EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "Agreement") is entered into to
be effective as of January 11, 2005 by and among FC Banc Corp., a bank holding
company ("FC Banc"), The Farmers Citizens Bank, an Ohio-chartered, FDIC-insured
bank with its main office in Bucyrus, Ohio (the "Bank") (collectively, the
"Employer"), and Xxxxxxx Xxxxxxxxxx, a natural person ("Employee"). Employer and
Employee are sometimes collectively referred to herein as the "Parties" and each
individually as a "Party."
RECITALS
Employee desires to be employed by Employer to serve as the President of
FC Banc and Chief Executive Officer of the Bank, and Employer desires for
Employee to so serve, subject to the terms and conditions hereinafter set forth.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements hereinafter set forth, the Parties hereby agree as follows:
1. EMPLOYMENT. FC Banc hereby employs Employee as its President and the
Bank hereby employs Employee as its Chief Executive Officer, or in each case as
an officer with a title of equal or higher ranking as may be determined by
Employer from time to time, and Employee hereby accepts such employment, for the
period of time and upon the terms and conditions hereinafter set forth. Employee
shall report directly to the respective Boards of Directors of Employer, or to
such other persons or committees designated from time to time by such Boards of
Directors, and shall perform such duties and responsibilities consistent with
his position (which duties and responsibilities shall include those set forth in
Exhibit A) as shall be assigned to him by the Boards of Directors (or any
committee(s) thereof) of Employer, or either of them, from time to time. If and
when nominated and elected to the respective Boards of Directors of Employer
during the term of this Agreement, Employee shall serve as a director thereof;
provided further that Employee unconditionally agrees to resign as a director of
Employer and all affiliates of Employer immediately upon the termination (for
any reason) of this Agreement. Employee shall comply with Ohio Revised Code
Section 1115.03 with regard to qualification as a director. Employee shall not
be entitled to receive any compensation or benefits in connection with or
resulting from such service, including service on any committee of directors.
2. STANDARD OF PERFORMANCE. Employee shall faithfully perform the duties
and responsibilities assigned to him pursuant to this Agreement. Employee agrees
to abide by Employer's rules, regulations, policies and practices as they are
presently in force and as they may be revoked, adopted or modified at any time
and from time to time during the term of this Agreement.
3. TIME DEVOTED TO EMPLOYER. Employee shall devote full time and effort
exclusively on behalf of Employer and shall competently, diligently and
effectively discharge
Employee's duties hereunder, except that to the extent not prohibited by Section
11, Employee shall be permitted to serve on the Board of Directors of any other
business organization or to serve on the Board of Trustees of any charitable
organization (but only in each case to the extent specifically approved in
advance by Employer's Boards of Directors, or either of them), and Employee
shall not be prohibited from engaging in such personal, charitable or other
non-employment activities as do not materially interfere with Employee's full
time employment hereunder and which do not violate the other provisions of this
Agreement. The determination by Employer's Boards of Directors (or either of
them) that any such personal, charitable or other non-employment activities
materially interfere with Employee's full time employment hereunder, or violate
any other provisions of this Agreement, shall be conclusive and binding upon
Employee.
4. COMPENSATION. As compensation for all services rendered to Employer by
Employee pursuant to this Agreement, in whatever capacity rendered, during the
term of this Agreement, the Bank shall pay to Employee such base compensation
(the "Base Compensation") as shall be determined from time to time by the Bank's
Board of Directors or by the Compensation Committee thereof, in its sole
discretion, plus the incentive compensation calculated in accordance with
Exhibit B attached hereto and incorporated herein by this reference (the
"Incentive Compensation") (the Base Compensation and the Incentive Compensation
hereinafter are referred to collectively as the "Compensation"). The Base
Compensation shall be payable to Employee in accordance with the then current
payment policies of the Bank for its employees. During the twelve (12) month
period ending December 31, 2005, the Base Compensation shall be $110,000 per
annum, and the Bank's Board of Directors (or the Compensation Committee thereof,
as appropriate) shall review and consider adjustments to Employee's Base
Compensation not less frequently than once annually thereafter. The Parties
understand and agree that the obligation to pay the Compensation to Employee for
all services rendered by him to Employer pursuant to this Agreement (as well as
the obligation to pay business expenses and to provide benefits under Sections 5
and 6 hereof, other than the granting of the Options under Section 6(C)) is the
sole obligation of the Bank, and that FC Banc shall not have any obligation to
pay any Compensation, or to provide such other benefits (other than the granting
of the Options under Section 6(C)), to Employee.
5. BUSINESS EXPENSES. The Bank shall pay or cause to be paid directly, or
reimburse Employee for, all legitimate business expenses to the extent such
expenses are paid or incurred by Employee during the term of this Agreement in
accordance with the policies of Employer in effect from time to time and to the
extent such expenses are reasonable and necessary to the conduct by Employee of
Employer's business. The determination of whether any specific business expenses
are legitimate, reasonable and necessary, and in accordance with the policies of
Employer, shall be made in the sole discretion of the Bank.
