and Graham and 12 months for all other executive officers including Mr. Gerzina) (ii) maintain the confidentiality of the Company’s proprietary and confidential information and (iii) comply with non-disparagement provisions.
| ITEM 9.01 | FINANCIAL STATEMENTS AND EXHIBITS. |
(d) Exhibits.
|
Exhibit
|
Description |
|
| 10.1 | Executive Separation Policy. | |
| 10.2 | Change in Control Agreement (Mr. Helmick). | |
| 10.3 | Form of Change in Control Agreement — Executive Officers (Messrs. Culp and Graham) | |
| 10.4 | Form of Change in Agreement – Officers (Mr. Gerzina) | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Farmers National Banc Corp. | ||
|
By: |
/s/ Carl D. Culp |
|
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Carl D. Culp |
||
|
Executive Vice President and Treasurer |
||
Date: November 14, 2013
Exhibit 10.1
Farmers National Banc Corp.
Executive Separation Policy
Effective: November 7, 2013
| 1. | Purpose |
Farmers National Banc Corp. (the “Company”) seeks to attract and retain the most qualified and capable professionals to serve in key executive positions to maximize the value of the Company for the benefit of the Company’s stockholders. To achieve this goal, the Company has established this Executive Separation Policy (this “Policy”) effective November 7, 2013 (the “Effective Date”) to provide such employees with certain types of financial security and sufficient incentives to accept and continue their executive employment. This Policy describes the separation pay and benefits that the Company will provide to Covered Executives (as defined below) if their employment with the Company terminates under certain circumstances. The Company also seeks through this Policy to ensure that the separation process is handled professionally and efficiently.
| 2. | Application to Covered Employees |
| A. | This Policy applies to the Chief Executive Officer and President, the Executive Vice President – Chief Financial Officer, the Executive Vice President – Retail Services/Wealth Management, the Executive Vice President – Chief Credit Officer, and such other executive officers comprising the Company’s senior management team as may be designated annually by the Board of Directors (collectively, the “Covered Executives”). |
| B. | The Compensation Committee of the Company’s Board of Directors (the “Compensation Committee”) may, from time to time, designate other persons holding other executive positions who are not members of the Company’s Senior Management Committee as Covered Executives under this Policy and the level of severance pay and benefits that such persons shall receive under this Policy. |
| 3. | Termination of Employment |
The Company may terminate a Covered Executive’s employment with the Company, with or without Cause, and a Covered Executive may terminate his or her employment with the Company for or without Good Reason, subject, however, in each case, to the terms and conditions of any written employment agreement between the Covered Executive and the Company.
| A. | Termination by Company for Cause or by Covered Executive Without Good Reason |
If the Company terminates a Covered Executive’s employment with the Company for Cause, or a Covered Executive terminates his or her employment with the Company without Good Reason, the Covered Executive will be entitled to: (1) all earned but unpaid compensation for time worked through the Termination Date, to be paid on the Payment Date; and (2) any rights and benefits (if any) provided under plans and programs of the Company, determined in accordance with the applicable terms and provisions of such plans and programs, including, without limitation, earned but unused vacation (the payments described in this Section 3.A are collectively referred to as the “Accrued Obligations”). Other than payment of the Accrued Obligations, a Covered Executive whose employment with the Company terminates as described in this Section 3.A shall not be entitled to receive any other severance pay or benefits. Nothing in the foregoing is intended to limit a Covered Executive’s ability to continue participating in the Company’s group health, dental and vision plans for the applicable COBRA continuation period, provided that the Covered Executive properly elects COBRA continuation coverage and pays the applicable COBRA premiums.
| B. | Termination by Company Without Cause or by Covered Executive for Good Reason |
If the Company terminates a Covered Executive’s employment with the Company without Cause, or a Covered Executive terminates his or her employment with the Company for Good Reason, the Company will, subject to the terms and conditions of this Policy, provide the severance pay and benefits set forth below to the Covered Executive based on the Covered Executive’s position on the date of termination.
| (1) | If the Covered Executive is the Chief Executive Officer, the Covered Executive will receive the following severance pay and benefits: |
| (a) | the Accrued Obligations; |
| (b) | if the Covered Executive was employed by the Company on the Effective Date, a lump sum amount equal to 36 months of the Covered Executive’s then-current base salary (or, if greater, the base salary immediately prior to any reduction constituting Good Reason), to be paid on the Payment Date; if the Covered Executive was not employed by the Company on the Effective Date, a lump sum amount equal to 24 months of the Covered Executive’s then-current base salary (or, if greater, the base salary immediately prior to any reduction constituting Good Reason), to be paid on the Payment Date; |
| (c) | a pro rata incentive bonus in a lump sum amount determined by multiplying the annual incentive that the Covered Executive would have earned under the Company’s annual incentive plan for the year in which the termination occurred, assuming that performance had been attained at the “target” level as based on a percentage of the Covered Executive’s then-current base salary (or, if greater, the base salary immediately prior to any reduction constituting Good Reason), by a fraction, the numerator of which is the number of days elapsed during the calendar year prior to the Termination Date and the denominator of which is 365, to be paid on the Payment Date; |
| (d) | a lump sum amount equal to the monthly COBRA premium payable by the Covered Executive to continue to receive health benefits at a level similar to which the Covered Executive and his or her spouse and dependents, if any, were participating immediately prior to the termination, in order to continue to receive such benefits during the applicable COBRA coverage period, multiplied by (i) 36 if the Covered Executive was employed by the Company on the Effective Date, or (ii) 24 if the Covered Executive was not employed by the Company on the Effective Date; and |
| (e) | a lump sum payment in an amount not to exceed $10,000 for reasonable outplacement services by a firm selected by the Company, for a period of such services lasting not longer than one (1) year after the Termination Date. |
| (2) | If the Covered Executive is the Chief Financial Officer and Executive Vice President, the Executive Vice President – Retail Services/Wealth Management, or the Executive Vice President – Chief Credit Officer, the Covered Executive will receive the following severance pay and benefits: |
| (a) | the Accrued Obligations; |
| (b) | if the Covered Executive was employed by the Company on the Effective Date, a lump sum amount equal to 36 months of the Covered Executive’s then-current base salary (or, if greater, the base salary immediately prior to any reduction constituting Good Reason), to be paid on the Payment Date; if the Covered Executive was not employed by the Company on the Effective Date, a lump sum amount equal to 18 months of the Covered Executive’s then-current base salary (or, if greater, the base salary immediately prior to any reduction constituting Good Reason), to be paid on the Payment Date; |
| (c) | a pro rata incentive bonus in a lump sum amount determined by multiplying the annual incentive that the Covered Executive would have earned under the Company’s annual incentive plan for the year in which the termination occurred, assuming that performance had been attained at the “target” level as based on a percentage of the Covered Executive’s then-current base salary (or, if greater, the base salary immediately prior to any reduction constituting Good Reason), by a fraction, the numerator of which is the number of days elapsed during the calendar year prior to the Termination Date and the denominator of which is 365, to be paid on the Payment Date; |
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| (d) | a lump sum amount equal to the monthly COBRA premium payable by the Covered Executive to continue to receive health benefits at a level similar to which the Covered Executive and his or her spouse and dependents, if any, were participating immediately prior to the termination, in order to continue to receive such benefits during the applicable COBRA coverage period, multiplied by (i) 36 if the Covered Executive was employed by the Company on the Effective Date, or (ii) 18 if the Covered Executive was not employed by the Company on the Effective Date; and |
| (e) | a lump sum payment in an amount not to exceed $7,500 for reasonable outplacement services by a firm selected by the Company, for a period of such services lasting not longer than one (1) year after the Termination Date. |
| (3) | If the Covered Executive is not the Chief Executive Officer, the Executive Vice President – Chief Financial Officer, the Executive Vice President – Retail Services/Wealth Management, or the Executive Vice President – Chief Credit Officer, the Covered Executive will receive the following severance pay and benefits: |
| (a) | the Accrued Obligations; |
| (b) | a lump sum amount equal to 12 months of the Covered Executive’s then-current base salary (or, if greater, the base salary immediately prior to any reduction constituting Good Reason), to be paid on the Payment Date; |
| (c) | a pro rata incentive bonus in a lump sum amount determined by multiplying the annual incentive that the Covered Executive would have earned under the Company’s annual incentive plan for the year in which the termination occurred, assuming that performance had been attained at the “target” level as based on a percentage of the Covered Executive’s then-current base salary (or, if greater, the base salary immediately prior to any reduction constituting Good Reason), by a fraction, the numerator of which is the number of days elapsed during the calendar year prior to the Termination Date and the denominator of which is 365, to be paid on the Payment Date; |
| (d) | a lump sum amount equal to the monthly COBRA premium payable by the Covered Executive to continue to receive health benefits at a level similar to which the Covered Executive and his or her spouse and dependents, if any, were participating immediately prior to the termination, in order to continue to receive such benefits during the applicable COBRA coverage period, multiplied by 12; and |
| (e) | a lump sum payment in an amount not to exceed $7,500 for reasonable outplacement services by a firm selected by the Company, for a period of such services lasting not longer than one (1) year after the Termination Date. |
| 4. | Eligibility For Separation Pay and Benefits |
Except with respect to the Accrued Obligations, the Company’s obligations to provide any severance pay and benefits under this Policy are conditioned upon the following:
| A. | The Covered Executive’s execution prior to the first date that any payment (other than the Accrued Obligations) is to begin, of a valid, enforceable, full and unconditional release reasonably acceptable to the Company, generally in the form attached as Exhibit A hereto, of all claims whether known or unknown that the Covered Executive may have against the Company, its officers, fiduciaries, directors, agents, and employees as of the Termination Date. |
| B. | The Covered Executive agrees to the following: |
| (i) | Non-Competition. For a period of 12 consecutive months after the Termination Date, the Covered Executive shall not, directly or indirectly, as owner, partner, joint venturer, stockholder (excluding the ownership of publicly-traded securities where such ownership does not exceed 1% of such securities outstanding), employee, officer, director, agent, principal, trustee or in any other business capacity whatsoever, engage in, become financially interested in, become employed by, render any consulting or business advice with respect to, or have any other connection with, any person or business entity engaged in the same business as the Company or an affiliate in any county where the Company or an affiliate maintains a branch or loan production office at the time of termination of the Covered Executive’s employment. |
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| (ii) | Non-Solicitation of Customers. For a period equal to the lesser of (a) 24, or (b) the number of months of the Covered Executive’s base salary used as a multiplier in Section B(1)(b), B(2)(b), or B(3)(b) as applicable, consecutive months after the Termination Date, the Covered Executive shall not, directly or indirectly solicit Business from any customers, clients or business patrons of the Company or an affiliate who were customers, clients or business patrons of the Company or an affiliate at the time of termination of the Covered Executive’s employment. |
| (iii) | Non-Solicitation of Employees. For a period equal to the lesser of (a) 24, or (b) the number of months of the Covered Executive’s base salary used as a multiplier in Section B(1)(b), B(2)(b), or B(3)(b) as applicable, consecutive months after the Termination Date, the Covered Executive shall not, directly or indirectly employ or attempt to employ or solicit for employment any other individual who is employed by the Company or an affiliate at the time of termination of the Covered Executive’s employment. |
| (iv) | Confidential Information. The Covered Executive shall not directly or indirectly communicate or divulge any Confidential Information relating to the Company or an affiliate to any other person or business entity. All records, files, plans, documents and the like relating to the business of the Company or an affiliate, including but not limited to Confidential Information which the Executive has or will prepare, use or come into contact with shall remain the sole property of the Company or an affiliate, shall not be copied without written permission, and shall be returned immediately to the Company or an affiliate upon the Covered Executive’s termination of employment with the Company or an affiliate, or at the request of the Company or an affiliate at any time. Further, the Executive shall not directly or indirectly use or disclose to any other person or business entity any secret or Confidential Information of the Company or an affiliate without the prior written consent of an officer of the Company or an affiliate. The Executive further agrees to take all reasonable precautions to protect against the negligent or inadvertent disclosure of the secret or Confidential Information of the Company or an affiliate to any other person or business entity. If the Executive improperly uses or discloses any secret or Confidential Information of the Company or an affiliate, the Executive understands that the Covered Executive’s employment will be subject to termination for Cause. The Executive also recognizes that all writings, illustrations, drawings and other similar materials that embody or otherwise contain Confidential Information which the Executive may produce or which may be given to the Executive in connection with the Executive’s employment, are the property of the Company or an affiliate and it shall be the Executive’s obligation to deliver the same to the Company or an affiliate upon request, and upon termination of the Covered Executive’s employment with the Company or an affiliate for any reason. |
| (v) | Intellectual Property Rights. The Covered Executive agrees and acknowledges that all Work Product shall be the sole, exclusive and absolute property of the Company or an affiliate. All such Work Product shall be deemed to be works for hire and the Executive assigns to the Company all rights, title and interest in, to and under such Work Product, including but not limited to, the right to obtain such patents, copyright registrations, trademark registrations or similar protections as the Company or an affiliate may desire to obtain. The Executive shall immediately disclose all Work Product to the Company or an affiliate and agrees, at any time upon the Company’s or an affiliate’s request and without additional compensation, to execute any documents and to otherwise cooperate with the Company or an affiliate respecting the perfection of its rights, title and interest in, to and under such Work Product, and in any litigation or other controversy in connection therewith, all reasonable expenses incident thereto to be borne by the Company or an affiliate. For purposes of this Policy, “Work Product” means any procedure, design feature, schematic, invention, improvement, development, discovery, know how, concept, idea or the like (whether or not patentable or registrable under copyright or trademark laws, or otherwise protectable under similar laws) that the Executive may conceive of, suggest, make, invent, develop or implement during the course of the Executive’s employment with the Company or an affiliate (whether individually or jointly with any other person), relating in any way to the Business, and all physical embodiments and manifestations thereof, and all patent rights, copyrights, trademarks (or application therefore) and similar protections therein. |
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| (vi) | Non-disparagement. The Covered Executive agrees that he or she will not knowingly make any statement or take any action likely to disparage or have an adverse effect on the Company’s business reputation; provided, however, that such restriction will not prevent the Covered Executive from making any statement or taking any action that is required by law. |
| (vii) | In the event of a breach by the Covered Executive of any covenant set forth in this Section 4(B), the term of such covenant will be extended by the period of the duration of such breach and such covenant will survive any termination of this Agreement but only for the limited period of such extension. The restrictions provided in this Section 4(B) are in addition to any restrictions on competition or solicitation contained in any other agreement between the Company or an affiliate and the Executive. The provisions of this Section 4(B) constitute an essential element of this Agreement, without which the Company would not have entered into this Agreement. If the scope of any restriction contained in this Section 4(B) is too broad to permit enforcement of such restriction to its fullest extent, then such restriction will be enforced to the maximum extent permitted by law, and the Executive hereby consents and agrees that such scope may be judicially modified accordingly in any proceeding brought to enforce such restriction. |
| (viii) | Notwithstanding any other remedy available, the restrictions described in this Section 4(B) may be enforced by the Company, an affiliate and/or any successor thereto, by an action to recover payments made under this Agreement, an action for injunction, and/or an action for damages. In the event the Company or an affiliate obtains a permanent injunction against the Executive after notice and the opportunity to appear, the Executive shall be liable to pay all costs, including reasonable attorneys’ fees, which the Company or an affiliate may incur in enforcing, to any extent, the provisions of this Agreement, whether or not litigation is actually commenced and including litigation of any appeal taken or defended by the Company or an affiliate in any action to enforce this Agreement and which affirms and/or results in a permanent injunction. Any proceedings brought to enforce Section 5 of this Agreement shall be brought in the courts of Mahoning County, Ohio and the Executive expressly waives any objection or defense relating to jurisdiction or forum non-conveniens or similar doctrine or theory. The Executive acknowledges and agrees that the remedy at law for any breach of this Section 5 shall be inadequate, and that the Company or an affiliate shall be entitled to injunctive relief without bond. Such injunctive relief shall not be exclusive, but shall be in addition to any other rights or remedies which the Company or an affiliate may have for any such breach. In addition to the injunctive remedies described herein, the Executive acknowledges and agrees that in the event of a final judicial determination against the Executive with respect to an actual or threatened breach by the Executive of this Section 5, the Company shall be entitled to withhold any remaining amounts payments payable under Section 3 of this Agreement. |
| C. | After the Termination Date, the Covered Executive agrees to provide reasonable assistance and cooperation with the Company concerning business or legal related matters about which the Covered Executive possesses relevant knowledge or information. Such cooperation will be provided only at the Company’s specific request and will include, but not be limited to, assisting or advising the Company with respect to any business-related matters or any actual or threatened legal action (including testifying in depositions, hearings, and/or trials). The Covered Executive will be reimbursed for the reasonable costs of providing assistance and cooperation, including, without limitation, reasonable travel and lodging expenses. |
| D. | The Company’s obligation to provide separation pay and benefits under this Policy will cease immediately if the Company determines that Covered Executive failed to comply with any of the foregoing conditions, and the Covered Executive will be required to return to the Company (with ten (10) days after request by the Company) any amounts the Company has paid to the Covered Executive under this Policy other than the Accrued Obligations. |
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| 5. | Section 409A |
This Policy is intended to comply with the requirements of Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or an exemption or exclusion therefrom, and, with respect to amounts that are subject to Section 409A of the Code, shall in all respects be administered in accordance with Section 409A of the Code.
