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Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), is entered into this ___ day of __________, 1997, by and between
the Bridgeport Savings and Loan Association, a savings and loan association
incorporated under Ohio law (hereinafter referred to as the "EMPLOYER"), and Xxx
X. Xxxxxxx, an individual (hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is currently employed as the President and
Managing Officer of the EMPLOYER;
WHEREAS, as a result of the skill, knowledge and experience of the
EMPLOYEE, the Board of Directors of the EMPLOYER desires to retain the services
of the EMPLOYEE as the President and Managing Officer of the EMPLOYER;
WHEREAS, the EMPLOYEE desires to continue to serve as the President and
Managing Officer of the EMPLOYER; and
WHEREAS, the EMPLOYEE and the EMPLOYER desire to enter into this
AGREEMENT to set forth the terms and conditions of the employment relationship
between the EMPLOYER and the EMPLOYEE;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the EMPLOYER and the EMPLOYEE hereby agree as follows:
1. Employment and Term.
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(a) TERM. Upon the terms and subject to the conditions of this
AGREEMENT, the EMPLOYER hereby employs the EMPLOYEE, and the EMPLOYEE hereby
accepts employment, as the President and Managing Officer of the EMPLOYER. The
term of this AGREEMENT shall commence on the date hereof and shall end on
______________, 1998 unless extended by the EMPLOYER with the consent of the
EMPLOYEE as provided in subsection (b) of this Section 1 (hereinafter referred
to, together with such extensions, as the "TERM").
(b) EXTENSION. On or before each anniversary of the date of this
AGREEMENT, the Board of Directors of the EMPLOYER shall review this AGREEMENT,
document its justification and approval of this AGREEMENT in the board minutes,
and the TERM shall be extended for a one-year period beyond the then effective
expiration date, provided the Board of Directors determines that this AGREEMENT
should be extended. Any such extension shall be subject to the written consent
of the EMPLOYEE.
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2. Duties of the EMPLOYEE.
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(a) GENERAL DUTIES AND RESPONSIBILITIES. The EMPLOYEE shall serve as
the President and Managing Officer of the EMPLOYER. Subject to the direction of
the Board of Directors of the EMPLOYER, the EMPLOYEE shall have responsibility
for the general management and control of the business and affairs of the
EMPLOYER and shall perform all duties and shall have all powers which are
commonly incident to the office of President and Managing Officer or which,
consistent therewith, are delegated to him by the Board of Directors. Such
duties shall include, but not be limited to, (i) managing the day-to-day
operations of the EMPLOYER, (ii) managing the efforts of the EMPLOYER to comply
with applicable laws and regulations, (iii) marketing of the EMPLOYER and its
services, (iv) supervising other employees of the EMPLOYER, (v) providing prompt
and accurate reports to the Board of Directors of the EMPLOYER regarding the
affairs and conditions of the EMPLOYER, and (vi) making recommendations to the
Board of Directors of the EMPLOYER concerning the strategies, capital structure,
tactics, and general operations of the EMPLOYER.
(b) DEVOTION OF ENTIRE TIME TO THE BUSINESS OF THE EMPLOYER. The
EMPLOYEE shall devote his entire productive time, ability and attention during
normal business hours throughout the TERM to the faithful performance of his
duties under this AGREEMENT. The EMPLOYEE shall not directly or indirectly
render any services of a business, commercial or professional nature to any
person or organization other than the EMPLOYER and its sole shareholder, Ohio
State Financial Services Corporation (hereinafter referred to as the "HOLDING
COMPANY") without the prior written consent of the Board of Directors of the
EMPLOYER; provided, however, that the EMPLOYEE shall not be precluded from (i)
vacations and other leave time in accordance with Section 3(d) hereof; (ii)
reasonable participation in community, civic, charitable or similar
organizations; or (iii) the pursuit of personal investments which do not
interfere or conflict with the performance of the EMPLOYEE's duties to the
EMPLOYER. Nothing in this section shall limit the EMPLOYEE's right to invest in
securities of any business that does not provide services or products of the
type or competing with those provided by the EMPLOYER or its subsidiaries or
affiliates.
