Separation Agreement with Release of All Claims
This separation agreement with release of all claims ("Agreement"),
by and among The Provident Bank ("Bank"), Provident Financial Group,
Inc. ("Provident") and Xxxxxx X. Xxxxx ("Employee"). (Provident, Bank
and their affiliates are referred to herein as the ("Employer")).
NOW, THEREFORE, in consideration of this Agreement and of the mutual
promises and covenants hereinafter set forth, the parties hereto agree
as follows:
1) Retirement. Employee irrevocably agrees to retire effective
February 5, 2005. Until that time, Employee shall retain his status as
a full-time active employee of Bank. Employee hereby resigns effective
February 5, 2002 as an officer of Employer. During the period from
February 6, 2002 until February 5, 2005, Employee agrees to provide
such services as Employee and Employer shall, from time to time,
mutually agree to. The refusal by Employee to accept any assignment or
project shall not be construed as a breach of this Agreement.
2) Compensation to Employee. Employee shall receive compensation at
his current level until February 5, 2002 and shall be eligible to
receive his full bonus for 2001 in accordance with the Employer's
regular compensation practices. Employer agrees to continue
compensating Employee for the period from February 6, 2002 to February
5, 2005 at a total annual compensation rate of $350,000, payable
bi-weekly, less the reimbursement for any benefits pursuant to
Paragraph 3 below, all subject to normal withholding taxes. Employee
shall not be eligible to receive bonus or other compensation with
respect to the period after February 5, 2002. Should Employee die prior
to February 5, 2005, his widow, or his estate, should his spouse
pre-decease Employee, or his widow's estate if she dies after Employee,
shall receive any remaining compensation outlined in this Paragraph 2.
Except as set forth herein, Employee shall not be entitled to any
additional compensation from Employer.
3) Benefits. Employee shall continue to receive those standard
benefits provided to full time active employees of Employer until the
retirement of Employee on February 5, 2005, as such benefits may be
amended or changed from time to time in the sole discretion of
Employer, with the exception of the benefits listed below. This
Agreement shall not be construed to limit in any respect the Employer's
right to establish, amend, modify or terminate any benefit, plan or
policy. For the period after February 5, 2002, Employee shall pay the
standard employee portion of the cost for such benefits and shall also
reimburse Employer for the portion of the cost of such benefits
normally paid by Employer. Such costs shall be deducted from the
compensation payable to the Employee pursuant to Paragraph 2 above.
Costs to be reimbursed by Employee shall include, without limitation,
health, dental, life, ADD and disability insurance premiums,
contributions and matching payments to the Retirement Plan and Deferred
Compensation Plan. Upon retirement, Employee shall be eligible to
receive all standard benefits then being offered to retired employees
at the time of Employee's retirement.
(a) Deferred Compensation Plan. Subsequent to January 1, 2002,
Employee shall not defer additional compensation to Employee's
Provident Deferred Compensation Plan Provident ("Plan") Stock
Accounts. All funds held in Employee's Provident Stock Accounts
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shall be transferred to Employee's Self Directed Account effective
as of February 5, 2002. Employee shall be entitled to receive 1/12
of the Benefit, if any, payable with respect to Provident Stock
Accounts for the 2002 Plan Year, determined for purposes of Section
4.5(b) of the Plan as if Employee separated from employment with
Employer on February 5, 2002. Any contribution by Employer to
Employee's Self Directed Account for the Retirement Plan ESOP Credit
or the Retirement Plan Matching Credit pursuant to Sections 6.4 and
6.5 of the Deferred Compensation Plan for Plan Years after 2001,
shall be reimbursed to Employer by Employee.
(b) Split Dollar Insurance. Pursuant to the Employer's Split
Dollar Insurance Program and a Split Dollar Agreement dated July 24,
1995 between the Bank and The Provident Bank, as Trustee for the
Xxxxxx X. Xxxxx Trust U/A dated December 1, 1981, as amended, and a
Split Dollar Insurance Agreement between The Provident Bank, as
Trustee for the Xxxxx Liquidity Trust u/a dated September 18, 1990,
the Bank has purchased two policies of insurance on Employee's life
and has agreed to loan to Employee's Trusts certain amounts to be
used by Employee's Trusts to pay a portion of the annual premium on
the policies, with any excess premium due being the responsibility
of Employee's Trusts. Bank shall continue to pay its portion of the
premium due on the policies, determined in accordance with its
customary procedures, until February 5, 2005 and Employee's Trusts
shall pay the remainder of the premium due. Amounts loaned to the
Trusts under the Split Dollar Agreement shall be payable to Employer
upon Employee's retirement pursuant to the terms of the Split Dollar
Agreement.
