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Exhibit 10.3
EMPLOYMENT CONTRACT
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THIS EMPLOYMENT CONTRACT (the "Agreement") is made and delivered in the
City of Blue Ash, Xxxxxxxx County, Ohio, effective as of the 1st day of January,
1997, by and between The Blue Ash Building And Loan Company (the "Company"), a
wholly owned subsidiary of Towne Financial Corporation (the "Holding Company"),
and Xxxxxxx X. Xxxxxx, (the "Employee").
WHEREAS, the Board of Directors of the Company and the Holding Company
believe that it is in the best interest of the Company to enter into this
Agreement with the Employee in order to assure the continuity and retention of
key management of the Company and to reinforce and encourage the continued
attention and dedication of the Employee to the Company and to the duties
assigned to the Employee by the Company; and
WHEREAS, the Board of Directors of the Company has approved and
authorized the execution and delivery of this Agreement with the Employee
effective as of the date set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and in consideration
of the mutual exchange of promises and of the covenants performed and to be
performed, the Company and Employee agree as follows:
1. EMPLOYMENT. The Employee will be employed by the Company as
the Executive Vice-President of the Company. As Executive Vice-President of
the Company, the Employee shall render to the Company administrative and
management services as are customarily rendered by persons situated in
similar executive capacities. The Employee shall have such other duties and
powers as may from time to time be assigned by the Board of Directors of the
Company, provided that such duties are consistent with the position of the
Employee as the Company's Executive Vice-President. During the term of this
Agreement, the Employee shall devote best efforts and all business time and
attention to the business and affairs of the Company.
2. COMPENSATION
(a) SALARY. Company agrees to pay the Employee during the term
of this Agreement a salary as follows: from the effective date hereof through
the 31st day of December, 1997, a salary at an annual rate equal to $107,545.00,
payable to the Employee by the Company not less frequently than weekly in
accordance with past practices of the Company. The salary of the Employee shall
be adjusted on January 1st, of each year during the term of this Agreement as
determined by the Company's Board of Directors, and may be increased (but not
decreased) in such amounts as the Board of Directors of the Company in its
discretion may determine.
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(b) DISCRETIONARY BONUSES. The Employee shall be entitled to
participate in an equitable manner with all other executive officers of the
Company in discretionary bonuses as authorized and declared by the Board of
Directors of the Company for its executive employees. No other compensation
provided for in this Agreement shall be deemed a substitute for the right of the
Employee to participate in such bonuses when and as declared by the Company's
Board of Directors.
(c) EXPENSES. During the term of employment hereunder, the
Employee shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred in accordance with policies and procedures at least as
favorable to the Employee as those presently applicable to the senior executive
officers of the Company, provided that the Employee properly accounts therefore
in accordance with the policy of the Company.
3. BENEFITS.
(a) PARTICIPATION IN RETIREMENT AND EMPLOYEE BENEFIT PLANS.
The Employee shall be entitled while employed hereunder to participate in and
receive benefits under all plans relating to stock options, stock purchases,
pension, thrift, profit sharing, group life insurance, medical coverage,
education, cash or stock bonuses, and other retirement or employee benefits or
combinations thereof that are now or hereafter maintained for the benefit of the
executive employees of the Company or for the Company's employees generally.
Provided, however, that nothing herein shall be construed as requiring the
Company to adopt, maintain and/or continue any such benefit plan.
(b) FRINGE BENEFITS. The Employee shall be eligible while
employed hereunder to participate in and receive benefits under any other fringe
benefits which are or may become applicable to the executive employees of the
Company or to its employees generally.
4. TERM. The term of employment under this Agreement shall be a period
of three (3) years commencing upon the date of this Agreement (herein the
"Commencement Date"), subject to earlier termination as hereinafter provided.
Beginning on the first anniversary of the Commencement Date, and on each
anniversary thereafter, the term of employment under this Agreement shall be
extended for a period of one (1) year unless either the Company or the Employee
gives contrary written notice to the other not less than ninety (90) days in
advance of the date on which the term of employment under this Agreement would
otherwise be extended. Notwithstanding any other statement or provision herein,
this Agreement will not be automatically extended unless, prior thereto, such
extension is approved by the Board of Directors of the Company following a
formal performance evaluation review of the Employee
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performed by the disinterested members of the Board of Directors of the Company
and the approval and justification of the approval are then recorded in the
minutes of the Board of Directors. Reference herein to the term of employment
under this Agreement shall refer to both such initial term and any extended
term.
