EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this "AGREEMENT"), is
entered into this 17th day of December, 1998, by and between The Home Savings
and Loan Company of Youngstown, Ohio, a savings and loan association
incorporated under Ohio law (hereinafter referred to as the "COMPANY"), and
Xxxxxxx X. XxXxx, an individual (hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is currently employed as the President and Chief
Executive Officer of the COMPANY;
WHEREAS, as a result of the skill, knowledge and experience of the
EMPLOYEE, the Board of Directors of the COMPANY desires to retain the services
of the EMPLOYEE as the President and Chief Executive Officer of the COMPANY;
WHEREAS, the EMPLOYEE desires to continue to serve as the President and
Chief Executive Officer of the COMPANY; and
WHEREAS, the EMPLOYEE and the COMPANY desire to enter into this AGREEMENT
to set forth the terms and conditions of the employment relationship between the
COMPANY and the EMPLOYEE;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the COMPANY and the EMPLOYEE hereby agree as follows:
1. EMPLOYMENT AND TERM.
(a) TERM. Upon the terms and subject to the conditions of this
AGREEMENT, the COMPANY hereby employs the EMPLOYEE, and the EMPLOYEE hereby
accepts employment, as the President and Chief Executive Officer of the COMPANY.
The term of this AGREEMENT shall commence on January 1, 1999, and shall end on
December 31, 2001, unless extended by the COMPANY, with the consent of the
EMPLOYEE, as provided in subsection (b) of this Section 1 (hereinafter referred
to, together with such extensions, as the "TERM").
(b) EXTENSION. On or before each anniversary of the date of this
AGREEMENT, the Board of Directors of the COMPANY shall review this AGREEMENT
and, upon approval by the Board of Directors, shall extend the term of this
AGREEMENT for a one-year period beyond the then effective expiration date. Any
such extension shall be subject to the written consent of the EMPLOYEE. The
Board of Directors shall document its reasons for extending the term of this
AGREEMENT in the minutes of the meeting at which such action is taken.
2. DUTIES OF THE EMPLOYEE.
(a) GENERAL DUTIES AND RESPONSIBILITIES. The EMPLOYEE shall serve as
the President and Chief Executive Officer of the COMPANY. Subject to the
direction of the Board of Directors of the COMPANY, the EMPLOYEE shall perform
all duties and shall have all powers which are commonly incident to the office
of President and Chief Executive Officer or which, consistent therewith, are
delegated to him by the Board of Directors. Such duties may include, but shall
not be limited to, developing organizational policies and strategic business
plans and objectives, directing and coordinating corporate programs, supervising
and evaluating senior management members.
(b) DEVOTION OF ENTIRE TIME TO THE BUSINESS OF THE COMPANY. The
EMPLOYEE shall devote his entire productive time, ability and attention during
normal business hours throughout the TERM to the faithful performance of his
duties under this AGREEMENT. The EMPLOYEE shall not directly or indirectly
render any services of a business, commercial or professional nature to any
person or organization other than the COMPANY, United Community Financial Corp.
(hereinafter referred to as the "HOLDING COMPANY"), the sole shareholder of the
COMPANY, or any subsidiary of the COMPANY or the HOLDING COMPANY without the
prior written consent of the Board of Directors of the COMPANY; provided,
however, that the EMPLOYEE shall not be precluded from (i) vacations and other
leave time in accordance with Section 3(d) below, (ii) reasonable participation
in community, civic, charitable or similar organizations, (iii) reasonable
participation in industry-related activities, including, but not limited to,
attending state and national trade association meetings and serving as an
officer, director or trustee of a state or national trade association or Federal
Home Loan Bank, (iv) serving as an officer or director of the HOLDING COMPANY or
any subsidiary of the COMPANY or the HOLDING COMPANY and receiving a salary,
director's fees or other compensation or benefits, as appropriate, or (v)
pursuing personal investments which do not interfere or conflict with the
performance of the EMPLOYEE's duties to the COMPANY.
