Exhibit 10.xx
XXXXXXXXX AGREEMENT
This SEVERANCE AGREEMENT (this "Agreement") is entered into this 1st day of
August, 2002, by and between Unizan Financial Corp., an Ohio corporation (the
"Corporation"), and Xxxxx X. Xxxxxxxxx, Executive Vice President and Chief
Operating Officer of the Corporation (the "Executive").
WHEREAS, the Executive is a senior executive of the Corporation,
WHEREAS, the Executive is a senior executive officer of Unizan Bank,
National Association, a national bank and wholly owned subsidiary of the
Corporation (the "Bank"), serving as its President and Chief Executive Officer,
WHEREAS, the Executive has made and is expected to continue to make major
contributions to the profitability, growth, and financial strength of the
Corporation and the Bank,
WHEREAS, the Corporation recognizes that, as is the case for most
companies, the possibility of a Change in Control (as defined in Section 1(b))
exists,
WHEREAS, the Corporation desires to assure itself of the current and future
continuity of management and desires to establish minimum severance benefits for
certain of its officers and other key employees, including the Executive, if a
Change in Control occurs,
WHEREAS, the Corporation wishes to ensure that officers and other key
employees are not practically disabled from discharging their duties if a
proposed or actual transaction involving a Change in Control arises,
WHEREAS, the Corporation desires to provide additional inducement for the
Executive to continue to remain in the ongoing employ of the Corporation and the
Bank,
WHEREAS, on March 7, 2002 the predecessors of the Corporation, UNB Corp.
and BancFirst Ohio Corp., completed a merger transaction whereby BancFirst Ohio
Corp. merged with and into UNB Corp. under the terms of the September 5, 2001
Agreement of Merger and Plan of Reorganization,
WHEREAS, before the March 7, 2002 merger between UNB Corp. and BancFirst
Ohio Corp. the Executive was the Executive Vice President and Secretary of
BancFirst Ohio Corp. and President and Chief Executive Officer of its subsidiary
bank, The First National Bank of Zanesville, N.A.,
WHEREAS, BancFirst Ohio Corp. adopted an Executive Retention Plan dated
August 19, 1999, providing for severance and termination benefits for the
Executive and other eligible employees for their termination within 24 months
after a change in control of BancFirst Ohio Corp.,
WHEREAS, the merger of BancFirst Ohio Corp. with and into UNB Corp.
constituted a change in control under the terms of the August 19, 1999 Executive
Retention Plan, and the Executive or another eligible BancFirst Ohio Corp.
employee therefore could, subject to the terms of the August 19, 1999 Executive
Retention Plan, claim entitlement to benefits under that plan if the Executive's
or other eligible employee's termination of employment occurs within 24 months
after the March 7, 2002 change in control represented by the merger with UNB
Corp.,
WHEREAS, consistent with section 2.3(b) of the September 5, 2001 Agreement
of Merger and Plan of Reorganization, as successor to BancFirst Ohio Corp. the
Corporation assumed BancFirst Ohio Corp.'s obligations under the August 19, 1999
Executive Retention Plan,
WHEREAS, the Corporation and the Executive intend that this Agreement shall
supersede and replace in their entirety any benefits, rights, or entitlements
the Executive may claim under the August 19, 1999 Executive Retention Plan of
BancFirst Ohio Corp., but the Corporation and the Executive intend that this
Agreement shall not supersede or replace any entitlement to benefits the
Executive may claim under the August 19, 1999 Executive
Retention Plan of BancFirst Ohio Corp. if and only if (1) his employment
terminates on or before March 7, 2004 and (2) no additional Changes in Control
occur from the date of this Agreement to March 7, 2004,
WHEREAS, by action of its board of directors the Corporation has elected to
terminate the August 19, 1999 Executive Retention Plan in its entirety effective
immediately, but termination of the August 19, 1999 Executive Retention Plan
shall have no effect on the Executive's right to claim benefits thereunder if
his employment terminates on or before March 7, 2004, unless an additional
Change in Control occurs after the date of this Agreement and before the
Executive's employment terminates, and
WHEREAS, none of the conditions or events included in the definition of the
term "golden parachute payment" that is set forth in section 18(k)(4)(A)(ii) of
the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal
Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)]
exists or, to the best knowledge of the Corporation and the Bank, is
contemplated insofar as either of the Corporation or the Bank is concerned.
