EXHIBIT 10.6
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of this 1st day
of October, 2000, by and among Ohio Legacy Corp., an Ohio corporation (the
"Bancorp"), Ohio Legacy Bank, a national banking association (the "Company") and
Xxxxxx X. Boss (the "Executive") and shall become effective on the date that the
Company opens for business (the "Effective Date").
In consideration of the mutual promises contained herein and other good
and valuable consideration, the Executive and the Company have entered into this
Agreement.
1. EMPLOYMENT AND DUTIES.
(a) The Company agrees to employ the Executive and the
Executive agrees to be employed by the Company as the Company's Vice President,
Commercial Lending. The Executive shall hold such other offices as the Board of
Directors of the Company (the "Board") shall determine from time to time.
(b) The Executive agrees to perform such duties as may be
assigned by the Board, to devote all of his working time to the business of the
Company, and to use his best efforts to advance the interests of the Company and
its shareholders including, without limitation, the performance by the Executive
of all necessary and reasonable services not inconsistent with his position of
Vice President, Commercial Lending.
2. TERM. The Company's employment of the Executive shall commence
on the Effective Date and expire on the first anniversary thereof, unless
renewed or earlier terminated according to the provisions of this Agreement.
Unless earlier terminated in accordance with this Agreement, this Agreement
shall be automatically renewed for successive one (1) year periods unless and
until either party shall have given the other at least sixty (60) days written
notice prior to the expiration date of the term (or renewal term, if applicable)
of this Agreement. The Executive's obligations and the Company's rights under
Section 6, 7, 8, 9 and 10 hereof shall survive the expiration of the term
(including all renewal terms of this Agreement).
3. COMPENSATION.
(a) The Executive's annual base salary ("Base Salary") during
the term of this Agreement shall be Eighty-seven Thousand Dollars ($87,000),
payable in accordance with the Company's standard payroll practices in effect
for all employees. The Board, in its sole discretion, may from time to time
increase, but not decrease, the amount of Executive's Base Salary.
(b) Nothing herein shall be deemed to preclude the Company
from paying the Executive, in addition to his Base Salary, any bonuses ("Bonus")
as may be awarded from time to time by the Board in its sole discretion.
(c) The Company will reimburse the Executive for all
reasonable business expenses incurred by him in the course of performing his
duties under this Agreement that are consistent with the Company's policies in
effect from time to time with respect to travel, entertainment and other
business expenses.
4. BENEFITS. During the term of this Agreement, the Executive and
his eligible dependents shall be entitled to participate in employee benefit
plans generally afforded by the Company to its executive employees from time to
time.
5. DISABILITY OR DEATH; RESIGNATION; TERMINATION FOR CAUSE; OTHER
TERMINATIONS.
(a) DEATH. In the event of the Executive's death, this
Agreement and the Executive's employment shall terminate upon such date of
death, except that Executive's estate shall be entitled to receive the unpaid
portion of Executive's Base Salary earned up to the date of his death; and the
Executive's designated beneficiary (or, in the absence of a designated
beneficiary, the Executive's estate) shall be entitled to receive all benefits
payable as a result of the Executive's death under the terms of the Company's
employee benefit plans.
(b) DISABILITY.
(1) SHORT-TERM. In the event of the Executive's failure to
substantially perform his duties hereunder on a full-time basis for periods
aggregating not more than one hundred eighty (180) days during any twelve-month
period as a result of incapacity due to physical or mental illness, the Company
shall continue to pay the Base Salary to the Executive during the period of such
incapacity, but only in the amounts and to the extent that disability benefits
payable to the Executive under Company-sponsored insurance policies are less
than the Executive's Base Salary.
(2) LONG-TERM. If the Executive is incapacitated for a period
of one hundred eighty (180) consecutive days so that he cannot perform his
duties hereunder on a full-time basis, the Executive's employment will terminate
upon the expiration of such one hundred eighty (180) day period, and the
Executive shall be entitled to receive all benefits payable to the Executive as
a result of such termination under the terms of the Company's employee benefit
plans. Notwithstanding the foregoing, the Executive's obligations and the
Company's rights under Sections 6, 7, 8, 9 and 10 shall survive the termination
of Executive's employment.
(c) TERMINATION BY THE EXECUTIVE.
