Exhibit 00.xx
XXXXXXXXX AGREEMENT
This SEVERANCE AGREEMENT (this "Agreement") is entered into this 1st
day of August, 2002, by and between Unizan Financial Corp., an Ohio corporation
(the "Corporation"), and Xxxxxx X. Xxxx, Executive Vice President of Unizan
Bank, National Association, a nationally chartered bank (the "Bank") and wholly
owned subsidiary of the Corporation (the "Officer").
WHEREAS, as an officer of the Bank, the Officer has made and is
expected to continue to make major contributions to the profitability, growth,
and financial strength of the Corporation and the Bank,
WHEREAS, the Corporation recognizes that, as is the case for most
companies, the possibility of a Change in Control (as defined in Section 1(b))
exists,
WHEREAS, the Corporation desires to assure itself of the current and
future continuity of management and desires to establish minimum severance
benefits for certain of its officers and other key employees, including the
Officer, if a Change in Control occurs,
WHEREAS, the Corporation wishes to ensure that officers and other key
employees are not practically disabled from discharging their duties if a
proposed or actual transaction involving a Change in Control arises,
WHEREAS, the Corporation desires to provide additional inducement for
the Officer to continue to remain in the ongoing employ of the Corporation and
the Bank,
WHEREAS, on March 7, 2002 the predecessors of the Corporation, UNB
Corp. and BancFirst Ohio Corp., completed a merger transaction whereby BancFirst
Ohio Corp. merged with and into UNB Corp. under the terms of the September 5,
2001 Agreement of Merger and Plan of Reorganization,
WHEREAS, before the March 7, 2002 merger between UNB Corp. and
BancFirst Ohio Corp. the Officer was an executive officer of BancFirst Ohio
Corp. or its subsidiary bank, The First National Bank of Zanesville, N.A.,
WHEREAS, BancFirst Ohio Corp. adopted an Executive Retention Plan dated
August 19, 1999, providing for severance and termination benefits for designated
executive officers and other eligible employees for their termination within 24
months after a change in control of BancFirst Ohio Corp.,
WHEREAS, the merger of BancFirst Ohio Corp. with and into UNB Corp.
constituted a change in control under the terms of the August 19, 1999 Executive
Retention Plan, and executive officers and other eligible BancFirst Ohio Corp.
employees participating in the plan therefore could, subject to the terms of the
August 19, 1999 Executive Retention Plan, claim entitlement to benefits under
that plan if termination of employment occurs within 24 months after the March
7, 2002 change in control represented by the merger with UNB Corp.,
WHEREAS, consistent with section 2.3(b) of the September 5, 2001
Agreement of Merger and Plan of Reorganization, as successor to BancFirst Ohio
Corp. the Corporation assumed BancFirst Ohio Corp.'s obligations under the
August 19, 1999 Executive Retention Plan,
WHEREAS, the Corporation and the Officer intend that this Agreement
shall supersede and replace in their entirety any benefits, rights, or
entitlements the Officer may claim under the August 19, 1999 Executive Retention
Plan of BancFirst Ohio Corp., but the Corporation and the Officer intend that
this Agreement shall not supersede or replace any entitlement to benefits the
Officer may claim under the August 19, 1999 Executive Retention Plan of
BancFirst Ohio Corp. if and only if (1) his employment terminates on or before
March 7, 2004 and (2) no additional Changes in Control occur from the date of
this Agreement to March 7, 2004,
WHEREAS, by action of its board of directors the Corporation has
elected to terminate the August 19, 1999 Executive Retention Plan in its
entirety effective immediately, but termination of the August 19, 1999 Executive
Retention Plan shall have no effect on the Officer's right to claim benefits
thereunder if his employment terminates
on or before March 7, 2004, unless an additional Change in Control occurs after
the date of this Agreement and before the Officer's employment terminates, and
WHEREAS, none of the conditions or events included in the definition of
the term "golden parachute payment" that is set forth in section 18(k)(4)(A)(ii)
of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in
Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR
359.1(f)(1)(ii)] exists or, to the best knowledge of the Corporation and the
Bank, is contemplated insofar as either of the Corporation or the Bank is
concerned.
NOW THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. CHANGE IN CONTROL / EMPLOYMENT TERMINATION
(a) TERMINATION OF THE OFFICER WITHIN TWO YEARS AFTER A CHANGE IN
CONTROL. If a Change in Control occurs during the term of this Agreement and if
either of the following occurs, the Officer shall be entitled to severance and
termination benefits specified in Section 2 and legal fee payment benefits
specified in Section 7 of this Agreement --
(1) Involuntary Termination by the Corporation or the Bank: the
Officer's employment with the Corporation or the Bank is
involuntarily terminated within two years after a Change in
Control, except for termination under Section 4 of this
Agreement, or
(2) Voluntary Termination by the Officer for Good Reason: the
Officer terminates his employment with the Corporation or the
Bank for Good Reason (as defined in Section 3) within two
years after a Change in Control.
