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EXHIBIT 10.1
Xxxx X. Xxxxx
President and Chief Executive Officer
Xxxxxxxx Financial Holdings, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxx 00000
Dear Xx. Xxxxx:
In connection with the anticipated merger (the "Merger") of Xxxxxxxx
Financial Holdings, Inc. ("Xxxxxxxx Financial") with and into Oak Hill
Financial, Inc. ("Oak Hill Financial") as contemplated by the Agreement and Plan
of Merger, by and between Oak Hill Financial and Xxxxxxxx Financial (the "Merger
Agreement"), which is entered into as of today, Xxxxxxxx Financial, Xxxxxxxx
Federal Savings Bank ("Xxxxxxxx Federal"), Oak Hill Financial and you hereby
enter into this agreement (this "Agreement"). Capitalized terms used but not
otherwise defined in this Agreement shall have the meaning set forth in the
Merger Agreement.
In the event that the Effective Time does not occur for any reason,
this Agreement shall be deemed null and void AB INITIO and of no force and
effect, and the Employment Agreement by and among you, Xxxxxxxx Financial and
Xxxxxxxx Federal dated as of December 28, 2000 (the "Xxxxxxxx Federal
Agreement"), and the Employment Agreement between you and Xxxxxxxx Financial
dated as of December 28, 2000 (the "Xxxxxxxx Financial Agreement," and together
with the "Xxxxxxxx Federal Agreement," the "Prior Agreements"), shall be
reinstated effective immediately; provided that you have not yet received the
payment set forth in Section 1(a) of this Agreement. If you have received the
full payment set forth in Section 1(a) of this Agreement, and the Effective Time
does not occur for any reason, you acknowledge and agree that, the Prior
Agreements shall be null and void and you shall have no further rights under the
Prior Agreements.
1. COMPENSATION AND BENEFITS.
(a) EMPLOYMENT AGREEMENTS. No later than December 15, 2004,
Xxxxxxxx Financial shall make to you a lump sum payment in cash in the amount
equal to $412,448.37 (the "Employment Agreement Payment"). For the avoidance of
doubt, and notwithstanding anything herein to the contrary, this Employment
Agreement Payment shall not be taken into account in computing any benefits
under any plan, program or other arrangement of Oak Hill Financial, Xxxxxxxx
Financial, Xxxxxxxx Federal or their affiliates.
(b) OPTIONS AND RESTRICTED STOCK. All stock options, as well as
any shares of restricted stock, held by you that have not vested or exercised as
of the Effective Time, will be treated in accordance with the Merger Agreement.
For the avoidance of doubt, and notwithstanding anything herein to the contrary,
the payment described in this paragraph shall
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not be taken into account in computing any benefits under any plan, program or
other arrangement of Oak Hill Financial, Xxxxxxxx Financial, Xxxxxxxx Federal or
their affiliates.
(c) SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN PAYMENT. At the Effective
Time, Xxxxxxxx Financial hereby agrees to pay to you in satisfaction of your
expected benefit as of the Effective Time under the Xxxxxxxx Federal Savings
Bank Supplemental Executive Retirement Plan, (the "SERP"), an amount equal to
$45,796.00. You hereby agree and acknowledge that, after such payment is made to
you, Oak Hill Financial, Xxxxxxxx Financial, Xxxxxxxx Federal and their
respective affiliates shall have no further payment obligations to you or for
your benefit whatsoever under the SERP and your participation in the plan shall
cease immediately upon full payment. For the avoidance of doubt, and
notwithstanding anything herein to the contrary, the payment described in this
paragraph shall not be taken into account in computing any benefits under any
plan, program or other arrangement of Oak Hill Financial, Xxxxxxxx Financial,
Xxxxxxxx Federal or their affiliates.
(d) HEALTH AND WELFARE BENEFITS. At the Effective Time, Xxxxxxxx
Financial hereby agrees to pay to you in satisfaction of your expected cost for
continued life and medical insurance an amount equal to $72,692.37. You hereby
agree and acknowledge that, after such payment is made to you, Oak Hill
Financial, Xxxxxxxx Financial, Xxxxxxxx Federal and their respective affiliates
shall have no further payment or benefit obligations to you or for your benefit
whatsoever with respect to providing you and/or your dependents continued life
or medical insurance. For the avoidance of doubt, and notwithstanding anything
herein to the contrary, the payment described in this paragraph shall not be
taken into account in computing any benefits under any plan, program or other
arrangement of Oak Hill Financial, Xxxxxxxx Financial, Xxxxxxxx Federal or their
affiliates.
2. TERMINATION OF THE PRIOR AGREEMENTS; AGREEMENT TO REMAIN
EMPLOYED THROUGH EFFECTIVE TIME. Except as provided in paragraph 3 of this
Agreement, you hereby agree that, in consideration for entering into this
Agreement, effective as of the date hereof, the Prior Agreements shall be null
and void and no person or entity shall be obligated to pay to you or any person
any amounts in respect of the Prior Agreements. Further, in consideration of the
benefits conferred upon you and Xxxxxxxx Financial pursuant to this Agreement,
you hereby agree not to terminate your employment with Xxxxxxxx Financial or any
of its subsidiaries prior to the Effective Time, and, prior to the Effective
Time, Xxxxxxxx Financial agrees not to terminate your employment with Xxxxxxxx
Financial or its subsidiaries without the prior written consent of Oak Hill
Financial.