Each payment under this Policy shall be treated as a separate payment for purposes of Section 409A of the Code. In no event may the Covered Executive, directly or indirectly, designate the calendar year of any payment to be made under this Policy. If the Covered Executive dies following the Termination Date and prior to the payment of the any amounts delayed on account of Section 409A of the Code, such amounts shall be paid to the personal representative of the Covered Executive’s estate within 30 days after the date of the Covered Executive’s death.
All reimbursements and in-kind benefits provided under this Policy that constitute deferred compensation within the meaning of Section 409A of the Code shall be made or provided in accordance with the requirements of Section 409A of the Code, including, without limitation, that (i) in no event shall reimbursements by the Company under this Policy be made later than the end of the calendar year next following the calendar year in which the applicable fees and expenses were incurred, provided, that the Covered Executive shall have submitted an invoice for such fees and expenses at least ten (10) days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred; (ii) the amount of in-kind benefits that the Company is obligated to pay or provide in any given calendar year shall not affect the in-kind benefits that the Company is obligated to pay or provide in any other calendar year; (iii) the Covered Executive’s right to have the Company pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit; and (iv) in no event shall the Company’s obligations to make such reimbursements or to provide such in-kind benefits apply later than the periods described in this Policy. Within the time period permitted by the applicable Treasury Regulations, the Company may modify this Policy, in the least restrictive manner necessary and without any diminution in the value of the payments to the Covered Executive, in order to cause the provisions of this Policy to comply with the requirements of Section 409A of the Code, so as to avoid the imposition of taxes and penalties on the Covered Executive pursuant to Section 409A of the Code.
Notwithstanding anything in this Policy to the contrary, in the event that a Covered Executive is a “specified employee” (as defined in Section 409A of the Code) of the Company, as determined pursuant to the Company’s policy for identifying specified employees, on the date of the Covered Executive’s termination of employment and the Covered Executive is entitled to a payment and/or a benefit under this Policy that is required to be delayed pursuant to Section 409A(a)(2)(B)(i) of the Code, then such payment or benefit, as applicable, shall not be paid or provided (or begin to be paid or provided) until the first day of the seventh month following the date of the Covered Executive’s termination of employment (or, if earlier, the date of the Covered Executive’s death). The first payment that can be made to the Covered Executive following such period shall include the cumulative amount of any payments or benefits that could not be paid or provided during such period due to the application of Section 409A(a)(2)(B)(i) of the Code.
| 6. | Employment at Will |
Nothing in this Policy is to be construed such that a Covered Executive’s employment with the Company is anything other than employment “at will”.
| 7. | ERISA Provisions |
This Policy is intended to be a plan whose participation is limited to a “select group of management or highly compensated employees” within the meaning of Sections 4(b)(5), 201(2), 301(a)(3) and 401(a) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The claims procedure set forth in U.S. Department of Labor Regulation Section 2560.503-1 are incorporated by reference into this Policy.
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| 8. | Governing Law |
The rights and obligations of the Covered Executives and the Company under this Policy will be governed and interpreted in accordance with the internal laws of the State of Ohio without regard to choice of law principles and to the extent not preempted by ERISA.
| 9. | Integration |
This Policy supersedes and replaces the terms of any employment agreement, offer letter, or other agreement with the Company, including any agreement in respect of confidentiality, that governs the terms and conditions applicable to the Covered Executive’s separation from the Company and is in effect immediately prior to the Covered Executive’s termination of employment (“Alternative Agreement”) with respect to the payment of severance or benefits, to the extent that the Alternative Agreement provides for the payment of severance or benefits in an amount less than are payable under this Policy. To the extent that a Covered Executive is entitled to payment of severance or benefits under an Alternative Agreement in an amount greater than are payable under this Policy, the amount of severance or benefits shall be determined under the Alternative Agreement and the Covered Executive shall not be entitled to any payments of severance or benefits under this Policy.
For purposes of clarity, if a Covered Executive is or becomes a party to the Company’s Change in Control Agreement dated effective as of November 7, 2013 (or a successor agreement in respect of a change in control, collectively, a “Change in Control Agreement”) and is terminated under circumstances that would entitle the Covered Executive to payments and benefits under the Change in Control Agreement, the terms of the Change in Control Agreement, and not this Policy, will apply and the Covered Executive will not be eligible for the payment of severance or benefits under this Policy.
| 10. | Reservation of Rights |
This Policy may be modified from time to time, or terminated in its entirety, in the sole discretion of the Compensation Committee. Any modifications made by the Compensation Committee for any Covered Executive will apply to all Covered Executives for purposes of this Policy (except to the extent expressly stated otherwise). Any modifications to, or the termination of, this Policy will not affect the rights of Covered Executives whose Termination Date preceded such modification or termination. The Compensation Committee will have discretion to construe and interpret this Policy and its decisions will be final and binding on the Company, the Covered Executive and all other interested persons.
| 11. | Tax Withholding |
All payments to a Covered Executive under this Policy will be reduced by any required withholdings of applicable federal, state, local and foreign taxes.
| 12. | Assignment |
The Covered Executive’s rights and obligations under this Policy may not be assigned or transferred. The Company may not assign or transfer its obligations under this Agreement except in the event the Company is merged or consolidated into, or with, any other company, or if substantially all of the assets of the Company are transferred to another company.
| 13. | Remedies for Breach |
Each party will bear its own costs to resolve any dispute arising under this Policy; provided, however, that in the event that a Covered Executive is determined to be the prevailing party in such dispute pursuant to a final nonappealable order or in a binding arbitration, the Company will reimburse the Covered Executive for the reasonable costs incurred to enforce this Policy, including, without limitation, reasonable attorneys’ fees.
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| 14. | Definitions |
| A. | Cause means that, in the reasonable judgment of the Compensation Committee, any of the following events have occurred: (1) the willful or negligent failure by the Covered Executive to substantially perform his or her duties with the Company and, after written notification by the Company to the Covered Executive, the continued failure of the Covered Executive to substantially perform such duties; (2) the willful or negligent engagement by the Covered Executive in conduct which is demonstrably and materially injurious to the Company, financially or otherwise; (3) action or inaction by the Covered Executive that constitutes a breach of fiduciary duty with respect to the Company or any of its subsidiaries; (4) the violation of any material written policy, rule or regulation of the Company; or (5) the Covered Executive’s material breach of any agreement in respect of confidentiality with the Company, whether or not entered into after the Effective Date. |
| B. | Disability means a Covered Executive’s having become unable (as determined by the Compensation Committee in good faith) to perform regularly his or her duties with the Company by reason of illness or incapacity. |
| C. | Good Reason means the occurrence of any of the following: (1) a reduction in a Covered Executive’s annual base salary rate, unless such reduction generally applies to other Covered Executives regardless of the reason(s) therefor; (2) a substantial diminution in a Covered Executive’s duties, authorities or responsibilities; or (3) the relocation of a Covered Executive’s principal place of employment with the Company such that (a) the distance from the former principal place of employment to the relocated principal place of employment is over 50 miles and (b) the distance from his or her primary residence to the relocated principal place of employment is over 50 miles; provided, however, that Good Reason shall exist only to the extent that a Covered Executive provides the Company, in care of the Legal Department at the Company’s then-current corporate headquarters, with written notice of his or her intention to terminate employment with the Company for Good Reason that specifies the condition(s) constituting Good Reason and the Company fails to correct such condition(s) within ten (10) business days from receipt of such written notice. Notwithstanding the foregoing, Good Reason shall cease to exist for an event on the one hundred and twentieth (120 th ) day following the later of its occurrence or the Covered Executive’s knowledge thereof, unless the Covered Executive has given the Company written notice of such condition and of the Covered Executive’s intent to terminate for Good Reason prior to such date. With respect to the Chief Executive Officer only, Good Reason shall also include a change in responsibilities such that the Chief Executive Officer reports to someone other than directly to the Company’s Board of Directors. |
| D. | Payment Date means, with respect to payment of any severance pay and/or benefits (except for any applicable medical, dental and/or vision benefits) relating to a Covered Executive’s termination of employment under this Policy, a date selected by the Company that is within thirty (30) days following the Termination Date except in respect of the payments provided for in 3B(1)(d) and 3B(2)(d) above; provided, however, that the Payment Date shall be such date as avoids a violation of applicable law, including but not limited to, Section 409A of the Code. The Payment Date may, at the sole discretion of the Company, be different dates for different pay and/or benefits due under this Policy, as long as such dates comply with the requirements of applicable law. |
| E. | Termination Date means the date on which a Covered Executive’s experiences a “separation from service” within the meaning of Section 409A of the Code from the Company. |
| F. | Without Cause means a termination of a Covered Executive’s employment (1) by the Company other than for Cause or (2) because of the Covered Executive’s Disability, but only to the extent that the Covered Executive is not receiving long-term disability benefits under the Company’s long-term disability plan (or is eligible, but declined to receive, such long-term disability benefits). |
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EXHIBIT A
Form of Release
GENERAL RELEASE
This General Release (the “Agreement”) is made and entered into as of , 20 , by and between Farmers National Banc Corp. (the “Company”), and (the “Executive”) (collectively, the “Parties”).
