AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (the "Agreement"), made this 16th day
of September, 2008, by and among CHEVIOT SAVINGS BANK (the "Bank") and XXXXXX X.
XXXXXXXX ("Executive"). Any reference to the "Company" shall mean Cheviot
Financial Corp.
WITNESSETH
WHEREAS, the Executive is currently employed as Chief Executive Officer and
President of the Bank pursuant to an employment agreement between the Bank and
the Executive (the "Employment Agreement"); and
WHEREAS, the Bank desires to amend and restate the Employment Agreement in
order to make changes to comply with Section 409A of the Internal Revenue Code
of 1986, as amended (the "Code") and the final regulations issued thereunder in
April 2007; and
WHEREAS, the Bank desires to ensure the continued availability of the
Executive's services as provided in this Agreement; and
WHEREAS, the Executive is willing to serve the Bank on the terms and
conditions hereinafter set forth and has agreed to such changes; and
WHEREAS, the Board of Directors of the Bank and the Executive believe it is
in the best interests of the Bank to enter into the Agreement in order to
reinforce and reward the Executive for his service and dedication to the
continued success of the Bank and incorporate the changes required by Section
409A of the Code.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions hereinafter set forth, the Bank and the Executive hereby agree as
follows:
1. Employment. Executive is employed as the President and Chief Executive
Officer of the Bank. Executive shall perform all duties and shall have all
powers which are commonly incident to the offices of the President and
Chief Executive Officer and which, consistent with those offices, are
delegated to him by the Board of Directors of the Bank.
2. Location and Facilities. The Executive will be furnished with the working
facilities and staff customary for executive officers with the title and
duties set forth in Section 1 and as are necessary for him to perform his
duties. The location of such facilities and staff shall be at the principal
administrative offices of the Bank or at such other site or sites customary
for such offices.
3. Term.
3.1 The term of this Agreement shall be (i) the initial term, consisting
of the period commencing on the date of this Agreement (the "Effective
Date") and ending on the third anniversary of the Effective Date, plus
(ii) any and all extensions of the initial term made pursuant to this
Section 3. Notwithstanding the foregoing all changes intended to
comply with Section 409A of the Code shall be retroactively effective
to January 1, 2005; and provided further that no retroactive change
shall affect the compensation or benefits previously provided to the
Executive.
3.2 Commencing on the first year anniversary date of this Agreement, and
continuing on each anniversary thereafter, the disinterested members
of the Board of Directors of the Bank (the "Board") may extend the
Agreement an additional year such that the remaining term of the
Agreement shall be thirty-six (36) months, unless Executive elects not
to extend the term of this Agreement by giving written notice in
accordance with Section 18 of this Agreement. The Board will review
the Agreement and Executive's performance annually for purposes of
determining whether to extend the Agreement and the rationale and
results thereof shall be included in the minutes of the Board's
meeting. The Board shall give notice to Executive as soon as possible
after such review as to whether the Agreement is to be extended.
4. Base Compensation.
4.1 The Bank agrees to pay the Executive during the term of this Agreement
a base salary at the rate of $199,680 per year, payable in accordance
with customary payroll practices.
4.2 The Board shall review annually the rate of the Executive's base
salary based upon factors they deem relevant, and may maintain or
increase his salary, provided that no such action shall reduce the
rate of salary below the rate in effect on the Effective Date.
4.3 In the absence of action by the Board, the Executive shall continue to
receive salary at the annual rate specified on the Effective Date or,
if another rate has been established under the provisions of this
Section 4, the rate last properly established by action of the Board
under the provisions of this Section 4.
5. Bonuses. In lieu of any bonus normally provided to permanent full-time
employees of the Bank, the Bank agrees to provide a bonus program to the
Executive which will provide the Executive with the opportunity to earn up
to 50% of the Executive's base salary, on an annual basis, the amount of
which shall be determined by specific performance standards and a formula
agreed to by Executive and the Bank annually. Performance standards shall
be measured on a calendar year, and no bonus shall be payable if Executive
is not employed on December 31 of the year in question.
