Exhibit 00
XXX XXXX FINANCIAL, INC.
CHANGE IN CONTROL and SEVERANCE AGREEMENT
THIS IS AN AGREEMENT between OAK HILL FINANCIAL, INC., an Ohio corporation
(the "Corporation"), with its principal office located at 00000 Xxx. 00,
Xxxxxxx, Xxxx 00000, and Xxxxx X. Xxxxxxx, Xx. (the "Executive"), effective as
of January 31, 2004 (the "Effective Date").
RECITALS:
The Corporation considers the establishment and maintenance of a sound and
vital management to be part of its overall corporate strategy and to be
essential to protecting and enhancing the interests of the Corporation and its
shareholders. As part of this corporate strategy, the Corporation wishes to act
to retain its well-qualified executive officers notwithstanding any actual or
threatened change in control of the Corporation.
The Executive is a key executive officer of the Corporation and the
Executive's services, experience and knowledge of the affairs of the
Corporation, and reputation and contacts in the industry are extremely valuable
to the Corporation. The Executive's continued dedication, availability, advice,
and counsel to the Corporation are deemed important to the Corporation, its
Board of Directors (the "Board"), and its shareholders. It is, therefore, in the
best interests of the Corporation to secure the continued services of the
Executive notwithstanding any actual or threatened change in control of the
Corporation. Accordingly, the Board has approved this Agreement with the
Executive and authorized its execution and delivery on behalf of the
Corporation.
AGREEMENT:
1. Term of Agreement. This Agreement will begin on the date entered above
and will continue in effect through January 31, 2005. On January 31, 2005, and
on the anniversary date of each term thereafter (a "Renewal Date"), the term of
this Agreement will be extended automatically for an additional one-year unless,
not later than 30 days prior to such Renewal Date, the Corporation gives written
notice to the Executive that it has elected not to extend this Agreement.
Notwithstanding the above, if a "Change of Control" (as defined herein) of the
Corporation occurs during the term of this Agreement, the term of this Agreement
will be extended for 36 months beyond the end of the month in which any such
Change of Control occurs.
2. Definitions. The following defined terms shall have the meanings set
forth below, for purposes of this Agreement:
(a) Base Annual Salary. "Base Annual Salary" shall mean the average
annual compensation of the Executive for the last three January-to-December
calendar years immediately prior to a Change of Control. Annual
compensation shall be the compensation reported on Form W-2 for the
Executive for the applicable January-to-December calendar year.
(b) Cause. "Cause" means any of the following:
(1) The Executive shall have committed a felony or an intentional
act of gross misconduct, moral turpitude, fraud, embezzlement, or
theft in connection with the Executive's
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duties or in the course of the Executive's employment with the
Corporation or any Subsidiary, and the Board shall have determined
that such act is materially harmful to the Corporation;
(2) The Corporation or any Subsidiary shall have been ordered or
directed by any federal or state regulatory agency with jurisdiction
to terminate or suspend the Executive's employment and such order or
directive has not been vacated or reversed upon appeal; or
(3) After being notified in writing by the Board to cease any
particular Competitive Activity (as defined herein), the Executive
shall have continued such Competitive Activity and the Board shall
have determined that such act is materially harmful to the
Corporation.
For purposes of this Agreement, no act or failure to act on the part of the
Executive shall be deemed "intentional" only if done or omitted to be done by
the Executive not in good faith and without reasonable belief that the
Executive's action or omission was in the best interest of the Corporation.