6. BENEFITS. During the term of this Agreement, and in addition to the
Compensation to be paid pursuant to Section 4 of this Agreement, Employee shall
be entitled to receive the following benefits:
(A) The benefits which are made available by the Bank generally to
its full time employees from time to time, which presently are the benefits
described in the Bank's
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"Schedule of Benefits" previously delivered to Employee; provided further, that
the Bank also shall pay on Employee's behalf Employee's portion of all health
insurance premiums payable under Employer's health insurance benefit plan as in
effect from time to time. Employee understands and agrees that the Bank may
amend or supersede its Schedule of Benefits from time to time and at any time,
and that during the term of this Agreement Employee shall be entitled only to
such benefits as are described in the Bank's then current "Schedule of Benefits"
as so amended or superseded from time to time.
(B) Beginning January 1, 2003, an automobile allowance of Eight
Hundred Fifty ($850) Dollars per month.
(C) Stock options as described on Exhibit C attached hereto and
incorporated herein by this reference (the "Options") which will be subject to
and governed by the provisions of FC Banc Corp. 1997 Stock Option and Incentive
Plan (the "Stock Option Plan"), as the same may be amended from time to time;
provided further that the parties understand and agree that the grant of the
Options shall be subject to the authorization and approval of the committee of
FC Banc's Board of Directors which is authorized to make such awards pursuant to
the Stock Option Plan.
7. TERM. This Agreement shall become effective on the date first written
above and shall continue in force until terminated in accordance with Section 8.
Employee's employment with Employer pursuant to this Agreement shall terminate
concurrently with the termination of this Agreement, and this Agreement shall
terminate concurrently with the termination of Employee's employment hereunder.
8. TERMINATION.
(A) This Agreement shall terminate automatically upon the death or
permanent disability of Employee; provided, however, that, in the event of the
permanent disability of Employee, this Agreement shall not terminate until
Employee has received all material benefits for sick or vacation leave to which
Employee is entitled under this Agreement. For purposes of this Agreement,
"permanent disability" shall have the same meaning as it has in the Bank's long
term disability policy then in effect.
(B) This Agreement may terminate at any time upon the mutual
agreement of Employer and Employee.
(C) Employer may terminate this Agreement at any time, for Cause,
immediately upon written notice of termination to Employee, unless a later
termination date is specified in the notice. For the purposes of this Agreement,
a termination for "Cause" shall include termination by reason of Employee's
personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty,
failure to perform stated duties, violation of any law, rule, or regulation
(other than traffic violations or similar offenses) or cease-and-desist order,
engagement in activities or conduct injurious to the reputation or business of
Employer, or
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material breach of any provision of this Agreement; provided, however, that
during the twelve (12) month period following a Change of Control (as defined in
Section 9), "Cause" for termination shall exist only if Employee (1) is
convicted of, or pleads guilty to, a felony or any act amounting to
embezzlement, fraud, or theft or involving moral turpitude (whether or not
against Employer or another employee); (2) commits a breach of a fiduciary duty
involving personal gain or profit; (3) willfully fails to perform his stated
duties; (4) willfully violates any law, rule or regulation (other than traffic
violations or similar offenses) or a cease-and-desist order; (5) willfully
engages in conduct demonstrably and materially injurious to the goodwill and
reputation of Employer; or (6) commits a material breach of any provision of
this Agreement and does not cure such breach within ten (10) days after written
notice of such breach is provided to him by Employer.
(D) Employer may terminate this Agreement at any time, without
Cause, immediately upon written notice of termination to Employee, unless a
later termination date is specified in the notice.
(E) Employee may terminate this Agreement (in the absence of Cause)
at any time upon thirty (30) days written notice to Employer. Employer may, in
its sole discretion, place Employee on administrative leave (and bar Employee
from the premises of Employer) during the pendency of the thirty (30) day notice
period.
(F) Employee may terminate this Agreement (in the absence of Cause)
for Good Reason (as defined in Section 9) at any time within the twelve (12)
month period following the occurrence of a Change of Control (as defined in
Section 9) upon ten (10) days written notice to Employer. Employer may, in its
sole discretion, place Employee on administrative leave (and bar Employee from
the premises of Employer) during the pendency of the ten (10) day notice period.
Any notice delivered by Employee pursuant to this Section 8(F) must reference
this Section 8(F) and state with specificity the nature of the "Good Reason"
claimed by Employee.
