EXHIBIT 10.4
EMPLOYMENT AGREEMENT
FOR
OHIO CENTRAL SAVINGS
This Agreement is made effective as of the ____ day of _____________, 2005
("Commencement Date") by and between Ohio Central Savings (the "Association"), a
federally chartered stock savings association, with its principal administrative
office at 0000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000, and Xxxxx X. Xxxxx (the
"Executive"). Reference to the Company shall mean OC Financial, Inc., a Maryland
corporation that owns 100% of the common stock of the Association. The Company
shall be a signatory to this Agreement for the sole purpose of guaranteeing the
Association's performance hereunder.
WHEREAS, the Executive is currently employed as the Chief Operating Officer
of the Association; and
WHEREAS, the Association has converted from the mutual to the stock form of
organization and has become a wholly-owned subsidiary of the Company; and
WHEREAS, the Association desires to assure itself of the continued services
of Executive pursuant to the terms of this Agreement; and
WHEREAS, the Executive and the Association desire to enter into this
Agreement to replace the Employment Agreement, dated February 16, 2001; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to serve as
Chief Operating Officer of the Association (the "Executive Position"). During
said period, Executive also agrees to serve, if elected, as an officer and
director of any subsidiary or affiliate of the Association. Failure to reelect
Executive as Chief Operating Officer without the consent of the Executive during
the term of this Agreement shall constitute a breach of this Agreement.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall begin
as of the Commencement Date and shall continue for thirty-six (36) full calendar
months thereafter, subject to earlier termination as provided herein. Commencing
on _____________, 2005 and continuing on _____________ of each year thereafter
(the "Anniversary Date"), this Agreement shall renew for an additional year such
that the remaining term shall be three (3) years unless written notice of
non-renewal ("Non-Renewal Notice") is provided to Executive at least ninety (90)
days prior to any such Anniversary Date, that this Agreement shall terminate at
the end of thirty-six (36) months following such Anniversary Date. Prior to each
notice period for non-renewal, the disinterested members of the Board of
Directors of the Association ("Board") will conduct a comprehensive performance
evaluation and review of the Executive for purposes of determining whether to
extend the Agreement, and the results thereof shall be included in the
minutes of the Board's meeting. Reference herein to the term of this Agreement
shall refer to both such initial term and such extended terms.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall faithfully perform his duties hereunder
including activities and services related to the organization, operation and
management of the Association. The Executive shall report and be responsible to
the President.
(c) Upon the Commencement Date, the existing employment agreement by and
between the Executive and the Association shall terminate with no obligations
thereunder to the Executive on the part of the Association except for salary and
benefits accrued and unpaid as of the Commencement Date.
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Section 2(b). The
Association shall pay Executive as compensation a salary of not less than
$___________ per year ("Base Salary"). Such Base Salary shall be payable
bi-weekly. During the period of this Agreement, Executive's Base Salary shall be
reviewed at least annually; the first such review will be made no later than
January 31 of each year during the term of this Agreement and shall be effective
from the first day of said month through the end of the calendar year. Such
review shall be conducted by a Committee designated by the Board, and the
Association may increase, but not decrease, Executive's Base Salary (any
increase in Base Salary shall become the "Base Salary" for purposes of this
Agreement). In addition to the Base Salary provided in this Section 3(a), the
Association shall provide Executive at no cost to Executive with all such other
benefits as are provided uniformly to permanent full-time employees of the
Association.
(b) The Association will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Association will not,
without Executive's prior written consent, make any changes in such plans,
arrangements or perquisites which would adversely affect Executive's rights or
benefits thereunder. Without limiting the generality of the foregoing provisions
of this Section 3(b), Executive will be entitled to participate in or receive
benefits under any employee benefit plans including but not limited to,
retirement plans, supplemental retirement plans, pension plans, profit-sharing
plans, health-and-accident plans, medical coverage or any other employee benefit
plan or arrangement made available by the Association in the future to its
senior executives and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. Executive will be entitled to incentive compensation and
bonuses as provided in any plan of the Association in which Executive is
eligible to participate (and he shall be entitled to a pro rata distribution
under any incentive compensation or bonus plan as to any year in which a
termination of employment occurs, other than termination for Cause). Nothing
paid to the Executive under any such plan or arrangement will be deemed to be in
lieu of other compensation to which the Executive is entitled under this
Agreement.
