Exhibit 10.x.x.
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. Xxxxxxxxx, Executive Vice President (the
"Executive") at Unizan Bank, National Association, a national bank and wholly
owned subsidiary of the Corporation (the "Bank").
WHEREAS, the Executive is a senior executive employed by the Bank, and
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(c))
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
Executive, 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 Executive to continue to remain in the ongoing employ of the Bank,
WHEREAS, the Corporation's predecessor, UNB Corp., and the Executive
entered into a severance agreement dated May 8, 2001, providing for severance
and termination benefits if the Executive is terminated without cause or if the
Executive terminates voluntarily for good reason within three years after a
change in control of UNB Corp., or if the Executive terminates voluntarily with
or without good reason during a 90-day period beginning on the date that is six
months after a change in control,
WHEREAS, on March 7, 2002 the predecessor 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, the merger of BancFirst Ohio Corp. with and into UNB Corp.
constituted a change in control under the terms of the May 8, 2001 severance
agreement between the Executive and UNB Corp.,
WHEREAS, consistent with the terms of the May 8, 2001 severance
agreement, as successor to UNB Corp. the Corporation became a party to and
assumed UNB Corp.'s obligations under the May 8, 2001 severance agreement,
WHEREAS, the Corporation and the Executive have negotiated and agreed
to certain changes in the terms and conditions for severance and termination
benefits payable under the May 8, 2001 severance agreement, entered into by UNB
Corp. and the Executive,
WHEREAS, the changes the Corporation and the Executive have agreed to
include but are not limited to (1) eliminating the Executive's right to
severance and termination benefits if he terminates voluntarily and without good
reason during a specified period after a change in control, (2) changing the
provision of the severance agreement having to do with renewal and extension of
its term so that the term of the severance agreement shall be extended solely by
affirmative action of the board of directors, rather than extending for another
year automatically unless the board of directors determines that it shall not be
extended, (3) preserving the Executive's right to severance and termination
benefits if he is involuntarily terminated without cause or if he voluntarily
terminates for good reason within three years after the March 7, 2002 change in
control represented by the merger between UNB Corp. and BancFirst Ohio Corp.,
regardless of whether another change in control occurs after the date of this
Agreement, (4) revising the definition of "good reason," which governs the
circumstances under which the Executive may terminate
employment voluntarily and be entitled to severance and termination benefits,
and (5) modifying the "gross-up for taxes" provision of the May 8, 2001
severance agreement so that, as modified, it provides for payment of a gross-up
amount equal to 50% of the gross-up payment the Executive would have received
had the gross-up provision not been modified,
WHEREAS, the Corporation and the Executive intend that this Agreement
shall supersede and replace in its entirety the May 8, 2001 severance agreement,
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 EXECUTIVE 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 Executive 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) Termination by the Corporation or the Bank: the Executive'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) Termination by the Executive for Good Reason: the Executive
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 Executive 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 Executive or termination of his
employment shall be deemed to have occurred after the Change in Control.
(b) TERMINATION OF THE EXECUTIVE ON OR BEFORE MARCH 7, 2005. If either
of the following events occurs on or before March 7, 2005, the Executive 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) Termination by the Corporation or the Bank: the Executive's
employment is involuntarily terminated, except for termination
under Section 4 of this Agreement, or
(2) Termination by the Executive for Good Reason: the Executive
terminates his employment with the Corporation or the Bank for
Good Reason (as defined in Section 3). For purposes of this
subsection 1(b)(2), the term "Change in Control" as used in
Section 3 includes the March 7, 2002 merger of BancFirst Ohio
Corp. with and into UNB Corp. under the terms of the September
5, 2001 Agreement of Merger and Plan of Reorganization,
but the Executive shall be entitled to no benefits under this subsection 1(b) if
a Change in Control occurs after the date of this Agreement. If a Change in
Control occurs after the date of this Agreement, the Executive shall have
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only such rights to severance and termination benefits as may be provided under
subsection 1(a) of this Agreement, not subsection 1(b).
