Exhibit 10.1
XXXXXXX X. XXXXXXXXX
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), made at Lorain, Ohio, as of
the 15th day of January, 2007, by and among XXXXXXX X. XXXXXXXXX (of Hudson,
Ohio), herein referenced as "Employee", and LNB BANCORP, INC. (an Ohio
corporation) and its wholly-owned subsidiary, THE LORAIN NATIONAL BANK (a
banking organization organized and existing under the laws of the United States
of America), which together with their respective successors and assigns are
herein collectively referenced as "Employer", is to EVIDENCE THAT:
WHEREAS Employer desires to secure and retain the employment services of
Employee as the President of the Xxxxxx Bank Division (as defined in Section
1.1) and as a Senior Vice-President of The Lorain National Bank, and Employee
desires to accept such employment; and
WHEREAS, but for Employee's promises made in this Agreement, especially in
Section 8, Employer would not employ Employee under the terms and conditions of
this Agreement and, therefore, expressly to induce Employer to execute this
Agreement, Employee represents that Employee fully understands and accepts the
restrictive covenants in Section 8 and agrees to be bound thereby;
NOW, THEREFORE, in consideration of the mutual covenants and promises made
herein, Employer and Employee (collectively the "Parties" and individually a
"Party") hereby agree as follows:
1. EMPLOYMENT AND TERM.
1.1 Employee will render management services to Employer in the
capacity as the President of the Xxxxxx Bank Division of Employer for the term
of this Agreement (herein called the "Agreement Term"), commencing on the date
of the closing of Employer's acquisition of the Xxxxxx Bank of Hudson, Ohio
(herein called the "Xxxxxx Bank Division") and continuing thereafter for a
period of two (2) years, or until terminated earlier pursuant to the termination
provisions of this Agreement, including (but not limited to) the provisions of
Section 7.
1.2 Employee will devote Employee's full business-time and best
efforts to performing conscientiously, faithfully and loyally all duties: (A)
required of Employee in his positions as the President of the Xxxxxx Bank
Division and as a Senior Vice-President of The Lorain National Bank, and (B)
commensurate with Employee's position and assigned or delegated to Employee by
Employer's President and Chief Executive Officer and/or by Employer's Board of
Directors. Employee may attend to personal investments and may serve as a
director, trustee or officer of, or otherwise participate in, educational,
welfare, social, religious or civic organizations (whether for compensation or
otherwise), provided that such activities do not materially interfere with
Employee's duties and responsibilities under this Agreement as determined by
Employer's President and Chief Executive Officer.
2. COMPENSATION.
2.1 Employer shall pay Employee a basic salary (herein called the
"Basic Salary") equal to One Hundred Seventy-Five Thousand Dollars ($175,000.00)
for each twelve (12) consecutive monthly period (a "Contract Year") of the
Agreement Term. The Basic Salary shall be payable in twenty-six (26) equal
bi-weekly payments and prorated if the Agreement Term is terminated prior to the
completion of any Contract Year. Employee's Basic Salary shall be evaluated
annually for adjustment in connection with an annual performance review at the
conclusion of each fiscal year.
2.2 Employee shall participate in Employer's Management Incentive Plan
for Key Executives and, subject to the terms and conditions of such Plan, may
receive an annual bonus of a maximum of thirty percent (30%) of the Basic Salary
for the Contract Year to which such bonus relates, with the target being fifteen
percent (15%) of Basic Salary. Such bonus (and Employee's eligibility therefor)
shall be determined in accordance with the performance goals for each Contract
Year as established by the Compensation Committee of the Board of Directors and
based, in part, upon the overall financial performance of Employer and the
Xxxxxx Bank Division's COIN program.
2.3 The obligations of Employer to pay Employee's Basic Salary,
bonuses, and other benefits under this Agreement are expressly conditioned upon
Employee's continued and faithful performance of and adherence to each and every
material promise, duty and obligation assigned to or made by Employee under this
Agreement.
3. VACATIONS AND TIME-OFF.
3.1 Employee shall be entitled to four (4) weeks of compensated
vacation for each Contract Year, pursuant to the terms and conditions of
Employer's general vacation time-off policy (as may be periodically changed by
Employer), to be taken at times as approved by Employer's President and Chief
Executive Officer. Except as may be approved by Employer's President and Chief
Executive Officer, all vacation time-off shall be non-cumulative if not taken
within the applicable Contract Year or within the first quarter of the
succeeding Contract Year.
3.2 Employee shall also be entitled to additional days of time-off
with full compensation for holidays in accordance with Employer's general
holiday time-off policy (as may be periodically changed by Employer).
4. FRINGE BENEFITS.
4.1 Employee shall be entitled to all fringe benefits to which other
employees of Employer in Employee's employment classification are entitled and
such other fringe benefits as mutually determined by Employee and Employer's
President and Chief Executive Officer.