(c) Change of Control. "Change of Control" means the occurrence of any of
the following:
(1) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 as in effect as of the
date of this Agreement), other than the Corporation or any "person"
who as of the Effective Date is a director or officer of the
Corporation or whose shares of Common Stock of the Corporation are
treated as "beneficially owned" (as such term is used in Rule 13d-3 of
the Securities and Exchange Commission in effect as of the Effective
Date) by any such director or officer, becomes the beneficial owner,
directly or indirectly, of securities of the Corporation representing
25% or more of the combined voting power of the Corporation's then
outstanding securities; or
(2) Individuals who, as of the Effective Date, constitute the
Board of Directors of the Corporation (the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board,
provided, however, that any individual becoming a director subsequent
to the date hereof whose election, or nomination for election, was
approved by a vote of at least a majority of the directors comprising
the Incumbent Board shall be considered as though such individual was
a member of the Incumbent Board, but excluding for this purpose any
such individual whose initial assumption of office occurs as a result
of actual or threatened solicitation of proxies or consents by or on
behalf of a person other than the Incumbent Board.
(3) Any of the following occurs:
(A) a merger or consolidation of the Corporation, other than
a merger or consolidation in which the voting securities of the
Corporation immediately prior to the merger or consolidation
continue to represent (either by remaining outstanding or being
converted into securities of the surviving entity) 51% or more of
the combined voting power of the Corporation or surviving entity
immediately after the merger or consolidation with another
entity;
(B) a sale, exchange, lease, mortgage, pledge, transfer, or
other disposition (in a single transaction or a series of related
transactions) of all or substantially all of the assets of the
Corporation which shall include, without limitation, the sale of
assets or earning power aggregating more than 50% of the assets
or earning power of the Corporation on a consolidated basis;
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(C) a liquidation or dissolution of the Corporation;
(D) a reorganization, reverse stock split, or
recapitalization of the Corporation which would result in any of
the foregoing; or
(E) a transaction or series of related transactions having,
directly or indirectly, the same effect as any of the foregoing.
(d) Change Year. "Change Year" means the fiscal year in which a Change of
Control occurs.
(e) Competitive Activity. "Competitive Activity" means Executive's
participation in the management of any financial services enterprise if such
enterprise engages in competition with the Corporation in a county in which the
Corporation or any Subsidiary, had at least five per cent (5%) of the
outstanding deposits. If a Change in Control has occurred prior to the time when
Executive's participation in the management of another enterprise is in
question, the geographic scope of the Corporation's business activities,
including a county-by-county review of its deposit market share, shall be
limited to the areas in which the Corporation was doing business prior to the
Change in Control. "Competitive Activity" will not include the mere ownership of
publicly-traded securities in any such enterprise and the exercise of rights
appurtenant thereto.
(f) Disability. "Disability" means that, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall be eligible
for the receipt of benefits under the Corporation's long term disability plan.
(g) Employee Benefits. "Employee Benefits" means the benefits, and service
credit for benefits provided under any and all employee retirement income and
welfare benefit policies, plans, programs, or arrangements in which the
Executive is entitled to participate, including without limitation any stock
option, stock purchase, stock appreciation, savings, pension, supplemental
executive retirement, or other retirement income or welfare benefit, deferred
compensation, incentive compensation, group or other life, health,
medical/hospital, or other insurance (whether funded by actual insurance or
self-insured by the Corporation), disability, salary continuation, expense
reimbursement, and other employee benefit policies, plans, programs, or
arrangements that may now exist or any equivalent successor policies, plans,
programs, or arrangements that may be adopted hereafter, providing benefits, and
service credit for benefits at least as great in a monetary equivalent as are
payable thereunder prior to a Change in Control.