3. COMPENSATION.
(a) TOTAL COMPENSATION. The EMPLOYEE shall receive during the TERM
total compensation established by the Salary Committee of the Board of
Directors. In making its determination, the Salary Committee shall consider the
average total compensation for the Chief Executive Officers of a peer group of
companies. The companies comprising the peer group shall be selected by
Deloitte & Touche LLP or another third party consultant acceptable to the
EMPLOYEE and the compensation committee of the Board of Directors of the
COMPANY. The selection of the peer group shall take into account the asset size
and performance ratios of the COMPANY, and such other factors as the consultant
considers appropriate under the circumstances. It is the intent of the COMPANY
and the EMPLOYEE that the EMPLOYEE's total compensation shall include the
following components: (1) a base salary, payable in installments not less often
than monthly; (2) cash incentive compensation, payable not less often than
annually; and (3) long term incentive compensation. The percentage of total
compensation derived from each of the three components described in the
preceding sentence shall be
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comparable to the peer group average. Until the COMPANY has implemented a
compensation program which includes the three components described above, the
EMPLOYEE shall receive an annual salary of not less than $309,000, payable in
equal installments not less often than monthly, and cash incentive compensation
payable not less often than annually.
(b) ANNUAL REVIEW. On or before December 31st of each year,
commencing in 1999, the total compensation of the EMPLOYEE shall be reviewed by
the Board of Directors of the COMPANY and shall be set at an amount not less
than $309,000, based upon the EMPLOYEE's individual performance and such other
factors as the Board of Directors may deem appropriate (hereinafter referred to
as the "ANNUAL REVIEW"). The results of the ANNUAL REVIEW shall be reflected in
the minutes of the Board of Directors of the COMPANY.
(c) EMPLOYEE BENEFIT PROGRAMS. During the TERM, the EMPLOYEE shall
be entitled to participate in all formally established employee benefit, bonus,
pension, insurance and profit sharing plans and similar programs that are
maintained by the COMPANY or the HOLDING COMPANY from time to time and all
employee benefit plans or programs hereafter adopted in writing by the Board of
Directors of the COMPANY or the HOLDING COMPANY for which senior management
personnel of the COMPANY are eligible, including any employee stock ownership
plan, stock option plan or other stock benefit plan (hereinafter collectively
referred to as "BENEFIT PLANS"), in accordance with the terms and conditions of
such BENEFIT PLANS. Notwithstanding any statement to the contrary contained
elsewhere in this AGREEMENT, the COMPANY may at any time discontinue or
terminate any BENEFIT PLAN now existing or hereafter adopted, to the extent
permitted by the terms of such BENEFIT PLAN, and shall not be required to
compensate the EMPLOYEE for such discontinuance or termination to the extent
such discontinuance or termination pertains to all employees of the COMPANY who
are eligible participants at the time.
(d) VACATION AND SICK LEAVE. The EMPLOYEE shall be entitled, without
loss of pay, to be absent voluntarily from the performance of his duties under
this AGREEMENT, in accordance with the policies periodically established by the
Board of Directors of the COMPANY for senior management officials of the
COMPANY. The EMPLOYEE shall be entitled to annual sick leave as established by
the Board of Directors of the COMPANY for senior management officials of the
COMPANY.
(e) EXPENSES. The COMPANY shall pay or reimburse the EMPLOYEE for
all reasonable travel, entertainment and miscellaneous expenses incurred in
connection with the performance of his duties under this AGREEMENT, including
participation in industry-related activities.
4. TERMINATION OF EMPLOYMENT.
(a) GENERAL. The employment of the EMPLOYEE shall terminate at any
time during the TERM (i) at the option of the COMPANY, upon the delivery by the
COMPANY of written notice of termination to the EMPLOYEE, or (ii) at the option
of the EMPLOYEE, upon
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delivery by the EMPLOYEE of written notice of termination to the COMPANY if the
present capacity or circumstances in which the EMPLOYEE is employed are
materially adversely changed (including, but not limited to, a material
reduction in responsibilities or authority or the assignment of duties or
responsibilities substantially inconsistent with those normally associated with
the EMPLOYEE's position described in Section 2(a) of this AGREEMENT, change of
title or removal as a director of the COMPANY or the HOLDING COMPANY, the
requirement that the EMPLOYEE regularly perform his principal executive
functions more than thirty-five (35) miles from his primary office as of the
date of this AGREEMENT or the EMPLOYEE's benefits provided under this AGREEMENT
are reduced, unless the benefit reductions are part of a Company-wide reduction.
The following subsections (A), (B) and (C) of this Section 4(a) shall govern the
obligations of the COMPANY to the EMPLOYEE upon the occurrence of the events
described in such subparagraphs:
(A) TERMINATION FOR CAUSE. In the event that the COMPANY terminates
the employment of the EMPLOYEE during the TERM because of the EMPLOYEE's
personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure or refusal to perform the duties
and responsibilities assigned in this AGREEMENT, willful violation of any law,
rule or regulation (other than traffic violations or other minor offenses), or
final cease-and-desist order or material breach of any provision of this
AGREEMENT (hereinafter collectively referred to as "CAUSE"), the EMPLOYEE shall
not receive, and shall have no right to receive, any compensation or other
benefits for any period after such termination.