4.2 Employer shall also:
(A) include Employee in Employer's retirement plan and flexible
benefit plan, as such plans may be periodically changed or terminated by
Employer; and
(B) provide Employee with such plan of hospitalization insurance
as maintained by Employer for Employee's employment classification and as may be
periodically changed or terminated by Employer; and
(C) provide Employee with such sick leave as presently in effect
by Employer and as may be periodically changed or terminated by Employer; and
(D) reimburse Employee for all reasonable expenses as approved by
Employer's President and Chief Executive Officer and related to the performance
of Employee's duties under this Agreement; and
(E) provide Employee: (i) a term life insurance policy on the
life of Employee (provided that Employee is insurable under the standard rate
criteria of a commercial life insurance company) in an amount equal to 2.75
times the Basic Salary of Employee, but not to exceed Five Hundred Thousand
Dollars ($500,000.00), as may be periodically increased by the mutual agreement
of the Parties, and payable to the beneficiary or beneficiaries of Employee's
choice, and (ii) an accidental death and dismemberment insurance policy upon
Employee in an amount equal to 2.75 times the Basic Salary, but not to exceed
Five Hundred Thousand Dollars ($500,000.00), as may be increased by the mutual
agreement of the Parties, and payable to the beneficiary or beneficiaries of
Employer's choice.
5. STOCK OPTIONS. Employee shall participate in any stock option and other
stock equity programs developed by Employer in accordance with each such
program's eligibility and participation terms and conditions. Employee shall be
eligible to participate in and receive equity grants or stock options
commensurate with Employee's position and level in any stock option plan and
restricted stock plan or other equity-based or equity related compensation plan,
programs or agreements adopted by Employer and made available to its executives.
6. PROHIBITION AGAINST TRANSFER. Employee's duties, obligations and
services rendered under this Agreement are personal in nature and are unique to
Employer. Therefore, without Employer's prior written consent, Employee shall
not assign or otherwise transfer any such duties, obligations or
responsibilities hereunder.
7. TERMINATION OF THE AGREEMENT TERM AND TERMINATION BENEFITS.
7.1 Termination by Employer for any reason other than Cause or by
Employee for Good Reason.
(A) If Employer terminates Employee for any reason other than
"Cause" or Employee terminates for "Good Reason", then Employer shall provide
Employee the amount of remuneration set forth in either Section 7.1(A)(i) or
7.1(A)(ii), whichever is greater:
(i) Employee's Accrued Compensation; and the sum of
Employee's Basic Salary, as measured from the Date of
Termination through the remainder of the Agreement
Term; and any bonuses which have been earned through
the Date of Termination and are payable to the extent
not theretofore paid or deferred; provided that
Employer shall have the option to pay Employee's
Accrued Compensation and all other amounts designated
in this Section immediately upon termination or in
bi-weekly installments over the remainder of the two
(2)-year period set forth in Section 1.1; or
(ii) Employee's Accrued Compensation; and any bonuses which
have been earned through the Date of Termination and
are payable to the extent not theretofore paid or
deferred; and an additional severance payment equal to
one (1) times Employee's then current Basic Salary;
provided, that Employer shall provide Employee's
Accrued Compensation and all other amounts designated
in this Section immediately upon termination or in
bi-weekly installments over the twelve (12)-month
period commencing upon the Date of Termination.
(B) In addition, if Employer terminates Employee for any reason
other than "Cause" or Employee terminates for "Good Reason", then Employer shall
also pay or reimburse Employee's health insurance coverage payments or COBRA
payments, as applicable, for six (6) months after the termination date.
7.2 Termination by Employer for Cause or by Employee without Good
Reason. In the case of a termination of Employee's employment by Employer for
Cause or by Employee without Good Reason, Employer shall pay to Employee all
amounts earned or accrued as of the date of such termination, but not yet paid
as of such date, including Basic Salary, pro-rated Bonus, reimbursement of
reasonable business expenses and accrued, but unused, vacation pay, less any
applicable federal, social security, state and local tax withholdings or other
applicable deductions ("Accrued Compensation").
7.3 Termination Procedures.
(A) Notice of Termination. Any termination of Employee's
employment shall be communicated by written Notice of Termination from one party
hereto to the other party in accordance with the notice provision hereunder. A
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Employee's employment under the provision so indicated.
(B) Date of Termination. "Date of Termination", with respect to
any termination of Employee's employment shall mean the date specified in the
Notice of Termination, which, in the case of a termination by Employer, shall
not be less than thirty (30) days (except in the case of a termination for
Cause) and, in the case of a termination by Employee, shall also not be less
than thirty (30) days from the date such Notice of Termination is given.