(c) 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),
(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 Executive is entitled under Section 1 are as follows--
(1) Lump Sum Payment: the Corporation shall make a lump sum
payment to the Executive in an amount in cash equal to two
times the Executive's annual compensation. For purposes of
this Agreement, annual compensation means (a) the Executive's
then current annual base salary at the date of Change in
Control or the Executive's termination of employment (at
whichever date the Executive'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 Executive 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 Executive
hereunder
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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 Executive's employment terminates. If the
Executive terminates employment for Good Reason, the date of
termination shall be the date specified by the Executive in
his notice of termination,
(2) Benefit Plans: the Corporation shall cause the Executive to
become fully vested in any qualified and non-qualified plans,
programs or arrangements in which the Executive participated,
notwithstanding any provisions contained in the respective
agreement of the plan, program or arrangement. The Corporation
also shall contribute or cause the Bank to contribute to the
Executive's 401(k) Plan account and his United National Bank &
Trust Co. Employees Profit Sharing Plan account the matching
and profit sharing contribution, if any, that would have been
paid had the Executive'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
Executive before his termination. The insurance coverage may
cease when the Executive becomes employed by another employer
or 24 months after the Executive's termination, whichever
occurs first. At the end of the 24-month period, the Executive
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) MODIFIED GROSS-UP FOR TAXES. Additional Payment to Account for
Excise Taxes. If the Executive becomes entitled to severance and termination
benefits under this Agreement, including accelerated vesting of stock options
granted under the Corporation's 1997 Stock Option Plan and 1987 Stock Option and
Performance Unit Plan and acceleration of benefits under any other benefit,
compensation, or incentive plan or arrangement with the 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 Executive the
following additional amounts, consisting of (1) a payment equal to the Excise
Tax payable by the Executive 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 a percentage to determine the Gross-Up Payment, which
percentage shall be (1) 100% if severance and termination benefits are payable
under subsection 1(b) of this Agreement, or (2) 50% if severance and termination
benefits are payable under subsection 1(a) of this Agreement. 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 Executive in connection with a Change in Control or the
Executive'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
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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 Executive 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 Executive'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 Executive applies first to reduce the
amount of such state and local income taxes that would otherwise be deductible
by the Executive, and applicable federal FICA and Medicare withholding taxes).
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 Executive's employment terminated, the Executive
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 Executive 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 Executive'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 Executive for that excess
(plus any interest, penalties or additions payable by the Executive 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 Executive within 15 business days
after receipt of notice from the Corporation or the Executive that there has
been an Adjusted Gross-Up Payment Amount, or such earlier time as is requested
by the Corporation.
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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 Executive, the Accounting Firm shall furnish the
Executive with a written opinion to that effect, and to the effect that failure
to report Excise Tax, if any, on the Executive'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 Executive. 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 Executive 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
Executive. If the Adjusted Gross-Up Payment Amount exceeds the amount necessary
to reimburse the Executive 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
Executive to or for the benefit of the Corporation. Provided that his expenses
are reimbursed by the Corporation, the Executive 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 Executive 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 Executive under this paragraph).
(d) NO MITIGATION REQUIRED. The Corporation hereby acknowledges that it
will be difficult and could be impossible (1) for the Executive to find
reasonably comparable employment after his employment terminates, and (2) to
measure the amount of damages the Executive 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 Executive 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 Executive 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 Executive'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
Executive in the office or position, or a substantially
equivalent office or position, of or with the Corporation and
the Bank that the Executive held immediately before the Change
in Control, or the removal or failure to nominate the
Executive as a director of the Corporation (or any successor
thereto) if the Executive shall have been a director of the
Corporation immediately before the Change in Control,
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(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
Executive'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 Executive's
annual compensation received from the Corporation and
the Bank, or
(c) the termination or denial of the Executive'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 Executive,
(3) Adverse Change in Circumstances: the Executive 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 Executive is
responsible compared to his responsibilities immediately
before the Change in Control, (a) which renders the Executive
substantially unable to carry out, substantially hinders the
Executive's performance of, or causes the Executive to suffer
a substantial reduction in, any of the authorities, powers,
functions, responsibilities, or duties associated with the
office or position held by the Executive 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 Executive of such determination. Provided
his determination is made in good faith, the Executive's
determination will be conclusive and binding upon the parties
hereto. The Executive'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,
(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 Executive: the Corporation or the Bank
relocates its principal executive offices, or requires the
Executive 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 Executive 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 Executive
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 Executive performs his duties, including the
size and location thereof, or a substantial reduction in the
secretarial and administrative support provided to the
Executive, or
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(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) or Section 1(b)(1) (termination within two years after a
Change in Control or termination on or before March 7, 2005) or termination by
the Executive under Section 1(a)(2) or Section 1(b)(2) (termination for Good
Reason) will not affect any rights the Executive 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 Executive 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 Executive 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 Executive's participation, without
the written consent of an 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 Executive'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 Executive is now or hereafter becomes
subject to an agreement not to compete with the
Corporation or the Bank, a breach by the Executive 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 Executive engages in a competitive activity
under circumstances justifying
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denial of severance or termination benefits for Cause
under this clause (d), that shall not necessarily be
grounds for concluding that the Executive 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 Executive is
or may become subject. This clause (d) does not grant
to the Executive 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 Executive to be
terminated for cause under any employment agreement
existing on the date hereof or hereafter entered into
between the Executive 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 Executive 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 Executive'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 Executive shall not be deemed to have been terminated for
Cause under this Agreement unless and until there shall have
been delivered to the Executive 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 Executive 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 Executive
a reasonable amount of time before the board's meeting. The
Executive and his counsel (if the Executive 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 Executive's or his beneficiaries' right to contest
the validity or propriety of the board's 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 Executive.