If the Officer is removed from office or if his employment terminates
after discussions with a third party regarding a Change in Control commence, and
if those discussions ultimately conclude with a Change in Control, then for
purposes of this Agreement the removal of the Officer or termination of his
employment shall be deemed to have occurred after the Change in Control.
(b) DEFINITION OF CHANGE IN CONTROL. For purposes of this Agreement,
"Change in Control" means any of the following events occur--
(1) Merger: the Corporation merges into or consolidates with
another corporation, or merges another corporation into the
Corporation, and as a result less than a majority of the
combined voting power of the resulting corporation immediately
after the merger or consolidation is held by persons who were
the holders of the Corporation's voting securities immediately
before the merger or consolidation. For purposes of this
Agreement, the term person means an individual, corporation,
partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or
other entity,
(2) Acquisition of Significant Share Ownership: a report on
Schedule 13D or Schedule TO (or any successor schedule, form
or report) is filed or is required to be filed under Sections
13(d) or 14(d) of the Securities Exchange Act of 1934, if the
schedule discloses that the filing person or persons acting in
concert has or have become the beneficial owner of 15% or more
of a class of the Corporation's voting securities (but this
clause (2) shall not apply to beneficial ownership of voting
shares of the Corporation held by a Subsidiary (defined as an
entity in which the Corporation directly or indirectly
beneficially owns 50% or more of the outstanding voting
securities) of the Corporation in a fiduciary capacity),
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(3) Change in Board Composition: during any period of two
consecutive years, individuals who constitute the
Corporation's board of directors at the beginning of the
two-year period cease for any reason to constitute at least a
majority thereof; provided, however, that-- for purposes of
this clause (3)-- each director who is first elected by the
board (or first nominated by the board for election by
shareholders) by a vote of at least two-thirds (2/3) of the
directors who were directors at the beginning of the period
shall be deemed to have been a director at the beginning of
the two-year period, or
(4) Sale of Assets: the Corporation sells to a third party
substantially all of the Corporation's assets. For purposes of
this Agreement, sale of substantially all of the Corporation's
assets includes sale of the Bank.
2. SEVERANCE AND TERMINATION BENEFITS
(a) SEVERANCE AND TERMINATION BENEFITS. The severance and termination
benefits to which the Officer is entitled under Section 1 are as follows--
(1) Lump Sum Payment: the Corporation shall make a lump sum
payment to the Officer in an amount in cash equal to two times
the Officer's annual compensation. For purposes of this
Agreement, annual compensation means (a) the Officer's then
current annual base salary at the date of Change in Control or
the Officer's termination of employment (at whichever date the
Officer's current annual base salary is greater), plus (b) the
average of the bonuses or incentive compensation earned for
the three calendar years immediately preceding the year in
which the Change in Control occurs, regardless of when the
bonus or incentive compensation earned for the preceding three
calendar years is paid. As of the date this Agreement is
entered into, the parties recognize that the bonus/incentive
compensation earned by the Officer for a particular year's
calendar service is paid by the Bank in the year following the
calendar year in which such bonus/incentive compensation is
earned. The amount payable to the Officer hereunder shall not
be reduced to account for the time value of money or
discounted to present value. The payment required under this
Section 2(a)(1) is payable no later than 5 business days after
the date the Officer's employment terminates. If the Officer
terminates employment for Good Reason, the date of termination
shall be the date specified by the Officer in his notice of
termination,
(2) Benefit Plans: the Corporation shall cause the Officer to
become fully vested in any qualified and non-qualified plans,
programs or arrangements in which the Officer participated if
the plan, program, or arrangement does not address the effect
of a change in control. The Corporation also shall contribute
or cause the Bank to contribute to the Officer's 401(k) Plan
account and any profit sharing plan account the matching and
profit sharing contribution, if any, that would have been paid
had the Officer's employment not terminated before the end of
the plan year, and
(3) Insurance Coverage: the Corporation shall cause to be
continued life, health and disability insurance coverage
substantially identical to the coverage maintained for the
Officer before his termination. The insurance coverage may
cease when the Officer becomes employed by another employer or
24 months after the Officer's termination, whichever occurs
first. At the end of the 24-month period, the Officer shall
have the option to continue health insurance coverage at his
own expense for a period not less than the number of months by
which the Consolidated Omnibus Budget Reconciliation Act
(COBRA) continuation period exceeds 24 months.
(b) 50% GROSS-UP FOR TAXES. Additional Payment to Account for Excise
Taxes. If the Officer becomes entitled to severance and termination benefits
under this Agreement, including accelerated vesting of stock options and
acceleration of benefits under any other benefit, compensation, or incentive
plan or arrangement with the
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Corporation or the Bank (collectively, the "Total Benefits"), and if any part of
the Total Benefits is subject to the Excise Tax under section 280G and section
4999 of the Internal Revenue Code (the "Excise Tax"), the Corporation shall pay
to the Officer the following additional amounts, consisting of (1) a payment
equal to the Excise Tax payable by the Officer under section 4999 on the Total
Benefits (the "Excise Tax Payment") and (2) a payment equal to the amount
necessary to provide the Excise Tax Payment net of all income, payroll, and
excise taxes, calculated as provided hereinafter (the "Gross-Up Payment").