7.4 Termination Definitions.
(A) Good Reason Defined: For the purposes of this Section 7, the
term "Good Reason" shall have the same meaning set forth and defined in Section
9, below, of this Agreement in the event any of the events enumerated thereunder
occur within the term of this Agreement prior to a Change in Control. Prior to
Employee's termination of this Agreement for Good Reason, Employee shall provide
written notice to Employer and an opportunity to cure of not less than ten (10)
days.
(B) Cause Defined: For the purposes of this Section 7, the term
"Cause" shall have the same meaning set forth and defined in Section 9, below,
of this Agreement in the event any of the events enumerated thereunder occur
within the term of this agreement prior to a Change in Control. Prior to any
termination of Employee for Cause, Employer shall provide written notice to
Employee and an opportunity to cure of not less than ten (10) days; provided,
however, that Employer may immediately terminate the Agreement Term if Employee
violates or fails to adhere to any provision of Section 8 (pertaining to
non-disclosure and non-competition).
7.5 Subject to the terms and conditions of Section 9, Employee may
terminate the Agreement Term upon the occurrence of a "Change in Control" as
defined in Section 9.1(C) for "Good Reason" as defined in Section 9.1(F) and,
upon Employee's termination as authorized under this Section, Employee shall be
provided all compensation, benefits and other remuneration set forth in Section
9.2.
7.6 The Agreement Term shall automatically and immediately terminate
upon the death of Employee, and Employee shall be entitled to Accrued
Compensation, including that portion of any unpaid Basic Salary and other
benefits accrued and earned hereunder up to and including the date of death,
together with a pro rata portion of the annual bonus applicable to the Contract
Year in which Employee's death occurs, as determined under the Management
Incentive Plan for Key Executives in accordance with Section 2.2.
7.7 In the event of the Disability of Employee as defined in Section
9.1(E) of this Agreement, the Agreement Term shall terminate and Employee shall
be entitled to Accrued Compensation, including that portion of any unpaid Basic
Salary and other benefits accrued and earned by Employee up to and including the
date of Disability, together with a pro rata portion of the annual bonus
applicable to the Contract Year in which such Disability occurs, as determined
under the Management Incentive Plan for Key Executives in accordance with
Section 2.2.
7.8 Either Employer or Employee may terminate the Agreement Term for
any reason (with or without cause) upon thirty (30) days' written notice to the
other Party. In the event Employer terminates this Agreement without Cause or
Employee terminates this Agreement for Good Reason, Employee shall be provided
all compensation, benefits and other remuneration set forth in Section 7.1 of
this Agreement.
7.9 Employer shall have the sole discretion to determine whether
Employee shall continue to render services hereunder during such notice periods
as provided for in this Section 7.
7.10 If Employer terminates the Employment Term under Section 7.8
prior to the expiration of the two (2)-year period designated in Section 1.1 and
such termination is other than for Cause (as defined in Section 9.1(B)),
Employer shall also continue to pay Employee's Basic Salary through the
remainder of the two (2)-year period or, at Employer's option, in a lump-sum
payment equal to the present value thereof; provided, however, that Employer's
obligation set forth in this Section 7.10 shall immediately cease in the event
Employee breaches any of Employee's material promises, duties or obligations set
forth in Section 8.
8. EMPLOYEE'S NON-DISCLOSURE AND NON-COMPETITION PROMISES.
8.1 For purposes of this Section 8, the Parties agree to and
understand the following definitions:
(A) "Competitive Act" means any of the following: (i) Employee's
rendering services (whether or not for compensation) to, for or on behalf of a
Competitor (as defined herein) as an employee, independent contractor,
consultant, advisor, representative, agent or in any other capacity; and (ii)
Employee's investment in or ownership (partial or total) of a Competitor, unless
the Competitor's stock is publicly traded on a national exchange and Employee
owns less than two percent (2%) of such stock.
(B) "Competitive Activity" means the performance or rendering of
any banking services; trust services and investment services; portfolio
management services; retirement planning services; administration of employee
benefit plans services; administration of decedents' estates and
court-supervised accounts, guardianships, and custodial arrangements services;
personal tax and estate tax planning services; financial consulting services;
investment advising services; and any other business activity, service or
product which competes with any existing or future business activity, service or
product of Employer.
(C) "Competitor" means any of the following: (i) any person, sole
proprietorship, partnership, association (other than Employer), organization,
corporation (other than Employer), limited liability company or other entity
(governmental or otherwise) who or which provides, renders or performs a
Competitive Activity (as defined herein) within the Service Area (as defined
herein), even if the Competitor has no office or other facilities located within
the Service Area; and (ii) any parent, subsidiary or other person or entity
affiliated with, or related by ownership to, any of the foregoing designated in
Subitem (i) of this Section 8.1(C).
