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EXHIBIT 10.5
EMPLOYMENT CONTRACT
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THIS EMPLOYMENT CONTRACT (the "Agreement") is made and delivered in the
City of Blue Ash, Xxxxxxxx County, Ohio, effective as of the 1st day of
January, 1998, by and between The Blue Ash Building And Loan Company (the
"Company"), a wholly owned subsidiary of Towne Financial Corporation (the
"Holding Company"), and Xxxxxx X. Xxxxxx, (the "Employee").
WHEREAS, the Board of Directors of the Company and the Holding Company
believe that it is in the best interest of the Company to enter into this
Agreement with the Employee in order to assure the continuity and retention of
key management of the Company and to reinforce and encourage the continued
attention and dedication of the Employee to the Company and to the duties
assigned to the Employee by the Company; and
WHEREAS, the Board of Directors of the Company has approved and authorized
the execution and delivery of this Agreement with the Employee effective as of
the date set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and in consideration of
the mutual exchange of promises and of the covenants performed and to be
performed, the Company and Employee agree as follows:
1. Employment. The Employee will be employed by the Company as the Chief
Financial Officer, Vice President and Treasurer of the Company. As Chief
Financial Officer, Vice President and Treasurer of the Company, the Employee
shall render to the Company administrative and management services as are
customarily rendered by persons situated in similar executive capacities. The
Employee shall have such other duties and powers as may from time to time be
assigned by the Board of Directors of the Company, provided that such duties
are consistent with the position of the Employee as the Company's Chief
Financial Officer, Vice President and Treasurer. During the term of this
Agreement, the Employee shall devote best efforts and all business time and
attention to the business and affairs of the Company.
2. Compensation
(a) Salary. The Company agrees to pay the Employee during the term of
this Agreement a salary as follows: from the effective date hereof through the
31st day of December, 1998, a salary at an annual rate equal to $64,000.00,
payable to the Employee by the Company not less frequently than weekly in
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accordance with past practices of the Company. The salary of the Employee
shall be adjusted on January 1st, of each year during the term of this
Agreement as determined by the Company's Board of Directors, and may be
increased (but not decreased) in such amounts as the Board of Directors of the
Company in its discretion may determine.
(b) Discretionary Bonuses. The Employee shall be entitled to participate
in an equitable manner with all other executive officers of the Company in
discretionary bonuses as authorized and declared by the Board of Directors of
the Company for its executive employees. No other compensation provided for in
this Agreement shall be deemed a substitute for the right of the Employee to
participate in such bonuses when and as declared by the Company's Board of
Directors.
(c) Expenses. During the term of employment hereunder, the Employee shall
be entitled to receive prompt reimbursement for all reasonable expenses
incurred in accordance with policies and procedures at least as favorable to
the Employee as those presently applicable to the senior executive officers of
the Company, provided that the Employee properly accounts therefore in
accordance with the policy of the Company.
3. Benefits.
(a) Participation In Retirement and Employee Benefit Plans. The Employee
shall be entitled while employed hereunder to participate in and receive
benefits under all plans relating to stock options, stock purchases, pension,
thrift, profit sharing, group life insurance, medical coverage, education, cash
or stock bonuses, and other retirement or employee benefits or combinations
thereof that are now or hereafter maintained for the benefit of the executive
employees of the Company or for the Company's employees generally, provided,
however, that nothing herein shall be construed as requiring the Company to
adopt, maintain and/or continue any such benefit plan.
(b) Fringe Benefits. The Employee shall be eligible while employed
hereunder to participate in and receive benefits under any other fringe
benefits which are or may become applicable to the executive employees of the
Company or to its employees generally.