6. Benefit Plans. The Executive shall be entitled to participate in such life
insurance, medical, dental, 401k, profit-sharing, and stock-based
compensation plans and other programs and arrangements as may be approved
from time to time by the Bank for the benefit of their employees. In
addition, during the term of this Agreement, the Bank shall provide the
Executive with a supplemental life insurance policy with a death benefit of
not less than $200,000.
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7. Vacation and Leave.
7.1 The Executive shall be entitled to vacations and other leave
in accordance with policy for senior executives, or otherwise
as approved by the Board, but, in any event, not less than
four (4) weeks vacation annually.
7.2 In addition to paid vacations and other leave, Executive shall
be entitled, without loss of pay, to absent himself
voluntarily from the performance of his employment for such
additional periods of time and for such valid and legitimate
reasons as the Board may in its discretion determine. Further,
the Board may grant Executive a leave or leaves of absence,
with or without pay, at such time or times and upon such terms
and coalitions as the Board in its discretion may determine.
8. Expense Payments and Reimbursements. Executive shall be reimbursed for all
reasonable out-of-pocket business expenses that he shall incur in
connection with his services under this Agreement upon substantiation of
such expenses in accordance with applicable policies of the Bank, and all
such reimbursements pursuant to this Section 8 shall be paid promptly by
the Bank and in any event no later than March 15 of the year immediately
following the year in which the expense was incurred.
9. Loyalty and Confidentiality: Noncompetition.
9.1 During the term of this Agreement, Executive: (i) shall devote all his
time, attention, skill and efforts to the faithful performance of his
duties hereunder; provided, however, that from time to time, Executive
may serve on the boards of directors of, and hold any other offices or
positions in, companies or organizations which will not present any
conflict of interest with the Bank or any of their subsidiaries or
affiliates, unfavorably affect the performance of Executive's duties
pursuant to this Agreement, or violate any applicable statute or
regulation; and (ii) shall not engage in any business or activity
contrary to the business affairs or interests of the Bank.
9.2 Nothing contained in this Agreement shall prevent or limit Executive's
right to invest in the capital stock or other securities of any
business dissimilar from that of the Bank, or, solely as a passive,
minority investor, in any business.
9.3 Executive, agrees to maintain the confidentiality of any and all
information concerning the operation or financial status of the Bank;
the names or addresses of any of its borrowers, depositors and other
customers; any information concerning or obtained from such customers;
and any other information concerning the Bank to which he may be
exposed during the course of his employment. The Executive further
agrees that, unless required by law or specifically permitted by the
Board in writing, he will not disclose to any person or entity, either
during or subsequent to his employment, any of the above-mentioned
information which is not generally known to the public, nor shall he
employ such information in any way other than for the benefit of the
Bank.
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9.4 Upon the termination of Executive's employment hereunder for any
reason, Executive agrees not to compete with the Bank for a period of
two (2) years following such termination in any city, town or county
in which the Executive's normal business office is located and the
Bank has an office or has filed an application for regulatory approval
to establish an office (or within a 60-mile radius of each of such
offices), determined as of the effective date of such termination,
except as agreed to pursuant to a resolution duly adopted by the
Board. Executive agrees that during such period and within said
cities, towns and counties, Executive shall not work for or advise,
consult or otherwise serve with, directly or indirectly, any entity
whose business materially competes with the depository, lending or
other business activities of the Bank. The parties hereto, recognizing
that irreparable injury will result to the Bank, its business and
property in the event of Executive's breach of his obligations under
this paragraph and agree that in the event of any such breach by
Executive, the Bank will be entitled, in addition to any other
remedies and damages available, to an injunction to restrain the
violation hereof by Executive, Executive's partners, agents, servants,
employees and all persons acting for or under the direction of
Executive. 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. Termination and Termination Pay. Subject to Section 11 of this Agreement,
Executive's employment under this Agreement may be terminated in the
following circumstances:
10.1 Death. Executive's employment under this Agreement shall terminate
upon his death during the term of this Agreement, in which event
Executive's estate shall be entitled to receive the compensation due
to the Executive through the last day of the calendar month in which
his death occurred.