NOW THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. CHANGE IN CONTROL / EMPLOYMENT TERMINATION
(a) TERMINATION OF THE EXECUTIVE WITHIN THREE YEARS AFTER A CHANGE IN
CONTROL. If a Change in Control occurs during the term of this Agreement and if
either of the following occurs, the Executive shall be entitled to severance and
termination benefits specified in Section 2 and legal fee payment benefits
specified in Section 7 of this Agreement --
(1) Involuntary Termination by the Corporation or the Bank: the
Executive's employment with the Corporation or the Bank is
involuntarily terminated within three years after a Change in Control,
except for termination under Section 4 of this Agreement, or
(2) Voluntary Termination by the Executive for Good Reason: the Executive
terminates his employment with the Corporation or the Bank for Good
Reason (as defined in Section 3) within three years after a Change in
Control.
If the Executive is removed from office or if his employment terminates
after discussions with a third party regarding a Change in Control commence, and
if those discussions ultimately conclude with a Change in Control, then for
purposes of this Agreement the removal of the Executive or termination of his
employment shall be deemed to have occurred after the Change in Control.
(b) DEFINITION OF CHANGE IN CONTROL. For purposes of this Agreement,
"Change in Control" means any of the following events occur--
(1) Merger: the Corporation merges into or consolidates with another
corporation, or merges another corporation into the Corporation, and
as a result less than a majority of the combined voting power of the
resulting corporation immediately after the merger or consolidation is
held by persons who were the holders of the Corporation's voting
securities immediately before the merger or consolidation. For
purposes of this Agreement, the term person means an individual,
corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or other
entity,
(2) Acquisition of Significant Share Ownership: a report on Schedule 13D
or Schedule TO (or any successor schedule, form or report) is filed or
is required to be filed under Sections 13(d) or 14(d) of the
Securities Exchange Act of 1934, if the schedule discloses
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that the filing person or persons acting in concert has or have become
the beneficial owner of 15% or more of a class of the Corporation's
voting securities (but this clause (2) shall not apply to beneficial
ownership of voting shares of the Corporation held by a Subsidiary
(defined as an entity in which the Corporation directly or indirectly
beneficially owns 50% or more of the outstanding voting securities) of
the Corporation in a fiduciary capacity),
(3) Change in Board Composition: during any period of two consecutive
years, individuals who constitute the Corporation's board of directors
at the beginning of the two-year period cease for any reason to
constitute at least a majority thereof; provided, however, that-- for
purposes of this clause (3)-- each director who is first elected by
the board (or first nominated by the board for election by
shareholders) by a vote of at least two-thirds (2/3) of the directors
who were directors at the beginning of the period shall be deemed to
have been a director at the beginning of the two-year period, or
(4) Sale of Assets: the Corporation sells to a third party substantially
all of the Corporation's assets. For purposes of this Agreement, sale
of substantially all of the Corporation's assets includes sale of the
Bank.
2. SEVERANCE AND TERMINATION BENEFITS
(a) SEVERANCE AND TERMINATION BENEFITS. The severance and termination
benefits to which the Executive is entitled under Section 1 are as follows--
(1) Lump Sum Payment: the Corporation shall make a lump sum payment to the
Executive in an amount in cash equal to three times the Executive's
annual compensation. For purposes of this Agreement, annual
compensation means (a) the Executive's then current annual base salary
at the date of Change in Control or the Executive's termination of
employment (at whichever date the Executive's current annual base
salary is greater), plus (b) the average of the bonuses or incentive
compensation earned for the three calendar years immediately preceding
the year in which the Change in Control occurs, regardless of when the
bonus or incentive compensation earned for the preceding three
calendar years is paid. As of the date this Agreement is entered into,
the parties recognize that the bonus/incentive compensation earned by
the Executive for a particular year's calendar service is paid by the
Bank in the year following the calendar year in which such
bonus/incentive compensation is earned. The amount payable to the
Executive hereunder shall not be reduced to account for the time value
of money or discounted to present value. The payment required under
this Section 2(a)(1) is payable no later than 5 business days after
the date the Executive's employment terminates. If the Executive
terminates employment for Good Reason, the date of termination shall
be the date specified by the Executive in his notice of termination,
(2) Benefit Plans: the Corporation shall cause the Executive to become
fully vested in any qualified and non-qualified plans, programs or
arrangements in which the Executive participated if the plan, program,
or arrangement does not address the effect of a change in control. The
Corporation also shall contribute or cause the Bank to contribute to
the Executive's 401(k) Plan account and any profit sharing plan
account the matching and profit sharing contribution, if any, that
would have been paid had the Executive's employment not terminated
before the end of the plan year, and
(3) Insurance Coverage: the Corporation shall cause to be continued life,
health and disability insurance coverage substantially identical to
the coverage maintained for the Executive before his termination. The
insurance coverage may cease when the Executive becomes employed by
another employer or 36 months after the Executive's termination,
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whichever occurs first. At the end of the 36-month period, the
Executive shall have the option to continue health insurance coverage
at his own expense for a period not less than the number of months by
which the Consolidated Omnibus Budget Reconciliation Act (COBRA)
continuation period exceeds 36 months.
