EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this "AGREEMENT")
is entered into as of the 28th day of March, 2003, by and between Home City
Federal Savings Bank of Springfield, a savings bank chartered under the laws of
the United States (hereinafter referred to as the "EMPLOYER"), and J. Xxxxxxx
Xxxxxxxxx, an individual (hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYER desires to hire EMPLOYEE as the Chief Executive
Officer and Chief Operating Officer of the EMPLOYER;
WHEREAS, the EMPLOYEE desires to be hired as the Chief Executive
Officer and Chief Operating Officer of the EMPLOYER; and
WHEREAS, the EMPLOYEE and the EMPLOYER desire to enter into this
AGREEMENT to set forth the terms and conditions of the employment relationship
between the EMPLOYER and the EMPLOYEE;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the EMPLOYER, and the EMPLOYEE hereby agree as follows:
l. Employment and Term.
(a) Term. Upon the terms and subject to the conditions of this
AGREEMENT, the EMPLOYER hereby employs the EMPLOYEE, and the EMPLOYEE hereby
accepts employment, as the Chief Executive Officer and Chief Operating Officer
of the EMPLOYER. The TERM of this AGREEMENT shall commence on the date first set
forth above and at the end of each month during the term shall be automatically
extended for another month (providing for a continuous two (2) year term of
employment), subject to the termination provisions contained in Section 4 of
this Agreement.
2. Duties of the EMPLOYEE.
(a) General Duties and Responsibilities. The EMPLOYEE shall serve
as the Chief Executive Officer and Chief Operating Officer of the EMPLOYER.
Subject to the direction of the Board of Directors of the EMPLOYER, the EMPLOYEE
shall have responsibility for the general management and control of the business
and affairs of the EMPLOYER and shall perform all duties and shall have all
powers which are commonly incident to the office of Chief Executive Officer and
Chief Operating Officer or which, consistent therewith, are delegated to him by
the Board of Directors. Such duties shall include, but not be limited to, (1)
managing the day-to-day operations of the EMPLOYER, (2) managing the efforts of
the EMPLOYER to comply with applicable laws and regulations, (3) marketing of
the EMPLOYER and its services, (4) supervising other employees of the EMPLOYER,
(5) providing prompt and accurate reports
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to the Board of Directors of the EMPLOYER regarding the affairs and conditions
of the EMPLOYER, and (6) making recommendations to the Board of Director's of
the EMPLOYER concerning the strategies, capital structure, tactics, and general
operations of the EMPLOYER.
(b) Devotion of Entire Time to the Business of the EMPLOYER. 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 to the EMPLOYER and its holding company and to their subsidiaries and
affiliates. 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 EMPLOYER and Home City Financial Corporation ("HCFC") and their
subsidiaries and affiliates without the prior written consent of the Board of
Directors of the EMPLOYER; provided, however, that the EMPLOYEE shall not be
precluded from (i) reasonable participation in community, civic, charitable or
similar organizations; or (ii) the pursuit of personal investments that do not
interfere or conflict with the performance of the EMPLOYEE's duties to the
EMPLOYER. Nothing in this section shall limit the EMPLOYEE's right to invest in
securities of any business that does not provide services or products of the
type or competing with those provided by the EMPLOYER or its subsidiaries or
affiliates.
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 bi-weekly. The amount
of such annual salary shall be $126,500.00 until changed by the Board of
Directors of the EMPLOYER in accordance with Section 3(b) of this AGREEMENT.
(b) Annual Salary Review. On or before each anniversary of the
effective date of this AGREEMENT, the annual salary of the EMPLOYEE shall be
reviewed by the Board of Directors of the EMPLOYER and may be maintained or
adjusted, in its discretion, based upon the EMPLOYEE's individual performance
and the overall profitability and financial condition of the EMPLOYER. The
results of the annual salary review shall be reflected in the minutes of the
appropriate meetings of the Board of Directors of the EMPLOYER.
(c) Expenses. In addition to any compensation received under
Section 3(a) or (b) of this AGREEMENT, the EMPLOYER 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 EMPLOYER pertaining to reimbursement of expenses to senior
management officials.
