1
XXXXXX FEDERAL FINANCIAL CORPORATION
EXHIBIT NO. 10.1
-------------------------------------------------------------------------------
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into this 29th day of November, 1996, by and between
Xxxxxx Federal Financial Corporation, a savings and loan holding company
incorporated under Ohio law (hereinafter referred to as "MFFC"), Xxxxxx Federal
Savings Bank, a savings bank incorporated under Ohio law and a wholly-owned
subsidiary MFFC (hereinafter referred to as "XXXXXX FEDERAL"), and Xxxxx X.
Xxxx, an individual (hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of MFFC and XXXXXX FEDERAL
(hereinafter collectively referred to as the "EMPLOYERS");
WHEREAS, as a result of the skill, knowledge and experience of the
EMPLOYEE, the Boards of Directors of the EMPLOYERS desire to retain the
services of the EMPLOYEE as the President and Chief Executive Officer of each
of the EMPLOYERS;
WHEREAS, the EMPLOYEE desires to continue to serve as the President
and Chief Executive Officer of each of the EMPLOYERS; and
WHEREAS, the EMPLOYEE and the EMPLOYERS desire to enter into this
Agreement to set forth the terms and conditions of the employment relationship
between the EMPLOYERS and the EMPLOYEE;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the EMPLOYERS and the EMPLOYEE hereby agree as follows:
Section 1. Employment and Term.
Upon the terms and subject to the conditions of this AGREEMENT, the
EMPLOYERS hereby employ the EMPLOYEE, and the EMPLOYEE hereby accepts
employment, as the President and Chief Executive Officer of each of the
EMPLOYERS. The term of this AGREEMENT shall commence on the date hereof and
shall end on November 28, 1999 (hereinafter referred to as the "TERM"). In
December of each year, the Boards of Directors of the EMPLOYERS shall review
the EMPLOYEE's performance and record the results of such review in the minutes
of the Board of Directors.
Section 2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. As the President and Chief
Executive Officer of each of the EMPLOYERS, the EMPLOYEE shall perform the
duties and responsibilities customary for such offices to the best of his
ability and in accordance with the policies established by the Boards of
Directors of the EMPLOYERS and all applicable laws and regulations. The
EMPLOYEE shall perform such other duties not inconsistent with his position as
may be assigned to him from time to time by the Boards of Directors of the
EMPLOYERS; provided, however, that the EMPLOYERS shall employ the EMPLOYEE
during the TERM in a senior executive capacity without material diminishment of
the importance or prestige of his position.
(b) Devotion of Entire Time to the Business of the EMPLOYERS. The
EMPLOYEE shall devote his entire productive time, ability and attention during
normal business hours throughout the TERM to the faithful
-88-
2
performance of his duties under this AGREEMENT. The EMPLOYEE shall not directly
or indirectly render any services of a business, commercial or professional
nature to any person or organization without the prior written consent of the
Board of Directors of the EMPLOYERS; provided, however, that the EMPLOYEE shall
not be precluded from (i) vacations and other reasonable participation in
community, civic, charitable or similar organizations; or (iii) the pursuit of
personal investments which do not interfere or conflict with the performance of
the EMPLOYEE's duties to the EMPLOYERS.
Section 3. Compensation, Benefits and Reimbursements.
(a) Salary. The EMPLOYEE shall receive during the TERM an annual
salary payable in equal installments not less often than monthly. The amount of
such annual salary shall be $110,937 until changed by the Board of Directors of
the EMPLOYERS in accordance with Section 3(b) of this AGREEMENT.
(b) Annual Salary Review. In December of each year throughout the
TERM, the annual salary of the EMPLOYEE shall be reviewed by the Boards of
Directors of the EMPLOYERS and shall be set, effective January 1 of the
following year, at an amount not less than $110,937, based upon the EMPLOYEE's
individual performance and the overall profitability and financial condition of
the EMPLOYERS (hereinafter referred to as the "ANNUAL REVIEW"). The results of
the ANNUAL REVIEW shall be reflected in the minutes of the Boards of Directors
of the EMPLOYERS.