(b) GROSS-UP FOR TAXES. Additional Payment to Account for Excise Taxes. If
the Executive becomes entitled to severance and termination benefits under this
Agreement, including accelerated vesting of stock options and acceleration of
benefits under any other benefit, compensation, or incentive plan or arrangement
with the Corporation or the Bank (collectively, the "Total Benefits"), and if
any part of the Total Benefits is subject to the Excise Tax under section 280G
and section 4999 of the Internal Revenue Code (the "Excise Tax"), the
Corporation shall pay to the Executive an amount (the "Gross-Up Payment(s)") in
addition to the amount set forth in Section 2(a) such that -- after payment by
the Executive of all taxes (including any Excise Tax, income tax or payroll tax)
imposed upon the Gross-Up Payment, together with any interest or penalties
imposed with respect to such taxes -- the Executive will retain an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Total Benefits.
Calculating the Excise Tax. For purposes of determining whether any of the
Total Benefits will be subject to the Excise Tax and for purposes of determining
the amount of the Excise Tax,
(1) Determination of "Parachute Payments" Subject to the Excise Tax: any
other payments or benefits received or to be received by the Executive
in connection with a Change in Control or the Executive's termination
of employment (whether under the terms of this Agreement or any other
agreement, stock option plan, or other benefit plan or arrangement
with the Corporation, the Bank, any person whose actions result in a
Change in Control or any person affiliated with the Corporation or
such person) shall be treated as "parachute payments" within the
meaning of section 280G(b)(2) of the Internal Revenue Code, and all
"excess parachute payments" within the meaning of section 280G(b)(1)
shall be treated as subject to the Excise Tax, unless in the opinion
of the certified public accounting firm that is retained by the
Corporation as of the date immediately before the Change in Control
(the "Accounting Firm") such other payments or benefits do not
constitute (in whole or in part) parachute payments, or such excess
parachute payments represent (in whole or in part) reasonable
compensation for services actually rendered within the meaning of
section 280G(b)(4) of the Internal Revenue Code in excess (as defined
in section 280G(b)(3) of the Internal Revenue Code), or are otherwise
not subject to the Excise Tax,
(2) Calculation of Benefits Subject to Excise Tax: the amount of the Total
Benefits that shall be treated as subject to the Excise Tax shall be
equal to the lesser of (a) the total amount of the Total Benefits
reduced by the amount of such Total Benefits that in the opinion of
the Accounting Firm are not parachute payments, or (b) the amount of
excess parachute payments within the meaning of section 280G(b)(1)
(after applying clause (1), above), and
(3) Value of Noncash Benefits and Deferred Payments: the value of any
noncash benefits or any deferred payment or benefit shall be
determined by the Accounting Firm in accordance with the principles of
sections 280G(d)(3) and (4) of the Internal Revenue Code.
Assumed Marginal Income Tax Rate. For purposes of determining the amount of
the Gross-Up Payments, the Executive shall be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation in the calendar years in
which the Gross-Up Payments are to be made and state and local income taxes at
the highest marginal rate of taxation in the state and locality of the
Executive's residence on the date of termination of employment, net of the
reduction in federal income taxes that can be obtained from deduction of such
state and local taxes (calculated by assuming that any reduction under section
68 of the Internal Revenue Code in the amount of
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itemized deductions allowable to the Executive applies first to reduce the
amount of such state and local income taxes that would otherwise be deductible
by the Executive, and applicable federal FICA and Medicare withholding taxes.)
Return of Reduced Excise Tax Payment or Payment of Additional Excise Tax.
If the Excise Tax is later determined to be less than the amount taken into
account hereunder when the Executive's employment terminated, the Executive
shall repay to the Corporation -- when the amount of the reduction in Excise Tax
is finally determined -- the portion of the Gross-Up Payments attributable to
the reduction (plus that portion of the Gross-Up Payments attributable to the
Excise Tax, federal, state and local income taxes and FICA and Medicare
withholding taxes imposed on the Gross-Up Payments being repaid by the Executive
to the extent that the repayment results in a reduction in Excise Tax, FICA and
Medicare withholding taxes and/or a federal, state or local income tax
deduction).
If the Excise Tax is later determined to be more than the amount taken into
account hereunder when the Executive's employment terminated (due, for example,
to a payment whose existence or amount cannot be determined at the time of the
Gross-Up Payments), the Corporation shall make an additional Gross-Up Payment to
the Executive for that excess (plus any interest, penalties or additions payable
by the Executive for the excess) when the amount of the excess is finally
determined.