(B) TERMINATION IN CONNECTION WITH CHANGE OF CONTROL. In the event
that the employment of the EMPLOYEE is terminated by the COMPANY in connection
with a CHANGE OF CONTROL (hereinafter defined) for any reason other than CAUSE
or is terminated by the EMPLOYEE as provided in Section 4(a)(ii) above, then the
following shall occur:
(I) The COMPANY shall promptly pay to the EMPLOYEE or to his
beneficiaries, dependents or estate an amount equal to the product of 2.99
multiplied by the EMPLOYEE's "base amount" as defined in Section 280G(b)(3) of
the Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder (hereinafter collectively referred to as "SECTION 280G");
(II) The EMPLOYEE, his dependents, beneficiaries and estate
shall continue to be covered at the COMPANY's expense under all health, life,
disability and other benefit plans of the COMPANY, as described in Section 3(c)
of this AGREEMENT, in which the EMPLOYEE was a participant prior to the
effective date of the termination of his employment as if the EMPLOYEE were
still employed under this AGREEMENT until the earlier of the expiration of the
TERM or the date on which the EMPLOYEE is included in another employer's benefit
plans as a full-time employee; and
(III) The EMPLOYEE shall not be required to mitigate the amount
of any payment provided for in this AGREEMENT by seeking other employment or
otherwise, nor
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shall any amounts received from other employment or otherwise by the EMPLOYEE
offset in any manner the obligations of the COMPANY hereunder, except as
specifically stated in subparagraph (II) above.
(C) TERMINATION NOT IN CONNECTION WITH CHANGE OF CONTROL. In the
event that the employment of the EMPLOYEE is terminated before the expiration of
the TERM for any reason other than death, termination for CAUSE or termination
in connection with a CHANGE OF CONTROL, then the following shall occur:
(I) The COMPANY shall be obligated to continue to pay on at
least a monthly basis, until the expiration of the TERM, to the EMPLOYEE, his
designated beneficiaries or his estate, the total compensation in effect at the
time of termination pursuant to Section 3 above, plus a cash bonus equal to the
cash bonus, if any, paid to the EMPLOYEE in the twelve month period prior to the
termination of employment;
(II) The COMPANY shall continue to provide to the EMPLOYEE, at
the COMPANY's expense, health, life, disability and other benefits, as described
in Section 3(c) of this AGREEMENT, substantially equal to those being provided
to the EMPLOYEE at the date of termination of his employment until the earliest
to occur of the expiration of the TERM or the date on which the EMPLOYEE is
included in another employer's benefit plans as a full-time employee; and
(III) The EMPLOYEE shall not be required to mitigate the amount
of any payment provided for in this AGREEMENT by seeking other employment or
otherwise, nor shall any amounts received from other employment or otherwise by
the EMPLOYEE offset in any manner the obligations of the COMPANY hereunder,
except as specifically stated in subparagraph II above.
(b) DEATH OF THE EMPLOYEE. The TERM shall automatically expire upon
the death of the EMPLOYEE. In such event, the EMPLOYEE's estate shall be
entitled to receive the compensation due the EMPLOYEE through the last day of
the calendar month in which the death occurred, except as otherwise specified
herein.
(c) "GOLDEN PARACHUTE" PROVISION. In the event that any payments
pursuant to this Section 4 would result in the imposition of a penalty tax
pursuant to SECTION 280G, such payments shall be reduced to the maximum amount
which may be paid under SECTION 280G without exceeding such limits. Any
payments made to the EMPLOYEE pursuant to this AGREEMENT are subject to and
conditioned upon their compliance with 12 U.S.C. Section 1828(k) and any
regulations promulgated thereunder.
