Exhibit 10.3
EMPLOYMENT AGREEMENT
This Agreement is made effective as of June 5, 2002 by and between
Metropolitan Bank and Trust Company (the "Bank"), an Ohio savings and loan
association, and Metropolitan Financial Corp. (the "Company"), a savings and
loan holding company, both with their principal administrative offices at 00000
Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxxx, Xxxx, and Xxxxxx Xxxxx (the "Executive").
WHEREAS, the Bank wishes to assure itself of the continued services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Bank on a
full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to
serve as Executive Vice President and Chief Financial Officer of the Bank and
the Company and to perform such other duties as may be assigned to Executive
from time to time by the President (the "Executive Position"). As Executive Vice
President and Chief Financial Officer, the Executive shall be responsible for
the normal and customary duties associated with the Executive position. During
said period, Executive also agrees to serve, if appointed or elected, as an
officer of any subsidiary or affiliate of the Bank or the Company. Failure to
reappoint or reelect Executive to the Executive Position without the consent of
the Executive during the term of this Agreement (except for any termination for
Cause, as defined herein) shall constitute a breach of this Agreement. The
Executive shall report to the President of the Bank or Company, or such other
person as shall be designated by the Chairman.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall
begin as of the date first above written and shall continue for a period of
twenty-four full calendar months thereafter. Within thirty days prior to the
first anniversary date of this Agreement, and within thirty days prior to each
anniversary date thereafter, the Board of Directors of the Bank ("Board") shall
conduct a performance evaluation and review of the Executive for purposes of
determining whether to extend the Agreement, and the results thereof shall be
included in the minutes of the Board's meeting and communicated to Executive.
Upon a favorable performance evaluation, the Board shall renew the term of the
Agreement for an additional year from the anniversary date such that the
remaining term shall be two years. If the Board determines at such annual review
not to renew the term of the Agreement, the Board shall provide to the Executive
written notice of nonrenewal at least ten days following such Board
determination, and Agreement shall expire at the end of twenty-four months
following the date such written notice is delivered to the Executive.
(b) During the period of his employment hereunder, except for periods
of absence occasioned by events and activities that are consistent with the
Bank's internal policies, Executive shall devote substantially all his business
time, attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Bank; provided, however, that, with the approval
of the Board, as evidenced by a resolution of such Board, from time to time,
Executive may serve, or continue to serve, on the boards of directors of, and
hold any other offices or positions in, business companies or business
organizations, which, in such Board's judgment, will not present any conflict of
interest with the Bank, or materially affect the performance of Executive's
duties pursuant to this Agreement (for purposes of this Section 2(b), Board
approval shall be deemed provided as to service with any such business companies
or organizations that Executive was serving as of the date of this Agreement), a
list of which is attached hereto as Exhibit "A".
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall constitute
the salary and benefits paid for the duties described in Section 2(b). The Bank
shall pay Executive as compensation a salary of not less than
$220,000 per year ("Base Salary"). Such Base Salary shall be payable biweekly or
at such other regular intervals as is customary for other executive officers.
During the period of this Agreement, Executive's Base Salary shall be reviewed
at least annually. Such review shall be conducted by a Committee designated by
the Board, and the Board may increase, but not decrease (except a decrease that
is generally applicable to all employees), Executive's Base Salary (any increase
in Base Salary shall become the "Base Salary" for purposes of this Agreement).
In addition to the Base Salary provided in this Section 3(a), the Bank shall
provide Executive at no cost to Executive with all such other benefits as are
provided uniformly to permanent full-time employees of the Bank. Base Salary
shall include any amounts of compensation deferred by Executive under qualified
and nonqualified plans maintained by the Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which other
executive officers are participating or otherwise deriving benefit from
immediately prior to the beginning of the term of this Agreement, and the Bank
will not, without Executive's prior written consent, make any changes in such
plans, arrangements or perquisites which would adversely affect Executive's
rights or benefits thereunder, except as to any changes that are applicable to
all employees or as reasonably or customarily available. Without limiting the
generality of the foregoing provisions of this Subsection (b), Executive will be
entitled to participate in or receive benefits under any employee benefit plans
including but not limited to, stock option and stock purchase plans, retirement
plans, supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident plans, medical coverage or any other employee benefit plan
or arrangement made available by the Bank in the future to its senior executives
and key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements.
