EXHIBIT 10.3
CHANGE IN CONTROL AGREEMENT
This is an Agreement (the "Agreement") made by and between Ohio State
Bancshares, Inc. ("Company") and Xxxx X. Xxxxxx ("Executive").
RECITALS
WHEREAS, Company is a bank holding company whose principal subsidiary
is engaged in the business of banking and businesses incidental thereto.
WHEREAS, Executive possesses unique skills, knowledge and experience
relating to the business of the Company.
WHEREAS, Company desires to recognize the past and future services of
Executive, and, in that connection, Executive desires to be assured that, in the
event of a change in the control of Company, Executive will be provided with an
adequate severance payment for termination without cause or as compensation for
Executive's severance because of a material change in his duties and functions.
WHEREAS, Company desires to be assured of the objectivity of Executive
in evaluating a potential change of control and advising whether or not a
potential change of control is in the best interest of Company and its
shareholders.
WHEREAS, Company desires to induce Executive to remain in the employ of
the Company (as hereinafter defined) following a change of control to provide
for continuity of management.
NOW, THEREFORE, in consideration of the premises and of their mutual
covenants expressed in this Agreement, the parties hereto make the following
agreement, intending to be legally bound thereby:
SECTION 1 - DEFINITIONS.
A. BOARD - "Board" shall mean the Board of Directors of Ohio State
Bancshares, Inc.
B. CAUSE - "Cause" shall mean and be limited to Executive's (a) conviction
of a felony, (b) criminal dishonesty, (c) refusal to act in accordance
with any specific substantive instructions given by Company with respect
to Executive's performance of duties normally associated with his
position prior to the Change in Control, or (d) engaging in conduct which
could be materially damaging to Company without a reasonable good faith
belief that such conduct was in the best interest of Company.
C. CHANGE IN CONTROL - "Change in Control" shall result if, and shall be
deemed to have occurred on the date of, a transaction pursuant to which:
1. Any person or group (as such terms are used in connection with
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13(d)(3) and 13(d)(5) under
the Exchange Act), directly or indirectly, of securities of Ohio
State Bancshares, Inc. representing 35% or more of the combined
voting power of Ohio State Bancshares, Inc.'s then outstanding
securities;
2. A merger, consolidation, sale of assets, reorganization, or proxy
contest, is consummated and, as a consequence of which, members of
the Board in office immediately prior to such transaction or event
constitute less than a majority of the Board thereafter;
3. During any period of 24 consecutive months, individuals who at the
beginning of such period constitute the Board (including for this
purpose any new director whose election or nomination for election
by Ohio State Bancshares, Inc.'s stockholders was approved by a vote
of at least one-half of the directors then still in office who were
directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board; or
4. A merger, consolidation or reorganization is consummated with any
other corporation pursuant to which the shareholders of Ohio State
Bancshares, Inc. immediately prior to the merger, consolidation or
reorganization do not immediately thereafter directly or indirectly
own more than fifty percent (50%) of the combined voting power of
the voting securities entitled to vote in the election of directors
of the merged, consolidated or reorganized entity.
Notwithstanding the foregoing, no trust department or designated fiduciary
or other trustee of such trust department of Ohio State Bancshares, Inc.
or a subsidiary of Ohio State Bancshares, Inc., or other similar fiduciary
capacity of Ohio State Bancshares, Inc. with direct voting control of the
stock shall be treated as a person or group within the meaning of
subsection C.1 hereof. Further, no profit-sharing, employee stock
ownership, employee stock purchase and savings, employee pension, or other
employee benefit plan of Ohio State Bancshares, Inc. or any of its
subsidiaries, and no trustee of any such plan in its capacity as such
trustee, shall be treated as a person or group within the meaning of
subsection C.1 hereof.
D. CODE - "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
E. COMPANY - "Company" shall include The Xxxxxx Bank and any members of its
Affiliated Group, over which Executive has managerial control, as that
term is defined in Section 1504 of the Code, and shall include any
predecessor corporations of the Company and its Affiliated Group.
F. EXCHANGE ACT - "Exchange Act" means The Securities Exchange Act of 1934.
G. OHIO STATE BANCSHARES, INC. - "Ohio State Bancshares, Inc." means Ohio
State Bancshares, Inc., an Ohio corporation which owns all of the
outstanding capital stock of The Marion Bank.