(h) Good Reason. "Good Reason" means the occurrence of any one or more of
the following:
(1) A reduction by the Corporation in the Executive's Base Annual
Salary as of the day immediately prior to a Change of Control of the
Corporation, or the failure to grant salary increases and bonus payments on
a basis comparable to those granted to other executives of the Corporation;
(2) The failure of the Corporation to obtain a satisfactory agreement
from any successor to the Corporation to assume and agree to perform this
Agreement, as contemplated in Section 15 of this Agreement;
(3) The failure of the Corporation to provide the Executive with
substantially the same Employee Benefits that were provided to him
immediately prior to the Change in Control,
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or with a package of Employee Benefits that, though one or more of such
benefits may vary from those in effect immediately prior to such Change in
Control, is substantially comparable in all material respects to such
Employee Benefits taken as a whole; or
(4) Any reduction in the Executive's compensation or benefits or
adverse change in the Executive's location or duties, if such reduction or
adverse change occurs at any time after the commencement of any discussion
with a third party relating to a possible Change of Control of the
Corporation involving such third party, if such reduction or adverse change
is in contemplation of such possible Change of Control and such Change of
Control is actually consummated within 6 months after the date of such
reduction or adverse change.
The existence of Good Reason shall not be affected by the Executive's
incapacity due to physical or mental illness. The Executive's continued
employment shall not constitute a waiver of the Executive's rights with respect
to any circumstance constituting Good Reason under this Agreement.
(i) Notice of Termination. "Notice of Termination" means a written notice
indicating the specific termination provision in this Agreement relied upon and
setting forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the employment under the provision so
indicated.
(j) Severance Benefits. "Severance Benefits" means the benefits described
in Section 4 of this Agreement, as adjusted by the applicable provisions of
Section 5 of this Agreement.
(k) Stock Option Plans. "Stock Option Plans" means the Corporation's 1995
Stock Option Plan, 2004 Stock Incentive Plan and any other stock options plans
that the Corporation may adopt from time to time.
(l) Subsidiary. "Subsidiary" means any banking association, corporation,
limited liability corporation, partnership, or other entity a majority of the
voting control of which is directly or indirectly owned or controlled at the
time by the Corporation.
(m) Unauthorized Disclosure. "Unauthorized Disclosure" shall mean
disclosure by the Executive without the prior written consent of the Board to
any person other than a person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by the Executive of duties as an
executive of the Corporation or as may be legally required, of any information
relating to the business or prospects of the Corporation (including, but not
limited to, any confidential information with respect to any of the
Corporation's customers, products, methods of distribution, strategies, business
and marketing plans and business policies and practices); provided, however,
that such term shall not include the use or disclosure by the Executive, without
consent, of any information known generally to the public (other than as a
result of disclosure by the Executive in violation of Section 10(b)).
3. Eligibility for Severance Benefits. Subject to the provisions set forth
below, the Executive shall be eligible for, and the Corporation or its successor
shall pay or provide to the Executive, the Severance Benefits if the Executive's
employment is terminated voluntarily or involuntarily during the term of this
Agreement, either:
(a) by the Corporation at any time within 12 months after a Change of
Control of the Corporation unless the termination is on account of the
Executive's death or Disability or for Cause, provided that, in the case of
a termination on account of the Executive's Disability or for Cause, the
Corporation shall give Notice of Termination to the Executive with respect
thereto; or
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(b) by the Executive for Good Reason at any time within 12 months
after a Change of Control of the Corporation.
Provided however that the Executive shall not be eligible for the Severance
Benefits, and a Change of Control shall be deemed not to have occurred, if
the Corporation shall have failed to maintain a three-year average annual
growth rate ("Average Annual Earnings Growth Rate") in net earnings per
share reported to the public on a fully diluted basis under Generally
Accept Accounting Principles ("GAAP") consistently applied in the United
States, of ten per cent. The Average Annual Earnings Growth Rate shall be
computed by using the best three years of the last five immediately
preceding calendar years, as reported by the Corporation on the GAAP
Earnings Reports of the Corporation filed with the Securities and Exchange
Commission or as shown on the audited financial reports of the Corporation
if it ceases to be a reporting company under the Securities Exchange Act of
1934. The calculation of Average Annual Earnings Growth Rate shall be
approved by the Corporation's independent certified public accounting firm
engaged by the Corporation immediately prior to the Change in Control and
the calculation shall be provided to the Executive in writing. The
Executive shall then be given 15 days to accept or reject the calculation
of the Average Annual Earnings. If the Executive rejects the Average Annual
Earnings Growth Rate calculation the Executive may retain a firm of
independent certified public accountants to re-compute the Average Annual
Earnings Growth Rate. The firm shall be one of the three largest national
firms of certified public accountants or shall be a regional firm with at
least 200 professionals and with a reputation for significant experience
and expertise in the representation of financial institutions. Such
re-computation shall be at Corporation's expense and shall be binding on
the Corporation and on the Executive. The Executive shall have no other
remedy, at law or in equity, in the event of a dispute on computation of
the Average Annual Growth Rate.
