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Exhibit 10.8
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of this 16th day of March, 2000 (but effective as of August 1, 1999), by and
between Charter One Financial, Inc. (the "Company") and Xxxxxxx Xxxx Xxxx (the
"Employee").
WHEREAS, the Employee serves as the President and Chief Executive
Officer and Chairman of the board of directors of the Company and of the
Company's wholly-owned subsidiary, Charter One Bank, F.S.B. (the "Bank");
WHEREAS, the Employee has an existing employment agreement entered into
as of October 31, 1995 and amended as of July 29, 1998 (the "Prior Employment
Agreement") which he is willing to terminate in consideration of this Agreement
becoming effective;
WHEREAS, the board of directors of the Company (the "Board of
Directors") believes it is in the best interests of the Company and its
subsidiaries for the Company to enter into this Agreement with the Employee in
order to assure continuity of management of the Company and its subsidiaries;
and
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Employee;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. DEFINITIONS.
(a) The term "Change in Control" means (1) an acquisition of
securities of the Company or the Bank that is determined by the Board of
Directors to constitute an acquisition of control of the Company or the Bank
within the meaning of the Change in Bank Control Act, 12 U.S.C. Section
1817(j), and applicable regulations thereunder; (2) an event that would be
required to be reported in response to Item 1 of the current report on Form 8-K,
as in effect on the Effective Date, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); (3) any person (as the
term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) directly or
indirectly of securities of the Company or the Bank representing 25% or more of
the combined voting power of the Company's or the Bank's outstanding securities;
(4) individuals who are members of the Board of Directors on the Effective Date
(the "Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the
Effective Date whose election was approved by a vote of at least three-quarters
of the directors comprising the Incumbent Board, or whose nomination for
election by the
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Company's stockholders was approved by the nominating committee serving under an
Incumbent Board, shall be considered a member of the Incumbent Board; or (5)
approval by the Company's stockholders of a plan of reorganization, merger or
consolidation of the Company, sale of all or substantially all of the assets of
the Company, a similar transaction in which the Company is not the resulting
entity, or a transaction at the completion of which the former stockholders of
the acquired corporation become the holders of more than 40% of the outstanding
common stock of the Company and the Company is the resulting entity of such
transaction; provided that the term "change in control" shall not include an
acquisition of securities by an employee benefit plan of the Bank or the
Company. In the application of regulations under the Change in Bank Control Act,
determinations to be made by the applicable federal banking regulator shall be
made by the Board of Directors.
(b) The term "Consolidated Subsidiaries" means any subsidiary
or subsidiaries of the Company (or its successors) that are part of the
consolidated group of the Company (or its successors) for federal income tax
reporting.
(c) The term "Date of Termination" means the date upon which
the Employee's employment with the Company or the Bank or both ceases, as
specified in a notice of termination pursuant to Section 8 of this Agreement.
(d) The term "Effective Date" means August 1, 1999.
(e) The term "Involuntarily Termination" means the termination
of the employment of Employee (i) by either the Company or the Bank or both
without his express written consent; or (ii) by the Employee by reason of a
material diminution of or interference with his duties, responsibilities or
benefits, including (without limitation) any of the following actions unless
consented to in writing by the Employee: (1) a requirement that the Employee be
based at any place other than Cleveland, Ohio, or within 50 miles thereof,
except for reasonable travel on Company or Bank business; (2) a material
demotion of the Employee; (3) a material reduction in the number or seniority of
personnel reporting to the Employee or a material reduction in the frequency
with which, or in the nature of the matters with respect to which such personnel
are to report to the Employee, other than as part of a Bank- or Company-wide
reduction in staff; (4) a reduction in the Employee's salary or a material
adverse change in the Employee's perquisites, benefits, contingent benefits or
vacation, other than prior to a Change in Control as part of an overall program
applied uniformly and with equitable effect to all members of the senior
management of the Bank or the Company; (5) a material permanent increase in the
required hours of work or the workload of the Employee; or (6) the failure of
the Board of Directors (or a board of directors of a successor of the Company)
to elect him as Chairman, President or Chief Executive Officer of the Company
(or a successor of the Company) or any action by the Board of Directors (or a
board of directors of a successor of the Company) removing him from any of such
offices, or the failure of the board of directors of the Bank (or any successor
of the Bank) to elect him as Chairman, President or Chief Executive Officer of
the Bank (or any successor of the Bank) or any action by such board (or board of
a successor of the
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Bank) removing him from any of such offices. The term "Involuntary Termination"
does not include Termination for Cause or termination of employment due to death
or permanent disability pursuant to Section 7(g) of this Agreement, or
suspension or temporary or permanent prohibition from participation in the
conduct of the affairs of a depository institution under Section 8 of the
Federal Deposit Insurance Act.
(f) The terms "Termination for Cause" and "Terminated for
Cause" mean termination of the employment of the Employee with either the
Company or the Bank, as the case may be, because of the Employee's dishonesty,
incompetence, willful misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (excluding violations which do not have an adverse
affect on the Company or the Bank) or final cease-and-desist order, or (except
as provided below) material breach of any provision of this Agreement. No act or
failure to act by the Employee shall be considered willful unless the Employee
acted or failed to act with an absence of good faith and without a reasonable
belief that his action or failure to act was in the best interest of the
Company. The Employee shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to the Employee a copy of a
resolution, duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board of Directors at a meeting of the Board duly
called and held for such purpose (after reasonable notice to the Employee and an
opportunity for the Employee, together with the Employee's counsel, to be heard
before the Board), stating that in the good faith opinion of the Board of
Directors the Employee has engaged in conduct described in the preceding
sentence and specifying the particulars thereof in detail.
2. TERM; TERMINATION OF PRIOR EMPLOYMENT AGREEMENT. The term of this
Agreement shall be a period of five years commencing on the Effective Date,
subject to earlier termination as provided herein. On each anniversary of this
Agreement the term shall be extended for a period of one year in addition to the
then-remaining term, provided that the Company has not given notice to the
Employee in writing at least 90 days prior to such anniversary that the term of
this Agreement shall not be extended further, and provided further that the
Employee has not received an unsatisfactory performance review by either the
Board of Directors or the board of directors of the Bank. The Employee's Prior
Employment Agreement shall terminate immediately prior to the Effective Date
subject to reinstatement as provided in Section 16 below.
