EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), is entered into this 1st day of April, 2000, by and between Market
Bank, a savings and loan association incorporated under Ohio law (hereinafter
referred to as the "EMPLOYER"), and Xxxx 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 desire 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. 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 March
31, 2003 (hereinafter referred to as the "TERM"). In March of each year, the
Board of Directors of the EMPLOYER shall review the EMPLOYEE's performance and
record the results of such review in the minutes of the Board of Directors. This
AGREEMENT shall not be renewed or extended without a taking of affirmative
action by the Board of Directors of the EMPLOYER to cause such renewal or
extension. Any such extension shall be subject to the written consent of the
EMPLOYEE.
2. Duties of EMPLOYEE.
(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, (1) managing the day-to-day
operations of the EMPLOYER, (2) managing the efforts of the EMPLOYER to comply
with applicable laws and regulations, (3) marketing of the EMPLOYER and its
services, (4) supervising other employees of the EMPLOYER, (5) providing prompt
and accurate reports to the Board of Directors of the EMPLOYER regarding the
affairs and conditions of the EMPLOYER, and (6) 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 Market Financial Corporation
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.
(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 $109,750 until changed by the Board of Directors of the
EMPLOYER in accordance with Section 3(b) of this AGREEMENT.
(b) Annual Salary Review. In March of each year throughout the TERM,
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 $109,750 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.
(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"). Notwithstanding any statement to the contrary
2
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. 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.
(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. Without limiting the
generality of the foregoing sentence, 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.
(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 Market
Financial Corporation, (A) the employment of the EMPLOYEE is terminated for any
reason other than JUST CAUSE before the expiration of the TERM, (B) the present
capacity or circumstances in which the EMPLOYEE is employed are materially
changed before the expiration of the TERM, or (C) the EMPLOYEE's
responsibilities, authority, compensation or other benefits provided under this
AGREEMENT are materially reduced, then the following shall occur:
3
(I) The EMPLOYER shall promptly pay to the EMPLOYEE or to his
beneficiaries, dependents or estate an amount equal to the sum of (1) the amount
of compensation to which the EMPLOYEE would be entitled for the remainder of the
TERM under this AGREEMENT, plus (2) the difference between (x) the product of
three, 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, less (xx) the amount paid to the EMPLOYEE pursuant to clause
(1) of this subparagraph (I);
(II) The EMPLOYEE, his dependents, beneficiaries and estate
shall continue to be covered under all BENEFIT PLANS of the EMPLOYER at the
EMPLOYER's expense as if the EMPLOYEE were still employed under this AGREEMENT
until the earliest 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 (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.
(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, the EMPLOYER shall be obligated to continue (1) 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 and (2) to provide to the EMPLOYEE, at the EMPLOYER's
expense, health, life, disability, and other 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
the EMPLOYEE becomes employed full-time by another employer. 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 Office of Thrift Supervision.
4
(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.ss.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 Market Financial
Corporation; (ii) the acquisition of the ability to control the election of a
majority of the directors of the EMPLOYER or Market Financial Corporation; (iii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the EMPLOYER or Market
Financial Corporation 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 Market
Financial Corporation 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 Market Financial Corporation; or (iv)
the acquisition by any person or entity of "conclusive control" of the EMPLOYER
within the meaning of 12 C.F.R. ss.574.4(a), or the acquisition by any person or
entity of "rebuttable control" within the meaning of 12 C.F.R. ss.574.4(b) that
has not been rebutted in accordance with 12 C.F.R. ss.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.
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 may, in its discretion, 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
5
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 Office of Thrift Supervision (hereinafter referred to as 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. No vested rights of the EMPLOYEE shall not be
affected by any such action; and
(e) The provisions of this Section 5 are governed by the requirements
of 12 C.F.R.ss.563.39(b) and in the event that any statements in this Section 5
are inconsistent with 12 C.F.R.ss.563.39(b), the provisions of 12 C.F.R.
ss.563.39(b) shall be controlling.
6. Consolidation, Merger or Sale of Assets. Nothing in this AGREEMENT shall
preclude the EMPLOYER or Market Financial Corporation 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.
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
6
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 its 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 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 this 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 supercedes any prior employment
agreement between the EMPLOYER or any predecessor of the EMPLOYER and the
EMPLOYEE.
7
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:
Market Bank
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxxxx, Xxxx 00000
Attn: Secretary
If to the EMPLOYEE:
Xx. Xxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
with copies to:
Xxxx X. Xxxxx, Esq.
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
Atrium Two, Suite 2100
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
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: Market Bank
Xxx Xxxxxxx Larimer Una Schaeperklaus
--------------------------- ------------------------------------
By: Una Schaeperklaus
--------------------------------
its Secretary
Attest:
Xxx Xxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxxxx
------------------- ------------------------------------
Xxxx X. Xxxxxxx
8