Together, the additional amounts described in clauses (1) and (2) are referred
to in this Agreement as the "Adjusted Gross-Up Payment Amount." The difference
between the full gross-up amount (which includes the Excise Tax Payment) and the
Excise Tax Payment shall then be multiplied by 50% to determine the Gross-Up
Payment. Payment of the Adjusted Gross-Up Payment Amount shall be made in
addition to the amount set forth in Section 2(a). Schedule A is an illustration
of how this modified gross-up for taxes shall be calculated.
Calculating the Excise Tax. For purposes of determining whether any of
the Total Benefits will be subject to the Excise Tax and for purposes of
determining the amount of the Excise Tax,
(1) Determination of "Parachute Payments" Subject to the Excise
Tax: any other payments or benefits received or to be received
by the Officer in connection with a Change in Control or the
Officer's termination of employment (whether under the terms
of this Agreement or any other agreement, the 1997 Stock
Option Plan and 1987 Stock Option and Performance Unit Plan or
any other benefit plan or arrangement with the Corporation,
the Bank, any person whose actions result in a Change in
Control or any person affiliated with the Corporation or such
person) shall be treated as "parachute payments" within the
meaning of section 280G(b)(2) of the Internal Revenue Code,
and all "excess parachute payments" within the meaning of
section 280G(b)(1) shall be treated as subject to the Excise
Tax, unless in the opinion of the certified public accounting
firm that is retained by the Corporation as of the date
immediately before the Change in Control (the "Accounting
Firm") such other payments or benefits do not constitute (in
whole or in part) parachute payments, or such excess parachute
payments represent (in whole or in part) reasonable
compensation for services actually rendered within the meaning
of section 280G(b)(4) of the Internal Revenue Code in excess
(as defined in section 280G(b)(3) of the Internal Revenue
Code), or are otherwise not subject to the Excise Tax,
(2) Calculation of Benefits Subject to Excise Tax: the amount of
the Total Benefits that shall be treated as subject to the
Excise Tax shall be equal to the lesser of (a) the total
amount of the Total Benefits reduced by the amount of such
Total Benefits that in the opinion of the Accounting Firm are
not parachute payments, or (b) the amount of excess parachute
payments within the meaning of section 280G(b)(1) (after
applying clause (1), above), and
(3) Value of Noncash Benefits and Deferred Payments: the value of
any noncash benefits or any deferred payment or benefit shall
be determined by the Accounting Firm in accordance with the
principles of sections 280G(d)(3) and (4) of the Internal
Revenue Code.
Assumed Marginal Income Tax Rate. For purposes of determining the
amount of the Adjusted Gross-Up Payment Amount, the Officer shall be deemed to
pay federal income taxes at the highest marginal rate of federal income taxation
in the calendar years in which the Adjusted Gross-Up Payment Amount is to be
made and state and local income taxes at the highest marginal rate of taxation
in the state and locality of the Officer's residence on the date of termination
of employment, net of the reduction in federal income taxes that can be obtained
from deduction of such state and local taxes (calculated by assuming that any
reduction under section 68 of the Internal Revenue Code in the amount of
itemized deductions allowable to the Officer applies first to reduce the amount
of such state and local income taxes that would otherwise be deductible by the
Officer, and applicable federal FICA and Medicare withholding taxes).
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Return of Reduced Excise Tax Payment or Payment of Additional Excise
Tax. If the Excise Tax is later determined to be less than the amount taken into
account hereunder when the Officer's employment terminated, the Officer shall
repay to the Corporation -- when the amount of the reduction in Excise Tax is
finally determined -- the portion of the Adjusted Gross-Up Payment Amount
attributable to the reduction (plus that portion of the Adjusted Gross-Up
Payment Amount attributable to the Excise Tax, federal, state and local income
taxes and FICA and Medicare withholding taxes imposed on the Adjusted Gross-Up
Payment Amount being repaid by the Officer to the extent that the repayment
results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or
a federal, state or local income tax deduction).
If the Excise Tax is later determined to be more than the amount taken
into account hereunder when the Officer's employment terminated (due, for
example, to a payment whose existence or amount cannot be determined at the time
of the Adjusted Gross-Up Payment Amount), the Corporation shall make an
additional Adjusted Gross-Up Payment Amount to the Officer for that excess (plus
any interest, penalties or additions payable by the Officer for the excess) when
the amount of the excess is finally determined.
(c) RESPONSIBILITIES OF THE ACCOUNTING FIRM AND THE CORPORATION.
Determinations Shall Be Made by the Accounting Firm. Subject to the provisions
of Section 2(b), all determinations required to be made under this Section 2(c)
-- including whether and when an Adjusted Gross-Up Payment Amount is required,
the amount of the Adjusted Gross-Up Payment Amount and the assumptions to be
used to arrive at the determination (collectively, the "Determination") -- shall
be made by the Accounting Firm, which shall provide detailed supporting
calculations both to the Corporation and the Officer within 15 business days
after receipt of notice from the Corporation or the Officer that there has been
an Adjusted Gross-Up Payment Amount, or such earlier time as is requested by the
Corporation.