3. EMPLOYMENT. The Employee is employed as the President and Chief
Executive Officer of the Company and as the President and Chief Executive
Officer of the Bank. As such, the Employee shall render administrative and
management services as are customarily performed by persons situated in similar
executive capacities, and shall have such other powers and duties as the Board
of Directors or the board of directors of the Bank may prescribe from time to
time. The Employee shall also render services to any subsidiary or subsidiaries
of the Company or the Bank as requested by the Company or the Bank from time to
time consistent with his executive position. The Employee shall devote his best
efforts and reasonable time and attention to the business and affairs of the
Company and the Bank to the extent necessary to discharge his
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responsibilities hereunder. The Employee may (i) serve on corporate or
charitable boards or committees, and (ii) manage personal investments, so long
as such activities do not interfere materially with performance of his
responsibilities hereunder.
4. CASH COMPENSATION.
(a) SALARY. The Company agrees to pay the Employee during the
term of this Agreement a base salary (the "Company Salary") the annualized
amount of which shall be not less than the annualized aggregate amount of the
Employee's base salary from the Company and any Consolidated Subsidiaries in
effect at the Effective Date; provided that any amounts of salary actually paid
to the Employee by any Consolidated Subsidiaries shall reduce the amount to be
paid by the Company to the Employee. The Company Salary shall be paid no less
frequently than monthly and shall be subject to customary tax withholding. The
amount of the Employee's Company Salary shall be increased (but shall not be
decreased other than prior to a Change in Control as part of an overall program
applied uniformly and with equitable effect to all members of senior management
of the Company or the Bank) from time to time in accordance with the amounts of
salary approved by the Board of Directors or the board of directors of any of
the Consolidated Subsidiaries after the Effective Date.
(b) BONUSES. The Employee shall be entitled to participate in
an equitable manner with all other executive officers of the Company and the
Bank in such performance-based and discretionary bonuses, if any, as are
authorized and declared by the Board of Directors for executive officers of the
Company and by the board of directors of the Bank for executive officers of the
Bank.
(c) EXPENSES. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in performing
services under this Agreement in accordance with the policies and procedures
applicable to the executive officers of the Company and the Bank, provided that
the Employee accounts for such expenses as required under such policies and
procedures.
(d) DEFERRAL OF NON-DEDUCTIBLE COMPENSATION. In the event that
the Employee's aggregate compensation (including compensatory benefits which are
deemed remuneration for purposes of Section 162(m) of the Internal Revenue Code
of 1986 as amended (the "Code")) from the Company and the Consolidated
Subsidiaries for any calendar year exceeds the greater of (i) $1,000,000 or (ii)
the maximum amount of compensation deductible by the Company or any of the
Consolidated Subsidiaries in any calendar year under Section 162(m) of the Code
(the "maximum allowable amount"), then any such amount in excess of the maximum
allowable amount shall be mandatorily deferred with interest thereon at 8% per
annum, compounded annually, to a calendar year such that the amount to be paid
to the Employee in such calendar year, including deferred amounts and interest
thereon, does not exceed the maximum allowable amount. Subject to the foregoing,
deferred amounts including interest thereon shall be payable at the earliest
time permissible. All unpaid deferred amounts shall be paid to the Employee not
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later than his Date of Termination unless his Date of Termination is on a
December 31st, in which case, the unpaid deferred amounts shall be paid to the
Employee on the first business day of the next succeeding calendar year. The
provisions of this subsection shall survive any termination of the Employee's
employment and any termination of this Agreement.
5. BENEFITS.
(a) PARTICIPATION IN BENEFIT PLANS. The Employee shall be
entitled to participate, to the same extent as executive officers of the Company
and the Bank generally, in all plans of the Company and the Bank relating to
pension, retirement, thrift, profit-sharing, savings, group or other life
insurance, hospitalization, medical and dental coverage, travel and accident
insurance, education, cash bonuses, and other retirement or employee benefits or
combinations thereof. In addition, the Employee shall be entitled to be
considered for benefits under all of the stock and stock option related plans in
which the Company's or the Bank's executive officers are eligible or become
eligible to participate.
(b) FRINGE BENEFITS. The Employee shall be eligible to
participate in, and receive benefits under, any other fringe benefit plans or
perquisites which are or may become generally available to the Company's or the
Bank's executive officers, including but not limited to supplemental retirement,
incentive compensation, supplemental medical or life insurance plans, company
cars, club dues, physical examinations, financial planning and tax preparation
services.
6. VACATIONS; LEAVE. The Employee shall be entitled to annual paid
vacation in accordance with the policies established by the Board of Directors
and the board of directors of the Bank for executive officers, in no event less
than four weeks per year, and to voluntary leaves of absence, with or without
pay, from time to time at such times and upon such conditions as the Board of
Directors may determine in its discretion.
7. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. If the Employee experiences an
Involuntary Termination, such termination of employment shall be subject to the
Company's obligations under this Section 7. In the event of the Involuntary
Termination of the Employee, if the Employee has offered to continue to provide
the services contemplated by and on the terms provided in this Agreement and
such offer has been declined, subject to Section 7(b) of this Agreement, the
Company shall, during the lesser period of the remaining term of this Agreement
or three years following the Date of Termination (the "Liquidated Damage
Period"), as liquidated damages (i) pay to the Employee monthly one-twelfth of
the Company Salary at the annual rate in effect immediately prior to the Date of
Termination and one-twelfth of the average annual amount of cash bonus and cash
incentive compensation of the Employee, based on the average amounts of such
compensation earned by the Employee from the Company and the Bank for the two
full fiscal years preceding the Date of Termination; and (ii) maintain
substantially the same group life insurance, hospitalization, medical, dental,
prescription drug and other health
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benefits, and long-term disability insurance (if any) for the benefit of the
Employee and his dependents and beneficiaries who would have been eligible for
such benefits if the Employee had not suffered Involuntary Termination and on
terms substantially as favorable to the Employee including amounts of coverage
and deductibles and other costs to him in effect immediately prior to such
Involuntary Termination (the "Employee's Health Coverage").
(b) REDUCTION OF THE COMPANY'S OBLIGATIONS UNDER SECTION 7(a).
(1) In the event that the Employee becomes entitled
to liquidated damages pursuant to Section 7(a), (i) the Company's obligation
thereunder with respect to cash damages shall be reduced by the amount of the
Employee's cash income, if any, earned from providing personal services during
the Liquidated Damage Period; and (ii) the Company's obligation to maintain
Health Coverage shall be reduced to the extent, if any, that the Employee
receives such benefits, on no less favorable terms, from another employer during
the Liquidated Damage Period. For purposes of this Section 7(b), the term "cash
income" shall include amounts of salary, wages, bonuses, incentive compensation
and fees paid to the Employee in cash but shall not include shares of stock,
stock options, stock appreciation rights or other earned income not paid to the
Employee in cash. To the extent the provisions of this Section 7(b)(1) are
applicable and an overpayment has been made to the Employee as of the expiration
of Liquidated Damage Period, the Employee shall reimburse the Company in an
amount equal to the after tax benefit realized by the Employee from such
overpayment (i.e. amount realized net of all federal, state, local, employment
and medicare taxes). In making the reimbursement calculation it shall be
presumed that the Employee is subject to the highest marginal federal and state
income tax rates.