10.2 Retirement. This Agreement shall be terminated upon Executive's
retirement under the retirement benefit plan or plans in which he
participates pursuant to Section 6 of this Agreement or otherwise.
10.3 Disability.
10.3.1 The Board or Executive may terminate Executive's employment
after having determined Executive has a Disability. For purposes
of this Agreement, "Disability" means termination because (i)
Executive is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment that can be expected to result in death, or last for a
continuous period of not less than 12 months; (ii) Executive is,
by reason of any medically determinable physical or mental
impairment that can be expected to result in death, or last for a
continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than three months
under an accident and health plan covering employees of the Bank;
or (iii) Executive is determined to be totally disabled by the
Social Security Administration.
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10.3.2 In the event of such Disability, Executive's obligation to
perform services under this Agreement will terminate. The Bank
will pay Executive, as Disability pay, pursuant to the long term
disability policy then in effect. Disability payments will be
made on a monthly basis and will commence on the first day of the
month following the effective date of Executive's termination of
employment for Disability and end on the earlier of: (A) the date
he returns to full-time employment at the Bank in the same
capacity as he was employed prior to his termination for
Disability; (B) his death; or (C) the remaining term of the
Agreement (if the Agreement had not been earlier terminated by
Executive's Disability). Such payments shall be reduced by the
amount of any short- or long-term disability benefits payable to
Executive under any other disability programs sponsored by the
Bank. In addition, during any period of Executive's Disability,
Executive and his dependents shall, to the greatest extent
possible, continue to be covered under all benefit plans
(including, without limitation, non-taxable medical, dental and
life insurance plans) of the Bank, in which Executive
participated prior to his Disability on the same terms as if
Executive were actively employed by the Bank.
10.4 Termination for Cause.
10.4.1 The Board may, by written notice to the Executive in the form and
manner specified in this paragraph, immediately terminate his
employment at any time, for "Cause". The Executive shall have no right
to receive compensation or other benefits for any period after
termination for Cause. Termination for "Cause" shall include
termination because of the Executive's:
(1) Personal dishonesty;
(2) Incompetence;
(3) Willful misconduct;
(4) Breach of fiduciary duty involving personal profit; Intentional
failure to perform duties under this Agreement;
(5) Willful violation of any law, rule or regulation (other than
traffic violations or similar offenses), or final
cease-and-desist order,
(6) Material breach by Executive of any provision of this Agreement.
10.4.2 Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for Cause by the Company and the Bank unless there
shall have been delivered to Executive a copy of a resolution duly
adopted by the affirmative vote of three-fourths (3/4) of the entire
membership of the Board at a meeting of such Board called and held for
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the purpose (after reasonable notice to Executive and an opportunity
for Executive to be heard before the Board with counsel), of finding
that in the good faith opinion of the Board, Executive was guilty of
the conduct described above and specifying the particulars thereof.
10.5 Voluntary Termination by Executive. In addition to his other rights to
terminate under this Agreement, Executive may voluntarily terminate
employment during the term of this Agreement upon at least sixty (60) days
prior written notice to the Board, in which case Executive shall receive
only his compensation, vested rights and employee benefits up to the date
of his termination.
10.6 Without Cause or With Good Reason.
10.6.1 In addition to termination pursuant to Sections 10.1 through 10.5
the Board, may, by written notice to Executive, immediately terminate
his employment at any time for a reason other than Cause (a
termination "Without Cause") and Executive may, by written notice to
the Board, immediately terminate this Agreement at any time within
ninety (90) days following an event constituting "Good Reason" as
defined below (a termination "With Good Reason").