Fees and Expenses of the Accounting Firm and Agreement with the
Accounting Firm. All fees and expenses of the Accounting Firm shall be borne
solely by the Corporation. The Corporation shall enter into any agreement
requested by the Accounting Firm in connection with the performance of its
services hereunder.
Accounting Firm's Opinion. If the Accounting Firm determines that no
Excise Tax is payable by the Officer, the Accounting Firm shall furnish the
Officer with a written opinion to that effect, and to the effect that failure to
report Excise Tax, if any, on the Officer's applicable federal income tax return
will not result in the imposition of a negligence or similar penalty.
Accounting Firm's Determination Is Binding; Underpayment and
Overpayment. The Determination by the Accounting Firm shall be binding on the
Corporation and the Officer. Because of the uncertainty in determining whether
any of the Total Benefits will be subject to the Excise Tax at the time of the
Determination, it is possible that an Adjusted Gross-Up Payment Amount that
should have been made will not have been made by the Corporation
("Underpayment"), or that an Adjusted Gross-Up Payment Amount will be made that
should not have been made by the Corporation ("Overpayment"). If, after a
Determination by the Accounting Firm, the Officer is required to make a payment
of additional Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred. The Underpayment (together with interest at the
rate provided in section 1274(d)(2)(B) of the Internal Revenue Code) shall be
paid promptly by the Corporation to or for the benefit of the Officer. If the
Adjusted Gross-Up Payment Amount exceeds the amount necessary to reimburse the
Officer for his Excise Tax according to Section 2(b), the Accounting Firm shall
determine the amount of the Overpayment that has been made. The Overpayment
(together with interest at the rate provided in section 1274(d)(2)(B) of the
Internal Revenue Code) shall be paid promptly by the Officer to or for the
benefit of the Corporation. Provided that his expenses are reimbursed by the
Corporation or the Bank, the Officer shall cooperate with any reasonable
requests by the Corporation in any contests or disputes with the Internal
Revenue Service relating to the Excise Tax.
Accounting Firm Conflict of Interest. If the Accounting Firm is serving
as accountant or auditor for the individual, entity or group effecting the
Change in Control, the Officer may appoint another nationally recognized public
accounting firm to make the Determinations required hereunder (in which case the
term "Accounting Firm" as used in this Agreement shall be deemed to refer to the
accounting firm appointed by the Officer under this paragraph).
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(d) NO MITIGATION REQUIRED. The Corporation hereby acknowledges that it
will be difficult and could be impossible (1) for the Officer to find reasonably
comparable employment after his employment terminates, and (2) to measure the
amount of damages the Officer may suffer as a result of termination.
Additionally, the Corporation acknowledges that its general severance pay plans
do not provide for mitigation, offset, or reduction of any severance payment
received thereunder. Accordingly, the Corporation further acknowledges that the
payment of severance and termination benefits by the Corporation under this
Agreement is reasonable and will be liquidated damages, and the Officer shall
not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, nor will any profits,
income, earnings, or other benefits from any source whatsoever create any
mitigation, offset, reduction, or any other obligation on the part of the
Officer hereunder or otherwise.
3. GOOD REASON
(a) DEFINITION OF GOOD REASON. For purposes of this Agreement, "Good
Reason" means the occurrence of any of the events or conditions described in
clauses (1) through (7) hereof without the Officer's express written consent:
(1) Change in Office or Position or Termination as a Director:
failure to elect or reelect or otherwise to maintain the
Officer in the office or position, or a substantially
equivalent office or position, of or with the Corporation and
the Bank that the Officer held immediately before the Change
in Control, or the removal or failure to nominate the Officer
as a director of the Corporation (or any successor thereto) if
the Officer shall have been a director of the Corporation
immediately before the Change in Control,
(2) Adverse Change in the Scope of His Duties or Compensation and
Benefits:
(a) a significant adverse change in the nature or scope
of the authorities, powers, functions,
responsibilities, or duties associated with the
Officer's position with the Corporation or the Bank
compared to the nature or scope of the authorities,
powers, functions, responsibilities, or duties
associated with the position immediately before the
Change in Control,
(b) a reduction in the aggregate of the Officer's annual
compensation received from the Corporation and the
Bank, or
(c) the termination or denial of the Officer's rights to
benefits under the Corporation's or the Bank's
benefit, compensation, and incentive plans and
arrangements or a reduction in the scope or value
thereof, which situation is not remedied within 10
calendar days after written notice to the Corporation
from the Officer,
(3) Adverse Change in Circumstances: the Officer determines that a
change in circumstances has occurred after a Change in
Control, including without limitation a change in the scope of
the business or other activities for which the Officer is
responsible compared to his responsibilities immediately
before the Change in Control, (a) which renders the Officer
substantially unable to carry out, substantially hinders the
Officer's performance of, or causes the Officer to suffer a
substantial reduction in, any of the authorities, powers,
functions, responsibilities, or duties associated with the
office or position held by the Officer immediately before the
Change in Control, and (b) which situation is not remedied
within 10 calendar days after written notice to the
Corporation from the Officer of such determination. Provided
his determination is made in good faith, the Officer's