(c) Expenses. In addition to any compensation received under Section
3(a) or (b) of this AGREEMENT, the EMPLOYERS shall pay or reimburse the
EMPLOYEE for all reasonable travel, entertainment and miscellaneous expenses
incurred in connection with the performance of his duties under this AGREEMENT.
Such reimbursement shall be made in accordance with the existing policies and
procedures of the EMPLOYERS pertaining to reimbursement of expenses to senior
management officials.
(d) Employee Benefit Program
(i) During the TERM, the EMPLOYEE shall be entitled to
participate in all formally established employee benefit,
bonus, pension and profit-sharing plans and similar programs
that are maintained by the EMPLOYERS from time to time,
including programs in respect of group health, disability or
life insurance, and all employee benefit plans or programs
hereafter adopted in writing by the Boards of Directors of
the EMPLOYERS, for which senior management personnel are
eligible, including any employee stock ownership plan, stock
option plan or other stock benefit plan (hereinafter
collectively referred to as the "BENEFIT PLANS").
Notwithstanding the foregoing sentence, the EMPLOYERS may
discontinue or terminate at any time any such BENEFIT PLANS,
now existing or hereafter adopted, to the extent permitted by
the terms of such plans and shall not be required to
compensate the EMPLOYEE for such discontinuance or
termination.
(ii) After the expiration of the TERM or the termination of
the employment of the employee for any reason other than JUST
CAUSE (as defined hereinafter), the EMPLOYERS shall provide a
group health insurance program in which the EMPLOYEE and his
spouse will be eligible to participate and which shall
provide substantially the same benefits as are available to
retired employees of the EMPLOYERS on the date of this
AGREEMENT until both the EMPLOYEE and his spouse become 65
years of age; provided, however that all premiums for such
program shall be paid by the EMPLOYEE and/or his spouse after
the EMPLOYEE's retirement; provided further, however, that
the EMPLOYEE may only participate in such program for as long
as the EMPLOYERS make available an employee group health
insurance program which permits the EMPLOYERS to make
coverage available for retirees.
-89-
3
(e) Vacation and Sick Leave. The EMPLOYEE shall be entitled, without
loss of pay, to be absent voluntarily from the performance of his duties under
this AGREEMENT, subject to the following conditions:
(i) The EMPLOYEE shall be entitled to an annual vacation in
accordance with the policies periodically established by the
Boards of Directors of the EMPLOYERS for senior management
officials of the EMPLOYERS, the duration of which shall not
be less than six weeks each calendar year;
(ii) Vacation time shall be scheduled by the EMPLOYEE in a
reasonable manner and shall be subject to approval by the
Boards of Directors of the EMPLOYERS. The EMPLOYEE shall not
be entitled to receive any additional compensation from the
EMPLOYERS in the event of his failure to take the full
allotment of vacation time in any calendar year; provided,
however, that a maximum of one week of unused vacation time
in any calendar year may be carried over into any succeeding
calendar year; and
(iii) The EMPLOYEE shall be entitled to annual sick leave as
established by the Boards of Directors of the EMPLOYERS for
senior management officials of the EMPLOYERS. In the event
that any sick leave time shall not have been used during any
calendar year, such leave shall accrue to subsequent calendar
years, only to the extent authorized by the Boards of
Directors of the EMPLOYERS. Upon termination of employment,
the EMPLOYEE shall not be entitled to receive any additional
compensation from the EMPLOYERS for unused sick leave.
Section 4. Termination of Employment.
(a) General. In addition to the termination of the employment of the
EMPLOYEE upon the expiration of the TERM, the employment of the EMPLOYEE shall
terminate at any other time during the TERM upon the delivery by the EMPLOYERS
of written notice of employment termination to the EMPLOYEE. Without limiting
the generality of the foregoing sentence, the following subparagraphs (i), (ii)
and (iii) of this Section 4(a) shall govern the obligations of the EMPLOYERS to
the EMPLOYEE upon the occurrence of the events described in such subparagraphs:
(i) Termination for JUST CAUSE. In the event that the
EMPLOYERS terminate the employment of the EMPLOYEE during the
TERM because of the EMPLOYEE's personal dishonest,
incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure or refusal to
perform the duties and responsibilities assigned in this
AGREEMENT, willful violation of any law, rule, regulation or
final cease-and-desist order (other than traffic violations
or similar offenses), conviction of a felony or for fraud or
embezzlement, or material breach of any provision of this
AGREEMENT (hereinafter collectively referred to as "JUST
CAUSE"), the EMPLOYEE shall not receive, and shall have no
right to receive, any compensation or other benefits for any
period after such termination.