ARTICLE I RELEASES, WAIVERS AND REVOCATION RIGHTS
1.01 Release. In consideration of receipt of the payments and benefits pursuant to the Company’s Executive Separation Policy, as it may have been amended from time to time (“Separation Policy”), the Executive does hereby fully and forever surrender, release, acquit and discharge the Company, and its principals, stockholders, directors, officers, agents, administrators, insurers, subsidiaries, affiliates, employees, successors, assigns, related entities, and legal representatives, personally and in their representative capacities, and each of them (collectively, “Released Parties”), of and from any and all claims for costs of attorneys’ fees, expenses, compensation, and all losses, demands and damage of whatsoever nature or kind in law or in equity, whether known or unknown, including without limitation those claims arising out of, under, or by reason of the Executive’s employment with the Company or any affiliate thereof, the Executive’s relationship with the Company or any affiliate and/or the termination of the Executive’s employment relationship and any and all claims which were or could have been asserted in any charge, complaint, or related lawsuit. Without limiting the generality of the foregoing, the Executive specifically releases and discharges, but not by way of limitation, any obligation, claim, demand or cause of action based on, or arising out of, any alleged wrongful termination, breach of employment contract, breach of implied covenants of good faith and fair dealing, defamation, fraud, promissory estoppel, intentional or negligent infliction of emotional distress, discrimination based on age, pain and suffering, personal injury, punitive damages, and any and all claims arising from any alleged violation by the Released Parties of any federal, state, or local statutes, ordinances or common laws, including but not limited to the Ohio Civil Rights Act, including all provisions of the Ohio Revised Code concerning discrimination on the basis of age, the Age Discrimination in Employment Act of 1967 (“ADEA”), Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act (“ADA” and “ADAA”) or the Employee Retirement Income Security Act of 1974. This release of rights is knowing and voluntary. The Company acknowledges that the Executive does not release herein any rights or claims which may arise after the Effective Date of this Agreement (as defined in Section 1.03 of this Agreement) nor any rights the Executive has under the CIC Agreement, any rights the Executive may have regarding the enforcement of the CIC Agreement, the Executive’s rights under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or the Executive’s rights to indemnification.
1.02 Waiver of Right to Sue. Except with regard to the Company’s commitments contained in the Separation Policy, the Executive further agrees, promises and covenants that neither the Executive, nor any person, organization, or any other entity acting on the Executive’s behalf will file, charge, claim, sue or cause or permit to be filed, charged or claimed, any action for damages or other relief (including injunctive, declaratory, monetary relief or other) against the Company, involving any matter occurring in the past up to the Effective Date of this Agreement or involving any continuing effects of actions or practices which arose prior to the Effective Date of this Agreement or the termination of the Executive’s employment.
1.03 Older Workers’ Benefit Protection Act Waiver. The Executive has certain individual federal rights, which must be explicitly waived. Specifically, the Executive is protected by the ADEA from discrimination in employment because of the Executive’s age. By executing this Agreement, the Executive waives these rights as to any past or current claims. Notwithstanding anything else in this Agreement, excluded from this Agreement are ADEA age claims that may arise after execution of this Agreement. In connection with the releases in Section 1.01 and waivers in Section 1.02 of any and all claims or disputes that the Executive has or may have on the date hereof, the Executive makes the following acknowledgements:
[1] By signing this Agreement, the Executive waives all claims against the Released Parties for discrimination based on age, including without limitation, any claim which arises under or by reason of a violation of the ADEA.
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[2] In consideration of the releases, waivers and covenants made by the Executive under this Agreement, the Executive will be receiving the applicable payments and other benefits in the amounts and manner described in Section 3B of the Separation Policy.
[3] The Executive represents and acknowledges that the Executive has consulted with an attorney prior to executing this Agreement and the Executive has been given a period of at least twenty-one (21) days within which to consider whether or not to enter into this Agreement.
[4] The Executive understands that this Agreement shall be effective as of the date on which the Executive signs the Agreement (“Effective Date”), provided that the Agreement is not revoked by the Executive within seven days after the Executive signs the Agreement. For a period of seven days after the Executive signs the Agreement, the Executive has the right to revoke and/or cancel this Agreement by the delivery of notice in writing of revocation and/or cancellation to the Company. In the event that the Executive does not revoke and/or cancel this Agreement during this period, this Agreement shall become effective on the Effective Date. In the event that the Executive revokes this Agreement, the Executive shall not be entitled to any of the consideration set out in Section 3B of the Separation Policy.
ARTICLE 2 MISCELLANEOUS
2.01 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same Agreement. Facsimile signatures will have the same legal effect as original signatures.
2.02 Applicable Law. To the extent not preempted by federal law, the provisions of this Agreement will be construed and enforced in accordance with the laws of the state of Ohio.
2.03 Headings. The descriptive headings in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF , the Parties have executed this Agreement, as of , 20 .
FARMERS NATIONAL BANC CORP.
| By: | Date signed: | |||
| Title: | ||||
| THE EXECUTIVE | ||||
| Signature | Date signed: | |||
| Printed Name | ||||
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Exhibit 10.2
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement (this “ Agreement ”) is made by and between Farmers National Banc Corp. (the “ Company ”) and Kevin J. Helmick (the “ Executive ”) effective as of the 8th day of November, 2013 (the “ Effective Date ”).
WHEREAS, the Executive is currently employed by the Company or an Affiliate; and
WHEREAS, in order to induce the Executive to continue performing services for the Company or Affiliate, the Company desires to provide the Executive with certain severance benefits in the event the Executive’s employment with the Company is terminated in connection with a Change in Control under the circumstances described herein;
NOW, THEREFORE, in consideration of the mutual promises and agreement set forth below, the Company and the Executive agree as follows:
| 1. | Definitions . When used in this Agreement, the following terms will have the meanings given to them in this Section unless another meaning is expressly provided. When applying a definition, the form of any term or word will include any of its other forms. |
| (a) | “ Affiliate ” means any entity with whom the Company would be considered a single employer under Sections 414(b) or 414(c) of the Code, but modified under any Code section relevant to the purpose for which the definition is applied. |
| (b) | “ Board ” means the Board of Directors of the Company. |
| (c) | “ Business ” includes, but is not limited to, the business of providing financial, banking, insurance, investment, personal and commercial lending, internet cash management and other similar services to individuals and companies. |
| (d) | “ Cause ” means the occurrence of any one of the following events: (i) the Executive’s commission of any intentional, reckless, or grossly negligent act which may result in material injury to the goodwill, business or business reputation of the Company or any Affiliate; (ii) the Executive’s participation in any fraud, dishonesty, theft, conviction of or plea of guilty or nolo contendere to a crime, or unethical business conduct; (iii) the Executive’s violation of any of the covenants of this Agreement or any material written policy, rule or regulation of the Company or the Affiliate that employs the Executive; or (iv) the Executive’s failure to adequately perform the Executive’s job duties or to follow lawful and ethical directions provided to the Executive, which failure has not been cured in all material respects within 20 days after receiving notice of such failure from the Company or the Affiliate employing the Executive. |
| (e) | “ Change in Control ” means the consummation of any of the following transactions: (i) any person (as defined in the securities laws) becomes a direct or indirect beneficial owner of securities of the Company or the Affiliate employing the Executive representing 20% or more of the combined voting power of the Company’s or Affiliate’s then outstanding securities; or (ii) the Company or the Affiliate employing the Executive is merged or consolidated with another entity, and as a result of such merger or consolidation, less than 75% of the outstanding voting securities of the surviving or resulting entity shall be owned in the aggregate by the former shareholders of the Company or such Affiliate; or (iii) during any two consecutive years during the term of this Agreement, individuals who at the beginning of such period constitute the Board, cease for any reason to constitute at least a majority thereof, unless the election of each director who is not a director at the beginning of such period has been approved in advance by directors representing at least two-thirds of the directors at the beginning of the period. A Change in Control will only be deemed to have occurred if one of the three above-listed scenarios occurs and, as a result thereof, the Executive is not offered a position that is substantially similar to the Executive’s position immediately prior to the transaction, in terms of duties, responsibilities, compensation and benefits. Notwithstanding the foregoing, for purposes of any payment that is subject to Section 409A of the Code (and for which no exception applies), a Change in Control will be deemed not to have occurred unless the events or circumstances constituting a Change in Control also constitute a “change in control event” within the meaning of Section 409A of the Code. |
| (f) | “ Code ” means the Internal Revenue Code of 1986, as amended. |
| (g) | “ Confidential Information ” means any proprietary information relating to the conduct of the business of the Company or an Affiliate, including the Company’s or an Affiliate’s unique business methods and compilations of information that has caused or continues to cause the Bank to enjoy a competitive advantage over companies engaged in the same or a similar business, including but not limited to the Company’s or an Affiliate’s methods of operations, customer relations, customer lists, contacts, confidential price policies and confidential price characteristics, lists of employees, vendors and suppliers, confidential information relating to marketing plans, quotations and contracts, order processing, procedures, purchasing and pricing methods and procedures, supplies, personnel information, financial data, future business plans, and the like. |
| (h) | “ Good Reason ” means the occurrence of any one of the following events: (i) a material diminution of the duties, authority or responsibilities of the Executive’s position; (ii) a reduction in the Executive’s base salary of more than 20% of the annual rate; (iii) any change in the Executive’s principal place of work which would increase the Executive’s commute by 50 miles or more from the Executive’s current principal place of work; or (iv) a material breach by the Company of its obligations under this Agreement, which failure has not been cured in all material respects within 20 days after receiving written notice of such failures from the Executive. Good Reason shall not have occurred unless the Executive shall have provided the Company with at least 14 days advance written notice of the condition constituting Good Reason after such condition first occurs and such condition has not been cured within 30 days following receipt of such notice. |
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| (i) | “ Protection Period ” means the six month period commencing prior to a Change in Control or the twelve month period thereafter. |
| (j) | “ Qualifying Termination ” means the Executive’s termination of employment by the Company, other than for Cause, or by the Executive for Good Reason. The Executive shall not be eligible for the payments and benefits described in Section 3 if the Executive’s employment is terminated by the Company or an Affiliate for Cause, if the Executive terminates other than for Good Reason, or if the Executive’s employment terminates due to the Executive’s death or disability, even if such termination occurs during the Protection Period. |
| (k) | “ Work Product ” means any procedure, design feature, schematic, invention, improvement, development, discovery, know how, concept, idea or the like (whether or not patentable or registrable under copyright or trademark laws, or otherwise protectable under similar laws) that the Executive may conceive of, suggest, make, invent, develop or implement during the course of the Executive’s employment with the Company or an Affiliate (whether individually or jointly with any other person), relating in any way to the Business, and all physical embodiments and manifestations thereof, and all patent rights, copyrights, trademarks (or application therefore) and similar protections therein. |
| 2. | Eligibility . The Executive shall be eligible to receive the change in control benefits described in Section 3 if the Executive experiences a Qualifying Termination during the Protection Period. |
| 3. | Change in Control Benefits . If the Executive experiences a Qualifying Termination, the Executive shall receive the following change in control benefits: |
| (a) | Base Salary . A payment in an amount equal to three (3) times the Executive’s annual base salary rate in effect immediately prior to the Executive’s termination or, if greater, the rate in effect immediately prior to the Change in Control, and prior to any reduction that gave rise to Good Reason, if applicable. |
| (b) | Bonus . |
| (i) | A lump sum amount equal to three (3) times the average of the annual incentive bonus paid to the Executive in the three years preceding termination; and |
| (ii) | A pro rata incentive bonus for the year of termination (or, if the Executive’s termination occurred prior to the Change in Control, for the year in which the Change in Control occurred), in an amount determined by multiplying the annual incentive that the Executive would have earned under the Company’s annual incentive plan for the year in which the termination occurred, assuming that performance had been attained at the “target” level as based on a percentage of the Executive’s then-current base salary (or, if greater, the base salary immediately prior to any reduction constituting Good Reason), by a fraction, the numerator of which is the number of days elapsed during the calendar year prior to the Executive’s termination and the denominator of which is 365. |
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| (c) | Benefits. The Executive shall receive a lump sum payment in an amount equal to 36 times the monthly COBRA premium payable by the Executive to continue to receive health benefits at a level similar to which the Executive and the executive’s spouse and dependents, if any, were participating immediately prior to the Qualifying Termination in order to continue to receive such benefits during the applicable COBRA coverage period. |
| (d) | Outplacement . A lump sum amount of $20,000 for reasonable outplacement services. |
Payment of the amounts described in this Section 3 shall be made within 60 days following the Executive’s termination (or, if the Executive’s termination occurred prior to the Change in Control, within 30 days following the Change in Control), provided that the Executive executes (and does not revoke) a general release and waiver reasonably acceptable to the Company, generally in the form attached as Exhibit A hereto, before payment is to begin (and, if such 60 day period would begin in one taxable year of the Executive and end in another taxable year of the Executive, payment shall not commence until the second taxable year, regardless of when the Executive executes the release).
