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Exhibit 10(j)
Employment Security Agreement,
dated as of July 12, 1996, between
The First-Xxxx National Bank of Mount Vernon, Ohio
and
Xxxxxx X. Xxxxxxx
(identical agreements were entered into with
Xxxxxx X. Xxxxx and Xxx Xxxxxx)
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EMPLOYMENT SECURITY AGREEMENT
This Agreement, made and entered into as of the 12th day of July, 1996, by and
between The First- Xxxx National Bank of Mount Vernon, Ohio, (hereinafter the
"Company"), and Xxxxxx X. Xxxxxxx, President and Chief Executive Officer
(hereinafter the "Executive").
WITNESSETH;
THAT WHEREAS, the Executive is presently employed by the Company, and;
WHEREAS, Company is a wholly owned subsidiary of First-Xxxx Banc Corp.,
an Ohio Corporation, and;
WHEREAS, the Executive performs services for both First-Xxxx Banc Corp.
and Company but is compensated solely by the Company, and;
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that the Executive's contribution to the growth and success of First-Xxxx Banc
Corp. and the Company during the past five plus years has been substantial, the
Board desires to provide for the continued employment of the Executive and to
make certain changes in the Executive's employment arrangements with the Company
which the Board has determined will reinforce and encourage the continued
attention and dedication to First-Xxxx Banc Corp. and the Company of the
Executive as a member of the management of both the Company and First-Xxxx Banc
Corp. and is in the best interest of both First-Xxxx Banc Corp. and the Company
and its shareholders.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, and in consideration of the Executive's continuation of employment with
the Company, the parties agree as follows:
1. OPERATION OF AGREEMENT
This Agreement shall be effective and binding immediately upon its
execution, but the Agreement shall not become operative unless and until a
change in control of First-Xxxx Banc Corp. as defined below, shall occur. The
date of such a change is referred to herein as the "operative date" of this
Agreement.
For purposes of this Agreement, a change in control of First-Xxxx Banc
Corp. shall mean, and shall be deemed to occur if:
(a) When any person, corporation, partnership, association,
trust, or other entity, becomes or tenders an offer the result of which
will be that it will become the beneficial owner of twenty-five (25%)
or more of the voting stock of First-Xxxx Banc Corp.; or
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(b) Individuals who were members of the Board of
Directors of First-Xxxx Banc Corp. immediately prior to a meeting of
the shareholders of the First-Xxxx Banc Corp. involving a contest for
the election of directors shall not thereafter constitute a majority
of the Board of Directors following such election; or
(c) First-Xxxx Banc Corp. is merged or consolidated with
another company or entity; or
(d) First-Xxxx Banc Corp. transfers substantially all of
its assets to another person, corporation, partnership, association,
trust, or other entity, other than a wholly owned subsidiary of the
First-Xxxx Banc Corp..
Upon any such change in control, this Agreement shall become immediately
operative.
2. TERM OF THE AGREEMENT
The term of this Agreement shall commence with the operative date of
the Agreement, as set forth above, and shall continue for a term of twenty four
(24) months thereafter.
3. EMPLOYMENT DURING TERM OF AGREEMENT
The Company hereby agrees to continue the Executive in the employ of
the Company, and the Executive agrees to remain in the employ of the Company,
for the term of this Agreement.
The Executive agrees that in the event that any tender or exchange
offer occurs or steps are taken to effect a change in control, the Executive
will not voluntarily leave the employ of the Company and will continue to render
services in a complete and professional manner until such efforts are abandoned
or a change of control has been effected.
4. COMPENSATION, BENEFITS, PERQUISITES
During the term of the Agreement, the Executive shall receive an annual
base salary which is not less than the salary in existence at the time of the
operative date of this Agreement, which salary shall be increased from time to
time thereafter in accordance with the Company's standards, policies or
practices, along with all fringe benefits of the Company, including, but not
limited to, medical insurance, disability insurance, life insurance, retirement
plans, deferred compensation plans, vacations and holidays.
5. TERMINATION OF EMPLOYMENT
(a) The employment of the Executive under this Agreement may
be terminated, and the Executive shall not be entitled to the benefits
set forth in the Agreement, only upon the occurrence of one or more of
the following events:
(1) Death of the Executive; or
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(2) Disability within the meaning of the long-term
disability plan in effect for management employees of the Company
immediately prior to the operative date of this Agreement; or
(3) Termination by the Company for cause.
6. TERMINATION PAYMENTS
(a) In the event of a breach of the Agreement by the Company or the
termination of the Executive's employment for other than the permissible reasons
set forth above, the Executive shall be paid a sum equal to two (2) years annual
compensation, said sum to be paid as a lump sum or in periodic payments as
determined by the acquiring entity. In addition the Company shall maintain in
full force and effect, and at its expense, the same or equivalent hospital,
medical, dental, accident, disability, and life insurance as the Executive (and
his dependents, if applicable) was covered by immediately prior to the breach or
termination, until the expiration of the term of the Agreement, or until the
Executive has obtained new full-time employment, whichever is earlier.
(b) The Executive shall not be required to mitigate the amount of any
payments due hereunder, nor shall the amount of any payments provided hereunder
be reduced by any compensation earned by him as a result of employment by
another employer after the date of breach or termination, or otherwise, except
as specifically provided in this Agreement.
