EMPLOYMENT AGREEMENT
Exhibit 10.9
This Employment Agreement (hereinafter referred to as this “Agreement”), entered into as of the 1st day of January, 2021, by and among Xxxxxx Savings Bank (hereinafter referred to as “Bank”) and Xxxxxxx X. Xxxxxx (hereinafter referred to as the “Employee”).
WITNESSETH:
WHEREAS, the Employee is currently employed as the Senior Vice President - Operations of the Bank; and
WHEREAS, the Employee desires to continue to serve as the Senior Vice President - Operations of Bank; and
WHEREAS, the Employee and the Bank desire to enter into this Agreement to set forth the terms and conditions of the employment relationship.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the Employee and the Bank hereby agree as follows:
Section 1.Employment and Term.
Section 2.Duties of Employee.
Section 3.Compensation, Benefits and Reimbursements.
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Section 4.Termination of Employment.
(1)In the event that the Bank terminates the employment of the Employee before the expiration of the Term without Just Cause and within six months before the occurrence of a Change of Control (as defined hereinafter) or within one year following the occurrence of a Change of Control, and if the Employee signs a general release as required by Section 4(d) of this Agreement, then the following shall occur:
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The Employee shall be required to provide written notice to the Bank or its successors or assigns within ninety (90) days of the initial existence of the condition constituting Good Reason, and the Bank shall have thirty (30) days from the giving of this written notice in which to remedy the condition constituting Good Reason and not be required to pay the compensation and benefits described in Section 4(a)(B)(1). If the Employee shall fail to provide such written notice to the Bank within the period described above, then he will be deemed to have consented to such condition and the Bank shall have no obligation to pay the compensation and benefits described in Section 4(a)(B)(1) with respect to such condition.
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(i)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. §1828(k) and FDIC regulation 12 C.F.R. Part 359, Golden Parachute and Indemnification Payments.
(ii)In the event that payments pursuant to Section 4(a), alone or in combination with any other compensation, would result in the imposition of a penalty tax pursuant to Sections 280G and 4999 of the Code and the regulations promulgated thereunder (collectively, “Section 280G”), such payments shall be reduced to the maximum amount that may be paid under Section 280G without resulting in the imposition of a penalty tax. For purposes of this Section, any determination that a payment is subject to Section 280G shall be made in writing by the principal certified public accounting firm or other professional selected by the Bank in its sole discretion. In the event a reduction in payments is necessary in order to comply with the requirements of this Agreement relating to Section 280G or applicable regulatory limits, the Employee may determine, in his sole discretion, which categories of payments are to be reduced or eliminated.
Section 5. Special Regulatory Events. Notwithstanding Section 4 of this Agreement, the
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obligations of the Bank to the Employee shall be as follows in the event of the following circumstances:
Section 6. Consolidation, Merger or Sale of Assets. Nothing in this Agreement shall preclude the Bank from consolidating with, merging into, or transferring all, or substantially all, of their assets to another corporation that assumes all of the Bank’s obligations and undertakings hereunder. Upon such a consolidation, merger or transfer of assets, the term “Bank” as used herein shall mean such other corporation or entity and this Agreement shall continue in full force and effect; provided, however, that the assumption of the Bank’s obligations and undertakings hereunder shall not affect the Employee’s right to payments pursuant to Section 4(a)(B) of this Agreement in connection with such consolidation, merger or transfer of assets.
Section 7. Confidential Information. The Employee acknowledges that during his employment he will learn and have access to confidential information regarding the Bank and its 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 information, unless or until the Bank 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 Bank, 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 Bank. The Employee shall not otherwise knowingly act or conduct himself (a) to the material detriment of the Bank, its subsidiaries, or affiliates, or (b) in a manner which is inimical or contrary to the interests of
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the Bank.
Section 8. Noncompetition. During the term and, in the event of Employee’s termination of employment for Cause or pursuant to Section 4(a), thereafter for a period of twelve (12) months, employee will not (except on the behalf of or with the prior written consent of Bank), with the Area, either directly or indirectly, on employee’s own behalf or in the service or on behalf of others, as a principal, partner, officer, director, manager, supervisor, administrator, consultant, executive employee or in any other capacity which involves duties and responsibilities similar to those undertaken for Bank, engage in any business which is the same as or essentially the same as the business of Bank. Area shall mean the geographic area the radius of which is forty (40) miles from the main office of Bank.