9. CHANGE OF CONTROL. (A) A Change of Control shall be deemed to have
occurred if there is:
(1) A purchase or other acquisition by any person, entity or
group of persons (within the meaning of section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended ("the Exchange Act")
or any comparable successor provisions), directly or indirectly,
which results in the beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of such person,
entity or group of persons equaling 50% or more of the combined
voting power of the then outstanding voting securities of FC Banc
entitled to vote generally in the election of directors ("Voting
Securities"); excluding, however, any acquisition (i) by FC Banc or
any person controlled by FC Banc or the Board of Directors of FC
Banc, (ii) by any employee benefit plan or related trust sponsored
or maintained by FC Banc, (iii) by Employee or (iv) by another group
including Employee, but only if Employee and other executives of FC
Banc control such group;
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(2) A change, within any rolling two-year period beginning
with any date on or after the effective date of this Agreement, in
the composition of the Board such that the individuals who
constitute the Board (the "Incumbent Board") at the beginning of
such rolling period cease for any reason to constitute at least a
majority of the Board; provided, however, that for purposes of this
definition, any individual who becomes a member of the Board after
the effective date of this Agreement, whose election, or nomination
for election, by FC Banc's security-holders was approved by a vote
of at least a majority of those individuals who are members of the
Board and who were also members of the Incumbent Board shall be
considered as though such individual were a member of the Incumbent
Board; and provided, further however, that any such individual whose
initial assumption of office occurs as a result of or in connection
with either an actual or threatened election contest (as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of any person other than the Board shall
not be so considered as a member of the Incumbent Board;
(3) A merger, reorganization or consolidation to which FC Banc
is a party or a sale or other disposition of all or substantially
all of the assets of FC Banc (each, a "Corporate Transaction");
excluding however, any Corporate Transaction pursuant to which (i)
persons who were security holders of FC Banc immediately prior to
such Corporate Transaction do (solely because of their Voting
Securities owned immediately prior to Corporate Transaction) own
immediately thereafter more than 50 percent of the combined voting
power entitled to vote in the election of directors of the then
outstanding securities or the company surviving the Corporate
Transaction and (ii) individuals who constitute the Incumbent Board
will immediately after the consummation of the Corporate Transaction
constitute at least a majority of the members of the board of
directors of the company surviving such Corporate Transaction; or
(4) Approval by the security-holders of FC Banc of a plan of
complete liquidation or dissolution of FC Banc -
provided however, that notwithstanding anything herein to the contrary, it is
the intent of the Parties that any merger or other form of combination, whether
by acquisition of securities or sale of assets or otherwise that is declared by
the Incumbent Board to be a combination "of equals" pursuant to which persons
who comprise the Incumbent Board immediately before such combination will
comprise not less than 50 percent of the Board of Directors of the resulting
entity after consummation of the combination shall not be a "Change of Control".
(B) "Good Reason" shall exist, in the absence of Cause, if, during
the twelve month period following the occurrence of any Change of Control:
(1) Employer commits a material breach of any provision of this
Agreement and
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does not cure such breach within ten (10) days after written notice
of such breach is provided to Employer by Employee;
(2) Employee is assigned, without Executive's consent, duties or
responsibility materially inconsistent with the duties and
responsibilities contemplated by Exhibit A of this Agreement;
(3) There is a reduction or material delay in payment of Employee's
Base Compensation as in effect on the date of the Change of Control;
(4) Employee is required to reside or travel outside of the Bucyrus,
Ohio area, other than on travel reasonably required to carry out
Employee's obligations under this Agreement.
10. POST-TERMINATION COMPENSATION AND BENEFITS.
(A) In the event that this Agreement is terminated pursuant to
Section 8(A) (by reason of Employee's death or disability), Employee shall be
entitled to receive and the Bank shall cause to be paid to Employee any earned
but unpaid Base Compensation through the effective date of termination. Such
payment(s) shall be in addition to any benefits that Employee (or in the case of
Employee's death, Employee's beneficiaries) shall be entitled to under any
policy of life or disability insurance, if any, then maintained by the Bank for
Employee's benefit under Section 6(A).
(B) In the event that this Agreement is terminated pursuant to
Section 8(B) (by mutual agreement of the Parties), pursuant to Section 8(C) (by
Employer for Cause), or pursuant to Section 8(E) (by Employee), Employee shall
be entitled to receive and the Bank shall cause to be paid to Employee any
earned but unpaid Base Compensation through the effective date of termination.
(C) (1) In the event that this Agreement is terminated pursuant to
Section 8(D) (by Employer without Cause), other than during the twelve (12)
months following a Change of Control, Employee shall be entitled to receive and
the Bank shall cause to be paid to Employee any earned but unpaid Base
Compensation through the effective date of termination and an amount equal to
twelve (12) months of Employee's then current Base Compensation (the "Severance
Amount"). Subject to all the terms and conditions of this Agreement, the
Severance Amount shall be payable by the Bank in one lump sum payment within
sixty (60) days after the date of termination of this Agreement.