(D) "Confidential Information" means all of the following
(whether written or verbal) pertaining to Employer: (i) trade secrets (as
defined by Ohio law); Client or Customer lists, records and other information
regarding Employer's Clients or Customers (whether or not evidenced in writing);
Client or Customer fee or price schedules and fee or price policies; financial
books, plans, records, ledgers and information; business development plans;
sales and marketing plans; research and development plans; employment and
personnel manuals, records, data and policies; business manuals, methods and
operations; business forms, correspondence, memoranda and other records;
computer records and related data; and any other confidential or proprietary
data and information of Employer or its Clients or Customers which Employee
encounters during the Employment Term (as defined in Section 8.1(F)); and (ii)
all products, technology, ideas, inventions, discoveries, developments, devices,
processes, business notes, forms and documents, business products, computer
programs, and other creations (and improvements of any of the foregoing),
whether patentable or copyrightable, which Employee has acquired, developed,
conceived or made (whether directly or indirectly, whether solicited or
unsolicited, or whether during normal work hours or during off-time) during the
Employment Term or during the Restricted Period and which relate to any business
activity of Employer or are derived from the Confidential Information designated
in Subsection (i) of this Section 8.1(D).
(E) "Client" or "Customer" means a person, sole proprietorship,
partnership, association, organization, corporation, limited liability company,
or other entity (governmental or otherwise), wherever located: (i) to or for
which Employer sells any products or renders or performs services either during
the one hundred eighty (180)-day period immediately preceding commencement of
the Restricted Period or during the Restricted Period, or (ii) which Employer
solicits or (as demonstrated by plans, strategies or other tangible preparation)
intends to solicit to purchase products or services from Employer either during
the one hundred eighty (180)-day period immediately preceding commencement of
the Restricted Period or during the Restricted Period.
(F) "Employment Term" means the period of time starting on the
date Employee's employment with Employer commences and terminating at the close
of business on the date Employee's employment with Employer terminates.
(G) "Restricted Period" means a one- (1-) year period, commencing
on the date the Employment Term is terminated by either Party (for any reason,
with or without cause) or, if either Party terminates under Section 7.8, the
"Restricted Period" means the remainder of the two (2)-year period designated in
Section 1.1, commencing on the date the Employment Term terminates; provided,
however, that such periods shall be extended to include any period of time
during which Employee engages in any activity constituting a breach of this
Agreement and any period of time during which litigation transpires wherein
Employee is held to have breached this Agreement.
(H) "Service Area" means: (i) Lorain County, Ohio, all counties
immediately contiguous to Lorain County, Summit County, Ohio, and all counties
immediately contiguous to Summit County, constituting those geographic areas in
which Employer presently conducts substantial business activities; and (ii)
those counties located in the State of Ohio in which Employer conducts or
transacts substantial business activities on the date the Employment Term
terminates; and (iii) those counties in the State of Ohio in which, on the date
the Employment Term terminates, Employer intends to conduct or transact
substantial business activities as demonstrated by plans, strategies or other
tangible preparation for such business activities and known to Employee.
(I) "Employer" means, for purposes of this Section 8, LNB
Bancorp, Inc. (the parent), The Lorain National Bank (a national bank
association), all subsidiary entities thereof, and all entities related to LNB
Bancorp, Inc. or to The Lorain National Bank by common ownership which may exist
before or after the commencement of the Employment Term.
8.2 Expressly in consideration for Employer's promises made in this
Agreement and to induce Employer to sign this Agreement, Employee promises and
agrees that:
(A) Confidentiality. The Confidential Information is and, at all
times, shall remain the exclusive property of Employer, and Employee: (i) shall
hold the Confidential Information in strictest confidence and in a position of
trust for Employer and its Clients and Customers, and (ii) except as may be
necessary to perform Employee's employment duties with Employer but only in
compliance with Employer's confidentiality policies and all applicable laws,
shall not (directly or indirectly) use for any purpose, copy, duplicate,
disclose, convey to any third-party or convert any Confidential Information,
either during the Employment Term or at any time following termination of the
Employment Term (by any Party, for any reason, with or without cause), and (iii)
upon the request of Employer at any time during or after the Employment Term,
shall immediately deliver to Employer all the Confidential Information in
Employee's possession and shall neither convey to any third-party nor retain any
copies or duplicates thereof; and
(B) Competitive Acts. During the Employment Term or during the
Restricted Period, Employee (or any entity owned or controlled by Employee)
