Mahoning National Bancorp, Inc.
Form 10-Q
Item 6(a)
Exhibit 10(a) Material Contracts
Change-In-Control Protective Agreement
Martha A Drabiski
THE MAHONING NATIONAL BANK OF YOUNGSTOWN
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Guarantee Agreement
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AGREEMENT entered into this 17th day August, 1998 (the "Effective
Date"), by and between The Mahoning National Bank of Youngstown (the "Bank")
and Martha Drabiski (the "Employee").
WHEREAS, the Employee is currently employed by the Bank in an executive
capacity, and has entered into a change-in-control protective agreement (the
"Company Agreement") with Mahoning National Bancorp, Inc. (the "Company"); and
WHEREAS, the Board of Directors of the Bank has determined that it is in
the best interest of the Bank to enter into this Agreement in order to assure
continuity of the Bank's management through encouraging the long-term
retention of the Employee; and
WHEREAS, the parties desire by this writing to set forth the Bank's
commitment to guarantee the Company's obligations under the Company Agreement.
NOW, THEREFORE, it is AGREED as follows:
1. The Bank shall be jointly and severally liable with the Company for
its obligations under the Company Agreement.
2. This Agreement shall have a term that coincides with the term of
the Company Agreement (including any and all extensions thereunder), shall be
binding on any successors to the interest of the parties, shall be amended
only through a written instrument executed by both parties, and shall be
governed by the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first written above.
ATTEST: THE MAHONING NATIONAL BANK
OF YOUNGSTOWN
/s/ Richard E. Davies By /s/ Daniel B. Roth
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Secretary Its duly authorized Director
WITNESS:
/s/ Sandra L. Douglas /s/ Martha A. Drabiski
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Employee
CHANGE-IN-CONTROL PROTECTIVE AGREEMENT
THIS AGREEMENT entered into this 17th day of August, 1998, (the
"Effective Date") by and between, Mahoning National Bancorp, Inc. (the
"Company"), and Martha Drabiski (the "Employee").
WHEREAS, the Employee has heretofore been employed as an executive
officer of The Mahoning National Bank of Youngstown (the "Bank"), and thereby
has directly contributed to the financial success and operational stability
of the Company; and
WHEREAS, the Company deems it to be in the best interests of its
stockholders to enter into this Agreement as additional incentive to the
Employee to continue to serve in such capacity; and
WHEREAS, the parties desire by this writing to set forth their
understanding as to their respective rights and obligations in the event a
change of control occurs with respect to the Bank or the Company.
NOW, THEREFORE, the undersigned parties AGREE as follows:
1. DEFINED TERMS
When used anywhere in the Agreement, the following terms shall have
the meaning set forth herein.
(a) "BENEFICIARY" shall mean the person or persons as stated in the
last designation of beneficiary concerning this Agreement signed by the
Employee and filed with Company, and if not, then the personal representative
of the Employee.
(b) "CHANGE IN CONTROL" shall mean any one of the following events:
(i) the acquisition of ownership, holding or power to vote more than 30% of
the Bank's or the Company's voting stock, (ii) the acquisition of the ability
to control the election of a majority of the Bank's or the Company's
directors, (iii) the acquisition of a controlling influence over the
management or policies of the Bank or the Company by any person or by persons
acting as a "group" (within the meaning of Section 13(d) of the Securities
Exchange Act of 1934), or (iv) during any period of two consecutive years,
individuals (the "Continuing Directors") who at the beginning of such period
constitute the Board of Directors of the Bank or the Company (the "Existing
Board") cease for any reason to constitute at least two-thirds thereof,
provided that any individual whose election or nomination for election as a
member of the Existing Board was approved by a vote of at least two-thirds of
the Continuing Directors then in office shall be
considered a Continuing Director. Notwithstanding the foregoing, in the case
of (i), (ii) and (iii) hereof, ownership or control of the Bank by the
Company itself shall not constitute a Change in Control. For purposes of
this paragraph only, the term "person" refers to an individual or a
corporation, partnership, trust, association, joint venture, pool, syndicate,
sole proprietorship, unincorporated organization or any other form of entity
not specifically listed herein.
(c) "CODE" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and as interpreted through applicable rulings and
regulations in effect from time to time.