4. Severance Benefits. The Executive, if eligible under Section 3, shall
receive the following Severance Benefits, adjusted by the applicable provisions
of Section 5:
(a) Lump Sum based on Annual Salary. In addition to any accrued
compensation payable as of the Executive's termination of employment, a
lump sum cash amount equal to the Executive's Base Annual Salary,
multiplied by 2.99.
(b) Retirement Benefits. The Executive will be entitled to receive his
vested retirement benefits modified so that the total retirement benefits
the Executive receives from the Corporation will approximate the total
retirement benefits the Executive would have received under all (qualified
and nonqualified) retirement plans (which shall not include severance
plans) of the Corporation in which the Executive participates had the
Executive continued in the employ of the Corporation for twelve months
following the date of the Executive's termination. The benefits specified
in this subsection will include all ancillary benefits, such as early
retirement and survivor rights and benefits available at retirement. These
retirement benefits specified in this subsection are to be provided on an
unfunded basis, are not intended to meet the qualification requirements of
Section 401 of the Internal Revenue Code, and shall be payable solely from
the general assets of the Corporation. These retirement benefits shall be
payable at the time and in the manner provided in the applicable retirement
plans to which they relate.
(c) Stock Options. Stock Options held by the Executive to the extent
the Stock Options become exercisable upon a Change of Control according to
the terms of the Corporation's 1995 Stock Option Plan or its 2004 Stock
Incentive Plan (as interpreted by the Corporation's Governance and
Compensation Committee as such Committee existed immediately prior to the
Change of Control).
In computing and determining Severance Benefits under subsections 4(a), (b)
and (c), a decrease in the Executive's salary, shall be disregarded if such
decrease occurs within six months before a Change of Control, is
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in contemplation of such Change of Control, or is taken to avoid the effect of
tfhis Agreement should such action be taken after such Change of Control. In
such event, the salary used to determine Severance Benefits shall be that in
effect immediately before the decrease that is disregarded pursuant to this
Section 4.
The Severance Benefits provided in subsection 4(a) above shall be paid not
later than 60 business days following the date the Executive's employment
terminates.
5. Payment Limitation. The combined total of the payments required to be
made under this Agreement as Severance Benefits or other benefit to be paid or
provided under Section 4, shall be reduced to an amount equal to $1 less than
the amount that would otherwise subject the Severance Benefit to an excise tax
pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (or
any similar federal or state excise tax) (the "Limitation Amount"). If a
reduction is required, it shall be made first to amount computed pursuant to
Section 4(a) and then to the amounts computed under Sections 4(b) and 4(c), if
any, in that order. The calculation of the Limitation Amount shall be approved
by the Corporation's independent certified public accounting firm engaged by the
Corporation immediately prior to the Change in Control and the calculation shall
be provided to the Executive in writing. The Executive shall then be given 15
days, to accept or reject the calculation of the Limitation Amount. If the
Executive rejects the Limitation Amount calculation the Executive may retain a
firm of independent certified public accountants to re-compute the Average
Annual Earnings Growth Rate. Such re-computation shall be at Corporation's
expense and shall be binding on the Corporation and on the Executive. The
Executive shall have no other remedy, at law or in equity, in the event of a
dispute on computation of the Limitation Amount.