(c) RESPONSIBILITIES OF THE ACCOUNTING FIRM AND THE CORPORATION.
Determinations Shall Be Made by the Accounting Firm. Subject to the provisions
of Section 2(b), all determinations required to be made under this Section 2(c)
-- including whether and when a Gross-Up Payment is required, the amount of the
Gross-Up Payment and the assumptions to be used to arrive at the determination
(collectively, the "Determination") -- shall be made by the Accounting Firm,
which shall provide detailed supporting calculations both to the Corporation and
the Executive within 15 business days after receipt of notice from the
Corporation or the Executive that there has been a Gross-Up Payment, or such
earlier time as is requested by the Corporation.
Fees and Expenses of the Accounting Firm and Agreement with the Accounting
Firm. All fees and expenses of the Accounting Firm shall be borne solely by the
Corporation. The Corporation shall enter into any agreement requested by the
Accounting Firm in connection with the performance of its services hereunder.
Accounting Firm's Opinion. If the Accounting Firm determines that no Excise
Tax is payable by the Executive, the Accounting Firm shall furnish the Executive
with a written opinion to that effect, and to the effect that failure to report
Excise Tax, if any, on the Executive's applicable federal income tax return will
not result in the imposition of a negligence or similar penalty.
Accounting Firm's Determination Is Binding; Underpayment and Overpayment.
The Determination by the Accounting Firm shall be binding on the Corporation and
the Executive. Because of the uncertainty in determining whether any of the
Total Benefits will be subject to the Excise Tax at the time of the
Determination, it is possible that Gross-Up Payments that should have been made
will not have been made by the Corporation ("Underpayment"), or that Gross-Up
Payments will be made that should not have been made by the Corporation
("Overpayment"). If, after a Determination by the Accounting Firm, the Executive
is required to make a payment of additional Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred. The
Underpayment (together with interest at the rate provided in section
1274(d)(2)(B) of the Internal Revenue Code) shall be paid promptly by the
Corporation to or for the benefit of the Executive. If the amount of the
Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his
Excise Tax, the Accounting Firm shall determine the amount of the Overpayment
that has been made. The Overpayment (together with interest at the rate provided
in section 1274(d)(2)(B) of the Internal Revenue Code) shall be paid promptly by
the Executive to or for the benefit of the Corporation. Provided that his
expenses are reimbursed by the Corporation, the Executive shall cooperate with
any reasonable requests by the Corporation in any contests or disputes with the
Internal Revenue Service relating to the Excise Tax.
Accounting Firm Conflict of Interest. If the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the Change
in Control, the Executive may appoint another nationally recognized
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public accounting firm to make the Determinations required hereunder (in which
case the term "Accounting Firm" as used in this Agreement shall be deemed to
refer to the accounting firm appointed by the Executive under this paragraph).
(d) NO MITIGATION REQUIRED. The Corporation hereby acknowledges that it
will be difficult and could be impossible (1) for the Executive to find
reasonably comparable employment after his employment terminates, and (2) to
measure the amount of damages the Executive may suffer as a result of
termination. Additionally, the Corporation acknowledges that its general
severance pay plans do not provide for mitigation, offset, or reduction of any
severance payment received thereunder. Accordingly, the Corporation further
acknowledges that the payment of severance and termination benefits by the
Corporation under this Agreement is reasonable and will be liquidated damages,
and the Executive shall not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment or otherwise, nor
will any profits, income, earnings, or other benefits from any source whatsoever
create any mitigation, offset, reduction, or any other obligation on the part of
the Executive hereunder or otherwise.