(ii) Termination after CHANGE OF CONTROL. In the event that,
before the expiration of the TERM and in connection with or
within one year after a CHANGE OF CONTROL (as defined
hereinafter) of either one of the EMPLOYERS, (A) the
employment of the EMPLOYEE is terminated for any reason other
than JUST CAUSE before the expiration of the TERM, (B) the
present capacity or circumstances in which the EMPLOYEE is
employed are materially changed before the expiration of the
TERM, or (C) the EMPLOYEE's responsibilities, authority,
compensation or other benefits provided under this AGREEMENT
are materially reduced, then the following shall occur:
-90-
4
(I) The EMPLOYERS shall promptly pay to the EMPLOYEE
or to his beneficiaries, dependents or estate an
amount equal to the sum of (1) the amount of
compensation to which the EMPLOYEE would be entitled
for the remainder of the TERM under this AGREEMENT,
plus (2) the difference between (x) the product of
three, multiplied by the greater of the annual
salary set forth in Section 3(a) of this AGREEMENT
or the annual salary payable to the EMPLOYEE as a
result of any ANNUAL REVIEW, less (xx) the amount
paid to the EMPLOYEE pursuant to clause (1) of this
subparagraph (I);
(II) The EMPLOYEE, his dependents, beneficiaries and
estate shall continue to be covered under all
BENEFIT PLANS of the EMPLOYERS at the EMPLOYERS'
expense as if the EMPLOYEE were still employed under
this AGREEMENT until the earliest of the expiration
of the TERM or the date on which the EMPLOYEE is
included in another employer's benefit plans as a
full-time employee; and
(III) The EMPLOYEE shall not be required to mitigate
the amount of any payment provided for in this
AGREEMENT by seeking other employment or otherwise,
nor shall any amounts received from other employment
or otherwise by the EMPLOYEE offset in any manner
the obligations of the EMPLOYERS hereunder, except
as specifically stated in subparagraph (II).
In the event that payments pursuant to this subsection (ii)
would result in the imposition of a penalty tax pursuant to
Section 280G(b)(3) of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder
(hereinafter collectively referred to as "SECTION 280G"),
such payments shall be reduced to the maximum amount which
may be paid under SECTION 280G without exceeding such limits.
Payments pursuant to this subsection also may not exceed the
limit set forth in Regulatory Bulletin 27a of the Office of
Thrift Supervision.
(iii) Termination Without CHANGE OF CONTROL. In the event
that the employment of the EMPLOYEE is terminated before the
expiration of the TERM other than (A) for JUST CAUSE or (B)
in connection with or within one year after a CHANGE OF
CONTROL, the EMPLOYERS shall be obligated to continue (1) to
pay on a monthly basis to the EMPLOYEE, his designated
beneficiaries of his estate, his annual salary provided
pursuant to Section 3(a) or (b) of this AGREEMENT until the
expiration of the TERM and (2) to provide to the EMPLOYEE, at
the EMPLOYERS' expense, health, life, disability, and other
benefits substantially equal to those being provided to the
EMPLOYEE at the date of termination of his employment until
the earliest to occur of the expiration of the TERM or the
date the EMPLOYEE becomes employed full-time by another
employer. In the event that payments pursuant to this
subsection (iii) would result in the imposition of a penalty
tax pursuant to SECTION 280G, such payments shall be reduced
to the maximum amount which may be paid under SECTION 280G
without exceeding those limits. Payments pursuant to this
subsection also may not exceed the limit set forth in
Regulatory Bulletin 27a of the Office of Thrift Supervision.