(2) In the event that this Agreement is terminated pursuant to
Section 8(D) (by Employer without Cause) during the twelve (12) months following
a Change of Control, or pursuant to Section 8(F) (by Employee for Good Reason
during the twelve (12) months following a Change of Control), Employee shall be
entitled to receive and the Bank shall cause to be paid to Employee any earned
but unpaid Base Compensation through the effective date of termination and an
amount equal to twenty four (24) months of Employee's then current Base
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Compensation (the "Change of Control Severance Amount"). Subject to all the
terms and conditions of this Agreement, the Change of Control Severance Amount
shall be payable by the Bank in one lump sum payment within sixty (60) days
after the date of termination of this Agreement.
(D) In the event that this Agreement is terminated pursuant to any
provision of Section 8 (other than pursuant to Section 8(C) (by Employer for
Cause)), Employee also shall be entitled to receive continued benefits under
Section 6(A) and 6(B) through the 120th day after such termination. In the event
that this Agreement is terminated pursuant to Section 8(C) (by Employer for
Cause), Employee shall not be entitled to receive continued benefits under
Section 6 after the date of termination, except as may be expressly required by
law or under the terms of any benefit plans in which Employee participates
pursuant to Section 6(A).
(E) In the event that this Agreement is terminated pursuant to any
provision of Section 8, Employee shall be entitled to receive any unpaid
Incentive Compensation only if and to the extent provided for in Exhibit B.
(F) Notwithstanding the foregoing provisions of this Section 10, no
amount shall be payable under this Section 10 other than any earned but unpaid
Base Compensation through the date of termination unless Employee (1) executes a
general release (in form and containing provisions reasonably required by
Employer) (i) releasing all known and unknown claims Employee may have against
Employer or any persons affiliated with Employer and (ii) agreeing not to
prosecute any legal actions or other proceeding based upon any such claims; (2)
immediately upon termination, resigns as a director of Employer and of all
affiliates thereof; and (3) complies fully with Sections 11 and 12 hereof.
Additionally, notwithstanding the foregoing provisions of this Section 10, no
amount shall be payable under this Section 10 other than any earned but unpaid
Base Compensation through the date of termination in the event that Employer is
prohibited from paying such amount without regulatory approval, unless and until
such approval is received.
(G) Notwithstanding anything in this Agreement or otherwise to the
contrary, in the event Employee is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of Employer by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
Section 1818(e)(3) and (g)(1), Employer's obligations under this Agreement shall
be suspended as of the date of service thereof unless stayed by appropriate
proceedings. If the charges contained in such notice are subsequently dismissed,
Employer will (i) pay to Employee all or part of the compensation withheld while
its obligations under this Agreement were suspended, and (ii) reinstate (in
whole or part) any of its obligations which were suspended.
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(H) Notwithstanding anything in this Agreement or otherwise to the
contrary, if the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act, 12 U.S.C. Section 1813(x)(1)), all obligations
under this Agreement shall terminate as of the date of default, but this
subparagraph shall not affect any vested rights of Employee or Employer under
this Agreement.
(I) Notwithstanding anything in this Agreement or otherwise to the
contrary, all obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary to the
continued operation of Employer, (i) by the Director of the Federal Deposit
Insurance Corporation or his or her designee (the "Director"), at the time the
Federal Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in Section
13(c) of the Federal Deposit Insurance Act, or (ii) by the Director at the time
the Director approves a supervisory merger to resolve problems related to
operation of the Bank or when the Bank is determined by the Director to be in an
unsafe or unsound condition; provided, however, that any rights of Employee that
have already vested shall not be affected by such action.
11. NON-COMPETITION. (A) For the benefit of Employer, Employee agrees that
during the term of this Agreement and for a period beginning on the date of
termination of this Agreement and ending twelve (12) months thereafter, Employee
will not:
(1) engage or participate, directly or indirectly, either as
principal, agent, employee, employer, consultant, director,
shareholder (except as the holder of not more than two percent (2%)
of the shares of any publicly traded corporation) or in any other
individual or representative capacity whatsoever, in the operation,
management or ownership of any state or federally chartered
financial institution (or holding company or affiliates thereof)
engaged in a business in direct competition with the business of
Employer (or any business proposed to be conducted by Employer at
the time of such termination of employment) within the State of
Ohio; or
(2) directly or indirectly, alone or in conjunction with or on
behalf of any other person, solicit, divert, take away or endeavor
to take away from Employer any person which was or is a customer,
account or employee of Employer as of the date of Employee's
termination of employment with Employer or at any time during the
six months prior to the date thereof; provided, however, nothing
herein shall prohibit an Employee from ceasing to be, and causing
such Employee's immediate family members to cease to be, customers
of Employer.
For the purposes of Section 11(A)(1), a financial institution shall be deemed to
be in direct competition with the business of Employer if its main office, or
one or more branch offices or
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loan production offices, is located in the State of Ohio.