(d) Employee Benefit Programs.
(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 EMPLOYER
from time to time, including programs in respect of group health, disability or
life insurance, and all employee benefit plans or programs hereafter adopted in
writing by the Board of Directors of the EMPLOYER, for which senior
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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 any statement to the contrary
contained elsewhere in this Agreement, the EMPLOYER 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 applicable law, and shall not be
required to compensate the EMPLOYEE for such discontinuance or termination; and
(ii) After the termination of the employment of the
EMPLOYEE in accordance with Section 4 of this AGREEMENT for any reason other
than JUST CAUSE (as defined hereinafter), the EMPLOYER shall provide, at the
EMPLOYER's expense, from the date of termination until the end of the TERM or
until the earlier date the EMPLOYEE obtains substantially equivalent coverage
from another full-time employer, substantially the same health, disability and
life insurance benefits as are available to retired employees of the EMPLOYER on
the date of this AGREEMENT; provided, however, that the EMPLOYER's obligation
under this Section 3(d)(ii) shall terminate in the event that the EMPLOYER no
longer makes available an employee group health, disability or life insurance
program that permits the EMPLOYER to make coverage available for retirees or in
the event the EMPLOYER's employee group health, disability or life insurance
program does not permit the coverage of the EMPLOYEE.
(e) Vacation and Sick Leave. The EMPLOYEE shall be entitled to
five (5) weeks of annual vacation with pay. The EMPLOYEE shall be entitled to
annual sick leave in accordance with the policies periodically established by
the Board of Directors of the EMPLOYER for senior management officials of the
EMPLOYER.
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 EMPLOYER upon the delivery by the
EMPLOYER of written notice of employment termination to the EMPLOYEE, or (ii) at
the option of the EMPLOYEE upon the delivery by the EMPLOYEE of written notice
of termination to the EMPLOYER if, unless consented to in writing by the
EMPLOYEE, (A) the present capacity or circumstances in which the EMPLOYEE is
employed are materially changed (including, without limitation, 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), (B) the
EMPLOYEE is no longer the Chief Executive Officer and Chief Operating Officer of
the EMPLOYER and HCFC, (C) the EMPLOYEE is required to move his personal
residence, or perform his principal executive functions, more than thirty-five
(35) miles from his primary office as of the date of the commencement of the
TERM of this AGREEMENT, or (D) the EMPLOYER otherwise breaches this AGREEMENT in
any material respect.
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(b) Termination for JUST CAUSE. In the event that the EMPLOYER
terminates the employment of the EMPLOYEE before the expiration of 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 (other than traffic violations or
similar offenses) or final cease-and-desist order, 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.
(c) Termination in Connection with a CHANGE OF CONTROL.
(i) In the event that, in connection with a CHANGE OF
CONTROL (including, without limitation, a termination other than for JUST CAUSE
within six months prior to a CHANGE OF CONTROL) or after a CHANGE OF CONTROL,
the employment of the EMPLOYEE is terminated by the EMPLOYER for any reason
other than JUST CAUSE before the expiration of the two year employment TERM,
then the following shall occur:
(A) The EMPLOYER shall promptly pay to the
EMPLOYEE or to his beneficiaries, dependents or estate an amount equal
to the product of two multiplied by the greater of the annual salary
set forth in Section 3(a) of this AGREEMENT or the annual salary
payable to the EMPLOYEE as a result of any annual salary review in
accordance with Section 3 (b) of this AGREEMENT;
(B) The EMPLOYER shall continue to provide to
the EMPLOYEE, his dependents, beneficiaries and estate, at the
EMPLOYER's expense, health, disability and life insurance benefits as
provided in Section 3(d)(ii) of this Agreement, until the expiration of
the two year employment TERM or until the earlier date the EMPLOYEE
obtains substantially equivalent coverage from another full-time
employer; 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 EMPLOYER hereunder, except as specifically
stated in subparagraph (B).