(1) RESIGNATION. If the Executive's employment is
terminated by reason of Executive's voluntary resignation, all of the Company's
obligations hereunder shall terminate upon the date the Executive ceases to be
employed as a result of such resignation. Notwithstanding the foregoing, the
Executive's obligations and the Company's rights under Sections 6, 7, 8, 9 and
10 shall survive the termination of this Agreement, and the Executive shall be
entitled to receive the unpaid portion of the Executive's Base Salary earned up
to the date of such termination and all benefits payable to the Executive as a
result of such termination under the terms of the Company's employee benefit
plans.
(2) TERMINATION FOR GOOD REASON. The Executive may
terminate this Agreement by giving a written notice of termination not less than
thirty (30) days prior to the effective date of such termination for "Good
Reason." As used herein, "Good Reason" means: (i) a Diminution in the
Executive's Duties or Benefits as defined below; (ii) material breach ("Material
Breach") of this Agreement by the Company or Bancorp, or (iii) "Change in
Control" as defined below.
The term "Diminution in Duties or Benefits" means:
(i) a material diminution of the Executive's duties or responsibilities as Vice
President, Commercial Lending of the Company; (ii) a change in the principal
workplace of the Executive to a location other than Xxxxx, Xxxxx or Xxxxxx
Counties thereto; (iii) a material demotion; (iv) a material change in the
number or seniority of other Company personnel reporting to the Executive or a
material reduction in the frequency with which, or in the nature of the matters
with respect to which, such personnel are to report to the Executive, other than
as part of a Company relocation or reduction in staff; (v) a material adverse
change in the Executive's perquisites, benefits, contingent benefits or
vacation, other than as a part of an overall program applied uniformly and with
equitable effect to all members of the senior management of the Company; or (vi)
a material permanent increase in the required hours of work or the workload of
the Executive.
The term "Change of Control" means a change in
ownership or control of either Bancorp or the Company effected through any of
the following transactions:
(i) the direct or indirect
acquisition by any person or related group of
persons, other than by the Bancorp or the Company or
a person that directly or indirectly controls, is
controlled by, or is under common control with,
Bancorp or the Company immediately prior to such
acquisition, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange
Act of 1934, as amended) of securities possessing
more than 50 percent of the total combined voting
power of Bancorp's or the Company's outstanding
securities, whether effectuated pursuant to a tender
or exchange offer made directly to Bancorp's or the
Company's shareholders or pursuant to another
transaction;
(ii) a change in the composition of
the board of directors of Bancorp or the Company over
a period of 36 or fewer consecutive months such that
a majority of such respective board members (rounded
up to the next whole number) ceases, by reason of one
or more contested elections for such respective board
membership, to be comprised of individuals who either
(i) have been board members continuously since the
beginning of such period or (ii) have been elected or
nominated for election as board members during such
period by at least a majority of the board members
described in clause (i) who were still in office at
the time such election or nomination was approved by
the board; or
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(iii) the completion of a transaction requiring
shareholder approval for the acquisition of all or
substantially all of the stock or assets of Bancorp
or the Company by an entity other than Bancorp or the
Company or any merger of Bancorp or the Company into
another entity in which neither Bancorp nor the
Company is the surviving entity.
Upon the Executive's termination for Good Reason, the Company
shall pay the Executive in a single lump sum severance pay in the amount equal
to the product of (a) 2.99 if the employment is terminated pursuant to a Change
in Control, or 1.00 if the employment is terminated pursuant to a Diminution in
Duties or Benefits or a Material Breach and (b) the sum of (i) the Executive's
Base Salary in effect for the year of termination and (ii) the Bonus awarded to
the Executive for the Company's most recently completed fiscal year. All stock
options previously awarded to he Executive, whether vested or unvested, shall
become immediately exercisable. In addition, upon a termination for Good Reason,
the Company, to the extent permitted by applicable law, shall permit the
Executive to continue to participate in its group health insurance plan, under
COBRA, for a period of one year from the date of termination. Notwithstanding
the foregoing, the Executive's obligations and the Company's rights under
Sections 6, 7, 8, 9 and 10 shall survive the termination of this Agreement, and
the Executive shall be entitled to receive all benefits payable to the Executive
as a result of such termination under the terms of the Company's employee
benefit plans.
(d) TERMINATION FOR CAUSE. If the Company terminates the
Executive's employment for cause (as defined below), all of the Company's
obligations hereunder shall immediately terminate. As used herein, "for cause"
shall mean (i) willful misconduct by the Executive in the performance of his
duties, or (ii) gross negligence by the Executive in the performance of his
duties, or (iii) the Executive's indictment or conviction for committing a
crime, or (iv) the Executive's commission of an act of moral turpitude, or (iv)
the continued failure and/or refusal of the Executive to correct any
deficiencies within fifteen (15) days following receipt by the Executive of
written notice from the Board specifying such deficiencies. Notwithstanding the
termination of this Agreement pursuant to this Section 5(d), the Executive's
obligations and the Company's rights under Sections 6, 7, 8, 9 and 10 shall
survive this termination of this Agreement.