5. VACATIONS. The Employee shall be entitled, without loss of
pay, to be absent voluntarily for reasonable periods of time from the
performance of the duties and responsibilities under this Agreement. All such
voluntary absences shall count as paid vacation time, unless the Board of
Directors of the Company otherwise approves. The Employee shall be entitled to
an annual paid vacation of 3 weeks per year or such longer period as the Board
of Directors of the Company may approve. The timing of paid vacations shall be
scheduled in a reasonable manner by the Employee. The Employee shall not be
entitled to receive any additional compensation from the Company on account of
failure to take a paid vacation. The Employee shall not be allowed to accumulate
unused paid vacation from one vacation year to the next, unless the Employee has
failed to use vacation time to which the Employee was entitled at the request of
the Company's Board of Directors.
6. TERMINATION OF EMPLOYMENT.
(a) (i) The Board of Directors of the Company may terminate
the employment of the Employee at any time, but any termination by the Board of
Directors other than termination for cause shall not prejudice the right of the
Employee to compensation or other benefits under this Agreement.
(ii) The Company and the Employee acknowledge and agree that
damages which will result to the Employee for termination without cause shall be
extremely difficulty or impossible to establish or prove. Therefore, the Company
and the Employee agree that unless the termination is a termination for cause,
the Company shall be obligated, concurrently with such termination, to make a
lump sum cash payment to the Employee, as liquidated damages, of an amount equal
to the then current salary of the Employee calculated for a period equal to the
remaining term of this Agreement. The Employee agrees that, except for such
other payments and benefits to which the Employee may be entitled as expressly
provided by the terms of this Agreement, such liquidated damages shall be in
lieu of all other claims which the Employee may make by reason of such
termination. Such payment to the Employee shall be made on or before the last
day of the employment of the Employee with the Company. The liquidated damages
amount shall not be reduces by any compensation which the Employee may receive
for other employment with another employer after termination of employment with
the Company.
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(iii) In addition to the liquidated damages above described
that are payable to the Employee for termination without cause, the following
shall apply in the event of any termination without cause, any termination by
reason of disability or in the event of any termination subject to Section 7
hereof: (1) the Employee shall continue to participate in, and accrue benefits
under, all retirement, pension, profit sharing, employee stock ownership, and
other deferred compensation plans of the Company for the remaining term of this
Agreement as if the termination of employment of the Employee had not occurred
(with the Employee deemed to receive annually for the purposes of such plans the
Employee's then current salary [at the time of this termination] under Section 2
of this Agreement), except to the extent that such continued participation and
accrual is expressly prohibited by law or to the extent such plan constitutes a
"qualified plan" under Section 401 of the Internal Revenue Code of 1986, as
amended (the "Code"); (2) the Employee shall be entitled to continue to receive
all other employee benefits and then existing fringe benefits referred to in
Section 3 hereof for the remaining term of this Agreement as if the termination
of employment had not occurred; and (3) all insurance or other provisions for
indemnification, defense or hold harmless of officers or directors of the
Company which are in effect on the date the notice of termination is sent to the
Employee shall continue for the benefit of the Employee with respect to all of
his acts and omissions while an officer or director as fully and completely as
if such termination had not occurred and until the final expiration or running
of all period of limitation against action which may be applicable to such acts
or omissions.
(b) If the Employee is suspended from office and/or temporarily
prohibited from participating in the conduct of the Company's affairs by a
notice served under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance
Act ("FDIA"), 12 U.S.C. Section 1818(e)(3); (g)(1), the Company's obligations
under this Agreement shall be suspended as of the date of service, unless
stayed by appropriate proceedings. If the charges in the notice are dismissed,
the Company may in its discretion (i) pay the Employee all or part of the
compensation withheld while its obligations under this Agreement were suspended
and (ii) reinstate in whole or in part any of the obligations which were
suspended.
