AMENDED AND RESTATED CONFIDENTIAL SEPARATION AND GENERAL RELEASE AGREEMENT
Exhibit 10.10
AMENDED AND RESTATED
CONFIDENTIAL SEPARATION AND GENERAL RELEASE AGREEMENT
CONFIDENTIAL SEPARATION AND GENERAL RELEASE AGREEMENT
THIS AMENDED AND RESTATED CONFIDENTIAL SEPARATION AND GENERAL RELEASE AGREEMENT (“Agreement”)
is made and entered into as of this 27th day of January, 2009, by and between XXXXXXX X. XXXXX, an
individual, whose address is 00 Xxxxxx Xxx Xxxxx, Xxxxxxxx, Xxxx 00000 (“Employee”) and THE HOME
SAVINGS AND LOAN COMPANY OF YOUNGSTOWN, OHIO, an Ohio chartered stock savings bank (the “Home
Savings”), whose principal place of business is located at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000.
WHEREAS, United Community Financial Corp., an Ohio corporation and the sole shareholder of
Home Savings (“UCFC”, and together with Home Savings, the “Company”) employed Employee as the Chief
Financial Officer and Treasurer of Home Savings and UCFC;
WHEREAS, the terms and conditions of the Employee’s employment with Home Savings are set forth
in that certain Employment Agreement, dated December 31, 2004, by and between Home Savings and
Employee, as extended by the Board of Directors of Home Savings (the “Employment Agreement”).
WHEREAS, Employee separated from employment with the Company as of May 21, 2008 (the
“Separation Date”), and Employee subsequently resigned as a member of the Board of Directors of
Home Savings and Xxxxxx Xxxx Corp.
WHEREAS, Employee is a “specified employee” for purposes of Section 409A of the Internal
Revenue Code of 1986, as amended (“Code”), and the Regulations promulgated thereunder.
WHEREAS, except as otherwise provided herein, the Company and Employee wish to resolve all
matters that exist between them arising from Employee’s employment and termination thereof,
including those that have been or could have been asserted by either party against the other, and
define all rights and obligations of the parties relating to such separation.
WHEREAS, this Agreement is subject to the determination of the Federal Deposit Insurance
Corporation (the “FDIC”) that the lump sum payment under this Agreement is permissible, pursuant to
12 CFR Section 359 et seq. (“Federal Regulator’s Consent”).
WHEREAS, Employee and the Company previously agreed upon an amount constituting the Separation
Pay (as defined below), and the Company filed an application with the FDIC on November 13, 2008
(the “Application”), to pay such amount to Employee, but such amount was not approved by the FDIC.
WHEREAS, the Company and Employee have agreed to the amount of the Separation Pay set forth
below, and in accordance with the instructions provided to the Company by the
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FDIC, the Company has
agreed to amend the Application to seek the Federal Regulator’s Consent to pay Employee the
Separation Pay.
NOW THEREFORE, in consideration of the mutual promises, covenants and representations set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the parties agree as follows:
1. Payment by the Company.
(a) The Company agrees to pay Employee the lump sum payment of Three Hundred Sixty-Four
Thousand, Six Hundred Eighty-Four Dollars and 32/100 ($364,684.32) (the “Separation Pay”). The
Company acknowledges that Employee is a “specified employee” for purposes of Section 409A of the
Internal Revenue Code of 1986, as amended (“Code”). The Company acknowledges and agrees that the
foregoing lump sum Separation Pay includes (i) the separate payments (Separation Date through March
15, 2009) under the “Short-Term Deferral” exclusion under Code Section 409A, including Treasury
Regulation Section 1.409A-1(b)(4), and (ii) the separate payments (March 16, 2009 through May 20,
2010) under the “Two (2) Times – Two (2) Year” exclusion under Code Section 409A, including
Treasury Regulation Section 1.409A-1 and Section 1.409A-1(b)(9)(iii), and, consistent with the
foregoing, the Company hereby agrees not to report such amounts in Box 12 of Internal Revenue
Service Form W-2 using Code Z.
(b) The Company agrees to provide Employee with the Separation Pay and the other benefits set
forth in Exhibit A, which Exhibit A is attached to this Agreement, incorporated herein and made a
part hereof, less all customary payroll deductions, in accordance with its ordinary payroll
procedures, as applicable, as soon as practicably possible after receipt of the Federal Regulator’s
Consent.
(c) The Company shall promptly amend the Application to obtain the Federal Regulator’s
Consent, which consent the Company hereby represents and warrants is necessary to make the payment
to Employee under this Agreement or the Employment Agreement. The Company hereby agrees to keep
Employee and his legal counsel informed of the status of the filing, including any and all replies
and responses from and to the FDIC. Except as specifically set forth in this Agreement or Exhibit
A, no additional compensation, wages, pay or employment benefits of any type or nature will accrue
as a result of the Separation Pay described herein.