(B) The Parties acknowledge and agree that it is not the intention
of this Section 11 to prohibit (and this Section 11 shall not be interpreted to
prohibit) Employee from engaging or participating in the operation, management,
or ownership of a financial institution (or holding company or affiliate
thereof) following termination of this Agreement so long as such financial
institution (or holding company or affiliate thereof) does not compete with
Employer in Ohio during such twelve (12) month restriction period. Upon request,
Employer shall provide Employee with a written statement confirming whether any
specified financial institution (or holding company or affiliate thereof) is in
competition with Employer within the meaning of this Section 11; provided,
however, that any good faith determination made by the Board of Directors of
Employer as to what constitutes a violation of this Section 11 shall be binding
upon Employee.
(C) In the event of a violation of this Section 11, the applicable
time periods provided in Section 11(A) above shall be tolled during the time of
such violation. No waiver of the provisions of this Section 11 shall be
effective unless made in writing and signed by Employer.
12. CONFIDENTIAL INFORMATION. (A) As used herein, the term "Confidential
Information" includes all "trade secrets" as that term is used in Sections
1333.61 through 1333.69 of the Ohio Revised Code, as amended, or any successor
provision thereto and all other information and materials belonging to, used by,
or in the possession of Employer: (1) which have been disclosed or made known
to, or have come into the possession of, Employee as a consequence of or through
Employee's relationship with Employer prior to or after the date hereof; (2)
which are related to the existing or proposed shareholders, customers,
providers, agents, accountholders, business strategies or policies, financial or
sales results, sales and management techniques, marketing plans, research or
development, reports, records, software, systems, source or object code,
software documentation or instruction or user manuals, and specifically
including names, addresses and other information relative to customers or
accountholders of Employer; and (3) which have not generally been made available
to the public by Employer pursuant to a specific authorization in the ordinary
course of business or otherwise published and released by Employer to the
general public. The term "Confidential Information" also shall include all trade
secrets and confidential and proprietary information of any third party
(including any third party with whom Employer proposes to enter into a business
combination), whether in written or oral, tangible or intangible form, which
have been disclosed to any of Employer pursuant to an agreement to maintain the
confidentiality of such information. Notwithstanding the foregoing, Employee may
release Confidential Information if (l) required by law; (2) necessary to
establish a lawful claim or defense against any of Employer; (3) necessary to
establish a lawful claim or defense against a person other than Employer, but
only with the written permission, which shall not be unreasonably withheld, of
Employer; or (4) necessary to respond to an appropriate governmental inquiry,
but then in each case only with prior written notice to Employer.
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(B) In addition to Employee's obligations under Section 11, Employee
agrees that:
(1) Employee will, during the term of this Agreement and at all
times thereafter, safeguard all Confidential Information and, except
as specifically permitted herein, Employee will never disclose or
use for any purpose or benefit (other than for the purpose or
benefit of Employer) any Confidential Information;
(2) Except in connection with the ordinary course of Employer's
business during the term of this Agreement, Employee will not,
either during the term of this Agreement or at any time thereafter,
directly or indirectly, disclose, disseminate or otherwise make
known or provide any Confidential Information, whether in original
form or in duplicated or copied form or extracts therefrom, and
whether orally or in writing, to any person, unless Employer shall
have given prior written consent thereto;
(3) Except in connection with the ordinary course of the business of
Employer during the term of this Agreement, Employee will not,
either during the term of this Agreement or at any time thereafter,
remove any Confidential Information from the premises of Employer
either in original form or in duplicated or copied form or extracts
therefrom;
(4) Upon termination of this Agreement, Employee will immediately
surrender to Employer, without request, all Confidential
Information, whether in original or duplicated or copied form or
extracts therefrom; and
(5) Employee will be bound by and comply with the terms of any
confidentiality agreement entered into by Employer pursuant to which
Employer agrees to maintain the confidentiality of confidential
information of a third party.
13. REASONABLENESS OF RESTRICTIONS. Employee acknowledges that the
restrictions in Sections 11 and 12 of this Agreement are reasonable. If any
provision of this Agreement is determined to be invalid, illegal or otherwise
unenforceable to its full extent, or if any such restriction is found by a court
of competent jurisdiction to be unreasonable under applicable law, then such
restriction shall be enforced to the maximum extent permitted by law, and the
Parties consent and agree that such scope of protection, time or geographic area
(or any one of them, as the case may be) shall be considered amended in whatever
manner considered reasonable by such court and may be judicially modified
accordingly in any proceeding brought to enforce such restriction. Employee
acknowledges that the validity, legality and enforceability of the other
provisions shall not be affected thereby. Employee acknowledges and confirms
that,
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without limitation of any remedies for breach of such covenant, Employer shall
be entitled to temporary and permanent injunctive relief.