(c) Excess Benefit Plan. Employee currently participates in the
Provident Excess Benefit Deferred Compensation Plan. Employee shall
not receive any Employer contributions to such plan for the Plan
Years subsequent to the 2001 Plan Year.
(d) Supplemental Executive Retirement Plan. Employee currently
participates in the Employer's Supplemental Executive Retirement
Plan ("SERP"). Employee and Employer agree that for the purpose of
the SERP only, Employee shall be deemed to have terminated his
employment with Employer on February 5, 2002 and Employee shall only
be entitled to the Termination Benefit provided by Article 5 of the
SERP computed assuming Employee's employment terminated on February
5, 2002. Employee shall not be entitled to receive any other
benefits from the SERP and shall not be an active participant in the
SERP after February 5, 2002. For purposes of computing Employee's
"Years of Credited Service" under the SERP, all service with
American Financial Corporation and its affiliates shall count as
Years of Credited Service with Employer.
4) Stock Options. Employee currently is the holder of certain stock
options granted to Employee by Provident. Employee agrees that the term
of any of such stock options which by its original terms expires after
March 1, 2004, is hereby amended to provide that the term of such
option shall expire on March 1, 2004. Notwithstanding the preceding
sentence, should Employee die prior to the expiration of any of such
options, Employee's estate, or those persons to whom any of such
options may have been transferred as permitted by the terms of such
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options, may exercise any of such options during the period expiring on
the earlier of (i) one year after the date of Employee's death, or (ii)
ten years after the date of grant of the option in question. Further
notwithstanding the forgoing, in the event Provident has, prior to the
expiration of any of such options, entered into a definitive agreement
providing for the merger, other than a merger for the purpose of the
redomestication of Provident not involving a change in control,
consolidation, exchange or other transaction in which Provident is not
the surviving corporation or in which the outstanding shares of
Provident are converted into cash, other securities or other property,
the term of any of such options which has not expired prior to the date
of such definitive agreement shall be extended to such date which is
thirty (30) days following the latter of (i) the date of the
consummation of such transaction, or (ii) the date of the public
announcement of the abandonment of such transaction; provided, however,
that in no event shall any of such options be excisable after the
expiration of ten years from the date of grant of such options. Except
as amended hereby, the original terms of such options shall remain in
full force and effect.
5) Life Insurance. Employer currently is the owner of a Metropolitan
Life Insurance Company policy in the face amount of two million five
hundred thousand dollars ($2,500,000) on the life of Employee. Employer
shall assign the ownership of such policy to Employee on or before
February 5, 2002 upon the payment by Employee to Employer of the cash
surrender value of such policy on the date of payment.
6) Non-Disclosure. The Employer and Employee agree that each will
keep the terms and provisions of this Agreement completely confidential
with the exception that a copy of this Agreement will be filed by
Provident with the Securities Exchange Commission ("SEC") and reference
to the terms of the Agreement may be included in certain SEC filings by
Provident. Employee further agrees not to disclose any information
concerning this Agreement to anyone, including, but by no means limited
to, any past, present or prospective customer, client, employee or
applicant for employment with Employer. Nothing herein shall preclude
Employee from disclosing the terms and conditions of this Agreement to
his immediate family, his attorney or his accountant and pursuant to
any court action or subpoena. Employee further agrees to refrain from
making critical, negative or disparaging statements about the Employer,
their officers, managers, agents or employees and agrees to do nothing
to damage the reputation or goodwill of the Employer. The Employer and
its senior management and directors agree to refrain from making
critical, negative or disparaging statements of any kind about Employee
and agrees to do nothing to damage the reputation of Employee.
7) Re-Employment. Employee specifically acknowledges and agrees that
at no time shall he seek or accept re-employment with the Employer.
8) Confidentially. Employee agrees not to misuse or divulge to any
person or entity, in any way or form, any proprietary information of
the Employer, or any of its affiliates, subsidiaries or divisions,
including customer lists, prices, pricing policies, processes or
methods of operations or plans, and not to remove or copy any records
or materials of the Employer, or any of its affiliates, subsidiaries or
divisions, and not to attempt to induce, either directly or indirectly,
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any present or future officers of the Employer, or any of its
affiliates, subsidiaries or divisions, to leave such employment.
