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Exhibit 10(b)
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of this 20th day of June 1995, by and between FIRST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF WOOSTER (which, together with any successor thereto which
executes and delivers the assumption agreement provided for in Section 11(a)
hereof or which otherwise becomes bound by all of the terms and provisions of
this Agreement by operation of law, is hereinafter referred to as the
"Association"), a subsidiary of FirstFederal Financial Services Corp (the
"Company") and L. XXXXXX XXXXX (the "Executive").
WHEREAS, the Executive is currently serving as the Executive Vice
President and Chief Financial Officer of the Association; and
WHEREAS, the Executive has made and will make a major contribution to
the Association in the position of Executive Vice President and Chief Financial
Officer of the Association; and
WHEREAS, the board of directors of the Association (the "Board of
Directors") recognizes that, the possibility of a change in control of the
Association or the Company may exist and that such possibility, and the
uncertainty and questions which it may raise among management, may result in the
departure or distraction of key management personnel to the detriment of the
Association, the Company and their respective stockholders; and
WHEREAS, the Board of Directors believes it is in the best interests of
the Association to enter into this Agreement with the Executive in order to
assure continuity of management of the Association and to reinforce and
encourage the continued attention and dedication of the Executive to his
assigned duties without distraction in the face of potentially disruptive
circumstances arising from the possibility of a change in control of the
Association, although no such change is now contemplated; and
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Executive to take effect as stated in
Section 2 hereof;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. DEFINITIONS.
(a) The term "Change in Control" means (1) an event of a nature
that (i) results in a change in control of the Association or the Company within
the meaning of the Home Owners' Loan Act of 1933 and 12 C.F.R. Part 574 as in
effect on the date hereof; or (ii) would be required to be reported in response
to Item 1 of the current report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the
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"Exchange Act"); (2) any person (as the term is used in Sections 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
Association or the Company representing 20% or more of the Association's or the
Company's outstanding securities; or (3) individuals who are members of the
board of directors of the Association or the Company on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the date
hereof whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Company's stockholders was approved by the nominating committee serving
under an Incumbent Board, shall be considered a member of the Incumbent Board.
The term "Change in Control" shall not include an acquisition of securities by
an employee benefit plan of the Association or the Company. In the application
of 12 C.F.R. Part 574 to a determination of a Change in Control, determinations
to be made by the OTS or its Director under such regulations shall be made by
the Board of Directors.
(b) The term "Date of Termination" means the earlier of (1) the
date upon which the Association gives notice to the Executive of the termination
of his employment with the Association or (2) the date upon which the Executive
ceases to serve as an employee of the Association.
(c) The term "Involuntarily Termination" means termination of
the employment of Executive without his express written consent, and shall
include a material diminution of or interference with the Executive's duties,
responsibilities and benefits as Executive Vice President and Chief Financial
Officer of the Association, including (without limitation) any of the following
actions unless consented to in writing by the Executive: (1) a change in the
principal workplace of the Executive to a location outside of a 30 mile radius
from the Association's headquarters office as of the date hereof; (2) a material
demotion of the Executive; (3) a material reduction in the number or seniority
of other Association personnel reporting to the Executive or a material
reduction in the frequency with which, or in the nature of the matters with
respect to which, such personnel are to report to the Executive, other than as
part of an Association- or Company-wide reduction in staff; (4) a material
adverse change in the Executive's salary, perquisites, benefits, contingent
benefits or vacation, other than as part of an overall program applied uniformly
and with equitable effect to all members of the senior management of the
Association or the Company; and (5) a material permanent increase in the
required hours of work or the workload of the Executive. The term "Involuntary
Termination" does not include Termination for Cause or termination of employment
due to retirement, death, disability or suspension or temporary or permanent
prohibition from participation in the conduct of the Association's affairs under
Section 8 of the Federal Deposit Insurance Act ("FDIA").