shall not directly or indirectly, without the prior written approval of
Employer, perform a Competitive Act; and
(C) Employees. During the Restricted Period or during the
Employment Term, Employee (or any entity owned or controlled by Employee) shall
not directly or indirectly: (i) employ, engage, contract for the services of, or
solicit or otherwise induce the services of any person who, during the one
hundred eighty (180)-day period immediately preceding commencement of the
Restricted Period or during the Restricted Period, is or was an employee of
Employer, or (ii) otherwise interfere with (or attempt to interfere with) any
employment relationship of Employer with any employee; and
(D) Customers and Clients. During the Restricted Period and
during the Employment Term, Employee (or any entity owned or controlled by
Employee) shall not directly or indirectly: (i) except for or on behalf of
Employer, solicit from or perform for any Client or Customer a Competitive
Activity, wherever such Client or Customer is located; or (ii) influence (or
attempt to influence) any Client or Customer to transfer such Client's or
Customer's patronage or business from Employer; or (iii) otherwise interfere
with any business relationship of Employer or with any Customer or Client; and
(E) Other Employment or Engagement. Except as otherwise permitted
under Section 1.2, during the Employment Term, Employee shall not perform
services (whether or not for compensation) as an employee, independent
contractor, consultant, representative or agent of any person, sole
proprietorship, partnership, limited liability company, corporation (other than
Employer), association (other than Employer), organization, or other entity
(governmental or otherwise) without the prior, written consent of Employer; and
8.3 Employee understands and agrees that:
(A) During the Employment Term, Employee will materially assist
Employer in the generation, development or enhancement of certain Confidential
Information, Clients and Customers and certain other business assets and
activities for Employer; and
(B) Employee's promises in this Section 8: (i) were negotiated at
arm's-length and with ample time for Employee to seek the advice of legal
counsel, (ii) are required for the fair and reasonable protection of Employer
and the Confidential Information, and (iii) do not constitute an unreasonable
hardship to Employee in working for Employer or in subsequently earning a
livelihood in Employee's field of expertise outside the Service Area; and
(C) If Employee breaches any or all of the promises in this
Section 8: the privacy and thereby the value of the Confidential Information
will be significantly jeopardized; Employer will be subject to the immediate
risk of material, immeasurable, and irreparable damage and harm; the remedies at
law for Employee's breach shall be inadequate; and Employer shall therefore be
entitled to injunctive relief against Employee in addition to any and all other
legal or equitable remedies; and
(D) If Employee had not agreed to the restrictive promises in
this Agreement, Employer would not have signed this Agreement.
8.4 Employee's promises, duties and obligations made in this Section 8
shall apply to Employee irrespective of whether a Change in Control (as defined
in Section 9.1) occurs and shall survive the voluntary or involuntary cessation
or termination of the Employment Term by either Party (for any reason, with or
without cause). If any of the restrictions contained in this Section 8 are ever
judicially held to exceed the geographic or time limitations permitted by law,
then such restrictions shall be deemed to be reformed to comply with the maximum
geographic and time limitations permitted by law. The existence of any claim or
cause of action by Employee against Employer (whether or not derived from or
based upon Employee's employment with Employer) shall not constitute a defense
to Employer's enforcement of any covenant, duty or obligation of Employee in
this Section 8.
9. CHANGE IN CONTROL.
9.1 For purposes solely of this Section 9, the following terms shall
have the respective meanings set forth below but all other capitalized terms
shall have the meanings and definitions contained in other provisions of this
Agreement:
(A) "Bonus Amount" means an amount equal to Employee's bonus
under Employer's Management Incentive Plan for Key Executives for the applicable
Contract Year, as determined in accordance with Section 2.2 of this Agreement.
(B) "Cause" means any one or more of the following: (i) the
willful and continued failure of Employee to perform substantially Employee's
duties with Employer (other than any such failure resulting from Employee's
Disability as defined in Section 9.1(E) of this Agreement or any such failure
subsequent to Employee's being delivered a Notice of Termination without Cause
by Employer or after Employee's delivering a Notice of Termination for Good
Reason to Employer) after a written demand for substantial performance is
delivered to Employee by Employer which specifically identifies the manner in
which Employer believes that Employee has not substantially performed Employee's
duties and provides Employee with ten (10) days to correct such failure, or (ii)
the willful engaging by Employee in illegal conduct or gross misconduct which is
injurious to Employer or any Subsidiary, or (iii) the conviction of Employee of,
or a plea by Employee of nolo contendere to, a felony, or (iv) Employee's breach
of or failure to perform any of the non-competition and non-disclosure covenants
contained in Section 8 of this Agreement.