14. REMEDIES. Employee acknowledges that the Confidential Information
disclosed to Employee prior to and during the term of this Agreement is of a
special, unique and extraordinary character. Employee further acknowledges that:
(A) any breach of Sections 11 or 12 of this Agreement will cause Employer
irreparable injury and damage, and consequently Employer shall be entitled, in
addition to all other remedies available to Employer, to injunctive and
equitable relief to prevent or cease a breach of Sections 11 or 12 without
further proof of harm and entitlement; (B) the terms of this Agreement, if
enforced by Employer, will not unduly impair Employee's ability to earn a living
or pursue his vocation; and (C) Employer may withhold compensation and benefits,
including severance benefits, if any, if Employee fails to comply with this
Agreement, without restricting Employer from other legal and equitable remedies.
15. NO CONFLICTS. Employee represents and warrants to Employer that (A)
Employee's performance of this Agreement has not, does not and will not breach
any other agreement to which Employee is or was a party and which requires
Employee to keep any information in confidence or in trust; (B) Employee has not
entered into, and will not enter into, any agreement, either written or oral, in
conflict herewith; (C) Employee has not brought to Employer, nor will Employee
use in the performance of his employment responsibilities with Employer, any
proprietary materials or documents of a former employer that are not generally
available to the public, unless Employee has obtained express written
authorization from such former employer for their possession and use; (D)
Employee has delivered to Employer a true and correct copy of any employment,
proprietary information, confidentiality or non-competition agreement to which
Employee is or was a party, which remains or may remain in effect as of the date
of Employee's first employment by Employer; and (E) Employee has not and will
not breach any obligation of confidentiality that Employee may have to former
employers and Employee shall fulfill all such obligations during Employee's
employment with Employer.
16. WITHHOLDING. Employer may withhold from any payments to be made
hereunder such amounts as it may be required or permitted to withhold under
applicable federal, state or other law, and transmit such withheld amounts, as
appropriate, to appropriate taxing authorities.
17. WAIVER. The waiver by any Party of any breach or violation of any
provision of this Agreement by the other Party shall not operate as or be
construed to be a waiver of any subsequent breach by such waiving Party.
18. NOTICES. Any and all notice required or permitted to be given under
this Agreement will be sufficient and deemed effective either upon receipt (if
personally delivered) or three (3) days following deposit in the U.S. Mail if
furnished in writing and sent by certified mail, if to Employee at the last
known address provided to Employer by Employee, and if to Employer at:
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Board of Directors
The Farmers Citizens Bank and FC Banc Corp.
X.X. Xxx 000
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxx, 00000
Either Party may designate a different address for notice purposes by written
notice to the other Party.
19. GOVERNING LAW; ARBITRATION. (A) This Agreement shall be interpreted,
construed and governed in accordance with the laws of the State of Ohio. Each
Party consents and agrees that the proper, convenient and exclusive venue for
any legal proceedings in state or federal court relating to this Agreement is
Xxxxxxxx County, Ohio, the location of the principal place of business of
Employer, and each Party waives any defense, whether asserted by motion or
pleading, that Xxxxxxxx County, Ohio, is an improper or inconvenient venue.
(B) If a dispute arises concerning this Agreement and the Parties do
not resolve it through informal means, the parties shall submit their dispute to
mediation in accordance with the Commercial Mediation Rules of the American
Arbitration Association if they can agree to do so, otherwise to formal
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association; provided that if the Parties begin in mediation, any
party to the dispute may require arbitration at any time upon written notice in
accordance with the Commercial Arbitration Rules; further provided that the
arbitration of any dispute arising under the Federal Age Discrimination in
Employment Act of 1967, as amended, the Federal Civil Rights Acts of 1866, 1870,
1871, 1964, 1972, 1988, and 1991, the Americans With Disabilities Act of 1990,
as amended (the "Federal Acts"), shall be conducted under the Federal
Arbitration Act.
(C) To the extent permitted by applicable law, arbitration
proceedings shall be conducted by three arbitrators in Bucyrus, Ohio. Employer
and Employee shall each select one arbitrator and the two arbitrators shall
select a third. Without limitation of their general authority, the arbitrators
shall have the right to order reasonable discovery in accordance with the Ohio
Rules of Civil Procedure. Their final decisions shall be binding and enforceable
without further legal proceedings in court or otherwise, provided that any party
may enter judgment upon the award in any court having jurisdiction. The final
decision arising from arbitration shall be accompanied by a written opinion and
decision which shall describe the rationale underlying the award and shall
include findings of fact and conclusions of law.
(D) The Parties to any mediation or arbitration proceeding shall
share the costs of the proceeding equally, provided that each party shall be
responsible for its own attorneys fees unless the arbitrators determines that it
would be just and equitable to assess all or part of a party's attorneys fees
against the other party.
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(E) All Parties shall have a duty to participate in mediation or
arbitration proceedings in good faith and in a manner that ensures that all such
proceedings shall proceed with all due haste.