9) Release; Indemnification. On his own behalf, and on behalf of all
other persons, including his heirs, successors and assigns, Employee
hereby waives, releases, discharges and covenants not to sue, or bring
any legal actions or suits against the Employer, their directors,
officers, managers, agents or employees, successors, assigns or
affiliated entities, with respect to any issue or issues relating to,
or arising out of, or which could have arisen out of, Employee's
employment with Employer, or Employee's retirement pursuant to this
Agreement, including any grievances, demands, complaints, suits or
disputes based on race, color, religion, age, sex, marital status,
national origin, handicap, disability or ancestry, retaliation or other
civil rights claims, causes of action, rights, damages, covenants,
contracts, agreements, judgments or claims or other monetary amounts
claimed due and owing of any nature whatsoever, whether known or
unknown, foreseen or unforeseen, including actions based on tortuous
conduct or breach of contract, promissory estoppel or covenant of good
faith, except those obligations of Employer expressly set forth in this
Agreement.
On his own behalf, and on behalf of all other person, Xxxxxxxx also
agrees not to threaten, initiate, pursue or assist anyone in asserting
any claim, cause of action or lawsuit against Employer based on or
relating to Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, or any other federal or state
law, regulation, common law or public notice, concerning any matter
arising out of or related in any way to Employee's employment with
Employer or the ending of such employment.
Employer hereby waives, releases, discharges and covenants not to
sue Employee with respect to any and all claims, damages, suits,
demands, judgments or any other forms of liability arising out of, or
which could have arisen out of, Employee's employment with the
Employer, or any related activities, through February 5, 2002, except
those obligations of Employee expressly set forth in this Agreement or
in any other written agreement with Employer or any liability arising
out of the willful misconduct of Employee or an act or omission of
Employee undertaken with deliberate intent to cause injury to the
Employer or undertaken with reckless disregard for the best interests
of the Employer.
Employee shall be entitled to the right to indemnification provided
to officers and directors of Employer pursuant to the Employer's Code
of Regulations, as such right to indemnification exists on February 5,
2002.
10) Miscellaneous.
(a) It is understood and agreed that Employee has been advised
that:
(i) He has twenty-one (21) days from the date that he was
first given a copy of the offer of the Agreement, within which to
decide whether to accept the offer of this Agreement,
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(ii) He has seven (7) days after signing this Agreement to
notify Employer in writing of his desire to revoke this
Agreement, and
(iii) He should consult with an attorney before acting on the
offer of this Agreement.
(b) It is specifically agreed that this Agreement constitutes the
complete understanding between Employee and Employer, and that no
other promises, policies, or agreements shall be binding unless
subsequently signed by each.
(c) Employee and Employer agree that the substantive law of the
State of Ohio shall govern and control every issue or dispute
relating to the interpretation or enforcement of this Agreement and
that any legal action relating to this Agreement will be brought and
maintained only in the Court of Common Pleas of Xxxxxxxx County,
Ohio.
(d) If any provision of this Agreement is rendered unenforceable
by legislation or judicial decision, then such provision shall be
deemed modified or omitted to the extent necessary to make the
remaining provisions of this Agreement enforceable.
(e) This Agreement represents the culmination of fully disclosed
and negotiated concerns of Employer and Employee, and Employee
agrees he has been provided the opportunity to thoroughly discuss
all aspects of this Agreement with his private advisors or attorneys
and that he has carefully read all terms and provisions and
understands each of them and that his agreement hereto is completely
voluntary.
(f) This Agreement shall be binding upon Employer, their
successors and assigns, including any entity into which Employer may
be consolidated or merged, and shall be equally binding on Employee,
his heirs, assigns and executors.
11) Waiver of Jury Trial. As a specifically bargained inducement for
the employer to enter into this Agreement, and after having the
opportunity to consult counsel, employee hereby expressly waives the
right to trial by jury in any lawsuit or proceeding relating to this
Agreement.
[Signature page follows]
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The parties hereto have signed this Agreement this _______ day of
____________, 2001.
WITNESSES: Provident Financial Group, Inc.
_________________________ By: _________________________________
_________________________ Title: ______________________________
WITNESSES: The Provident Bank
_________________________ By: _________________________________
_________________________ Title: ______________________________
WITNESSES: Employee
_________________________ ______________________________
_________________________
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