(2) The Employee agrees that in the event he becomes
entitled to liquidated damages pursuant to Section 7(a), throughout the
Liquidated Damage Period, he shall promptly inform the Company of the nature and
amounts of cash income and the type of health benefits and coverage which he
earns or receives from providing personal services, and shall provide such
documentation of such cash income and such health benefits and coverage as the
Company may request. In the event of changes to such cash income or such health
benefits or coverage from time to time, the Employee shall inform the Company of
such changes, in each case within five days after the change occurs, and shall
provide such documentation concerning the change as the Company may request.
(c) CHANGE IN CONTROL; CUT BACK; AND TAX GROSS UP. In the
event that the Employee experiences an Involuntary Termination within the 12
months preceding, at the time of, or within 24 months following a Change in
Control, in addition to the Company's obligations under Section 7(a) of this
Agreement, the Company shall pay to the Employee in cash, within 30 days after
the later of the date of such Change in Control or the Date of Termination, an
amount equal to 299% of the Employee's "base amount" as determined under Section
280G of the Code, less the acceleration and lapse value of options granted to
the Employee by the Company prior to January 1, 1999 that are taken into account
in the determination of "parachute payments" under 280G(b)(2) of the Code by
virtue of vesting acceleration or deemed vesting acceleration in
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connection with such Change in Control. Notwithstanding the foregoing, for
purposes of this paragraph the Employee shall not be deemed to have experienced
an Involuntary Termination if he is requested to continue his employment under
this Agreement for a period of up to 6 months after a Change in Control and he
elects to terminate his employment at the time of or within 6 months after a
Change in Control solely by reason of an event described in Section 1(e)(ii)(6)
of this Agreement, in which case he shall not be entitled to the Change in
Control payment set forth in this paragraph. In the event the Employee is
requested in connection with or at the time of a Change in Control to continue
employment for an interim period and he shall die while employed during such
interim period, then his estate, or such person as the Employee may have
previously designated in writing, shall be entitled to the full Change in
Control payment described in this paragraph in lieu of (and not in addition to)
the payment of the Company Salary for 180 days pursuant to Section 7(f)(i)(x)
below.
In the event that any payments, distributions or benefits
provided or to be provided to the Employee, whether pursuant to this Agreement
or from other plans or arrangements maintained by the Company or any of the
Consolidated Subsidiaries (excluding the Adjusted Gross Up Payment and
Additional Gross Up Payment (as such terms are hereinafter defined))
(collectively, the "Payment") would be subject to excise tax under Section 4999
of the Code (such excise tax and any penalties and interest collectively, the
"Penalty Tax"), the Company shall pay to the Employee in cash an additional
amount equal to the Adjusted Gross Up Payment. The "Adjusted Gross Up Payment"
shall be an amount such that after payment by the Employee of all federal,
state, local, employment and medicare taxes thereon (and any penalties and
interest with respect thereto), the Employee retains on an after tax basis a
portion of such amount equal to the aggregate of 80% of the Penalty Tax imposed
upon the Payment and 100% of the Penalty Tax imposed upon the Adjusted Gross Up
Payment.
For purposes of determining the amount of the Adjusted Gross
Up Payment, the value of any non-cash benefits and deferred payments or benefits
subject to the Penalty Tax shall be determined by the Company's independent
auditors in accordance with the principles of Section 280G(d)(3) and (4) of the
Code. In the event that, after the Adjusted Gross Up Payment is made, the
Employee becomes entitled to receive a refund of any portion of the Penalty Tax,
the Employee shall promptly pay to the Company 80% of such Penalty Tax refund
attributable to the Payment (together with 80% of any interest paid or credited
thereon by the Internal Revenue Service) and 100% of the Penalty Tax refund
attributable to the Adjusted Gross Up Payment (together with 100% of any
interest paid or credited thereon by the Internal Revenue Service).
As a result of the uncertainty regarding the application of
Section 4999 of the Code, it is possible that the Internal Revenue Service may
assert that the Penalty Tax due is in excess of the amount of the anticipated
Penalty Tax used in calculating the Adjusted Gross Up Payment (such excess
amount is hereafter referred to as the "Underpayment"). In such event, the
Company shall pay to the Employee, in immediately available funds, at the time
the Underpayment is assessed or otherwise determined, an additional amount equal
to the Additional Gross Up Payment. The "Additional Gross Up Payment" shall be
an amount such that after
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payment by the Employee of all federal, state, local, employment and medicare
taxes thereon (and any penalties and interest with respect thereto), the
Employee retains on an after tax basis a portion of such amount equal to the
aggregate of (i) 80% of the portion of the Underpayment attributable to the
Payment, (ii) 100% of the portion of the Underpayment attributable to the
Adjusted Gross Up Payment and (iii) 100% of the Penalty Tax imposed on the
Additional Gross Up Payment.
(d) TERMINATION FOR CAUSE. In the event of Termination for
Cause, the Company shall have no further obligation to the Employee under this
Agreement after the Date of Termination other than deferred amounts under
Section 4(d).
(e) VOLUNTARY TERMINATION.
(1) The Employee may terminate his employment
voluntarily at any time by a notice pursuant to Section 8 of this Agreement. In
the event that the Employee voluntarily terminates his employment other than by
reason of any of the actions that constitute Involuntary Termination under
Section 1(e)(ii) of this Agreement ("Voluntary Termination"), the Company shall
be obligated to the Employee for the amount of his Company Salary and benefits
only through the Date of Termination, at the time such payments are due, and the
Company shall have no further obligation to the Employee under this Agreement
except as provided in Sections 4(d) and 7(e)(2).
(2) The Employee hereby agrees that, in the event of
Voluntary Termination, he shall not, for a period of one year thereafter (the
"Covenant Period"), serve as a director of, or provide personal services as an
officer, employee, independent contractor or employee of an independent
contractor to, any institution insured by the Federal Deposit Insurance
Corporation or the National Credit Union Administration which has its home
office or principal corporate office in the Metropolitan Statistical Area of any
of Cleveland, Ohio, Detroit, Michigan, Rochester, New York, Albany, New York, or
Chicago, Illinois or any holding company or other affiliate of such an
institution. During the Covenant Period, the Company shall pay to the Employee
in equal monthly installments fifty percent of his Company Salary.
