Exhibit 10.6
CHANGE OF CONTROL AGREEMENT
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THIS CHANGE OF CONTROL AGREEMENT (this "Agreement") is entered into as of
the 12th day of June, 2003, by and between First Federal Community Bank, a
federal savings bank (the "Bank"), and Xxxxx X. X'Xxxxxxx an individual (the
"Employee");
WITNESSETH:
WHEREAS, the Employee has been employed by the Bank since April 7, 2003;
WHEREAS, as a result of the skill, knowledge and experience of the
Employee, the Bank believes it is in the best interest of the Bank to provide
the Employee with a sense of security to encourage the Employee to remain an
employee of the Bank;
WHEREAS, the Bank and the Employee desire to enter into this Agreement to
set forth their understanding as to their respective rights and obligations in
the event of the termination of Employee's employment under the circumstances
set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Bank and the Employee hereby agree as follows:
1. Term. The term of this Agreement shall commence on June 1, 2003, and
shall end April 30, 2006, subject to extension and to earlier termination as
provided herein (the "Term"). Prior to each anniversary of the date of this
Agreement, the Board of Directors of the Bank shall review the performance of
the Employee. In connection with such annual review, the Term of this Agreement
shall be extended for a one-year period beyond the then-effective expiration
date, provided the Board of Directors of the Bank, in its sole discretion,
determines in a duly adopted resolution that this Agreement should be extended.
2. Termination of Employment.
(a) Termination by the Bank in Connection with a Change of Control. In the
event that the employment of the Employee is terminated by the Bank, or its
successors or assigns, at any time during the Term for any reason other than
Just Cause within six months prior to a Change of Control (hereinafter defined)
or within one year after a Change of Control, then the following shall occur:
(i) the Bank shall promptly pay to the Employee or to her
beneficiaries, dependents or estate an amount equal to the amount of
the Employee's annual base salary most recently set prior to the
occurrence of the Change of Control;
(ii) The Bank shall pay the premiums required to maintain
coverage for the Employee and her eligible dependents under the
health insurance plan of
the Employer in which the Employee is a participant immediately
prior to the Change of Control of the Bank in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended,
until the earliest of (A) the first anniversary of the termination
of the Employee's employment or (B) the date on which the Employee
is included in another employer's health insurance plan 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 Bank hereunder, except as specifically stated
in subparagraph (b).
For purposes of this Agreement, the term "Just Cause" means 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 to the Employee, willful violation of any law,
rule, regulation (other than traffic violations or similar offenses) or final
cease-and-desist order, or conviction of a felony or for fraud or embezzlement.
(b) Termination by the Employee in Connection with a Change of Control.
The Employee may voluntarily terminate the Employee's employment pursuant to
this Agreement within twelve months following a Change of Control and shall be
entitled to compensation as set forth in Section 2(a) of this Agreement in the
event that:
(i) the present capacity or circumstances in which the
Employee is employed are changed, in the reasonable opinion of the
Employee (including, without limitation, a reduction in
responsibilities or authority, the assignment of duties or
responsibilities substantially inconsistent with those normally
associated with the position held by the Employee immediately prior
to the occurrence of the Change of Control, or a reduction in
salary);
(ii) the Employee is required to move her personal residence,
or perform the Employee's principal duties, more than twenty-five
(25) miles from the Employee's primary office immediately prior to
the occurrence of the Change of Control; or
(iii) the Bank otherwise breaches this Agreement in any
material respect.
In the event that payments pursuant to this Agreement, or any other payments are
made by the Bank to the Employee which would constitute a "parachute payment"
within the meaning of Section 280G(b)(3) of the Internal Revenue Code of 1986,
as amended, and the regulations promulgated thereunder ("Section 280G"), or
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. In the event a reduction in payments
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is necessary in order to comply with the requirements of this Agreement relating
to the limitations of Section 280G or applicable OTS limits, the Employee may
determine, in her sole discretion, which categories of payments are to be
reduced or eliminated.
(c) Death of the Employee. This Agreement shall automatically terminate
upon the death of the Employee.
(d) "Golden Parachute" Provision. Any payments made to the Employee
pursuant to this Agreement or otherwise are subject to and conditioned upon
compliance with 12 U.S.C. ss.1828(k) and any regulations promulgated thereunder.
(e) Definition of "Change of Control". A "Change of Control" shall mean
any one of the following events: (i) the acquisition by any person of ownership
or power to vote more than 25% of the voting stock of the Bank; (ii) the
acquisition by any person of the ability to control the election of a majority
of the directors of the Bank; (iii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Bank 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 Bank or its 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 Bank or its holding company; or (iv) the acquisition by any
person or entity of "conclusive control" of the Bank within the meaning of 12
C.F.R. ss.574.4(a), or the acquisition by any person or entity of "rebuttable
control" within the meaning of 12 C.F.R. ss.574.4(b) that has not been rebutted
in accordance with 12 C.F.R. ss.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.
3. Confidential Information. The Employee acknowledges that the Employee
has learned and has access to confidential information regarding the Bank and
its customers and businesses. The Employee agrees and covenants not to disclose
or use for the Employee's own benefit, or the benefit of any other person or
entity, any confidential information, unless or until the Bank consents 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 Bank, its parent, 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 Bank. The Employee shall not otherwise
knowingly act (a) to the material detriment of the Bank, its subsidiaries, or
affiliates, or (b) in a manner which is inimical or contrary to the interests of
the Bank.
4. Nonassignability. Neither this Agreement nor any right or interest
hereunder shall be assignable by the Employee, the Employee's beneficiaries or
legal representatives without the Bank's prior written consent; provided,
however, that nothing in this Section 4 shall preclude (a) the Employee from
designating a beneficiary to receive any benefits which were payable
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hereunder prior to the Employee's death, or (b) the executors, administrators,
or other legal representatives of the Employee or the Employee's estate from
assigning any rights hereunder to the person or persons entitled thereto.
5. 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.
6. Binding Agreement. This Agreement shall be binding upon, and inure to
the benefit of, the Employee and the Bank and their respective permitted
successors and assigns.
7. Amendment of Agreement. This Agreement may not be modified or amended,
except by an instrument in writing signed by the parties hereto.
8. 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.
9. 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.
10. 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.
11. Governing Law; Regulatory Authority. 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. If this Agreement conflicts with any
applicable federal law as now or hereafter in effect, then federal law shall
govern.
12. Effect of Prior Agreements. This Agreement contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement between the Bank or any predecessor of the Bank and the Employee.
13. 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
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delivered personally or by facsimile transmission or is deposited in the United
States mail, postage prepaid, addressed as follows:
If to the Bank:
First Federal Community Bank
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx, Xxxx 00000
If to the Employee:
Xxxxx X. X'Xxxxxxx
0000 Xxxxxxx Xxxxx XX
Xxx Xxxxxxxxxxxx, XX 00000
14. At-will-Employment. This Agreement does not constitute a contract of
employment or impose on the Bank any obligation to retain the Employee as an
employee.
IN WITNESS WHEREOF, the Bank 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: FIRST FEDERAL COMMUNITY BANK
/s/ Xxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxx
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/s/ Xxxxxx Xxxxxxx Xxxxx X. Xxxxxx
----------------------------- President
EMPLOYEE
/s/ Xxxxx X. X'Xxxxxxx
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Xxxxx X. X'Xxxxxxx
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