(d) The terms "Termination for Cause" and "Terminated For Cause"
mean termination of the employment of the Executive because of the Executive's
personal dishonesty, incompetence, willful misconduct, breach of a 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, or material breach of any
provision of this Agreement. No act, or failure to act, on the Executive part
shall be considered "willful" unless the Executive has acted (or failed to act)
with an absence of good faith and without reasonable belief that the Executive's
action or failure to act was in the best
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interest of the Association. Notwithstanding the foregoing, the Executive shall
not be deemed to have been Terminated for Cause unless and until there shall
have been delivered to the Executive a copy of a resolution, duly adopted by the
affirmative vote of not less than a majority of the entire membership of the
Board of Directors of the Association at a meeting of the Board called and held
for such purpose (after reasonable notice to the Executive and an opportunity
for the Executive, together with the Executive's counsel, to be heard before the
Board), stating that in the good faith opinion of the Board the Executive has
engaged in described in the preceding sentence and specifying the particulars
thereof in detail.
2. TERM. The term of this Agreement shall be a period of three years
commencing on the date first above written (the "Commencement Date"), subject to
earlier termination as provided herein. Beginning on the first anniversary of
the Commencement Date, and on each anniversary thereafter, the term of this
Agreement shall be extended for a period of one year in addition to the
then-remaining term, PROVIDED THAT (i) neither the Executive nor the Association
has given notice to the other in writing at least 90 days prior to such
anniversary that the term of this Agreement shall not be extended further; and
(ii) prior to such anniversary, the Board of Directors of the Association
explicitly reviews and approves the extension. Reference herein to the term of
this Agreement shall refer to both such initial term and such extended terms.
3. EMPLOYMENT. The Executive is employed as the Executive Vice President
and Chief Financial Officer of the Association. As Executive Vice President and
Chief Financial Officer, Executive shall render administrative and management
services as are customarily performed by persons situated in similar executive
capacities, and shall have such other powers and duties of an officer of the
Association as the Board of Directors may prescribe from time to time, provided
that such duties are consistent with the Executive's position as Executive Vice
President and Chief Financial Officer. The Executive shall continue to devote
his best efforts and substantially all his business time and attention to the
business and affairs of the Association and its subsidiaries and affiliated
companies.
4. COMPENSATION.
(a) SALARY. The Association agrees to pay the Executive during
the term of this Agreement the salary established by the Board of Directors,
which shall be at least the Executive's salary in effect as of the Commencement
Date. The Executive's salary shall be payable not less frequently than monthly
and not later than the tenth day following the expiration of the month in
question. The amount of the Executive's salary shall be reviewed by the Board of
Directors not less often than annually, beginning not later than the first
anniversary of the Commencement Date. Adjustments in salary or other
compensation shall not limit or reduce any other obligation of the Association
under this Agreement. The Executive's salary in effect from time to time during
the term of this Agreement shall not thereafter be reduced.
(b) DISCRETIONARY BONUSES. The Executive shall be entitled to
participate in an equitable manner with all other executive officers of the
Association in discretionary bonuses as authorized and declared by the Board of
Directors to its executive Executives. No other compensation provided for in
this Agreement shall be deemed a substitute for the Executive's right to
participate in such bonuses when and as declared by the Board of Directors.
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(c) EXPENSES. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in
performing services under this Agreement in accordance with the policies and
procedures applicable to the executive officers of the Association, PROVIDED
THAT the Executive properly accounts for such expenses in accordance with such
policies and procedures.
5. BENEFITS.
(a) PARTICIPATION IN RETIREMENT AND EXECUTIVE BENEFIT PLANS. The
Executive shall be entitled to participate in all plans relating to stock
options, pension, thrift, profit-sharing, group life insurance, medical and
dental coverage, education, cash bonuses, and other retirement or employee
benefits or combinations thereof, that are now or hereafter maintained for the
benefit of the Association's executive employees or its employees generally.