6. Withholding of Taxes. The Corporation may withhold from any amounts
payable under this Agreement all federal, state, city, or other taxes as
required by law.
7. Acknowledgement. The Corporation hereby acknowledges that it will be
difficult and may be impossible for the Executive to find reasonably comparable
employment, or to measure the amount of damages which the Executive may suffer
as a result of termination of employment hereunder. Accordingly, the payment of
the Severance Benefits by the Corporation to the Executive in accordance with
the terms of this Agreement is hereby acknowledged by the Corporation to be
reasonable and will be liquidated damages, and the Executive will not be
required to mitigate the amount of any payment provided for in this Agreement by
seeking other employment or otherwise, nor will any profits, income, earnings,
or other benefits from any source whatsoever create any mitigation, offset,
reduction, or any other obligation on the part of the Executive hereunder or
otherwise.
8. Enforcement Costs. The Corporation is aware that, upon the occurrence of
a Change in Control, the Board or a stockholder of the Corporation may then
cause or attempt to cause the Corporation to refuse to comply with its
obligations under this Agreement, or may cause or attempt to cause the
Corporation to institute, or may institute, litigation, arbitration, or other
legal action seeking to have this Agreement declared unenforceable, or may take,
or attempt to take, other action to deny the Executive the benefits intended
under this Agreement. In these circumstances, the purpose of this Agreement
could be frustrated. It is the intent of the Corporation that the Executive not
be required to incur reasonable expenses associated with the enforcement of the
Executive's rights under this Agreement by litigation, arbitration, or other
legal action nor be bound to negotiate any settlement of the Executive's rights
hereunder under threat of incurring such expenses because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
the Executive under this Agreement. Accordingly, if following a Change in
Control it should appear to the Executive, reasonably and in good faith, that
the Corporation has failed to comply with any of its obligations under this
Agreement, or in the event that the Corporation or any other person takes any
action to declare this Agreement void or unenforceable, or institute any
litigation or other legal action designed to deny, diminish, or to recover from
the Executive, the benefits intended to be provided to the Executive hereunder,
the Corporation irrevocably authorizes the Executive from time to time to retain
counsel at the expense of the Corporation as
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provided in this Section 8 to represent the Executive in connection with the
initiation or defense of any litigation or other legal action, whether by or
against the Corporation or any director, officer, stockholder, or other person
affiliated with the Corporation. Notwithstanding any existing or prior
attorney-client relationship between the Corporation and such counsel, the
Corporation irrevocably consents to the Executive entering into an
attorney-client relationship with such counsel, and in that connection the
Corporation and the Executive agree that a confidential relationship shall exist
between the Executive and such counsel. The reasonable fees and expenses of
counsel selected from time to time by the Executive as provided in this Section
shall be paid or reimbursed to the Executive by the Corporation on a regular,
periodic basis upon presentation by the Executive of a statement or statements
prepared by such counsel in accordance with its customary practices.
9. Indemnification. From and after the earliest to occur of a Change of
Control or related termination of employment, the Corporation: (a) for a period
of three years after such occurrence, shall provide the Executive (including the
Executive's heirs, executors, and administrators) with coverage, subject to
usual and customary limitations, under a standard directors' and officers'
liability insurance policy obtained by the Corporation for its other directors
and officers, at the Corporation's expense, and (b) indemnify and hold harmless
the Executive from claims and losses, to the fullest extent permitted or
authorized by the charter or bylaws of the Corporation, as amended from time to
time, as if the Executive were or continued to be, an officer of the
Corporation. Such coverage and indemnity shall apply if the Executive is
(whether before or after the Change of Control) made or threatened to be made a
party to any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, by reason of the fact
that the Executive is or was a director, officer, or employee of the Corporation
or any Subsidiary, or is or was serving at the request of the Corporation or any
Subsidiary as a director, trustee, officer, or employee of a bank, corporation,
partnership, joint venture, trust, or other enterprise. The indemnification
provided by this Section 9 shall not be deemed exclusive of any other rights to
which the Executive may be entitled under the charter or bylaws of the
Corporation or of any Subsidiary, or any agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in the Executive's
official capacity and as to action in another capacity while holding such
office, and shall continue as to the Executive after the Executive has ceased to
be a director, trustee, officer, or employee and shall inure to the benefit of
the heirs, executors, and administrators of the Executive.
