EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this "AGREEMENT"),
entered into as of the 1st day of January, 2004, by and among Xxxxxx Financial
Corporation, a savings and loan holding company incorporated under Ohio law
(hereinafter referred to as "WFC"), The Xxxxxx Savings and Loan Co., a savings
and loan association incorporated under Ohio law and a wholly-owned subsidiary
of WFC (hereinafter referred to as "XXXXXX"), and Xxxxxx X. Xxxxxx, an
individual (hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is currently employed as President of WFC and XXXXXX
(hereinafter collectively referred to as the "EMPLOYERS");
WHEREAS, as a result of the skill, knowledge and experience of the
EMPLOYEE, the Boards of Directors of the EMPLOYERS desire to retain the services
of the EMPLOYEE as the President of XXXXXX and of WFC;
WHEREAS, the EMPLOYEE desires to continue to serve as the President of
XXXXXX and of WFC; and
WHEREAS, the EMPLOYEE and the EMPLOYERS desire to enter into this
Agreement to set forth the terms and conditions of the employment relationship
between the EMPLOYERS and the EMPLOYEE;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the EMPLOYERS and the EMPLOYEE hereby agree as follows:
Section l. Employment and Term. Upon the terms and subject to the
conditions of this AGREEMENT, the EMPLOYERS hereby employ the EMPLOYEE, and the
EMPLOYEE hereby accepts employment, as the President of XXXXXX and of WFC. The
term of this AGREEMENT shall commence on January 1, 2004 and shall end on
December 31, 2006 (hereinafter referred to as the "TERM").
Section 2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. As an officer of each of the
EMPLOYERS, the EMPLOYEE shall perform the duties and responsibilities customary
for such office to the best of his ability and in accordance with the policies
established by the Boards of Directors of the EMPLOYERS and all applicable laws
and regulations. The EMPLOYEE shall perform such other duties not inconsistent
with his position as may be assigned to him from time to time by the Boards of
Directors of the EMPLOYERS; provided, however, that the EMPLOYERS shall employ
the EMPLOYEE during the TERM in a senior executive capacity without diminishment
of the importance or prestige of his position.
(b) Devotion of Entire Time to the Business of the EMPLOYERS. 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 without the prior written consent of the Boards of Directors of the
EMPLOYERS; provided, however, that the EMPLOYEE shall not be precluded from (i)
vacations and other leave time in accordance with Section 3(e) hereof; (ii)
reasonable participation in community, civic, charitable or similar
organizations; or (iii) the pursuit of personal investments which do not
interfere or conflict with the performance of the EMPLOYEE'S duties to the
EMPLOYERS.
Section 3. Compensation, Benefits and Reimbursements.
(a) Salary. The EMPLOYEE shall receive during the TERM an annual salary
payable in equal installments not less often than monthly. The amount of such
annual salary shall be $213,000 until changed by the Boards of Directors of the
EMPLOYERS in accordance with Section 3(b) of this AGREEMENT or otherwise.
(b) Annual Salary Review. Each year throughout the TERM, the annual salary
and annual bonus of the EMPLOYEE shall be reviewed by the Compensation Committee
of the Board of Directors of XXXXXX and shall be set, effective January l of the
following year, at a total amount of not less than $230,000, based upon the
EMPLOYEE'S individual performance and the overall profitability and financial
condition of the EMPLOYERS (hereinafter referred to as the "ANNUAL REVIEW"). The
results of the ANNUAL REVIEW shall be reflected in the minutes of the
Compensation Committee.
(c) Expenses. In addition to any compensation received under Section 3(a)
or (b) of this AGREEMENT, the EMPLOYERS 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. Such
reimbursement shall be made in accordance with the existing policies and
procedures of the EMPLOYERS pertaining to reimbursement of expenses to senior
management officials.
(d) Employee Benefit Program.
(i) During the TERM, the EMPLOYEE shall be entitled to participate
in all formally established employee benefit, bonus, pension and
profit-sharing plans and similar programs that are maintained by the
EMPLOYERS from time to time, including programs in respect of group
health, disability or life insurance, reimbursement of membership fees in
civic, social and professional organizations and all employee benefit
plans or programs hereafter adopted in writing by the Boards of Directors
of the EMPLOYERS, for which senior management personnel are eligible,
including any employee stock ownership plan, stock option plan or other
stock benefit plan (hereinafter collectively referred to as the "BENEFIT
PLANS"). Notwithstanding the foregoing sentence, the EMPLOYERS may
discontinue or terminate at any time any such BENEFIT PLANS, now existing
or hereafter adopted, to the extent permitted by the terms of such plans
and shall not be required to compensate the EMPLOYEE for such
discontinuance or termination.