3. GOOD REASON
(a) DEFINITION OF GOOD REASON. For purposes of this Agreement, "Good
Reason" means the occurrence of any of the events or conditions described in
clauses (1) through (7) hereof without the Executive's express written consent:
(1) Change in Office or Position or Termination as a Director: failure to
elect or reelect or otherwise to maintain the Executive in the office
or position, or a substantially equivalent office or position, of or
with the Corporation and the Bank that the Executive held immediately
before the Change in Control, or the removal or failure to nominate
the Executive as a director of the Corporation (or any successor
thereto) if the Executive shall have been a director of the
Corporation immediately before the Change in Control,
(2) Adverse Change in the Scope of His Duties or Compensation and
Benefits:
(a) a significant adverse change in the nature or scope of the
authorities, powers, functions, responsibilities, or duties
associated with the Executive's position with the Corporation or
the Bank compared to the nature or scope of the authorities,
powers, functions, responsibilities, or duties associated with
the position immediately before the Change in Control,
(b) a reduction in the aggregate of the Executive's annual
compensation received from the Corporation and the Bank, or
(c) the termination or denial of the Executive's rights to benefits
under the Corporation's or the Bank's benefit, compensation, and
incentive plans and arrangements or a reduction in the scope or
value thereof, which situation is not remedied within 10 calendar
days after written notice to the Corporation from the Executive,
(3) Adverse Change in Circumstances: the Executive determines that a
change in circumstances has occurred after a Change in Control,
including without limitation a change in the scope of the business or
other activities for which the Executive is responsible compared to
his responsibilities immediately before the Change in Control, (a)
which renders the Executive substantially unable to carry out,
substantially hinders the Executive's performance of, or causes the
Executive to suffer a substantial reduction in, any of the
authorities, powers, functions, responsibilities, or duties associated
with the office or position held by the Executive immediately before
the Change in Control, and (b) which situation is not remedied within
10 calendar days after written notice to the
6
Corporation from the Executive of such determination. Provided his
determination is made in good faith, the Executive's determination
will be conclusive and binding upon the parties hereto. The
Executive's determination will be presumed to have been made in good
faith, unless the Corporation establishes by clear and convincing
evidence that it was not made in good faith,
(4) Liquidation and Merger of the Corporation or the Bank: the
liquidation, dissolution, merger, consolidation or reorganization of
the Corporation or the Bank or transfer of all or substantially all of
the business or assets of either the Corporation or the Bank, unless
the successor or successors (by liquidation, merger, consolidation,
reorganization, transfer or otherwise) to which all or substantially
all of the business or assets have been transferred (directly or by
operation of law) assumes all duties and obligations of the
Corporation under this Agreement,
(5) Relocation of the Executive: the Corporation or the Bank relocates its
principal executive offices, or requires the Executive to have his
principal location of work changed, to any location that is more than
15 miles from the location thereof immediately before the Change in
Control, or requires the Executive to travel away from his office in
the course of discharging his responsibilities or duties hereunder at
least 20% more (in terms of aggregate days in any calendar year or in
any calendar quarter when annualized for purposes of comparison to any
prior year) than was required of Executive in any of the three full
years immediately before the Change in Control,
(6) Change in Administrative Support: the adverse and substantial
alteration in the nature and quality of the office space within which
the Executive performs his duties, including the size and location
thereof, or a substantial reduction in the secretarial and
administrative support provided to the Executive, or
(7) Breach of this Agreement: without limiting the generality or effect of
the foregoing, any material breach of this Agreement by the
Corporation or any successor thereto.
(b) NO EFFECT ON EMPLOYEE BENEFITS. Termination by the Corporation under
Section 1(a)(1) (termination within three years after a Change in Control) or
termination by the Executive under Section 1(a)(2) (termination for Good Reason)
will not affect any rights the Executive may have under any benefit,
compensation, or incentive agreement, policy, plan, program, or arrangement of
the Corporation or the Bank, which rights shall be governed by the terms
thereof.
4. TERMINATION FOR WHICH NO SEVERANCE OR TERMINATION BENEFITS ARE PAYABLE
(a) NO SEVERANCE FOR TERMINATION FOR CAUSE. Anything in this Agreement to
the contrary notwithstanding, under no circumstance shall the Executive be
entitled to severance or termination benefits if his employment terminates for
Cause.
(1) Cause Means Commission of Any of the Following Acts: For purposes of
this Agreement, "Cause" means the Executive shall have committed any
of the following acts--
(a) Fraud, Embezzlement or Theft: an intentional act of fraud,
embezzlement, or theft in connection with his duties or in the
course of his employment with the Corporation or the Bank,
(b) Intentional Harm: intentional wrongful damage to property of the
Corporation or the Bank, causing material harm to the Corporation
or the Bank,
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(c) Disclosure of Trade Secrets: intentional wrongful disclosure of
secret processes or confidential information of the Corporation
or the Bank, causing material harm to the Corporation or the
Bank,
(d) Competing with the Corporation or the Bank: intentional wrongful
engagement in any competitive activity. For purposes of this
Agreement, competitive activity means the Executive's
participation, without the written consent of an officer of the
Corporation, in the management of any business enterprise if (1)
the enterprise engages in substantial and direct competition with
the Corporation or the Bank, (2) the enterprise's revenues
derived from any product or service competitive with any product
or service of the Corporation or the Bank amounted to 10% or more
of such enterprise's revenues for its most recently completed
fiscal year, and (3) the Corporation's revenues from the product
or service amounted to 10% of the Corporation's revenues for its
most recently completed fiscal year, or the Bank's revenues from
the product or service amounted to 10% of the Bank's revenues for
its most recently completed fiscal year. A competitive activity
does not include mere ownership of securities in any such
enterprise and the exercise of rights appurtenant thereto,
provided the Executive's share ownership does not give him
practical or legal control of the enterprise. For this purpose,
ownership of less than 5% of the enterprise's outstanding voting
securities shall conclusively be presumed to be insufficient for
practical or legal control, and ownership of more than 50% shall
conclusively be presumed to constitute practical and legal
control.
