EXHIBIT 10.4
AGREEMENT AMONG
COMMUNITY INVESTORS BANCORP, INC.
FIRST FEDERAL COMMUNITY BANK OF BUCYRUS
AND XXXXXXX X. XXXXX
AGREEMENT, dated this 17th day of September 2004, among
Community Investors, Bancorp, Inc., an Ohio corporation (the
"Corporation"), First Federal Community Bank of Bucyrus, a
federally chartered savings bank and a wholly owned subsidiary of
the Corporation ("First Federal") and Xxxxxxx X. Xxxxx (the
"Executive"). Hereinafter, any reference to the "Employers"
shall mean both the Corporation and First Federal and any
reference to an "Employer" shall mean either the Corporation or
First Federal.
WITNESSETH:
WHEREAS, the Executive presently serves as vice president,
commercial lending of each of the Employers and in such capacity
serves as the primary lending officer of the Employers; and
WHEREAS, the Employers desire to be ensured of the
Executive's continued active participation in the business of the
Employers; and
WHEREAS, in order to induce the Executive to remain in the
employ of the Employers and in consideration of the Executive's
agreeing to remain in the employ of the Employers, the parties
desire to specify the severance benefits which shall be due the
Executive in the event that his employment with the Employers is
terminated under specified circumstances;
NOW THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereby agree as
follows:
1. Definitions. The following words and terms shall have
the meanings set forth below for the purposes of this Agreement:
(a) Annual Compensation. The Executive's "Annual
Compensation" for purposes of this Agreement shall be deemed to
mean the lower of (i) highest level of base salary paid to the
Executive by the Employer thereof during any of the three
calendar years ending during the calendar year in which the Date
of Termination occurs or (ii) the average annual compensation
(including, without limitation, base salary, commissions,
bonuses, pension and profit sharing plans, retirement, director
and committee fees, fringe benefits and other miscellaneous
compensation) paid to the Executive by the Employer during the
five most recent taxable years ending during the year in which
the Date of Termination occurs.
(b) Cause. Termination by the Employers of the Executive's
employment for "Cause" shall mean termination because of personal
dishonesty, incompetence, willful misconduct, breach of fiduciary
duty involving personal profit, intentional failure to perform
stated duties, willful violation of any law, rule or regulation
(other than traffic violations or similar offenses) or final
cease-and-desist order. For purposes of this paragraph, no act or
failure
to act on the Executive's part shall be considered "willful" unless
done, or omitted to be done, by the Executive not in good faith and
without reasonable belief that the Executive's action or omission
was in the best interest of the Employers.
(c) Change in Control of the Employer. "Change in Control
of the Employer shall mean a change in control of a nature that
would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended ("Exchange Act"), or any
successor thereto, whether or not any security of the Employer is
registered under Exchange Act; provided that, without limitation,
such a change in control shall be deemed to have occurred if (i)
any "person" (as such term is used in Section 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Employer representing 25% or
more of the combined voting power of the Employer's then
outstanding securities; or (ii) during any period of two
consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Employer cease
for any reason to constitute at least a majority thereof unless
the election, or the nomination for election by stockholders, of
each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the
beginning of the period.
(d) Code. Code shall mean the Internal Revenue Code of
1986, as amended.
(e) Date of Termination. "Date of Termination" shall mean
(i) if the Executive's employment is terminated for Cause or for
Disability, the date specified in the Notice of Termination, and
(ii) if the Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given or as
specified in such Notice.
(f) Disability. Termination by the Employers of the
Executive's employment based on "Disability" shall mean
termination because of any physical or mental impairment which
qualifies the Executive for disability benefits under the
applicable long-term disability plan maintained by the Employers
or any subsidiary or, if no such plan applies, which would
qualify the Executive for disability benefits under the Federal
Social Security System.
(g) Good Reason. Termination by the Executive of the
Executive's employment for "Good Reason" shall mean termination
by the Executive based on:
(i) Without the Executive's express written
consent, the assignment by the Employer to the Executive of any
duties which are materially inconsistent with the Executive's
positions, duties, responsibilities and status with the Employer
immediately prior to a Change in Control of the Employer, or a
material change in the Executive's reporting responsibilities,
titles or offices as an employee and as in effect immediately
prior to such a Change in Control, or any removal of the
Executive from or any failure to re-elect the Executive to any of
such responsibilities, titles or offices, except in connection
with the termination of the Executive's employment for Cause,
Disability or Retirement or as a result of the Executive's death
or by the Executive other than for Good Reason;
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(ii) Without the Executive's express written
consent, a reduction by the Employers in the Executive's base
salary as in effect on the date of the Change in Control of the
Employer or as the same may be increased from time to time
thereafter or a reduction in the package of fringe benefits
provided to the Executive;
(iii) Any purported termination of the Executive's
employment for Cause, Disability or Retirement which is not effected
pursuant to a Notice of Termination satisfying the requirements of
paragraph (i) below; or
(iv) The failure by the Employer to obtain the
assumption of and agreement to perform this Agreement by any
successor as contemplated in Section 6 hereof.