(f) DEATH. In the event of the death of the Employee while
employed under this Agreement and prior to any termination of employment, the
Company shall pay to the Employee's estate, or such person as the Employee may
have previously designated in writing, (i) the Company Salary which was not
previously paid to the Employee and, either (x) the Company Salary which he
would have earned if he had continued to be employed under this Agreement
through the 180th day after the date on which the Employee died or (y) the
Change in Control payment set forth in the first paragraph of Section 7(c),
whichever is applicable; (ii) the amounts of any benefits or awards which,
pursuant to the terms of any applicable plan or plans, were earned with respect
to the fiscal year in which the Employee died and which the Employee would have
been entitled to receive if he had continued to be employed, and the amount of
any bonus or incentive compensation for such fiscal year which the Employee
would have been
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entitled to receive if he had continued to be employed, pro-rated in
accordance with the portion of the fiscal year prior to his death, provided that
such amounts shall be payable when and as ordinarily payable under the
applicable plans; and (iii) the unpaid deferred amounts under Section 4(d).
(g) PERMANENT DISABILITY. For purposes of this Agreement, the
term "permanently disabled" means that the Employee has a mental or physical
infirmity which permanently impairs his ability to perform substantially his
duties and responsibilities under this Agreement and which results in (i)
eligibility of the Employee under the long-term disability plan of the Company
or the Bank, if any; or (ii) inability of the Employee to perform substantially
his duties and responsibilities under this Agreement for a period of 180
consecutive days. Either the Company or the Bank or both may terminate the
employment of the Employee after having established that the Employee is
permanently disabled.
(h) REGULATORY ACTION. Notwithstanding any other provisions of
this Agreement:
(1) If the Employee is removed and/or permanently
prohibited from participating in the conduct of the affairs of a depository
institution by an order issued under Section 8(e)(4) or (g)(1) of the Federal
Deposit Insurance Act ("FDIA"), 12 U.S.C. Section 1818(e)(4) and (g)(1), all
obligations of the Company under this Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall
not be affected;.
(2) If the Bank is in default (as defined in Section
3(x)(1) of the FDIA), all obligations of the Company under this Agreement shall
terminate as of the date of default, but this provision shall not affect any
vested rights of the contracting parties; and
(3) All obligations of the Company under this
Agreement shall be terminated, except to the extent determined that continuation
of this Agreement is necessary for the continued operation of the Bank: (i) by
the Director of the Office of Thrift Supervision (the "Director") or his or her
designee, at the time the Federal Deposit Insurance Corporation or the
Resolution Trust Corporation enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) of the
FDIA; or (ii) by the Director or his or her designee, at the time the Director
or his or her designee approves a supervisory merger to resolve problems related
to operation of the Bank or when the Bank is determined by the Director to be in
an unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by any such action.
8. NOTICE OF TERMINATION. In the event that the Company or the Bank, or
both, desire to terminate the employment of the Employee during the term of this
Agreement, the Company or the Bank, or both, shall deliver to the Employee a
written notice of termination, stating whether such termination constitutes
Termination for Cause or Involuntary Termination, setting forth in
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reasonable detail the facts and circumstances that are the basis for the
termination, and specifying the date upon which employment shall terminate,
which date shall be at least 30 days after the date upon which the notice is
delivered, except in the case of Termination for Cause. In the event that the
Employee determines in good faith that he has experienced an Involuntary
Termination of his employment, he shall send a written notice to the Company
stating the circumstances that constitute such Involuntary Termination and the
date upon which his employment shall have ceased due to such Involuntary
Termination. In the event that the Employee desires to effect a Voluntary
Termination, he shall deliver a written notice to the Company, stating the date
upon which employment shall terminate, which date shall be at least 30 days
after the date upon which the notice is delivered, unless the parties agree to a
date sooner.
9. ATTORNEYS FEES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Employee as a result of (i) the Employee's contesting or disputing any
termination of employment, or (ii) the Employee's seeking to obtain or enforce
any right or benefit provided by this Agreement or by any other plan or
arrangement maintained by the Company (or its successors) or the Consolidated
Subsidiaries under which the Employee is or may be entitled to receive benefits;
provided that the Company's obligation to pay such fees and expenses is subject
to the Employee's prevailing with respect to the matters in dispute in any
action initiated by the Employee or the Employee's having been determined to
have acted reasonably and in good faith with respect to any action initiated by
the Company or the Bank.
10. NON-DISCLOSURE AND NON-SOLICITATION.
(a) NON-DISCLOSURE. The Employee acknowledges that he has
acquired, and will continue to acquire while employed by the Company and/or any
Consolidated Subsidiary, special knowledge of the business, affairs, strategies
and plans of the Company and the Consolidated Subsidiaries which has not been
disclosed to the public and which constitutes confidential and proprietary
business information owned by the Company and the Consolidated Subsidiaries,
including but not limited to, information about the customers, customer lists,
software, data, formulae, processes, inventions, trade secrets, marketing
information and plans, and business strategies of the Company and the
Consolidated Subsidiaries, and other information about the products and services
offered or developed or planned to be offered or developed by the Company and/or
the Consolidated Subsidiaries ("Confidential Information"). The Employee agrees
that, without the prior written consent of the Company, he shall not, during the
term of his employment or at any time thereafter, in any manner directly or
indirectly disclose any Confidential Information to any person or entity other
than the Company and the Consolidated Subsidiaries. Notwithstanding the
foregoing, if the Employee is requested or required (including but not limited
to by oral questions, interrogatories, requests for information or documents in
legal proceeding, subpoena, civil investigative demand or other similar process)
to disclose any Confidential Information the Employee shall provide the Company
with prompt written notice of any such request or requirement so that the
Company and/or a Consolidated
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Subsidiary may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Section 10(a). If, in the absence of a
protective order or other remedy or the receipt of a waiver from the Company,
the Employee is nonetheless legally compelled to disclose Confidential
Information to any tribunal or else stand liable for contempt or suffer other
censure or penalty, the Employee may, without liability hereunder, disclose to
such tribunal only that portion of the Confidential Information which is legally
required to be disclosed, provided that the Employee exercise his best efforts
to preserve the confidentiality of the Confidential Information, including
without limitation by cooperating with the Company and/or a Consolidated
Subsidiary to obtain an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the Confidential Information by
such tribunal. On the Date of Termination, the Employee shall promptly deliver
to the Company all copies of documents or other records (including without
limitation electronic records) containing any Confidential Information that is
in his possession or under his control, and shall retain no written or
electronic record of any Confidential Information.
