EXHIBIT 10(h)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into effective the
15th day of August, 2004, by and between Franklin Savings and Loan Company, a
savings and loan association incorporated under the laws of the State of Ohio
(the "EMPLOYER"), and Xxxxxxx X. Xxxxxx (the "EMPLOYEE"), an individual whose
residence address is 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000.
WITNESSETH:
WHEREAS, the EMPLOYER desires to retain the services of the EMPLOYEE in
accordance with the terms and conditions of this AGREEMENT;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the EMPLOYER and the EMPLOYEE agree as follows:
1. Employment and Term. The EMPLOYEE is hereby employed, and the EMPLOYEE
hereby accepts employment, upon the terms and conditions of this AGREEMENT. The
term of employment shall be for the period commencing on the date hereof and
shall end on August 14, 2007 (the "TERM"). Prior to the end of each year of the
TERM, the AGREEMENT may be extended for periods of one year each by the
EMPLOYER's Board of Directors ("BOARD") at its sole and exclusive discretion,
subject to the EMPLOYEE's acceptance thereof. Prior to granting any such
extension, the BOARD or the Chief Executive Officer of the EMPLOYER (the "CEO")
will conduct a performance evaluation of the EMPLOYEE, and the results of such
review shall be noted in the minutes of the meeting of the BOARD (the "ANNUAL
REVIEW"). The TERM of this AGREEMENT, together with each extension period, is
hereinafter referred to as the "EMPLOYMENT TERM".
2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. The EMPLOYEE shall
initially serve as a loan officer of the EMPLOYER, and not later than January
31, 2005, shall be designated as the Chief Lending Officer of the EMPLOYER. 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 BOARD 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 CEO.
(b) Devotion of Time to the EMPLOYER's Business. The EMPLOYEE shall
devote his entire productive time, ability and attention during normal business
hours throughout the EMPLOYMENT TERM to the faithful 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 or the CEO; provided, however, that the
EMPLOYEE shall not be precluded from: (i) vacations and other leave time in
accordance with Section 3(c) hereof; (ii) reasonable participation in community,
civic, charitable or similar organizations; (iii) reasonable participation in
industry-related activities including, but not limited to, attending industry
trade association conferences and meetings, and holding positions of
responsibility therein; (iv) serving as an officer and/or director of the
EMPLOYER's parent or subsidiaries and receiving and retaining compensation,
directors' fees and other benefits therefrom; or (v) the pursuit of personal
investments that do not interfere or conflict with the performance of the
EMPLOYEE's duties for the EMPLOYER.
3. Compensation, Benefits and Reimbursements.
(a) Salary. The EMPLOYEE shall receive an annual salary payable in
equal installments not less often than monthly. The amount of the annual salary
shall be $125,000 until changed by the BOARD. The amount of the EMPLOYEE's
annual salary shall be reviewed in connection with the ANNUAL REVIEW and shall
be set at an amount not less than $125,000, based upon the EMPLOYEE's individual
performance and the overall profitability and financial condition of the
EMPLOYER and such other factors as the EMPLOYER may deem relevant. Any
directors' fees received by the EMPLOYEE, whether paid by the EMPLOYER or any
other entity, shall be in addition to the salary provided for in this AGREEMENT
and may be retained by the EMPLOYEE in their entirety.
(b) Employee Benefit Programs. During the EMPLOYMENT TERM, the
EMPLOYEE shall be entitled to participate in all formally established employee
benefit, bonus, retirement plans and similar programs that are maintained by the
EMPLOYER from time to time, including programs regarding group health,
disability or life insurance, salary continuation insurance, reimbursement of
membership fees in civic, social and professional organizations, employee stock
ownership plan, stock option plan, pension or profit-sharing plan, and all
employee benefit plans or programs hereafter adopted in writing by the BOARD,
for which senior management personnel are eligible (collectively, the "BENEFIT
PLANS"). Notwithstanding the foregoing, the EMPLOYER may discontinue 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 the elimination of any such BENEFIT PLANS.
On the effective date of this AGREEMENT, the EMPLOYEE shall
receive an award of an option to purchase 2,000 shares of First Franklin
Corporation at an exercise price of $1.00 per share.
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(c) Vacation and Sick Leave.