2. Status as Terminated Employee. Employee agrees that Employee’s employment with the
Company ended as of the close of business on the Separation Date.
3. Health Insurance; Employee’s Benefits. After the Separation Date, Employee shall have
the right to elect and pay for continued coverage for Employee and Employee’s dependents under the
plans listed on Exhibit A, until the earlier of December 31, 2010, or the date Employee is included
in another employer’s benefit plans as a full time employee. As of the date hereof, Employee
represents and warrants that Employee is included in another employer’s benefit plans as a full
time employee, and such coverage began as of January 1, 2009. Except as otherwise indicated in
this Agreement and Exhibit A, all of Employee’s other benefits of employment with
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the Company,
including but not limited to any bonus, profit sharing, incentive or other compensation
enhancement, shall terminate as of the Separation Date.
4. This provision intentionally deleted.
5. Employee and Company Property. Employee agrees that prior to and upon the separation
from employment, Employee will only remove personal items from Employee’s office and Employee will
return to the Company all records, files, equipment (including but not limited to all computer
equipment, or electronic devices of any type or nature), office, loge, desk or file keys, credit
cards, computer programs or disks, or other Company property that are in Employee’s possession,
without further request from the Company. By signing this Agreement, Employee represents that
Employee has returned all property, electronic or otherwise, of the Company, including all
Confidential Information, in Employee’s possession and Employee agrees that Employee will not copy
any property of the Company, including Confidential Information, directly or indirectly, in any
fashion (e.g. by computer copy, CD, disk, cassette or any other electronic method), except that
Employee has retained his cellular telephone, with the consent of the Company. Employee shall be
solely responsible for all fees and charges incurred after the Separation Date for any calling/data
or other service plans utilized by the cellular telephone. Employee further agrees that any
violation of this section will cause irreparable harm to Company, and if Employee violates this
section, Company is entitled to pursue all remedies available, including a temporary or permanent
restraining order. Employee shall turn over the automobile provided to Employee, together with all
keys and electronic entry devices on or before the Separation Date.
6. Confidential Information. The parties acknowledge and agree that Section 9 of the
Employment Agreement shall survive execution of this Agreement and the termination of the
Employment Agreement.
7. General Release of Claims
(a) The Company and Employee expressly covenant and agree that in consideration for the
payment of Separation Pay, the reimbursement of outplacement services obtained by Employee and
other consideration set forth herein, Employee does hereby voluntarily and fully release, acquit,
and forever discharge the Company, its subsidiaries, affiliates, predecessors, successors and
assigns and their officers, directors, employees, agents, attorneys and other representatives
(hereinafter collectively referred to as the “Releasees”) from any and all actions, claims,
damages, liabilities, promises, costs (including reasonable attorneys’ fees), rights or demands, of
whatsoever kind or nature, in law or in equity, Employee now has, may have had in the past or will
have at any time hereafter, by reason of any acts, causes, matters or things arising prior to this
date and arising out of or in connection with Employee’s employment and/or separation from
employment with the Company, including any and all wages, benefits or other employment related
matters. Employee understands that this is a general and complete release of claims Employee could
have against the Company as an employee or former employee of the Company but not as a shareholder
of the Company and includes but is not limited to any claims under the Age Discrimination in
Employment Act, Family Medical Leave Act; Title VII of the Civil Rights Act of 1964, as amended;
the Civil Rights Act of 1991; Sections 1981 through 1988 of Title 42 of the United
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States Code, as
amended; the Employee Retirement Income Security Act of 1974, as amended; the Americans with
Disabilities Act of 1990, as amended; any other federal, state or local civil rights law or any
other local, state or federal law, regulation or ordinance; any public policy, contract, tort or
common law theory; or any statutory or common law principle allowing for the recovery of fees or
other expenses, including attorneys’ fees, relating to any claim or claims Employee is releasing in
this Agreement.
Notwithstanding the foregoing in this Section 7(a), nothing in this Section 7(a) shall be
deemed to release any of the Releasees from any of the Releasees’ obligations under this Agreement.
Nothing in this Agreement precludes the filing of a charge with any appropriate federal, state
or local government agency and/or responding to a request for information from any such agency. In
no event, however, will Employee seek or accept any monetary relief in connection with any
complaint or charge brought against the Company, without regard as to who brought that complaint or
charge, and Employee agrees not to file against Releasees any action or proceeding in federal,
state or other court under any statute, law, ordinance or regulation relating to or arising out of
Employee’s employment with and/or separation of employment from the Company. Employee further
agrees to waive and not to seek or accept from Releasees any further benefit or consideration,
including reinstatement, back pay, attorneys’ fees, or any additional monies with respect to
employment or separation of employment from the Company.