(d) "CODE Section 280G MAXIMUM" shall mean the product of 2.99 and the
Employee's "base amount" as defined in Code Section 280G(b)(3).
(e) "GOOD REASON" shall mean any of the following events, which has not
been consented to in advance by the Employee in writing: (i) the requirement
that the Employee move his or her personal residence, or perform his or her
principal executive functions, more than thirty (30) miles from his primary
office as of the date of the Change in Control; (ii) a material reduction in
the Employee's base compensation as in effect on the date of the Change in
Control or as the same may be increased from time to time; (iii) the failure
by the Bank or the Company to continue to provide the Employee with
compensation and benefits provided for on the date of the Change in Control,
as the same may be increased from time to time, or with benefits
substantially similar to those provided under any of the employee benefit
plans in which the Employee now or hereafter becomes a participant, or the
taking of any action by the Bank or the Company which would directly or
indirectly reduce any of such benefits or deprive the Employee of any
material fringe benefit enjoyed at the time of the Change in Control; (iv)
the assignment to the Employee of duties and responsibilities materially
different from those normally associated with his or her position; (v) a
failure to elect or reelect the Employee to the Board of Directors of the
Bank or the Company, if the Employee is serving on such Board on the date of
the Change in Control; (vi) a material diminution or reduction in the
Employee's responsibilities or authority (including reporting
responsibilities) in connection with employment with the Bank or the
Company; or (vii) a material reduction in the secretarial or other
administrative support of the Employee.
(f) "JUST CAUSE" shall mean, in the good faith determination of the
Bank's Board of Directors, the Employee's personal dishonesty, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order, or material breach of any provision of this
Agreement. The Employee shall have no right to receive compensation or other
benefits for any period after termination for Just Cause. No act, or failure
to act, on the Employee's part shall be considered "willful" unless the
Employee has
acted, or failed to act, with an absence of good faith and without a
reasonable belief that such action or failure to act was in the best interest
of the Bank and the Company.
(g) "PROTECTED PERIOD" shall mean the period that begins on the date
six months before a Change in Control and ends on the later of the first
annual anniversary of the Change in Control or the expiration date of this
Agreement.
(h) "TRUST" shall mean a grantor trust designed in accordance with
Revenue Procedure 92-64 and having a trustee independent of the Bank and the
Company,
2. TRIGGER EVENTS
The Employee shall be entitled to receive the severance benefits set
forth in Section 3 of this Agreement in the event that (i) the Employee
voluntarily terminates employment either for any reason within 30 days of a
Change in Control, (ii) the Employee voluntarily terminates employment within
90 days of an event that both occurs during the Protected Period and
constitutes Good Reason, or (iii) the Bank, the Company, or their
successor(s) in interest terminate the Employee's employment for any reason
other than Just Cause during the Protected Period.
3. SEVERANCE BENEFITS
If the Employee becomes entitled to receive severance benefits pursuant
to Section 2 hereof, the Company shall BOTH provide the Employee with the
opportunity, until the Employee first begins to participate in Medicare, to
purchase, at the Employee's own expense which shall not exceed applicable
COBRA rates, family medical and dental insurance under any group health plans
that the Bank or the Company maintains for its employees, AND pay the
Employee (or the Employee's Beneficiary in the event of the Employee's death
before all required payments have been made under this Agreement) a severance
benefit, for 12 months after termination of employment, in an amount equal to
the Employee's highest monthly salary in effect between the date that the
Protected Period begins and the date of the Change in Control. In no event,
however, will the present value of these severance payments exceed the
difference between the Code Section 280G Maximum and the sum of any other
"parachute payments" as defined under Code Section 280G(b)(2) that the
Employee receives on account of the Change in Control. Said payments shall
commence within ten days of the later of the date of the Change in Control
and the Employee's last day of employment with the Bank or the Company.
In the event that the Employee and the Company agree that the Employee
has collected an amount exceeding the Code Section 280G Maximum, the parties
may jointly agree in writing that such excess shall be treated as a loan AB
INITIO which the Employee shall repay to the Company, on
terms and conditions mutually agreeable to the parties, together with
interest at the applicable federal rate provided for in Section 7872(f)(2)(B)
of the Code.