| 4. | Excess Parachute Payments and Other Limitations on Payment . |
| (a) | Excess Parachute Payments. Notwithstanding anything to the contrary in this Agreement, if any payments or benefits paid or payable to the Executive pursuant to this Agreement or any other plan, program or arrangement maintained by the Company or an Affiliate would constitute a “parachute payment” within the meaning of Section 280G of the Code, then the Executive shall receive the greater of: (i) one dollar ($1.00) less than the amount which would cause the payments and benefits to constitute a “parachute payment”, or (ii) the amount of such payments and benefits, after taking into account all federal, state and local taxes, including the excise tax imposed under Section 4999 of the Code payable by the Executive on such payments and benefits, if such amount would be greater than the amount specified in Section 4(a)(i), after taking into account all federal, state and local taxes payable by the Executive on such payments and benefits. Any reduction to any payment made pursuant to this Section 4(a) shall be made consistent with the requirements of Section 409A of the Code. |
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| (b) | Regulatory Limitations. If any payments otherwise payable to the Executive pursuant to this Agreement are prohibited or limited by any statute, regulation, order, consent decree or similar limitation in effect at the time the payments would otherwise be paid (a “Limiting Rule”): the Company (i) shall pay the maximum amount that may be paid after applying the Limiting Rule; and (ii) shall use commercially reasonable efforts to obtain the consent of the appropriate agency or body to pay any amounts that cannot be paid due to the application of the Limiting Rule. The Executive agrees that the Company shall not have breached its obligations under this Agreement if it is not able to pay all or some portion of any payment due to the Executive as a result of the application of a Limiting Rule. |
| 5. | Executive’s Obligations . In order to receive the payments and benefits described in Section 3 of this Agreement after a Qualifying Termination, the Executive agrees to the following: |
| (a) | Non-Solicitation of Customers. During the Executive’s employment with the Company or an Affiliate and for a period of 36 consecutive months thereafter, the Executive shall not, directly or indirectly solicit Business from any customers, clients or business patrons of the Company or an Affiliate who were customers, clients or business patrons of the Company or an Affiliate at the time of termination of the Executive’s employment. |
| (b) | Non-Solicitation of Employees . During the Executive’s employment with the Company or an Affiliate and for a period of 36 consecutive months thereafter, the Executive shall not, directly or indirectly employ or attempt to employ or solicit for employment any other individual who is employed by the Company or an Affiliate at the time of termination of the Executive’s employment. |
| (c) | Confidential Information . During the Executive’s employment with the Company or an Affiliate, or during any period thereafter, the Executive shall not directly or indirectly communicate or divulge any Confidential Information relating to the Company or an Affiliate to any other person or business entity. All records, files, plans, documents and the like relating to the Business of the Company or an Affiliate, including but not limited to Confidential Information which the Executive has or will prepare, use or come into contact with shall remain the sole property of the Company or an Affiliate, shall not be copied without written permission, and shall be returned immediately to the Company or an Affiliate upon the Executive’s termination of employment with the Company or an Affiliate, or at the request of the Company or an Affiliate at any time. Further, the Executive shall not directly or indirectly use or disclose to any other person or business entity any secret or Confidential Information of the Company or an Affiliate without the prior written consent of an officer of the Company or an Affiliate. The Executive further agrees to take all reasonable precautions to protect against the negligent or inadvertent disclosure of the secret or Confidential Information of the Company or an Affiliate to any other person or business entity. If the Executive improperly uses or discloses any secret or Confidential Information of the Company or an Affiliate, the Executive understands that the Executive’s employment will be subject to termination for Cause. The Executive also recognizes that all writings, illustrations, drawings and other similar materials that embody or otherwise contain Confidential Information which the Executive may produce or which may be given to the Executive in connection with the Executive’s employment, are the property of the Company or an Affiliate and it shall be the Executive’s obligation to deliver the same to the Company or an Affiliate upon request, and upon termination of the Executive’s employment with the Company or an Affiliate for any reason. |
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| (d) | Intellectual Property Rights . The Executive agrees and acknowledges that all Work Product shall be the sole, exclusive and absolute property of the Company or an Affiliate. All such Work Product shall be deemed to be works for hire and the Executive assigns to the Company all rights, title and interest in, to and under such Work Product, including but not limited to, the right to obtain such patents, copyright registrations, trademark registrations or similar protections as the Company or an Affiliate may desire to obtain. The Executive shall immediately disclose all Work Product to the Company or an Affiliate and agrees, at any time upon the Company’s or an Affiliate’s request and without additional compensation, to execute any documents and to otherwise cooperate with the Company or an Affiliate respecting the perfection of its rights, title and interest in, to and under such Work Product, and in any litigation or other controversy in connection therewith, all reasonable expenses incident thereto to be borne by the Company or an Affiliate. |
| (e) | Non-disparagement . Executive agrees that he will not knowingly make any statement or take any action likely to disparage or have an adverse effect on the Company’s business reputation; provided, however, that such restriction will not prevent the Executive from making any statement or taking any action that is required by law. |
In the event of a breach by the Executive of any covenant set forth in this Section 5, the applicable term of such covenant will be extended by the period of the duration of such breach and such covenant will survive any termination of this Agreement but only for the limited period of such extension. The restrictions provided in this Section 5 are in addition to any restrictions on competition or solicitation contained in any other agreement between the Company or an Affiliate and the Executive. The provisions of this Section 5 constitute an essential element of this Agreement, without which the Company would not have entered into this Agreement. If the scope of any restriction contained in this Section 5 is too broad to permit enforcement of such restriction to its fullest extent, then such restriction will be enforced to the maximum extent permitted by law, and the Executive hereby consents and agrees that such scope may be judicially modified accordingly in any proceeding brought to enforce such restriction.
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Notwithstanding any other remedy available, the restrictions described in this Section 5 may be enforced by the Company, an Affiliate and/or any successor thereto, by an action to recover payments made under this Agreement, an action for injunction, and/or an action for damages. In the event the Company or an Affiliate obtains a permanent injunction against the Executive after notice and the opportunity to appear, the Executive shall be liable to pay all costs, including reasonable attorneys’ fees, which the Company or an Affiliate may incur in enforcing, to any extent, the provisions of this Agreement, whether or not litigation is actually commenced and including litigation of any appeal taken or defended by the Company or an Affiliate in any action to enforce this Agreement and which affirms and/or results in a permanent injunction. Any proceedings brought to enforce Section 5 of this Agreement shall be brought in the courts of Mahoning County, Ohio and the Executive expressly waives any objection or defense relating to jurisdiction or forum non-conveniens or similar doctrine or theory. The Executive acknowledges and agrees that the remedy at law for any breach of this Section 5 shall be inadequate, and that the Company or an Affiliate shall be entitled to injunctive relief without bond. Such injunctive relief shall not be exclusive, but shall be in addition to any other rights or remedies which the Company or an Affiliate may have for any such breach. In addition to the injunctive remedies described herein, the Executive acknowledges and agrees that in the event of a final judicial determination against the Executive with respect to an actual or threatened breach by the Executive of this Section 5, the Company shall be entitled to withhold any remaining amounts payments payable under Section 3 of this Agreement.
| 6. | Miscellaneous . |
| (a) | No Mitigation. The Executive is not required to mitigate the amount of any payment or benefit described in this Agreement by seeking other employment or otherwise, nor will the amount of any payment or benefit hereunder be reduced by any compensation that the Executive earns in any capacity after termination or by reason of the Executive’s receipt of or right to receive any retirement or other benefits after termination. Except as expressly provided in this Agreement, the Executive’s right to receive the payments and benefits described in this Agreement will not decrease the amount of, or otherwise adversely affect, any other benefits payable to the Executive under any other plan, agreement or arrangement between the Executive and the Company or any Affiliate. |
| (b) | Withholding. Payments under this Agreement shall be subject to withholding of such amounts as the Company or the Affiliate employing the Executive reasonably determines are required to be withheld with respect to any income, wage or employment taxes imposed on such payment. |
| (c) | Assignment. The rights of the Executive under this Agreement may not be assigned, transferred, pledged or encumbered except by will or by the applicable laws of descent and distribution. The rights and obligations of the Company under this Agreement will inure to the benefit of, and will be binding upon, the successors and assigns of the Company. If the Company is at any time merged or consolidated into, or with any other company, or if substantially all of the assets of the Company are transferred to another company, the provisions of this Agreement will be binding upon and inure to the benefit of the company resulting from such merger or consolidation or to which such assets have been transferred, and this provision will apply in the event of any subsequent merger, consolidation or transfer. |
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| (d) | Governing Law. This Agreement will be construed in accordance with, and pursuant to, the laws of the State of Ohio (other than laws governing conflicts of laws). |
| (e) | Entire Agreement; Amendment . This instrument contains the entire written agreement of the parties relating to the subject matter hereof, and the parties have made no other agreement, representations or warranties relating to the subject matter of this Agreement that are not set forth herein. This Agreement may be amended only by mutual written agreement of the parties. |
| (f) | Captions; Severance; Counterparts . The captions of this Agreement will not be part of the provisions hereof and will have no force or effect. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or unenforceability of any other provision of this Agreement. This Agreement may be executed in several counterparts, each of which will be deemed to be an original and all of which together will constitute one and the same instrument. |
| (g) | No Waiver. The failure of either party to insist in any instance on the strict performance of any provision of this Agreement or to exercise any right hereunder will not constitute a waiver of such provision or right in any other instance. |
| (h) | Notice. All written communications provided for in this Agreement shall be deemed to have been duly served when delivered by U.S. registered mail, return receipt requested, postage prepaid, to the following addresses (or such other address as either party may provide the other in writing): |
If to the Company:
Farmers National Banc Corp.
20 South Broad Street
Canfield, Ohio 44406
Attn: Director of Human Resources
If to the Executive:
At the last address on file with the Company or the Affiliate employing the Executive.
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| (i) | Compliance with Section 409A of the Code . The parties intend that this Agreement be subject to or exempt from the requirements of Section 409A of the Code, as applicable, and this Agreement shall be interpreted, administered and operated accordingly. For purposes of Section 409A of the Code, any reference to the Executive’s termination of employment shall mean the Executive’s “separation from service” (as such term is defined in Section 409A of the Code) and each payment of compensation under the Agreement shall be treated as a separate payment of compensation. Any amounts payable solely on account of an involuntary termination shall be excludible from the requirements of Section 409A of the Code, either as separation pay or as short-term deferrals to the maximum possible extent. Nothing herein shall be construed as the guarantee of any particular tax treatment to the Executive, and none of the Company or any Affiliate, nor their respective boards of directors, officers or employees, shall have any liability to the Executive arising from any failure to comply with the requirements of Section 409A of the Code. Notwithstanding anything in this Agreement to the contrary, if the Executive is a “specified employee” (within the meaning of Treasury Regulations Section 1.409A-1(i) and as determined under the Company’s policy for determining specified employees) on the Executive’s date of termination and the Executive is entitled to a benefit under this Agreement that is required to be delayed pursuant to Section 409A(1)(2)(B)(i) of the Code, then such payment or benefit will not be paid or provided to the Executive until the first business day of the seventh month following the Executive’s termination or, if earlier, the date of the Executive’s death. |
| (j) | Arbitration. Except as set forth in Section 5, any controversy or dispute which arises in connection with the validity, construction, application, enforcement or breach of this Agreement shall be submitted to final and binding arbitration pursuant to the commercial arbitration rules of the American Arbitration Association (the “AAA”). The fees and costs of arbitration (other than attorney fees and costs) shall be borne equally by the parties. A neutral arbitrator shall be jointly chosen by the parties from a list of arbitrators provided by the AAA, and any arbitration under this Section 6(j) shall take place in the Cleveland, Ohio office of the AAA. Judgment upon an award rendered by an arbitrator under this Section 6(j) may be entered in any court of competent jurisdiction. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first written above.
| COMPANY | ||
|
By: |
/s/ Mark Nicastro | |
|
Title: |
VP/Human Resources | |
| EXECUTIVE | ||
|
Signed: |
/s/ Kevin J. Helmick | |
|
Print Name: |
Kevin J. Helmick | |
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EXHIBIT A
Form of Release
GENERAL RELEASE
This General Release (the “Agreement”) is made and entered into as of , 20 , by and between Farmers National Banc Corp. (the “Company”), and (the “Executive”) (collectively, the “Parties”).
ARTICLE I RELEASES, WAIVERS AND REVOCATION RIGHTS
1.01 Release. In consideration of receipt of the payments and benefits set forth in Section 3 of the Parties’ Change in Control Agreement by and between the Company and the Executive, effective as of , 2013 (“CIC Agreement”), the Executive does hereby fully and forever surrender, release, acquit and discharge the Company, and its principals, stockholders, directors, officers, agents, administrators, insurers, subsidiaries, affiliates, employees, successors, assigns, related entities, and legal representatives, personally and in their representative capacities, and each of them (collectively, “Released Parties”), of and from any and all claims for costs of attorneys’ fees, expenses, compensation, and all losses, demands and damage of whatsoever nature or kind in law or in equity, whether known or unknown, including without limitation those claims arising out of, under, or by reason of the Executive’s employment with the Company or any Affiliate (as defined in the CIC Agreement), the Executive’s relationship with the Company or any Affiliate and/or the termination of the Executive’s employment relationship and any and all claims which were or could have been asserted in any charge, complaint, or related lawsuit. Without limiting the generality of the foregoing, the Executive specifically releases and discharges, but not by way of limitation, any obligation, claim, demand or cause of action based on, or arising out of, any alleged wrongful termination, breach of employment contract, breach of implied covenants of good faith and fair dealing, defamation, fraud, promissory estoppel, intentional or negligent infliction of emotional distress, discrimination based on age, pain and suffering, personal injury, punitive damages, and any and all claims arising from any alleged violation by the Released Parties of any federal, state, or local statutes, ordinances or common laws, including but not limited to the Ohio Civil Rights Act, including all provisions of the Ohio Revised Code concerning discrimination on the basis of age, the Age Discrimination in Employment Act of 1967 (“ADEA”), Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act (“ADA” and “ADAA”) or the Employee Retirement Income Security Act of 1974. This release of rights is knowing and voluntary. The Company acknowledges that the Executive does not release herein any rights or claims which may arise after the Effective Date of this Agreement (as defined in Section 1.03 of this Agreement) nor any rights the Executive has under the CIC Agreement, any rights the Executive may have regarding the enforcement of the CIC Agreement, the Executive’s rights under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or the Executive’s rights to indemnification.