SECTION 2 - TERM OF AGREEMENT.
This Agreement shall be effective from the date of this Agreement until the
Agreement Termination Date, which is the later of: (i) Company's payment of any
amounts due under Section's 5 and 7, and (ii) the earliest of:
1. The date this Agreement is mutually rescinded;
2. The date prior to a Change in Control on which the Executive's
employment with the Company is terminated by death, retirement,
disability, resignation, or dismissal for any reason;
3. The date Executive employment is terminated for Cause after a Change
in Control;
4. The date which is two (2) years after the date of a Change in
Control; or
5. The date which the Company's subsidiary (The Xxxxxx Bank), or any
other member of its Affiliated Group, and over which Executive has
managerial control, which is a depository institution which is
insured by an agency of any state or the United States Federal
Government:
a. becomes insolvent;
b. has appointed any conservator or receiver;
c. is assigned a composite rating of 4 or 5 by the appropriate
federal banking agency or is informed in writing by the
Federal Deposit Insurance Corporation that it is rated a 4 or
5 under the Uniform Financial Institution's Rating System of
the Federal Financial Institutions Examination Council;
d. has initiated against it by the Federal Deposit Insurance
Corporation a proceeding to terminate or suspend deposit
insurance; or
e. reasonably determines in good faith and with due care that the
payments called for under this Agreement, or the obligations
and promises assumed and made under this Agreement have become
proscribed under applicable law or regulations; provided,
however, if such law or regulations apply prospectively only,
or for some other reason do not apply to this Agreement, then
this Agreement shall not be deemed by Company to be
proscribed.
SECTION 3 - REDUCTION IN COMPENSATION PROSCRIBED AFTER A CHANGE IN CONTROL.
During the term of this Agreement from the date of a Change in Control forward,
Executive shall receive as compensation, while still employed by Company, a
salary at a rate no less than the highest rate in effect during the one-year
period before the Change in Control, and shall, in addition, be entitled to
receive a bonus equal to at least the average of the last three years bonuses
paid before the Change in Control. In addition, during such period, the Company
shall pay and provide for Executive at no cost to Executive, all of his
then-current fringe benefits, including but not limited to health, disability,
dental, life insurance, club memberships, etc., all of which shall be at levels
and amounts no less favorable than levels and amounts in effect as of the Change
in Control.
SECTION 4 - NO ADDITIONAL RIGHTS PRIOR TO A CHANGE IN CONTROL.
Except for an obligation arising pursuant to Section 5.C of this Agreement,
nothing contained in this Agreement shall change, alter or amend any rights
which either Company or Executive may have in respect of the termination of the
employment of Executive by Company prior to a Change in Control. Nothing
contained in this Agreement shall be construed to create any additional right or
obligation of Executive to be employed by Company. If the employment of
Executive by Company is terminated by Company or by Executive, for any reason
whatsoever, prior to a Change in Control, Executive and Company shall have only
such rights and obligations in respect of such termination as either of them
would have had if this Agreement had not been effected.
SECTION 5 - PAYMENTS DUE AFTER A CHANGE IN CONTROL.
A. If during the term of this Agreement and after the date of a Change in
Control, Executive is discharged without Cause or Executive resigns
because he has: (i) been demoted, (ii) had his compensation reduced,
(iii) had his principal place of employment transferred away from Marion,
Ohio or (iv) had his job title, status or responsibility materially
reduced, then the Company shall make the payments to Executive set forth
in subsection D of this Section 5.
B. If Executive voluntarily terminates employment not earlier than three (3)
months and not later than six (6) months following a Change in Control
then the Company shall make the payments to Executive set forth in
subsection D of this Section 5.
C. If Executive is discharged by Company other than for Cause and there is a
Change in Control within two years of the discharge, then the Company
shall make the payments to Executive set forth in subsection D of this
Section 5, reduced for any severance pay made by the Company to Executive
at the time of Executive's discharge.