(b) Death of the EMPLOYEE. The TERM automatically terminates upon the
death of the EMPLOYEE. In the event of such death, the EMPLOYEE's estate shall
be entitled to receive the compensation due the EMPLOYEE through the last day
of the calendar month in which the death occurred, except as otherwise
specified herein.
(c) "Golden Parachute" Provision. Any payments made to the EMPLOYEE
pursuant to this AGREEMENT or otherwise are subject to and conditioned upon
their compliance with 12 U.S.C. Paragraph 1828(k) and any regulations
promulgated thereunder.
-91-
5
(d) Definition of "CHANGE OF CONTROL". A "CHANGE OF CONTROL" shall be
deemed to have occurred in the event that, at any time during the EMPLOYMENT
TERM, either any person or entity obtains "conclusive control" of the EMPLOYERS
within the meaning of 12 C.F.R. Paragraph 574.4(a), or any person or entity
obtains "rebuttable control" within the meaning of 12 C.F.R. Paragraph 574.4(b)
and has not rebutted control in accordance with 12 C.F.R. Paragraph 574.4(c).
Section 5. Special Regulatory Events.
Notwithstanding Section 4 of this AGREEMENT, the obligations of the EMPLOYERS
to the EMPLOYEE shall be as follows in the event of the following
circumstances:
(a) If the EMPLOYEE is suspended and/or temporarily prohibited from
participating in the conduct of MFFC's or XXXXXX FEDERAL's affairs by a notice
served under section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act
(hereinafter referred to as the "FDIA"), the EMPLOYERS' obligations under this
AGREEMENT shall be suspended as of the date of service of such notice, unless
stayed by appropriate proceedings. If the charges in the notice are dismissed,
the EMPLOYERS may, in their discretion, pay the EMPLOYEE all or part of the
compensation withheld while the obligations in this AGREEMENT were suspended
and reinstate, in whole or in part, any of the obligations that were suspended.
(b) If the EMPLOYEE is removed and/or permanently prohibited from
participating in the conduct of MFFC's or XXXXXX FEDERAL's affairs by an order
issued under Section 8(e)(4) or (g)(1) of the FDIA, all obligations of the
EMPLOYERS under this AGREEMENT shall terminate as of the effective date of such
order; provided, however, that vested rights of the EMPLOYEE shall not be
affected by such termination.
(c) If XXXXXX FEDERAL is in default as defined in section 3(x)(1) of
the FDIA, all obligations under this AGREEMENT shall terminate as of the date
of default; provided, however, that vested rights of the EMPLOYEE shall not be
affected.
(d) All obligations under this AGREEMENT shall be terminated, except
to the extent of a determination that the continuation of this AGREEMENT is
necessary for the continued operation of the EMPLOYERS, (i) by the Director of
the Office of Thrift Supervision (hereinafter referred to as the "OTS"), or his
or her designee at the time that the Federal Deposit Insurance Corporation or
the Resolution Trust Corporation enters into an agreement to provide assistance
to or on behalf of XXXXXX FEDERAL under the authority contained in Section
13(c) of the FDIA or (ii) by the Director of the OTS, or his or her designee,
at any time the Director of the OTS, or his or her designee, approves a
supervisory merger to resolve problems related to the operation of XXXXXX
FEDERAL or when XXXXXX FEDERAL is determined by the Director of the OTS to be
in an unsafe or unsound condition. No vested rights of the EMPLOYEE shall be
affected by any such action.
Section 6. Consolidation, Merger or Sale of Assets.
Nothing in this AGREEMENT shall preclude the EMPLOYERS from consolidating with,
merging into, or transferring all, or substantially all, of their assets to
another corporation that assumes all of the EMPLOYERS' obligations and
undertakings hereunder. Upon such a consolidation, merger or transfer of
assets, the term "EMPLOYERS" as used herein, shall mean such other corporation
or entity, and this AGREEMENT shall continue in full force and effect.
Section 7. Confidential Information.