(b) NON-SOLICITATION. During the three year period next
following the Date of Termination, the Employee shall not directly or indirectly
solicit, encourage, or induce any person while employed by the Company or any
Consolidated Subsidiary to (i) leave the Company or any Consolidated Subsidiary,
(ii) cease his or her employment with the Company or any Consolidated Subsidiary
or (iii) accept employment with another entity or person.
The provisions of this Section 10 shall survive any termination of the
Employee's employment and any termination of this Agreement.
11. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto,
and neither party may assign or delegate any of its rights or obligations
hereunder without first obtaining the written consent of the other party;
provided, however, that the Company shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) by
an assumption agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession or assignment had taken place. Failure of the Company to obtain such
an assumption agreement prior to the effectiveness of any such succession or
assignment shall be a breach of this Agreement and shall entitle the Employee to
compensation and benefits from the Company in the same amount and on the same
terms as provided for an Involuntary Termination under Section 7 hereof. For
purposes of implementing the provisions of this Section 11(a), the date on which
any such succession becomes effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
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12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Company at its home
office, to the attention of the Board of Directors with a copy to the Secretary
of the Company, or, if to the Employee, to such home or other address as the
Employee has most recently provided in writing to the Company.
13. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
14. HEADINGS. The headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. 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.
16. REINSTATEMENT OF PRIOR AGREEMENT. Notwithstanding anything
contained in this Agreement to the contrary, the parties hereto agree that in
the event a Change in Control occurs within one year from the date of this
Agreement (not the Effective Date), then in that event the Prior Agreement shall
be reinstated and this Agreement shall become void ab initio.
17. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Ohio.
18. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement (other than relating to the enforcement of the
provisions of Sections 7(e)(2) and 10) shall be settled exclusively by
arbitration 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.
19. EQUITABLE AND OTHER JUDICIAL RELIEF. In the event of an actual or
threatened breach by the Employee of any of the provisions of Section 7(e)(2) or
10, the Company shall be entitled to equitable relief in the form of an
injunction from a court of competent jurisdiction and such other equitable and
legal relief as such court deems appropriate under the circumstances. The
parties agree that the Company shall not be required to post any bond in
connection with the grant or issuance of an injunction (preliminary, temporary
and/or permanent) by a court of competent jurisdiction, and if a bond is
nevertheless required, the parties agree that it shall be in a nominal amount.
The parties further agree that in the event of a breach by the Employee of any
of the provisions of Section 7(e)(2) or 10, the Company will suffer irreparable
damage and its remedy at law against the Employee is inadequate to compensate it
for such damage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
Attest: Charter One Financial, Inc.
/s/ Xxxxxx X. Xxxx /s/ Xxxxxxx X. Xxx
--------------------- ---------------------------
Secretary By: Xxxxxxx X. Xxx
Its: Executive VP & CFO
Employee
/s/ Xxxxxxx Xxxx Xxxx
----------------------------
Xxxxxxx Xxxx Xxxx
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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of this 16th day of March, 2000 (but effective as of August 1, 1999), by and
between Charter One Financial, Inc. (the "Company") and Xxxxxxx X. Xxx (the
"Employee").
WHEREAS, the Employee serves as Executive Vice President and Chief
Financial Officer of the Company and as Executive Vice President and Chief
Financial Officer of the Company's wholly-owned subsidiary, Charter One Bank,
F.S.B. (the "Bank");
WHEREAS, the Employee has an existing employment agreement entered into
as of October 31, 1995 and amended as of July 29, 1998 (the "Prior Employment
Agreement") which he is willing to terminate in consideration of this Agreement
becoming effective;
WHEREAS, the board of directors of the Company (the "Board of
Directors") believes it is in the best interests of the Company and its
subsidiaries for the Company to enter into this Agreement with the Employee in
order to assure continuity of management of the Company and its subsidiaries;
and
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Employee;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. DEFINITIONS.
(a) The term "Change in Control" means (1) an acquisition of
securities of the Company or the Bank that is determined by the Board of
Directors to constitute an acquisition of control of the Company or the Bank
within the meaning of the Change in Bank Control Act, 12 U.S.C. Section 1817(j),
and applicable regulations thereunder; (2) an event that would be required to be
reported in response to Item 1 of the current report on Form 8-K, as in effect
on the Effective Date, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); (3) any person (as the term is used
in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly
of securities of the Company or the Bank representing 25% or more of the
combined voting power of the Company's or the Bank's outstanding securities; (4)
individuals who are members of the Board of Directors on the Effective Date (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the
Effective Date whose election was approved by a vote of at least three-quarters
of the directors comprising the Incumbent Board, or whose nomination for
election by the Company's stockholders was approved by the nominating committee
serving under an Incumbent
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Board, shall be considered a member of the Incumbent Board; or (5) approval by
the Company's stockholders of a plan of reorganization, merger or consolidation
of the Company, sale of all or substantially all of the assets of the Company, a
similar transaction in which the Company is not the resulting entity, or a
transaction at the completion of which the former stockholders of the acquired
corporation become the holders of more than 40% of the outstanding common stock
of the Company and the Company is the resulting entity of such transaction;
provided that the term "change in control" shall not include an acquisition of
securities by an employee benefit plan of the Bank or the Company. In the
application of regulations under the Change in Bank Control Act, determinations
to be made by the applicable federal banking regulator shall be made by the
Board of Directors.
(b) The term "Consolidated Subsidiaries" means any subsidiary
or subsidiaries of the Company (or its successors) that are part of the
consolidated group of the Company (or its successors) for federal income tax
reporting.
(c) The term "Date of Termination" means the date upon which
the Employee's employment with the Company or the Bank or both ceases, as
specified in a notice of termination pursuant to Section 8 of this Agreement.
(d) The term "Effective Date" means August 1, 1999.
