EMPLOYMENT AND NON-COMPETITION AGREEMENT
Exhibit
10.4
EMPLOYMENT
AND
NON-COMPETITION
AGREEMENT
This
Employment and Non-competition Agreement (this “Agreement”) is made as of
December 31, 2010, between First Financial Bancorp., an Ohio corporation (the
“Company”),
and Xxxxxxx
X. Xxxxxxxx (“Employee”).
WHEREAS, the Company and
Employee (each, the “Party,” and together, the
“Parties”) were parties
to an employment and
non-competition agreement dated on or about June 6, 2005 and any
amendments thereto (the “Prior
Agreement”); and
WHEREAS, the Parties desire to
terminate the Prior Agreement and enter into a new agreement as provided
herein.
NOW, THEREFORE, the Parties hereby
agree as follows:
§ 1.
Employment. The
Company hereby agrees to continue to employ Employee, and Employee hereby agrees
to continue his employment with the Company, upon the terms and subject to the
conditions described in this Agreement.
§ 2.
Term. The
term of Employee’s employment with the Company pursuant to this Agreement shall
begin on January 1, 2011 (the “Effective Date”) and shall
continue until April 30, 2012 (the “Initial Term”), unless sooner terminated
pursuant to § 6 of this Agreement. The term of this Agreement shall renew
automatically for successive one-year periods after the Initial Term (the “Renewal Terms”), unless and until terminated
by either the Company or Employee at the end of the Initial Term or any Renewal
Term, as applicable, upon not less than ninety (90) days’ prior written notice
given by either Party prior to the end of the Initial Term or any Renewal Term,
as applicable (it being understood that non-renewal of this Agreement shall not
result in a termination of employment unless the Party providing such notice of
non-renewal also specifies in such notice that Employee’s employment shall
terminate at the expiration of the then-current term). The Initial Term and all
Renewal Terms, if any, shall constitute the “Term,” unless sooner
terminated pursuant to § 6 of this Agreement. Notwithstanding the foregoing, in
the event of the consummation of a “Change in Control” of the Company (as
defined below), the Term shall be the two-year period following the consummation
of such Change in Control.
§ 3.
Services. During
the Term, Employee shall be employed as the Executive Vice President and
Corporate General Counsel of the Company or in a position that is
comparable in all material respects to such position in responsibility and for
which Employee is suited by education and background. During the Term, Employee
shall report directly to the Chief Executive Officer of the Company or to such
other person as may be designated by the Chief Executive Officer from time to
time (the “Reporting
Person”) and shall perform such services and be responsible for such
activities consistent with Employee’s then-current position with the Company as
may be reasonably assigned to him from time to time by the Reporting Person or
the Board of Directors of the Company (the “Board”) or a duly authorized
Board committee, subject to the business policies and operating programs,
budgets, procedures, and directions established from time to time by the Company
(the “Services”).
Employee shall devote his best efforts and full business and professional time,
attention, energy, loyalty, and skill to rendering the Services, seeing to the
business affairs of the Company, and advancing the Company’s
interests.
§ 4.
Compensation.
(A)
Base
Compensation. As compensation for his Services during the Term, the
Company shall pay Employee a base salary at the annual rate of $295,000 (the
“Base Salary”), payable
in accordance with the Company’s general policies and procedures for payment of
salaries to its executive officers as in effect from time to time. Employee’s
performance shall be reviewed by the Reporting Person not less often than
annually for the purpose of evaluating potential increases in the Base Salary
for recommendation to and approval by the Board or the Compensation Committee of
the Board (the “Compensation
Committee”), but the Company shall not be obligated to make any such
increases.
(B) Short-Term Bonus.
With respect to each fiscal year of the Company ending during the Term
(including with respect to the fiscal year that includes the Effective Date),
Employee shall be eligible to participate in the Company’s Annual Short-Term
Bonus Plan or such other short-term bonus compensation plan established by the
Board or a Board committee as in effect from time to time (the “Bonus Plan”). For purposes of
the Bonus Plan, Employee’s target annual bonus opportunity shall be equal to
forty percent (40%) of the Employee’s annual rate of Base Salary as in effect at
the start of the fiscal year of the Company to which the short-term bonus award
relates (the “Target Bonus
Amount”), with the actual amount and terms and conditions of any such
short-term bonus award to be determined by the Compensation Committee consistent
with and subject to the terms of the Bonus Plan; provided, however, that, other than
with respect to the Target Bonus Amount, the terms of the Bonus Plan applicable
to Employee shall be comparable in all material respects to the terms applicable
to the Company’s executive officers generally. The bonus, if any, for each
fiscal year shall be paid to Employee by no later than the fifteenth (15th) day
of the third (3rd) month following the end of such fiscal year, unless the
Company or Employee, as applicable, shall elect to defer the receipt of such
bonus pursuant to an arrangement that meets the requirements of Section 409A of
the Internal Revenue Code of 1986, as amended (the “Code”).
(C) Long-Term Incentive Award
Opportunity. With respect to each fiscal year of the Company during the
Term, Employee shall be eligible to be awarded a long-term incentive award
(“LTI Award”), with a
target award opportunity having a value (based on the grant date value of any
such LTI Award, as determined in accordance with the Company’s standard
valuation methodology and procedures for equity and equity-based awards as
applied consistently with respect to other executive officers of the Company)
equal to forty-five percent (45%) of the Base Salary. The actual amount and
terms and conditions of any such LTI Award shall be determined by the
Compensation Committee consistent with and subject to the terms of the
applicable long-term incentive plan of the Company as in effect from time to
time.
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(D) Employee Benefits.
During the Term, Employee shall be eligible to participate in the employee
pension, including any supplemental pension and savings plans as in effect from
time to time, and welfare benefits and other group employee benefits, such as
sick leave, vacation, group disability and health, life, and accident insurance
and similar indirect compensation programs, which may from time to time be
offered generally to the Company’s executive officers, subject in each case to
the terms and conditions of the applicable benefit plan or program.
§ 5.
Confidentiality;
Non-competition; Non-solicitation; Non-disparagement.
(A) Confidentiality.