(d) DEFINITION OF "CHANGE OF CONTROL". A "CHANGE OF CONTROL" shall
mean any one of the following events:
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(i) the acquisition of ownership or power to vote more than 25% of
the voting stock of the COMPANY or the HOLDING COMPANY;
(ii) the acquisition of the ability to control the election of a
majority of the directors of the COMPANY or the HOLDING COMPANY;
(iii) during any period of three or less consecutive years,
individuals who at the beginning of such period constitute the Board
of Directors of the COMPANY or the HOLDING COMPANY cease for any
reason to constitute at least a majority thereof; provided, however,
that any individual whose election or nomination for election as a
member of the Board of Directors of the COMPANY or the HOLDING COMPANY
was approved by a vote of at least two-thirds of the directors then in
office shall be considered to have continued to be a member of the
Board of Directors of the COMPANY or the HOLDING COMPANY;
(iv) the acquisition by any person or entity of "conclusive control"
of the COMPANY within the meaning of 12 C.F.R. Section 574.4(a), or
the acquisition by any person or entity of "rebuttable control" within
the meaning of 12 C.F.R. Section 574.4(b) that has not been rebutted
in accordance with 12 C.F.R. Section 574.4(c); or
(v) an event that would be required to be reported in response to
Item 1(a) of Form 8-K or Item 6(e) of Schedule 14A of Regulation 14A
pursuant to the Securities Exchange Act of 1934, as amended
(hereinafter referred to as the "EXCHANGE ACT"), or any successor
thereto, whether or not any class of securities of the Corporation is
registered under the EXCHANGE ACT.
For purposes of this paragraph, the term "person" refers to an individual or
corporation, partnership, trust, association or other organization, but does not
include the EMPLOYEE and any person or persons with whom the EMPLOYEE is "acting
in concert" within the meaning of 12 C.F.R. Part 574.
For purposes of this AGREEMENT, an event shall be deemed to have
occurred "in connection with a CHANGE OF CONTROL" if such event occurs within
one year before or after a CHANGE OF CONTROL.
(e) TERMINATION BY EMPLOYEE. If the EMPLOYEE terminates this
AGREEMENT without the written consent of the COMPANY, other than pursuant to
Section 4(a)(ii) of this AGREEMENT, the EMPLOYEE shall not engage in the
financial institutions business as a director, officer, employee or consultant
for any business or enterprise which competes with the principal business of the
COMPANY or the HOLDING COMPANY or any of their subsidiaries within Mahoning,
Trumbull and Columbiana Counties or any other geographic area in which the
COMPANY or the HOLDING COMPANY is doing business for the unexpired TERM of this
AGREEMENT. This provision shall not apply in the event of the termination of
the employment of the EMPLOYEE by the EMPLOYER prior to the expiration of the
TERM or
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the termination of the employment of the EMPLOYEE by the EMPLOYEE pursuant to
Section 4(a)(ii) of this AGREEMENT.
5. SPECIAL REGULATORY EVENTS. Notwithstanding the provisions of Section 4 of
this AGREEMENT, the obligations of the COMPANY to the EMPLOYEE shall be as
follows in the event of the following circumstances:
(a) If the EMPLOYEE is suspended and/or temporarily prohibited from
participating in the conduct of the COMPANY's affairs by a notice served under
section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act (hereinafter
referred to as the "FDIA"), the COMPANY's obligations under this AGREEMENT shall
be suspended as of the date of service of such notice, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the
COMPANY shall pay the EMPLOYEE all or part of the compensation withheld while
the obligations in this AGREEMENT were suspended and reinstate, in whole or in
part, any of the obligations that were suspended;
(b) If the EMPLOYEE is removed and/or permanently prohibited from
participating in the conduct of the COMPANY's affairs by an order issued under
Section 8(e)(4) or 8(g)(1) of the FDIA, all obligations of the COMPANY under
this AGREEMENT shall terminate as of the effective date of such order; provided,
however, that vested rights of the EMPLOYEE shall not be affected by such
termination;
(c) If the COMPANY is in default, as defined in section 3(x)(1) of
the FDIA, all obligations under this AGREEMENT shall terminate as of the date of
default; provided, however, that vested rights of the EMPLOYEE shall not be
affected;
(d) All obligations under this AGREEMENT shall be terminated, except
to the extent of a determination that the continuation of this AGREEMENT is
necessary for the continued operation of the COMPANY, (i) by the Director of the
Office of Thrift Supervision (hereinafter referred to as the "OTS"), or his or
her designee, at the time that the Federal Deposit Insurance Corporation enters
into an agreement to provide assistance to or on behalf of the COMPANY under the
authority contained in Section 13(c) of the FDIA or (ii) by the Director of the
OTS, or his or her designee, at any time the Director of the OTS approves a
supervisory merger to resolve problems related to the operation of the COMPANY
or when the COMPANY is determined by the Director of the OTS to be in an unsafe
or unsound condition; provided, however that no vested rights of the EMPLOYEE
shall not be affected by any such termination; and
(e) The provisions of this Section 5 are governed by the requirements
of 12 C.F.R. Section 563.39(b) and in the event that any statements in this
Section 5 are inconsistent with 12 C.F.R. Section 563.39(b), the provisions of
12 C.F.R. Section 563.39(b) shall be controlling.
6. CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in this AGREEMENT shall
preclude the COMPANY or the HOLDING COMPANY from consolidating with, merging
into, or transferring all, or substantially all, of their assets to another
corporation that assumes all of their
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obligations and undertakings hereunder. Upon such a consolidation, merger or
transfer of assets, the term "COMPANY" as used herein, shall mean such other
corporation or entity, and this AGREEMENT shall continue in full force and
effect.