(ii) In the event that, within six months prior to or
within one year after a CHANGE OF CONTROL, the employment of the EMPLOYEE is
terminated by the EMPLOYEE in accordance with Section 4(a)(ii) of this AGREEMENT
before the expiration of the two year employment TERM, then the following shall
occur:
(A) The EMPLOYER shall promptly pay to the
EMPLOYEE or to his beneficiaries, dependents or estate an amount equal
to the product of two multiplied by the greater of the annual salary
set forth in Section 3(a) of this AGREEMENT or the annual salary
payable to the EMPLOYEE as a result of any annual salary review in
accordance with Section 3 (b) of this AGREEMENT;
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(B) The EMPLOYER shall continue to provide to
the EMPLOYEE, his dependents, beneficiaries and estate, at the
EMPLOYER's expense, health, disability and life insurance benefits as
provided in Section 3(d)(ii) of this Agreement, until the expiration of
the two year employment TERM or until the earlier date the EMPLOYEE
obtains substantially equivalent coverage from another full-time
employer; 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 EMPLOYER hereunder, except as specifically
stated in subparagraph (B).
In the event that payments pursuant to this subsection (c) 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 that may be paid under SECTION
280G without exceeding such limits. Payments pursuant to this subsection (c)
also may not exceed applicable limits established by the Office of Thrift
Supervision (hereinafter referred to as the "OTS"). In the event a reduction in
payments 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 his sole discretion, which categories of payments are
to be reduced or eliminated.
(d) Termination Without CHANGE OF CONTROL. In the event that the
employment of the EMPLOYEE is terminated by the EMPLOYER or is terminated by the
EMPLOYEE in accordance with Section 4(a)(ii) of this AGREEMENT before the
expiration of the TERM other than (i) for JUST CAUSE or (ii) in connection with
or after a CHANGE OF CONTROL, the EMPLOYER shall be obligated (A) to pay to the
EMPLOYEE, his designated beneficiaries or his estate, for the remainder of the
two year employment TERM, the salary set forth in Section 3(a) of this AGREEMENT
or the salary payable to the EMPLOYEE as a result of any annual salary review in
accordance with Section 3(b) of this AGREEMENT; and (B) to provide to the
EMPLOYEE, at the EMPLOYER's expense, health, disability and life insurance
benefits as provided in Section 3(d)(ii) of this Agreement, until the expiration
of the TERM or until the earlier date the EMPLOYEE obtains substantially
equivalent coverage from another full-time employer. In the event that payments
pursuant to this subsection (d) would result in the imposition of a penalty tax
pursuant to SECTION 280G, such payments shall be reduced to the maximum amount
that may be paid under SECTION 280G without exceeding those limits. Payments
pursuant to this subsection also may not exceed the applicable limits
established by the In the event a reduction in payments 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 his sole
discretion, which categories of payments are to be reduced or eliminated.
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(e) Death of the EMPLOYEE. The TERM shall automatically terminate
upon the death of the EMPLOYEE. 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.
(f) "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 any regulations
promulgated thereunder.
(g) 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 the EMPLOYER or HCFC; (ii) the
acquisition of the ability to control the election of a majority of the
directors of the EMPLOYER or HCFC; (iii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the EMPLOYER or HCFC 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 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; or (iv) the
acquisition by any person or entity of "conclusive control" of the EMPLOYER
within the meaning of 12 C.F.R. Section 574.4(a), or the acquisition by any
person or entity of "rebuttal 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, then 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.
5. Special Regulatory Events. Notwithstanding Section 4 of this AGREEMENT,
the obligations of the EMPLOYER 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 EMPLOYER's 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 EMPLOYER'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 EMPLOYER shall (i) pay the EMPLOYEE all of the compensation withheld while
the obligations in this AGREEMENT were suspended and (ii) reinstate any of the
obligations that were suspended.
(b) If the EMPLOYEE is removed and/or permanently prohibited from
participating in the conduct of the EMPLOYER's affairs by an order issued under
Section 8(e) (4) or (g) (1) of the FDIA, all obligations of the EMPLOYER 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.
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(c) If the EMPLOYER 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 EMPLOYER, (i) by the Director of
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 EMPLOYER 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 EMPLOYER or when the EMPLOYER is
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.