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(c) The Executive shall be entitled to a minimum of twenty (20) business
days of paid vacation per year. Such vacation leave days may be taken at the
discretion of the Executive in consultation with the Board of Directors of the
Association. The Executive shall be entitled to such other voluntary leaves of
absence, with or without pay, from time to time and under such conditions as the
Board of Directors may determine in its discretion. The Executive shall be
entitled to not less than the same sickness and personal time benefits as apply
generally to full-time Association employees.
(d) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the Association or the Company shall pay or reimburse Executive for
all reasonable travel and other reasonable expenses incurred by Executive
performing his obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine. The Association shall reimburse Executive for his ordinary and
necessary business expenses, including, without limitation, fees for memberships
in such clubs and organizations as Executive and the Board shall mutually agree
are necessary and appropriate for business purposes, and travel and
entertainment expenses, incurred in connection with the performance of his
duties under this Agreement, upon presentation to the Association of an itemized
account of such expenses in such form as the Association may reasonably require.
4. OUTSIDE ACTIVITIES
The Executive may serve as a member of the board of directors of business,
community and charitable organizations subject to the approval of the Board,
provided that in each case such service shall not materially interfere with the
performance of his duties under this Agreement or present any conflict of
interest. Such service to and participation in outside organizations shall be
presumed for these purposes to be for the benefit of the Association, and the
Association shall reimburse the Executive his reasonable expenses associated
therewith.
5. WORKING FACILITIES AND EXPENSES
The Executive's principal place of employment shall be at the Association's
principal executive offices. The Association shall provide the Executive with an
automobile suitable to the position of President and Chief Executive Officer of
the Association, and such automobile may be used by the Executive in carrying
out his duties under this Agreement and for his personal use such as commuting
between his residence and his principal place of employment. The Association
shall reimburse the executive for the cost of maintenance, use and servicing of
such automobile. The Association shall reimburse the Executive for his ordinary
and necessary business expenses, including travel and reasonable entertainment
expenses, incurred in connection with the performance of his duties under this
Agreement, including, without limitation, fees for memberships in such clubs and
organizations that Executive and the Board mutually agree are necessary and
appropriate to further the business of the Association. Reimbursement of such
expenses shall be made upon presentation to the Association of an itemized
account of the expenses in such form as the Association may reasonably require.
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6. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
The provisions of this Section shall in all respects be subject to the
terms and conditions stated in Sections 11 and 19.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during Executive's term of employment under this Agreement, the provisions of
this section shall apply. As used in this Agreement, an "Event of Termination"
shall mean and include any one or more of the following: (i) the termination by
the Association of Executive's full-time employment hereunder for any reason
other than a termination following a Change in Control, as defined in Section
7(a) hereof, or a termination for Cause, as defined in Section 10 hereof, or a
termination upon Retirement as defined in Section 9 hereof, or a termination for
disability as set forth in Section 8 hereof; and (ii) Executive's resignation
from the Association's employ, upon any of the following: (A) failure to elect
or reelect or to appoint or reappoint Executive to the Executive Position, or to
elect Executive to the Board of Directors of the Association, unless consented
to by Executive, (B) a material change in Executive's function, duties, or
responsibilities, which change would cause Executive's position to become one of
lesser responsibility, importance, or scope from the position and attributes
thereof described in Sections 1 and 2 above, to which Executive has not agreed
in writing (and any such material change shall be deemed a continuing breach of
this Agreement), (C) a relocation of Executive's principal place of employment
to a location that is more than 25 miles from the location of the Association's
principal executive offices as of the date of this Agreement, or a material
reduction in the benefits and perquisites, including Base Salary, to Executive
from those being provided as of the effective date of this Agreement (except for
any reduction that is part of an employee-wide reduction in pay or benefits),
(D) a liquidation or dissolution of the Association, or (E) material breach of
this Agreement by the Association. Upon the occurrence of any event described in
clauses (ii) (A), (B), (C), (D) or (E) above, Executive shall have the right to
elect to terminate his employment under this Agreement by resignation upon not
less than thirty (30) days prior written notice given within a reasonable period
of time (not to exceed, except in case of a continuing breach, four calendar
months) after the event giving rise to said right to elect, which termination by
Executive shall be an Event of Termination. No payments or benefits shall be due
to Executive under this Agreement upon the termination of Executive's employment
except as specifically set forth in this Agreement.