10.6.2 Subject to Section 11 of this Agreement, in the event of termination
under this Section 10.6, Executive shall be entitled to receive a
payment equal to the base salary (determined by reference to the
Executive base salary on the termination date) and bonuses (determined
by reference to the Executive's average bonus over the three (3) years
preceding his termination date or such lesser period as he was
employed by the Bank) that would otherwise have been payable over the
remaining term of the Agreement. Such amount shall be paid in a single
cash lump sum distribution within ten (10) calendar days after such
termination. Also, in such event, Executive shall, for the remaining
term of the Agreement, be paid in a single cash lump sum distribution
within ten (10) calendar days, the present value of the cash
equivalent of the amount of benefits the Executive would have received
if employed for the remaining term of the Agreement under any
retirement programs (whether tax-qualified or nonqualified) in which
Executive participated prior to his termination (with the amount of
the benefits determined by reference to the benefits received by
Executive, or accrued on his behalf, under such programs during the
twelve (12) months preceding his termination), and continue to
participate in any benefit plans of the Company and the Bank that
provide non-taxable health (including medical and dental), life, or
similar coverage upon terms no less favorable than the most favorable
terms provided to senior executives of the Company and the Bank during
such period. In the event that the Company and the Bank are unable to
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provide such coverage by reason of Executive no longer being an
employee, the Company and the Bank shall provide Executive with a cash
lump sum benefit of the value of such coverage, payable within ten
(10) calendar days following the Executive's termination.
10.6.3 "Good Reason" shall mean termination by the Executive based on the
following:
(i) (1) a material diminution in the Executive's base salary as
in effect as of the Effective Date or as the same may be increased
from time to time thereafter, or (2) a material diminution in the
Executive's authority, duties or responsibilities as in effect
immediately prior to the Change in Control
(ii) any material breach of this Agreement by the Bank, or
(iii) any material change in the geographic location at which the
Executive must perform his services for the Bank;
provided, however, that prior to any termination of employment
for Good Reason, the Executive must first provide written notice
to the Bank within ninety (90) days of the initial existence of
the condition, describing the existence of such condition, and
the Bank shall thereafter have the right to remedy the condition
within thirty (30) days of the date the Bank received the written
notice from the Executive. If the Bank remedies the condition
within such thirty (30) day cure period, then no Good Reason
shall be deemed to exist with respect to such condition. If the
Bank does not remedy the condition within such thirty (30) day
cure period, then the Executive may deliver a notice of
Termination for Good Reason at any time within sixty (60) days
following the expiration of such cure period.
10.6.4 Notwithstanding the foregoing, termination Without Cause and
termination With Good Reason shall be construed to require a
"Separation from Service" in accordance with Code Section 409A and the
Treasury Regulations promulgated thereunder, such that the Bank and
Executive reasonably anticipate that the level of bona fide services
Executive would perform after termination would permanently decrease
to a level that is less than 50% of the average level of bona fide
services performed (whether as an employee or an independent
contractor) over the immediately preceding 36-month period.
11. Termination in Connection with a Change in Control.
11.1 For purposes of this Agreement, a "Change in Control" shall be deemed
to occur on the earliest of:
11.1.1 such times as any "person" (as the term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended ("Exchange Act")) is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
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indirectly, of voting securities of the Bank representing 25% or
more of the Bank's outstanding voting securities or the right to
acquire such securities, except for any voting securities
purchased by any employee benefit plan of the Bank;
11.1.2 such time as individuals who constitute the Board of Directors
on the date hereof (the "Incumbent Board") cease for any reason
to constitute at least a majority thereof provided that any
person becoming a director subsequent to the date hereof whose
election was approved by a vote of at least three-quarters of the
directors constituting the Incumbent Board (or members who were
nominated by the Incumbent Board), or whose nomination for
election by the Bank's stockholders was approved by a Nominating
Committee solely composed of members which are Incumbent Board
members (or members nominated by the Incumbent Board), shall be,
for purposes of this clause (ii), considered as though he or she
were a member of the Incumbent Board;
11.1.3 such time as a reorganization, merger, consolidation, or
similar transaction occurs or is effectuated as a result of which
60% of shares of the common stock of the resulting entity are
owned by persons who were not stockholders of the Bank
immediately prior to the consummation of the transaction;
11.1.4 such time as substantially all of the assets of the Bank are
sold or otherwise transferred to another corporation or other
entity that is not controlled by the Bank.