determination will be conclusive and binding upon the parties
hereto. The Officer's determination will be presumed to have
been made in good faith, unless the Corporation establishes by
clear and convincing evidence that it was not made in good
faith,
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(4) Liquidation and Merger of the Corporation or the Bank: the
liquidation, dissolution, merger, consolidation or
reorganization of the Corporation or the Bank or transfer of
all or substantially all of the business or assets of either
the Corporation or the Bank, unless the successor or
successors (by liquidation, merger, consolidation,
reorganization, transfer or otherwise) to which all or
substantially all of the business or assets have been
transferred (directly or by operation of law) assumes all
duties and obligations of the Corporation under this
Agreement,
(5) Relocation of the Officer: the Corporation or the Bank
relocates its principal Officer offices, or requires the
Officer to have his principal location of work changed, to any
location that is more than 15 miles from the location thereof
immediately before the Change in Control, or requires the
Officer to travel away from his office in the course of
discharging his responsibilities or duties hereunder at least
20% more (in terms of aggregate days in any calendar year or
in any calendar quarter when annualized for purposes of
comparison to any prior year) than was required of Officer in
any of the three full years immediately before the Change in
Control,
(6) Change in Administrative Support: the adverse and substantial
alteration in the nature and quality of the office space
within which the Officer performs his duties, including the
size and location thereof, or a substantial reduction in the
secretarial and administrative support provided to the
Officer, or
(7) Breach of this Agreement: without limiting the generality or
effect of the foregoing, any material breach of this Agreement
by the Corporation or any successor thereto.
(b) NO EFFECT ON EMPLOYEE BENEFITS. Termination by the Corporation
under Section 1(a)(1) (termination within two years after a Change in Control)
or termination by the Officer under Section 1(a)(2) (termination for Good
Reason) will not affect any rights the Officer may have under any benefit,
compensation, or incentive agreement, policy, plan, program, or arrangement of
the Corporation or the Bank, which rights shall be governed by the terms
thereof.
4. TERMINATION FOR WHICH NO SEVERANCE OR TERMINATION BENEFITS ARE PAYABLE
(a) NO SEVERANCE FOR TERMINATION FOR CAUSE. Anything in this Agreement
to the contrary notwithstanding, under no circumstance shall the Officer be
entitled to severance or termination benefits if his employment terminates for
Cause.
(1) Cause Means Commission of Any of the Following Acts: For
purposes of this Agreement, "Cause" means the Officer shall
have committed any of the following acts --
(a) Fraud, Embezzlement or Theft: an intentional act of
fraud, embezzlement, or theft in connection with his
duties or in the course of his employment with the
Corporation or the Bank,
(b) Intentional Harm: intentional wrongful damage to
property of the Corporation or the Bank, causing
material harm to the Corporation or the Bank,
(c) Disclosure of Trade Secrets: intentional wrongful
disclosure of secret processes or confidential
information of the Corporation or the Bank, causing
material harm to the Corporation or the Bank,
(d) Competing with the Corporation or the Bank:
intentional wrongful engagement in any competitive
activity. For purposes of this Agreement, competitive
activity means the Officer's participation, without
the written consent of an
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officer of the Corporation, in the management of any
business enterprise if (1) the enterprise engages in
substantial and direct competition with the
Corporation or the Bank, (2) the enterprise's
revenues derived from any product or service
competitive with any product or service of the
Corporation or the Bank amounted to 10% or more of
such enterprise's revenues for its most recently
completed fiscal year, and (3) the Corporation's
revenues from the product or service amounted to 10%
of the Corporation's revenues for its most recently
completed fiscal year, or the Bank's revenues from
the product or service amounted to 10% of the Bank's
revenues for its most recently completed fiscal year.
A competitive activity does not include mere
ownership of securities in any such enterprise and
the exercise of rights appurtenant thereto, provided
the Officer's share ownership does not give him
practical or legal control of the enterprise. For
this purpose, ownership of less than 5% of the
enterprise's outstanding voting securities shall
conclusively be presumed to be insufficient for
practical or legal control, and ownership of more
than 50% shall conclusively be presumed to constitute
practical and legal control.
If the Officer is now or hereafter becomes
subject to an agreement not to compete with the
Corporation or the Bank, a breach by the Officer of
that other non-competition agreement shall be grounds
for denial of severance and termination benefits for
Cause under this clause (d) of Section 4(a)(1). But
if the Officer engages in a competitive activity
under circumstances justifying denial of severance or
termination benefits for Cause under this clause (d),
that shall not necessarily be grounds for concluding
that the Officer has also breached the other
non-competition agreement to which he is or may
become subject. This clause (d) is not intended to
and shall not be construed to supersede or amend any
provision of an employment or non-competition
agreement to which the Officer is or may become
subject. This clause (d) does not grant to the
Officer any right or privilege to engage in other
activities or enterprises, whether in competition
with the Corporation or the Bank or otherwise, or
(e) Termination for Cause under an Employment Agreement:
any actions that have caused the Officer to be
terminated for cause under any employment agreement
existing on the date hereof or hereafter entered into
between the Officer and the Corporation or the Bank.