If the Executive is now or hereafter becomes subject to an
agreement not to compete with the Corporation or the Bank, a
breach by the Executive of that other non-competition agreement
shall be grounds for denial of severance and termination benefits
for Cause under this clause (d) of Section 4(a)(1). But if the
Executive engages in a competitive activity under circumstances
justifying denial of severance or termination benefits for Cause
under this clause (d), that shall not necessarily be grounds for
concluding that the Executive has also breached the other
non-competition agreement to which he is or may become subject.
This clause (d) is not intended to and shall not be construed to
supersede or amend any provision of an employment or
non-competition agreement to which the Executive is or may become
subject. This clause (d) does not grant to the Executive any
right or privilege to engage in other activities or enterprises,
whether in competition with the Corporation or the Bank or
otherwise, or
(e) Termination for Cause under an Employment Agreement: any actions
that have caused the Executive to be terminated for cause under
any employment agreement existing on the date hereof or hereafter
entered into between the Executive and the Corporation or the
Bank.
(2) Definition of "Intentional": For purposes of this Agreement, no act or
failure to act on the part of the Executive shall be deemed to have
been intentional if it was due primarily to an error in judgment or
negligence. An act or failure to act on the Executive's part shall be
considered intentional if it is not in good faith and if it is without
a reasonable belief that the action or failure to act is in the best
interests of the Corporation.
(3) Termination for Cause Can Occur Solely by Formal Board Action. The
Executive shall not be deemed to have been terminated for Cause under
this Agreement unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote
of at least three-fourths (3/4) of the directors of the Corporation
then
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in office at a meeting of the board of directors called and held for
such purpose, which resolution shall (a) contain findings that, in the
good faith opinion of the board, the Executive has committed an act
constituting Cause and (b) specify the particulars thereof in detail.
Notice of that meeting and the proposed termination for Cause shall be
given to the Executive a reasonable amount of time before the board's
meeting. The Executive and his counsel (if the Executive chooses to
have counsel present) shall have a reasonable opportunity to be heard
by the board at the meeting. Nothing in this Agreement limits the
Executive's or his beneficiaries' right to contest the validity or
propriety of the board's determination of Cause, and they shall have
the right to contest the validity or propriety of the board's
determination of Cause even if that right does not exist under any
employment agreement of the Executive.
(b) NO SEVERANCE UNDER THIS AGREEMENT FOR THE EXECUTIVE'S DEATH OR
DISABILITY. Anything in this Agreement to the contrary notwithstanding, under no
circumstance shall the Executive be entitled to severance payments or
termination benefits if --
(1) Death: the Executive dies while actively employed by the Corporation
or the Bank, or
(2) Disability: the Executive becomes totally disabled while actively
employed by the Corporation or the Bank. For purposes of this
agreement, the term "totally disabled" means that because of injury or
sickness, the Executive is unable to perform his duties.
The benefits, if any, payable to the Executive or his beneficiary(ies) or
estate relating to his death or disability shall be determined solely by such
benefit plans or arrangements as the Corporation or the Bank may have with the
Executive relating to death or disability, not this Agreement.
5. TERM OF AGREEMENT
The initial term of this Agreement shall be for a period of three years,
commencing , 2002. On the first anniversary of the , 2002
effective date of this Agreement, and on each anniversary thereafter, the
Agreement shall be extended for one additional year if the Corporation's board
of directors determines that the Executive's performance has satisfied the
standards and requirements of the board and that the term therefore shall be
extended. References herein to the term of this Agreement shall refer to the
initial term, as the same may be extended. Unless sooner terminated, this
Agreement shall terminate when the Executive reaches age 65. If the board
decides not to extend the term of this Agreement, this Agreement shall
nevertheless remain in force until its term expires. The board's decision not to
extend the term of this Agreement shall not -- by itself -- give the Executive
any rights under this Agreement to claim an adverse change in his position,
compensation or circumstances or otherwise to claim entitlement to severance or
termination benefits under this Agreement.