Employee shall not, directly or indirectly, at any time (whether during the Term
or thereafter), disclose any Confidential Information (as defined below) to any
person, association or other entity (other than the Affiliated Companies, as
defined below), or use, or authorize or assist any person, association or other
entity (other than the Affiliated Companies) to use, any Confidential
Information, excepting only disclosures required by applicable law; provided that if Employee
believes that disclosure of Confidential Information is required by applicable
law, Employee shall promptly (and in any event prior to such disclosure) give
the Company notice of such proposed disclosure and cooperate with the Company in
all ways reasonably requested by it in its efforts to obtain a protective order
or otherwise limit the scope of such disclosure to the extent the Company deems
necessary or appropriate. Upon termination of his employment with the Company
(for any reason), Employee shall promptly deliver to the Company all documents
and other materials containing any Confidential Information which are in his
possession or under his control.
(B) Non-competition.
During the Term and during the first six (6) months of the Restricted Period (as
defined below), other than following a termination by the Company for Cause (as
defined below) in which case this § 5(B) shall be inapplicable, Employee shall
not, directly or indirectly, whether individually or as a shareholder or other
owner, partner, member, director, officer, employee, independent contractor,
creditor or agent of any person (other than for the Company), enter into, engage
in, or promote or assist (financially or otherwise), directly or indirectly, any
business which provides any commercial banking, savings banking, mortgage
lending, or any similar lending or banking services (the “Restricted Services”) anywhere
in the geographic area consisting of the states of the United States in which
any of the Affiliated Companies operate banking offices at any time during the
Term (the “Restricted
Territory”). Notwithstanding the foregoing, ownership, for personal
investment purposes only, of 1% or less of the outstanding capital stock of a
publicly traded corporation shall not constitute a violation hereof. It is
understood and agreed that the practice of law shall not be considered one of
the Restricted Services, regardless of the location where such services are
provided or the recipient of such legal services. Nothing in this
Agreement shall prevent Employee from providing legal services, either as an
outside lawyer or as in-house counsel, to any business, including businesses
which provide commercial banking, savings banking, mortgage lending. or any
similar lending or banking services.
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(C) Non-solicitation of
Clients. During the Term and during the Restricted Period, Employee shall
not, directly or indirectly, whether individually or as a shareholder or other
owner, partner, member, director, officer, employee, independent contractor,
creditor or agent of any person (other than for the Company):
(1)
Solicit (as defined below) any person or entity located in the Restricted
Territory for the provision of any Restricted Services;
(2)
Solicit or attempt in any manner to persuade any client or customer of any
Affiliated Company to cease to do business, to refrain from doing business or to
reduce the amount of business which any client or customer has customarily done
or contemplates doing with any of the Affiliated Companies; or
(3)
interfere with or damage (or attempt to interfere with or damage) any
relationship between an Affiliated Company and any client or
customer.
(D) Non-solicitation of
Employees; No Hire. During the Term and during the Restricted Period,
Employee shall not, directly or indirectly, whether individually or as a
shareholder or other owner, partner, member, director, officer, employee,
independent contractor, creditor or agent of any person (other than for any
Affiliated Company):
(1)
Solicit any employee, officer, director, agent or independent contractor of any
Affiliated Company to terminate his or her relationship with, or otherwise
refrain from rendering services to, any Affiliated Company, or otherwise
interfere or attempt to interfere in any way with any Affiliated Company’s
relationship with any of its employees, officers, directors, agents or
independent contractors; or
(2)
employ or engage any person who, at any time within the two-year period
immediately preceding such employment or engagement, was an employee, officer or
director of any Affiliated Company.
(E)
Non-disparagement.
Employee shall not, directly or indirectly, at any time (whether during the Term
or thereafter), make any public statement (oral or written), or take any other
action, that is disparaging to any Affiliated Company. The provisions of this §
5(E) shall not preclude Employee from making truthful statements to correct any
false statements made by any Affiliated Company or any person acting on behalf
thereof about Employee.
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(F)
Defined Terms.
For purposes of this Agreement, the following terms shall have the meaning set
forth below:
(1)
“Affiliated Companies”
shall mean the Company, all of its subsidiaries, and any other entities
controlled by, controlling, or under common control with the Company, including
any successors thereof, except that, following the consummation of a Change in
Control, for purposes of §§ 5(B) and 5(C), Affiliated Companies shall be limited
to the Company and it subsidiaries as of immediately prior to the consummation
of such Change in Control.
(2)
“Change in Control” has
the meaning given such term in the Company’s 2009 Employee Stock Plan, as in
effect on the Effective Date.
(3)
“Confidential
Information” shall mean all trade secrets, proprietary data, and other
confidential information of or relating to any Affiliated Company, including
without limitation financial information, information relating to business
operations, services, promotional practices, and relationships with customers,
suppliers, employees, independent contractors, or other parties, and any
information which any Affiliated Company is obligated to treat as confidential
pursuant to any course of dealing or any agreement to which it is a party or
otherwise bound, provided that Confidential
Information shall not include information that is or becomes available to the
general public and did not become so available through any breach of this
Agreement by Employee or Employee’s breach of a duty owed to the
Company.
(4)
“Restricted Period”
shall mean the two-(2-) year period following Employee’s termination of
employment with the Company or any Affiliated Company (whether pursuant to this
Agreement or otherwise) for any reason.
(5)
“Solicit” shall mean any
direct or indirect communication of any kind whatsoever, regardless of by whom
initiated, inviting, advising, persuading, encouraging or requesting any person
or entity, in any manner, to take or refrain from taking any action; provided, however, that the term
“Solicit” shall not include general advertisements by an entity with which
Employee is associated or other communications in any media not targeted
specifically at any specific individual described in § 5(C) or
5(D).