(i) The EMPLOYEE shall be entitled to 20 days of paid leave
for vacation. Vacation time shall be scheduled by the EMPLOYEE in a reasonable
manner and shall be subject to approval by the CEO; and
(ii) The EMPLOYEE shall be entitled to annual sick leave in
accordance with the EMPLOYER's general sick leave policy.
(d) Disability. In the event of the disability, the EMPLOYER shall
be entitled to benefits in accordance with the terms and conditions of any
disability program maintained by the EMPLOYER.
(e) Expenses. The EMPLOYER 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 including
participation in industry-related activities. Such reimbursement shall be made
in accordance with the existing policies and procedures of the EMPLOYER
pertaining to reimbursement of expenses to senior management officials.
4. Termination of Employment. The EMPLOYER may terminate the employment of
the EMPLOYEE at any time during the EMPLOYMENT TERM. In the event that the
EMPLOYER terminates the employment of the EMPLOYEE during the EMPLOYMENT TERM
because of the EMPLOYEE's personal dishonesty, 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
(collectively, "JUST CAUSE"), the EMPLOYEE shall have no right to receive any
compensation or other benefits for any period after such termination. If the
EMPLOYER terminates the employment of the EMPLOYEE during the EMPLOYMENT TERM
for any reason other than JUST CAUSE, the EMPLOYEE, depending on the
circumstances, shall be entitled to the following:
(a) Termination After CHANGE OF CONTROL. If, in connection with or
within one year after a CHANGE OF CONTROL (hereinafter defined) of the EMPLOYER,
the EMPLOYEE elects to terminate his employment or the EMPLOYER terminates the
employment of the EMPLOYEE for any reason other than JUST CAUSE, then the
following shall occur:
(i) The EMPLOYER shall promptly pay to the EMPLOYEE or to his
beneficiaries, dependents or estate an amount equal to three times the
EMPLOYEE's "average annual compensation" as such term is defined in Section 280G
of the Internal Revenue Code of 1986, as amended.
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(ii) The EMPLOYEE, his eligible dependents and beneficiaries
shall continue to be covered under any group health, hospitalization and
disability plans maintained by the EMPLOYER at the EMPLOYER's expense and as if
the EMPLOYEE were still employed under this AGREEMENT, to the extent permitted
under the terms of such plans, until the earliest of (A) the end of the
EMPLOYMENT TERM or (B) the date on which the EMPLOYEE is included in another
employer's plans providing comparable benefits and coverage.
(b) Termination without CHANGE OF CONTROL. In the event the EMPLOYER
terminates the employment of the EMPLOYEE for any reason other than JUST CAUSE,
and the termination is not in connection with a CHANGE OF CONTROL pursuant to
Section 4(a) of this AGREEMENT, the EMPLOYER shall be obligated to continue to
(i) pay on a monthly basis to the EMPLOYEE, his designated beneficiaries or his
estate, his annual salary provided pursuant to Section 3(a) of this AGREEMENT as
of the date of termination until the end of the EMPLOYMENT TERM; and (ii)
provide to the EMPLOYEE, his eligible dependents and beneficiaries, at the
EMPLOYER's expense, group health benefits, hospitalization and disability
benefits substantially equal to those being provided to the EMPLOYEE at the date
of termination of his employment, to the extent permitted under the terms of
such plans, until the earliest to occur of (A) the first anniversary of the
effective date of the EMPLOYEE's termination, or (B) the date the EMPLOYEE is
included in another employer's plans providing comparable benefits and coverage.
(c) Death of the EMPLOYEE. The EMPLOYMENT TERM shall automatically
terminate 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.
(d) No Mitigation. The EMPLOYEE shall not be required to mitigate
the amount of any payment provided for in this AGREEMENT, whether in this
Section 4 or elsewhere 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 EMPLOYER hereunder,
except as specifically stated in (a)(ii) and (b)(ii) of this Section 4.
(e) "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. Section 1828(k) and any regulations promulgated
thereunder.