6. THIS AGREEMENT IS NOT AN EMPLOYMENT CONTRACT
The parties hereto acknowledge and agree that (a) this Agreement is not a
management or employment agreement and (b) nothing in this Agreement shall give
the Executive any rights or impose any obligations to continued employment by
the Bank or Corporation or any subsidiary or successor of the Bank or
Corporation, nor shall it give the Bank or Corporation any rights or impose any
obligations for the continued performance of duties by the Executive for the
Bank or Corporation or any subsidiary or successor of the Bank or Corporation.
7. PAYMENT OF LEGAL FEES
(a) THE EXECUTIVE MAY ENFORCE THIS AGREEMENT THROUGH LEGAL ACTION. The
Corporation irrevocably authorizes the Executive to retain from time to time
counsel of Executive's choice to advise and represent him in the interpretation,
enforcement or defense of the parties' rights and responsibilities under this
Agreement, if after a Change in Control occurs --
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(1) the Executive concludes that the Corporation has failed to comply with
any of its obligations under this Agreement, or
(2) if the Corporation or any or any other person takes or threatens to
take any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or proceeding designed to
deny, or to recover from, the Executive the benefits provided or
intended to be provided to the Executive under this Agreement,
including without limitation the initiation or defense of any litigation or
other legal action, whether by or against the Corporation or any director,
officer, stockholder or other person affiliated with the Corporation, in any
jurisdiction.
(b) FEES AND EXPENSES WILL BE PAID BY THE CORPORATION. The Corporation
desires that the Executive not be required to incur legal fees and the related
costs and expenses associated with the interpretation, enforcement, or defense
of Executive's rights under this Agreement by litigation or otherwise, because
the amounts thereof would substantially detract from the benefits intended to be
extended to the Executive under this Agreement. Therefore, even if the Executive
does not prevail in whole or in part in the litigation or other legal action
associated with the interpretation, enforcement or defense of Executive's rights
under this Agreement, the Corporation hereby agrees to pay and be solely
financially responsible for any and all attorneys' and related fees, costs and
expenses incurred by the Executive in the litigation or other legal action, up
to a maximum of $500,000. The fees and expenses of counsel selected by the
Executive shall be paid or reimbursed to the Executive by the Corporation on a
regular, periodic basis, upon presentation by the Executive of a statement or
statements prepared by such counsel in accordance with counsel's customary
practices. Anything herein to the contrary notwithstanding, nothing in this
Agreement authorizes the Corporation to pay or the Executive to demand payment
of fees, costs and expenses if and to the extent payment of fees, costs and
expenses constitutes a "prohibited indemnification payment" within the meaning
of Federal Deposit Insurance Corporation Rule 359.1(l)(1) [12 CFR 359.1(l)(1)].
(c) COST OF LIVING ADJUSTMENT FOR CAP ON LEGAL FEE REIMBURSEMENT. Upon the
occurrence of a Change in Control, the $500,000 cap on legal fee reimbursement
provided by Section 7(b) will be subject to a cost of living adjustment equal to
the value of the expression A x B, in which expression:
A = $500,000, and
B = Cost of living adjustment or inflation factor. This is computed by
dividing the Consumer Price Index for All Urban Consumers ("CPI-U")
prepared by the U.S. Bureau of Labor Statistics, or any successor
thereto, for the CPI-U for January of the year during which the Change
in Control occurs by the CPI-U for January 2000.
The cost of living adjustment provided in this Paragraph 7(c) shall be
considered to be part of the Executive's payment of legal fees for purposes of
this Agreement.
Illustration of Cost of Living Adjustment. To explain the cost of living
adjustment calculation for Payment of Legal Fees, we use the following example.
First, we determine the appropriate CPI-Us. The Agreement calls for the use
of the CPI-Us for January 2000 and the January of the year during which the
Change in Control occurs. Assume a Change in Control occurs in April 2009. For
illustrative purposes only, the CPI-U for January 2000 is 156.7, and the CPI-U
for January 2009 is 213.3.
Second, we calculate the cost of living adjustment or inflation factor. To
do this, we divide the CPI-U for January 2009 (213.3) by the CPI-U for January
2000 (156.7). Our result is 1.361 (i.e., a 36.1 percent increase).
Finally, we calculate the raw cost of living adjustment. To do this, we
multiply the base Payment of Legal Fees amount by the inflation factor. In our
example, $500,000 multiplied by the inflation factor of 1.361 equals $680,500.
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(d) THE EXECUTIVE MAY CHOOSE THE CORPORATION'S COUNSEL. Notwithstanding any
existing or previous attorney-client relationship between the Corporation and
any counsel chosen by the Executive under Section 7(a), the Corporation
irrevocably consents to the Executive's entering into an attorney-client
relationship with that counsel, and the Corporation and the Executive agree that
a confidential relationship shall exist between the Executive and that counsel.