(F) Notwithstanding any provision of this Section 19, the
requirement to mediate or arbitrate disputes under this Section 19 shall not
apply to any action for equitable relief with respect to Section 11 or Section
12 of this Agreement or any other injunctive or equitable relief sought by any
Party in the context of a bona fide emergency or prospective irreparable harm.
(G) Notwithstanding any provision of this Section 19, the parties
consent to the jurisdiction of the United States District Court located in or
closest to Xxxxxxxx County, Ohio for the entry and enforcement of judgment upon
any arbitration award rendered in connection with any Federal Act.
20. AMENDMENT. This Agreement may be amended only by an agreement in
writing executed by the Parties.
21. SECTION HEADINGS; CONSTRUCTION. Paragraph headings contained in this
Agreement are for convenience only and shall not be considered in construing any
provision hereof. As used in this Agreement, the term "including" shall mean
"including without limitation," and references to any law shall include
reference to all statutes and rules and regulations adopted thereunder. As used
in this Agreement, the term "person" shall be broadly construed to mean any
natural person, corporation, partnership, limited liability corporation,
unincorporated association, or other person or entity of any kind. Whenever in
this Agreement the Employer (or the Board(s) of Directors or committee(s)
thereof of Employer) is permitted or required to make a determination, take an
action, give a notice, exercise a right or do any other thing, the
determination, action, notice, exercise, or doing of a thing by either FC Banc
or the Bank (or the Board of Directors, or a committee thereof, of either FC
Banc or the Bank) shall, as between Employer and Employee and for all purposes
under this Agreement, constitute the determination, action, notice, exercise or
doing of a thing by Employer. The Parties participated jointly in the
negotiation and drafting of this Agreement. In the event any ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring either Party by virtue of the authorship of any of
the provisions of this Agreement.
22. ASSIGNMENT. This Agreement is personal to Employee and Employee may
not assign or delegate any of Employee's rights or obligations hereunder.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the respective Parties, their heirs, executors, administrators,
successors and assigns.
23. ENTIRE AGREEMENT; EMPLOYEE HANDBOOK. This Agreement contains the
entire understanding of the Parties with respect to the subject matter of this
Agreement. Notwithstanding the foregoing, however, Employee shall be subject to
and comply with all terms
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and provisions of any employee handbook, and all other employment policies, of
Employer and applicable to the employees of Employer generally as in effect from
time to time (collectively, the "Employee Handbook"). Insofar as possible this
Agreement shall be construed to supplement (but not conflict with) the terms and
provisions of Employee Handbook. In the event of any conflict between the terms
and provisions of Employee Handbook and this Agreement, this Agreement shall
control.
EMPLOYEE ACKNOWLEDGES THAT, BEFORE PLACING HIS SIGNATURE ON THIS EXECUTIVE
EMPLOYMENT AGREEMENT, HE HAS READ ALL OF ITS PROVISIONS, HAS HAD AMPLE
OPPORTUNITY TO PRESENT IT TO COMPETENT LEGAL COUNSEL FOR REVIEW, AND HAS THIS
DAY RECEIVED A COPY HEREOF.
24. SEVERABILITY. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement or parts thereof.
25. SURVIVAL. Sections 10, 11, 12, 13, 14, 15, 16, 19 and this Section 25
of this Agreement shall survive any termination of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year first above written.
Xxxxxxx X. Xxxxxxxxxx
_______________________________ ___________________________________
Witness
FC Banc Corp.
By
Its: _____________ Witness
The Farmers Citizens Bank
By
Its: _____________ Witness
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EXHIBIT A
DUTIES AND RESPONSIBILITIES
General Responsibilities
Responsible for the business planning and control of Employer's resources
toward achieving established strategic initiatives, e.g., earnings,
growth, and safety and soundness objectives in a manner which is
consistent with the philosophy of the Board of Directors and various
regulatory requirements; communicating and participating with the Board on
all decisions affecting Employer that must be made at Board level;
implementing directives of the Board; representing Employer in marketing
and public relations activities; providing direction to key management
personnel; providing and presenting appropriate management reports.
Essential Duties
1. Plans, controls, and manages Employer's resources toward established
Board earnings, growth, and safety and soundness objectives by
performing various executive management duties of which the
following are illustrative:
a. Plans and controls policies and practices of Employer
and its resources in order to insure compliance with
policies of the Board and regulatory requirements;
maintains an active knowledge of operations to insure
this compliance.
b. Communicates and participates with the Board regarding
all decisions affecting Employer that must be made at
the Board level as follows:
1) Participates, with the Board, in establishing
strategic plans in order to help Employer acquire
new customer relationships, retain and grow
current customer relationships, and achieve
acceptable levels of profitability.
2) Coordinates the development of short- and
long-term strategic initiatives around earnings,
growth, and safety and soundness.