(e) The term "Involuntarily Termination" means the termination
of the employment of Employee (i) by either the Company or the Bank or both
without his express written consent; or (ii) by the Employee by reason of a
material diminution of or interference with his duties, responsibilities or
benefits, including (without limitation) any of the following actions unless
consented to in writing by the Employee: (1) a requirement that the Employee be
based at any place other than Detroit, Michigan or Cleveland, Ohio, or within 50
miles from either, except for reasonable travel on Company or Bank business; (2)
a material demotion of the Employee; (3) a material reduction in the number or
seniority of personnel reporting to the Employee or a material reduction in the
frequency with which, or in the nature of the matters with respect to which such
personnel are to report to the Employee, other than as part of a Bank- or
Company-wide reduction in staff; (4) a reduction in the Employee's salary or a
material adverse change in the Employee's perquisites, benefits, contingent
benefits or vacation, other than prior to a Change in Control as part of an
overall program applied uniformly and with equitable effect to all members of
the senior management of the Bank or the Company; (5) a material permanent
increase in the required hours of work or the workload of the Employee; or (6)
the failure of the Company or the Bank (or their respective successors) to
maintain the Employee's title, status, duties and functions as Executive Vice
President and Chief Financial Officer of the Company and as Executive Vice
President and Chief Financial Officer of the Bank (including their respective
successors) reporting directly and only to the Chief Executive Officer of the
Company and the Bank (or the Chief Executive Officer of their respective
successors). The term "Involuntary Termination" does not include Termination for
Cause or termination of employment due to death or permanent disability pursuant
to Section 7(g) of this Agreement, or suspension or temporary or permanent
prohibition from participation in the conduct of the affairs of a depository
institution under Section 8 of the Federal Deposit Insurance Act.
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(f) The terms "Termination for Cause" and "Terminated for
Cause" mean termination of the employment of the Employee with either the
Company or the Bank, as the case may be, because of the Employee's dishonesty,
incompetence, willful misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (excluding violations which do not have an adverse
affect on the Company or the Bank) or final cease-and-desist order, or (except
as provided below) material breach of any provision of this Agreement. No act or
failure to act by the Employee shall be considered willful unless the Employee
acted or failed to act with an absence of good faith and without a reasonable
belief that his action or failure to act was in the best interest of the
Company. The Employee shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to the Employee a copy of a
resolution, duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board of Directors at a meeting of the Board duly
called and held for such purpose (after reasonable notice to the Employee and an
opportunity for the Employee, together with the Employee's counsel, to be heard
before the Board), stating that in the good faith opinion of the Board of
Directors the Employee has engaged in conduct described in the preceding
sentence and specifying the particulars thereof in detail.
2. TERM; TERMINATION OF PRIOR EMPLOYMENT AGREEMENT. The term of this
Agreement shall be a period of five years commencing on the Effective Date,
subject to earlier termination as provided herein. On each anniversary of this
Agreement the term shall be extended for a period of one year in addition to the
then-remaining term, provided that the Company has not given notice to the
Employee in writing at least 90 days prior to such anniversary that the term of
this Agreement shall not be extended further, and provided further that the
Employee has not received an unsatisfactory performance review by either the
Board of Directors or the board of directors of the Bank. The Employee's Prior
Employment Agreement shall terminate immediately prior to the Effective Date
subject to reinstatement as provided in Section 16 below.
3. EMPLOYMENT. The Employee is employed as Executive Vice President and
Chief Financial Officer of the Company and as Executive Vice President and Chief
Financial Officer of the Bank. As such, the Employee shall render administrative
and management services as are customarily performed by persons situated in
similar executive capacities, and shall have such other powers and duties as the
Board of Directors or the board of directors of the Bank may prescribe from time
to time. The Employee shall also render services to any subsidiary or
subsidiaries of the Company or the Bank as requested by the Company or the Bank
from time to time consistent with his executive position. The Employee shall
devote his best efforts and reasonable time and attention to the business and
affairs of the Company and the Bank to the extent necessary to discharge his
responsibilities hereunder. The Employee may (i) serve on corporate or
charitable boards or committees, and (ii) manage personal investments, so long
as such activities do not interfere materially with performance of his
responsibilities hereunder.
4. CASH COMPENSATION.
(a) SALARY. The Company agrees to pay the Employee during the
term of this Agreement a base salary (the "Company Salary") the annualized
amount of which shall be not
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less than the annualized aggregate amount of the Employee's base salary from the
Company and any Consolidated Subsidiaries in effect at the Effective Date;
provided that any amounts of salary actually paid to the Employee by any
Consolidated Subsidiaries shall reduce the amount to be paid by the Company to
the Employee. The Company Salary shall be paid no less frequently than monthly
and shall be subject to customary tax withholding. The amount of the Employee's
Company Salary shall be increased (but shall not be decreased other than prior
to a Change in Control as part of an overall program applied uniformly and with
equitable effect to all members of senior management of the Company or the Bank)
from time to time in accordance with the amounts of salary approved by the Board
of Directors or the board of directors of any of the Consolidated Subsidiaries
after the Effective Date.
(b) BONUSES. The Employee shall be entitled to participate in
an equitable manner with all other executive officers of the Company and the
Bank in such performance-based and discretionary bonuses, if any, as are
authorized and declared by the Board of Directors for executive officers of the
Company and by the board of directors of the Bank for executive officers of the
Bank.
(c) EXPENSES. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in performing
services under this Agreement in accordance with the policies and procedures
applicable to the executive officers of the Company and the Bank, provided that
the Employee accounts for such expenses as required under such policies and
procedures.
(d) DEFERRAL OF NON-DEDUCTIBLE COMPENSATION. In the event that
the Employee's aggregate compensation (including compensatory benefits which are
deemed remuneration for purposes of Section 162(m) of the Internal Revenue Code
of 1986 as amended (the "Code")) from the Company and the Consolidated
Subsidiaries for any calendar year exceeds the greater of (i) $1,000,000 or (ii)
the maximum amount of compensation deductible by the Company or any of the
Consolidated Subsidiaries in any calendar year under Section 162(m) of the Code
(the "maximum allowable amount"), then any such amount in excess of the maximum
allowable amount shall be mandatorily deferred with interest thereon at 8% per
annum, compounded annually, to a calendar year such that the amount to be paid
to the Employee in such calendar year, including deferred amounts and interest
thereon, does not exceed the maximum allowable amount. Subject to the foregoing,
deferred amounts including interest thereon shall be payable at the earliest
time permissible. All unpaid deferred amounts shall be paid to the Employee not
later than his Date of Termination unless his Date of Termination is on a
December 31st, in which case, the unpaid deferred amounts shall be paid to the
Employee on the first business day of the next succeeding calendar year. The
provisions of this subsection shall survive any termination of the Employee's
employment and any termination of this Agreement.