8. WITHHOLDING OF TAXES
The Corporation or the Bank may withhold from any benefits payable under
this Agreement all Federal, state, local, or other taxes as may be required by
law, governmental regulation, or ruling.
9. SUCCESSORS AND ASSIGNS
(a) THIS AGREEMENT IS BINDING ON THE CORPORATION'S SUCCESSORS. This
Agreement shall be binding upon the Corporation and any successor to the
Corporation, including any persons acquiring directly or indirectly all or
substantially all of the business or assets of the Corporation by purchase,
merger, consolidation, reorganization, or otherwise. Any such successor shall
thereafter be deemed to be the "Corporation" for purposes of this Agreement. But
this Agreement and the Corporation's obligations under this Agreement are not
otherwise assignable, transferable, or delegable by the Corporation. By
agreement in form and substance satisfactory to the Executive, the Corporation
shall require any successor to all or substantially all of the business or
assets of the Corporation expressly to assume and agree to perform this
Agreement in the same manner and to the same extent the Corporation would be
required to perform if no such succession had occurred.
(b) THIS AGREEMENT IS ENFORCEABLE BY THE EXECUTIVE AND HIS HEIRS. This
Agreement will inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributes, and legatees.
(c) THIS AGREEMENT IS PERSONAL IN NATURE AND IS NOT ASSIGNABLE. This
Agreement is personal in nature. Without written consent of the other party,
neither party shall assign, transfer, or delegate this Agreement or any rights
or obligations under this Agreement except as expressly provided in this Section
9. Without limiting the generality or effect of the foregoing, the Executive's
right to receive payments hereunder is not assignable or transferable, whether
by pledge, creation of a security interest, or otherwise, except for a transfer
by Executive's will or by the laws of descent and distribution. If the Executive
attempts an assignment or transfer that is contrary to this Section 9, the
Corporation shall have no liability to pay any amount to the assignee or
transferee.
10. NOTICES
All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered by hand or
mailed, certified or registered mail, return receipt requested, with postage
prepaid to the following addresses or to such other address as either party may
designate by like notice.
(a) If to the Corporation, to:
Unizan Financial Corp.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attn: Corporate Secretary
(b) If to the Executive, to:
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and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
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11. CAPTIONS AND COUNTERPARTS
The headings and subheadings used in this Agreement are included solely for
convenience and shall not affect the interpretation of this Agreement.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same agreement.
12. AMENDMENTS AND WAIVERS
No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in a writing or writings
signed by the Executive and by the Corporation. No waiver by either party hereto
at any time of any breach by the other party hereto or compliance with any
condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral
or otherwise, expressed or implied with respect to the subject matter hereof
have been made by either party that are not set forth expressly in this
Agreement.
13. SEVERABILITY
The provisions of this Agreement shall be deemed severable. The invalidity
or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions of this Agreement. Any provision held to
be invalid or unenforceable shall be reformed to the extent (and only to the
extent) necessary to make it valid and enforceable.
14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Corporation and
the Executive concerning the subject matter hereof. No rights are granted to the
Executive under this Agreement other than those specifically set forth herein.
This Agreement supersedes and replaces in their entirety any benefits, rights,
or entitlements the Executive may claim under the August 19, 1999 Executive
Retention Plan of BancFirst Ohio Corp. if his employment terminates after March
7, 2004. If the Executive's employment terminates on or before March 7, 2004, he
may claim any benefits, rights, or entitlements under the August 19, 1999
Executive Retention Plan of BancFirst Ohio Corp. to which he may be entitled
under the terms of and in accordance with that plan, unless a Change in Control
(as defined in this Agreement) shall have occurred after the date of this
Agreement. If a Change in Control occurs after the date of this Agreement, the
Executive shall not be entitled under any circumstance to claim any benefits,
rights, or entitlements under the August 19, 1999 Executive Retention Plan of
BancFirst Ohio Corp.
15. GOVERNING LAW
The validity, interpretation, construction, and performance of this
Agreement shall be governed by and construed in accordance with the substantive
laws of the State of Ohio, without giving effect to the principles of conflict
of laws of such State.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first written above.
WITNESSES: UNIZAN FINANCIAL CORP.
By:
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Its:
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WITNESSES: EXECUTIVE
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County of )
) ss:
State of Ohio )
Before me this _____ day of _________________, 2002, personally appeared
the above named _________________ and _________________ , who acknowledged that
they did sign the foregoing instrument and that the same was their free act and
deed.
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(Notary Seal) Notary Public
My Commission Expires:
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