10. Restrictive Provisions. As further consideration for the obligations
assumed by the Corporation under this Agreement, Executive agrees to the
following restrictions:
(a) Executive will not, during the period he is employed by the Corporation
and for a period of two (2) years following the Termination Date, engage in
Competitive Activity directly or indirectly with the business of the Corporation
or any Subsidiary.
(b) The Executive shall not, during the term of this Agreement and
thereafter, make any disparaging comments which may be harmful to the
Corporation's reputation or any Unauthorized Disclosure. This covenant has no
temporal, geographical or territorial restriction.
(c) Executive will not during the period he is employed by the Corporation
and for a period of two (2) years (the "No Call Period") following termination,
solicit any of the employees of the Corporation or any Subsidiary to leave the
employ of the Corporation or the Subsidiary or to become an employee of any
other person. If during the No Call Period any employee of the Corporation or
any Subsidiary becomes an employee of a person or firm which employs the
Executive, the Executive shall be irrefutably deemed to have solicited such
employee in contravention of the restriction in this Section 10(c).
(d) The Executive shall deliver to the Corporation or its designee at the
termination of the Executive's employment all correspondence, memoranda, notes,
records, plans, customer lists, and other documents and all copies thereof,
made, composed or received by the Executive, solely or jointly with others,
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that are in the Executive's possession, custody, or control at termination and
that are related in any manner to the past, present, or anticipated business of
the Corporation, its Subsidiaries. In this regard, the Executive hereby grants
and conveys to the Corporation all right, title and interest in and to,
including without limitation, the right to possess, print, copy, and sell or
otherwise dispose of, any reports, records, papers, summaries, photographs,
drawings or other documents, and writings, and copies, abstracts or summaries
thereof, that may be prepared by the Executive or under the Executive's
direction or that may come into the Executive's possession in any way during the
term of the Executive's employment, with the Corporation that relate in any
manner to the past, present or anticipated business of the Corporation.
(e) Executive acknowledges that, while the damages that may be suffered by
the Corporation in the event of a violation of this Section 10 would likely be
substantial, they would be difficult to estimate or calculate. Executive
therefore agrees that, in addition to any without limitation of other remedies
that may be available to the Corporation upon Executive's breach of this Section
10, in the event Executive breaches this Section 10, notwithstanding any other
provision of this Agreement: (a) the Corporation may recover as liquidated
damages, and not as a penalty, any Severance Benefits previously paid to
Executive hereunder; (b) the Corporation will have no obligation to pay
Executive any Severance Benefits hereunder; and (c) the provisions of Section 4
shall no longer apply to any Stock Options; provided, however, that the
provisions of this Section 10(e) shall not impair the right of the Executive to
receive any qualified or nonqualified retirement plan benefits to which he is
entitled on the Termination Date.
(f) Despite the prior provisions of this Section 10, if any covenant or
agreement contained therein, or any part thereof, is held by an arbitrator or
court of competent jurisdiction to be unenforceable because of the duration of
such provision or the geographic area covered thereby, the tribunal making such
determination shall have the power to reduce the duration or geographic area of
such provision and, in its reduced form, such provision shall be enforceable.