(2) Definition of "Intentional": For purposes of this Agreement,
no act or failure to act on the part of the Officer shall be
deemed to have been intentional if it was due primarily to an
error in judgment or negligence. An act or failure to act on
the Officer's part shall be considered intentional if it is
not in good faith and if it is without a reasonable belief
that the action or failure to act is in the best interests of
the Corporation.
(3) Termination for Cause Can Occur Solely by Formal Board Action.
The Officer shall not be deemed to have been terminated for
Cause under this Agreement unless and until there shall have
been delivered to the Officer a copy of a resolution duly
adopted by the affirmative vote of at least three-fourths
(3/4) of the directors of the Corporation then in office at a
meeting of the board of directors called and held for such
purpose, which resolution shall (a) contain findings that, in
the good faith opinion of the board, the Officer has committed
an act constituting Cause and (b) specify the particulars
thereof in detail. Notice of that meeting and the proposed
termination for Cause shall be given to the Officer a
reasonable amount of time before the board's meeting. The
Officer and his counsel (if the Officer chooses to have
counsel present) shall have a reasonable opportunity to be
heard by the board at the meeting. Nothing in this Agreement
limits the Officer's or his beneficiaries' right to contest
the validity or propriety of the board's
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determination of Cause, and they shall have the right to
contest the validity or propriety of the board's determination
of Cause even if that right does not exist under any
employment agreement of the Officer.
(b) NO SEVERANCE UNDER THIS AGREEMENT FOR THE OFFICER'S DEATH OR
DISABILITY. Anything in this Agreement to the contrary notwithstanding, under no
circumstance shall the Officer be entitled to severance payments or termination
benefits if --
(1) Death: the Officer dies while actively employed by the
Corporation or the Bank, or
(2) Disability: the Officer becomes totally disabled while
actively employed by the Corporation or the Bank. For purposes
of this agreement, the term "totally disabled" means that
because of injury or sickness, the Officer is unable to
perform his duties.
The benefits, if any, payable to the Officer or his beneficiary(ies) or
estate relating to his death or disability shall be determined solely by such
benefit plans or arrangements as the Corporation or the Bank may have with the
Officer relating to death or disability, not this Agreement.
5. TERM OF AGREEMENT
The initial term of this Agreement shall be for a period of three
years, commencing , 2002. On the first anniversary of the , 2002
effective date of this Agreement, and on each anniversary thereafter, the
Agreement shall be extended for one additional year if the Corporation's board
of directors determines that the Officer's performance has satisfied the
standards and requirements of the board and that the term therefore shall be
extended. References herein to the term of this Agreement shall refer to the
initial term, as the same may be extended. Unless sooner terminated, this
Agreement shall terminate when the Officer reaches age 65. If the board decides
not to extend the term of this Agreement, this Agreement shall nevertheless
remain in force until its term expires. The board's decision not to extend the
term of this Agreement shall not -- by itself -- give the Officer any rights
under this Agreement to claim an adverse change in his position, compensation or
circumstances or otherwise to claim entitlement to severance or termination
benefits under this Agreement.
6. THIS AGREEMENT IS NOT AN EMPLOYMENT CONTRACT
The parties hereto acknowledge and agree that (a) this Agreement is not
a management or employment agreement and (b) nothing in this Agreement shall
give the Officer any rights or impose any obligations to continued employment by
the Bank or Corporation or any subsidiary or successor of the Bank or
Corporation, nor shall it give the Bank or Corporation any rights or impose any
obligations for the continued performance of duties by the Officer for the Bank
or Corporation or any subsidiary or successor of the Bank or Corporation.
7. PAYMENT OF LEGAL FEES
(a) THE OFFICER MAY ENFORCE THIS AGREEMENT THROUGH LEGAL ACTION. The
Corporation irrevocably authorizes the Officer to retain from time to time
counsel of Officer's choice to advise and represent him in the interpretation,
enforcement or defense of the parties' rights and responsibilities under this
Agreement, if after a Change in Control occurs --
(1) the Officer concludes that the Corporation has failed to
comply with any of its obligations under this Agreement, or
(2) if the Corporation or any or any other person takes or
threatens to take any action to declare this Agreement void or
unenforceable, or institutes any litigation or other action or
proceeding designed to deny, or to recover from, the Officer
the benefits provided or intended to be provided to the
Officer under this Agreement,
9
including without limitation the initiation or defense of any litigation or
other legal action, whether by or against the Corporation or any director,
officer, stockholder or other person affiliated with the Corporation, in any
jurisdiction.