(c) If the Employee is removed from office and/or permanently
prohibited from participating in the conduct of the Company's affairs by an
order issued under Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C.
Section 1818(e)(4); (g)(1), all obligations of the Company under this Agreement
shall terminate, as of the effective date of the order, but vested rights of
the parties shall not be affected.
(d) If the Company becomes in default (as defined in Section 3 (x)(1)
of the FDIA, 12 U.S.C. Section 1813(x)(1), all obligations under
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this Agreement shall terminate as of the date of default, but this provision
shall not affect any vested rights of the parties.
(e) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for the
continued operation of the Company: (i) by the Director of the Office of Thrift
Supervision ("OTS") or his or her designee at the time the Federal Deposit
Insurance Corporation or the Resolution Trust Corporation enters into an
agreement to provide assistance to or on behalf of the Company under the
authority contained in Section 13(c) of the FDIA, 12 U.S.C. Section 1823(c); or
(ii) by the Director of the OTS or his or her designee at the time the Director
of the OTS or his or her designee approves a supervisory merger to resolve
problems related to operation of the Company or when the Company is determined
by the Director of the OTS to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, however, shall not be
affected by any such action.
(f) In the event that the Company has terminated the Employee for
cause, but it is determined by a court of competent jurisdiction that cause did
not exist for such termination, or if it is determined by any such court that
the Company has failed to make timely payment of any amounts owed to the
Employee under this Agreement, the Employee shall be entitled to reimbursement
for all reasonable costs, including attorney fees, incurred in challenging such
termination or collecting such amounts. Such reimbursement shall be in addition
to all rights to which the Employee is otherwise entitled under this Agreement.
7. CHANGE IN CONTROL.
(a) If during the term of this Agreement there is a change in
control of the Company and/or the Holding Company, the Employee shall be
entitled to receive as a severance payment for services previously rendered to
the Company a lump sum cash payment as provided for herein (subject to Section
7(c) below) in the event the employment of the Employee is terminated,
voluntarily or involuntarily in connection with or within one year after the
change in control of the Company, unless such termination occurs by virtue of
normal retirement, permanent and total disability or death. Subject to Section
7(c) below, the amount of this payment shall equal three times the Employee's
average compensation which was payable by the Company and was includible in the
Employee's gross income for federal income tax purposes with respect to the five
most recent taxable years of the Company ending prior to such change in control
of the Company (or such portion of such period during which the Employee was a
full-time Employee of the Company), less $1.00. Payment under this Section 7(a)
shall be in lieu of any amount owed to the Employee as liquidated damages for
termina-
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tion without cause under Section 6(a) hereof. Payment under this Section 7(a)
shall not be reduced by any compensation which the Employee may receive from
other employment with another employer after termination of the employment of
the Employee with the Company. In addition, Section 6(a)(iii) shall apply in the
case of any termination of employment within the scope of this Section 7(a).
(b) A "change in control" for purposes of this Agreement shall
be deemed to have taken place if: (1) any person becomes the beneficial owner of
25% or more of the total number of voting shares of the Holding Company; (2) any
person becomes the beneficial owner of 10% or more, but less than 25% of the
total number of voting shares of the Holding Company, provided, however, that if
the Office of Thrift Supervision (the "OTS") has approved a rebuttal agreement
filed by such person or such person has filed a certification with the OTS, a
change in control will not be so deemed to have occurred unless the Board of
Directors of the Holding Company has made a determination that such beneficial
ownership constitutes or will constitute control; (3) any person (other than the
persons named as proxies solicited on behalf of the Board of Directors of the
Holding Company) holds revocable or irrevocable proxies as to the election or
removal of two or more directors of the Holding Company, for 25% or more of the
total number of voting shares of the Holding Company; (4) any person has
received the approval of the OTS under Section 10 of the Home Owner's Loan Act
(the "Holding Company Act"), or regulations issued thereunder to acquire control
of the Holding Company; (5) any person has received approval of the OTS under
the Change in Bank Control Act (the "Control Act"), or regulations issued
thereunder, to acquire control of the Holding Company; (6) any person has
commenced a tender or exchange offer, or entered into an agreement or received
an option, to acquire beneficial ownership of 25% or more of the total number of
voting shares of the Holding Company, whether or not the requisite approval for
such acquisition has been received under the Holding Company Act, the Control
Act, or the respective regulations issued thereunder; or (7) as the result of,
or in connection, any cash tender or exchange offer, merger, or other business
combination, sale of assets or contested election, or any combination of the
foregoing transactions, the persons who were directors of the Holding Company
before such transaction shall cease to constitute at least two-thirds of the
Board of Directors of the Holding Company or any successor institution. For
purposes of this Section 7(b) a "person" includes an individual, corporation,
partnership, trust, association, joint venture, xxxxx, syndicate, unincorporated
organization, joint stock company, a limited liability company or similar
organization or group acting in concert. A person for these purposes shall be
deemed to be a beneficial owner as that term is used in Rule 13d-3 under the
Securities Exchange Act of 1934.