(C) "Change in Control" means the occurrence of any one of the
following events:
(i) if individuals who, on the date of this Agreement,
constitute the Board of Directors (the "Incumbent
Directors") of LNB Bancorp, Inc. ("Company") cease for
any reason to constitute at least a majority of
Company's Board of Directors; provided, however, that:
(A) any person becoming a director subsequent to the
date of this Agreement, whose election or nomination
for election was approved by a vote of at least
two-thirds (2/3) of the Incumbent Directors then on
Company's Board of Directors (either by a specific vote
or by approval of the proxy statement of Company in
which such person is named as a nominee for director,
without written objection by such Incumbent Directors
to such nomination), shall be deemed to be an Incumbent
Director, and (B) no individual elected or nominated as
a director of Company initially as a result of an
actual or threatened election contest with respect to
directors or any other actual or threatened
solicitation of proxies by or on behalf of any person
other than Company's Board of Directors shall be deemed
to be an Incumbent Director;
(ii) if any "person" (as such term is defined in Section
3(a)(9) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) is or
becomes a "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of
securities of Company representing twenty percent (20%)
or more of the combined voting power of Company's
then-outstanding securities eligible to vote for the
election of Company's Board of Directors (the "Company
Voting Securities"); provided, however, that the events
described in this
clause (ii) shall not be deemed to be a Change in
Control by virtue of any of the following acquisitions:
(A) by Company or any Subsidiary, (B) by any employee
benefit plan sponsored or maintained by Employer or any
Subsidiary or by any employee stock benefit trust
created by Employer or any Subsidiary, (C) by any
underwriter temporarily holding securities pursuant to
an offering of such securities, (D) pursuant to a
Non-Qualifying Transaction (as defined in clause (iii)
of this paragraph (C), below), (E) pursuant to any
acquisition by Employee or any group of persons
including Employee (or any entity controlled by
Employee or by any group of persons including
Employee), or (F) a transaction (other than one
described in clause (iii) of this paragraph (C), below)
in which Company Voting Securities are acquired from
Company, if a majority of the Incumbent Directors
approves a resolution providing expressly that the
acquisition pursuant to this subparagraph does not
constitute a Change in Control under this clause (ii);
(iii) upon the consummation of a merger, consolidation,
share exchange or similar form of corporate transaction
involving Company or any of its Subsidiaries that
requires the approval of Company's shareholders,
whether for such transaction or the issuance of
securities in the transaction (a "Business
Combination"), unless immediately following such
Business Combination: (A) more than fifty percent (50%)
of the total voting power of either (x) the corporation
resulting from the consummation of such Business
Combination (the "Surviving Corporation") or, if
applicable, (y) the ultimate parent corporation that
directly or indirectly has beneficial ownership of one
hundred percent (100%) of the voting securities
eligible to elect directors of the Surviving
Corporation (the "Parent Corporation") is represented
by Company Voting Securities that were outstanding
immediately prior to such Business Combination (or, if
applicable, represented by shares into which such
Company Voting Securities were converted pursuant to
such Business Combination), and such voting power among
the holders thereof is in substantially the same
proportion as the voting power of such Company Voting
Securities among the holders thereof immediately prior
to the Business Combination, (B) no person (other than
any employee benefit plan sponsored or maintained by
the Surviving Corporation or the Parent Corporation or
any employee stock benefit trust created by the
Surviving Corporation or the Parent Corporation) is or
becomes the beneficial owner, directly or indirectly,
of twenty percent (20%) or more of the total voting
power of the outstanding voting securities eligible to
elect directors of the Parent Corporation (or, if there
is no Parent Corporation, the Surviving Corporation),
and (C) at least a majority of the members of the board
of directors of the Parent Corporation (or, if there is
no Parent Corporation, the Surviving Corporation) were
Incumbent Directors at the time of the Board of
Director's approval of the execution of the initial
agreement providing for such Business Combination (any
Business Combination which satisfies all of the
criteria specified in (A), (B) and (C) of this Section
9.1(C)(iii) shall be deemed to be a "Non-Qualifying
Transaction"); or
(iv) if the shareholders of Company approve a plan of
complete liquidation or dissolution of Company or a
sale of all or substantially all of Company's assets
but only if, pursuant to such liquidation or sale, the
assets of Company are transferred to an entity not
owned (directly or indirectly) by Company's
shareholders.
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any person acquires beneficial ownership of more than twenty
percent (20%) of Company Voting Securities as a result of the acquisition of
Company Voting Securities by Company which reduces the number of Company Voting
Securities outstanding; provided, however, that if (after such acquisition by
Company) such person becomes the beneficial owner of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person, a Change in Control shall then
occur. Notwithstanding anything in this Agreement to the contrary, if (1)
Employee's employment is terminated prior to a Change in Control for reasons
that would have constituted a Qualifying Termination if they had occurred
following a Change in Control, (2) Employee reasonably demonstrates that such
termination was at the request of a third party who had indicated an intention
or taken steps reasonably calculated to effect a Change in Control, and (3) a
Change in Control involving such third party (or a party competing with such
third party to effectuate a Change in Control) does occur, then (for purposes of
this Agreement) the date immediately prior to the date of such termination of
employment (or event constituting Good Reason) shall be treated as a Change in
Control.