Notwithstanding anything in this Agreement to the contrary, in no
event shall (i) the conversion of the Company and the Bank from
the mutual holding company form of organization to the full stock
form of organization (including without limitation, through the
formation of a stockholding company as the part of the Bank),
(ii) the formation of a mid-tier holding company controlled by
the Company as the parent holding company of the Bank, or (iii)
the consummation of an additional offering by the Bank (or any
mid-tier holding company controlled by the Company) in a
transaction which results in the Company continuing to qualify as
a mutual holding company, constitute a "Change in Control" for
purposes of this Agreement.
11.2 Termination. If within the period ending two years after a Change in
Control, (i) the Company or the Bank shall terminate the Executive's
employment Without Cause, or (ii) Executive voluntarily terminates his
employment With Good Reason, the Company and the Bank shall, within
ten (10) calendar days of the termination of Executive's employment,
make a single lump-sum cash payment to him equal to 2.99 times the
Executive's average Annual Compensation (as defined herein) over the
five (5) most recently completed calendar years ending with the year
immediately preceding the effective date of the Change in Control (or
such lesser number of completed calendar years as Executive has been
employed by the Company and the Bank). In determining Executive's
average Annual Compensation, Annual Compensation shall include base
salary and any other taxable income, including but not limited to
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amounts related to the granting, vesting or exercise of restricted
stock or stock option awards, commissions, bonuses (whether paid or
accrued for the applicable period), as well as, retirement benefits,
director or committee fees and fringe benefits paid or to be paid to
Executive or paid for Executive's benefit during any such year, profit
sharing, employee stock ownership plan and other retirement
contributions or benefits, including to any tax-qualified plan or
arrangement (whether or not taxable) made or accrued (in behalf of
Executive of such year). The cash payment made under this Section 11.2
shall be made in lieu of any payment also required under Section 10.6
of this Agreement because of a termination in such period. Executive's
rights under Section 10.6 are not otherwise affected by this Section
11. Also, in such event, the Executive shall, for a thirty-six (36)
month period following his termination of employment, be paid in a
single cash lump sum distribution within ten (10) calendar days, the
present value of the cash equivalent of the amount of benefits the
executive would have received if employed for the thirty-six (36)
months under any retirement programs (whether tax-qualified or
nonqualified) in which Executive participated prior to his termination
(with the amount of the benefits determined by reference to the
benefits received by Executive or accrued on his behalf under such
programs during the twelve (12) months preceding the Change in
Control), and continue to participate in any benefit plans of the
Company and the Bank that provide non-taxable health (including
medical and dental), life, or similar coverage upon terms no less
favorable than the most favorable terms provided to senior executives
during such period. In the event that the Company and the Bank are
unable to provide such coverage by reason of Executive no longer being
an employee, the Company and the Bank shall provide a cash lump sum
benefit of the value of such coverage, payable within ten (10)
calendar days following the Executive's termination.
11.3 The provisions of Sections 11 and Sections 13 through 24, including
the defined terms used in such sections, shall continue in effect
until the later of the expiration of this Agreement, or two years
following a Change in Control.
12. Indemnification and Liability Insurance.
12.1 Indemnification. The Company and the Bank agree to indemnify Executive
(and his heirs, executors and administrators), and to advance expenses
related thereto, to the fullest extent permitted under applicable law
and regulations, against any and 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 Executive of the Company, the Bank or
any of their subsidiaries (whether or not he continues to be a
director or Executive at the time of incurring any such expenses or
liabilities). Such expenses and liabilities include, but are not
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limited to, judgments, court costs, and attorneys' fees and the cost
of reasonable settlements (such settlements to be approved by the
Board) if such action is brought against Executive in his capacity as
an Executive or director of the Company and the Bank or any of their
subsidiaries. Indemnification for expense shall not extend to matters
for which Executive has been terminated for Cause. Nothing contained
herein shall be deemed to provide indemnification prohibited by
applicable law or regulation. Notwithstanding anything herein to the
contrary, the obligations of this Section 12 shall survive the term of
this Agreement by a period of six (6) years.