(ii) After the expiration of the TERM or the termination of the
employment of the EMPLOYEE for any reason other than JUST CAUSE (as
defined hereinafter), the EMPLOYERS shall provide a group health insurance
program in which the EMPLOYEE and his spouse will be eligible to
participate until both the EMPLOYEE and his spouse become 65 years of age;
provided, however that all premiums for such program shall be paid by the
EMPLOYEE and/or his spouse after the EMPLOYEE'S termination of employment;
provided further, however, that the EMPLOYEE and his spouse may only
participate in such program for as long as the EMPLOYERS make available an
employee group health insurance program which permits the EMPLOYERS to
make coverage available for similarly situated retirees.
(e) 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, subject to the following conditions:
(i) The EMPLOYEE shall be entitled to an annual vacation in
accordance with the policies periodically established by the Boards of
Directors of the EMPLOYERS for senior management officials of the
EMPLOYERS, the duration of which shall not be less than four weeks each
calendar year;
(ii) Vacation time shall be scheduled by the EMPLOYEE in a
reasonable manner and shall be subject to approval by the Boards of
Directors of the EMPLOYERS. The EMPLOYEE shall not be entitled to receive
any additional compensation from the EMPLOYERS in the event of his failure
to take the full allotment of vacation time in any calendar year;
provided, however, that a maximum of one week of unused vacation time in
any calendar year may be carried over into any succeeding calendar year;
and
(iii) The EMPLOYEE shall be entitled to annual sick leave as
established by the Boards of Directors of the EMPLOYERS for senior
management officials of the EMPLOYERS. In the event that any sick leave
time shall not have
been used during any calendar year, such leave shall accrue to subsequent
calendar years, only to the extent authorized by the Boards of Directors
of the EMPLOYERS. Upon termination of employment, the EMPLOYEE shall not
be entitled to receive any additional compensation from the EMPLOYERS for
unused sick leave.
Section 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 EMPLOYERS, upon the delivery by the
EMPLOYERS of written notice of termination to the EMPLOYEE, or (ii) at the
option of the EMPLOYEE, upon delivery by the EMPLOYEE of written notice of
termination to the EMPLOYERS if the present capacity or circumstances in which
the EMPLOYEE is employed are materially adversely changed without the EMPLOYEE's
written consent, including, but not limited to, a material reduction in
responsibilities or authority, 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, a change of title, 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 reduction of the EMPLOYEE'S benefits provided
under this AGREEMENT, unless the benefit reductions are part of a company-wide
reduction. The following subsections (I), (II) and (III) of this Section 4(a)
shall govern the obligations of the EMPLOYERS to the EMPLOYEE upon the
occurrence of the events described in such subparagraphs:
(I) Termination for JUST CAUSE. In the event that the EMPLOYERS
terminate 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, regulation or final
cease-and-desist order (other than traffic violations or similar
offenses), conviction of a felony or for fraud or embezzlement, or
material breach of any provision of this AGREEMENT (hereinafter
collectively referred to as "JUST CAUSE"), the EMPLOYEE shall not receive,
and shall have no right to receive, any compensation or other benefits for
any period after such termination.