D. In the event of the termination of Executive's employment as described in
A, B or C above, Executive shall be entitled to receive: (i) a cash
payment equal to one (1) year of Compensation or (ii) upon Executive's
election, one (1) year of Compensation payable in equal monthly payments,
in cash, without interest. The
lump sum cash payment or the first monthly cash payment, as the case may
be, shall be paid at the end of the first month commencing after the
Executive's termination of employment in the case of a benefit
entitlement under subsection A or B above and immediately upon
consummation of a Change in Control under subsection C above. If
Executive's employment is terminated as described in subsection A or
subsection B above, then in addition to the above cash payment(s),
Company shall continue at no cost to Executive for the term of the
Benefit Period as defined below, Executive's coverage in Company's
health, disability, dental, life insurance and club memberships at the
same levels that had been provided immediately prior to his termination
of employment. The Benefit Period shall commence on the date of
termination of the Executive's employment and shall end on the last day
of the twelfth (12th) consecutive whole month thereafter.
In the event Executive dies before collecting all amounts and benefits
due under this Section, any payments owing shall be paid to the person or
persons as stated in the last designation of beneficiary concerning this
Agreement signed by Executive and filed with Company, and if not, then to
the personal representative of Executive.
The payments and benefits provided for herein are in lieu of
compensation, benefits or amounts the Executive might otherwise be
entitled to under the Company's severance policy or otherwise payable by
the Company be reason of termination of employment.
E. As used herein "Compensation" shall mean the sum of employee base salary
plus any cash bonuses for the last whole calendar year preceding
Executive's termination of employment. Compensation shall not include any
amount, other than base salary and cash bonuses, included in Executive's
taxable compensation for federal income tax purposes and reported to
Executive and Internal Revenue Service ("IRS") such as the reporting of
previously deferred compensation or gain realized upon exercise of any
non qualified stock options. In the event the payments required under
this Agreement, when added together with any other amounts required to be
included by Executive under the provisions of the Code, result in an
"Excess Parachute Payment," as that term is defined in Section 280G of
the Code, then the amount of the payments provided for in this agreement
shall be increased in an amount equal to 140% of any excise tax imposed
under Section 4999 (or any successor thereto) of the Code and otherwise
payable by the Executive.
F. Any subsequent employment by Executive shall not reduce the obligation of
the Company to make the full payments and provide the full benefits
specified herein and Executive shall have no obligation to seek other
employment or otherwise mitigate the effect of his discharge from
employment.
SECTION 6 - QUALIFIED AND NON-QUALIFIED RETIREMENT PENSION PLANS.
Nothing in this Agreement shall reduce any pension benefits or benefits from
other qualified or non-qualified retirement plans maintained by Company to which
Executive is
otherwise entitled without regard to this Agreement. The Company shall take such
actions as are necessary in order to amend any and all qualified and
non-qualified retirement plans of the Company, or of any of its subsidiaries, in
order to provide for the inclusion of payments made to Executive under the terms
of this Agreement within the definition of compensation for all such plans and
to provide for the inclusion of the Benefit Period within the computation of any
and all years of service an/or age requirements for the computation of the
amount of, or vesting of, benefits under the Company's qualified and
non-qualified retirements plans.
SECTION 7 - PROVISION FOR OUTPLACEMENT SERVICES.
In the event of the termination of employment of Executive requiring the
payments specified in Section 5 of this Agreement, Executive shall be entitled
to one year of out placement services following termination of employment. Such
services shall include employment counseling, resume services, executive
placement services and similar services generally provided to executives by
professional executive out placement service providers. All costs of such out
placement services shall be paid for by the Company.
SECTION 8 - RIGHT TO OTHER BENEFITS.
Nothing in this Agreement shall abridge, eliminate, or cause Executive to lose
Executive's right or entitlement to any other Company benefit to which Executive
may be entitled due to his status as an employee under any plan or policy of
Company on such terms and conditions as are required of any employee under any
plan or policy of Company. Further, nothing in this Agreement shall create in
Executive any greater rights or entitlements, except as specified in this
Agreement. The plans and policies referred to in this Section 8 include, but are
not limited to, life insurance plans, dental, disability or health insurance
benefits, severance policies, club memberships, and accrued vacation pay.
SECTION 9 - PROTECTION OF BUSINESS.
