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EXHIBIT 10.12
Change in Control Agreement between Registrant and
Xxxxxxx X. Xxxxx dated August 30, 1996.
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CHANGE IN CONTROL AGREEMENT
This AGREEMENT is made effective as of August 30, 1996 by and between HOME
BANK, F.S.B. (the "Bank"), XXXXXXXXXX CORPORATION (the "Company"), and Xxxxxxx
X. Xxxxx (the "Executive").
WHEREAS, the Bank recognizes the substantial contribution Executive has
made to the Bank and wishes to protect Executive's position therewith for the
period provided in this Agreement; and
WHEREAS, Executive has agreed to serve in the employ of the Bank.
NOW, THEREFORE, in consideration of the contribution and responsibilities
of Executive, and upon the other terms and conditions hereinafter provided, the
parties hereto agree as follows:
1. TERM OF AGREEMENT.
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The term of this Change in Control Agreement (the "Agreement") shall be
deemed to have commenced as of the date first above written and shall continue
for a period of twelve (12) full calendar months thereafter. Commencing on the
first anniversary date of this Agreement and continuing at each anniversary date
thereafter, the Board of Directors of the Bank (the "Board") may extend this
Agreement for an additional twelve (12) months. The Board will review the
Executive's performance annually for purposes of determining whether to extend
the Agreement, and the results thereof shall be included in the minutes of the
Board's meeting. The Board shall give notice to the Executive as soon as
possible after such review as to whether the Agreement is to be extended.
2. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL
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(a) Upon the occurrence of a Change in Control (as herein defined) of the
Bank or the Company followed at any time during the term of this Agreement by
the termination of Executive's employment, other than for Cause as defined in
Section 2(c) hereof, the provisions of Section 3 shall apply. Upon the
occurrence of a Change in Control, Executive shall have the right to elect to
voluntarily terminate his employment at any time during the term of this
Agreement following any demotion, loss of title, office or authority, reduction
in his or her annual salary, relocation of his or her principal place of
employment by more than 30 miles from its location immediately prior to the
Change in Control, unless any of the foregoing have been consented to by
Executive.
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(b) For purposes of this Agreement, a "Change in Control" of the Bank or
the Company shall be deemed to occur if and when (i) an offeror other than the
Company purchases shares of the common stock of the Company or capital stock of
the Bank pursuant to a tender or exchange offer for such shares, (ii) any person
(as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934) is or becomes the beneficial owner, directly or indirectly, of
securities of the Company or the Bank representing 25% or more of the combined
voting power of the Company's or the Bank's then outstanding securities, (iii)
the membership of the board of directors of the Company or the Bank changes as
the result of a contested election, such that individuals who were directors at
the beginning of any twenty-four month period (whether commencing before or
after the date of adoption of this Plan) do not constitute a majority of such
board at the end of such period, or (iv) shareholders of the Company or the Bank
approve a merger, consolidation, sale or disposition of all or substantially all
of the Company's or the Bank's assets, or a plan of partial or complete
liquidation.
(c) Executive shall not have the right to receive termination benefits
pursuant to Section 3 hereof upon Termination for Cause. The term "Termination
for Cause" shall mean termination because of the Executive's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful violation
of any law, rule, or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order, or material breach of any material
provision of this Agreement. For purposes of this Section, no act, or the
failure to act, on Executive's part shall be "willful" unless done, or omitted
to be done, not in good faith and without reasonable belief that the action or
omission was in the best interest of the Bank or its affiliates. Notwithstanding
the foregoing, Executive shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to him a copy of a resolution
duly adopted by the affirmative vote of not less than three-fourths of the
members of the Board at a meeting of the Board called and held for that purpose
(after reasonable notice to the Executive and an opportunity for him, together
with counsel, to be heard before the Board. at such meeting and which such
meeting shall be held not more than 30 days from the date of notice during which
period Executive may be suspended with pay), finding that in the good faith
opinion of the Board, the Executive engaged in the conduct justifying
Termination for Cause and specifying the reasons thereof. The Executive shall
not have the right to receive compensation or other benefits for any period
after Termination for Cause.
3. TERMINATION BENEFITS.
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(a) Upon the occurrence of a Change in Control, followed at any time during
the term of this Agreement by termination of the Executive's employment due to:
(1) Executive's dismissal or (2) Executive's voluntary termination pursuant to
Section 2(a), unless such termination is due to Termination for Cause, the Bank
and the Company shall pay Executive, or in the event of his or her subsequent
death, his or her beneficiary or beneficiaries, or his or her estate, as the
case may be, a sum equal to Executive's salary and
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bonus in effect for the immediately preceding fiscal year of the Bank. At the
election of Executive, which election is to be made prior to a Change in
Control, such payment shall be made in a lump sum. In the event that no election
is made, payment to Executive will be made on a monthly basis in approximately
equal installments during the remaining term of this Agreement.
(b) Upon the occurrence of a Change in Control of the Bank or the Company
followed at any time during the term of this Agreement by the Executive's
termination of employment, other than for Termination for Cause, the Bank shall
cause to be continued life, medical, dental and disability coverage
substantially identical to the coverage maintained by the Bank for the Executive
prior to his severance, except to the extent such coverage may be changed in its
application to all Bank or Company employees on a nondiscriminatory basis. Such
coverage and payments shall cease upon the expiration of twelve (12) months
following the Date of Termination.