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(G)
Enforcement; Remedies;
Blue Pencil. Employee acknowledges that: (1) the various covenants,
restrictions, and obligations set forth in this § 5 are separate and independent
obligations, and may be enforced separately or in any combination; (2) the
provisions of this § 5 are fundamental and essential for the protection of the
Company’s and the Affiliated Companies’ legitimate business and proprietary
interests, and the Affiliated Companies (other than the Company) are intended
third-party beneficiaries of such provisions; (3) such provisions are reasonable
and appropriate in all respects and impose no undue hardship on Employee; and
(4) in the event of any violation by Employee of any of such provisions, the
Company and, if applicable, the Affiliated Companies, will suffer irreparable
harm and their remedies at law may be inadequate. In the event of any violation
or attempted violation of any provision of this § 5 by Employee, the Company and
the Affiliated Companies, or any of them, as the case may be, shall be entitled
to a temporary restraining order, temporary and permanent injunctions, specific
performance, and other equitable relief, without any showing of irreparable harm
or damage or the posting of any bond, in addition to any other rights or
remedies that may then be available to them, including, without limitation,
money damages and the cessation of the payment or provision of the severance
payments and benefits as contemplated under § 7(D). If any of the covenants set
forth in this § 5 is finally held to be invalid, illegal or unenforceable
(whether in whole or in part), such covenant shall be deemed modified to the
extent, but only to the extent, of such invalidity, illegality or
unenforceability, and the remaining such covenants shall not be affected
thereby.
§ 6.
Termination.
(A) Employee’s
employment with the Company and the Term of this Agreement:
(1)
shall terminate automatically upon the death of Employee;
(2)
may be terminated by Employee other than for Good Reason (as defined below) upon
not less than ninety (90) days’ prior written notice given to the
Company;
(3)
may be terminated by the Company without Cause upon written notice to Employee
at any time, which termination shall be effective immediately or as of such
later date as specified in such notice (not to exceed thirty (30) days without
Employee’s consent);
(4)
may be terminated by Employee at any time for Good Reason upon not less than
thirty (30) days’ prior written notice to the Company; or
(5)
may be terminated by the Company immediately upon notice to Employee at any time
(a) for Cause or (b) if Employee is then under a Long-Term Disability (as
defined below).
(B)
For purposes of this Agreement:
(1)
“Cause” shall mean any
one or more of the following:
(a)
(i) an indictment of Employee, or plea of guilty or plea of nolo contendere by Employee, to a
charge of an act constituting a felony under the federal laws of the United
States, the laws of any state, or any other applicable law, (ii) fraud,
embezzlement, or misappropriation of assets, (iii) willful misfeasance or
dishonesty, or (iv) other actions or criminal conduct which materially and
adversely affects the business (including business reputation) or financial
condition of the Company;
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(b)
the continued failure of Employee to (i) perform substantially Employee’s duties
with the Company (other than any such failures resulting from incapacity due to
physical or mental illness), (ii) observe all material obligations and
conditions to be performed and observed by Employee under this Agreement, or
(iii) perform his duties in accordance, in all material respects, with the
policies and directions established from time to time by the Board or a duly
authorized Board committee (any such failure, a “Performance Failure”), and to
correct such Performance Failure within not more than fifteen (15) days
following written notice from the Board delivered to Employee, which notice
specifically identifies the manner in which the Board believes that Employee has
not substantially performed; or
(c)
having corrected (or the Company having waived the correction of) a Performance
Failure, the occurrence of any subsequent Performance Failure (whether of the
same or different type or nature).
For
purposes of whether or not conduct constituting Cause has occurred, any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by Employee in good faith and in the
best interests of the Company. The cessation of employment of Employee shall not
be deemed to be for Cause unless and until there shall have been delivered to
Employee a copy of a resolution duly adopted by the affirmative vote of not less
than a majority of the entire membership of the Board at a meeting of the Board
called and held for such purpose (after reasonable notice is provided to
Employee and Employee is given an opportunity, together with counsel, to be
heard before the Board), finding that, in the opinion of the Board, Employee is
guilty of the conduct described in clause (a) (other than clause (i)), (b) or
(c) above.
(2)
“Long-Term Disability”
shall mean that, because of physical or mental incapacity, it is more likely
than not that Employee will be unable, within 180 days after such incapacity
commenced, to perform the essential functions of his position with the Company,
with or without reasonable accommodation. In the event of any disagreement about
whether or when Employee is under a Long-Term Disability, the question shall be
determined:
(a)
by a physician selected by agreement between the Parties if such a physician is
selected within ten (10) days after either Party requests the other to so agree;
or, if not,
(b)
by two physicians, the first of whom shall be selected by Employee and the
second of whom shall be selected by the Company or, if Employee fails to make a
selection within ten (10) days after being requested to do so by the Company,
the second physician shall be selected by the first physician;
and
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(c)
if the two physicians fail to agree, a third physician selected by the first two
physicians. Employee shall submit to all reasonable examinations requested by
any such physicians.
(3)
“Good Reason” shall mean
the occurrence, without Employee’s consent, of (a) a significant reduction in
Employee’s Base Salary, except for any decrease that is generally applicable to
other similarly situated senior executives of the Company; (b) the failure of
the Company to pay or provide to Employee when due any material amount of
compensation or material benefit that is required to be paid or provided under
this Agreement, after written notice of such purported failure is provided to
the Company by Employee and the Company is given a reasonable opportunity to
cure such failure; (c) a material and adverse change (which shall in no event
arise from an enhancement of or addition to Employee’s responsibilities) in
Employee’s responsibilities from the responsibilities customarily associated
with a senior executive position in a company of the size and nature of the
Company; or (d) the failure of the Company to obtain the written agreement of
any successor to the Company or the business of the Company to assume this
Agreement (solely to the extent such assumption does not occur by operation of
law).
§ 7.
Severance.