(b) Upon the occurrence of an Event of Termination, the Association shall
pay Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a cash amount equal to the greater of (i) three (3) times the
sum of (A) the highest annual rate of Base Salary paid to Executive at any time
under the Agreement, and (B) the greater of (x) the average annual cash bonus
paid to Executive with respect to the three completed fiscal years prior to the
Event of Termination, or (y) the cash bonus paid to Executive with respect to
the fiscal year ended immediately prior to the Event of Termination. At the
election of Executive, which election is to be made annually by January 31 (or
as to the first year, within thirty days of the date of the Agreement) of each
year and is irrevocable for the year in which made (and once payments commence),
such payments shall be made in a lump sum or paid quarterly during the remaining
term of the agreement following Executive's termination. In the event that no
election is made, payment to Executive will be made in a lump sum without
reduction for present value. Such
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payments shall not be reduced in the event Executive obtains other employment
following termination of employment.
(c) Upon the occurrence of an Event of Termination, the Association will
provide at the Association's expense, life, medical and dental coverage
substantially comparable, as reasonably or customarily available, to the
coverage maintained by the Association for Executive prior to his termination,
except to the extent such coverage may be changed in its application to all
Association employees. Such coverage shall cease thirty-six (36) months
following the Event of Termination. In the alternative, the Company shall pay to
Executive a cash amount equal to Executive's cost of obtaining such benefits on
his own, adjusted for any federal or state income taxes Executive has to pay on
the cash amount.
(d) Upon the occurrence of an Event of Termination, and to the extent
permitted by applicable regulations or policy of the Office of Thrift
Supervision ("OTS"), any non-vested stock options granted to Executive under any
stock option plan or restricted stock plan of the Company will fully vest.
7. CHANGE IN CONTROL
(a) "Change in Control" shall mean a change in control of a nature that:
(i) would be required to be reported in response to Item 5.01 of the current
report on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or
15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or (ii)
results in a Change in Control of the Association or the Company within the
meaning of the Home Owners' Loan Act, as amended ("HOLA"), and applicable rules
and regulations promulgated thereunder, as in effect at the time of the Change
in Control; or (iii) without limitation such a Change in Control shall be deemed
to have occurred at such time as (a) any "person" (as the term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 25% or more of the
combined voting power of Company's outstanding securities (except for any
securities purchased by the Association's employee stock ownership plan or
trust); or (b) individuals who constitute the Board on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, PROVIDED that any person becoming a director subsequent to the date
hereof whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Company's stockholders was approved by the same Nominating Committee serving
under an Incumbent Board, shall be, for purposes of this clause (b), considered
as though he were a member of the Incumbent Board; or (c) a plan of
reorganization, merger, consolidation, sale of all or substantially all the
assets of the Association or the Company or similar transaction in which the
Association or Company is not the surviving institution occurs or is effected;
or (d) a proxy statement soliciting proxies from stockholders of the Company is
distributed, by someone other than the current management of the Company,
seeking stockholder approval of a plan of reorganization, merger or
consolidation of the Company or similar transaction with one or more
corporations as a result of which the outstanding shares of the class of
securities then subject to the Plan are exchanged for or converted into cash or
property or securities not issued by the Company; or (e) a tender offer is made
for 25% or more of the voting securities of the Company and the shareholders
owning beneficially or of record 25% or more of the outstanding securities of
the Company have tendered
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or offered to sell their shares pursuant to such tender offer and such tendered
shares have been accepted by the tender offeror.