3. Compensation, Benefits and Reimbursements.
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(a) SALARY. The EMPLOYEE shall receive during the TERM an annual salary
payable in equal installments not less often than monthly. The amount of such
annual salary shall be $78,500 until changed by the Board of Directors of the
EMPLOYER in accordance with Section 3(b) of this AGREEMENT.
(b) ANNUAL SALARY REVIEW. On or before each anniversary of the date of
this AGREEMENT, the annual salary of the EMPLOYEE shall be reviewed by the Board
of Directors of the EMPLOYER and shall be set at an amount not less than
$78,500, based upon the EMPLOYEE's individual performance and the overall
profitability and financial condition of the EMPLOYER (hereinafter referred to
as the "ANNUAL REVIEW"). The results of the ANNUAL REVIEW shall be reflected in
the minutes of the Board of Directors of the EMPLOYER.
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(c) EMPLOYEE BENEFIT PROGRAM. During the TERM, the EMPLOYEE shall be
entitled to participate in all formally established employee benefit, bonus,
pension and profit-sharing plans and similar programs that are maintained by the
EMPLOYER from time to time, and all employee benefit plans or programs hereafter
adopted in writing by the Board of Directors of the EMPLOYER, for which senior
management personnel are eligible, including any employee stock ownership plan,
stock option plan or other stock benefit plan (hereinafter collectively referred
to as the "BENEFIT PLANS") in accordance with the terms and conditions of such
BENEFIT PLANS, including but not limited to satisfaction of any participation or
vesting requirements. Notwithstanding any statement to the contrary contained
elsewhere in this AGREEMENT, the EMPLOYER may discontinue or terminate at any
time any such BENEFIT PLANS, now existing or hereafter adopted, to the extent
permitted by the terms of such plans and shall not be required to compensate the
EMPLOYEE for such discontinuance or termination.
(d) VACATION AND SICK LEAVE. The EMPLOYEE shall be entitled, without
loss of pay, to be absent voluntarily from the performance of his duties under
this AGREEMENT, in accordance with the policies periodically established by the
Board of Directors of the EMPLOYER for senior management officials of the
EMPLOYER. The EMPLOYEE shall not be entitled to receive any additional
compensation from the EMPLOYER in the event of his failure to take the full
allotment of vacation time in any calendar year. The EMPLOYEE shall be entitled
to annual sick leave as established by the Board of Directors of the EMPLOYER
for senior management officials of the EMPLOYER. In the event that any sick
leave time shall not have been used during any calendar year, such leave shall
accrue to subsequent calendar years, only to the extent authorized by the Board
of Directors of the EMPLOYER. Upon termination of employment, the EMPLOYEE shall
not be entitled to receive any additional compensation from the EMPLOYER for
unused sick leave.
4. Termination of Employment.
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(a) GENERAL. In addition to the termination of the employment of the
EMPLOYEE upon the expiration of the TERM, the employment of the EMPLOYEE shall
terminate at any other time during the TERM upon the delivery by the EMPLOYER of
written notice of employment termination to the EMPLOYEE. The following
subparagraphs (i), (ii) and (iii) of this Section 4(a) shall govern the
obligations of the EMPLOYER to the EMPLOYEE upon the occurrence of the events
described in such subparagraphs:
(i) TERMINATION FOR JUST CAUSE. In the event that the EMPLOYER
terminates the employment of the EMPLOYEE during the TERM because of the
EMPLOYEE's personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure or refusal to
perform the duties and responsibilities assigned in this AGREEMENT, willful
violation of any law, rule, regulation or final cease-and-desist order (other
than traffic violations or similar offenses), conviction of a felony or for
fraud or embezzlement, or material breach of any provision of this AGREEMENT
(hereinafter collectively referred to as "JUST CAUSE"), the EMPLOYEE shall not
receive, and shall have no right to receive, any compensation or other benefits
for any period after such termination.