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(c) Notwithstanding any other provisions of this Agreement or of any
other agreement, contract, or understanding heretofore or hereafter entered into
between the Employee and the Company except an agreement, contract, or
understanding hereafter entered into that expressly modifies or excludes
application of this Section 7(c) (the "Other Agreements"), and notwithstanding
any formal or informal plan or other arrangement heretofore or hereafter adopted
by the Company for the direct or indirect provision of compensation to the
Employee (including groups or classes of participants or beneficiaries of which
the Employee is a member), whether or not such compensation is deferred, is in
cash, or is in the form of a benefit to or for the Employee (a "Benefit Plan"),
the Employee shall not have any right to receive any payment, or other benefit
under this Agreement, any Other Agreement, or any Benefit Plan if such payment
or benefit, taking into account all other payments or benefits to or for the
Employee under this Agreement, all Other Agreements and all Benefit Plans, would
cause any payment to the Employee under this Agreement to be considered a
"parachute payment" within the meaning of Section 280G(b)(2) of the Internal
Revenue Code of 1986, as amended (the "Code") (a "Parachute Payment"). In the
event that the receipt of any such payment or benefit under this Agreement, any
Other Agreement, or any Benefit Plan would cause the Employee to be considered
to have received a Parachute Payment under this Agreement, then the Employee
shall have the right, in the Employee's sole discretion, to designate those
payments or benefits under this Agreement, any other Agreement, and/or any
Benefit Plans, which should be reduced or eliminated so as to avoid having the
payment to the Employee under this Agreement be deemed to be a Parachute
Payment.
8. DISABILITY. If during the term of employment hereunder the Employee
shall become disabled or incapacitated to the extent that the Employee is unable
to perform the duties of Executive Vice-President, the Employee shall be
entitled to receive disability benefits of the type provided for other
executive employees of the Company. During the period of time that the Employee
receives disability benefits, the rights of the Employee to receive the salary
stated in Section 2 hereof shall be suspended.
9. TERMINATION - DEATH. In the event of the death of the Employee
during the term of employment under this Agreement and prior to any termination
hereunder, the Employee's estate, or such person as the Employee may have
previously designated in writing, shall be entitled to receive from the Company
the salary of the Employee through the last day of the calendar month in which
death shall have occurred.
10. INVOLUNTARY TERMINATION-DEFINITION. Except as otherwise provided in
Section 7 of this Agreement the term "Involuntary Termination" in this Agreement
means the termination of employment of the Employee without the express written
consent of the
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Employee. The Employee shall be considered to be involuntarily terminated (1) if
the employment of the Employee is involuntarily terminated for any reason other
than for cause or (2) terminated pursuant to Section 6(b) through (e) or (3)
terminated by reason of death, or (4) there occurs a material diminution of or
interference with the Employee's duties and responsibilities as Executive
Vice-President of the Company. By way of example and not by way of limitation,
any of the following actions, if unreasonable or materially adverse to the
Employee, shall constitute such diminution or interference unless consented to
in writing by the Employee: (1) a change in the principal workplace of the
Employee to a location of more than 50 miles from the main office of the
Company; (2) a material demotion of the Employee, a reduction in the number or
seniority of other Company personnel reporting to the Employee, or a reduction
in the frequency with which, or in the nature of the matters with respect to
which, such personnel are to report to the Employee, other than as part of a
Company wide reduction in staff; or (3) a reduction or adverse change in salary,
perquisites, benefits, contingent benefits or vacation time which had
theretofore been provided to the Employee, other than as part of an overall
program applied uniformly and with equitable effect to all members of the senior
management of the Company.