(b) If any of the events described in Section 7(a) hereof constituting a
Change in Control shall have occurred or the Board has determined that a Change
in Control has occurred, Executive shall be entitled to the benefits provided in
paragraphs (c) and (d) of this Section 7 upon his subsequent termination of
employment at any time during the term of this Agreement (regardless of whether
such termination results from his resignation or his dismissal), unless such
termination is (A) because of his death or Retirement, or, (B) for Disability.
Upon a Change in Control, and for a period of one year thereafter, Executive
shall have the right to elect to terminate his employment with the Association,
for any reason, and receive the benefits provided for in this Section 7.
(c) Upon the occurrence of a Change in Control followed by the termination
of Executive's employment by the Association (including a termination referred
to in the last sentence of Section 7(b) above), Executive, or, in the event of
his subsequent death (subsequent to such termination), his beneficiary or
beneficiaries, or his estate, as the case may be, shall receive as severance pay
or liquidated damages, or both, an amount equal to three times the highest
annual rate of Base Salary, and the highest rate of cash bonus awarded to
Executive during the prior three years.
(d) Upon the occurrence of a Change in Control followed by the termination
of Executive's employment, the Association will provide at the Association's
expense, life, medical and dental insurance coverage substantially comparable,
as reasonably or customarily available, to the coverage maintained by the
Association for Executive prior to his severance. Such coverage shall cease
thirty-six (36) months from the date of Executive's termination of employment.
In the alternative, the Association shall pay to Executive a cash amount equal
to Executive's cost of obtaining such benefits on his own, adjusted for any
federal or state income taxes Executive has to pay on the cash amount.
(e) Upon the occurrence of a Change in Control followed by the termination
of Executive's employment, any non-vested stock options granted to Executive
under any stock option plan or restricted stock plan of the Association will
fully vest.
(f) Notwithstanding the preceding paragraphs of this Section, in the event
that:
the aggregate payments or benefits to be made or afforded to Executive
under said paragraphs (the "Termination benefits") would be deemed to
include an "excess parachute payment" under Section 280G of the Code or any
successor thereto, their Termination Benefits will be reduced to an amount
(the "Non-Triggering Amount"), the value of which is one dollar ($1.00)
less than an amount equal to the total amount of payments permissible under
Section 280G of the Code or any successor thereto.
8. TERMINATION FOR DISABILITY OR DEATH
(a) Termination of Executive's employment based on "Disability" shall mean
termination because of any physical or mental impairment which qualifies
Executive for disability benefits under the applicable long-term disability plan
maintained by the Employers or
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any subsidiary or, if no such plan applies, which would qualify Executive for
disability benefits under the Federal Social Security System.
(b) In the event of Executive's death during the term of the Agreement ,
in addition to any other health care continuation rights available to
Executive's family under federal or state law, the Association will continue to
provide the Executive's named beneficiaries (as directed by Executive in
writing), medical, dental and other insurance benefits normally provided for
Executive's family (in accordance with its customary co-pay percentages) for six
(6) months after Executive's death.
9. TERMINATION UPON RETIREMENT
Termination of Executive's employment based on "Retirement" shall mean
termination of Executive's employment at age 65 or in accordance with any
retirement policy established by the Board with Executive's consent with respect
to him. Upon termination of Executive based on Retirement, no amounts or
benefits shall be due Executive under this Agreement, and Executive shall be
entitled to all benefits under any retirement plan of the Association and other
plans to which Executive is a party.
10. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination because of
Executive's personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order, or material
breach of any provision of this Agreement. Executive's employment shall not be
terminated in accordance with this paragraph for any act or action or failure to
act that is undertaken or omitted in accordance with a resolution of the Board
or upon advice of the Association's counsel. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to him a copy of a resolution duly adopted by
the affirmative vote of not less than a majority of the members of the Board at
a meeting of the Board called and held for that purpose, finding that in the
good faith opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail.