(h) IRS. IRS shall mean the Internal Revenue Service.
(i) Notice of Termination. Any purported termination by
the Employer for Cause, Disability or Retirement or by the
Executive for Good Reason shall be communicated by written
"Notice of Termination" to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a notice
which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so
indicated, (iii) specifies a Date of Termination, which shall be
not less than thirty (30) nor more than ninety (90) days after
such Notice of Termination is given, except in the case of the
Employer's termination of Executive's employment for Cause, and
(iv) is given in the manner specified in Section 7 hereof.
(j) Retirement. Termination by the Employer of the
Executive's employment based on "Retirement" shall mean voluntary
termination by the Executive in accordance with the Employers'
retirement policies, including early retirement, generally
applicable to their salaried employees.
2. Benefits Upon Termination. Subject to the provisions
of Section 3 hereof, the Executive shall receive the benefits
described in paragraphs (a) and (b) of this Section 2 in the
event of a Change in Control of the Employer if following such
Change in Control (i) the Employer terminates the employment of
the Executive for any reason other than for Cause, as a result of
Retirement or as a result of the Executive's death or (ii) the
Executive terminates his employment with the Employer for Good
Reason.
(a) pay to the Executive, in thirty-six (36) equal monthly
installments beginning with the first business day of the month
following the Date of Termination, a cash amount equal to 2.99
times the Executive's Annual Compensation; and
(b) maintain and provide for a period ending at the earlier
of (i) two (2) years after the Date of Termination or (ii) the
date of the Executive's full-time employment by another employer
(provided that the Executive is entitled under the terms of such
employment to benefits substantially similar to those described
in this subparagraph (b)), at no cost to the Executive, the
Executive's continued participation in all group insurance, life
insurance, health and accident,
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disability and other employee benefit plans, programs and
arrangements in which the Executive was entitled to participate
immediately prior to the Date of Termination (other than retirement
plans or stock compensation plans of the Employers), provided that
in the event that the Executive's participation in any plan,
program or arrangement as provided in this subparagraph (b) is
barred, or during such period any such plan, program or arrangement
is discontinued or the benefits thereunder are materially reduced,
the Employers range to provide the Executive with benefits substantially
similar to those which the Executive was entitled to receive
under such plans, programs and arrangements immediately prior to
the Date of Termination.
3. Limitation of Benefits under Certain Circumstances. If
the payments and benefits pursuant to Section 2 hereof, either
alone or together with other payments and benefits which the
Executive has the right to receive from the Employer, would
constitute a "parachute payment" under Section 280G of the Code,
the payments and benefits payable by the Employer pursuant to
Section 2 hereof shall be reduced, in the manner determined by
the Executive, by the amount, if any, which is the minimum
necessary to result in no portion of the payments and benefits
under Section 2 being non-deductible to the Employer pursuant to
Section 280G of the Code and subject to the excise tax imposed
under Section 4999 of the Code. The determination of any
reduction in the payments and benefits to be made pursuant to
Section 2 shall be based upon the opinion of independent tax
counsel selected by the Employer and paid by the Employer. Such
counsel shall be reasonably acceptable to the Employer and the
Executive; shall promptly prepare the foregoing opinion, but in
no event later than thirty (30) days from the Date of
Termination; and may use such actuaries as such counsel deems
necessary or advisable for the purpose. Nothing contained herein
shall result in a reduction of any payments or benefits to which
the Executive may be entitled upon termination of employment
under any circumstances other than as specified in this Section
3, or a reduction in the payments and benefits specified in
Section 2 below zero.
4. Mitigation; Exclusivity of Benefits.
(a) The Executive shall not be required to mitigate the
amount of any benefits hereunder by seeking other employment or
otherwise, nor shall the amount of any such benefits be reduced
by any compensation earned by the Executive as a result of
employment by another employer after the Date of Termination or
otherwise.
(b) The specific arrangements referred to herein are not
intended to exclude any other benefits which may be available to
the Executive upon a termination of employment with the Employers
pursuant to employee benefit plans of the Employers or otherwise.
5. Withholding. All payments required to be made by the
Employers hereunder to the Executive shall be subject to the
withholding of such amounts, if any, relating to tax and other
payroll deductions as the Employers may reasonably determine
should be withheld pursuant to any applicable law or regulation.
6. Assignability. The Employers may assign this Agreement
and their rights hereunder in whole, but not in part, to any
corporation, bank or other entity with or into which either of
the Employers may hereafter merge or consolidate or to which
either of the Employers may transfer all or substantially all of
their respective assets, if in any such case said corporation,
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bank or other entity shall by operation of law or expressly in
writing assume all obligations of the Employers hereunder as
fully as if it had been originally made a party hereto, but may
not otherwise assign this Agreement or its rights hereunder. The
Executive may not assign or transfer this Agreement or any rights
or obligations hereunder.