4. NOTICE OF TERMINATION.
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(a) Any purported termination by the Bank or by Executive in connection
with a Change in Control shall be communicated by Notice of Termination to the
other party hereto. For purposes of this Agreement, a "Notice of Termination"
shall mean a written notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination which, in the instance of Termination for Cause, shall not be less
than 30 days from the date such Notice of Termination is given.
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, the Date of Termination shall be the
date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute in connection with a Change in
Control, the Bank will continue to pay Executive his full compensation in effect
when the notice giving rise to the dispute was given (including, but not limited
to his annual salary) and continue him as a participant in all compensation,
benefit and insurance plans in which he was participating when the notice of
dispute was given, until the earlier of: (1) the resolution of the dispute in
accordance with this Agreement or (2) the expiration of the remaining term of
this Agreement as determined as of the Date of Termination.
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5. SOURCE OF PAYMENTS.
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It is intended by the parties hereto that all payments provided in this
Agreement shall be paid in cash or check from the general funds of the Bank.
Further, the Company guarantees such payment and provision of all amounts and
benefits due hereunder to the Executive and, if such amounts and benefits
due from the Bank are not timely paid or provided by the Bank, such amounts
and benefits shall be paid or provided by the Company.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
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This Agreement contains the entire understanding between the parties hereto
and supersedes any prior agreement between the Bank and the Executive, except
that this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to the Executive of a kind elsewhere provided. No provision
of this Agreement shall be interpreted to mean that the Executive is subject to
receiving fewer benefits than those available to him without reference to this
Agreement.
Nothing in this Agreement shall confer upon the Executive the right to
continue in the employ of Bank or shall impose on the Bank any obligation to
employ or retain the Executive in its employ for any period.
7. NO ATTACHMENT.
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(a) Except as required by law, no right to receive payments 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 or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of, the
Executive, the Bank and their respective successors and assigns.
8. MODIFICATION AND WAIVER.
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(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any 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 such 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 that
specifically waived.
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9. REQUIRED REGULATORY PROVISIONS.
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(a) The Board may terminate the Executive's employment at any time, but any
termination by the Board other than Termination for Cause, shall not prejudice
the Executive's right to compensation or other benefits under this Agreement.
The Executive shall not have the right to receive compensation or other benefits
for any period after Termination for Cause as defined in Section 2 hereinabove.
(b) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a notice
served under Section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act
("FDIA") (12 U.S.C. Section 1818(e)(3) or (g)(1)), the Bank's obligations
under the Agreement shall be suspended as of the date of service, unless stayed
by appropriate proceedings. If the charges in the notice are dismissed, the
Bank may in its discretion (i) pay the Executive all or part of the
compensation withheld while its contract obligations were suspended and (ii)
reinstate (in whole or in part) any of the obligations which were suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or 8(g)(1) of the FDIA (12 U.S.C. 1818(e)(4) or (g)(1)), all
obligations of the Bank under the Agreement shall terminate as of the effective
date of the order, but vested rights of the contracting parties shall not be
affected.
(d) If the Bank is in default as defined in Section 3(x)(1) of the FDIA,
all obligations of the Bank under this contract shall terminate as of the date
of default, but this paragraph shall not affect any vested rights of the
contracting parties.
(e) All obligations under the Agreement shall be terminated, except to the
extent determined that continuation of the Agreement is necessary for the
continued operation of the institution: (i) by the Director of the Office of
Thrift Supervision (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 Bank under the authority
contained in Section 13(c) of the FDIA; or (ii) by the Director of the Office of
Thrift Supervision (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 Bank or when the Bank 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 such action.
(f) Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
Section 1828(k) and any rules and regulations promulgated thereunder.
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10. SEVERABILITY.
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If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
11. HEADINGS FOR REFERENCE ONLY.
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The headings of sections and 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.
12. GOVERNING LAW.
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The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by Ohio law but only to the extent not preempted by
Federal law.
13. ARBITRATION.
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Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by binding arbitration, conducted before
a panel of three arbitrators sitting in Cleveland, Ohio, in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that the
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
14. PAYMENT OF LEGAL FEES.
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All reasonable costs and legal fees paid or incurred by the Executive
pursuant to any dispute or question of interpretation relating to this Agreement
shall be paid or reimbursed by the Bank if Executive is successful on the merits
pursuant to a legal judgment, arbitration or settlement.
15. SUCCESSOR TO THE BANK.
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The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank, expressly and
unconditionally to assume and agree to perform the Bank's
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obligations under this Agreement, in the same manner and to the same extent that
the Bank would be required to perform if no such succession or assignment had
taken place.
16. SIGNATURES.
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IN WITNESS WHEREOF, Home Bank, F.S.B. and Xxxxxxxxxx Corporation have
caused this Agreement to be executed by their duly authorized officers, and
Executive has signed this Agreement, on the 30th day of August, 1996.
HOME BANK, F.S.B.
By: /s/ Xxxxxxx X. Valerian
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Xxxxxxx X. Valerian, President
XXXXXXXXXX CORPORATION
By: /s/ Xxxxxxx X. Valerian
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Xxxxxxx X. Valerian, President
/s/ Xxxxxxx X. Xxxxx
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Executive, Xxxxxxx X. Xxxxx
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