(b) FRINGE BENEFITS. The Executive shall be eligible to
participate in, and receive benefits under, any other fringe benefit plans which
are or may become applicable to the Association's executive officers.
6. VACATIONS; LEAVE. The Executive shall be entitled to annual paid
vacation in accordance with the policies established by the Association's Board
of Directors for executive employees and to voluntary leave of absence, with or
without pay, from time to time at such times and upon such conditions as the
Board of Directors of the Association may determine in its discretion.
7. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. The Board of Directors may
terminate the Executive's employment at any time, but, except in the case of
Termination for Cause, termination of employment shall not prejudice the
Executive's right to compensation or other benefits under this Agreement. In the
event of Involuntary Termination other than in connection with or within 12
months after a Change in Control, (1) the Association shall pay to the Executive
during the remaining term of this Agreement, his salary at the rate in effect
immediately prior to the Date of Termination, payable in such manner and at such
times as such salary would have been payable to the Executive under Section 2 if
the Executive had continued to be employed by the Association, and (2) the
Association shall provide to the Executive during the remaining term of this
Agreement health benefits as maintained by the Association for the benefit of
its executive officers from time to time during the remaining term of the
Agreement or substantially the same health benefits as the Association
maintained for its executive officers immediately prior to the Date of
Termination.
(b) TERMINATION FOR CAUSE. In the event of Termination for
Cause, the Association shall pay the Executive his salary through the Date of
Termination, and the Association shall have no further obligation to the
Executive under this Agreement.
(c) VOLUNTARY TERMINATION. The Executive's employment may be
voluntarily terminated by the Executive at any time upon 90 days written notice
to the Association or upon such shorter period as may be agreed upon between the
Executive and the Board of Directors
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of the Association. In the event of such voluntary termination, the Association
shall be obligated to continue to pay the Executive his salary and benefits
through the Date of Termination, at the time such payments are due, and the
Association shall have no further obligation to the Executive under this
Agreement.
(d) CHANGE IN CONTROL. In the event of Involuntary Termination
in connection with or within 12 months after a Change in Control which occurs at
any time while the Executive is employed under this Agreement, the Association
shall, subject to Section 8 of this Agreement, (1) pay to the Executive in a
lump sum in cash within 25 business days after the Date of Termination an amount
equal to 299% of the Executive's "base amount" as defined in Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"); and (2) provide to the
Executive during the remaining term of this Agreement such health benefits as
are maintained for executive officers of the Association from time to time
during the remaining term of this Agreement or substantially the same health
benefits as the Association maintained for its executive officers immediately
prior to the Change in Control.
(e) DEATH; DISABILITY. In the event of the death of the
Executive while employed under this Agreement and prior to any termination of
employment, the Executive's estate, or such person as the Executive may have
previously designated in writing, shall be entitled to receive from the
Association the salary of the Executive through the last day of the calendar
month in which the Executive died. If the Executive becomes disabled as defined
in the Association's then current disability plan or if the Executive is
otherwise unable to serve as Executive Vice President and Chief Financial
Officer, the Executive shall be entitled to receive group and other disability
income benefits of the type then provided by the Association for executive
officers.
(f) TEMPORARY SUSPENSION OR PROHIBITION. If the Executive is
suspended and/or temporarily prohibited from participating in the conduct of the
Association's affairs by a notice served under Section 8(e)(3) or (g)(1) of the
FDIA, 12 U.S.C. Sections 1818(e)(3) and (g)(1), the Association's obligations
under this Agreement shall be suspended as of the date of service, unless stayed
by appropriate proceedings. If the charges in the notice are dismissed, the
Association may in its discretion (1) pay the 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.
(g) PERMANENT SUSPENSION OR PROHIBITION. If the Executive is
removed and/or permanently prohibited from participating in the conduct of the
Association's affairs by an order issued under Section 8(e)(4) or (g)(1) of the
FDIA, 12 U.S.C. Sections 1818(e)(4) and (g)(1), all obligations of the
Association under this Agreement shall terminate as of the effective date of the
order, but vested rights of the contracting parties shall not be affected.