(D) "Date of Termination" means: (i) the effective date on which
Employee's employment by Employer terminates as specified in a prior written
notice by Employer or Employee (as the case may be) to the other, or (ii) if
Employee's employment by Employer terminates by reason of death, the date of
death of Employee, or (iii) if the Employee incurs a Disability, the date of
such Disability as determined by a physician chosen by Employer. For purposes of
determining the timing of payments and benefits to Employee under Section 9.2,
the date of the actual Change in Control shall be treated as Employee's Date of
Termination.
(E) "Disability" means Employee's inability to perform Employee's
then-existing duties with Employer on a full-time basis for at least one hundred
eighty (180) consecutive days as a result of Employee's incapacity due to
physical or mental illness, as determined by a physician chosen by Employer.
(F) "Good Reason" means, without Employee's express written
consent, the occurrence of any of the following events after a Change in
Control:
(i) (1) any change in the duties or responsibilities
(including reporting responsibilities) of Employee that
is inconsistent in any material and adverse respect
with Employee's positions, duties, responsibilities or
status with Employer immediately prior to such Change
in Control (including any material and adverse
diminution of such duties or responsibilities), or (2)
a material and adverse change in Employee's titles or
offices with Employer from those existing immediately
prior to such Change in Control;
(ii) (1) a reduction by Employer in Employee's Basic Salary
as in effect immediately prior to such Change in
Control (or as such Basic Salary may be increased from
time to time thereafter), or (2) the failure by
Employer to pay Employee an annual bonus in respect of
the year in which such Change in Control occurs or any
subsequent year in an amount greater than or equal to
the annual bonus earned for the year ended prior to the
year in which such Change in Control occurs;
(iii) any requirement of Employer that Employee: (1) be
based anywhere more than fifty (50) miles from the
office where Employee is located at the time of the
Change in Control, or (2) travel on Employer business
to an extent substantially greater than the travel
obligations of Employee immediately prior to such
Change in Control; or
(iv) the failure of Employer to: (1) continue in effect any
material employee benefit plan, compensation plan,
welfare benefit plan or other material fringe benefit
plan in which Employee is participating immediately
prior to such Change in Control or the taking of any
action by Employer which would materially and adversely
affect Employee's participation in or reduce Employee's
benefits under any such plan, unless Employee is
permitted to participate in other plans providing
Employee with substantially equivalent benefits in the
aggregate, or (2) provide Employee with paid vacation
in accordance with the vacation policies
of Employer as in effect for Employee immediately prior
to such Change in Control, including the crediting of
all service for which Employee had been credited under
such vacation policies prior to the Change in Control.
Notwithstanding any contrary provision in this Agreement: (a) an isolated,
insubstantial and inadvertent action taken in good faith and which is remedied
by Employer within ten (10) days after receipt of notice thereof given by
Employee shall not constitute Good Reason; and (b) Employee's right to terminate
employment for Good Reason shall not be affected by Employee's incapacities due
to mental or physical illness; and (c) Employee's continued employment shall not
constitute a consent to, or a waiver of rights with respect to, any event or
condition constituting Good Reason (provided, however, that Employee must
provide notice of termination of employment within ninety (90) days following
Employee's knowledge of an event constituting Good Reason or such event shall
not constitute Good Reason under this Agreement).
(G) "Qualifying Termination" means a termination of Employee's
employment with Employer after a Change in Control: (i) by Employer other than
for Cause, or (ii) by Employee for Good Reason. Termination of Employee's
employment on account of death, Disability or Retirement shall not constitute a
Qualifying Termination.
(H) "Retirement" means the termination of Employee's employment
with Employer: (i) on or after the first of the month coincident with or next
following Employee's attainment of age sixty-five (65), or (ii) on such later
date as may be provided in a written agreement between Employer and Employee.
(I) "Subsidiary" means any corporation or other entity in which
Company: (i) has a direct or indirect ownership interest of fifty percent (50%)
or more of the total combined voting power of the then-outstanding securities or
interests of such corporation or other entity entitled to vote generally in the
election of directors, or (ii) has the right to receive fifty percent (50%) or
more of the distribution of profits or fifty percent (50%) of the assets upon
liquidation or dissolution of such corporation or other entity.
(J) "Termination Period" means the period of time beginning with
a Change in Control and ending two (2) years following such Change in Control.
(K) "Company" means LNB Bancorp, Inc. and its successors.
9.2 Notwithstanding any contrary provision in Section 7 or in any
other Section of this Agreement, if (during the Termination Period) Employee's
employment with Employer terminates pursuant to a Qualifying Termination:
(A) Employer shall pay to Employee, within twenty (20) days
following the Date of Termination under this Section 9, a lump sum cash amount
equal to the amount of remuneration set forth in either Section 9.2(A)(i) or
Section 9.2(A)(ii), whichever is greater:
(i) Employee's Accrued Compensation; and the sum of
Employee's Basic Salary, as measured from the Date of
Termination through the remainder of the Agreement
Term, and any bonuses which have been earned through
the Date of Termination and are payable to the extent
not theretofore paid or deferred; or
(ii) Employee's Accrued Compensation; and any bonuses which
have been earned through the Date of Termination and
are payable to the extent not theretofore paid or
deferred; and an additional severance payment equal to
one (1) times Employee's then current Basic Salary.