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(ii) TERMINATION AFTER CHANGE OF CONTROL. In the event that,
before the expiration of the TERM and in connection with or within one year
after a CHANGE OF CONTROL (as defined hereinafter) of the EMPLOYER or the
HOLDING COMPANY, (A) the employment of the EMPLOYEE is terminated for any reason
other than JUST CAUSE, (B) the present capacity or circumstances in which the
EMPLOYEE is employed are materially changed, or (C) the EMPLOYEE's
responsibilities, authority, compensation or other benefits provided under this
AGREEMENT are materially reduced, then the following shall occur:
(I) The EMPLOYER shall promptly pay to
the EMPLOYEE or to his beneficiaries, dependents or estate an amount equal to
the product of two, multiplied by the greater of the annual salary set forth in
Section 3(a) of this AGREEMENT or the annual salary payable to the EMPLOYEE as a
result of any ANNUAL REVIEW;
(II) The EMPLOYEE, his dependents,
beneficiaries and estate shall continue to be covered at the EMPLOYER's expense
under all health, life, disability and other welfare benefit plans of the
EMPLOYER in which the EMPLOYEE was a participant prior to the effective date of
the termination of his employment as if the EMPLOYEE were still employed under
this AGREEMENT until the earliest of the expiration of two years from the
effective date of the termination of employment or the date on which the
EMPLOYEE is included in another employer's benefit plans as a full-time
employee; and
(III) The EMPLOYEE shall not be required
to mitigate the amount of any payment provided for in this AGREEMENT by seeking
other employment or otherwise, nor shall any amounts received from other
employment or otherwise by the EMPLOYEE offset in any manner the obligations of
the EMPLOYER hereunder, except as specifically stated in subparagraph (II).
In the event that payments pursuant to this subsection (ii)
would result in the imposition of a penalty tax pursuant to Section 280G(b)(3)
of the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder (hereinafter collectively referred to as "SECTION 280G"),
such payments shall be reduced to the maximum amount which may be paid under
SECTION 280G without exceeding such limits. Payments pursuant to this subsection
also may not exceed the limit set forth in Regulatory Bulletin 27a of the Office
of Thrift Supervision (hereinafter referred to as the "OTS").
(iii) TERMINATION WITHOUT CHANGE OF CONTROL. In the event that
the employment of the EMPLOYEE is terminated before the expiration of the TERM
other than (A) for JUST CAUSE or (B) in connection with or within one year after
a CHANGE OF CONTROL, then the following shall occur:
(I) The EMPLOYER shall be obligated to
continue to pay on a monthly basis to the EMPLOYEE, his designated beneficiaries
or his estate, his annual salary provided pursuant to Section 3(a) or (b) of
this AGREEMENT until the expiration of the TERM;
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(II) The EMPLOYER shall continue to provide
to the EMPLOYEE, at the EMPLOYER's expense, health, life, disability, and other
welfare benefits substantially equal to those being provided to the EMPLOYEE at
the date of termination of his employment until the earliest to occur of the
expiration of the TERM or the date on which the EMPLOYEE is included in another
employer's benefit plans as a full-time employee; and
(III) The EMPLOYEE shall not be required to
mitigate the amount of any payment provided for in this AGREEMENT by seeking
other employment or otherwise, nor shall any amounts received from other
employment or otherwise by the EMPLOYEE offset in any manner the obligations of
the EMPLOYER hereunder, except as specifically stated in subparagraph (II).
In the event that payments pursuant to this subsection (iii) would
result in the imposition of a penalty tax pursuant to SECTION 280G, such
payments shall be reduced to the maximum amount which may be paid under SECTION
280G without exceeding those limits. Payments pursuant to this subsection also
may not exceed the limit set forth in Regulatory Bulletin 27a of the OTS.
(b) DEATH OF THE EMPLOYEE. The TERM automatically terminates upon the
death of the EMPLOYEE. In the event of such death, the EMPLOYEE's estate shall
be entitled to receive the compensation due the EMPLOYEE through the last day of
the calendar month in which the death occurred, except as otherwise specified
herein.
(c) "GOLDEN PARACHUTE" PROVISION. Any payments made to the EMPLOYEE
pursuant to this AGREEMENT or otherwise are subject to and conditioned upon
their compliance with 12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder.