(b) The Company does voluntarily and fully release, acquit, and forever discharge Employee,
his successors, assigns, heirs, executor, attorneys and other representatives from any and all
actions, claims, damages, liabilities, promises, costs (including reasonable attorneys’ fees),
rights or demands, of whatsoever kind or nature, in law or in equity, the Company now has, may have
had in the past or will have at any time hereafter, by reason of any acts, causes, matters or
things arising prior to this date and arising out of or in connection with Employee’s employment
and/or separation from employment with the Company, except those arising out of fraud perpetrated
by, or the intentional or willful misconduct of, Employee.
8. Release of Age Discrimination Claims.
(a) Exclusively as this Agreement pertains to Employee’s release of claims under the Age
Discrimination in Employment Act, Employee, pursuant to and in compliance with rights afforded them
under the Older Workers Benefit Protection Act:
(i) Is advised that Employee does not waive rights or claims that arise after the date
on which this Agreement is signed by Employee and the Company;
(ii) Is advised to consult with an attorney prior to executing this Agreement;
(iii) Is given twenty-one (21) days from the receipt of this Agreement in which to
consider it; and
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(iv) Is given a period of seven (7) days following the signing of this Agreement in
which to revoke it. A revocation of this Agreement shall be effective only on the delivery
of a written revocation to The Home Savings and Loan Company of Youngstown, Ohio, 000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention: Vice President—Human Resources. This
Agreement shall not become effective or enforceable until this seven-day revocation period
has expired.
(b) Employee’s knowing and voluntary execution of this Agreement is an express acknowledgment
and agreement that:
(i) This Agreement is written in a manner that enables Employee to fully understand its
content and meaning;
(ii) This Agreement specifically refers to the waiver and release of all claims under
the Age Discrimination in Employment Act;
(iii) This Agreement does not waive or release any rights or claims that may arise
after the date on which it is executed;
(iv) Employee has received consideration under this Agreement in addition to anything
of value to which Employee was otherwise already entitled;
(v) Employee has had the opportunity to review this Agreement with Employee’s attorney
and to consult with Employee’s attorney concerning the signing of this Agreement;
(vi) Employee was afforded a twenty-one (21) day period of time to consider it before
executing it;
(vii) Employee was given a seven-day period of time in which to revoke this Agreement
after it was signed; and
(viii) Employee’s execution of this Agreement is knowing and voluntary.
9. Agreement to not Seek or Accept Future Employment; Mitigation. Employee agrees that,
because of circumstances unique to Employee (including Employee’s separation from the Company and
the Board of Directors of Home Savings and Xxxxxx Xxxx Corp.), Employee will not apply for or
accept future employment with the Company or seek appointment to the Board of Directors of UCFC or
Home Savings. The Company agrees that 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 Employee offset in any manner the
obligations of either Company under this Agreement.
10. Confidentiality. Employee and Company mutually agree not to disclose any information
regarding the existence or substance of this Agreement, except (i) for purposes of enforcement of
this Agreement, (ii) to the FDIC for purposes of requesting the Federal Regulator’s Consent, (iii)
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as otherwise required by law or regulation, (iv) to Employee’s spouse, and (v) to any financial
advisor, tax advisor, and any attorneys with whom Employee or the Company chooses to consult
regarding its respective consideration of this Agreement, provided that they agree to keep that
information strictly confidential and disclose it to no other person. Employee and Company
understand that the confidentiality of this Agreement is an important part of the consideration
under this Agreement. Employee and Company further agree that any violation of this section will
cause irreparable harm to Employee and Company, as the case may be, and if either Employee or
Company violates this section, the other party is entitled to pursue all remedies available,
including a temporary or permanent restraining order.
11. Governing Law and Interpretation. This Agreement shall be governed by and interpreted
under the laws of Ohio and, except as set forth in Section 16 of this Agreement, any legal matters
will be brought in any Federal court sitting within the Northern District of Ohio or any State
court sitting in Mahoning County, Ohio. Should any court of competent jurisdiction declare any
provision of this Agreement unenforceable, the provision shall be void but the remainder of this
Agreement shall remain in effect.
12. Nonadmission of Wrongdoing. The parties have entered into this Agreement in exchange
for the releases granted herein and to avoid potential litigation. Accordingly, neither this
Agreement nor any of the promises made by the Company or Employee in it may be construed by any
person or entity as an admission of any liability or wrongdoing of any kind.
13. Amendment. This Agreement may not be modified except through a written document in
which the parties expressly agree to modify it, and that is signed by both parties.