6. Consolidation Merger or Sale of Assets. Nothing in this AGREEMENT shall
preclude the EMPLOYER from consolidating with, merging into, or transferring
all, or substantially all, of its assets to another corporation that assumes all
of the EMPLOYER's obligations and undertakings hereunder. Upon such a
consolidation, merger or transfer of assets, the term "EMPLOYER" 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
EMPLOYER's obligations and undertakings hereunder shall not affect the
EMPLOYEE's right to compensation pursuant to Section 4(a)(ii) of this AGREEMENT
in connection with such consolidation, merger or transfer of assets.
7. Confidential Information. The EMPLOYEE acknowledges that during his
employment he will learn and have access to confidential information regarding
the EMPLOYER 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 EMPLOYER 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 EMPLOYER, 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 EMPLOYER. The EMPLOYEE
shall not otherwise knowingly act or conduct himself (a) to the material
detriment of the EMPLOYER, its subsidiaries, or affiliates, or (b) in a manner
which is inimical or contrary to the interests of the EMPLOYER.
8. Nonassignability. Neither this AGREEMENT nor any right or interest
hereunder shall be assignable by the EMPLOYEE, his beneficiaries, or legal
representatives without the EMPLOYER's 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.
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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. Indemnification: Insurance.
(a) Indemnification. The EMPLOYER agrees to indemnify the EMPLOYEE
and his heirs, executors, and administrators to the fullest extent permitted
under applicable law and regulations, including, without limitation 12 U.S.C.
Section 1828(k), against any and all expenses and liabilities reasonably
incurred by the EMPLOYEE in connection with or arising out of any action, suit
or proceeding in which the EMPLOYEE may be involved by reason of his having been
a director or officer of the EMPLOYER or any of its subsidiaries, whether or not
the EMPLOYEE is a director or officer at the time of incurring any such expenses
of liabilities. Such expenses and liabilities shall include, but shall not be
limited to, judgments, court costs and attorneys fees and the cost of reasonable
settlements. The EMPLOYEE shall be entitled to indemnification in respect of a
settlement only if the Board of Directors of the EMPLOYER has approved such
settlement. Notwithstanding anything herein to the contrary, (i) indemnification
for expenses shall not extend to matters for which the EMPLOYEE has been
terminated for JUST CAUSE, and (ii) the obligations of this Section 10 shall
survive the TERM of this AGREEMENT. Nothing contained herein shall be deemed to
provide indemnification prohibited by applicable law or regulation.
(b) Insurance. During the TERM, the EMPLOYER shall provide the
EMPLOYEE (and his heirs, executors, and administrators) with coverage under a
directors' and officers' liability policy at the EMPLOYER's expense, at least
equivalent to such coverage provided to directors and senior officers of the
EMPLOYER.
11. Binding Agreement. This AGREEMENT shall be binding upon, and inure to
the benefit of, the EMPLOYEE and the EMPLOYER and their respective permitted
successors and assigns.
12. Amendment of Agreement. This AGREEMENT may not be modified or amended,
except by an instrument in writing signed by the parties hereto.
13. 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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14. 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.
15. 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.
16. 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. References to the OTS
included herein shall include any successor primary federal regulatory authority
of the EMPLOYER.
17. Effect of Prior Agreements. This AGREEMENT contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement between the EMPLOYER or any predecessor of the EMPLOYER and the
EMPLOYEE.
18. 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 EMPLOYER:
Home City Federal Savings Bank of Springfield
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxx 00000
If to the EMPLOYEE:
J. Xxxxxxx Xxxxxxxxx
0000 X. Xxxxxx Xxxxxxxx Xxxx
Xxx Xxxxxxxx, Xxxx 00000
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IN WITNESS WHEREOF, the EMPLOYER 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: HOME CITY FEDERAL SAVINGS BANK
OF SPRINGFIELD
/s/Xxxxxxx X. Xxxxx By: /s/Xxxx X. Xxxxxx
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Attest:
/s/Jo Xxx Xxxxxxxx /s/ J. Xxxxxxx Xxxxxxxxx
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J. Xxxxxxx Xxxxxxxxx
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