(d) DEFINITION OF "CHANGE OF CONTROL". A "CHANGE OF CONTROL" shall mean
any one of the following events; (i) the acquisition of ownership or power to
vote more than 25% of the voting stock of the EMPLOYER or the HOLDING COMPANY;
(ii) the acquisition of the ability to control the election of a majority of the
directors of the EMPLOYER or the HOLDING COMPANY; (iii) during any period of up
to two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the EMPLOYER or the HOLDING COMPANY cease
for any reason to constitute at least two-thirds thereof; provided, however,
that any individual whose election or nomination for election as a member of the
Board of Directors of the EMPLOYER or the HOLDING COMPANY was approved by a vote
of at least two-thirds of the directors then in office shall be considered to
have continued to be a member of the Board of Directors of the EMPLOYER or the
HOLDING COMPANY; or (iv) the acquisition by any person or entity of "conclusive
control" of the EMPLOYER within the meaning of 12 C.F.R. Section 574.4(a), or
the acquisition by any person or entity of "rebuttable control" within the
meaning of 12 C.F.R. Section 574.4(b) that has not been rebutted in accordance
with 12 C.F.R. Section 574.4(c). For purposes of this paragraph, the term
"person" refers to an individual or corporation, partnership, trust,
association, or other organization, but does not include the EMPLOYEE and any
person or persons with whom the EMPLOYEE is "acting in concert" within the
meaning of 12 C.F.R. Part 574.
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5. SPECIAL REGULATORY EVENTS. Notwithstanding Section 4 of this
AGREEMENT, the obligations of the EMPLOYER to the EMPLOYEE shall be as follows
in the event of the following circumstances:
(a) If the EMPLOYEE is suspended and/or temporarily prohibited from
participating in the conduct of the EMPLOYER's affairs by a notice served under
section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (hereinafter
referred to as the "FDIA"), the EMPLOYER's obligations under this AGREEMENT
shall be suspended as of the date of service of such notice, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the
EMPLOYER shall pay the EMPLOYEE all or part of the compensation withheld while
the obligations in this AGREEMENT were suspended and reinstate, in whole or in
part, any of the obligations that were suspended;
(b) If the EMPLOYEE is removed and/or permanently prohibited from
participating in the conduct of the EMPLOYER's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the FDIA, all obligations of the EMPLOYER under
this AGREEMENT shall terminate as of the effective date of such order; provided,
however, that vested rights of the EMPLOYEE shall not be affected by such
termination;
(c) If the EMPLOYER is in default, as defined in section 3(x)(1) of the
FDIA, all obligations under this AGREEMENT shall terminate as of the date of
default; provided, however, that vested rights of the EMPLOYEE shall not be
affected;
(d) All obligations under this AGREEMENT shall be terminated, except to
the extent of a determination that the continuation of this AGREEMENT is
necessary for the continued operation of the EMPLOYER, (i) by the Director of
the OTS, or his or her designee at the time that the Federal Deposit Insurance
Corporation enters into an agreement to provide assistance to or on behalf of
the EMPLOYER under the authority contained in Section 13(c) of the FDIA or (ii)
by the Director of the OTS, or his or her designee, at any time the Director of
the OTS approves a supervisory merger to resolve problems related to the
operation of the EMPLOYER or when the EMPLOYER is determined by the Director of
the OTS to be in an unsafe or unsound condition; provided, however that no
vested rights of the EMPLOYEE shall not be affected by any such termination; and
(e) The provisions of this Section 5 are governed by the requirements
of 12 C.F.R. Section 563b.39(b) and in the event that any statements in this
Section 5 are inconsistent with 12 C.F.R. Section 563b.39(b), the provisions of
12 C.F.R. Section 563b.39(b) shall be controlling.
6. CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in this AGREEMENT
shall preclude the EMPLOYER or the HOLDING COMPANY from consolidating with,
merging into, or transferring all, or substantially all, of their assets to
another corporation that assumes all of their obligations and undertakings
hereunder. Upon such a consolidation, merger or transfer of assets, the term
"EMPLOYER" as used herein, shall mean such other corporation or entity, and this
AGREEMENT shall continue in full force and effect.