14. Entire Agreement. This Agreement and Exhibit A attached hereto set forth the entire
agreement between the parties and supersede any prior agreements or understandings between them
regarding its subject matter, including, but not limited to, the Employment Agreement, except as
otherwise specifically provided in this Agreement. Employee acknowledges that Employee has not
relied on any representations, promises, or agreements of any kind made to Employee in connection
with Employee’s decision to make this Agreement, except for those set forth in this Agreement.
15. Headings. The headings and numbering of paragraphs in this Agreement are solely for
convenience of reference and shall not be construed to define or limit any of the terms herein
contained or to affect the meaning or interpretation of this Agreement. Unless the context clearly
indicates otherwise, words used in the singular include the plural, words used in the plural
include the singular and the word “including” means “including but not limited to.”
16. Dispute Resolution. The Employee agrees that if the Employee asserts a claim against
the Company regarding the interpretation or enforcement of this Agreement, such claim shall be
resolved by binding arbitration before a single arbitrator, and the Employee shall not have the
right to pursue any claim in court or to have a jury trial on the claim. The Company and Employee
shall share equally all costs and expenses of the impartial arbitrator. Unless inconsistent with
applicable law, each party shall bear the expenses of their respective attorneys, experts and
witness fees, regardless of which party prevails in the arbitration. Any arbitration hearing will
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take place in Youngstown, Ohio and will be conducted by a mutually-chosen arbitrator who is a
well-recognized and respected arbitrator. An arbitration can only decide Employee’s claim and may
not consolidate or join the claims of any other person who may have similar claims unless
specifically agreed to by the Company. If any portion of this arbitration provision is deemed
invalid or unenforceable, it shall not invalidate the remaining portion of this arbitration
provision.
17. Indemnification. The parties acknowledge and agree that Section 6(a) of the Employment
Agreement shall survive the execution of this Agreement and the termination of the Employment
Agreement.
ONCE YOU SIGN BELOW, THIS DOCUMENT WILL BECOME A LEGALLY ENFORCEABLE AGREEMENT UNDER WHICH YOU
WILL BE GIVING UP RIGHTS AND CLAIMS YOU MAY HAVE, ON THE TERMS STATED IN THIS AGREEMENT.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.
| By: | /s/ Xxxxxxx X. Xxxxx
|
|||||
| THE HOME SAVINGS AND LOAN COMPANY OF | ||||||
| YOUNGSTOWN, OHIO | ||||||
| By: | /s/ Xxxxxxx X. XxXxx
|
|||||
| Chairman of the Board and Chief Executive Officer | ||||||
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Exhibit 10.10
Capitalized terms used but not defined in this Exhibit A shall have the meaning ascribed to
them in the Agreement.
Benefit Plans:
Employee shall be entitled to elect to receive a benefit distribution from any of the Company’s
benefit/retirement plans in which Employee was a participant in accordance with the terms and
conditions of such plans; provided, however, that Employee acknowledges and agrees that Employee
shall not accrue any further benefit, vesting or service credits under any of the stock
benefit/retirement plans after the Separation Date.
Employee and the Company acknowledge and agree that Employee participated in the following stock
benefit plans:
| (i) | United Community Financial Corp. Employee Stock Ownership Plan; | |||
| (ii) | The Home Savings and Loan Company 401(k) Savings Plan; | |||
| (iii) | The United Community Financial Corp. 1999 Long-Term Incentive Plan; and | |||
| (iv) | The United Community Financial Corp. 2007 Long-Term Incentive Plan. |
Health and Welfare Plans:
The following are the Health and Welfare Plans that Employee may continue at Employee’s expense
after the Separation Date.
Disability (UNUM) – This coverage provides a monthly benefit of $3,803.00. The annual premium is
$1,353.89 and is due to renew in June, 2008. To maintain this benefit, you would be required to
pay the premium when the policy renews.
Life Insurance (Xxxx Xxxxxxx) – This term life insurance policy is currently owned by Home Savings;
the insured is the Employee. The face amount of the policy is $1,200,000.00. The annual premium
is $1,996.00 and is due to renew in July, 2008. The ownership of this policy can be changed to the
Employee, but the Employee will be required to pay the premium when the policy renews.
The bank’s Group Life Insurance Plan with Sunlife provides $50,000.00 in coverage. There is a
conversion option available through Sunlife to convert the $50,000.00 to a personal policy.
Contact Sunlife directly for information on how to convert to a personal policy.
Healthcare (Anthem) – Health and dental insurance family coverage, comparable to that available to
other senior executives of the Company, will be available to the Employee at the full premium
expense until December 31, 2010 or until the Employee is included in another employer’s benefit
plans as a full-time employee.
Current monthly healthcare and dental rates are as follows:
PPO |
Family | $ | 1,222.44 | |||||
Dental |
Family | $ | 94.27 | |||||
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