AMENDMENT TO CHANGE IN CONTROL SEVERANCE AGREEMENT
Exhibit
10.3
AMENDMENT
TO
This Amendment to Change in Control
Severance Agreement is made effective as of March 6, 2009, by and among First Place Bank (“Bank”), a
federally chartered savings association; First Place Financial Corp.
(“FPFC” or the “Corporation”); and _______________ (“Executive”);
and amends that Change in Control Severance Agreement among the parties made
effective as of ________________, (the “Agreement”).
WHEREAS, the parties are required to
amend the Agreement in order to make changes to comply with certain executive
compensation restrictions imposed on the Bank and FPFC in connection with
participation in the Capital Purchase Program (“CPP”) of the U.S. Department of
Treasury’s (the “Treasury”) Troubled Asset Relief Program and specifically
Section 111 of the Emergency Economic Stabilization Act of 2008 (the “EESA”), as
amended by Section 7001 of the American Recovery and Reinvestment Act of 2009
(the “ARRA”);
NOW
THEREFORE, in consideration of the mutual agreements herein contained, and upon
the other terms and conditions hereinafter provided, the parties agree as
follows:
1. New
Section 21 is hereby added to the Agreement as follows:
21. Compliance with the Troubled
Asset Relief Program (“TARP”)
(A) Notwithstanding
any provision to the contrary herein, during the period that any obligation
arising from financial assistance provided to the Corporation under the TARP
remains outstanding pursuant to the TARP Capital Purchase Program (“CPP”)
(excluding any period in which the Federal Government only holds warrants to
purchase common stock of the Corporation), Executive will not receive and will
not be entitled to receive any payment or compensation pursuant to this
Agreement if the receipt of such payment or compensation alone or when added to
any other payment or compensation received or to be received by Executive from
the Corporation would cause Executive to receive a “golden parachute payment”
within the meaning of Section 111 of the Emergency Economic Stabilization Act of
2008 (the “EESA”), as amended by Section 7001 of the American Recovery and
Reinvestment Act of 2009 (the “ARRA”) or any of the rules and regulations
promulgated under the EESA or ARRA. The Corporation and the Bank shall retain
the exclusive and final authority, without the consent of Executive, to cancel,
reduce or otherwise eliminate any compensation or other payments pursuant to
this Agreement so as to comply with the EESA, as amended by ARRA and the rules
and regulations promulgated thereby, as then in effect. Any compensation or
other payments canceled, reduced or eliminated pursuant to the preceding
sentence, will be forever forfeited by Executive and he shall not be entitled to
or have any claim against the Corporation and/or the Bank to receive such
payments at anytime.
(B) Notwithstanding
any provision to the contrary herein, Executive shall make prompt and immediate
repayment to the Corporation or the Bank, as the case may be, of the full amount
of any payment made or credited to Executive under this Agreement during the
period that any obligation arising from financial assistance provided to the
Corporation under the TARP remains outstanding pursuant to the CPP (excluding
any period in which the Federal Government only holds warrants to purchase
common stock of the Corporation) or any other TARP program involving the
Corporation and/or the Bank where such entity received financial assistance
provided under TARP, if such compensation or other payment(s) are determined at
any time by the Corporation and/or the Bank or their federal bank regulator to
have been: (i) calculated or based on materially inaccurate financial
statements or any other materially inaccurate performance metric criteria or
(ii) compensation or payments that are incentive, retention or bonus
compensation that is not permitted by EESA as amended by ARRA or the rules and
regulations promulgated thereunder. The Corporation shall retain the exclusive
and final authority as to all such determinations under this subparagraph (B),
so as to ensure compliance with applicable requirements of EESA, as amended by
ARRA and the rules and regulations as are promulgated thereby, as then in
effect. Any compensation or other payments returned to the Corporation or the
Bank pursuant to the preceding sentence shall be forever forfeited by Executive
and he shall not be entitled to or have any claim against the Corporation and/or
the Bank for repayment or return of any such amounts repaid by Executive at
anytime.
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2. The
Change in Control Severance Agreement, as amended by this Amendment, constitutes
the entire agreement among the Parties and supersedes any prior understandings,
agreements or representations by or among the Parties, written or oral, with
respect to the subject matter of the Change in Control Severance
Agreement.
3. In
the event of a conflict or inconsistency between the terms, conditions and
provisions of the Agreement and those of this Amendment, the terms, conditions
and provisions of this Amendment shall control and govern the rights and
obligations of the Parties.
4. Except
to the extent amended hereby or inconsistent herewith, all of the terms,
conditions and provisions of the Change in Control Severance Agreement shall
remain in full force and effect.
IN
WITNESS WHEREOF, this First Amendment has been executed as of the date first
above written.
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FIRST
PLACE BANK
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EXECUTIVE
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FIRST
PLACE FINANCIAL CORP.
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