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7. CONFIDENTIAL INFORMATION. The EMPLOYEE acknowledges that during his
employment he will learn and have access to confidential information regarding
the EMPLOYER and its customers and businesses. The EMPLOYEE agrees and covenants
not to disclose or use for his own benefit, or the benefit of any other person
or entity, any confidential information, unless or until the EMPLOYER consents
to such disclosure or use or such information is otherwise legally in the public
domain. The EMPLOYEE shall not knowingly disclose or reveal to any unauthorized
person any confidential information relating to the EMPLOYER, its subsidiaries,
or affiliates, or to any of the businesses operated by them, and the EMPLOYEE
confirms that such information constitutes the exclusive property of the
EMPLOYER. The EMPLOYEE shall not otherwise knowingly act or conduct himself (a)
to the material detriment of the EMPLOYER, its subsidiaries, or affiliates, or
(b) in a manner which is inimical or contrary to the interests of the EMPLOYER.
8. NON-ASSIGNABILITY. Neither this AGREEMENT nor any right or interest
hereunder shall be assignable by the EMPLOYEE, his beneficiaries or legal
representatives without the EMPLOYER's prior written consent; provided, however,
that nothing in this Section 8 shall preclude (a) the EMPLOYEE from designating
a beneficiary to receive any benefits payable hereunder upon his death, or (b)
the executors, administrators, or other legal representatives of the EMPLOYEE or
his estate from assigning any rights hereunder to the person or persons entitled
thereto.
9. NO ATTACHMENT. Except as required by law, no right to receive payment
under this AGREEMENT shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy, or similar process of assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
10. BINDING AGREEMENT. This AGREEMENT shall be binding upon, and inure to
the benefit of, the EMPLOYEE and the EMPLOYER and their respective permitted
successors and assigns.
11. AMENDMENT OF AGREEMENT. This AGREEMENT may not be modified or amended,
except by an instrument in writing signed by the parties hereto.
12. WAIVER. No term or condition of this AGREEMENT shall be deemed to
have been waived, nor shall there be an estoppel against the enforcement of any
provision of this AGREEMENT, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver, unless specifically stated therein, and each waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than the act specifically waived.
13. SEVERABILITY. If, for any reason, any provision of this AGREEMENT is
held invalid, such invalidity shall not affect the other provisions of this
AGREEMENT not held so invalid, and each such other provision shall, to the full
extent consistent with applicable law, continue in full
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force and effect. If this AGREEMENT is held invalid or cannot be enforced, then
any prior AGREEMENT between the EMPLOYER (or any predecessor thereof) and the
EMPLOYEE shall be deemed reinstated to the full extent permitted by law, as if
this AGREEMENT had not been executed.
14. HEADINGS. The headings of the paragraphs herein are included solely
for convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this AGREEMENT.
15. GOVERNING LAW. This AGREEMENT has been executed and delivered in the
State of Ohio and its validity, interpretation, performance, and enforcement
shall be governed by the laws of the State of Ohio, except to the extent that
federal law is governing.
16. EFFECT OF PRIOR AGREEMENTS. This AGREEMENT contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement between the EMPLOYER or any predecessor of the EMPLOYER and the
EMPLOYEE.
17. NOTICES. Any notice or other communication required or permitted
pursuant to this AGREEMENT shall be deemed delivered if such notice or
communication is in writing and is delivered personally or by facsimile
transmission or is deposited in the United States mail, postage prepaid,
addressed as follows:
If to the EMPLOYER:
Bridgeport Savings and Loan Association
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
with copies to:
Xxxxx Xxxxxxxx Xxxxx, Esq.
Vorys, Xxxxx, Xxxxxxx and Xxxxx
Atrium Two, Suite 2100
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
If to the EMPLOYEE:
Xx. Xxx X. Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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IN WITNESS WHEREOF, the EMPLOYER has caused this AGREEMENT to be
executed by its duly authorized officer, and the EMPLOYEE has signed this
AGREEMENT, each as of the day and year first above written.
Attest: Bridgeport Savings and Loan Association
____________________________ By:________________________________
its ____________________________
Attest:
____________________________ ___________________________________
Xxx X. Xxxxxxx
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