11. Arbitration. Except as otherwise explicitly provided in this Agreement,
the method for resolving any dispute arising out of this Agreement shall be
binding arbitration in accordance with this Section 11. Except as provided
otherwise in this Section, arbitration pursuant to this Section shall be
governed by the Commercial Arbitration Rules of the American Arbitration
Association. A party wishing to obtain arbitration of an issue shall deliver
written notice to the other party, including a description of the issue to be
arbitrated. Within 15 days after either party demands arbitration, the
Corporation and the Executive shall each appoint an arbitrator. Within 15
additional days, these two arbitrators shall appoint the third arbitrator by
mutual agreement; if they fail to agree within this 15 day period, then the
third arbitrator shall be selected promptly pursuant to the rules of the
American Arbitration Association for Commercial Arbitration. The arbitration
panel shall hold a hearing in Columbus, Ohio, within 90 days after the
appointment of the third arbitrator. The fees and expenses of the arbitrator,
and any American Arbitration Association fees, shall be paid by the Corporation.
Both the Corporation and the Executive may be represented by counsel and may
present testimony and other evidence at the hearing. Within 90 days after
commencement of the hearing, the arbitration panel will issue a written
decision; the majority vote of two of the three arbitrators shall control. The
Executive shall be entitled to seek specific performances of the Executive's
rights under this Agreement during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
12. Employment Rights. This Agreement sets forth the Severance Benefits
payable to the Executive in the event the Executive's employment with the
Corporation is terminated under certain conditions specified in Section 3. This
Agreement is not an employment contract nor shall it confer upon the Executive
any right to continue in the employ of the Corporation or its Subsidiaries and
shall not in any way affect the right of the Corporation or its Subsidiaries to
dismiss or otherwise terminate the Executive's employment at any time with or
without cause.
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13. Arrangements Not Exclusive. The specific benefit arrangements referred
to in this Agreement are not intended to exclude the Executive from
participation in or from other benefits available to executive personnel
generally or to preclude the Executive's right to other compensation or benefits
as may be authorized by the Board at any time. The provisions of this Agreement
and any payments provided for hereunder shall not reduce any amounts otherwise
payable, or in any way diminish the Executive's existing rights, or rights which
would accrue solely as the result of the passage of time under any compensation
plan, benefit plan, incentive plan, stock option plan, employment agreement, or
other contract, plan, or arrangement except as may be specified in such
contract, plan, or arrangement. Notwithstanding anything to the contrary in this
Section 13, the Severance Benefits provided in Section 4 are in lieu of any
benefits to which the Executive would be entitled following the termination of
his or her employment pursuant to any Employment Agreement.
14. Termination. Except for termination of employment described in Section
3, this Agreement shall terminate if the employment of the Executive with the
Corporation shall terminate prior to a Change in Control.
15. Successors; Binding Agreements. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. The Executive's rights and benefits under this Agreement
may not be assigned, except that if the Executive dies while any amount would
still be payable to the Executive hereunder if the Executive had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement, to the beneficiaries designated by
the Executive to receive benefits under this Agreement in a writing on file with
the Corporation at the time of the Executive's death or, if there is no such
beneficiary, to the Executive's estate. The Corporation will require any
successor (whether direct or indirect, by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business and/or assets of the
Corporation (or of any division or Subsidiary thereof employing the Executive)
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that the Corporation would be required to perform it if no
such succession had taken place. Failure of the Corporation to obtain such
assumption and agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle the Executive to compensation
from the Corporation in the same amount and on the same terms to which the
Executive would be entitled hereunder if the Executive terminated employment for
Good Reason following a Change of Control.
16. No Vested Interest. Neither the Executive nor the Executive's
beneficiaries shall have any right, title, or interest in any benefit under this
Agreement prior to the occurrence of the right to the payment of such benefit.
17. Notice. 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 delivered personally or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed to
the such addresses as each party may designate from time to time to the other
party in writing in the manner provided herein. Unless designated otherwise
notices to the Corporation should be sent to the Corporation at:
Oak Hill Financial, Inc.