(II) Termination after CHANGE OF CONTROL. In the event that, before
the expiration of the TERM and in connection with or within one year of a
CHANGE OF CONTROL (as defined hereinafter) of either one of the EMPLOYERS,
the employment of the EMPLOYEE is terminated for any reason other than
JUST CAUSE or is terminated by the EMPLOYEE as provided in Section
4(a)(ii) above, then the following shall occur:
(A) The EMPLOYERS shall promptly pay to the EMPLOYEE or to his
dependents, beneficiaries or estate an amount equal to the sum of
(l) the amount of compensation to which the EMPLOYEE would be
entitled for the remainder of the TERM under this AGREEMENT, plus
(2) the difference between (x) the product of three, multiplied by
the EMPLOYEE'S "base amount" [as defined in Section 280G(b)(3) of
the Internal Revenue Code of 1986, as amended and applicable
regulations of the Internal Revenue Service] as of the date of the
CHANGE OF CONTROL, less (y) the sum of (i) $1.00 plus (ii) the
amount paid to the EMPLOYEE pursuant to clause (l) of this
subparagraph (A);
(B) The EMPLOYEE, his dependents, beneficiaries and estate shall be
covered under either the health, life and disability plans of the EMPLOYER
or the health, life and disability plans of the successors, survivors or
assigns of the EMPLOYERS without any material diminution in coverage or
benefit at the expense of the EMPLOYERS or the successors, survivors or
assigns of the EMPLOYERS as if the EMPLOYEE were still employed under this
AGREEMENT until the earliest 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
(C) 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 EMPLOYERS hereunder, except as
specifically stated in subparagraph (B) above.
Provided, however, that in the event that the value of the payments
pursuant to this subsection (II), when combined with the value of other
payments attributable to the same CHANGE OF CONTROL, would result in the
imposition of a penalty tax pursuant to 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"), such
payments shall be reduced to the maximum amount which may be paid under
SECTION 280G without exceeding such limits. This reduction will be applied
through the following procedure:
(Y) First, at least 30 days before the payment is due under this
subsection (II), the EMPLOYER will apprise the EMPLOYEE of the value
of each of the benefits payable because of the CHANGE OF CONTROL and
the maximum amount which may be paid under SECTION 280G without
exceeding such limits and afford the EMPLOYEE an opportunity to
select the benefit (or portion of the benefit) to be reduced.
(Z) Second, if, before the end of that 30 day period, the EMPLOYEE
apprises the EMPLOYER in writing of the benefit or benefits to be
reduced (and the amount of each reduction), the EMPLOYEE'S election
will be implemented and, subject to the next subparagraph, the
adjusted payment made promptly.
But, if, before the end of that 30 day period, the EMPLOYEE does not
apprise the EMPLOYER of the benefit or benefits to be reduced or if the
amount of the reductions the EMPLOYEE specifies does not reduce the value
of all benefits payable because of the CHANGE OF CONTROL to the maximum
amount that may be paid under SECTION 280G without exceeding such limits,
the EMPLOYER will reduce the amount payable under this agreement by an
amount needed to ensure that the limits imposed under SECTION 280G are not
exceeded.
(III) Termination Without 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, JUST CAUSE or in connection with or
within one year of a CHANGE OF CONTROL, the EMPLOYERS shall be obligated
to continue (A) to pay on a monthly basis to the EMPLOYEE, his dependents,
beneficiaries or estate his annual salary provided pursuant to Section
3(a) or (b) of this AGREEMENT until the expiration of the TERM and (B) to
provide to the EMPLOYEE, his dependents, beneficiaries and estate at the
EMPLOYERS' expense, health, life, disability and other benefits
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 the EMPLOYEE becomes employed full-time
by another employer; provided, however, that in the event that payments
pursuant to this subsection (III) 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
those limits. 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
EMPLOYERS hereunder, except as specifically stated in subparagraph
(III)(B) above.
(b) Death of the EMPLOYEE. The TERM automatically terminates upon the
death of the EMPLOYEE, unless the employment of EMPLOYEE has been terminated
prior to EMPLOYEE's death pursuant to Section 4(a) of this AGREEMENT. In the
event of such death, 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. Any payments made to the EMPLOYEE
pursuant to this AGREEMENT, or otherwise, are subject to and conditioned upon
their compliance with 12 U.S.C. Section 1828(k) and FDIC regulation 12 C.F.R.
Part 359, Golden Parachute and Indemnification Payments.
(d) Definition of "CHANGE OF CONTROL". A "CHANGE OF CONTROL" shall mean
any one of the following events: (i) the acquisition of ownership or power to
vote more than 25% of the voting stock of either of the EMPLOYERS; (ii) the
acquisition of the ability to control the election of a majority of the
directors of either of the EMPLOYERS; (iii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of WFC or WINTON 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 WFC or XXXXXX
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 WFC or XXXXXX; or (iv) the acquisition by any person or entity of "conclusive
control" of XXXXXX 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). 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.