(B) In addition to the foregoing, Employer shall pay or reimburse
Employee's health insurance payments or COBRA payments, as applicable, for six
(6) months following the Qualifying Termination.
9.3 Employer shall withhold from all payments due to Employee (or
Employee's beneficiaries or estate) hereunder all taxes which, by applicable
federal, state, local or other law, Employer is required to withhold therefrom.
9.4 This Section 9 shall not be terminated by any Business Combination
as defined in Section 9.1(C)(iii). In the event of any Business Combination, the
provisions of this Section 9 shall be binding upon the Surviving Corporation and
such Surviving Corporation shall be treated as Employer hereunder. This Section
9 shall inure to the benefit of and be enforceable by Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Employee dies while any amounts would
have been payable to Employee under this Section 9 if Employee had continued to
live, all such amounts (unless otherwise provided herein) shall be paid in
accordance with the terms of this Section 9 to such person or persons appointed
in writing by Employee to receive such amounts or, if no person is so appointed,
to Employee's estate.
9.5 In the event of a tender or exchange offer, proxy contest, or the
execution of any agreement which, if consummated, would constitute a Change in
Control, Employee agrees (as a condition to receiving any payments and benefits
under Section 9.2 of this Agreement) not to leave voluntarily the employ of the
Employer (other than as a result of Disability or an event which would
constitute Good Reason if a Change in Control had occurred) until the Change in
Control occurs or, if earlier, such tender or exchange offer, proxy contest or
agreement is terminated or abandoned.
10. MISCELLANEOUS.
10.1 This Agreement constitutes the entire agreement among the Parties
with respect to the subject matter hereof and supersedes any and all other prior
or contemporaneous negotiations, representations, statements, promises,
agreements or contracts (either oral or written) between the Parties with
respect to the subject matter hereof.
10.2 The invalidity or unenforceability of any particular provision of
this Agreement shall not affect its other provisions and this Agreement shall be
construed in all respects as if such invalid or unenforceable provision had been
omitted.
10.3 Except as otherwise expressly provided herein, this Agreement
shall be binding upon and inure to the benefit of Employer, its successors and
assigns and upon Employee, Employee's administrators, executors, legatees, heirs
and assigns. At any time, Employer may assign this Agreement and Employer's
rights, duties, obligations and benefits thereunder to any Subsidiary as defined
in Section 9.1(I) of this Agreement.
10.4 This Agreement shall be construed and enforced under and in
accordance with the laws of the State of Ohio. For all litigation arising
hereunder, the State Courts of Lorain County, Ohio shall have exclusive venue
and each Party (separately and collectively), irrespective of such Party's
current or subsequent domicile or residence, hereby submits to the personal
jurisdiction of the State Courts of Lorain County, Ohio for all litigation
arising under this Agreement.
10.5 All promises, representations, warranties and covenants of the
Parties shall survive termination of the Agreement Term, unless otherwise
expressly provided herein.
10.6 Except as otherwise expressly provided herein, this Agreement may
be changed or amended only by a written document which is clearly designated as
an amendment to this specific Agreement and only if such document is signed by
all Parties.
10.7 No action by any Party and no refusal or neglect of any Party to
exercise a right granted under this Agreement or to enforce compliance with any
provision of this Agreement shall constitute a waiver of any provision of or any
right under this Agreement, unless such waiver is expressed in a written
document which is clearly designated as a waiver to a specific provision(s) of
this Agreement and unless such document is signed by the waiving Party.
10.8 Employee shall not be required to seek other employment or
otherwise mitigate damages to recover any payments or benefits under this
Agreement, and any such payment or benefit will not be reduced by any
compensation earned by Employee as a result of subsequent employment by a new
employer, so long as such subsequent employment is not in violation of this
Agreement.
IN WITNESS WHEREOF, the Parties have set their hands as of the day and year
first above written.
In the Presence of:
/s/ Illegible /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------- ----------------------------------------
(Signature of First Witness) Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx "Employee"
-------------------------------------
(Signature of Second Witness)
LNB BANCORP, INC.
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------- ------------------------------------
(Signature of First Witness) January 15 2007
---------------------, -----------
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
(Signature of Second Witness)
THE LORAIN NATIONAL BANK
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------- ------------------------------------
(Signature of First Witness) January 15 2007
---------------------, -----------
/s/ Xxxxxx X. Xxxxxxxxx "Employer"
-------------------------------------
(Signature of Second Witness)