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1.02 Waiver of Right to Sue. Except for the Company’s promises and obligations contained in the CIC Agreement, the Executive further agrees, promises and covenants that neither the Executive, nor any person, organization, or any other entity acting on the Executive’s behalf will file, charge, claim, sue or cause or permit to be filed, charged or claimed, any action for damages or other relief (including injunctive, declaratory, monetary relief or other) against the Company, involving any matter occurring in the past up to the Effective Date of this Agreement or involving any continuing effects of actions or practices which arose prior to the Effective Date of this Agreement or the termination of the Executive’s employment.
1.03 Older Workers’ Benefit Protection Act Waiver. The Executive has certain individual federal rights, which must be explicitly waived. Specifically, the Executive is protected by the ADEA from discrimination in employment because of the Executive’s age. By executing this Agreement, the Executive waives these rights as to any past or current claims. Notwithstanding anything else in this Agreement, excluded from this Agreement are ADEA age claims that may arise after execution of this Agreement. In connection with the releases in Section 1.01 and waivers in Section 1.02 of any and all claims or disputes that the Executive has or may have on the date hereof, the Executive makes the following acknowledgements:
[1] By signing this Agreement, the Executive waives all claims against the Released Parties for discrimination based on age, including without limitation, any claim which arises under or by reason of a violation of the ADEA.
[2] In consideration of the releases, waivers and covenants made by the Executive under this Agreement, the Executive will be receiving the payments and other benefits in the amounts and manner described in Section 3 of the Parties’ CIC Agreement.
[3] The Executive represents and acknowledges that the Executive has consulted with an attorney prior to executing this Agreement and the Executive has been given a period of at least twenty-one (21) days within which to consider whether or not to enter into this Agreement.
[4] The Executive understands that this Agreement shall be effective as of the date on which the Executive signs the Agreement (“Effective Date”), provided that the Agreement is not revoked by the Executive within seven days after the Executive signs the Agreement. For a period of seven days after the Executive signs the Agreement, the Executive has the right to revoke and/or cancel this Agreement by the delivery of notice in writing of revocation and/or cancellation to the Company. In the event that the Executive does not revoke and/or cancel this Agreement during this period, this Agreement shall become effective on the Effective Date. In the event that the Executive revokes this Agreement, the Executive shall not be entitled to any of the consideration set out in Section 3 of the Parties’ CIC Agreement.
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ARTICLE 2 MISCELLANEOUS
2.01 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same Agreement. Facsimile signatures will have the same legal effect as original signatures.
2.02 Applicable Law. To the extent not preempted by federal law, the provisions of this Agreement will be construed and enforced in accordance with the laws of the state of Ohio.
2.03 Headings. The descriptive headings in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF , the Parties have executed this Agreement, as of , 20 .
FARMERS NATIONAL BANC CORP.
| By: | Date signed: | |||
| Title: | ||||
| THE EXECUTIVE | ||||
| Signature | Date signed: | |||
| Printed Name | ||||
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Exhibit 10.3
Form for EOs
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement (this “ Agreement ”) is made by and between Farmers National Banc Corp. (the “ Company ”) and (the “ Executive ”) effective as of the day of , 2013 (the “ Effective Date ”).
WHEREAS, the Executive is currently employed by the Company or an Affiliate; and
WHEREAS, in order to induce the Executive to continue performing services for the Company or Affiliate, the Company desires to provide the Executive with certain severance benefits in the event the Executive’s employment with the Company is terminated in connection with a Change in Control under the circumstances described herein;
NOW, THEREFORE, in consideration of the mutual promises and agreement set forth below, the Company and the Executive agree as follows:
| 1. | Definitions . When used in this Agreement, the following terms will have the meanings given to them in this Section unless another meaning is expressly provided. When applying a definition, the form of any term or word will include any of its other forms. |
| (a) | “ Affiliate ” means any entity with whom the Company would be considered a single employer under Sections 414(b) or 414(c) of the Code, but modified under any Code section relevant to the purpose for which the definition is applied. |
| (b) | “ Board ” means the Board of Directors of the Company. |
| (c) | “ Business ” includes, but is not limited to, the business of providing financial, banking, insurance, investment, personal and commercial lending, internet cash management and other similar services to individuals and companies. |
| (d) | “ Cause ” means the occurrence of any one of the following events: (i) the Executive’s commission of any intentional, reckless, or grossly negligent act which may result in material injury to the goodwill, business or business reputation of the Company or any Affiliate; (ii) the Executive’s participation in any fraud, dishonesty, theft, conviction of or plea of guilty or nolo contendere to a crime, or unethical business conduct; (iii) the Executive’s violation of any of the covenants of this Agreement or any material written policy, rule or regulation of the Company or the Affiliate that employs the Executive; or (iv) the Executive’s failure to adequately perform the Executive’s job duties or to follow lawful and ethical directions provided to the Executive, which failure has not been cured in all material respects within 20 days after receiving notice of such failure from the Company or the Affiliate employing the Executive. |
| (e) | “ Change in Contro l” means the consummation of any of the following transactions: (i) any person (as defined in the securities laws) becomes a direct or indirect beneficial owner of securities of the Company or the Affiliate employing the Executive representing 20% or more of the combined voting power of the Company’s or Affiliate’s then outstanding securities; or (ii) the Company or the Affiliate employing the Executive is merged or consolidated with another entity, and as a result of such merger or consolidation, less than 75% of the outstanding voting securities of the surviving or resulting entity shall be owned in the aggregate by the former shareholders of the Company or such Affiliate; or (iii) during any two consecutive years during the term of this Agreement, individuals who at the beginning of such period constitute the Board, cease for any reason to constitute at least a majority thereof, unless the election of each director who is not a director at the beginning of such period has been approved in advance by directors representing at least two-thirds of the directors at the beginning of the period. A Change in Control will only be deemed to have occurred if one of the three above-listed scenarios occurs and, as a result thereof, the Executive is not offered a position that is substantially similar to the Executive’s position immediately prior to the transaction, in terms of duties, responsibilities, compensation and benefits. Notwithstanding the foregoing, for purposes of any payment that is subject to Section 409A of the Code (and for which no exception applies), a Change in Control will be deemed not to have occurred unless the events or circumstances constituting a Change in Control also constitute a “change in control event” within the meaning of Section 409A of the Code. |
| (f) | “ Code ” means the Internal Revenue Code of 1986, as amended. |
| (g) | “ Confidential Information ” means any proprietary information relating to the conduct of the business of the Company or an Affiliate, including the Company’s or an Affiliate’s unique business methods and compilations of information that has caused or continues to cause the Bank to enjoy a competitive advantage over companies engaged in the same or a similar business, including but not limited to the Company’s or an Affiliate’s methods of operations, customer relations, customer lists, contacts, confidential price policies and confidential price characteristics, lists of employees, vendors and suppliers, confidential information relating to marketing plans, quotations and contracts, order processing, procedures, purchasing and pricing methods and procedures, supplies, personnel information, financial data, future business plans, and the like. |
| (h) | “ Good Reason ” means the occurrence of any one of the following events: (i) a material diminution of the duties, authority or responsibilities of the Executive’s position; (ii) a reduction in the Executive’s base salary of more than 20% of the annual rate; (iii) any change in the Executive’s principal place of work which would increase the Executive’s commute by 50 miles or more from the Executive’s current principal place of work; or (iv) a material breach by the Company of its obligations under this Agreement, which failure has not been cured in all material respects within 20 days after receiving written notice of such failures from the Executive. Good Reason shall not have occurred unless the Executive shall have provided the Company with at least 14 days advance written notice of the condition constituting Good Reason after such condition first occurs and such condition has not been cured within 30 days following receipt of such notice. |
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| (i) | “ Protection Period ” means the six month period commencing prior to a Change in Control or the twelve month period thereafter. |
| (j) | “ Qualifying Termination ” means the Executive’s termination of employment by the Company, other than for Cause, or by the Executive for Good Reason. The Executive shall not be eligible for the payments and benefits described in Section 3 if the Executive’s employment is terminated by the Company or an Affiliate for Cause, if the Executive terminates other than for Good Reason, or if the Executive’s employment terminates due to the Executive’s death or disability, even if such termination occurs during the Protection Period. |
| (k) | “ Work Product ” means any procedure, design feature, schematic, invention, improvement, development, discovery, know how, concept, idea or the like (whether or not patentable or registrable under copyright or trademark laws, or otherwise protectable under similar laws) that the Executive may conceive of, suggest, make, invent, develop or implement during the course of the Executive’s employment with the Company or an Affiliate (whether individually or jointly with any other person), relating in any way to the Business, and all physical embodiments and manifestations thereof, and all patent rights, copyrights, trademarks (or application therefore) and similar protections therein. |
| 2. | Eligibility . The Executive shall be eligible to receive the change in control benefits described in Section 3 if the Executive experiences a Qualifying Termination during the Protection Period. |
| 3. | Change in Control Benefits . If the Executive experiences a Qualifying Termination, the Executive shall receive the following change in control benefits: |
| (a) | Base Salary . A payment in an amount equal to two and one-half (2.5) times the Executive’s annual base salary rate in effect immediately prior to the Executive’s termination or, if greater, the rate in effect immediately prior to the Change in Control, and prior to any reduction that gave rise to Good Reason, if applicable. |
| (b) | Bonus . |
| (i) | A lump sum amount equal to two and one-half (2.5) times the average of the annual incentive bonus paid to the Executive in the three years preceding termination; and |
| (ii) | A pro rata incentive bonus for the year of termination (or, if the Executive’s termination occurred prior to the Change in Control, for the year in which the Change in Control occurred), in an amount determined by multiplying the annual incentive that the Executive would have earned under the Company’s annual incentive plan for the year in which the termination occurred, assuming that performance had been attained at the “target” level as based on a percentage of the Executive’s then-current base salary (or, if greater, the base salary immediately prior to any reduction constituting Good Reason), by a fraction, the numerator of which is the number of days elapsed during the calendar year prior to the Executive’s termination and the denominator of which is 365. |
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| (c) | Benefits . The Executive shall receive a lump sum payment in an amount equal to 30 times the monthly COBRA premium payable by the Executive to continue to receive health benefits at a level similar to which the Executive and the executive’s spouse and dependents, if any, were participating immediately prior to the Qualifying Termination in order to continue to receive such benefits during the applicable COBRA coverage period. |
| (d) | Outplacement . A lump sum amount of $20,000 for reasonable outplacement services. |
Payment of the amounts described in this Section 3 shall be made within 60 days following the Executive’s termination (or, if the Executive’s termination occurred prior to the Change in Control, within 30 days following the Change in Control), provided that the Executive executes (and does not revoke) a general release and waiver reasonably acceptable to the Company, generally in the form attached as Exhibit A hereto, before payment is to begin (and, if such 60 day period would begin in one taxable year of the Executive and end in another taxable year of the Executive, payment shall not commence until the second taxable year, regardless of when the Executive executes the release).