12.2 Insurance. During the period in which indemnification of Executive is
required under this Section, the Company and the Bank still provide
Executive (and his heirs, executors and administrators) with coverage
under a directors' and Executives' liability policy at the expense of
the Company and the Bank, at least equivalent to such coverage
provided to directors and senior executives of the Company and the
Bank.
13. Reimbursement of Executive's Expense to Enforce this Agreement. The Company
and the Bank shall reimburse the Executive for all out-of-pocket expenses,
including, without limitation, reasonable attorneys' fees incurred by the
Executive in connection with successful enforcement by the Executive of the
obligations of the Company and the Bank to the Executive under this
Agreement. Successful enforcement shall mean the grant of an award of money
or the requirement that the Company and the Bank take some action specified
by this Agreement (i) as a result of court order; or (ii) otherwise by the
Company and the Bank following an initial failure of the Company and the
Bank to pay such money or take such action promptly after written demand
therefor from Executive stating the reason that such money or action was
due under this Agreement at or prior to the time of such demand. In the
event Executive is reimbursed for any expenses or fees related to this
Section 13, such reimbursement shall occur as soon as practicable but no
later than two and one-half months after the dispute is settled or resolved
in Executive's favor.
14. Limitation of Benefits under Certain Circumstances. If the payments and
benefits pursuant to Section 11 of this Agreement, either alone or together
with other payments and benefits which the Executive has the right to
receive from the Company and the Bank, would constitute a "parachute
payment" under Code Section 280G , the payments and benefits pursuant to
Section 11 shall be reduced by the amount, if any, which is the minimum
necessary to result in no portion of the payments and benefits under
Section 11 being non-deductible to the Company and the Bank pursuant to
Code Section 280G and subject to the excise tax imposed under Code Section
4999. The determination of any reduction in the payments and benefits to be
made pursuant to Section 11 shall be based upon the opinion of the Company
and the Bank's independent public accountants and paid for by the Company
and the Bank. In the event that the Company, the Bank and/or the Executive
do not agree with the opinion of such counsel, (i) the Company and the Bank
shall pay to Executive the maximum amount of payments and benefits pursuant
to Section 11, as selected by Executive, which opinion indicates there is a
high probability of such payments and benefits being non-deductible to the
Company and the Bank and subject to the imposition of the excise tax
imposed under Code Section 4999 and (ii) the Company and the Bank may
request, and the Executive shall have the right to demand that they
request, a ruling from the IRS as to whether the disputed payments and
benefits pursuant to Section 11 have such consequences. Any such request
for a ruling from the IRS shall be promptly prepared and filed by the
Company and the Bank, but in no event later than thirty (30) days from the
date of the opinion of counsel referred to above, and shall be subject to
Executive's approval prior to filing, which shall not be unreasonably
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withheld. The Company, the Bank and Executive agree to be bound by any
ruling received from the IRS and to make appropriate payments to each other
to reflect any such pilings, together with interest at the applicable
federal rate provided for in Code Section 7872(f)(2). Nothing contained
herein shall result in a reduction of any payments or benefits to which
Executive may be entitled upon termination of employment other than
pursuant to Section 11 hereof, or a reduction in the payments and benefits
specified in Section 11 below zero.
15. Injunctive Relief. If there is a breach or threatened breach of Section 9
of this Agreement and the parties agree that there is no adequate remedy at
law for such breach, the Company and the Bank shall be entitled to
injunctive relief restraining Executive from such breach or threatened
breach, but such relief shall not be the exclusive remedy hereunder for
such breach. The parties hereto likewise agree that Executive, without
limitation, shall be entitled to injunctive relief to enforce the
obligations of the Company and the Bank under this Agreement
16. Successors and Assigns.
16.1 This Agreement shall inure to the benefit of and be binding upon any
corporate or other successor of the Company and the Bank which shall
acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the
Company and the Bank.