5. BENEFITS.
(a) PARTICIPATION IN BENEFIT PLANS. The Employee shall be
entitled to participate, to the same extent as executive officers of the Company
and the Bank generally, in all plans of the Company and the Bank relating to
pension, retirement, thrift, profit-sharing, savings, group
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or other life insurance, hospitalization, medical and dental coverage, travel
and accident insurance, education, cash bonuses, and other retirement or
employee benefits or combinations thereof. In addition, the Employee shall be
entitled to be considered for benefits under all of the stock and stock option
related plans in which the Company's or the Bank's executive officers are
eligible or become eligible to participate.
(b) FRINGE BENEFITS. The Employee shall be eligible to
participate in, and receive benefits under, any other fringe benefit plans or
perquisites which are or may become generally available to the Company's or the
Bank's executive officers, including but not limited to supplemental retirement,
incentive compensation, supplemental medical or life insurance plans, company
cars, club dues, physical examinations, financial planning and tax preparation
services.
6. VACATIONS; LEAVE. The Employee shall be entitled to annual paid
vacation in accordance with the policies established by the Board of Directors
and the board of directors of the Bank for executive officers, in no event less
than four weeks per year, and to voluntary leaves of absence, with or without
pay, from time to time at such times and upon such conditions as the Board of
Directors may determine in its discretion.
7. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. If the Employee experiences an
Involuntary Termination, such termination of employment shall be subject to the
Company's obligations under this Section 7. In the event of the Involuntary
Termination of the Employee, if the Employee has offered to continue to provide
the services contemplated by and on the terms provided in this Agreement and
such offer has been declined, subject to Section 7(b) of this Agreement, the
Company shall, during the lesser period of the remaining term of this Agreement
or three years following the Date of Termination (the "Liquidated Damage
Period"), as liquidated damages (i) pay to the Employee monthly one-twelfth of
the Company Salary at the annual rate in effect immediately prior to the Date of
Termination and one-twelfth of the average annual amount of cash bonus and cash
incentive compensation of the Employee, based on the average amounts of such
compensation earned by the Employee from the Company and the Bank for the two
full fiscal years preceding the Date of Termination; and (ii) maintain
substantially the same group life insurance, hospitalization, medical, dental,
prescription drug and other health benefits, and long-term disability insurance
(if any) for the benefit of the Employee and his dependents and beneficiaries
who would have been eligible for such benefits if the Employee had not suffered
Involuntary Termination and on terms substantially as favorable to the Employee
including amounts of coverage and deductibles and other costs to him in effect
immediately prior to such Involuntary Termination (the "Employee's Health
Coverage").
(b) REDUCTION OF THE COMPANY'S OBLIGATIONS UNDER SECTION 7(a).
(1) In the event that the Employee becomes entitled
to liquidated damages pursuant to Section 7(a), (i) the Company's obligation
thereunder with respect to cash damages shall be reduced by the amount of the
Employee's cash income, if any, earned from providing personal services during
the Liquidated Damage Period; and (ii) the Company's obligation to
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maintain Health Coverage shall be reduced to the extent, if any, that the
Employee receives such benefits, on no less favorable terms, from another
employer during the Liquidated Damage Period. For purposes of this Section 7(b),
the term "cash income" shall include amounts of salary, wages, bonuses,
incentive compensation and fees paid to the Employee in cash but shall not
include shares of stock, stock options, stock appreciation rights or other
earned income not paid to the Employee in cash. To the extent the provisions of
this Section 7(b)(1) are applicable and an overpayment has been made to the
Employee as of the expiration of Liquidated Damage Period, the Employee shall
reimburse the Company in an amount equal to the after tax benefit realized by
the Employee from such overpayment (i.e. amount realized net of all federal,
state, local, employment and medicare taxes). In making the reimbursement
calculation it shall be presumed that the Employee is subject to the highest
marginal federal and state income tax rates.
(2) The Employee agrees that in the event he becomes
entitled to liquidated damages pursuant to Section 7(a), throughout the
Liquidated Damage Period, he shall promptly inform the Company of the nature and
amounts of cash income and the type of health benefits and coverage which he
earns or receives from providing personal services, and shall provide such
documentation of such cash income and such health benefits and coverage as the
Company may request. In the event of changes to such cash income or such health
benefits or coverage from time to time, the Employee shall inform the Company of
such changes, in each case within five days after the change occurs, and shall
provide such documentation concerning the change as the Company may request.
(c) CHANGE IN CONTROL; CUT BACK; AND TAX GROSS UP. In the
event that the Employee experiences an Involuntary Termination within the 12
months preceding, at the time of, or within 24 months following a Change in
Control, in addition to the Company's obligations under Section 7(a) of this
Agreement, the Company shall pay to the Employee in cash, within 30 days after
the later of the date of such Change in Control or the Date of Termination, an
amount equal to 299% of the Employee's "base amount" as determined under Section
280G of the Code, less the acceleration and lapse value of options granted to
the Employee by the Company prior to January 1, 1999 that are taken into account
in the determination of "parachute payments" under 280G(b)(2) of the Code by
virtue of vesting acceleration or deemed vesting acceleration in connection with
such Change in Control. Notwithstanding the foregoing, for purposes of this
paragraph the Employee shall not be deemed to have experienced an Involuntary
Termination if he is requested to continue his employment under this Agreement
for a period of up to 6 months after a Change in Control and he elects to
terminate his employment at the time of or within 6 months after a Change in
Control solely by reason of an event described in Section 1(e)(ii)(6) of this
Agreement, in which case he shall not be entitled to the Change in Control
payment set forth in this paragraph. In the event the Employee is requested in
connection with or at the time of a Change in Control to continue employment for
an interim period and he shall die while employed during such interim period,
then his estate, or such person as the Employee may have previously designated
in writing, shall be entitled to the full Change in Control payment described in
this paragraph in lieu of (and not in addition to) the payment of the Company
Salary for 180 days pursuant to Section 7(f)(i)(x) below.
In the event that any payments, distributions or benefits
provided or to be provided to the Employee, whether pursuant to this Agreement
or from other plans or
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arrangements maintained by the Company or any of the Consolidated Subsidiaries
(excluding the Adjusted Gross Up Payment and Additional Gross Up Payment (as
such terms are hereinafter defined)) (collectively, the "Payment") would be
subject to excise tax under Section 4999 of the Code (such excise tax and any
penalties and interest collectively, the "Penalty Tax"), the Company shall pay
to the Employee in cash an additional amount equal to the Adjusted Gross Up
Payment. The "Adjusted Gross Up Payment" shall be an amount such that after
payment by the Employee of all federal, state, local, employment and medicare
taxes thereon (and any penalties and interest with respect thereto), the
Employee retains on an after tax basis a portion of such amount equal to the
aggregate of 80% of the Penalty Tax imposed upon the Payment and 100% of the
Penalty Tax imposed upon the Adjusted Gross Up Payment.