| 4. | Excess Parachute Payments and Other Limitations on Payment . |
| (a) | Excess Parachute Payments . Notwithstanding anything to the contrary in this Agreement, if any payments or benefits paid or payable to the Executive pursuant to this Agreement or any other plan, program or arrangement maintained by the Company or an Affiliate would constitute a “parachute payment” within the meaning of Section 280G of the Code, then the Executive shall receive the greater of: (i) one dollar ($1.00) less than the amount which would cause the payments and benefits to constitute a “parachute payment”, or (ii) the amount of such payments and benefits, after taking into account all federal, state and local taxes, including the excise tax imposed under Section 4999 of the Code payable by the Executive on such payments and benefits, if such amount would be greater than the amount specified in Section 4(a)(i), after taking into account all federal, state and local taxes payable by the Executive on such payments and benefits. Any reduction to any payment made pursuant to this Section 4(a) shall be made consistent with the requirements of Section 409A of the Code. |
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| (b) | Regulatory Limitations. If any payments otherwise payable to the Executive pursuant to this Agreement are prohibited or limited by any statute, regulation, order, consent decree or similar limitation in effect at the time the payments would otherwise be paid (a “Limiting Rule”): the Company (i) shall pay the maximum amount that may be paid after applying the Limiting Rule; and (ii) shall use commercially reasonable efforts to obtain the consent of the appropriate agency or body to pay any amounts that cannot be paid due to the application of the Limiting Rule. The Executive agrees that the Company shall not have breached its obligations under this Agreement if it is not able to pay all or some portion of any payment due to the Executive as a result of the application of a Limiting Rule. |
| 5. | Executive’s Obligations . In order to receive the payments and benefits described in Section 3 of this Agreement after a Qualifying Termination, the Executive agrees to the following: |
| (a) | Non-Solicitation of Customers. During the Executive’s employment with the Company or an Affiliate and for a period of 24 consecutive months thereafter, the Executive shall not, directly or indirectly solicit Business from any customers, clients or business patrons of the Company or an Affiliate who were customers, clients or business patrons of the Company or an Affiliate at the time of termination of the Executive’s employment. |
| (b) | Non-Solicitation of Employees . During the Executive’s employment with the Company or an Affiliate and for a period of 24 consecutive months thereafter, the Executive shall not, directly or indirectly employ or attempt to employ or solicit for employment any other individual who is employed by the Company or an Affiliate at the time of termination of the Executive’s employment. |
| (c) | Confidential Information . During the Executive’s employment with the Company or an Affiliate, or during any period thereafter, the Executive shall not directly or indirectly communicate or divulge any Confidential Information relating to the Company or an Affiliate to any other person or business entity. All records, files, plans, documents and the like relating to the Business of the Company or an Affiliate, including but not limited to Confidential Information which the Executive has or will prepare, use or come into contact with shall remain the sole property of the Company or an Affiliate, shall not be copied without written permission, and shall be returned immediately to the Company or an Affiliate upon the Executive’s termination of employment with the Company or an Affiliate, or at the request of the Company or an Affiliate at any time. Further, the Executive shall not directly or indirectly use or disclose to any other person or business entity any secret or Confidential Information of the Company or an Affiliate without the prior written consent of an officer of the Company or an Affiliate. The Executive further agrees to take all reasonable precautions to protect against the negligent or inadvertent disclosure of the secret or Confidential Information of the Company or an Affiliate to any other person or business entity. If the Executive improperly uses or discloses any secret or Confidential Information of the Company or an Affiliate, the Executive understands that the Executive’s employment will be subject to termination for Cause. The Executive also recognizes that all writings, illustrations, drawings and other similar materials that embody or otherwise contain Confidential Information which the Executive may produce or which may be given to the Executive in connection with the Executive’s employment, are the property of the Company or an Affiliate and it shall be the Executive’s obligation to deliver the same to the Company or an Affiliate upon request, and upon termination of the Executive’s employment with the Company or an Affiliate for any reason. |
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| (d) | Intellectual Property Rights . The Executive agrees and acknowledges that all Work Product shall be the sole, exclusive and absolute property of the Company or an Affiliate. All such Work Product shall be deemed to be works for hire and the Executive assigns to the Company all rights, title and interest in, to and under such Work Product, including but not limited to, the right to obtain such patents, copyright registrations, trademark registrations or similar protections as the Company or an Affiliate may desire to obtain. The Executive shall immediately disclose all Work Product to the Company or an Affiliate and agrees, at any time upon the Company’s or an Affiliate’s request and without additional compensation, to execute any documents and to otherwise cooperate with the Company or an Affiliate respecting the perfection of its rights, title and interest in, to and under such Work Product, and in any litigation or other controversy in connection therewith, all reasonable expenses incident thereto to be borne by the Company or an Affiliate. |
| (e) | Non-disparagement . The Executive agrees that he or she will not knowingly make any statement or take any action likely to disparage or have an adverse effect on the Company’s business reputation; provided, however, that such restriction will not prevent the Covered Executive from making any statement or taking any action that is required by law. |
In the event of a breach by the Executive of any covenant set forth in this Section 5, the term of such covenant will be extended by the period of the duration of such breach and such covenant will survive any termination of this Agreement but only for the limited period of such extension. The restrictions provided in this Section 5 are in addition to any restrictions on competition or solicitation contained in any other agreement between the Company or an Affiliate and the Executive. The provisions of this Section 5 constitute an essential element of this Agreement, without which the Company would not have entered into this Agreement. If the scope of any restriction contained in this Section 5 is too broad to permit enforcement of such restriction to its fullest extent, then such restriction will be enforced to the maximum extent permitted by law, and the Executive hereby consents and agrees that such scope may be judicially modified accordingly in any proceeding brought to enforce such restriction.
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Notwithstanding any other remedy available, the restrictions described in this Section 5 may be enforced by the Company, an Affiliate and/or any successor thereto, by an action to recover payments made under this Agreement, an action for injunction, and/or an action for damages. In the event the Company or an Affiliate obtains a permanent injunction against the Executive after notice and the opportunity to appear, the Executive shall be liable to pay all costs, including reasonable attorneys’ fees, which the Company or an Affiliate may incur in enforcing, to any extent, the provisions of this Agreement, whether or not litigation is actually commenced and including litigation of any appeal taken or defended by the Company or an Affiliate in any action to enforce this Agreement and which affirms and/or results in a permanent injunction. Any proceedings brought to enforce Section 5 of this Agreement shall be brought in the courts of Mahoning County, Ohio and the Executive expressly waives any objection or defense relating to jurisdiction or forum non-conveniens or similar doctrine or theory. The Executive acknowledges and agrees that the remedy at law for any breach of this Section 5 shall be inadequate, and that the Company or an Affiliate shall be entitled to injunctive relief without bond. Such injunctive relief shall not be exclusive, but shall be in addition to any other rights or remedies which the Company or an Affiliate may have for any such breach. In addition to the injunctive remedies described herein, the Executive acknowledges and agrees that in the event of a final judicial determination against the Executive with respect to an actual or threatened breach by the Executive of this Section 5, the Company shall be entitled to withhold any remaining amounts payments payable under Section 3 of this Agreement.
| 6. | Miscellaneous . |
| (a) | No Mitigation . The Executive is not required to mitigate the amount of any payment or benefit described in this Agreement by seeking other employment or otherwise, nor will the amount of any payment or benefit hereunder be reduced by any compensation that the Executive earns in any capacity after termination or by reason of the Executive’s receipt of or right to receive any retirement or other benefits after termination. Except as expressly provided in this Agreement, the Executive’s right to receive the payments and benefits described in this Agreement will not decrease the amount of, or otherwise adversely affect, any other benefits payable to the Executive under any other plan, agreement or arrangement between the Executive and the Company or any Affiliate. |
| (b) | Withholding . Payments under this Agreement shall be subject to withholding of such amounts as the Company or the Affiliate employing the Executive reasonably determines are required to be withheld with respect to any income, wage or employment taxes imposed on such payment. |
| (c) | Assignment . The rights of the Executive under this Agreement may not be assigned, transferred, pledged or encumbered except by will or by the applicable laws of descent and distribution. The rights and obligations of the Company under this Agreement will inure to the benefit of, and will be binding upon, the successors and assigns of the Company. If the Company is at any time merged or consolidated into, or with any other company, or if substantially all of the assets of the Company are transferred to another company, the provisions of this Agreement will be binding upon and inure to the benefit of the company resulting from such merger or consolidation or to which such assets have been transferred, and this provision will apply in the event of any subsequent merger, consolidation or transfer. |
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| (d) | Governing Law . This Agreement will be construed in accordance with, and pursuant to, the laws of the State of Ohio (other than laws governing conflicts of laws). |
| (e) | Entire Agreement; Amendment . This instrument contains the entire written agreement of the parties relating to the subject matter hereof, and the parties have made no other agreement, representations or warranties relating to the subject matter of this Agreement that are not set forth herein. This Agreement may be amended only by mutual written agreement of the parties. |
| (f) | Captions; Severance; Counterparts . The captions of this Agreement will not be part of the provisions hereof and will have no force or effect. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or unenforceability of any other provision of this Agreement. This Agreement may be executed in several counterparts, each of which will be deemed to be an original and all of which together will constitute one and the same instrument. |
| (g) | No Waiver . The failure of either party to insist in any instance on the strict performance of any provision of this Agreement or to exercise any right hereunder will not constitute a waiver of such provision or right in any other instance. |
| (h) | Notice . All written communications provided for in this Agreement shall be deemed to have been duly served when delivered by U.S. registered mail, return receipt requested, postage prepaid, to the following addresses (or such other address as either party may provide the other in writing): |
If to the Company:
Farmers National Banc Corp.
20 South Broad Street
Canfield, Ohio 44406
Attn: Director of Human Resources
If to the Executive:
At the last address on file with the Company or the Affiliate employing the Executive.
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| (i) | Compliance with Section 409A of the Code . The parties intend that this Agreement be subject to or exempt from the requirements of Section 409A of the Code, as applicable, and this Agreement shall be interpreted, administered and operated accordingly. For purposes of Section 409A of the Code, any reference to the Executive’s termination of employment shall mean the Executive’s “separation from service” (as such term is defined in Section 409A of the Code) and each payment of compensation under the Agreement shall be treated as a separate payment of compensation. Any amounts payable solely on account of an involuntary termination shall be excludible from the requirements of Section 409A of the Code, either as separation pay or as short-term deferrals to the maximum possible extent. Nothing herein shall be construed as the guarantee of any particular tax treatment to the Executive, and none of the Company or any Affiliate, nor their respective boards of directors, officers or employees, shall have any liability to the Executive arising from any failure to comply with the requirements of Section 409A of the Code. Notwithstanding anything in this Agreement to the contrary, if the Executive is a “specified employee” (within the meaning of Treasury Regulations Section 1.409A-1(i) and as determined under the Company’s policy for determining specified employees) on the Executive’s date of termination and the Executive is entitled to a benefit under this Agreement that is required to be delayed pursuant to Section 409A(1)(2)(B)(i) of the Code, then such payment or benefit will not be paid or provided to the Executive until the first business day of the seventh month following the Executive’s termination or, if earlier, the date of the Executive’s death. |
| (j) | Arbitration . Except as set forth in Section 5, any controversy or dispute which arises in connection with the validity, construction, application, enforcement or breach of this Agreement shall be submitted to final and binding arbitration pursuant to the commercial arbitration rules of the American Arbitration Association (the “AAA”). The fees and costs of arbitration (other than attorney fees and costs) shall be borne equally by the parties. A neutral arbitrator shall be jointly chosen by the parties from a list of arbitrators provided by the AAA, and any arbitration under this Section 6(j) shall take place in the Cleveland, Ohio office of the AAA. Judgment upon an award rendered by an arbitrator under this Section 6(j) may be entered in any court of competent jurisdiction. |
IN WITNESS WHEREOF , the parties hereto have executed this Agreement effective as of the date first written above.
| COMPANY | ||
| By: | ||
| Title: | ||
| EXECUTIVE | ||
| Signed: | ||
| Print Name: | ||
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EXHIBIT A
Form of Release
GENERAL RELEASE
This General Release (the “Agreement”) is made and entered into as of , 20 , by and between Farmers National Banc Corp. (the “Company”), and (the “Executive”) (collectively, the “Parties”).
ARTICLE I RELEASES, WAIVERS AND REVOCATION RIGHTS
1.01 Release. In consideration of receipt of the payments and benefits set forth in Section 3 of the Parties’ Change in Control Agreement by and between the Company and the Executive, effective as of , 2013 (“CIC Agreement”), the Executive does hereby fully and forever surrender, release, acquit and discharge the Company, and its principals, stockholders, directors, officers, agents, administrators, insurers, subsidiaries, affiliates, employees, successors, assigns, related entities, and legal representatives, personally and in their representative capacities, and each of them (collectively, “Released Parties”), of and from any and all claims for costs of attorneys’ fees, expenses, compensation, and all losses, demands and damage of whatsoever nature or kind in law or in equity, whether known or unknown, including without limitation those claims arising out of, under, or by reason of the Executive’s employment with the Company or any Affiliate (as defined in the CIC Agreement), the Executive’s relationship with the Company or any Affiliate and/or the termination of the Executive’s employment relationship and any and all claims which were or could have been asserted in any charge, complaint, or related lawsuit. Without limiting the generality of the foregoing, the Executive specifically releases and discharges, but not by way of limitation, any obligation, claim, demand or cause of action based on, or arising out of, any alleged wrongful termination, breach of employment contract, breach of implied covenants of good faith and fair dealing, defamation, fraud, promissory estoppel, intentional or negligent infliction of emotional distress, discrimination based on age, pain and suffering, personal injury, punitive damages, and any and all claims arising from any alleged violation by the Released Parties of any federal, state, or local statutes, ordinances or common laws, including but not limited to the Ohio Civil Rights Act, including all provisions of the Ohio Revised Code concerning discrimination on the basis of age, the Age Discrimination in Employment Act of 1967 (“ADEA”), Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act (“ADA” and “ADAA”) or the Employee Retirement Income Security Act of 1974. This release of rights is knowing and voluntary. The Company acknowledges that the Executive does not release herein any rights or claims which may arise after the Effective Date of this Agreement (as defined in Section 1.03 of this Agreement) nor any rights the Executive has under the CIC Agreement, any rights the Executive may have regarding the enforcement of the CIC Agreement, the Executive’s rights under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or the Executive’s rights to indemnification.
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1.02 Waiver of Right to Sue. Except for the Company’s promises and obligations contained in the CIC Agreement, the Executive further agrees, promises and covenants that neither the Executive, nor any person, organization, or any other entity acting on the Executive’s behalf will file, charge, claim, sue or cause or permit to be filed, charged or claimed, any action for damages or other relief (including injunctive, declaratory, monetary relief or other) against the Company, involving any matter occurring in the past up to the Effective Date of this Agreement or involving any continuing effects of actions or practices which arose prior to the Effective Date of this Agreement or the termination of the Executive’s employment.
1.03 Older Workers’ Benefit Protection Act Waiver. The Executive has certain individual federal rights, which must be explicitly waived. Specifically, the Executive is protected by the ADEA from discrimination in employment because of the Executive’s age. By executing this Agreement, the Executive waives these rights as to any past or current claims. Notwithstanding anything else in this Agreement, excluded from this Agreement are ADEA age claims that may arise after execution of this Agreement. In connection with the releases in Section 1.01 and waivers in Section 1.02 of any and all claims or disputes that the Executive has or may have on the date hereof, the Executive makes the following acknowledgements:
[1] By signing this Agreement, the Executive waives all claims against the Released Parties for discrimination based on age, including without limitation, any claim which arises under or by reason of a violation of the ADEA.