4. Term. The term of employment under this Agreement shall be a period of
three (3) years commencing upon the date of this Agreement (herein the
"Commencement Date"), subject to earlier
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termination as hereinafter provided. Beginning on the first anniversary of the
Commencement Date, and on each anniversary thereafter, the term of employment
under this Agreement shall be extended for a period of one (1) year unless
either the Company or the Employee gives contrary written notice to the other
not less than ninety (90) days in advance of the date on which the term of
employment under this Agreement would otherwise be extended. Notwithstanding
any other statement or provision herein, this Agreement will not be
automatically extended unless, prior thereto, such extension is approved by the
Board of Directors of the Company following a formal performance evaluation
review of the Employee performed by the disinterested members of the Board of
Directors of the Company and the approval and justification of the approval are
then recorded in the minutes of the Board of Directors. Reference herein to
the term of employment under this Agreement shall refer to both such initial
term and any extended term.
5. Vacations. The Employee shall be entitled, without loss of pay, to be
absent voluntarily for reasonable periods of time from the performance of the
duties and responsibilities under this Agreement. All such voluntary absences
shall count as paid vacation time, unless the Board of Directors of the Company
otherwise approves. The Employee shall be entitled to an annual paid vacation
of 3 weeks per year or such longer period as the Board of Directors of the
Company may approve. The timing of paid vacations shall be scheduled in a
reasonable manner by the Employee. The Employee shall not be entitled to
receive any additional compensation from the Company on account of failure to
take a paid vacation. The Employee shall not be allowed to accumulate unused
paid vacation from one vacation year to the next, unless the Employee has
failed to use vacation time to which the Employee was entitled at the request
of the Company's Board of Directors.
6. Termination of Employment.
(a) (i) The Board of Directors of the Company may terminate the
employment of the Employee at any time, but any termination by the Board of
Directors other than termination for cause shall not prejudice the right of the
Employee to compensation or other benefits under this Agreement.
(ii) The Company and the Employee acknowledge and agree that damages which
will result to the Employee for termination without cause shall be extremely
difficult or impossible to establish or prove. Therefore, the Company and the
Employee agree that unless the termination is a termination for cause, the
Company
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shall be obligated, concurrently with such termination, to make a lump sum cash
payment to the Employee, as liquidated damages, of an amount equal to the then
current salary of the Employee calculated for a period equal to the remaining
term of this Agreement. The Employee agrees that, except for such other
payments and benefits to which the Employee may be entitled as expressly
provided by the terms of this Agreement, such liquidated damages shall be in
lieu of all other claims which the Employee may make by reason of such
termination. Such payment to the Employee shall be made on or before the last
day of the employment of the Employee with the Company. The liquidated damages
amount shall not be reduced by any compensation which the Employee may receive
for other employment with another employer after termination of employment with
the Company.
(iii) In addition to the liquidated damages above described that are
payable to the Employee for termination without cause, the following shall
apply in the event of any termination without cause, any termination by reason
of disability or in the event of any termination subject to Section 7 hereof:
(1) the Employee shall continue to participate in, and accrue benefits under,
all retirement, pension, profit sharing, employee stock ownership, and other
deferred compensation plans of the Company for the remaining term of this
Agreement as if the termination of employment of the Employee had not occurred
(with the Employee deemed to receive annually for the purposes of such plans
the Employee's then current salary [at the time of this termination] under
Section 2 of this Agreement), except to the extent that such continued
participation and accrual is expressly prohibited by law or to the extent such
plan constitutes a "qualified plan" under Section 401 of the Internal Revenue
Code of 1986, as amended (the "Code"); (2) the Employee shall be entitled to
continue to receive all other employee benefits and then existing fringe
benefits referred to in Section 3 hereof for the remaining term of this
Agreement as if the termination of employment had not occurred; and (3) all
insurance or other provisions for indemnification, defense or hold harmless of
officers or directors of the Company which are in effect on the date the notice
of termination is sent to the Employee shall continue for the benefit of the
Employee with respect to all of his acts and omissions while an officer or
director as fully and completely as if such termination had not occurred and
until the final expiration or running of all period of limitation against
action which may be applicable to such acts or omissions.
(b) If the Employee is suspended from office and/or temporarily prohibited
from participating in the conduct of the
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Company's affairs by a notice served under Section 8(e)(3) or (g)(1) of the
Federal Deposit Insurance Act ("FDIA"), 12 U.S.C. Section 1818(e)(3); (g)(1),
the Company's obligations under this Agreement shall be suspended as of the
date of service, unless stayed by appropriate proceedings. If the charges in
the notice are dismissed, the Company may in its discretion (i) pay the
Employee all or part of the compensation withheld while its obligations under
this Agreement were suspended and (ii) reinstate in whole or in part any of the
obligations which were suspended.