(e) TERMINATION WITHOUT CAUSE. The Company may terminate the
Executive's employment at any time without cause pursuant to written notice at
least thirty (30) days in advance of such termination date. If the Executive's
employment terminates pursuant to this Section 5(e), both the Company's and the
Executive's obligations hereunder shall immediately terminate. Notwithstanding
the foregoing, the Company shall pay the Executive severance pay in an amount
equivalent to Executive's Base Salary in effect for the year of termination,
payable in a single lump sum installment within thirty (30) days following the
date of termination. The Executive's termination date, and the Executive's
obligations and the Company's rights under Sections 6, 7, 8, 9, 10 and 11 shall
survive the termination of employment.
6. NONSOLICITATION. The Executive agrees that he shall not at any time (whether
during or for a period of one (1) year after the Executive's termination of
employment with the Company), without the prior written consent of the Company,
either directly or indirectly (i)
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solicit (or attempt to solicit), induce (or attempt to induce), cause or
facilitate any employee, director, agent, consultant, independent contractor,
representative or associate of the Company or the Company's Affiliates to
terminate his, her or its relationship with the Company or the Company's
Affiliates, or (ii) solicit (or attempt to solicit), induce (or attempt to
induce), cause or facilitate any supplier of services or products to the Company
or the Company's Affiliates to terminate or change his, her or its relationship
with the Company or the Company's Affiliates, or otherwise interfere with any
relationship between the Company or the Company's Affiliates and any of the
Company's or the Company's Affiliates' suppliers of products or services.
7. NONDISCLOSURE. The Executive agrees that he shall not at any time (whether
during or for a period of one (1) year after the termination of his employment
with the Company) directly or indirectly copy, disseminate or use, for the
Executive's personal benefit or the benefit of any third party, any Confidential
Information, regardless of how such Confidential Information may have been
acquired, except for the disclosure of such Confidential Information as may be
(i) in keeping with the performance of the Executive's employment duties with
the Company, (ii) as required by law, or (iii) as authorized in writing by the
Company. For purposes of this Agreement, the term "Confidential Information"
shall mean all information or knowledge belonging to, used by, or which is in
the possession of the Company or the Company's Affiliates relating to the
Company's or the Company's Affiliates' business, business plans, strategies,
pricing, sales methods, customers (including, without limitation, the names,
addresses or telephone numbers of such customers), technology, programs,
finances, costs, employees (including, without limitation, the names, addresses
or telephone numbers of any employees), employee compensation rates or policies,
marketing plans, development plans, computer programs, computer systems,
inventions, developments, trade secrets, know how or confidences of the Company
or the Company's Affiliates or the Company's or the Company's Affiliates'
business, without regard to whether any of such Confidential Information may be
deemed confidential or material to any third party, and the Company and the
Executive hereby stipulate to the confidentiality and materiality of all such
Confidential Information. The Executive acknowledges that all of the
Confidential Information is and shall continue to be the exclusive proprietary
property of the Company and/or the Company's Affiliates, whether or not prepared
in whole or in part by the Executive and whether or not disclosed to or
entrusted to the custody of the Executive. The Executive agrees that upon the
termination of the Executive's employment with the Company for any reason, the
Executive will return promptly to the Company and/or the Company's affiliates
all memoranda, notes, records, reports, manuals, pricing lists, prints and other
documents (and all copies thereof) relating to the Company's and/or the
Company's Affiliates' business which he may then possess or have with the
Executive's control, regardless of whether any such documents constitute
Confidential Information. The Executive further agrees that he shall forward to
the Company all Confidential Information which at any time (including after the
period of his employment with the Company) should come into the Executive's
possession or the possession of any other person, firm or entity with which the
Executive is affiliated in any capacity.
8. NO SLANDER. The Executive agrees not to in any way slander or injure the
business reputation or goodwill of the Company or the Company's Affiliates
through any contact with customers, vendors, suppliers, employees or agents of
the Company or the Company's Affiliates, or in any other way.