(A)
Termination by the
Company Other than for Cause or due to Employee’s Death or Long-Term Disability
or by Employee for Good Reason. In the event that (i) during the Term (or
during the one-year period following the expiration of the Term due to
non-renewal of this Agreement at the election of the Company), the Company
terminates Employee’s employment without Cause pursuant to § 6(A)(3) (for the
avoidance of doubt, other than due to Employee’s death or Long-Term Disability,
which shall be governed by § 7(B) below) or (ii) during the Term, Employee
terminates his employment for Good Reason pursuant to § 6(A)(4), and, within
fifty (50) days following Employee’s date of termination, Employee provides the
Company with (and does not revoke such release prior to the date specified
therein) a separate, written release in substantially the form attached hereto
as Exhibit A (the “Release”), Employee shall
receive the following payments and benefits at the times specified below
(subject to § 12 of this Agreement, including the Delay of Payment provision in
§ 12(B)):
(1)
Employee’s accrued and unpaid Base Salary and accrued and unused vacation
through the date of termination, to the extent not theretofore paid (the “Accrued Obligations”), which
payments shall not be subject to the Release and shall be paid within thirty
(30) days of the date of termination;
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(2)
“Termination
Compensation” equal to two years of Employee’s Base Salary (not taking
into account any reduction in Base Salary that serves as the basis for a
termination for Good Reason), payable in equal installments (no less frequently
than monthly) over a 24-month period (the “Severance Period”) (commencing
with the first payroll period following the sixtieth (60th) day after Employee’s
date of termination of employment) in accordance with the Company’s general
policies and procedures for the payment of salaries to its executive
officers;
(3) “Termination Short-Term Bonus”
equal to two times the Target Bonus Amount, payable in equal installments (no
less frequently than monthly) over the Severance Period (commencing with the
first payroll period following the sixtieth (60th) day after Employee’s date of
termination of employment) in accordance with the Company’s general policies and
procedures for the payment of salaries to its executive officers (the
Termination Compensation and Termination Short-Term Bonus, collectively, the
“Severance
Benefits”);
(4)
During the one-year period following the date of termination, Employee shall be
entitled to full executive outplacement assistance with an agency selected by
the Company with the fee paid by the Company in an amount not to exceed five
percent (5%) of Employee’s Base Salary;
(5)
If the Company’s severance plan of general applicability as in effect on
Employee’s date of termination provides for continued payment by the Company of
all or a portion of the cost of the premiums for continuation coverage under the
Company’s health care plan pursuant to Section 4980B of the Code (“COBRA Coverage”) and provided Employee elects
COBRA Coverage, Employee shall be provided with the same premium payment or
supplement on the same basis, and to the same extent (in no event to exceed a
period of 12 months), as provided to other terminated employees generally under
the Company’s severance plan, to the extent permissible under applicable law,
including Section 105(h) of the Code; and
(6)
Any other benefits (other than benefits under any severance or termination pay
plan of the Company or any Affiliated Entity) that are otherwise required to be
provided to Employee or to which Employee is otherwise eligible to receive
through the date of termination under the terms of the applicable Company plan
shall be provided to Employee consistent with the terms of the applicable
Company plan (the “Other
Benefits”).
(B)
Due to Employee’s
Death or Long-Term Disability, by the Company for Cause or by Employee Other
than for Good Reason. If, during the Term, Employee’s employment is
terminated by reason of his death or Long-Term Disability, by the Company for
Cause or voluntarily by Employee for any reason other than for Good Reason, the
Company’s obligations to Employee shall be limited to the following (1) the
payment of the Accrued Obligations and (2) the timely payment or provision of
the Other Benefits. The Accrued Obligations shall be paid to Employee or his
estate or beneficiary in the event of his death, as applicable, in a lump sum in
cash within thirty (30) days of the date of termination.
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(C)
Full
Settlement. Except as expressly provided in this § 7, Employee shall have
no right to receive any compensation or other benefits under this Agreement as a
result of or in connection with the termination of his employment with the
Company or for any period after such termination.
(D) Cessation of Payments and
Benefits. Notwithstanding any other provision of this Agreement to the
contrary, the obligation of the Company to pay or provide the Severance Benefits
and the benefits under §§ 7(A)(4) and (5) that are otherwise payable or to be
provided following termination of Employee’s employment with the Company shall
automatically and immediately terminate upon a breach by Employee of this
Agreement, including without limitation a breach of Employee’s obligations under
§ 5, other than an immaterial and inadvertent breach that is discontinued and/or
remedied (to the extent subject to cure) by Employee promptly.
§ 8.
Limitation on Payments
Under Certain Circumstances.
(A) Anything
in this Agreement to the contrary notwithstanding, in the event the Accounting
Firm (as defined below) shall determine that receipt of all Payments (as defined
below) would subject Employee to the excise tax under Section 4999 of the Code,
the Accounting Firm shall determine whether to reduce any of the Payments paid
or payable pursuant to this Agreement (the “Agreement Payments”) so that
the Parachute Value (as defined below) of all Payments, in the aggregate, equals
the Safe Harbor Amount (as defined below). The Agreement Payments shall be so
reduced only if the Accounting Firm determines that Employee would have a
greater Net After-Tax Receipt (as defined below) of aggregate Payments if the
Agreement Payments were so reduced. If the Accounting Firm determines that
Employee would not have a greater Net After-Tax Receipt of aggregate Payments if
the Agreement Payments were so reduced, Employee shall receive all Agreement
Payments to which Employee is entitled hereunder.
(B)
If the Accounting Firm determines that the aggregate Agreement Payments should
be reduced so that the Parachute Value of all Payments, in the aggregate, equals
the Safe Harbor Amount, the Company shall promptly give Employee notice to that
effect and a copy of the detailed calculation thereof. All determinations made
by the Accounting Firm under this § 8 shall be binding upon the Company and
Employee and shall be made as soon as reasonably practicable and in no event
later than thirty (30) days following the date of termination. For purposes of
reducing the Agreement Payments so that the Parachute Value of all Payments, in
the aggregate, equals the Safe Harbor Amount, only amounts payable under this
Agreement (and no other Payments) shall be reduced. The reduction of the amounts
payable hereunder, if applicable, shall be made by reducing the payments and
benefits under the following sections in the following order: (1) first, any
Payments under § 7(A)(4); (2) second, any Payments under § 7(A)(5); (3) third,
any Payments under § 7(A)(2); and (4) fourth, any Payments under § 7(A)(3). All
fees and expenses of the Accounting Firm shall be borne solely by the
Company.