3) Participates with Directors in reviewing financial
and operating statements; analyzes major
operational areas in relation to authorized
programs.
4) Actively participates in activities of the Board
relating to authorizing capital expenses and
acquisition or disposal of assets where Board
action is required.
5) Establishes management policies and procedures
which support the achieving of corporate plans in
conjunction with executive management.
6) Implements other directives of the Board as
assigned.
2. Develops, implements, and achieves annual goals and objectives as
established in Employer 's annual operating plan as follows:
a. Allocates division resources, e.g., human, financial,
etc., toward tasks required to achieve goals and
objectives.
b. Directs, through appropriate management and supervisory
personnel, day-to-day activities in support of Employer
-wide strategic initiatives and objectives.
c. Measures effectiveness and performance of the systems
and people.
d. Develops resources, as appropriate, to improve
efficiency and productivity.
e. Assists in the development of the annual budget and
adheres to budget parameters.
f. Actively pursues further penetration of Employer 's
market by performing various duties of which the
following are illustrative:
1) May make business development and general
service/public relations calls on present and
prospective bank customers to maintain present
business and approved banking relationships.
2) May provide direct service to customers, e.g.,
loans, deposits, investment services, etc., with
an emphasis on the commercial segment.
3) Maintains active community involvement in order to
project a positive image of Employer and support
business development activities.
3. Organizes division management, i.e., structure, human resources,
etc., in order to achieve objectives.
4. Abides by the current laws and organizational policies and
procedures designed and implemented to promote an environment which
is free of sexual harassment and other forms of illegal
discriminatory behavior in the work place.
5. Cooperates with, participates in, and supports the adherence to all
internal policies, procedures, and practices in support of risk
management and overall safety and soundness and Employer's
compliance with all regulatory requirements, e.g., Community
Reinvestment Act (CRA), Equal Credit Opportunity Act, etc.; insures
that the division and all personnel adhere to the same.
6. Directly supervises assigned management and support personnel as
follows:
a. Screens and selects new personnel.
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b. Makes provisions for the proper orientation and training of
new personnel.
c. Reviews employee performance throughout the probationary
period and on a regularly scheduled basis thereafter.
d. Organizes, schedules, and distributes work among assigned
personnel.
e. Keeps personnel informed of pertinent policies and procedures
affecting division management and/or their jobs; creates an
atmosphere in which upward communication from employees is
encouraged.
f. Administers personnel policies and procedures as established
by bank policy.
7. Communicates and interfaces with management personnel throughout
Employer in order to integrate objectives and activities.
8. Provides periodic reports to the Board of Directors and other
groups, committees, or individuals as required.
9. Assumes responsibility for special projects as assigned by the Board
of Directors.
Ancillary Duties
1. Performs tasks which are supportive in nature to the essential
functions of the job, but which may be altered or re-designed
depending upon individual circumstances.
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EXHIBIT B
INCENTIVE COMPENSATION
Employee shall be entitled to participate in any incentive compensation program
that the Boards of Directors of Employer (or either of them, or any committee(s)
thereof) may approve from time to time for its senior executives, or, in such
Boards' (or committees') discretion, such other incentive compensation program
of equal or greater value than that offered by Employer to its other senior
executives. Any payment of Incentive Compensation due hereunder shall be paid to
Employee by the Bank in a lump sum within one hundred and twenty (120) days
after the end of the fiscal year of the Bank to which the Incentive Compensation
relates. In the event that this Agreement is terminated (other than by Employer
for Cause pursuant to Section 8(C)) after the end of the fiscal year to which a
payment of Incentive Compensation due hereunder shall be payable but before
payment has been made, Employee shall be entitled to receive, and the Bank shall
pay, such Incentive Compensation. However, under no circumstances shall Employee
be entitled to any payment of Incentive Compensation relating to any fiscal year
(or portion thereof) during which this Agreement is terminated, nor shall
Employee be entitled to any payment of Incentive Compensation if he is
terminated by Employer for Cause pursuant to Section 8(C).
EXHIBIT C
STOCK OPTIONS
Subject to the provisions of Section 6(C) of this Agreement, FC Banc shall grant
Employee incentive stock options (the "Options") to purchase up to 2,860 shares
of common stock, no par value (the "Shares") of FC Banc under the Stock Option
Plan. The Options shall be at an exercise price equal to $31.00 per share and
shall vest as follows: 572 Shares shall vest on January 1, 2006, 572 Shares
shall vest on January 1, 2007, 572 Shares shall vest on January 1, 2008, and 572
Shares shall vest on January 1, 2009. Any unexercised Options (which have not
previously expired pursuant to the terms of the Stock Option Plan) shall expire
on the tenth (10th) anniversary of the date of this Agreement. The grant of the
Options and the exercise thereof shall be subject to the terms and conditions of
the Stock Option Plan.
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