(b) FEES AND EXPENSES WILL BE PAID BY THE CORPORATION. The Corporation
desires that the Officer not be required to incur legal fees and the related
costs and expenses associated with the interpretation, enforcement, or defense
of Officer's rights under this Agreement by litigation or otherwise, because the
amounts thereof would substantially detract from the benefits intended to be
extended to the Officer under this Agreement. Therefore, even if the Officer
does not prevail in whole or in part in the litigation or other legal action
associated with the interpretation, enforcement or defense of Officer's rights
under this Agreement, the Corporation hereby agrees to pay and be solely
financially responsible for any and all attorneys' and related fees, costs and
expenses incurred by the Officer in the litigation or other legal action, up to
a maximum of $500,000. The fees and expenses of counsel selected by the Officer
shall be paid or reimbursed to the Officer by the Corporation on a regular,
periodic basis, upon presentation by the Officer of a statement or statements
prepared by such counsel in accordance with counsel's customary practices.
Anything herein to the contrary notwithstanding, nothing in this Agreement
authorizes the Corporation to pay or the Officer to demand payment of fees,
costs and expenses if and to the extent payment of fees, costs and expenses
constitutes a "prohibited indemnification payment" within the meaning of Federal
Deposit Insurance Corporation Rule 359.1(l)(1) [12 CFR 359.1(l)(1)].
(c) COST OF LIVING ADJUSTMENT FOR CAP ON LEGAL FEE REIMBURSEMENT. Upon
the occurrence of a Change in Control, the $500,000 cap on legal fee
reimbursement provided by Section 7(b) will be subject to a cost of living
adjustment equal to the value of the expression A x B, in which expression:
A = $500,000, and
B = Cost of living adjustment or inflation factor. This is
computed by dividing the Consumer Price Index for All Urban
Consumers ("CPI-U") prepared by the U.S. Bureau of Labor
Statistics, or any successor thereto, for the CPI-U for
January of the year during which the Change in Control occurs
by the CPI-U for January 2000.
The cost of living adjustment provided in this Paragraph 7(c) shall be
considered to be part of the Officer's payment of legal fees for purposes of
this Agreement.
Illustration of Cost of Living Adjustment. To explain the cost of
living adjustment calculation for Payment of Legal Fees, we use the following
example.
First, we determine the appropriate CPI-Us. The Agreement calls for the
use of the CPI-Us for January 2000 and the January of the year during which the
Change in Control occurs. Assume a Change in Control occurs in April 2009. For
illustrative purposes only, the CPI-U for January 2000 is 156.7, and the CPI-U
for January 2009 is 213.3.
Second, we calculate the cost of living adjustment or inflation factor.
To do this, we divide the CPI-U for January 2009 (213.3) by the CPI-U for
January 2000 (156.7). Our result is 1.361 (i.e., a 36.1 percent increase).
Finally, we calculate the raw cost of living adjustment. To do this, we
multiply the base Payment of Legal Fees amount by the inflation factor. In our
example, $500,000 multiplied by the inflation factor of 1.361 equals $680,500.
(d) THE OFFICER MAY CHOOSE THE CORPORATION'S COUNSEL. Notwithstanding
any existing or previous attorney-client relationship between the Corporation
and any counsel chosen by the Officer under Section 7(a), the Corporation
irrevocably consents to the Officer's entering into an attorney-client
relationship with that counsel, and the Corporation and the Officer agree that a
confidential relationship shall exist between the Officer and that counsel.
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8. WITHHOLDING OF TAXES
The Corporation or the Bank may withhold from any benefits payable
under this Agreement all Federal, state, local, or other taxes as may be
required by law, governmental regulation, or ruling.
9. SUCCESSORS AND ASSIGNS
(a) THIS AGREEMENT IS BINDING ON THE CORPORATION'S SUCCESSORS. This
Agreement shall be binding upon the Corporation and any successor to the
Corporation, including any persons acquiring directly or indirectly all or
substantially all of the business or assets of the Corporation by purchase,
merger, consolidation, reorganization, or otherwise. Any such successor shall
thereafter be deemed to be the "Corporation" for purposes of this Agreement. But
this Agreement and the Corporation's obligations under this Agreement are not
otherwise assignable, transferable, or delegable by the Corporation. By
agreement in form and substance satisfactory to the Officer, the Corporation
shall require any successor to all or substantially all of the business or
assets of the Corporation expressly to assume and agree to perform this
Agreement in the same manner and to the same extent the Corporation would be
required to perform if no such succession had occurred.
(b) THIS AGREEMENT IS ENFORCEABLE BY THE OFFICER AND HIS HEIRS. This
Agreement will inure to the benefit of and be enforceable by the Officer's
personal or legal representatives, executors, administrators, successors, heirs,
distributes, and legatees.
(c) THIS AGREEMENT IS PERSONAL IN NATURE AND IS NOT ASSIGNABLE. This
Agreement is personal in nature. Without written consent of the other party,
neither party shall assign, transfer, or delegate this Agreement or any rights
or obligations under this Agreement except as expressly provided in this Section
9. Without limiting the generality or effect of the foregoing, the Officer's
right to receive payments hereunder is not assignable or transferable, whether
by pledge, creation of a security interest, or otherwise, except for a transfer
by Officer's will or by the laws of descent and distribution. If the Officer
attempts an assignment or transfer that is contrary to this Section 9, the
Corporation shall have no liability to pay any amount to the assignee or
transferee.