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(C)
As a result of the uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting Firm hereunder, it is
possible that amounts will have been paid or distributed by the Company to or
for the benefit of Employee pursuant to this Agreement that should not have been
so paid or distributed (“Overpayment”) or that
additional amounts which will have not been paid or distributed by the Company
to or for the benefit of Employee pursuant to this Agreement could have been so
paid or distributed (“Underpayment”), in each case,
consistent with the calculation of the Safe Harbor Amount hereunder. In the
event that the Accounting Firm, based upon the assertion of a deficiency by the
Internal Revenue Service against either the Company or Employee that the
Accounting Firm believes has a high probability of success, determines that an
Overpayment has been made, Employee shall promptly (and in no event later than
sixty (60) days following the date on which the Overpayment is determined) pay
any such Overpayment to the Company together with interest at the applicable
federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall
be payable by Employee to the Company if and to the extent such payment would
not either reduce the amount on which Employee is subject to tax under Sections
1 and 4999 of the Code or generate a refund of such taxes. If the Accounting
Firm, based upon controlling precedent or substantial authority, determines that
an Underpayment has occurred, any such Underpayment shall be paid promptly (and
in no event later than sixty (60) days following the date on which the
Underpayment is determined) by the Company to or for the benefit of Employee
together with interest at the applicable federal rate provided for in Section
7872(f)(2) of the Code.
(D)
To the extent requested by Employee, the Company shall cooperate with Employee
in good faith in valuing, and the Accounting Firm shall take into account the
value of, services provided or to be provided by Employee (including without
limitation Employee’s agreeing to refrain from performing services pursuant to a
covenant not to compete or similar covenant, including that set forth in § 5 of
this Agreement) before, on or after the date of a change in ownership or control
of the Company (within the meaning of Q&A-2(b) of the final regulations
under Section 280G of the Code), such that payments in respect of such services
may be considered reasonable compensation within the meaning of Q&A-9 and
Q&A-40 to Q&A-44 of the regulations under Section 280G of the Code
and/or exempt from the definition of the term “parachute payment” within the
meaning of Q&A-2(a) of the regulations under Section 280G of the Code in
accordance with Q&A-5(a) of the regulations under Section 280G of the
Code.
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(E)
§ 8
Definitions. The following terms shall have the following meanings for
purposes of this § 8:
“Accounting Firm” shall mean a
nationally recognized certified public accounting firm that is selected by the
Company for purposes of making the applicable determinations under § 8 and is
reasonably acceptable to Employee, which firm shall not, without Employee’s
consent, be a firm serving as accountant or auditor for the individual, entity
or group effecting the change in control or ownership.
“Net After-Tax Receipt” shall
mean the present value (as determined in accordance with Sections
280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes
imposed on Employee with respect thereto under Sections 1 and 4999 of the Code
and under applicable state and local laws, determined by applying the highest
marginal rate under Section 1 of the Code and under state and local laws which
applied to Employee’s taxable income for the immediately preceding taxable year,
or such other rate(s) as the Accounting Firm determined to be likely to apply to
Employee in the relevant tax year(s).
“Parachute Value” of a Payment
means the present value as of the date of the change of control for purposes of
Section 280G of the Code of the portion of such Payment that constitutes a
“parachute payment” under Section 280G(b)(2) of the Code, as determined by the
Accounting Firm for purposes of determining whether and to what extent the
excise tax under Section 4999 of the Code will apply to such
Payment.
“Payment” means any payment or
distribution in the nature of compensation (within the meaning of Section
280G(b)(2) of the Code) to or for the benefit of Employee, whether paid or
payable pursuant to this Agreement or otherwise.
“Safe Harbor Amount” means (A)
3.0 times Employee’s “base amount,” within the meaning of Section 280G(b)(3) of
the Code, minus (B) $1.00.
§ 9.
Company
Policies.
Employee acknowledges that at all times he and the compensation he receives (or
is eligible to receive) from the Company pursuant to this Agreement or otherwise
shall be subject to the policies of the Company, including the Company’s stock
ownership guidelines and clawback or recoupment policies, as in effect from time
to time.
§ 10.
Capacity.
Employee represents and warrants to the Company that he has the capacity and
right to enter into this Agreement and perform all of his obligations under this
Agreement without any restriction.
-12-
§ 11.
Remedies. Subject
to the right of the Company and the Affiliated Companies to exercise the
remedies described in § 5 of this Agreement in any court having jurisdiction or
the right of Employee to challenge, defend or contest same in any court having
jurisdiction, all disagreements and controversies arising with respect to this
Agreement, or with respect to its application to circumstances not clearly set
forth in this Agreement, shall be settled by binding arbitration to be held, and
the award made, in Hamilton, Ohio, pursuant to the then-applicable Commercial
Arbitration Rules of the American Arbitration Association. In any such
arbitration, the arbitrators shall consist of a panel of three arbitrators,
which shall act by majority vote and which shall consist of one arbitrator
selected by the Party on one side of the issue subject to the arbitration, one
arbitrator selected by the Party on the other side of the issue, and a third
arbitrator selected by the two arbitrators so selected, who shall be either a
certified public accountant or an attorney at law licensed to practice in the
State of Ohio and who shall act as chairman of the arbitration panel; provided that, if the Party
on one side of the issue selects its arbitrator for the panel and the other
Party fails so to select its arbitrator within ten (10) business days after
being requested by the first Party to do so, then the sole arbitrator shall be
the arbitrator selected by the first Party. A decision in any such arbitration
shall apply both to the particular question submitted and to all similar
questions arising thereafter and shall be binding and conclusive upon both
Parties and shall be enforceable in any court having jurisdiction over the Party
to be charged. Each Party shall bear the cost of its own attorney’s fees.
However, if Employee prevails in a challenge to the Company’s determination as
to the basis or lack of basis for his termination or if Employee prevails on any
claim that he was discriminated against in violation of any federal, state or
local law, the Company shall reimburse Employee for any applicable filing fee
and any reasonable costs or expenses incurred in such challenge, including
reasonable attorney’s fees. All other costs and expenses of arbitration shall be
borne by the Company. All rights and remedies of each Party under this Agreement
are cumulative and in addition to all other rights and remedies that may be
available to that Party from time to time, whether under any other agreement, at
law or in equity.
§ 12.
Section 409A of the
Code.