Executive will be entitled to incentive compensation and bonuses as provided in
any plan of the Bank in which Executive is eligible to participate (and he shall
be entitled to a pro rata distribution under any incentive compensation or bonus
plan as to any year in which a termination of employment occurs, other than
termination for Cause). Nothing paid to the Executive under any such plan or
arrangement will be deemed to be in lieu of other compensation to which the
Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3, the Bank shall pay or reimburse Executive for all reasonable
travel and other reasonable expenses incurred by Executive performing his
obligations under this Agreement in accordance with the Bank's general policies
as may be in effect from time to time and may provide such additional
compensation in such form and such amounts as the President or Board may from
time to time determine.
(d) No payments or benefits shall be due to Executive under this
Agreement upon the termination of Executive's employment except as provided in
Sections 3, 4 or 5 hereof. In addition, the Bank's and Company's obligation to
pay, and the Executive's right to receive, any payment or benefit under this
Agreement or otherwise are subject to the provisions of Section 14.
(e) No payments or benefits shall be due to Executive for activities
and services rendered by the Executive to the Company or any subsidiary or
affiliate of the Bank or Company beyond the compensation paid to the Executive
by the Bank.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following:
(i) the termination by the Bank or the Company of
Executive's full-time employment hereunder for any
reason other than
(A) Termination for Cause (as defined in Section 7
hereof),
(B) upon Retirement (as defined in Section 6 hereof),
or
(C) for Disability (as set forth in Section 5
hereof); or
(ii) Executive's resignation from the Bank's employ
following
(A) any failure to elect or reelect or to appoint or
reappoint Executive to the Executive Position,
(B) a material change in Executive's function,
duties, or responsibilities, which change would cause
Executive's position to become one of lesser
responsibility, importance, or scope from the
position and attributes thereof described in Section
1 above (and any such material change shall be deemed
a continuing breach of this Agreement),
(C) a relocation of Executive's principal place of
employment by more than 30 miles from its location on
the date hereof (except where the Bank's corporate
headquarters and a majority of the Bank's executive
officers are relocated to such location), or a
material reduction in the benefits and perquisites,
including Base Salary, to the Executive from those
being provided at the commencement of the Executive's
employment (except for any reduction that is part of
an employee-wide or executive-wide reduction in pay
or benefits),
(D) any transaction in which the Bank or the Company
is liquidated or dissolved, or after which the Bank
or the Company ceases to exist,
(E) any transaction other than a public offering,
following to which the Company's majority stockholder
as of the date of this agreement no longer
beneficially owns a majority of the Company's common
stock, or
(F) material breach of this Agreement by the Bank.
Upon the occurrence of any event described in clauses (ii) (A), (B), (C), (D),
(E) or (F) above ("Constructive Termination"), Executive shall have the right to
elect to terminate his employment under this Agreement by resignation upon not
less than thirty (30) days prior written notice given within a reasonable period
of time (not to exceed, except in case of a continuing breach, four (4) calendar
months) after the event giving rise to said right to elect, which termination by
Executive shall be an Event of Termination.
(b) Upon the occurrence of an Event of Termination, the Bank shall pay
Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a cash amount equal to the greater of
(i) the payments due for the remaining term of the
Agreement, or
(ii) two (2) times the sum of, or upon the occurrence of
an Event of Termination within one year of the
effective date of this agreement, one and one half (1
1/2) times the sum of:
(A) the highest annualized rate of base
compensation paid to Executive at any time
under this Agreement, including the Base
Salary, any other taxable compensation paid
to the Executive and any contributions made
on behalf of the Executive to any employee
benefit plan, and excluding any cash
bonuses, and
(B) the greater of (x) the average annual cash
bonus paid to Executive with respect to the
three completed fiscal years prior to the
Event of Termination, or (y) the cash bonus
paid to Executive with respect to the fiscal
year ended prior to the Event of
Termination;
provided however, that if the Bank is not in compliance with its minimum capital
requirements or if such payments would cause the Bank's capital to be reduced
below its minimum capital requirements, such payments shall be deferred until
such time as the Bank is in capital compliance.