11. TERMINATION FOR CAUSE. In case of termination of the employment of
the Employee for cause, the Company shall pay the Employee salary through the
date of termination and thereafter, the Company shall have no further obligation
to the Employee under this Agreement which shall be considered as terminated for
all purposes. The Employee shall not have the right to receive compensation or
other benefits for any period after termination for cause. Notwithstanding the
foregoing, the Employee shall not be deemed to have been terminated for cause
unless and until there shall have been delivered to the Employee a copy of a
resolution, duly adopted by the affirmative vote of not less than a majority of
the disinterested members of the Board of Directors at a meeting of the Board
called and held for such purpose after reasonable notice to the Employee and an
opportunity for the Employee, together with counsel for the Employee, to be
heard before the Board, stating that in the good faith opinion of the Board of
Directors of the Company, the Employee was guilty of conduct constituting
"cause" and specifying the particulars thereof in detail. The term "termination
for cause" shall mean termination because of personal dishonesty of the
Employee, incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform duties, willful violation of any
substantive law, rule or regulation or final cease and desist order, or material
breach of any provision of this Agreement.
12. VOLUNTARY TERMINATION. The Employee may voluntarily terminate
employment at any time upon ninety (90) days written notice to the Company or
upon such shorter period as may be agreed
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between the Employee and the Board of Directors of the Company. In the event of
such voluntary termination, the Company shall be obligated to continue to pay
the salary of the Employee only through the date of termination, at the time
such payments are due, and the Company shall have no further obligation to the
Employee under this Agreement.
13. NON-ASSIGNABILITY.
(a) This Agreement is personal to each of the parties hereto,
and neither party may assign or delegate any rights or obligations hereunder
without first obtaining the written consent of the other party; provided,
however, that the Company will require any successor or assign (whether direct
or indirect by purchase, merger, consolidation or otherwise) to all or substan-
tially all of the business and/or assets of the Company, by an assumption
agreement in form and substance satisfactory to the Employee, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession or
assignment had taken place. Failure of the Company to obtain such an assumption
agreement prior to the effective date of any such succession or assignment shall
be a breach of this Agreement and shall entitle the Employee to compensation
from the Company in the same amount and on the same terms as the compensation
pursuant to Section 7(a) hereof. For purposes of implementing the provisions of
this Section 13(a), the date on which any such succession becomes effective
shall be deemed the date of termination.
(b) This Agreement and all rights of the Employee hereunder
shall inure the benefit of and be enforceable by the Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devises and legatees. If the Employee should die while any amount
would still be payable to the Employee hereunder if the Employee had continued
to live, all such amounts unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to be designees and legatees of the
Employee or other designee or in default of such designee, to the estate of the
Employee.
14. MISCELLANEOUS.
(a) NOTICES. For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or sent by
certified mail, return receipt requested, postage prepaid, addressed (i) to the
Company at its home office to the attention of the Board of Directors of the
Company, with a copy to the Secretary of the Company and (ii) to the Employee at
the home address the Employee has most recently
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provided to the Company or to such other address as either party may have
furnished to the other in writing in accordance herewith.
(b) AMENDMENTS. No amendments or additions to this Agreement
shall be binding unless in writing and signed by both parties, except as herein
otherwise provided.
(c) 12 USC SECTION 828(K). Any payments made to the Employee
pursuant to this Agreement, or otherwise, are subject to and conditioned upon
their compliance with 12 USC Section 1828(K) and any regulations promulgated
thereunder.
(d) GOVERNING LAW. This Agreement shall be governed by the
laws of the United States to the extent applicable and otherwise by the laws of
the State of Ohio.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
The Blue Ash Building And Loan Company
By:/s/ Xxxxx Xxxxxxxxx
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President
Employee:/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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