(c) If the Employee is removed from office and/or permanently prohibited
from participating in the conduct of the Company's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C. Section 1818(e)(4);
(g)(1), all obligations of the Company under this Agreement shall terminate, as
of the effective date of the order, but vested rights of the parties shall not
be affected.
(d) If the Company becomes in default (as defined in Section 3 (x)(1) of
the FDIA, 12 U.S.C. Section 1813(x)(1), all obligations under this Agreement
shall terminate as of the date of default, but this provision shall not affect
any vested rights of the parties.
(e) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for the
continued operation of the Company: (i) by the Director of the Office of
Thrift Supervision ("OTS") or his or her designee at the time the Federal
Deposit Insurance Corporation or the Resolution Trust Corporation enters into
an agreement to provide assistance to or on behalf of the Company under the
authority contained in Section 13(c) of the FDIA, 12 U.S.C. Section 1823(c); or
(ii) by the Director of the OTS or his or her designee at the time the Director
of the OTS or his or her designee approves a supervisory merger to resolve
problems related to operation of the Company or when the Company is determined
by the Director of the OTS to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, however, shall not be
affected by any such action.
(f) In the event that the Company has terminated the Employee for cause,
but it is determined by a court of competent jurisdiction that cause did not
exist for such termination, or if it is determined by any such court that the
Company has failed to make timely payment of any amounts owed to the Employee
under this Agreement, the Employee shall be entitled to reimbursement for all
reasonable costs, including attorney fees, incurred in challenging such
termination or collecting such amounts. Such reimbursement
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shall be in addition to all rights to which the Employee is otherwise entitled
under this Agreement.
7. Change in Control.
(a) If during the term of this Agreement there is a change in control of
the Company and/or the Holding Company, the Employee shall be entitled to
receive as a severance payment for services previously rendered to the Company
a lump sum cash payment as provided for herein (subject to Section 7(c) below)
in the event the employment of the Employee is terminated, voluntarily or
involuntarily in connection with or within one year after the change in control
of the Company, unless such termination occurs by virtue of normal retirement,
permanent and total disability or death. Subject to Section 7(c) below, the
amount of this payment shall equal three times the Employee's average
compensation which was payable by the Company and was includible in the
Employee's gross income for federal income tax purposes with respect to the
five most recent taxable years of the Company ending prior to such change in
control of the Company (or such portion of such period during which the
Employee was a full-time Employee of the Company), less $1.00. Payment under
this Section 7(a) shall be in lieu of any amount owed to the Employee as
liquidated damages for termination without cause under Section 6(a) hereof.
Payment under this Section 7(a) shall not be reduced by any compensation which
the Employee may receive from other employment with another employer after
termination of the employment of the Employee with the Company. In addition,
Section 6(a)(iii) shall apply in the case of any termination of employment
within the scope of this Section 7(a).