Notwithstanding anything to the contrary contained elsewhere in this Agreement,
during the term of this Agreement and for a period of one year thereafter:
A. Executive will not disclose, reveal or communicate to any person, firm,
corporation, partnership, joint venture or other entity, directly or
indirectly, any trade secrets or other information which Executive may
have obtained during the course of his employment by Company in respect
of any matters affecting or relating to the banking business of Company
including, without limitation, any of its plans, policies, business
practices, finances, methods of operation or other information known to
Executive to be historically considered by Company to be confidential
information.
B. In addition to any action for damages, the restrictions imposed upon
Executive under this Section 9 may be enforced by the Company by an
action for an injunction
and it is hereby agreed that (in view of the general practical difficulty
of determining by computation or legal proof the exact amount of damages,
if any, resulting to Company from a violation by Executive of the
provisions of this Section 9) there would be no adequate remedy at law
for any breach by Executive of any such restriction.
C. The obligations imposed upon Executive by this Section 9 shall survive
the termination of this Agreement pursuant to Section 2.
SECTION 10 - NOTICE AND PAYMENTS.
All payments required or permitted to be made under the provisions of this
Agreement, and all notices and other communications required or permitted to be
given or delivered under this Agreement to Company or to Executive, which
notices or communications must be in writing, shall be deemed to have been given
if delivered by hand, or mailed by first-class mail, addressed as follows:
A. If to Company:
Ohio State Bancshares, Inc.
000 X. Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Atten: Chairman, Compensation Committee
B. If to Executive:
Xxxx X. Xxxxxx
000 X. Xxxxxxx Xxx.
Xxxxxxxx, Xxxx 00000
Company or Executive may, by notice given to the other from time to time and at
any time, designate a different address for making payments required to be made,
and for the giving of notices or other communications required or permitted to
be given, to the party designating such new address.
SECTION 11 - RECOVERY OF COSTS.
In case of litigation between the parties regarding this Agreement, the
prevailing party shall be entitled to recovery of all of their costs including
reasonable attorney's fees.
SECTION 12 - PAYROLL TAXES.
Any payment required or permitted to be made or given to Executive under this
Agreement shall be subject to the withholding and other requirements of
applicable laws, and to the deduction requirements of any benefit plan
maintained by Company in which
Executive is a participant, and to all reporting, filing and other requirements
in respect of such payments, and Company shall use it best efforts promptly to
satisfy all such requirements.
SECTION 13 - GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Ohio.
SECTION 14 - DUPLICATE ORIGINALS.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be a duplicate original, but all of which, taken together, shall
constitute a single instrument.
SECTION 15 - CAPTIONS.
The captions contained in this Agreement are included only for convenience of
reference and do not define, limit, explain or modify this Agreement or its
interpretations, construction or meaning and are in no way to be construed as a
part of this Agreement.
SECTION 16 - SEVERABILITY.
If any provision of this Agreement or the application of any provision to any
person or any circumstances shall be determined to be invalid or unenforceable,
such provision or portion thereof shall nevertheless be effective and
enforceable to the extent determined reasonable. Such determination shall not
affect any other provision of this Agreement or the application of said
provision to any other person or circumstance, all of which other provisions
shall remain in full force and effect, and it is the intention of Company and
Executive that if any provision of this Agreement is susceptible of two or more
constructions, one of which would render the provision enforceable and the other
or others of which would render the provisions unenforceable, then the
provisions shall have the meaning which renders it enforceable.
SECTION 17 - NUMBER AND GENDER.
When used in this Agreement, the number and gender of each pronoun shall be
construed to be such number and gender as the context, circumstances or its
antecedent may require.
SECTION 18 - SUCCESSOR AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon the successors
and assigns (including successive, as well as immediate, successors and assigns)
of Company; provided, however, that Company may not assign this Agreement or any
of its rights or obligations to any party other than a corporation which
succeeds to substantially all of the
business and assets of Company by merger, consolidation, sale of assets or
otherwise. This Agreement shall inure to the benefit of and be binding upon the
successor and assigns (including successive, as well as immediate, successors
and assigns) of Executive; provided, however, that the right of Executive under
this Agreement may be assigned only to his personal representative or trustee or
by will or pursuant to applicable laws of descent and distribution.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on and to be effective on September 15, 2000.
In the Presence of: EXECUTIVE
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxx Xxxx X. Xxxxxx
In the Presence of: OHIO STATE BANCSHARES, INC.
/s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxxx Its: Chairman