(f) Definition of "CHANGE OF CONTROL". A "CHANGE OF CONTROL" shall
mean any one of the following events; (i) the acquisition of ownership or power
to vote more than 25% of the voting stock of the EMPLOYER or its parent company;
(ii) the acquisition of the ability to control the election of a majority of the
directors of the EMPLOYER or its parent company; (iii) during any period of up
to two consecutive years, individuals who at the beginning of such period
constitute the board of directors of the EMPLOYER or its parent company cease
for any reason to constitute at least two-thirds thereof; provided, however,
that any individual whose election or nomination for election as a member of
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the board of directors of the EMPLOYER or its parent company was approved by a
vote of at least two-thirds of the directors then in office shall be considered
to have continued to be a member of the board of directors of the EMPLOYER or
its parent company; or (iv) the acquisition by any person or entity of
"conclusive control" of the EMPLOYER within the meaning of 12 C.F.R. Section
574.4(a), or the acquisition by any person or entity of "rebuttable control"
within the meaning of 12 C.F.R. Section 574.4(b) that has not been rebutted in
accordance with 12 C.F.R. Section 574.4(c). For purposes of this paragraph, the
term "person" refers to an individual or corporation, partnership, trust,
association, or other organization, but does not include the EMPLOYEE and any
person or persons with whom the EMPLOYEE is "acting in concert" within the
meaning of 12 C.F.R. Part 574.
5. Special Regulatory Events. Notwithstanding Section 4 of this AGREEMENT,
the obligations of the EMPLOYER 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 the EMPLOYER's affairs by a notice served under
section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (the "FDIA"), the
EMPLOYER's 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 EMPLOYER shall 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 the EMPLOYER's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the FDIA, all obligations of the EMPLOYER 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 the EMPLOYER 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 EMPLOYER, (i) by the Director of
the OTS, or his or her designee at the time that the Federal Deposit Insurance
Corporation enters into an agreement to provide assistance to or on behalf of
the EMPLOYER 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 approves a supervisory merger to resolve problems related to the
operation of the EMPLOYER or when the EMPLOYER is determined by the Director of
the OTS to be in an unsafe or unsound condition; provided, however that no
vested rights of the EMPLOYEE shall be affected by any such termination; and
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(e) The provisions of this Section 5 are governed by the
requirements of 12 C.F.R. Section 563.39(b) and in the event that any statements
in this Section 5 are inconsistent with 12 C.F.R. Section 563.39(b), the
provisions of 12 C.F.R. Section 563.39(b) shall be controlling.
6. Confidential Information. The EMPLOYEE acknowledges that during his
employment he has learned, will learn and will have access to confidential
information regarding the EMPLOYER and its customers and business. 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 information, unless or until the
EMPLOYER consents 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 EMPLOYER, its 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
EMPLOYER. The EMPLOYEE shall not otherwise knowingly act or conduct himself to
the material detriment of the EMPLOYER, its subsidiaries or affiliates or in a
manner which is inimical or contrary to the interests of the EMPLOYER.
7. Nonassignability. Neither this AGREEMENT nor any right or interest
hereunder shall be assignable by the EMPLOYEE, his beneficiaries or legal
representatives without the EMPLOYER's prior written consent; provided, however,
that nothing in this Section 7 shall preclude (i) the EMPLOYEE from designating
a beneficiary to receive any benefits payable hereunder upon his death or (ii)
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.
8. 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.
9. Binding Agreement. This AGREEMENT shall be binding upon, and inure to
the benefit of, the EMPLOYEE and the EMPLOYER and their respective permitted
successors and assigns.
10. Amendment of AGREEMENT. This AGREEMENT may not be modified or amended,
except by an instrument in writing signed by the parties hereto.
11. 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.
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12. 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 EMPLOYER (or any predecessor thereof) and the EMPLOYEE shall be
deemed reinstated, as if this AGREEMENT had not been executed.
13. 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.
14. 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 the State of Ohio, except to the extent that
federal law is governing.
15. Effect of Prior Agreements. This AGREEMENT contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement between the EMPLOYER, or any predecessor of the EMPLOYER, and the
EMPLOYEE.
IN WITNESS WHEREOF, the EMPLOYER has caused this AGREEMENT to be executed
by its duly authorized officers, and the EMPLOYEE has signed this AGREEMENT, all
as of the day and year first above written.
Attest: FRANKLIN SAVINGS AND LOAN COMPANY
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
its President
Witness:
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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