(A)
General. It is
intended that this Agreement shall comply with the provisions of Section 409A of
the Code and the Treasury regulations relating thereto, or an exemption to
Section 409A of the Code, and it shall be considered and interpreted in
accordance with such intent. Any payments that qualify for the “short-term
deferral” exception or another exception under Section 409A of the Code shall be
paid under the applicable exception. For purposes of the limitations on
nonqualified deferred compensation under Section 409A of the Code, each payment
of compensation under this Agreement shall be treated as a separate payment of
compensation for purposes of applying the Section 409A of the Code deferral
election rules and the exclusion under Section 409A of the Code for certain
short-term deferral amounts. All payments to be made upon a termination of
employment under this Agreement may only be made upon a “separation from
service” under Section 409A of the Code. Despite any contrary provision of this
Agreement, any references to “termination of employment” or the “date of
termination” (or any similar term) shall mean and refer to the date of
Employee’s “separation from service,” as that term is defined in Section 409A of
the Code and Treasury Regulation Section 1.409A-1(h). In no event may Employee
directly or indirectly designate the calendar year of any payment under this
Agreement.
-13-
(B)
Delay of
Payments. Notwithstanding any other provision of this Agreement to the
contrary, if Employee is considered a “specified employee” for purposes of
Section 409A (as determined in accordance with the methodology established by
the Company as in effect on the date of termination), any payment that
constitutes nonqualified deferred compensation within the meaning of Section
409A of the Code that is otherwise due to Employee under this Agreement during
the six-month period following his separation from service (as determined in
accordance with Section 409A of the Code) on account of his separation from
service shall be accumulated and paid to Employee on the first business day of
the seventh month following his separation from service (the “Delayed Payment Date”)
together with interest at the short-term applicable federal rate with semiannual
compounding under Section 1274(d) of the Code for the month prior to the month
in which the separation from service occurs from the date such amount would have
been paid but for this § 12(B) to the day prior to actual payment date. If
Employee dies during the Section 409A postponement period, the amounts and
entitlements delayed on account of Section 409A shall be paid to the personal
representative (with interest as provided above) of his estate on the first to
occur of the Delayed Payment Date or thirty (30) days after the date of
Employee’s death.
(C)
In-Kind Benefits and
Reimbursements. Notwithstanding any other provision of this Agreement to
the contrary, all (1) reimbursements and (2) in-kind benefits provided under
this Agreement shall be made or provided in accordance with the requirements of
Section 409A of the Code, including, where applicable, the requirement that (a)
any reimbursement is for expenses incurred during Employee’s lifetime (or during
a shorter period of time specified in this Agreement); (b) the amount of
expenses eligible for reimbursement, or in-kind benefits provided, during a
calendar year may not affect the expenses eligible for reimbursement, or in-kind
benefits to be provided, in any other calendar year; (c) the reimbursement of an
eligible expense will be made no later than the last day of the calendar year
following the year in which the expense is incurred; and (d) the right to
reimbursement or in-kind benefits is not subject to liquidation or exchange for
another benefit.
§ 13.
Withholding. The
Company may withhold from any amounts payable under this Agreement such federal,
state, local or foreign taxes as shall be required to be withheld pursuant to
any applicable law or regulation.
§ 14.
Survival. Upon
the expiration of the Term or other termination of this Agreement, the
respective rights and obligations of the Parties shall survive such expiration
or other termination to the extent necessary to carry out the intentions of the
Parties under this Agreement. The termination of Employee’s employment by the
Company (for any reason) shall not relieve either Party of its obligations
existing at, arising as a result of, or relating to acts or omissions occurring
prior to, such termination. Without limiting the generality of the preceding
sentence, in no event shall the termination of such employment modify or affect
any obligations of Employee or rights of the Company or the Affiliated Companies
under § 5 of this Agreement, all of which shall survive the termination of such
employment.
-14-
§ 15.
Notices. All
notices and other communications under this Agreement to either Party shall be
in writing and shall be deemed given when (a) delivered personally to that
Party, (b) telecopied (which is confirmed) to that Party, (c) mailed by
certified mail (return receipt requested) to that Party at the address for that
Party set forth in this Agreement, or (d) delivered to Federal Express, UPS, or
any similar express delivery service for delivery the next business day to that
Party at that address.
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If
to the Company:
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First
Financial Bancorp.
|
000 Xxxx
Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxx 00000
Attention:
General Counsel
If to
Employee: At the most recent address on file at the Company.
Either
Party may change its address for notices under this Agreement by giving the
other Party written notice of such change.
§ 16.
Severability. The
intention of the Parties is to comply fully with all rules, laws, and public
policies to the extent possible. If and to the extent that any court of
competent jurisdiction is unable to so construe any provision of this Agreement
and holds that provision to be invalid, such invalidity shall not affect the
remaining provisions of this Agreement, which shall remain in full force and
effect. With respect to any provision in this Agreement finally determined by
such a court to be invalid or unenforceable, such court shall have jurisdiction
to reform this Agreement to the extent necessary to make such provision valid
and enforceable, and, as reformed, such provision shall be binding on the
Parties.
§ 17.
Non-Waiver. No
failure by either Party to insist upon strict compliance with any term of this
Agreement, to exercise any option, to enforce any right, or to seek any remedy
upon any default of the other Party shall affect, or constitute a waiver of, the
other Party’s right to insist upon such strict compliance, exercise that option,
enforce that right, or seek that remedy with respect to that default or any
prior, contemporaneous, or subsequent default. No custom or practice of the
Parties at variance with any provision of this Agreement shall affect or
constitute a waiver of either Party’s right to demand strict compliance with all
provisions of this Agreement.
-15-
§ 18.
Complete
Agreement. This
Agreement and all documents referred to in this Agreement, all of which are
hereby incorporated herein by reference, contain the entire agreement between
the Parties and supersede all other agreements and understandings between the
Parties with respect to the subject matter of this Agreement, including the
Prior Agreement. This Agreement shall be of no force or effect unless and until
executed and delivered by both Employee and a duly authorized representative of
the Company. No alterations, additions, or other changes to this Agreement shall
be made or be binding unless made in writing and signed by both Parties. To the
extent determined necessary to comply with the Guidance on Sound Incentive
Compensation Policies issued by the Office of the Comptroller of the Currency,
the Board of Governors of the Federal Reserve System, the Federal Deposit
Insurance Corporation and the Office of Thrift Supervision on June 21, 2010, as
it may be implemented and interpreted from time to time, the Parties mutually
agree to amend the provisions of this Agreement and to cooperate in good faith
with respect thereto.
§ 19.
Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Ohio applicable to contracts to be executed and performed entirely in
such state.