(b) A "change in control" for purposes of this Agreement shall be deemed
to have taken place if: (1) any person becomes the beneficial owner of 25% or
more of the total number of voting shares of the Holding Company; (2) any
person becomes the beneficial owner of 10% or more, but less than 25% of the
total number of voting shares of the Holding Company, provided, however, that
if the Office of Thrift Supervision (the "OTS") has approved a rebuttal
agreement filed by such person or such person has filed a certification with
the OTS, a change in control will not be so deemed to have occurred unless the
Board of Directors of the Holding Company has made a determination that such
beneficial ownership constitutes or will constitute control; (3) any person
(other than the persons named as proxies solicited on behalf of the Board of
Directors of the Holding Company) holds revocable or irrevocable proxies as to
the election or removal of two or more directors of the Holding Company, for
25% or more of the total
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number of voting shares of the Holding Company; (4) any person has received
the approval of the OTS under Section 10 of the Home Owner's Loan Act (the
"Holding Company Act"), or regulations issued thereunder to acquire control of
the Holding Company; (5) any person has received approval of the OTS under the
Change in Bank Control Act (the "Control Act"), or regulations issued
thereunder, to acquire control of the Holding Company; (6) any person has
commenced a tender or exchange offer, or entered into an agreement or received
an option, to acquire beneficial ownership of 25% or more of the total number
of voting shares of the Holding Company, whether or not the requisite approval
for such acquisition has been received under the Holding Company Act, the
Control Act, or the respective regulations issued thereunder; or (7) as the
result of, or in connection, any cash tender or exchange offer, merger, or
other business combination, sale of assets or contested election, or any
combination of the foregoing transactions, the persons who were directors of
the Holding Company before such transaction shall cease to constitute at least
two-thirds of the Board of Directors of the Holding Company or any successor
institution. For purposes of this Section 7(b) a "person" includes an
individual, corporation, partnership, trust, association, joint venture, xxxxx,
syndicate, unincorporated organization, joint stock company, a limited
liability company or similar organization or group acting in concert. A person
for these purposes shall be deemed to be a beneficial owner as that term is
used in Rule 13d-3 under the Securities Exchange Act of 1934.
(c) Notwithstanding any other provisions of this Agreement or of any other
agreement, contract, or understanding heretofore or hereafter entered into
between the Employee and the Company except an agreement, contract, or
understanding hereafter entered into that expressly modifies or excludes
application of this Section 7(c) (the "Other Agreements"), and notwithstanding
any formal or informal plan or other arrangement heretofore or hereafter
adopted by the Company for the direct or indirect provision of compensation to
the Employee (including groups or classes of participants or beneficiaries of
which the Employee is a member), whether or not such compensation is deferred,
is in cash, or is in the form of a benefit to or for the Employee (a "Benefit
Plan"), the Employee shall not have any right to receive any payment, or other
benefit under this Agreement, any Other Agreement, or any Benefit Plan if such
payment or benefit, taking into account all other payments or benefits to or
for the Employee under this Agreement, all Other Agreements and all Benefit
Plans, would cause any payment to the Employee under this Agreement to be
considered a "parachute payment" within the meaning of Section 280G(b)(2) of
the Internal Revenue Code of 1986, as amended (the "Code") (a "Parachute
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Payment"). In the event that the receipt of any such payment or benefit under
this Agreement, any Other Agreement, or any Benefit Plan would cause the
Employee to be considered to have received a Parachute Payment under this
Agreement, then the Employee shall have the right, in the Employee's sole
discretion, to designate those payments or benefits under this Agreement, any
other Agreement, and/or any Benefit Plans, which should be reduced or
eliminated so as to avoid having the payment to the Employee under this
Agreement be deemed to be a Parachute Payment.
8. Disability. If during the term of employment hereunder the Employee
shall become disabled or incapacitated to the extent that the Employee is
unable to perform the duties of Chief Financial Officer, Vice President and
Treasurer, the Employee shall be entitled to receive disability benefits of the
type provided for other executive employees of the Company. During the period
of time that the Employee receives disability benefits, the rights of the
Employee to receive the salary stated in Section 2 hereof shall be suspended.
9. Termination - Death. In the event of the death of the Employee during
the term of employment under this Agreement and prior to any termination
hereunder, the Employee's estate, or such person as the Employee may have
previously designated in writing, shall be entitled to receive from the Company
the salary of the Employee through the last day of the calendar month in which
death shall have occurred.