16.2 Since the Company and the Bank are contracting for the unique and
personal skills of Executive, Executive shall be precluded from
assigning or delegating his rights or duties hereunder without first
obtaining the written consent of the Company and the Bank.
17. No Mitigation. Executive shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment or
otherwise, and no such payment shall be offset or reduced by the amount of
any compensation or benefits provided to Executive in any subsequent
employment.
18. Notices. All notices, requests, demands and other communications in
connection with this Agreement shall be made in writing and shall be deemed
to have been given when delivered by hand or 48 hours after mailing at any
general or branch United States Post Office, by registered or certified
mail, postage prepaid, addressed to the Company and/or the Bank at their
principal business offices and to Executive at his home address as
maintained in the records of the Company and the Bank.
19. No Plan Created by this Agreement. Executive, the Company and the Bank
expressly declare and agree that this Agreement was negotiated among them
and that no provision or provisions of this Agreement are intended to, or
shall be deemed to, create any plan for purposes of the Employee Retirement
Income Security Act or any other law or regulation, and each party
expressly waives any right to assert the contrary. Any assertion in any
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judicial or administrative filing, heaving, or process that such a plan was
so created by this Agreement shall be deemed a material breach of this
Agreement by the party making such an assertion.
20. Amendments. No amendments or additions to this Agreement shall be binding
unless made in writing and signed by all of the parties, except as herein
otherwise specifically provided.
21. Applicable Law. Except to the extent preempted by Federal law, the laws of
the State of Ohio shall govern this Agreement in all respects, whether as
to its validity, construction, capacity, performance or otherwise.
22. Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect
the validity or enforceability of the other provisions hereof.
23. Headings. Headings contained herein are for convenience of reference only.
24. Entire Agreement. This Agreement, together with any understanding or
modifications thereof as agreed to in writing by the parties, shall
constitute the entire agreement among the parties hereto with respect to
the subject matter hereof, other than written agreements with respect to
specific plans, programs or arrangements described in Sections 5 and 6.
25. Required Provisions. In the event any of the provisions of this Section 25
are in conflict with the terms of this Agreement, this Section 25 shall
prevail.
25.1 The Bank may terminate 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 have no right to
receive compensation or other benefits for any period after
termination for Cause as defined in Section 10 hereinabove.
25.2 If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice
served under Section 8(e)(3) or 8(g)(1) of the Federal Deposit
Insurance Act, 12 U.S.C. ss.1818(e)(3) or (g)(l); 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
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.
25.3 If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(c)(4) or 8(g)(1) of the Federal Deposit Insurance Act,
12 U.S.C. ss.1818(e)(4) or(g)(1), all obligations of the Bank under
12
this contract shall terminate as of the effective date of the order,
but vested rights of the contracting parties shall not be affected.
25.4 If the Bank is in default (as defined m Section 3(x)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. ss.1813(x)(1)) all obligations under
this contract shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting
parties.
25.5 All obligations 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 of the
OTS (or his or her designee) at the time the FDIC enters into an
agreement to provide assistance to or on behalf of the Bank under the
authority contained in Section 13(c) of the Federal Deposit Insurance
Act, 12 U.S.C. ss.1823(c); or (ii) by the Director of the OTS (or his
or her designee) at the time the Director of the OTS (or his or her
designee) approves a supervisory merger to resolve problems related to
the operations of the Bank or when the Bank is determined by the
Director of the OTS 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.
25.6 Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12
U.S.C. ss.1828(k) and 12 C.F.R. Section 545.121 and any rules and
regulations promulgated thereunder.
13
Signed as of September 16, 2008.
CHEVIOT SAVINGS BANK
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------ -----------------------------
Director Director
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