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause. Any non-vested stock options granted to
Executive under any stock option plan of the Association, the Company or any
subsidiary or affiliate thereof, shall become null and void effective upon
Executive's receipt of Notice of Termination for Cause pursuant to Section 11
hereof, and shall not be exercisable by Executive at any time subsequent to such
Termination for Cause (unless it is determined in arbitration that grounds for
Termination for Cause did not exist, in which event all terms of the options as
of the date of termination shall apply, and any time periods for exercising such
options shall commence from the date of resolution in arbitration).
11. NOTICE
(a) Any purported termination by the Association for Cause shall be
communicated by Notice of Termination to Executive. For purposes of this
Agreement, a "Notice of Termination"
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shall mean a written notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated. If, within thirty (30)
days after any Notice of Termination for Cause is given, Executive notifies the
Association that a dispute exists concerning the termination, the parties shall
promptly proceed to arbitration. Notwithstanding the pendency of any such
dispute, the Association may discontinue to pay Executive compensation until the
dispute is finally resolved in accordance with this Agreement. If it is
determined that Executive is entitled to compensation and benefits under Section
6 or 7 of this Agreement, the payment of such compensation and benefits by the
Association shall commence immediately following the date of resolution by
arbitration, with interest due Executive on the cash amount that would have been
paid pending arbitration (at the prime rate as published in THE WALL STREET
JOURNAL from time to time).
(b) Any other purported termination by the Association or by Executive
shall be communicated by a Notice of Termination to the other party. For
purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in detail the facts and circumstances claimed to
provide a basis for termination of employment under the provision so indicated.
"Date of Termination" shall mean the date of the Notice of Termination. If,
within thirty (30) days after any Notice of Termination is given, the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the parties shall promptly proceed to
arbitration as provided in Section 22 of this Agreement. Notwithstanding the
pendency of any such dispute, the Association shall continue to pay Executive
his Base Salary, and other compensation and benefits in effect when the notice
giving rise to the dispute was given (except as to termination of Executive for
Cause). In the event of the voluntary termination by Executive of his
employment, which is disputed by the Association, and if it is determined in
arbitration that Executive is not entitled to termination benefits pursuant to
this Agreement, he shall return all cash payments made to him pending resolution
by arbitration, with interest thereon at the prime rate as published in THE WALL
STREET JOURNAL from time to time if it is determined in arbitration that
Executive's voluntary termination of employment was not taken in good faith and
not in the reasonable belief that grounds existed for his voluntary
termination..
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the voluntary termination
by the Executive for reasons other than those set forth in Section 6(a)(ii)(A)
through (E), in which case the Date of Termination shall be the date specified
in the Notice, the Date of Termination shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, by a
binding arbitration award, or by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal having expired and no appeal having
been perfected) and provided further that the Date of Termination shall be
extended by a notice of dispute only if such notice is given in good faith and
the party giving such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute, the
Association will continue to pay Executive his full compensation in effect when
the notice giving rise to the dispute was given (including, but not limited to,
Base Salary) and continue Executive as a participant in all compensation,
benefit and insurance plans in which he was participating when the notice of
dispute was given, until the dispute is finally resolved in accordance with this
Agreement,
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provided such dispute is resolved within the term of this Agreement. If such
dispute is not resolved within the term of the Agreement, the Association shall
not be obligated, upon final resolution of such dispute, to pay Executive
compensation and other payments accruing beyond the term of the Agreement.
Amounts paid under this Section shall be offset against or reduce any other
amounts due under this Agreement.
12. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with paragraph (b) of this Section during the
term of this Agreement and for one (1) full year after the expiration or
termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Association as may reasonably be required by the Association
in connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party provided, however, that the Executive
shall not be required to provide information or assistance with respect to any
litigation in which the Executive and the Association or the Executive and the
Company are adverse parties.