(b) NO SEVERANCE UNDER THIS AGREEMENT FOR THE EXECUTIVE'S DEATH OR
DISABILITY. Anything in this Agreement to the contrary notwithstanding, under no
circumstance shall the Executive be entitled to severance payments or
termination benefits if --
(1) Death: the Executive dies while actively employed by the
Corporation or the Bank, or
(2) Disability: the Executive 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 Executive is unable to
perform his duties.
The benefits, if any, payable to the Executive 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
Executive relating to death or disability, not this Agreement.
9
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 Executive'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 Executive 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 Executive
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 Executive 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 Executive for the
Bank or Corporation or any subsidiary or successor of the Bank or Corporation.
7. PAYMENT OF LEGAL FEES
(a) THE EXECUTIVE MAY ENFORCE THIS AGREEMENT THROUGH LEGAL ACTION. The
Corporation irrevocably authorizes the Executive to retain from time to time
counsel of Executive'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 Executive 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 Executive
the benefits provided or intended to be provided to the
Executive under this Agreement,
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 Executive not be required to incur legal fees and the related
costs and expenses associated with the interpretation, enforcement, or defense
of Executive'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 Executive under this Agreement. Therefore, even if the Executive
does not prevail in whole or in part in the litigation or other legal action
associated with the interpretation, enforcement or defense of Executive'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 Executive in the litigation or other legal action, up
to a maximum of $500,000. The fees and expenses of counsel selected by the
Executive shall be paid or reimbursed to the Executive by the Corporation on a
regular, periodic basis, upon presentation by the Executive 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 Executive 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)].
10
(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 Executive'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 EXECUTIVE MAY CHOOSE THE CORPORATION'S COUNSEL. Notwithstanding
any existing or previous attorney-client relationship between the Corporation
and any counsel chosen by the Executive under Section 7(a), the Corporation
irrevocably consents to the Executive's entering into an attorney-client
relationship with that counsel, and the Corporation and the Executive agree that
a confidential relationship shall exist between the Executive and that counsel.
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 Executive, 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.
11
(b) THIS AGREEMENT IS ENFORCEABLE BY THE EXECUTIVE AND HIS HEIRS. This
Agreement will inure to the benefit of and be enforceable by the Executive'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 Executive'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 Executive's will or by the laws of descent and distribution. If the Executive
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, to:
Unizan Financial Corp.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attn: Corporate Secretary
(b) If to the Executive, 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.
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 Executive 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
12
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 Executive concerning the subject matter hereof. No rights are granted to
the Executive under this Agreement other than those specifically set forth
herein. This Agreement supersedes and replaces in its entirety the May 8, 2001
Severance Agreement, as amended, entered into by the Executive and UNB Corp.,
predecessor of the Corporation.
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: EXECUTIVE
---------------------- --------------------------------------------
----------------------
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 MODIFIED 50%
GROSS-UP FOR TAXES
ADJUSTED 50% GROSS-UP
TOTAL PARACHUTE PAYMENT DUE EXECUTIVE
TOTAL VALUE OF CHANGE- PAYMENTS WITH FULL UNDER SEVERANCE
IN-CONTROL PAYMENTS SS.280G GROSS-UP AGREEMENT SECTION 2(b)
----------------------- ----------------------- -----------------------
BASE AMOUNT.................................. $ 88,000
TOTAL PARACHUTE PAYMENTS:
Nonqualified benefits arising
under stock options............ 32,000
under severance agreement...... 260,000
-----------------------
Total parachute payments, before gross-
up.................................. 292,000
-----------------------
Threshold amount [(3 x Base Amount - $1.00)]. 263,999
-----------------------
Parachute payments in excess of threshold amount $ 28,001
=======================
EXCISE TAX ON PARACHUTE PAYMENT:
Total parachute payments............ $ 292,000
Base Amount......................... 88,000
-----------------------
Parachute payment subject to Excise Tax...... 204,000
Multiplied by excise tax rate................ x 20 %
-----------------------
Initial Excise Tax on parachute payment...... 40,800
-----------------------
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........... $ 123,790
=======================
ADJUSTED GROSS-UP PAYMENT AMOUNT:
Full 100% gross-up amount............... $ 123,790
Minus Excise Tax payment................ (40,800)
-----------------------
82,990
Multiplied by 50% *..................... x 50 %
-----------------------
41,495
Plus Excise Tax payment................. 40,800
-----------------------
Adjusted Gross-Up Payment Amount.... $ 82,295
=======================
* The 50% gross-up applies solely in the case of severance and termination
benefits payable under subsection 1(a) of the Severance Agreement. If instead
severance and termination benefits are payable under subsection 1(b) of the
Severance Agreement, the full (100%) gross-up amount shall be payable.
Subsection 1(b) applies if the Executive is terminated without cause or if he
terminates for Good Reason on or before March 7, 2005, provided that a Change in
Control has not occurred since the March 7, 2002 merger of BancFirst Ohio Corp.
with and into UNB Corp. Subsection 1(a) applies if the Executive is terminated
without cause or if he terminates for Good Reason (1) after a Change in Control
occurs or (2) after March 7, 2005.
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