4. FUNDING OF GRANTOR TRUST UPON CHANGE IN CONTROL
Notwithstanding any other provision of this Agreement that may be
contrary or inconsistent herewith, not later than ten (10) business days
after a Change in Control, the Company shall (i) establish a grantor trust
(the "Trust") that is designed in accordance with Revenue Procedure 92-64 and
has a trustee (the "Trustee") independent of the Company and any successor to
their interest, (ii) deposit in the Trust an amount equal to the present
value of all benefits that may become payable under this Agreement, and (iii)
provide the Trustee with an irrevocable written direction both to hold all
Trust assets and any investment return thereon in a segregated account for
the benefit of the Employee, and to follow the procedures set forth in the
next paragraph as to the payment of amounts from the Trust.
At any time after a Change in Control, the Employee may provide the
Trustee with a written affidavit (the "Affidavit") in which the Employee
attests that he has terminated employment with the Company or any successor
to its interest, and has become entitled to commence receiving the monthly
benefit payments (required by Section 3 hereof). The Affidavit shall also
specify the amount of each such monthly payment to be made from the Trust.
On the first business day of the month following the Trustee's receipt of the
Affidavit, the Trustee shall commence paying the Employee, in immediately
available funds, the monthly benefit specified in the Affidavit, and shall
send a copy of it to the Company via overnight and registered mail (return
receipt requested). Upon the receipt of the Employee's written release of
all claims under this Agreement, the Trustee shall pay to the Company any
remaining assets in the Trust. The Company shall pay any and all expenses
associated with maintaining the Trust, and shall hold the Trustee harmless
from any liability for making the payments required hereunder.
5. TERM OF THE AGREEMENT. This Agreement shall remain in effect for
the period commencing on the Effective Date and ending on the earlier of (i)
the date 36 months after the Effective Date, and (ii) the date on which the
Employee terminates employment with the Bank; provided that the Employee's
rights hereunder shall continue following the termination of this employment
with the Bank or the Company under any of the circumstances described in
Section 2 hereof. Additionally, on each annual anniversary date from the
Effective Date, the term of this Agreement shall automatically be extended
for an additional one-year period beyond the then effective expiration date
unless the Board of Directors of the Company determines to the contrary in a
duly adopted resolution AND delivers a certified copy of the resolution to
the Employee BEFORE the date on which the Agreement would otherwise renew.
6. EXPENSE REIMBURSEMENT.
In the event that any dispute arises between the Employee and the
Bank or the Company as to the terms or interpretation of this Agreement,
whether instituted by formal legal proceedings or otherwise, including any
action that the Employee takes to enforce the terms of this Agreement or to
defend against any action taken by the Bank or the Company, the Employee
shall be reimbursed for all costs and expenses, including reasonable
attorneys' fees, arising from such dispute, proceedings or actions, provided
that the Employee shall obtain a final judgement in favor of the Employee in
a court of competent jurisdiction or in binding arbitration under the rules
of the American Arbitration Association. Such reimbursement shall be paid
within ten days of Employee's furnishing to the Bank and the Company written
evidence, which may be in the form, among other things, of a cancelled check
or receipt, of any costs or expenses incurred by the Employee.
7. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall inure to the benefit of and be binding
upon any corporate or other successor of the Company which shall acquire,
directly or indirectly, by merger, consolidation, purchase or otherwise, all
or substantially all of the assets or stock of the Bank or Company.
(b) Since the Company is contracting for the unique and personal
skills of the Employee, the Employee shall be precluded from assigning or
delegating his rights or duties hereunder without first obtaining the written
consent of the Company.
8. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless made in writing and signed by all of the parties, except as
herein otherwise specifically provided.
9. APPLICABLE LAW. Except to the extent preempted by Federal law, the
laws of the State of Ohio shall govern this Agreement in all respects,
whether as to its validity, construction, capacity, performance or otherwise.
10. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
11. ENTIRE AGREEMENT. This Agreement, together with any understanding
or modifications thereof as agreed to in writing by the parties, shall
constitute the entire agreement between the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
ATTEST: MAHONING NATIONAL BANCORP, INC.
/s/ Richard E. Davies By: /s/ Daniel B. Roth
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Its Secretary Its duly authorized Director
WITNESS:
/s/ Sandra L. Douglas /s/ Martha A. Drabiski
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Employee