10. Involuntary Termination-Definition. Except as otherwise provided in
Section 7 of this Agreement the term "Involuntary Termination" in this
Agreement means the termination of employment of the Employee without the
express written consent of the Employee. The Employee shall be considered to
be involuntarily terminated (1) if the employment of the Employee is
involuntarily terminated for any reason other than for cause or (2) terminated
pursuant to Section 6(b) through (e) or (3) terminated by reason of death, or
(4) there occurs a material diminution of or interference with the Employee's
duties and responsibilities as Chief Financial Officer, Vice President and
Treasurer of the Company. By way of example and not by way of limitation, any
of the following actions, if unreasonable or materially adverse to the
Employee, shall constitute such diminution or interference unless consented to
in writing by the Employee: (1) a change in the principal workplace of the
Employee to a location of more than 50 miles from the main office of the
Company; (2) a material demotion of the Employee, a reduction in the number or
seniority of other Company personnel reporting to the Employee, or a reduction
in the frequency with
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which, or in the nature of the matters with respect to which, such personnel
are to report to the Employee, other than as part of a Company wide reduction
in staff; or (3) a reduction or adverse change in salary, perquisites,
benefits, contingent benefits or vacation time which had theretofore been
provided to the Employee, other than as part of an overall program applied
uniformly and with equitable effect to all members of the senior management of
the Company.
11. Termination for Cause. In case of termination of the employment of
the Employee for cause, the Company shall pay the Employee salary through the
date of termination and thereafter, the Company shall have no further
obligation to the Employee under this Agreement which shall be considered as
terminated for all purposes. The Employee shall not have the right to receive
compensation or other benefits for any period after termination for cause.
Notwithstanding the foregoing, the Employee shall not be deemed to have been
terminated for cause unless and until there shall have been delivered to the
Employee a copy of a resolution, duly adopted by the affirmative vote of not
less than a majority of the disinterested members of the Board of Directors at
a meeting of the Board called and held for such purpose after reasonable notice
to the Employee and an opportunity for the Employee, together with counsel for
the Employee, to be heard before the Board, stating that in the good faith
opinion of the Board of Directors of the Company, the Employee was guilty of
conduct constituting "cause" and specifying the particulars thereof in detail.
The term "termination for cause" shall mean termination because of personal
dishonesty of the Employee, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform
duties, willful violation of any substantive law, rule or regulation or final
cease and desist order, or material breach of any provision of this Agreement.
12. Voluntary Termination. The Employee may voluntarily terminate
employment at any time upon ninety (90) days written notice to the Company or
upon such shorter period as may be agreed between the Employee and the Board of
Directors of the Company. In the event of such voluntary termination, the
Company shall be obligated to continue to pay the salary of the Employee only
through the date of termination, at the time such payments are due, and the
Company shall have no further obligation to the Employee under this Agreement.
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13. Non-Assignability.
(a) This Agreement is personal to each of the parties hereto, and neither
party may assign or delegate any rights or obligations hereunder without first
obtaining the written consent of the other party; provided, however, that the
Company will require any successor or assign (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company, by an assumption agreement in form
and substance satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession or assignment had
taken place. Failure of the Company to obtain such an assumption agreement
prior to the effective date of any such succession or assignment shall be a
breach of this Agreement and shall entitle the Employee to compensation from
the Company in the same amount and on the same terms as the compensation
pursuant to Section 7(a) hereof. For purposes of implementing the provisions
of this Section 13(a), the date on which any such succession becomes effective
shall be deemed the date of termination.
(b) This Agreement and all rights of the Employee hereunder shall inure
the benefit of and be enforceable by the Employee's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devises and legatees. If the Employee should die while any amount would still
be payable to the Employee hereunder if the Employee had continued to live, all
such amounts unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to be designees and legatees of the Employee or
other designee or in default of such designee, to the estate of the Employee.
14. Miscellaneous.
(a) Notices. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed (i) to the Company
at its home office to the attention of the Board of Directors of the Company,
with a copy to the Secretary of the Company and (ii) to the Employee at the
home address the Employee has most recently provided to the Company or to such
other address as either party may have furnished to the other in writing in
accordance herewith.
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(b) Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein
otherwise provided.
(c) 12 USC Section 1828(K). Any payments made to the Employee pursuant to
this Agreement, or otherwise, are subject to and conditioned upon their
compliance with 12 USC Section 1828(K) and any regulations promulgated
thereunder.
(d) Governing Law. This Agreement shall be governed by the laws of the
United States to the extent applicable and otherwise by the laws of the State
of Ohio.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
The Blue Ash Building And Loan Company
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx - President
Employee: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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