7. Notice. For the purposes 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
delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective
addresses set forth below:
To the Employers: Xxxx X. Xxxxxx
Chairman of the Board
Community Investors Bancorp, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxx 00000
To the Executive: Xxxxxxx X. Xxxxx
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxx 00000
8. Amendment; Waiver. No provisions of this Agreement may
be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing signed by the
Executive and such officer or officers as may be specifically
designated by the Boards of Directors of the Employers to sign on
their behalf. No waiver by any party hereto at any time of any
breach by any other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or
subsequent time.
9. Governing Law. The validity, interpretation,
construction and performance of this Agreement shall be governed
by the laws of the United States where applicable and otherwise
the substantive laws of the State of Ohio.
10. Nature of Employment and Obligations.
(a) Nothing contained herein shall be deemed to create
other than a terminable at will employment relationship between
the Employers and the Executive, and the Employers may terminate
the Executive's employment at any time, subject to providing any
payments specified herein in accordance with the terms hereof.
(b) Nothing contained herein shall create or require the
Employers to create a trust of any kind to fund any benefits
which may be payable hereunder, and to the extent that the
Executive acquires a right to receive benefits from the Employers
hereunder, such right shall be no greater than the right of any
unsecured general creditor of the Employers.
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11. Term of Agreement. This Agreement shall terminate
three (3) years after the date first above written; provided that
on or prior to the first anniversary of the date first above
written and each anniversary thereafter, the Boards of Directors
of the Employers shall consider (with appropriate corporate
documentation thereof, and after taking into account all relevant
factors, including Executive's performance as an employee)
renewal of the term of this Agreement for an additional one (1)
year, and the term of this Agreement shall be so extended unless
the Boards of Directors of the Employers do not approve such
renewal and provide written notice to the Executive, or the
Executive gives written notice to the Employers, thirty (30) days
prior to the date of any such anniversary, of such party's or
parties' election not to extend the term beyond its then
scheduled expiration date; and provided further that,
notwithstanding the foregoing to the contrary, this Agreement
shall be automatically extended for an additional one (1) year
upon a Change in Control of the Employer.
12. Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
13. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which
shall remain in full force and effect.
14. Counterparts. 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 will constitute one and the
same instrument.
15. Regulatory Prohibition. Notwithstanding any other
provision of this Agreement to the contrary, any payments made to
the Executive 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.
16. Regulatory Actions. The following provisions shall be
applicable to the parties to the extent that they are required to
be included in agreements between a savings association and its
employees pursuant to Section 563.39(b) of the Regulations
Applicable to All Savings Associations, 12 C.F.R. Section 563.39(b),
or any successor thereto, and shall be controlling in the event of a
conflict with any other provision of this Agreement.
(a) If Executive is suspended from office and/or
temporarily prohibited from participating in the conduct of the
Employers' affairs pursuant to notice served under Section
8(e)(3) or Section 8(g)(1) of the Federal Deposit Insurance Act
("FDIA")(12 U.S.C. Sections 1818(e)(3) and 1818(g)(1)), the Employers'
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 Employers may, in
their discretion: (i) pay Executive 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
its obligations which were suspended.
(b) If Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Employers'
affairs by an order issued under Section 8(e)(4) or
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Section 8(g)(1) of the FDIA (12 U.S.C. Sections 1818(e)(4) and (g)(1)),
all obligations of the Employers under this Agreement shall terminate
as of the effective date of the order, but vested rights of the
Executive and the Employers as of the date of termination shall
not be affected.
(c) If First Federal is in default, as defined in Section
3(x)(1) of the FDIA (12 U.S.C. Section 1813(x)(1)), all obligations
under this Agreement shall terminate as of the date of default,
but vested rights of the Executive and the Employers as of the
date of termination shall not be affected.
(d) All obligations under this Agreement shall be
terminated pursuant to 12 C.F.R. Section 563.39(b)(5) (except to the
extent that it is determined that continuation of the Agreement
for the continued operation of the Employers is necessary): (i)
by the Director of the Office of Thrift Supervision ("OTS"), or
his/her designee, at the time the Federal Deposit Insurance
Corporation ("FDIC") or Resolution Trust Corporation enters into
an agreement to provide assistance to or on behalf of First
Federal 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/her designee, at the time the Director or his/her designee
approves a supervisory merger to resolve problems related to
operation of First Federal or when First Federal is determined by
the Director of the OTS to be in an unsafe or unsound condition,
but vested rights of the Executive and the Employers as of the
date of termination shall not be affected.
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IN WITNESS WHEREOF, this Agreement has been executed as of
the date first above written.
Attest: COMMUNITY INVESTORS BANCORP, INC.
/s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx
----------------------- --------------------------
Xxxxxxx Xxxxxxxxx Xxxx X. Xxxxxx
Chairman of the Board
FIRST FEDERAL COMMUNITY BANK
OF BUCYRUS
By: /s/ Xxxx X. Xxxxxx
-------------------------
Xxxx X. Xxxxxx
Chairman of the Board
Attest:
/s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
----------------------- -------------------------
Xxxxxxx Xxxxxxxxx Xxxxxxx X. Xxxxx
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