3. WITHHOLDING AND DEDUCTIONS. Xxxxxxxx Financial will withhold
and deposit all federal, state and local income and employment taxes that are
owed with respect to all amounts paid or benefits provided to or for you by
Xxxxxxxx Financial or any affiliate pursuant to this Agreement. You, Xxxxxxxx
Financial and Oak Hill Financial agree that none of the payments and benefits
payable or provided to you or for your benefit in connection with the Merger
under this Agreement or otherwise are expected to constitute an "excess
parachute payment" within the meaning of Section 280G of the Code. In the event
that any amounts payable or benefits provided hereunder or otherwise would be or
become subject to the excise tax under Section 4999 of the Internal Revenue Code
of 1986, as amended, such amounts and benefits shall be treated in the manner
set forth under Section 6 of Xxxxxxxx Financial Agreement, the provisions
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of which you and Oak Hill Financial expressly assume under and in accordance
with the terms of this Agreement. You hereby agree to report any amounts paid or
benefits provided under this Agreement for purposes of Federal, state and local
income, employment and excise taxes in a manner consistent with the manner in
which Oak Hill Financial reports any such amounts or benefits for purposes of
Federal, state and local income, employment and excise taxes and that you shall
cooperate with Oak Hill Financial in good faith in connection with any valuation
of the restrictions and obligations under this Agreement.
4. SUCCESSORS. This Agreement is personal to you and without the
prior written consent of Oak Hill Financial shall not be assignable by you
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by your legal representatives.
This Agreement shall inure to the benefit of and be binding upon Xxxxxxxx
Financial, Oak Hill Financial and their successors and assigns.
5. WAIVER. Failure of Oak Hill Financial to demand strict
compliance with any of the terms, covenants or conditions of this Agreement
shall not be deemed a waiver of such term, covenant or condition, nor shall any
waiver or relinquishment of any such term, covenant or condition on any occasion
or multiple occasions be deemed a waiver or relinquishment of such term,
covenant or condition.
6. GOVERNING LAW AND JURISDICTION. This Agreement is governed by
and construed under the laws of the State of Ohio, without regard to conflict of
laws rules. You, Xxxxxxxx Financial and Oak Hill Financial (a) hereby consent to
submit to the exclusive personal jurisdiction of any Federal court located in
the State of Ohio or any court of the State of Ohio in the event any dispute
arises out of this Agreement or any of the transactions contemplated by this
Agreement, and (b) hereby waive any right to challenge jurisdiction or venue in
such courts with regard to any suit, action, or proceeding under or in
connection with the Agreement. Each party to this Agreement also hereby waives
any right to trial by jury in connection with any suit, action, or proceeding
under or in connection with this Agreement.
7. ENTIRE AND FINAL AGREEMENT. This Agreement shall supersede any
and all prior oral or written representations, understandings and agreements of
the parties with respect to their employment relationship (including, but not
limited to all correspondence, memoranda and term sheets and the Prior
Agreements), and it contains the entire agreement of the parties with respect to
those matters. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. Once signed by the
parties hereto, no provision of this Agreement may be modified or amended unless
agreed to in a writing, signed by you and a duly authorized officer of Xxxxxxxx
Financial and Oak Hill Financial.
8. ASSIGNMENT. Neither this Agreement nor any of the rights,
obligations or interests arising hereunder may be assigned by you. Neither this
Agreement nor any of the rights, obligations or interests arising hereunder may
be assigned by Xxxxxxxx Financial or Oak Hill Financial without your prior
written consent, to a person or entity other than an affiliate or parent entity
of Xxxxxxxx Financial or Oak Hill Financial, or their successors or assigns;
PROVIDED, HOWEVER, that, in the event of the merger, consolidation, transfer, or
sale of all or substantially all of the assets of Xxxxxxxx Financial or Oak Hill
Financial with or to any other individual or
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entity, this Agreement shall, subject to the provisions hereof, be binding upon
and inure to the benefit of such successor and such successor shall discharge
and perform all the promises, covenants, duties, and obligations of Xxxxxxxx
Financial or Oak Hill Financial hereunder.
9. SECTION HEADINGS. The section headings contained in this
Agreement are inserted for purposes of convenience only and shall not affect the
meaning or interpretation of this Agreement.
10. NOTICES. All notices required by this Agreement shall be sent in
writing and delivered by one party to the other by overnight express mail to the
following persons and addresses:
If to Xxxxxxxx Financial or Xxxxxxxx Federal:
Xxxxxxxx Financial Holdings, Inc.
c/o Chairman of the Board of Directors
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxx 00000
With a copy to Oak Hill Financial.
If to Oak Hill Financial:
Xxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
Oak Hill Financial, Inc.
00000 Xxxxx Xxxxx 00
Xxxxxxx, Xxxx 00000
If to you:
At the most recent address on file at Xxxxxxxx Financial.
14. EXECUTION IN COUNTERPARTS. This Agreement may be executed by
the parties hereto in counterparts, and each of which shall be considered an
original for all purposes.
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If the foregoing is satisfactory, please so indicate by signing and
returning to Xxxxxxxx Financial and Oak Hill Financial and the enclosed copy of
this letter whereupon this will constitute our agreement on the subject.
XXXXXXXX FINANCIAL HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Date: October 12, 2004
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XXXXXXXX FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Date: October 12, 0000
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XXX XXXX FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
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Name: Xxxxx X. Xxxxxxx, Xx.
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Date: October 12, 2004
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ACCEPTED AND AGREED TO:
/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
Date: October 12, 2004