(c) At the election of the Executive, which election may be made
annually by January 31 of each year and is irrevocable for the year in which
made (and once payments commence), payments under subsection (b) shall be made
in a lump sum or paid quarterly during the remaining term of the agreement
following the Executive's termination. In the event that no election is made,
payment to the Executive will be made in a lump sum. Such payments shall not be
reduced in the event the Executive obtains other employment following
termination of employment.
(d) Upon the occurrence of an Event of Termination, the Bank will cause
to be continued life, medical and dental coverage substantially comparable, as
reasonably or customarily available, to the coverage maintained by the Bank for
Executive prior to his termination, except to the extent such coverage may be
changed in its application to all Bank employees or is not available on an
individual basis to a terminated employee. Such coverage shall cease twenty-four
months following the Event of Termination.
(e) Notwithstanding anything to the contrary in this Agreement, in the
event that:
(i) the aggregate payments or benefits to be made or
afforded to Executive (the "Termination Benefits")
would be deemed to include an "excess parachute
payment" under Section 280G of the Code or any
successor thereto, and
(ii) if such Termination Benefits were reduced to an
amount (the "Non-Triggering Amount"), the value of
which is one dollar ($1.00) less than an amount equal
to the total amount of payments permissible under
Section 280G of the Code or any successor thereto,
then the Termination Benefits to be paid to Executive shall be so reduced so as
to be a Non-Triggering Amount. The allocation of the reduction required hereby
among Termination Benefits provided by the preceding paragraphs of this Section
4 shall be determined by the Executive.
5. TERMINATION FOR DISABILITY
(a) If, as a result of Executive's incapacity due to physical or mental
illness, he shall have been absent from his duties with the Bank or the Company
on a full-time basis for 120 out of 180 consecutive days, and within thirty (30)
days after written notice of potential termination is given he shall not have
returned to the full-time performance of his duties, the Bank may terminate
Executive's employment for "Disability."
(b) The Bank will pay Executive, as disability pay, a bi-weekly payment
equal to 66 2/3% of the Executive's bi-weekly rate of Base Salary on the
effective date of such termination. These disability payments shall commence on
the effective date of Executive's termination and will end on the earlier of
(i) the date Executive returns to the full-time
employment of the Bank in the same capacity as he was
employed prior to his termination for Disability and
pursuant to an employment agreement between Executive
and the Bank;
(ii) Executive's full-time employment by another employer;
(iii) Executive attaining a Retirement age as identified in
Section 6; or
(iv) Executive's death. The disability pay shall be
reduced by the amount, if any, paid to the Executive
under any plan of the Bank or the Company providing
disability benefits to the Executive.
(c) The Bank will cause to be continued life, medical, and dental
coverage substantially comparable, as reasonable or customarily available, to
the coverage maintained by the Bank for Executive prior to his termination for
Disability, except to the extent such coverage may be changed in its application
to all Bank employees. This coverage shall cease upon the earlier of
(i) the date Executive returns to the full-time
employment of the Bank in the same capacity as he was
employed prior to his termination for Disability and
pursuant to an employment agreement between Executive
and the Bank;
(ii) Executive's full-time employment by another employer;
(iii) Executive attaining the Retirement age as identified
in Section 6; or
(iv) Executive's death.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period during which
Executive is incapable of performing his duties hereunder by reason of temporary
disability.
6. TERMINATION UPON RETIREMENT
Termination by the Bank of the Executive based on "Retirement" shall
mean termination of executive in accordance with any policy established with
Executive's consent with respect to him or upon "normal retirement" as defined
in any tax-qualified plan of the Bank. Upon termination of Executive upon
Retirement, no amounts or benefits shall be due Executive under this Agreement
and the Executive shall be entitled to all benefits under any retirement plan of
the Bank and other plans, if any, to which Executive is a party.
7. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination because of the
Executive's personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving personal profit, wilful disclosure of the confidential
or proprietary information of the Bank or Company with the intent to cause a
detriment to the Bank or Company, intentional failure to perform stated duties,
willful violation of any law, rule, or regulation (other than traffic violations
or similar offenses) or final cease-and-desist order, or material breach of any
provision of this Agreement. In determining incompetence, the acts or omissions
shall be measured against standards generally prevailing in the savings
institution and commercial banking industry. For purposes of this paragraph, no
act or failure to act on the part of Executive shall be considered "willful"
unless done, or omitted to be done, by the Executive not in good faith and
without reasonable belief that the Executive's action or omission was in the
best interest of the Bank. 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 letter from the Chairman of the Board and the President that
notes their good faith determination that Executive was guilty of conduct
justifying Termination for Cause and which enumerates such conduct. The
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause. Any non-vested stock options or
restricted stock granted to Executive under any stock option plan or restricted
stock plan of the Bank, the Company or any subsidiary or affiliate thereof,
shall become null and void effective upon Executive's receipt of Notice of
Termination for Cause pursuant to Section 8 hereof, and any non-vested stock
options shall not be exercisable by Executive at any time subsequent to such
Termination for Cause, (unless it is determined in arbitration that grounds for
termination of Executive for Cause did not exist, in which event all terms of
the options or restricted stock as of the date of termination shall apply, and
any time periods for exercising such options shall commence from the date of
resolution in arbitration).
8. NOTICE
(a) Any purported termination by the Bank for Cause shall be
communicated by Notice of Termination to the Executive. 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. If, within thirty (30) days after any Notice of Termination for Cause
is given, the Executive notifies the Bank or the Company that a dispute exists
concerning the termination, the parties shall promptly proceed to arbitration.
Notwithstanding the pendency of any such dispute, the Bank and the Company may
discontinue Executive's compensation until the dispute is finally resolved in
accordance with this Agreement.
If it is determined that Executive is entitled to compensation and benefits
under Section 4 of this Agreement, the payment of such compensation and benefits
by the Bank and Company shall commence immediately following the date of
resolution by arbitration, with interest due Executive on the cash amount that
would have been paid pending arbitration (at the prime rate as published in the
Wall Street Journal from time to time).
(b) Any other purported termination by the Bank or by Executive shall
be communicated by a Notice of Termination to the other party. 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 detail the facts and circumstances claimed to provide a
basis for termination of employment under the provision so indicated. "Date of
Termination" shall mean the date of the Notice of Termination. 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 parties shall promptly proceed to arbitration as provided
in Section 18 of this Agreement. Notwithstanding the pendency of any such
dispute, the Bank shall continue to pay the Executive his Base Salary, and other
compensation and benefits in effect when the notice giving rise to the dispute
was given (except as to termination of Executive for Cause). In the event of the
voluntary termination by the Executive following a Constructive Termination,
which is disputed by the Bank, if it is determined in arbitration that Executive
is not entitled to termination benefits pursuant to this Agreement, he shall
return all cash payments made to him pending resolution by arbitration and, if
it is determined in arbitration that Executive's voluntary termination of
employment was not taken in good faith and with the reasonable belief that
grounds existed for his voluntary termination, Executive shall pay interest on
such returned payments at the prime rate as published in the Wall Street Journal
from time to time.
9. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall
be subject to Executive's compliance with paragraph (b) of this Section 9 during
the term of this Agreement and for one (1) full year after the expiration or
termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information
and assistance to the Bank as may reasonably be required by the Bank in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party.
(c) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. Executive will not, after the term of his
employment, disclose any knowledge of planned or considered confidential
business activities of the Bank or affiliates thereof to any person, firm,
corporation, or other entity for any reason or purpose whatsoever (except for
such disclosure as may be required to be provided to the Office of Thrift
Supervision ("OTS"), the Federal Deposit Insurance Corporation (the "FDIC"), or
other federal banking agency with jurisdiction over the Bank or Executive).
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Bank, and
Executive may disclose any information regarding the Bank or the Company that is
otherwise publicly available. In the event of a breach or threatened breach by
the Executive of the provisions of this Section 9, the Bank will be entitled to
an injunction restraining Executive from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of the
Bank or affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom such knowledge, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein will be construed as
prohibiting the Bank from pursuing any other remedies available to the Bank for
such breach or threatened breach, including the recovery of damages from
Executive.
10. SOURCE OF PAYMENTS
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however (but subject to
the terms of this Agreement), guarantees payment and provision of all amounts
and benefits due hereunder to 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.
11. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and 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 Executive is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
12. NO ATTACHMENT
(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,
Executive and the Bank and their respective successors and assigns.
13. MODIFICATION AND WAIVER
(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 as to any act other than that specifically
waived.