§ 20.
Captions. The
captions of the various sections of this Agreement are not part of the context
of this Agreement, are only guides to assist in locating those sections, and
shall be ignored in construing this Agreement.
§ 21.
Genders and
Numbers. Where permitted by the context, each pronoun used in this
Agreement includes the same pronoun in other genders and numbers, and each noun
used in this Agreement includes the same noun in other numbers.
§ 22.
Successors.
This Agreement shall be personal to Employee, and no rights or obligations of
Employee under this Agreement may be assigned or delegated by Employee to any
person. Any assignment or attempted assignment by Employee in violation of the
preceding sentence shall be null and void. Subject to the foregoing, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
and against the heirs, personal representatives, successors, and assigns of each
Party. The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to 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 had taken place. As used in this
Agreement, “Company” shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid that assumes and agrees to
perform this Agreement by operation of law, or otherwise.
§ 23.
Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one
and the same Agreement.
-16-
IN
WITNESS THEREOF, Employee has hereunto set his hand, and the Company has caused
these presents to be executed in its name and on its behalf, all as of the day
and year first above written.
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EMPLOYEE
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FIRST
FINANCIAL BANCORP.
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|
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/s/Xxxxxxx X.
Xxxxxxxx
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By:
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/s/Xxxxxx X. Xxxxx
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Xxxxxxx
X. Xxxxxxxx
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Name:
Xxxxxx X. Xxxxx
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||
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Title:
President and Chief Executive Officer
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|||
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December 31, 2010
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December 28, 2010
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||
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Date
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Date
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||
-17-
AGREEMENT AND GENERAL
RELEASE
First
Financial Bancorp., an Ohio corporation (the “Company”), and its
subsidiaries and affiliates (collectively, with the Company, “FFB”) and Xxxxxxx X. Xxxxxxxx,
Employee’s heirs, executors, administrators, successors, and assigns
(collectively referred to throughout this Agreement as “Employee”), agree
that:
1. Last Day of
Employment. Employee’s employment with FFB will end effective
________________ (the “Severance Date”). In no
circumstance shall Employee sign this Agreement and General Release (this “Agreement”) prior to the
Severance Date, and Employee must sign and return this Agreement (if at all) no
later than ________, which is the fiftieth (50th) day following the Severance
Date.
2. General Release of All
Claims.
a. For
and in consideration of the payments and other benefits due to Employee pursuant
to Section 7 of the Employment and Non-competition Agreement entered into as of
December [●], 2010, by and between the Company and Employee (the “Employment Agreement”), and
for other good and valuable consideration, Employee knowingly and voluntarily
releases and forever discharges FFB, any and all of its parent corporations,
affiliates, subsidiaries, divisions, predecessors, insurers, successors and
assigns, and their current and former employees, attorneys, officers, directors
and agents thereof, both individually and in their business capacities, and
their employee benefit plans and programs and their administrators and
fiduciaries (collectively referred to throughout the remainder of this Agreement
as “Releasees”), of and
from any and all claims, known and unknown, asserted or unasserted, which
Employee has or may have against Releasees as of the date of execution of this
Agreement, including, but not limited to, any alleged violation of:
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§
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Title
VII of the Civil Rights Act of
1964;
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|
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§
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Sections
1981 through 1988 of Title 42 of the United States
Code;
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§
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The
Employee Retirement Income Security Act of 1974 (except for any vested
benefits under any tax-qualified benefit
plan);
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§
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The
Immigration Reform and Control Act;
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§
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The
Americans with Disabilities Act of
1990;
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§
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The
Age Discrimination in Employment Act of
1967;
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§
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The
Worker Adjustment and Retraining Notification
Act;
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§
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The
Fair Credit Reporting Act;
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§
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The
Family and Medical Leave Act;
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§
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The
Equal Pay Act;
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§
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The
Ohio Statutory Provisions Regarding Retaliation/Discrimination for Filing
a Worker’s Compensation Claim – Ohio Rev. Code Xxx. §
4123.90;
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§
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The
Ohio Equal Pay Law – Ohio Rev. Code Xxx. § 4111.13 et
seq.;
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§
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The
Ohio State Wage Payment and Work Hour
Laws;
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§
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Any
other federal, state or local law, rule, regulation, or
ordinance;
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§
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Any
public policy, contract, tort, or common law;
or
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§
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Any
basis for recovering costs, fees, or other expenses including attorneys’
fees incurred in these matters.
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b.
If any claim is not subject to release, to the extent permitted by
law, Employee waives any right or ability to be a class or collective action
representative or to otherwise participate in any putative or certified class,
collective or multiparty action or proceeding based on such a claim in which FFB
or any other Releasee identified in this Agreement is a party.
c.
FFB and Employee acknowledge that this Agreement does not limit either
party’s right, where applicable, to file or participate in an investigative
proceeding of any federal, state or local governmental agency. To the extent
permitted by law, Employee agrees that if an administrative claim is made to, or
other proceedings initiated with, a federal, state or local governmental agency,
Employee shall not be entitled to recover any individual monetary relief,
remuneration, damages, compensation or other individual remedies of any type
whatsoever from Releasees.
d.
Notwithstanding anything else herein to the contrary, the release contained in
this Agreement shall not affect, and Employee does not waive: (i) rights to
indemnification Employee may have under (A) applicable law, (B) any other
agreement between Employee and any Releasee and (C) as an insured under any
director’s and officer’s liability insurance policy now or previously in force;
(ii) any right Employee may have to obtain contribution in the event of the
entry of judgment against Employee as a result of any act or failure to act for
which both Employee and FFB are jointly responsible; (iii) Employee’s rights to
vested benefits and payments under any equity incentive plan or award agreement
or under any retirement plan, welfare benefit plan or deferred compensation
plan, all of which shall remain in effect in accordance with the terms and
provisions of such plan or agreement; (iv) Employee’s rights as a stockholder of
the Company; or (v) any unsatisfied obligations under Section 7 of the
Employment Agreement or rights under Section 8 of the Employment
Agreement.
3. No Consideration Absent
Execution of this Agreement. Employee understands and agrees that
Employee would not receive the monies and/or benefits under Section 7 of the
Employment Agreement except for Employee’s execution of this Agreement and the
fulfillment of the obligations and promises contained under Section 5 of the
Employment Agreement.