Section 5. Special Regulatory Events. Notwithstanding Section 4 of this
AGREEMENT, the obligations of the EMPLOYERS 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 EMPLOYERS' affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (hereinafter
referred to as the "FDIA"), the EMPLOYERS' 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
EMPLOYERS may, in their discretion, 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 EMPLOYERS' affairs by an order issued under
Section 8(e)(4) or (g)(l) of the FDIA, all obligations of the EMPLOYERS 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 EMPLOYERS are 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 EMPLOYERS, (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 EMPLOYERS
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, or his or her designee, approves a supervisory merger to resolve problems
related to the operation of the EMPLOYERS or when the EMPLOYERS are determined
by the Director of the OTS to be in an unsafe or unsound condition. No vested
rights of the EMPLOYEE shall be affected by any such action.
Section 6. Consolidation, Merger or Sale of Assets. Nothing in this
AGREEMENT shall preclude the EMPLOYERS from consolidating with, merging into, or
transferring all, or substantially all, of their assets to another corporation
that assumes all of the EMPLOYERS' obligations and undertakings hereunder. Upon
such a consolidation, merger or transfer of assets, the term "EMPLOYERS" as used
herein shall mean such other corporation or entity and this AGREEMENT shall
continue in full force and effect; provided, however, that the assumption of the
EMPLOYERS' obligations and undertakings hereunder shall not affect the
EMPLOYEE'S right to payments pursuant to Section 4(a)(II) of this AGREEMENT in
connection with such consolidation, merger or transfer of assets.
Section 7. Confidential Information. The EMPLOYEE acknowledges that during
his employment he will learn and have access to confidential information
regarding the EMPLOYERS and their 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
EMPLOYERS' consent to such disclosure or use or such information becomes common
knowledge in the industry or 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 EMPLOYERS, their 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
EMPLOYERS. The EMPLOYEE shall not otherwise knowingly act or conduct himself (a)
to the material detriment of the EMPLOYERS, their subsidiaries, or affiliates,
or (b) in a manner which is inimical or contrary to the interests of the
EMPLOYERS.
Section 8. Nonassignability. Neither this AGREEMENT nor any right or
interest hereunder shall be assignable by the EMPLOYEE, his beneficiaries, or
legal representatives without the EMPLOYERS' prior written consent; provided,
however, that nothing in this Section 8 shall preclude (a) the EMPLOYEE from
designating a beneficiary to receive any benefits payable hereunder upon his
death, or (b) 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.
Section 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.
Section 10. Binding Agreement. This AGREEMENT shall be binding upon, and
inure to the benefit of, the EMPLOYEE and the EMPLOYERS and their respective
permitted successors and assigns.
Section 11. Amendment of AGREEMENT. This AGREEMENT may not be modified or
amended, except by an instrument in writing signed by the parties hereto.
Section 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.
Section 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 EMPLOYERS (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.
Section 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.
Section 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 this State of Ohio, except to the
extent that federal law is governing.
Section 16. Effect of Prior Agreements. This AGREEMENT contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement between the EMPLOYERS and the EMPLOYEE, each of which is hereby
terminated and is of no further force or effect.
Section 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 Xxxxxx Financial Corporation and/or The Xxxxxx Savings & Loan Co.:
Chairman of the Board of Directors
Xxxxxx Financial Corporation
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000-0000
With copies to:
Xxxx X. Xxxxx, Esq.
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
Suite 2000, Atrium Two
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
If to the EMPLOYEE to:
Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
IN WITNESS WHEREOF, the EMPLOYERS have caused this AGREEMENT to be
executed by their duly authorized officers, and the EMPLOYEE has signed this
AGREEMENT, each as of the day and year first above written.
ATTEST: XXXXXX FINANCIAL CORPORATION
/s/ Xxxx Xxxx Xxxx By /s/ Xxxxx X. Xxxxxxxxx
-------------------- -------------------------------------
-------------------------------------
its Chairman
ATTEST: THE XXXXXX SAVINGS AND LOAN CO.
/s/ Xxxxx X. Hack By /s/ Xxxxx X. Xxxxxxxxx
-------------------- -------------------------------------
-------------------------------------
its Chairman
Attest:
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxx
------------------------- ----------------------------------------
Xxxxxx X. Xxxxxx