7. VOLUNTARY RESIGNATION
Beginning with the operative date and continuing for the two years
thereafter, should the Executive resign from his employment with the Company,
the Executive shall be paid a sum of money equal to his annual compensation for
the remainder of the time from his date of resignation to the end of the two (2)
year period but diminished by any compensation paid during said period for
employment with any third party person or entity.
8. TAXES
The Company has determined that the amounts payable pursuant to this
Agreement constitute reasonable compensation for services to be rendered by the
Executive or for services that the Executive has agreed to render during the
term of this Agreement. Accordingly, notwithstanding any other provision hereof,
unless such action would be expressly prohibited by applicable law, if any
amount paid or payable is subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code"), the Company will pay
to the Executive an additional amount in cash including such additional cash
payment (net of all federal, state and local income taxes and all taxes payable
as the result of the application of Sections 28OG and/or 4999 of the Code) to be
equal to the aggregate remuneration the Executive would have received under the
Agreement, excluding such additional payment (net of all federal, state and
local income taxes), as if Sections 28OG and 4999 of the Code (and any successor
provisions thereto) had not been enacted into law.
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9. SUCCESSORS AND BINDING AGREEMENT
(a) First-Xxxx Banc Corp. on behalf of the Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business and/or
assets of the First Xxxx Bank Corp., by agreement in form and substance
satisfactory to the Executive, expressly to assume and payee to perform this
Agreement in the same manner and to the same extent the Company would be
required to perform if no such succession had taken place. This Agreement shall
be binding upon and inure to the benefit of the Company and any successor to the
First-Xxxx Banc Corp., including without limitation any persons acquiring
directly or indirectly all or substantially all of the business and/or assets of
the First-Xxxx Banc Corp. whether by purchase, merger, consolidation,
reorganization or otherwise (and such successor shall thereafter be deemed the
"Company" for the purposes of this Agreement), in which event the date of
succession or transfer shall be deemed to be the date of the breach.
(b) This Agreement and all rights of the Executive shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries.
This Agreement shall not be terminated by the voluntary or involuntary
dissolution of the Company.
(c) This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign, transfer or delegate
this Agreement or any rights or obligations hereunder, except as provided in
subsection 9 (a) hereof.
10. LEGAL FEES AND EXPENSES
It is the intent of the Company that the Executive not be required to
incur any expenses associated with the enforcement of his rights under this
Agreement, by litigation or other legal action, because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
the Executive hereunder. Accordingly, if it should appear to the Executive that
the Company has failed to comply with any of its obligations under this
Agreement or in the event that the Company or any other person takes any action
to declare this Agreement void or unenforceable, or institutes any litigation
designed to deny, or to recover from, the Executive the benefits intended to be
provided to the Executive hereunder, the Company irrevocably authorizes the
Executive from time to time to retain counsel of his choice, at the expense of
the Company as hereafter provided, to represent the Executive in connection with
the initiation or defense of any litigation or other legal action, whether by or
against the Company or any Director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction. The Company shall pay or cause
to be paid and shall be solely responsible for any and all attorneys' and
related fees and expenses incurred by the Executive as a result of the Company's
failure to perform this Agreement, or any provision hereof, or as a result of
the Company or any person contesting the validity or enforceability of this
Agreement or any provision hereof as aforesaid; provided, however, that the
Company shall not be responsible for such attorney fees and/or related fees and
expenses to the extent that it is determined that the company is the prevailing
party in any such action or dispute.
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11. GOVERNING LAW
This Agreement and the rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the State of Ohio.
12. MISCELLANEOUS
(a) Enforcement - If any provision or part of this Agreement is
declared invalid or unenforceable by a court of competent jurisdiction, the
validity and enforceability of the remainder of such provisions or parts hereof
and the applicability thereof shall not be affected thereby.
(b) Payment Obligations Absolute - The Company's obligation during and
after the term of this Agreement to pay the Executive the compensation and to
make the arrangements provided herein shall be absolute and unconditional and
shall not be affected by any circumstances, including, without limitation, any
setoff, counterclaim, recoupment, defense or other right which the Company may
have against him or anyone else. All amounts payable by the Company hereunder
shall be paid without notice or demand. Each and every payment made hereunder by
the Company shall be final and the Company will not seek to recover all or any
part of such payment from the Executive or from whosoever may be entitled
thereto, for any reason whatsoever.
(c) Waiver and Entire Agreement - No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and the Company. No agreements or
representations, oral or otherwise, expressed or implied with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
(d) Notices - For all purposes of this Agreement, all communications
including without limitation notices, consents, requests or approvals, provided
for herein shall be in writing and shall be deemed to have been duly given when
delivered or five business days after having been mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the Company (to the attention of the Secretary of the Company) at
its principal executive office and to the Executive at his principal residence,
or to such other address as any party may have furnished to the other in writing
and in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(e) Lapse of Agreement - This Agreement shall lapse and become null and
void two (2) years after the date of this Agreement unless this Agreement has
been reapproved by the Board of Directors of the Company and ratified by the
Board of Directors of First-Xxxx Banc Corp.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and delivered as of the date first written above.
THE FIRST-KINOX NATIONAL BANK OF
MOUNT VERNON, OHIO
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx.
Chairman of the Board
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxx
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