10. NOTICES
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered by hand
or mailed, certified or registered mail, return receipt requested, with postage
prepaid to the following addresses or to such other address as either party may
designate by like notice.
(a) If to the Corporation or the Bank, to:
Unizan Financial Corp.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attn: Corporate Secretary
(b) If to the Officer, to:
---------------------------
---------------------------
---------------------------
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
11. CAPTIONS AND COUNTERPARTS
The headings and subheadings used in this Agreement are included solely
for convenience and shall not affect the interpretation of this Agreement.
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This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
12. AMENDMENTS AND WAIVERS
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in a writing or
writings signed by the Officer and by the Corporation. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral
or otherwise, expressed or implied with respect to the subject matter hereof
have been made by either party that are not set forth expressly in this
Agreement.
13. SEVERABILITY
The provisions of this Agreement shall be deemed severable. The
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions of this Agreement. Any provision held to
be invalid or unenforceable shall be reformed to the extent (and only to the
extent) necessary to make it valid and enforceable.
14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Corporation
and the Officer concerning the subject matter hereof. No rights are granted to
the Officer under this Agreement other than those specifically set forth herein.
This Agreement supersedes and replaces in their entirety any benefits, rights,
or entitlements the Officer may claim under the August 19, 1999 Executive
Retention Plan of BancFirst Ohio Corp. if his employment terminates after March
7, 2004. If the Officer's employment terminates on or before March 7, 2004, he
may claim any benefits, rights, or entitlements under the August 19, 1999
Executive Retention Plan of BancFirst Ohio Corp. to which he may be entitled
under the terms of and in accordance with that plan, unless a Change in Control
(as defined in this Agreement) shall have occurred after the date of this
Agreement. If a Change in Control occurs after the date of this Agreement, the
Officer shall not be entitled under any circumstance to claim any benefits,
rights, or entitlements under the August 19, 1999 Executive Retention Plan of
BancFirst Ohio Corp.
15. GOVERNING LAW
The validity, interpretation, construction, and performance of this
Agreement shall be governed by and construed in accordance with the substantive
laws of the State of Ohio, without giving effect to the principles of conflict
of laws of such State.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first written above.
WITNESSES: UNIZAN FINANCIAL CORP.
By:
------------------------------- -------------------------------
Its:
-------------------------------
WITNESSES: OFFICER
------------------------------- ---------------------------------
-------------------------------
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County of )
) ss:
State of Ohio )
Before me this ______________ day of __________________, 2002,
personally appeared the above named _____________________________________ and
__________________________________ , who acknowledged that they did sign the
foregoing instrument and that the same was their free act and deed.
-------------------------------
(Notary Seal) Notary Public
My Commission Expires:
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SEVERANCE AGREEMENT SCHEDULE A
UNIZAN FINANCIAL CORP.
ILLUSTRATION OF SECTION 280G AND SECTION 4999 CALCULATION AND
50% GROSS-UP FOR TAXES
50% GROSS-UP PAYMENT
TOTAL PARACHUTE DUE OFFICER UNDER
TOTAL VALUE OF CHANGE- PAYMENTS WITH FULL SEVERANCE AGREEMENT
IN-CONTROL PAYMENTS SS.280G GROSS-UP SECTION 2(b)
----------------------- ----------------------- -----------------------
BASE AMOUNT.................................. $ 180,000
TOTAL PARACHUTE PAYMENTS:
Nonqualified benefits arising
under stock options............ --
under severance agreement...... 572,000
-----------------------
Total parachute payments, before gross-
up.................................. 572,000
-----------------------
Threshold amount [(3 x Base Amount - $1.00)]. 539,999
-----------------------
Parachute payments in excess of threshold amount $ 32,001
=======================
EXCISE TAX ON PARACHUTE PAYMENT:
Total parachute payments............ $ 572,000
Base Amount......................... 180,000
-----------------------
Parachute payment subject to Excise Tax...... 392,000
Multiplied by excise tax rate................ x 20 %
-----------------------
Initial Excise Tax on parachute payment...... 78,400
-----------------------
GROSS-UP FOR TAXES, IF APPLICABLE:
Federal income tax rate................. 38.6000 %
Excise Tax rate......................... 20.0000 %
Ohio state income tax rate.............. 7.5000 %
Local income tax rate................... 2.0000 %
FICA rate............................... 1.4500 %
Phase-out of itemized deductions........ 1.1580 %
Federal tax benefit of state and local income tax (3.6670)%
-----------------------
Gross-up marginal tax rate................... 67.0410 %
-----------------------
100% minus gross-up marginal rate............ 32.9590 %
-----------------------
Full payment to gross up for taxes........... $ 237,871
=======================
ADJUSTED GROSS-UP PAYMENT AMOUNT:
Full 100% gross-up amount............... $ 237,871
Minus Excise Tax payment................ 78,400
-----------------------
159,471
Multiplied by 50%....................... x 50 %
-----------------------
79,736
Plus Excise Tax payment................. 78,400
-----------------------
Adjusted Gross-Up Payment Amount.... $ 158,136
=======================
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