7. CONFIDENTIAL INFORMATION. The EMPLOYEE acknowledges that during his
employment he will learn and have access to confidential information regarding
the COMPANY and its customers and businesses. The EMPLOYEE agrees and covenants
not to disclose or use for his own benefit, or the benefit of any other person
or entity, any confidential information, unless or until the COMPANY consents to
such disclosure or use or such information is otherwise legally in the public
domain. The EMPLOYEE shall not knowingly disclose or reveal to any unauthorized
person any confidential information relating to the COMPANY, its subsidiaries,
or affiliates, or to any of the businesses operated by them, and the EMPLOYEE
confirms that such information constitutes the exclusive property of the
COMPANY. The EMPLOYEE shall not otherwise knowingly act or conduct himself to
the material detriment of the COMPANY, its subsidiaries, or affiliates or in a
manner which is inimical or contrary to the interests of the COMPANY.
8. NON-ASSIGNABILITY. Neither this AGREEMENT nor any right or interest
hereunder shall be assignable by the EMPLOYEE, his beneficiaries or legal
representatives without the COMPANY's prior written consent; provided, however,
that nothing in this Section 8 shall preclude the EMPLOYEE from designating a
beneficiary to receive any benefits payable hereunder upon his death or the
executors, administrators or other legal representatives of the EMPLOYEE or his
estate from assigning any rights hereunder to the person or persons entitled
thereto.
9. NO ATTACHMENT. Except as required by law, no right to receive payment
under this AGREEMENT shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy, or similar process of assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
10. BINDING AGREEMENT. This AGREEMENT shall be binding upon, and inure to the
benefit of, the EMPLOYEE and the COMPANY and their respective permitted
successors and assigns.
11. AMENDMENT OF AGREEMENT. This AGREEMENT may not be modified or amended,
except by an instrument in writing signed by the parties hereto.
12. WAIVER. No term or condition of this AGREEMENT shall be deemed to have
been waived, nor shall there be an estoppel against the enforcement of any
provision of this AGREEMENT, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver, unless specifically stated therein, and each waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than the act specifically waived.
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13. SEVERABILITY. If, for any reason, any provision of this AGREEMENT is held
invalid, such invalidity shall not affect the other provisions of this AGREEMENT
not held so invalid, and each such other provision shall, to the full extent
consistent with applicable law, continue in full force and effect. If this
AGREEMENT is held invalid or cannot be enforced, then any prior AGREEMENT
between the COMPANY (or any predecessor thereof) and the EMPLOYEE shall be
deemed reinstated to the full extent permitted by law, as if this AGREEMENT had
not been executed.
14. HEADINGS. The headings of the paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this AGREEMENT.
15. GOVERNING LAW. This AGREEMENT has been executed and delivered in the State
of Ohio and its validity, interpretation, performance, and enforcement shall be
governed by the laws of the State of Ohio, except to the extent that federal law
is governing.
16. EFFECT OF PRIOR AGREEMENTS. This AGREEMENT contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement between the COMPANY or any predecessor of the COMPANY and the
EMPLOYEE.
17. NOTICES. Any notice or other communication required or permitted pursuant
to this AGREEMENT shall be deemed delivered if such notice or communication is
in writing and is delivered personally or by facsimile transmission or is
deposited in the United States mail, postage prepaid, addressed as follows:
If to the COMPANY:
The Home Savings and Loan Company
of Youngstown, Ohio
000 Xxxxxxx Xxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxx 00000-0000
If to the EMPLOYEE:
Xx. Xxxxxxx X. XxXxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
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IN WITNESS WHEREOF, the COMPANY has caused this AGREEMENT to be executed by
its duly authorized officer, and the EMPLOYEE has signed this AGREEMENT, each as
of the day and year first above written.
Attest: THE HOME SAVINGS AND LOAN COMPANY
OF YOUNGSTOWN, OHIO
/s/ Xxxx Xxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------- -------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President and Corporate Secretary
Attest:
/s/ Xxxx Xxxx Xxxxxx /s/ Xxxxxxx X. XxXxx
---------------------------- -----------------------------------
Xxxxxxx X. XxXxx
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