(h) DEFAULT OF THE ASSOCIATION. If the Association 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, but this provision shall
not affect any vested rights of the contracting parties.
(i) TERMINATION BY REGULATORS. All obligations under this
Agreement shall be terminated, except to the extent determined that continuation
of this Agreement is necessary for
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the continued operation of the Association: (1) by the Director of the Office of
Thrift Supervision (the "Director") or his or her designee, at the time the
Federal Deposit Insurance Corporation or the Resolution Trust Corporation enters
into an agreement to provide assistance to or on behalf of the Association under
the authority contained in Section 13(c) of the FDIA; or (2) by the Director or
his or her designee, at the time the Director or his or her designee approves a
supervisory merger to resolve problems related to operation of the Association
or when the Association is determined by the Director to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by any such action.
8. CERTAIN REDUCTION OF PAYMENTS BY THE ASSOCIATION.
(a) Notwithstanding any other provision of this Agreement, if
payments under this Agreement, together with any other payments received or to
be received by the Executive in connection with a Change in Control would cause
any amount to be nondeductible by the Association for federal income tax
purposes pursuant to Section 280G of the Code, then benefits under this
Agreement shall be reduced (not less than zero) to the extent necessary so as to
maximize payments to the Executive without causing any amount to become
nondeductible by the Association or the Company. The Executive shall determine
the allocation of such reduction among payments to the Executive.
(b) 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. 1828(k) and any regulations promulgated thereunder.
9. NO MITIGATION. The Executive shall not be required to mitigate the
amount of any salary or other payment or benefit provided for in this Agreement
by seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for in this Agreement be reduced by any compensation earned by
the Executive as the result of employment by another employer, by retirement
benefits after the date of termination or otherwise.
10. ATTORNEYS FEES. In the event the Association exercises its right of
Termination for Cause, but it is determined by a court of competent jurisdiction
or by an arbitrator pursuant to Section 17 that cause did not exist for such
termination, or if in any event it is determined by any such court or arbitrator
that the Association has failed to make timely payment of any amounts owed to
the Executive under this Agreement, the Executive shall be entitled to
reimbursement for all reasonable costs, including attorneys' fees, incurred in
challenging such termination or collecting such amounts. Such reimbursement
shall be in addition to all rights to which the Executive is otherwise entitled
under this Agreement.
11. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto,
and neither party may assign or delegate any of its rights or obligations
hereunder without first obtaining the written consent of the other party;
provided, however, that the Association shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Association, by an
assumption
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agreement in form and substance satisfactory to the Executive, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Association would be required to perform it if no such
succession or assignment had taken place. Failure of the Association to obtain
such an assumption agreement prior to the effectiveness of any such succession
or assignment shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Association in the same amount and on the
same terms as the compensation pursuant to Section 7(d) hereof. For purposes of
implementing the provisions of this Section 11(a), the date on which any such
succession becomes effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the Executive's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts would still be payable to the Executive hereunder if the Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executive's devisee,
legatee or other designee or if there is no such designee, to the Executive's
estate.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Association at its home
office, to the attention of the Board of Directors with a copy to the Secretary
of the Association, or, if to the Executive, to such home or other address as
the Executive has most recently provided in writing to the Association.
13. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
14. HEADINGS. The headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
16. GOVERNING LAW. This Agreement shall be governed by and is to be
construed and enforced in accordance with the laws of the United States to the
extent applicable and otherwise by the laws of the State of Ohio.
17. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
Attest: First Federal Savings and Loan
Association of Wooster
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
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Assistant Secretary
By: Xxxxxx X. Xxxxxx
Its: Benefits & Compensation
Committee Member
Executive
/s/ L. Xxxxxx Xxxxx
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L. Xxxxxx Xxxxx, Executive Vice President
and Chief Financial Officer
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