13. NON-COMPETITION
(a) Upon any termination of Executive's employment hereunder, other than a
termination, (whether voluntary or involuntary) in connection with a Change in
Control, as a result of which the Association is paying Executive benefits under
Section 6 of this Agreement, Executive agrees not to compete with the
Association and/or the Company for a period of one (1) year following such
termination within twenty-five (25) miles of any existing branch of the
Association or any subsidiary of the Company or within twenty-five (25) miles of
any office for which the Association, the Company or a subsidiary of the Company
or the Association has filed an application for regulatory approval to establish
an office, determined as of the effective date of such termination, except as
agreed to pursuant to a resolution duly adopted by the Board. Executive agrees
that during such period and within said area, cities, towns and counties,
Executive shall not work for or advise, consult or otherwise serve with,
directly or indirectly, any entity whose business materially competes with the
depository, lending or other business activities of the Association and/or the
Company or subsidiary of the Association of Company. The parties hereto,
recognizing that irreparable injury will result to the Association and/or the
Company, its business and property in the event of Executive's breach of this
Subsection 13(a) agree that in the event of any such breach by Executive, the
Association and/or the Company will be entitled, in addition to any other
remedies and damages available, to an injunction to restrain the violation
hereof by Executive, Executive's partners, agents, servants, employers,
employees and all persons acting for or with Executive. Executive represents and
admits that Executive's experience and capabilities are such that Executive can
obtain employment in a business engaged in other lines and/or of a different
nature than the Association and/or the Company, and that the enforcement of a
remedy by way of injunction will not prevent Executive from earning a
livelihood. Nothing herein will be construed as prohibiting the Association
and/or the Company from pursuing any other remedies available to the Association
and/or the Company for such breach or threatened breach, including the recovery
of damages from Executive.
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(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Association and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the Association. Executive will not, during
or after the term of his employment, disclose any knowledge of the past,
present, planned or considered business activities of the Association or
affiliates thereof to any person, firm, corporation, or other entity for any
reason or purpose whatsoever (except for such disclosure as may be required to
be provided to any federal banking agency with jurisdiction over the Association
or Executive). Notwithstanding the foregoing, Executive may disclose any
knowledge of banking, financial and/or economic principles, concepts or ideas
which are not solely and exclusively derived from the business plans and
activities of the Association, and Executive may disclose any information
regarding the Association or the Company which is otherwise publicly available.
In the event of a breach or threatened breach by the Executive of the provisions
of this Section, the Association will be entitled to an injunction restraining
Executive from disclosing, in whole or in part, the knowledge of the past,
present, planned or considered business activities of the Association or
affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom such knowledge, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein will be construed as
prohibiting the Association from pursuing any other remedies available to the
Association for such breach or threatened breach, including the recovery of
damages from Executive.
14. SOURCE OF PAYMENTS
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Association. The Company, however,
guarantees payment and provision of all amounts and benefits due hereunder to
Executive and, if such amounts and benefits due from the Association are not
timely paid or provided by the Association, such amounts and benefits shall be
paid or provided by the Company.
15. NO EFFECT EMPLOYEE BENEFITS PLANS OR PROGRAMS
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Company or by the Executive, shall have
no effect on the vested rights of the executive under the Company's or the
Association's qualified or non-qualified retirement, pension, savings, thrift,
profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or other employee benefit plans or programs, or
compensation plans or programs in which the Executive was a participant.
16. REQUIRED REGULATORY PROVISIONS
(a) The Association may terminate Executive's employment at any time, but
any termination by the Association's Board other than Termination for Cause as
defined in Section 10 hereof shall not prejudice Executive's right to
compensation or other benefits under this Agreement. Executive shall have no
right to receive compensation or other benefits for any period after Termination
for Cause.