The EMPLOYEE acknowledges that during his employment he will learn and have
access to confidential information regarding the EMPLOYERS and their customers
and businesses. The EMPLOYEE agrees and covenants not to disclose or use for
his own benefit, or the benefit of any other person or entity, any confidential
-92-
6
information, unless or until the EMPLOYERS consent to such disclosure or use or
such information becomes common knowledge in the industry or is otherwise
legally in the public domain. The EMPLOYEE shall not knowingly disclose or
reveal to any unauthorized person any confidential information relating to the
EMPLOYERS, their subsidiaries or affiliates, or to any of the businesses
operated by them, and the EMPLOYEE confirms that such information constitutes
the exclusive property of the EMPLOYERS. The EMPLOYEE shall not otherwise
knowingly act or conduct himself (a) to the material detriment of the
EMPLOYERS, their subsidiaries, or affiliates, or (b) in a manner which is
inimical or contrary to the interests of the EMPLOYERS.
Section 8. Nonassignability.
Neither this AGREEMENT nor any right or interest hereunder shall be assignable
by the EMPLOYEE, his beneficiaries, or legal representatives without the
EMPLOYERS' prior written consent; provided, however, that nothing in this
Section 8 shall preclude (a) the EMPLOYEE from designating a beneficiary to
receive any benefits payable hereunder upon his death, or (b) the executors,
administrators, or other legal representatives of the EMPLOYEE or his estate
from assigning any rights hereunder to the person or persons entitled thereto.
Section 9. No Attachment.
Except as required by law, no right to receive payment 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 of assignment by operation of law, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void and of
no effect.
Section 10. Binding Agreement.
This AGREEMENT shall be binding upon, and inure to the benefit of, the EMPLOYEE
and the EMPLOYERS and their respective permitted successors and assigns.
Section 11. Amendment of Agreement.
This AGREEMENT may not be modified or amended, except by an instrument in
writing signed by the parties hereto.
Section 12. Waiver.
No term or condition of this AGREEMENT shall be deemed to have been waived, nor
shall there be an 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 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 or as to any act other than the act
specifically waived.
Section 13. Severability.
If, for any reason, any provision of this AGREEMENT is held invalid, such
invalidity shall not affect the other provisions of this AGREEMENT not held so
invalid, and each such other provision shall, to the full extent consistent
with applicable law, continue in full force and effect. If this AGREEMENT is
held invalid or cannot be enforced, then any prior AGREEMENT between the
EMPLOYERS (or any predecessor thereof) and the EMPLOYEE shall be deemed
reinstated to the full extent permitted by law, as if this AGREEMENT had not
been executed.
-93-
7
Section 14. Headings.
The headings of the 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.
Section 15. Governing Law.
This AGREEMENT has been executed and delivered in the State of Ohio and its
validity, interpretation, performance, and enforcement shall be governed by the
laws of this State of Ohio, except to the extent that federal law is governing.
Section 16. Effect of Prior Agreements.
This AGREEMENT contains the entire understanding between the parties hereto and
supersedes any prior employment agreement between the EMPLOYERS or any
predecessors of the EMPLOYERS and the EMPLOYEE.
Section 17. Notices.
Any notice or other communication required or permitted pursuant to this
AGREEMENT shall be deemed delivered if such notice or communication is in
writing and is delivered personally or by facsimile transmission or is
deposited in the United States mail, postage prepaid, addressed as follows:
If to MFFC and/or XXXXXX FEDERAL:
Xxxxxx Federal Savings Bank
00 Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
-94-
8
With copies to:
Xxxx X. Xxxxx, Esq.
Vorys, Xxxxx, Xxxxxxx and Xxxxx
Atrium Two, Suite 2100
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
If to the EMPLOYEE to:
Xx. Xxxxx X. Xxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the EMPLOYERS have caused this AGREEMENT to be
executed by its duly authorized officer, and the EMPLOYEE has signed this
AGREEMENT, each as of the day and year first above written.
ATTEST: XXXXXX FEDERAL FINANCIAL CORPORATION
_________________________ By_________________________
________________________
its________________________
ATTEST: XXXXXX FEDERAL SAVINGS BANK
__________________________ By________________________
________________________
its________________________
ATTEST:
__________________________ __________________________
-95-