[2] In consideration of the releases, waivers and covenants made by the Executive under this Agreement, the Executive will be receiving the payments and other benefits in the amounts and manner described in Section 3 of the Parties’ CIC Agreement.
[3] The Executive represents and acknowledges that the Executive has consulted with an attorney prior to executing this Agreement and the Executive has been given a period of at least twenty-one (21) days within which to consider whether or not to enter into this Agreement.
[4] The Executive understands that this Agreement shall be effective as of the date on which the Executive signs the Agreement (“Effective Date”), provided that the Agreement is not revoked by the Executive within seven days after the Executive signs the Agreement. For a period of seven days after the Executive signs the Agreement, the Executive has the right to revoke and/or cancel this Agreement by the delivery of notice in writing of revocation and/or cancellation to the Company. In the event that the Executive does not revoke and/or cancel this Agreement during this period, this Agreement shall become effective on the Effective Date. In the event that the Executive revokes this Agreement, the Executive shall not be entitled to any of the consideration set out in Section 3 of the Parties’ CIC Agreement.
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ARTICLE 2 MISCELLANEOUS
2.01 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same Agreement. Facsimile signatures will have the same legal effect as original signatures.
2.02 Applicable Law. To the extent not preempted by federal law, the provisions of this Agreement will be construed and enforced in accordance with the laws of the state of Ohio.
2.03 Headings. The descriptive headings in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF , the Parties have executed this Agreement, as of , 20 .
FARMERS NATIONAL BANC CORP.
| By: | Date signed: | |||
| Title: | ||||
| THE EXECUTIVE | ||||
| Signature | Date signed: | |||
| Printed Name | ||||
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Exhibit 10.4
Form for Officers
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement (this “ Agreement ”) is made by and between Farmers National Banc Corp. (the “ Company ”) and (the “ Executive ”) effective as of the day of , 2013 (the “ Effective Date ”).
WHEREAS, the Executive is currently employed by the Company or an Affiliate; and
WHEREAS, in order to induce the Executive to continue performing services for the Company or Affiliate, the Company desires to provide the Executive with certain severance benefits in the event the Executive’s employment with the Company is terminated in connection with a Change in Control under the circumstances described herein;
NOW, THEREFORE, in consideration of the mutual promises and agreement set forth below, the Company and the Executive agree as follows:
| 1. | Definitions . When used in this Agreement, the following terms will have the meanings given to them in this Section unless another meaning is expressly provided. When applying a definition, the form of any term or word will include any of its other forms. |
| (a) | “ Affiliate ” means any entity with whom the Company would be considered a single employer under Sections 414(b) or 414(c) of the Code, but modified under any Code section relevant to the purpose for which the definition is applied. |
| (b) | “ Board ” means the Board of Directors of the Company. |
| (c) | “ Business ” includes, but is not limited to, the business of providing financial, banking, insurance, investment, personal and commercial lending, internet cash management and other similar services to individuals and companies. |
| (d) | “ Cause ” means the occurrence of any one of the following events: (i) the Executive’s commission of any intentional, reckless, or grossly negligent act which may result in material injury to the goodwill, business or business reputation of the Company or any Affiliate; (ii) the Executive’s participation in any fraud, dishonesty, theft, conviction of or plea of guilty or nolo contendere to a crime, or unethical business conduct; (iii) the Executive’s violation of any of the covenants of this Agreement or any material written policy, rule or regulation of the Company or the Affiliate that employs the Executive; or (iv) the Executive’s failure to adequately perform the Executive’s job duties or to follow lawful and ethical directions provided to the Executive, which failure has not been cured in all material respects within 20 days after receiving notice of such failure from the Company or the Affiliate employing the Executive. |
| (e) | “ Change in Control ” means the consummation of any of the following transactions: (i) any person (as defined in the securities laws) becomes a direct or indirect beneficial owner of securities of the Company or the Affiliate employing the Executive representing 20% or more of the combined voting power of the Company’s or Affiliate’s then outstanding securities; or (ii) the Company or the Affiliate employing the Executive is merged or consolidated with another entity, and as a result of such merger or consolidation, less than 75% of the outstanding voting securities of the surviving or resulting entity shall be owned in the aggregate by the former shareholders of the Company or such Affiliate; or (iii) during any two consecutive years during the term of this Agreement, individuals who at the beginning of such period constitute the Board, cease for any reason to constitute at least a majority thereof, unless the election of each director who is not a director at the beginning of such period has been approved in advance by directors representing at least two-thirds of the directors at the beginning of the period. A Change in Control will only be deemed to have occurred if one of the three above-listed scenarios occurs and, as a result thereof, the Executive is not offered a position that is substantially similar to the Executive’s position immediately prior to the transaction, in terms of duties, responsibilities, compensation and benefits. Notwithstanding the foregoing, for purposes of any payment that is subject to Section 409A of the Code (and for which no exception applies), a Change in Control will be deemed not to have occurred unless the events or circumstances constituting a Change in Control also constitute a “change in control event” within the meaning of Section 409A of the Code. |
| (f) | “ Code ” means the Internal Revenue Code of 1986, as amended. |
| (g) | “ Confidential Information ” means any proprietary information relating to the conduct of the business of the Company or an Affiliate, including the Company’s or an Affiliate’s unique business methods and compilations of information that has caused or continues to cause the Bank to enjoy a competitive advantage over companies engaged in the same or a similar business, including but not limited to the Company’s or an Affiliate’s methods of operations, customer relations, customer lists, contacts, confidential price policies and confidential price characteristics, lists of employees, vendors and suppliers, confidential information relating to marketing plans, quotations and contracts, order processing, procedures, purchasing and pricing methods and procedures, supplies, personnel information, financial data, future business plans, and the like. |
| (h) | “ Good Reason ” means the occurrence of any one of the following events: (i) a material diminution of the duties, authority or responsibilities of the Executive’s position; (ii) a reduction in the Executive’s base salary of more than 20% of the annual rate; (iii) any change in the Executive’s principal place of work which would increase the Executive’s commute by 50 miles or more from the Executive’s current principal place of work; or (iv) a material breach by the Company of its obligations under this Agreement, which failure has not been cured in all material respects within 20 days after receiving written notice of such failures from the Executive. Good Reason shall not have occurred unless the Executive shall have provided the Company with at least 14 days advance written notice of the condition constituting Good Reason after such condition first occurs and such condition has not been cured within 30 days following receipt of such notice. |
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| (i) | “ Protection Period ” means the six month period commencing prior to a Change in Control or the twelve month period thereafter. |
| (j) | “ Qualifying Termination ” means the Executive’s termination of employment by the Company, other than for Cause, or by the Executive for Good Reason. The Executive shall not be eligible for the payments and benefits described in Section 3 if the Executive’s employment is terminated by the Company or an Affiliate for Cause, if the Executive terminates other than for Good Reason, or if the Executive’s employment terminates due to the Executive’s death or disability, even if such termination occurs during the Protection Period. |
| (k) | “ Work Product ” means any procedure, design feature, schematic, invention, improvement, development, discovery, know how, concept, idea or the like (whether or not patentable or registrable under copyright or trademark laws, or otherwise protectable under similar laws) that the Executive may conceive of, suggest, make, invent, develop or implement during the course of the Executive’s employment with the Company or an Affiliate (whether individually or jointly with any other person), relating in any way to the Business, and all physical embodiments and manifestations thereof, and all patent rights, copyrights, trademarks (or application therefore) and similar protections therein. |
| 2. | Eligibility . The Executive shall be eligible to receive the change in control benefits described in Section 3 if the Executive experiences a Qualifying Termination during the Protection Period. |
| 3. | Change in Control Benefits . If the Executive experiences a Qualifying Termination, the Executive shall receive the following change in control benefits: |
| (a) | Base Salary . A payment in an amount equal to the Executive’s annual base salary rate in effect immediately prior to the Executive’s termination or, if greater, the rate in effect immediately prior to the Change in Control, and prior to any reduction that gave rise to Good Reason, if applicable. |
| (b) | Bonus . |
| (i) | A lump sum amount equal to the average of the annual incentive bonus paid to the Executive in the three years preceding termination; and |
| (ii) | A pro rata incentive bonus for the year of termination (or, if the Executive’s termination occurred prior to the Change in Control, for the year in which the Change in Control occurred), in an amount determined by multiplying the annual incentive that the Executive would have earned under the Company’s annual incentive plan for the year in which the termination occurred, assuming that performance had been attained at the “target” level as based on a percentage of the Executive’s then-current base salary (or, if greater, the base salary immediately prior to any reduction constituting Good Reason), by a fraction, the numerator of which is the number of days elapsed during the calendar year prior to the Executive’s termination and the denominator of which is 365. |
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| (c) | Benefits . The Executive shall receive a lump sum payment in an amount equal to 12 times the monthly COBRA premium payable by the Executive to continue to receive health benefits at a level similar to which the Executive and the executive’s spouse and dependents, if any, were participating immediately prior to the Qualifying Termination in order to continue to receive such benefits during the applicable COBRA coverage period. |
Payment of the amounts described in this Section 3 shall be made within 60 days following the Executive’s termination (or, if the Executive’s termination occurred prior to the Change in Control, within 30 days following the Change in Control), provided that the Executive executes (and does not revoke) a general release and waiver reasonably acceptable to the Company, generally in the form attached as Exhibit A hereto, before payment is to begin (and, if such 60 day period would begin in one taxable year of the Executive and end in another taxable year of the Executive, payment shall not commence until the second taxable year, regardless of when the Executive executes the release).
| 4. | Excess Parachute Payments and Other Limitations on Payment . |
| (a) | Excess Parachute Payments . Notwithstanding anything to the contrary in this Agreement, if any payments or benefits paid or payable to the Executive pursuant to this Agreement or any other plan, program or arrangement maintained by the Company or an Affiliate would constitute a “parachute payment” within the meaning of Section 280G of the Code, then the Executive shall receive the greater of: (i) one dollar ($1.00) less than the amount which would cause the payments and benefits to constitute a “parachute payment”, or (ii) the amount of such payments and benefits, after taking into account all federal, state and local taxes, including the excise tax imposed under Section 4999 of the Code payable by the Executive on such payments and benefits, if such amount would be greater than the amount specified in Section 4(a)(i), after taking into account all federal, state and local taxes payable by the Executive on such payments and benefits. Any reduction to any payment made pursuant to this Section 4(a) shall be made consistent with the requirements of Section 409A of the Code. |
| (b) | Regulatory Limitations . If any payments otherwise payable to the Executive pursuant to this Agreement are prohibited or limited by any statute, regulation, order, consent decree or similar limitation in effect at the time the payments would otherwise be paid (a “Limiting Rule”): the Company (i) shall pay the maximum amount that may be paid after applying the Limiting Rule; and (ii) shall use commercially reasonable efforts to obtain the consent of the appropriate agency or body to pay any amounts that cannot be paid due to the application of the Limiting Rule. The Executive agrees that the Company shall not have breached its obligations under this Agreement if it is not able to pay all or some portion of any payment due to the Executive as a result of the application of a Limiting Rule. |
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| 5. | Executive’s Obligations . In order to receive the payments and benefits described in Section 3 of this Agreement after a Qualifying Termination, the Executive agrees to the following: |
| (a) | Non-Solicitation of Customers. During the Executive’s employment with the Company or an Affiliate and for a period of 12 consecutive months thereafter, the Executive shall not, directly or indirectly solicit Business from any customers, clients or business patrons of the Company or an Affiliate who were customers, clients or business patrons of the Company or an Affiliate at the time of termination of the Executive’s employment. |
| (b) | Non-Solicitation of Employees . During the Executive’s employment with the Company or an Affiliate and for a period of 12 consecutive months thereafter, the Executive shall not, directly or indirectly employ or attempt to employ or solicit for employment any other individual who is employed by the Company or an Affiliate at the time of termination of the Executive’s employment. |
| (c) | Confidential Information . During the Executive’s employment with the Company or an Affiliate, or during any period thereafter, the Executive shall not directly or indirectly communicate or divulge any Confidential Information relating to the Company or an Affiliate to any other person or business entity. All records, files, plans, documents and the like relating to the Business of the Company or an Affiliate, including but not limited to Confidential Information which the Executive has or will prepare, use or come into contact with shall remain the sole property of the Company or an Affiliate, shall not be copied without written permission, and shall be returned immediately to the Company or an Affiliate upon the Executive’s termination of employment with the Company or an Affiliate, or at the request of the Company or an Affiliate at any time. Further, the Executive shall not directly or indirectly use or disclose to any other person or business entity any secret or Confidential Information of the Company or an Affiliate without the prior written consent of an officer of the Company or an Affiliate. The Executive further agrees to take all reasonable precautions to protect against the negligent or inadvertent disclosure of the secret or Confidential Information of the Company or an Affiliate to any other person or business entity. If the Executive improperly uses or discloses any secret or Confidential Information of the Company or an Affiliate, the Executive understands that the Executive’s employment will be subject to termination for Cause. The Executive also recognizes that all writings, illustrations, drawings and other similar materials that embody or otherwise contain Confidential Information which the Executive may produce or which may be given to the Executive in connection with the Executive’s employment, are the property of the Company or an Affiliate and it shall be the Executive’s obligation to deliver the same to the Company or an Affiliate upon request, and upon termination of the Executive’s employment with the Company or an Affiliate for any reason. |
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| (d) | Intellectual Property Rights . The Executive agrees and acknowledges that all Work Product shall be the sole, exclusive and absolute property of the Company or an Affiliate. All such Work Product shall be deemed to be works for hire and the Executive assigns to the Company all rights, title and interest in, to and under such Work Product, including but not limited to, the right to obtain such patents, copyright registrations, trademark registrations or similar protections as the Company or an Affiliate may desire to obtain. The Executive shall immediately disclose all Work Product to the Company or an Affiliate and agrees, at any time upon the Company’s or an Affiliate’s request and without additional compensation, to execute any documents and to otherwise cooperate with the Company or an Affiliate respecting the perfection of its rights, title and interest in, to and under such Work Product, and in any litigation or other controversy in connection therewith, all reasonable expenses incident thereto to be borne by the Company or an Affiliate. |
| (e) | Non-disparagement . The Executive agrees that he or she will not knowingly make any statement or take any action likely to disparage or have an adverse effect on the Company’s business reputation; provided, however, that such restriction will not prevent the Covered Executive from making any statement or taking any action that is required by law. |
In the event of a breach by the Executive of any covenant set forth in this Section 5, the term of such covenant will be extended by the period of the duration of such breach and such covenant will survive any termination of this Agreement but only for the limited period of such extension. The restrictions provided in this Section 5 are in addition to any restrictions on competition or solicitation contained in any other agreement between the Company or an Affiliate and the Executive. The provisions of this Section 5 constitute an essential element of this Agreement, without which the Company would not have entered into this Agreement. If the scope of any restriction contained in this Section 5 is too broad to permit enforcement of such restriction to its fullest extent, then such restriction will be enforced to the maximum extent permitted by law, and the Executive hereby consents and agrees that such scope may be judicially modified accordingly in any proceeding brought to enforce such restriction.