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(b) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Association's affairs by a
notice served under Section 8(e)(3) (12 USC ss.1818(e)(3)) or 8(g)(1)(12 USC
ss.1818(g)(1)) of the Federal Deposit Insurance Act, the Association's
obligations under this contract shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Association may in its discretion (i) pay the Executive all or
part of the compensation withheld while their contract obligations were
suspended and (ii) reinstate (in whole or in part) any of the obligations which
were suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Association's affairs by an order issued
under Section 8(e)(4) (12 USC ss.1818(e)(4)) or 8(g)(1)(12 USC ss.1818(g)(1)) of
the Federal Deposit Insurance Act, all obligations of the Association under this
contract shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
(d) If the Association is in default as defined in Section 3(x)(1) (12 USC
ss.1813(x)(1)) of the Federal Deposit Insurance Act, all obligations of the
Association under this contract shall terminate as of the date of default, but
this paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations under this contract shall be terminated, except to the
extent determined that continuation of the contract is necessary for the
continued operation of the Association, (i) by the Director of the OTS or his or
her designee, at the time the FDIC enters into an agreement to provide
assistance to or on behalf of the Association under the authority contained in
Section 13(c) (12 USC ss.1823(c)) of the Federal Deposit Insurance Act; or (ii)
by the Director or his or her designee at the time the Director or his or her
designee approves a supervisory merger to resolve problems related to operation
of the Association or when the Association is determined by the Director to be
in an unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
(f) Notwithstanding anything herein contained to the contrary, any
payments to the Executive by the Company, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the
regulations promulgated thereunder in 12 C.F.R. Part 359.
17. NO ATTACHMENT; BINDING ON SUCCESSORS
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Association and their respective successors and assigns.
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18. ENTIRE AGREEMENT; MODIFICATION AND WAIVER
(a) This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supercedes in its entirety any and all prior
agreements (including the Employment Agreement, dated February 16, 2001) and,
understandings or representations relating to the subject matter hereof, except
that the parties acknowledge that this Agreement shall not impact any of the
rights and obligations of the parties to the Company Employment Agreement or any
of the agreements or plans referenced in the Company Employment Agreement except
as set forth in Section 12(b) hereof. No modifications of this Agreement shall
be valid unless made in writing and signed by the parties hereto.
(b) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(c) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
19. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
20. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
21. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Maryland but
only to the extent not superseded by federal law.
22. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by the employee within
twenty-five miles of Dublin, Ohio in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination
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during the pendency of any dispute or controversy arising under or in connection
with this Agreement.
23. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Association, provided that the dispute or interpretation
has been settled by Executive and the Association or resolved in the Executive's
favor.
24. INDEMNIFICATION
During the term of this Agreement and for a period of six (6) years
thereafter, the Association shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors and
officers liability insurance policy at its expense, and shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under federal law against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Association (whether or not he continues to be a director or
officer at the time of incurring such expenses or liabilities), such expenses
and liabilities to include, but not be limited to, judgments, court costs and
attorneys fees and the cost of reasonable settlements (such settlements must be
approved by the Board of Directors of the Association). If such action, suit or
proceeding is brought against Executive in his capacity as an officer or
director of the Association, however, such indemnification shall not extend to
matters as to which Executive is finally adjudged to be liable for willful
misconduct in the performance of his duties.
25. SUCCESSOR TO THE ASSOCIATION
The Association shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Association or the Company,
expressly and unconditionally to assume and agree to perform the Association's
obligations under this Agreement, in the same manner and to the same extent that
the Association would be required to perform if no such succession or assignment
had taken place.
26. NOTICE
For the purposes 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 or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below:
To the Company: OC Financial, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
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To the Association: Ohio Central Savings
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
To Executive:
---------------------------
---------------------------
---------------------------
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SIGNATURES
IN WITNESS WHEREOF, the Association and the Company have caused this
Agreement to be executed and their seals to be affixed hereunto by their duly
authorized officers, and Executive has signed this Agreement, on the day and
date first above written.
ATTEST: OHIO CENTRAL SAVINGS
____________________ By:
------------------------------------------------
Secretary Chairman of the Board, President and
Chief Executive Officer
ATTEST: OC FINANCIAL, INC.
____________________ By:
------------------------------------------------
Secretary Chairman of the Board, President and
Chief Executive Officer
WITNESS: EXECUTIVE:
____________________ By:
------------------------------------------------
Xxxxx X. Xxxxx
Vice President and Chief Operations Officer
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