Attn: Chairman of the Board
00000 Xxx. 00
Xxxxxxx, Xxxx 00000
Until designated otherwise, notices shall be sent to the Executive at the
address indicated on the Beneficiary Designation and Notice form attached hereto
as Exhibit A. If the parties by mutual agreement supply each other with
telecopier numbers for the purposes of providing notice by facsimile, such
notice shall also be proper
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notice under this Agreement. Notice sent by certified or registered mail shall
be effective two days after deposit by delivery to the U.S. Post Office.
18. Savings Clause. If any payments otherwise payable to the Executive
under this Agreement are prohibited or limited by any statute or regulation in
effect at the time the payments would otherwise be payable, including, without
limitation, any regulation issued by the Federal Deposit Insurance Company (the
"FDIC") that limits executive change of control payments that can be made by an
FDIC insured institution or its holding company if the institution is
financially troubled (any such limiting statute or regulation a "Limiting
Rule"):
(a) Corporation will use its best efforts to obtain the consent of the
appropriate governmental agency (whether the FDIC or any other agency) to
the payment by Corporation to the Executive of the maximum amount that is
permitted (up to the amounts that would be due to the Executive absent the
Limiting Rule); and
(b) the Executive will be entitled to elect to have apply, and
therefore to receive benefits directly under, either (i) this Agreement (as
limited by the Limiting Rule) or (ii) any generally applicable Corporation
severance, separation pay, and/or salary continuation plan that may be in
effect at the time of the Executive's termination.
Following any such election, the Executive will be entitled to receive benefits
under this agreement or plan elected only if and to the extent the agreement or
plan is applicable and subject to its specific terms.
19. Amendment; Waiver. This Agreement may not be amended or modified and no
provision may be waived unless such amendment, modification, or waiver is agreed
to in writing and signed by the Executive and the Corporation.
20. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
21. Prior Executive Agreements. This Agreement supersedes any and all prior
Executive Agreements between the Corporation (or any predecessor of the
Corporation) and the Executive and no payments or benefits of any kind shall be
made under, on account of, or by reference to the prior Executive Agreements.
22. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
23. Governing Law. Except as otherwise provided, this Agreement shall be
governed by the laws of the State of Ohio, without giving effect to any conflict
of law provisions.
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the day and
year written above.
CORPORATION:
------------
Oak Hill Financial, Inc.
April 30, 2004 By: /s/: Xxxx X. Xxxx
-------------- -------------------------
Date Chairman
EXECUTIVE:
----------
/s/: Xxxxx X. Xxxxxxx, Xx.
-----------------------------
Xxxxx X. Xxxxxxx, Xx.
Before me, a Notary Public for the State of Ohio, appeared the above named Xxxx
X. Xxxx and Xxxxx X. Xxxxxxx, Xx., who acknowledged and signed the foregoing
instrument and their signing was their free act.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my seal
this 30th day of April, 2004.
/s/: Xxxx X. Xxxxxx
--------------------
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Exhibit A
Beneficiary Designation and Notice Form
Beneficiary Designation
In the event of my death, I direct that any amounts due me under the
Agreement to which this Beneficiary Designation is attached shall be distributed
to the person designated below. If no beneficiary shall be living to receive
such assets they shall be paid to the administrator or executor of my estate.
Notice
Until notified otherwise, pursuant to Section 17 of the Agreement, notices
should be sent to me at the following address
000 Xxxxxxxxxx Xxxxx
--------------------
Xxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxx 00000
------------------------
City, State and Zip Code
April 30, 2004 /s/:Xxxxx X. Xxxxxxx, Xx.
--------------- -------------------------
Date Xxxxx X. Xxxxxxx, Xx.
/s/: Xxxxx X. Xxxxxxx
-------------------------
Beneficiary
Spouse
-------------------------
Relationship to Executive
Xxxxx X. Xxxxxxx, Xx. appeared before me and signed the foregoing
instrument.
/s/: Xxxx X. Xxxxxx
--------------------
Notary Public for the State of Ohio
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