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Notwithstanding any other remedy available, the restrictions described in this Section 5 may be enforced by the Company, an Affiliate and/or any successor thereto, by an action to recover payments made under this Agreement, an action for injunction, and/or an action for damages. In the event the Company or an Affiliate obtains a permanent injunction against the Executive after notice and the opportunity to appear, the Executive shall be liable to pay all costs, including reasonable attorneys’ fees, which the Company or an Affiliate may incur in enforcing, to any extent, the provisions of this Agreement, whether or not litigation is actually commenced and including litigation of any appeal taken or defended by the Company or an Affiliate in any action to enforce this Agreement and which affirms and/or results in a permanent injunction. Any proceedings brought to enforce Section 5 of this Agreement shall be brought in the courts of Mahoning County, Ohio and the Executive expressly waives any objection or defense relating to jurisdiction or forum non-conveniens or similar doctrine or theory. The Executive acknowledges and agrees that the remedy at law for any breach of this Section 5 shall be inadequate, and that the Company or an Affiliate shall be entitled to injunctive relief without bond. Such injunctive relief shall not be exclusive, but shall be in addition to any other rights or remedies which the Company or an Affiliate may have for any such breach. In addition to the injunctive remedies described herein, the Executive acknowledges and agrees that in the event of a final judicial determination against the Executive with respect to an actual or threatened breach by the Executive of this Section 5, the Company shall be entitled to withhold any remaining amounts payments payable under Section 3 of this Agreement.
| 6. | Miscellaneous . |
| (a) | No Mitigation . The Executive is not required to mitigate the amount of any payment or benefit described in this Agreement by seeking other employment or otherwise, nor will the amount of any payment or benefit hereunder be reduced by any compensation that the Executive earns in any capacity after termination or by reason of the Executive’s receipt of or right to receive any retirement or other benefits after termination. Except as expressly provided in this Agreement, the Executive’s right to receive the payments and benefits described in this Agreement will not decrease the amount of, or otherwise adversely affect, any other benefits payable to the Executive under any other plan, agreement or arrangement between the Executive and the Company or any Affiliate. |
| (b) | Withholding . Payments under this Agreement shall be subject to withholding of such amounts as the Company or the Affiliate employing the Executive reasonably determines are required to be withheld with respect to any income, wage or employment taxes imposed on such payment. |
| (c) | Assignment . The rights of the Executive under this Agreement may not be assigned, transferred, pledged or encumbered except by will or by the applicable laws of descent and distribution. The rights and obligations of the Company under this Agreement will inure to the benefit of, and will be binding upon, the successors and assigns of the Company. If the Company is at any time merged or consolidated into, or with any other company, or if substantially all of the assets of the Company are transferred to another company, the provisions of this Agreement will be binding upon and inure to the benefit of the company resulting from such merger or consolidation or to which such assets have been transferred, and this provision will apply in the event of any subsequent merger, consolidation or transfer. |
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| (d) | Governing Law . This Agreement will be construed in accordance with, and pursuant to, the laws of the State of Ohio (other than laws governing conflicts of laws). |
| (e) | Entire Agreement; Amendment . This instrument contains the entire written agreement of the parties relating to the subject matter hereof, and the parties have made no other agreement, representations or warranties relating to the subject matter of this Agreement that are not set forth herein. This Agreement may be amended only by mutual written agreement of the parties. |
| (f) | Captions; Severance; Counterparts . The captions of this Agreement will not be part of the provisions hereof and will have no force or effect. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or unenforceability of any other provision of this Agreement. This Agreement may be executed in several counterparts, each of which will be deemed to be an original and all of which together will constitute one and the same instrument. |
| (g) | No Waiver . The failure of either party to insist in any instance on the strict performance of any provision of this Agreement or to exercise any right hereunder will not constitute a waiver of such provision or right in any other instance. |
| (h) | Notice . All written communications provided for in this Agreement shall be deemed to have been duly served when delivered by U.S. registered mail, return receipt requested, postage prepaid, to the following addresses (or such other address as either party may provide the other in writing): |
If to the Company:
Farmers National Banc Corp.
20 South Broad Street
Canfield, Ohio 44406
Attn: Director of Human Resources
If to the Executive:
At the last address on file with the Company or the Affiliate employing the Executive.
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| (i) | Compliance with Section 409A of the Code . The parties intend that this Agreement be subject to or exempt from the requirements of Section 409A of the Code, as applicable, and this Agreement shall be interpreted, administered and operated accordingly. For purposes of Section 409A of the Code, any reference to the Executive’s termination of employment shall mean the Executive’s “separation from service” (as such term is defined in Section 409A of the Code) and each payment of compensation under the Agreement shall be treated as a separate payment of compensation. Any amounts payable solely on account of an involuntary termination shall be excludible from the requirements of Section 409A of the Code, either as separation pay or as short-term deferrals to the maximum possible extent. Nothing herein shall be construed as the guarantee of any particular tax treatment to the Executive, and none of the Company or any Affiliate, nor their respective boards of directors, officers or employees, shall have any liability to the Executive arising from any failure to comply with the requirements of Section 409A of the Code. Notwithstanding anything in this Agreement to the contrary, if the Executive is a “specified employee” (within the meaning of Treasury Regulations Section 1.409A-1(i) and as determined under the Company’s policy for determining specified employees) on the Executive’s date of termination and the Executive is entitled to a benefit under this Agreement that is required to be delayed pursuant to Section 409A(1)(2)(B)(i) of the Code, then such payment or benefit will not be paid or provided to the Executive until the first business day of the seventh month following the Executive’s termination or, if earlier, the date of the Executive’s death. |
| (j) | Arbitration . Except as set forth in Section 5, any controversy or dispute which arises in connection with the validity, construction, application, enforcement or breach of this Agreement shall be submitted to final and binding arbitration pursuant to the commercial arbitration rules of the American Arbitration Association (the “AAA”). The fees and costs of arbitration (other than attorney fees and costs) shall be borne equally by the parties. A neutral arbitrator shall be jointly chosen by the parties from a list of arbitrators provided by the AAA, and any arbitration under this Section 6(j) shall take place in the Cleveland, Ohio office of the AAA. Judgment upon an award rendered by an arbitrator under this Section 6(j) may be entered in any court of competent jurisdiction. |
IN WITNESS WHEREOF , the parties hereto have executed this Agreement effective as of the date first written above.
| COMPANY | ||
| By: | ||
| Title: | ||
| EXECUTIVE | ||
| Signed: | ||
| Print Name: | ||
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EXHIBIT A
Form of Release
GENERAL RELEASE
This General Release (the “Agreement”) is made and entered into as of , 20 , by and between Farmers National Banc Corp. (the “Company”), and (the “Executive”) (collectively, the “Parties”).
ARTICLE I RELEASES, WAIVERS AND REVOCATION RIGHTS
1.01 Release. In consideration of receipt of the payments and benefits set forth in Section 3 of the Parties’ Change in Control Agreement by and between the Company and the Executive, effective as of , 2013 (“CIC Agreement”), the Executive does hereby fully and forever surrender, release, acquit and discharge the Company, and its principals, stockholders, directors, officers, agents, administrators, insurers, subsidiaries, affiliates, employees, successors, assigns, related entities, and legal representatives, personally and in their representative capacities, and each of them (collectively, “Released Parties”), of and from any and all claims for costs of attorneys’ fees, expenses, compensation, and all losses, demands and damage of whatsoever nature or kind in law or in equity, whether known or unknown, including without limitation those claims arising out of, under, or by reason of the Executive’s employment with the Company or any Affiliate (as defined in the CIC Agreement), the Executive’s relationship with the Company or any Affiliate and/or the termination of the Executive’s employment relationship and any and all claims which were or could have been asserted in any charge, complaint, or related lawsuit. Without limiting the generality of the foregoing, the Executive specifically releases and discharges, but not by way of limitation, any obligation, claim, demand or cause of action based on, or arising out of, any alleged wrongful termination, breach of employment contract, breach of implied covenants of good faith and fair dealing, defamation, fraud, promissory estoppel, intentional or negligent infliction of emotional distress, discrimination based on age, pain and suffering, personal injury, punitive damages, and any and all claims arising from any alleged violation by the Released Parties of any federal, state, or local statutes, ordinances or common laws, including but not limited to the Ohio Civil Rights Act, including all provisions of the Ohio Revised Code concerning discrimination on the basis of age, the Age Discrimination in Employment Act of 1967 (“ADEA”), Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act (“ADA” and “ADAA”) or the Employee Retirement Income Security Act of 1974. This release of rights is knowing and voluntary. The Company acknowledges that the Executive does not release herein any rights or claims which may arise after the Effective Date of this Agreement (as defined in Section 1.03 of this Agreement) nor any rights the Executive has under the CIC Agreement, any rights the Executive may have regarding the enforcement of the CIC Agreement, the Executive’s rights under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or the Executive’s rights to indemnification.
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1.02 Waiver of Right to Sue. Except for the Company’s promises and obligations contained in the CIC Agreement, the Executive further agrees, promises and covenants that neither the Executive, nor any person, organization, or any other entity acting on the Executive’s behalf will file, charge, claim, sue or cause or permit to be filed, charged or claimed, any action for damages or other relief (including injunctive, declaratory, monetary relief or other) against the Company, involving any matter occurring in the past up to the Effective Date of this Agreement or involving any continuing effects of actions or practices which arose prior to the Effective Date of this Agreement or the termination of the Executive’s employment.
1.03 Older Workers’ Benefit Protection Act Waiver. The Executive has certain individual federal rights, which must be explicitly waived. Specifically, the Executive is protected by the ADEA from discrimination in employment because of the Executive’s age. By executing this Agreement, the Executive waives these rights as to any past or current claims. Notwithstanding anything else in this Agreement, excluded from this Agreement are ADEA age claims that may arise after execution of this Agreement. In connection with the releases in Section 1.01 and waivers in Section 1.02 of any and all claims or disputes that the Executive has or may have on the date hereof, the Executive makes the following acknowledgements:
[1] By signing this Agreement, the Executive waives all claims against the Released Parties for discrimination based on age, including without limitation, any claim which arises under or by reason of a violation of the ADEA.
[2] In consideration of the releases, waivers and covenants made by the Executive under this Agreement, the Executive will be receiving the payments and other benefits in the amounts and manner described in Section 3 of the Parties’ CIC Agreement.
[3] The Executive represents and acknowledges that the Executive has consulted with an attorney prior to executing this Agreement and the Executive has been given a period of at least twenty-one (21) days within which to consider whether or not to enter into this Agreement.
[4] The Executive understands that this Agreement shall be effective as of the date on which the Executive signs the Agreement (“Effective Date”), provided that the Agreement is not revoked by the Executive within seven days after the Executive signs the Agreement. For a period of seven days after the Executive signs the Agreement, the Executive has the right to revoke and/or cancel this Agreement by the delivery of notice in writing of revocation and/or cancellation to the Company. In the event that the Executive does not revoke and/or cancel this Agreement during this period, this Agreement shall become effective on the Effective Date. In the event that the Executive revokes this Agreement, the Executive shall not be entitled to any of the consideration set out in Section 3 of the Parties’ CIC Agreement.
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ARTICLE 2 MISCELLANEOUS
2.01 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same Agreement. Facsimile signatures will have the same legal effect as original signatures.
2.02 Applicable Law. To the extent not preempted by federal law, the provisions of this Agreement will be construed and enforced in accordance with the laws of the state of Ohio.
2.03 Headings. The descriptive headings in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF , the Parties have executed this Agreement, as of , 20 .
FARMERS NATIONAL BANC CORP.
| By: | Date signed: | |||
| Title: | ||||
| THE EXECUTIVE | ||||
| Signature | Date signed: | |||
| Printed Name | ||||
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