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9. INVENTIONS AND PATENTS. The Executive agrees that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports, and all similar or related information which relates to the Company's
or the Company's Affiliates' actual or anticipated business, research and
development or existing or future products or services and which are conceived,
developed or made by the Executive while employed by the Company or its
predecessor (all of the foregoing being referred to herein as "Work Product")
belong to the Company and the Company's Affiliates. The Executive shall perform
all actions reasonably requested by the Company (whether during or after the
employment period) to establish and confirm such ownership of Work Product
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
10. REMEDIES.
(a) ENFORCEMENT. The Executive acknowledges that the
restrictions contained in Sections 6, 7, 8, 9 and 10 are reasonable and
necessary to protect the legitimate interests of the Company and the Company's
Affiliates. If the Executive breaches any of the provisions of Sections 6, 7, 8
and 9 hereof, the Company and/or the Company's Affiliates shall have the right
to specifically enforce the Agreement by means of an injunction, it being
acknowledged by the Executive and agreed upon by the parties that any such
breach will cause irreparable injury to the Company and/or the Company's
Affiliates for which money damages alone will not provide an adequate remedy.
The rights and remedies enumerated above shall be in addition to, and not in
lieu of, any other rights and remedies available to the Company at law or in
equity.
(b) PARTIAL INVALIDITY. In the event any of the covenants
contained in Sections 6, 7, 8, 9 and 10 or any portion thereof, shall be found
by a court of competent jurisdiction to be invalid or unenforceable as against
public policy or for any other reason, such court shall exercise its discretion
to reform such covenant to the end that the Executive shall be subject to
noncompetition, nonsolicitation and nondisclosure covenants that are reasonable
under the circumstances and are enforceable by the Company and/or the Company's
affiliates. In any event, if any provision of this Agreement is found
unenforceable for any reason, such provision shall remain in force and effect to
the maximum extent allowable and all unaffected provisions shall remain fully
valid and enforceable and such finding shall in no way affect the enforceability
of any such provision at a subsequent date against a different employee.
11. ENFORCEABILITY. The unenforceability or invalidity of any provision of this
Agreement shall not affect the enforceability or validity of the balance of the
Agreement. In the event that any such provision should be or becomes invalid for
any reason, such provision shall remain effective to the maximum extent
permissible, and the parties shall consult and agree on a legally acceptable
modification giving effect to the commercial objectives of the unenforceable or
invalid provision, and every other provision of this Agreement shall remain in
full force and effect.
12. BINDING EFFECT. This Agreement shall inure to the benefit of, and be
enforceable by, the parties' successors, representatives, executors,
administrators or assignees.
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13. NOTICES. All notices, requests, demands and other communications made or
given in connection with this Agreement shall be in writing and shall be deemed
to have been duly given (a) if delivered, at the time delivered or (b) if
mailed, at the time mailed at any general or branch United States Post Office
enclosed in a registered or certified postage paid envelope, or (c) if
couriered, one day after deposit with a national overnight courier, addressed to
the address of the respective parties as follows:
To the Company: Ohio Legacy Bank
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Secretary
With a Copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxxxxx, Xxxxxxxxxxx & Xxxxxxxx, Ltd.
000 X. Xxxxxx Xxxxxx
X. X. Xxx 000
Xxxxxxx, XX 00000-0000
To the Executive: Xxxxxx X. Boss
0000 XX 00, Xxxx 0000
Xxxxxxxxxxx, XX 00000
or to such other addresses as the party to whom notice is to be given may have
previously furnished to the other party in writing in the manner set forth
above, provided that notices of changes of address shall only be effective upon
receipt.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the
parties hereto relating to the subject matter hereof, and there are no written
or oral terms or representations made by either party other than those contained
herein. This Agreement supersedes and replaces any and all employment agreement
and agreements providing for payments for services between the Executive and the
Company or any of the Company's Affiliates, all of which are terminated upon the
Executive's execution of this Agreement.
15. GOVERNING LAW. The validity, interpretation, construction, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Ohio, without regard to principles of conflicts of laws. The Company and the
Executive hereby irrevocably submit to the jurisdiction of the courts of the
State of Ohio, with venue in Xxxxx County, over any dispute arising out of this
Agreement and agree that all claims in respect of such dispute or proceeding
shall be heard and determined in such court. The Company and the Executive
hereby irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may have to the venue of any such dispute brought in such
court or any defense of inconvenient forum for the maintenance of such dispute.
The Company and the Executive hereby consent to process being served by them as
required by law in any suit, action or proceeding.
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16. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
OHIO LEGACY CORP
________________________________ By:_________________________________
XXXXXX X. BOSS
Title:________________________________
OHIO LEGACY BANK
By:_________________________________
Title:________________________________
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