4.
Acknowledgments and
Affirmations.
a.
Employee affirms that Employee has complied with all laws and regulations
applicable to FFB’s operations.
A-2
b.
Employee affirms that Employee has not filed, caused to be filed, or presently
is not a party to any claim against FFB.
c.
Employee affirms that Employee has been paid and/or has received all
compensation, wages, bonuses, commissions, and/or benefits to which Employee may
be entitled.
d.
Employee affirms that Employee has been granted any leave to which Employee was
entitled under the Family and Medical Leave Act or related state or local leave
or disability accommodation laws.
e.
Employee affirms that Employee has no known workplace
injuries or occupational diseases.
f. Employee
affirms that Employee has not divulged any of FFB’s Confidential Information (as
defined in the Employment Agreement) and will continue to maintain the
confidentiality of such information consistent with statute or common law, FFB’s
policies and/or Employee’s agreement(s) with FFB.
g. Employee
affirms that he has not violated and will continue to comply with the
non-competition, non-solicitation and non-disparagement covenants set forth in
the Employment Agreement.
h.
Employee affirms that Employee has not been retaliated against for
reporting any allegations of wrongdoing by FFB or its officers, including any
allegations of corporate fraud.
i. Employee
affirms that all of FFB’s decisions regarding Employee’s pay and benefits
through the date of Employee’s Severance Date were not discriminatory based on
age, disability, race, color, sex, religion, national origin or any other
classification protected by law.
j. Employee
affirms that any stock options granted to Employee under any FFB option program
that have not vested by Employee’s Severance Date shall be considered lapsed,
and be forever unexercisable by Employee unless otherwise provided by the terms
of the applicable plan document for those options. At Employee’s Severance Date,
any vested stock options will be treated in accordance with the terms of the
applicable plan document for those options.
5.
Reimbursement of
Expenses. FFB agrees to reimburse Employee in accordance with FFB policy
for reasonable and ordinary expenses that Employee incurred in connection with
the services that Employee rendered on behalf of FFB prior to Employee’s
Severance Date. Employee agrees to file an expense report reflecting all such
outstanding expenses no later than ten (10) calendar days following Employee’s
Severance Date.
A-3
6.
Return of Property and
Confidential Information.
a.
Employee affirms that Employee has returned all of FFB’s property, documents,
and/or any Confidential Information in Employee’s possession or control on or
before Employee’s Severance Date, including but not limited to Employee’s FFB
credit card(s), Employee’s FFB identification card, FFB branch or office keys,
and all FFB files, books, documents and records (whether in paper or electronic
form).
b.
Employee acknowledges and agrees that Employee is in possession of all of
Employee’s property that Employee had at FFB’s premises and that FFB is not in
possession of any of Employee’s property.
7. Cooperation. Employee agrees to fully
cooperate in and assist with any litigation or federal, state or local
governmental agency proceedings involving FFB for which Employee’s testimony or
cooperation is requested by FFB.
8.
No Admission of
Wrongdoing. The Parties agree that neither this Agreement nor the
furnishing of the consideration for this Agreement shall be deemed or construed
at any time for any purpose as an admission by Releasees of wrongdoing or
evidence of any liability or unlawful conduct of any kind.
9. Amendment. This
Agreement may not be modified, altered or changed except in writing and signed
by both Parties wherein specific reference is made to this Agreement.
10. Agreement Not
Assignable. Neither this Agreement nor any right or interest hereunder
shall be assignable by Employee or any beneficiary or legal representative of
Employee without the prior written consent of an officer of FFB.
11. Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Ohio without regard to its conflict of laws provisions. Any controversy
or claims arising out of or relating to this Agreement shall settled by binding
arbitration in accordance with Section 11 of the Employment
Agreement.
12.
Severability.
Should any provision of this Agreement be declared illegal or unenforceable by
any court of competent jurisdiction and cannot be modified to be enforceable,
excluding the general release language, such provision shall immediately become
null and void, leaving the remainder of this Agreement in full force and
effect.
EMPLOYEE
IS ADVISED THAT EMPLOYEE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER
THIS AGREEMENT AND GENERAL RELEASE. EMPLOYEE ALSO IS ADVISED TO CONSULT WITH AN
ATTORNEY PRIOR TO EMPLOYEE’S SIGNING OF THIS AGREEMENT AND GENERAL
RELEASE.
A-4
EMPLOYEE MAY REVOKE THIS AGREEMENT
AND GENERAL RELEASE FOR A PERIOD OF SEVEN (7) CALENDAR DAYS FOLLOWING THE DAY
EMPLOYEE SIGNS THIS AGREEMENT AND GENERAL RELEASE. ANY REVOCATION WITHIN THIS
PERIOD MUST BE SUBMITTED, IN WRITING, TO ____________ [IDENTIFY COMPANY
REPRESENTATIVE] AND STATE, “I HEREBY REVOKE MY ACCEPTANCE OF OUR AGREEMENT AND
GENERAL RELEASE.” THE REVOCATION MUST BE PERSONALLY DELIVERED TO
_________________ [IDENTIFY COMPANY REPRESENTATIVE] OR HIS/HER DESIGNEE, OR MAILED TO
____________________ [IDENTIFY COMPANY REPRESENTATIVE] AND BE POSTMARKED WITHIN SEVEN (7)
CALENDAR DAYS AFTER EMPLOYEE SIGNS THIS AGREEMENT AND GENERAL
RELEASE.
EMPLOYEE
AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND
GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL
UP-TO-TWENTY-ONE (21) CALENDAR-DAY CONSIDERATION PERIOD.
EMPLOYEE
FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT
AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE
HAS OR MIGHT HAVE AGAINST RELEASEES.
The
parties knowingly and voluntarily sign this Agreement and General Release as of
the date(s) set forth below:
|
EMPLOYEE
|
FIRST
FINANCIAL BANCORP.
|
|||
|
By:
|
||||
|
Xxxxxxx
X. Xxxxxxxx
|
[Name
of Person Signing]
|
|||
|
[Title
of Person Signing]
|
||||
|
Date:
|
Date:
|
|||
A-5