Section 9. Nonsolicitation of Customers. During the Term and, in the event of Employee’s termination of employment, regardless of the reason for such termination, thereafter for a period of twelve (12) months, Employee will not (except on behalf of or with the prior written consent of Bank), on Employee’s own behalf or in the service or on behalf of others, solicit, divert or appropriate or attempt to solicit, divert or appropriate, directly or by assisting others, any business from any of Bank’s customers, including actively sought prospective customers, with whom Employee has or had material contact during the last one (1) year of Employee’s employment, for purposes of providing products or services that are competitive with those provided by Bank.
Section 10. Nonsolicitation of Employees. During the Term and, in the event of Employee’s termination of employment, regardless of the reason for such termination, thereafter for a period of twelve (12) months, Employee will not (except on behalf of or with the prior written consent of Bank), on Employee’s own behalf or in the service or on behalf of others, solicit, recruit or hire away or attempt to solicit, recruit or hire away, directly or by assisting others, any employee of Bank, whether or not such employee is a full-time employee or a temporary employee of Bank and whether or not such employment is pursuant to written agreement and whether or not such employment is for a determined period of is at will.
Section 11. Indemnification. During the Term and thereafter, Bank shall indemnify Employee (and his heirs, executors and administrators) to the fullest extent permitted under Ohio law against all expenses and liabilities reasonable 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 Bank (whether or not he continues to be an officer or director at the time of incurring such expenses or liabilities) (the “Actions”), such expenses and liabilities to include, but not limited to, judgments, court costs and attorneys’ fees and the cost of reasonable settlements (such settlements must be approved by the Board). During the term and thereafter, The Bank shall advance reasonable costs and expenses, including reasonable attorneys’ fees, to Employee (and his heirs, executors and administrators) with respect to Actions to the fullest extent permitted under Ohio law. Such indemnification shall not extend to matters as to which Employee is finally adjudged to be liable for willful misconduct in the performance of his duties.
Section 12. Nonassignability. Neither this Agreement nor any right or interest hereunder shall be assignable by the Employee, his beneficiaries, or legal representatives without the Bank’s prior written consent; provided, however, that nothing in this Section 12 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 13. No Attachment. Except as required by law, no right to receive payment under this
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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 affect any such action shall be null, void and of no effect.
Section 14. Binding Agreement. This Agreement shall be binding upon, and inure to the benefit of, the Employee and the Bank and their respective successors and assigns.
Section 15. Amendment of Agreement. This Agreement may not be modified or amended, except by an instrument in writing signed by the parties hereto.
Section 16. Section 409A of the Code. The compensation and benefits payable pursuant to this Agreement are intended to be exempt from the requirements of Section 409A of the Code and, to the maximum extent permitted by law, shall be interpreted in a manner that results in its continued exemption from the requirements of that section. In the event the Employee is a “specified employee” within the meaning of Section 409A of the Code and the Treasury Regulations promulgated thereunder and as determined under the Bank’s policies for determining specified employees, on the date of termination, then payment of any amounts subject to Section 409A of the Code shall be paid on the first business day of the seventh month following the date of the Employee’s termination, or, if earlier, the date of the Employee’s death.
Section 17. 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 18. 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 Bank (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, notwithstanding Section 21 hereof.
Section 19. 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 20. 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.
Section 21. Effect of Prior Agreements. This Agreement contains the entire understanding between the parties hereto and supersedes any prior employment agreement between the Bank and the Employee, each of which is hereby terminated and is of no further force or effect.
Section 22. 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
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as follows:
If to Bank:
Xxxxxx Savings Bank
0000 Xxxxxxxx Xxxxxxxxx
Celina, OH 45822
Attention: President/CEO
With copies to:
Xxxxx, Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxxx
Celina, OH 45822
Attention: Xxxxxx X. Xxxxxxx
If to the Employee to:
Xxxxxxx X. Xxxxxx
000 Xxxxx Xxx Xxxxxx
Saint Marys, OH 45885
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IN WITNESS WHEREOF, the Bank has 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.
Xxxxxx Savings Bank |
| Xxxxxxx X. Xxxxxx | |
| | | |
By: | /s/ Xxxxxxx X. Xxxxxx | | /s/ Xxxxxxx X. Xxxxxx |
Its: | President/CEO | | |
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