14. REQUIRED REGULATORY PROVISIONS
Notwithstanding anything in the Agreement to the contrary, the
following provisions shall control:
(a) The Bank's Board of Directors may terminate the Executive's
employment at any time, but any termination by the Bank's Board of Directors,
other than Termination for Cause, shall not prejudice Executive's right to
compensation or other benefits under this Agreement. Executive shall not have
the right to receive compensation or other benefits for any period after
Termination for Cause as defined in Section 8 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) (12 U.S.C. Sections 1818(e)(3)) or 8(g) (12 U.S.C.
Section 1818(g)) of the Federal Deposit Insurance Act (the "FDI Act"), as
amended by the Financial Institutions Reform, Recovery and Enforcement Act of
1989, the Bank's obligations under this contract 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 their 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) (12 U.S.C. Sections 1818(e)) or 8(g) (12 U.S.C. Section 1818(g)) of
the FDI Act, as amended by the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, all obligations of the Bank under this contract 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) (12 U.S.C.
Section 1813(x)(1)) of the Federal Deposit Insurance Act, as amended by the
Financial Institutions Reform, Recovery and Enforcement Act of 1989, 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 of the Bank under this contract shall be
terminated, except to the extent determined that continuation of the contract is
necessary for the continued operation of the institution, (i) by the Director,
at the time FDIC or the Resolution Trust Corporation enters into an agreement to
provide assistance to or on behalf of the Bank; or (ii) by the OTS at the time
the OTS or its District Director approves a supervisory merger to resolve
problems related to the operations of the Bank or when the Bank is determined by
the OTS or FDIC 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.
ANY RIGHTS UNDER THIS AGREEMENT SHALL NOT BE AFFECTED BY THE SUPERVISORY
AGREEMENTS DATED JULY 26, 2001 BY AND BETWEEN THE BANK, THE STATE OF OHIO
DIVISION OF FINANCIAL INSTITUTIONS, AND THE OTS, AND THE COMPANY AND THE OTS.
(f) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 USC
Section 1828(k) and any regulations promulgated thereunder.
15. SEVERABILITY
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.
16. HEADINGS FOR REFERENCE ONLY
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.
17. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Ohio but
only to the extent not superseded by federal law.
18. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by the Executive within the
Cleveland metropolitan area, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
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.
19. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank, provided that the dispute or interpretation has been
settled by Executive and the Bank or resolved in the Executive's favor.
20. INDEMNIFICATION
The Bank and the Company shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense, and shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under federal law against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Bank or the Company (whether or not he continues to be a
director or officer at the time of incurring such expenses or liabilities), such
expenses and liabilities to include, but not be limited to, judgments, court
costs and attorneys' fees
and the cost of reasonable settlements (such settlements must be approved by the
Board of Directors of the Bank or the Company, as appropriate), provided,
however, neither the Bank nor Company shall be required to indemnify or
reimburse the Executive for legal expenses or liabilities incurred in connection
with an action, suit or proceeding arising from any illegal or fraudulent act
committed by the Executive.
21. SUCCESSOR TO THE BANK
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 or the Company, expressly
and unconditionally to assume and agree to perform the Bank's 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.
SIGNATURES
IN WITNESS WHEREOF, the Bank and the Company have caused this Agreement
to be executed and their seals to be affixed hereunto by their duly authorized
officers, and Executives have signed this Agreement, on the day and date first
above written.
ATTEST: METROPOLITAN BANK AND TRUST COMPANY
/S/: XXXXX X. XXXXXX By: /S/: XXXXXXX X. XXXXXXX
------------------------------------ ------------------------------
Asst. Secretary
ATTEST: METROPOLITAN FINANCIAL CORP.
/S/: XXXXX X. XXXXXX By: /S/:XXXXXXX X. XXXXXXX
------------------------------------ ------------------------------
Asst. Secretary
WITNESS: EXECUTIVE:
/S/: XXXXXXX X. XXXX /S/: XXXXXX XXXXX
------------------------------------ -----------------------------------
Xxxxxx Xxxxx
Exhibit "A"
List of business companies / organizations for which Executive serves as of
the date of the Agreement
Marmax Partners, LLC
Abingdon Street Partners, LP
Abingdon Street Advisors, LLC