For purposes of determining the amount of the Adjusted Gross
Up Payment, the value of any non-cash benefits and deferred payments or benefits
subject to the Penalty Tax shall be determined by the Company's independent
auditors in accordance with the principles of Section 280G(d)(3) and (4) of the
Code. In the event that, after the Adjusted Gross Up Payment is made, the
Employee becomes entitled to receive a refund of any portion of the Penalty Tax,
the Employee shall promptly pay to the Company 80% of such Penalty Tax refund
attributable to the Payment (together with 80% of any interest paid or credited
thereon by the Internal Revenue Service) and 100% of the Penalty Tax refund
attributable to the Adjusted Gross Up Payment (together with 100% of any
interest paid or credited thereon by the Internal Revenue Service).
As a result of the uncertainty regarding the application of
Section 4999 of the Code, it is possible that the Internal Revenue Service may
assert that the Penalty Tax due is in excess of the amount of the anticipated
Penalty Tax used in calculating the Adjusted Gross Up Payment (such excess
amount is hereafter referred to as the "Underpayment"). In such event, the
Company shall pay to the Employee, in immediately available funds, at the time
the Underpayment is assessed or otherwise determined, an additional amount equal
to the Additional Gross Up Payment. The "Additional Gross Up Payment" shall be
an amount such that after payment by the Employee of all federal, state, local,
employment and medicare taxes thereon (and any penalties and interest with
respect thereto), the Employee retains on an after tax basis a portion of such
amount equal to the aggregate of (i) 80% of the portion of the Underpayment
attributable to the Payment, (ii) 100% of the portion of the Underpayment
attributable to the Adjusted Gross Up Payment and (iii) 100% of the Penalty Tax
imposed on the Additional Gross Up Payment.
(d) TERMINATION FOR CAUSE. In the event of Termination for
Cause, the Company shall have no further obligation to the Employee under this
Agreement after the Date of Termination other than deferred amounts under
Section 4(d).
(e) VOLUNTARY TERMINATION. The Employee may terminate his
employment voluntarily at any time by a notice pursuant to Section 8 of this
Agreement. In the event that the Employee voluntarily terminates his employment
other than by reason of any of the actions that constitute Involuntary
Termination under Section 1(e)(ii) of this Agreement ("Voluntary Termination"),
the Company shall be obligated to the Employee for the amount of his Company
Salary and benefits only through the Date of Termination, at the time such
payments are due, and
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the Company shall have no further obligation to the Employee under this
Agreement except as provided in Sections 4(d).
(f) DEATH. In the event of the death of the Employee while
employed under this Agreement and prior to any termination of employment, the
Company shall pay to the Employee's estate, or such person as the Employee may
have previously designated in writing, (i) the Company Salary which was not
previously paid to the Employee and, either (x) the Company Salary which he
would have earned if he had continued to be employed under this Agreement
through the 180th day after the date on which the Employee died or (y) the
Change in Control payment set forth in the first paragraph of Section 7(c),
whichever is applicable; (ii) the amounts of any benefits or awards which,
pursuant to the terms of any applicable plan or plans, were earned with respect
to the fiscal year in which the Employee died and which the Employee would have
been entitled to receive if he had continued to be employed, and the amount of
any bonus or incentive compensation for such fiscal year which the Employee
would have been entitled to receive if he had continued to be employed,
pro-rated in accordance with the portion of the fiscal year prior to his death,
provided that such amounts shall be payable when and as ordinarily payable under
the applicable plans; and (iii) the unpaid deferred amounts under Section 4(d).
(g) PERMANENT DISABILITY. For purposes of this Agreement, the
term "permanently disabled" means that the Employee has a mental or physical
infirmity which permanently impairs his ability to perform substantially his
duties and responsibilities under this Agreement and which results in (i)
eligibility of the Employee under the long-term disability plan of the Company
or the Bank, if any; or (ii) inability of the Employee to perform substantially
his duties and responsibilities under this Agreement for a period of 180
consecutive days. Either the Company or the Bank or both may terminate the
employment of the Employee after having established that the Employee is
permanently disabled.
(h) REGULATORY ACTION. Notwithstanding any other provisions
of this Agreement:
(1) If the Employee is removed and/or permanently
prohibited from participating in the conduct of the affairs of a depository
institution by an order issued under Section 8(e)(4) or (g)(1) of the Federal
Deposit Insurance Act ("FDIA"), 12 U.S.C. Section 1818(e)(4) and (g)(1), all
obligations of the Company under this Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall
not be affected;.
(2) If the Bank is in default (as defined in Section
3(x)(1) of the FDIA), all obligations of the Company under this Agreement shall
terminate as of the date of default, but this provision shall not affect any
vested rights of the contracting parties; and
(3) All obligations of the Company under this
Agreement shall be terminated, except to the extent determined that continuation
of this Agreement is necessary for the continued operation of the Bank: (i) by
the Director of the Office of Thrift Supervision (the "Director") or his or her
designee, at the time the Federal Deposit Insurance Corporation or the
Resolution Trust Corporation enters into an agreement to provide assistance to
or on behalf of
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the Bank under the authority contained in Section 13(c) of the FDIA; or (ii) by
the Director or his or her designee, at the time the Director or his or her
designee approves a supervisory merger to resolve problems related to operation
of the Bank or when the Bank is determined by the Director to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by any such action.
8. NOTICE OF TERMINATION. In the event that the Company or the Bank, or
both, desire to terminate the employment of the Employee during the term of this
Agreement, the Company or the Bank, or both, shall deliver to the Employee a
written notice of termination, stating whether such termination constitutes
Termination for Cause or Involuntary Termination, setting forth in reasonable
detail the facts and circumstances that are the basis for the termination, and
specifying the date upon which employment shall terminate, which date shall be
at least 30 days after the date upon which the notice is delivered, except in
the case of Termination for Cause. In the event that the Employee determines in
good faith that he has experienced an Involuntary Termination of his employment,
he shall send a written notice to the Company stating the circumstances that
constitute such Involuntary Termination and the date upon which his employment
shall have ceased due to such Involuntary Termination. In the event that the
Employee desires to effect a Voluntary Termination, he shall deliver a written
notice to the Company, stating the date upon which employment shall terminate,
which date shall be at least 30 days after the date upon which the notice is
delivered, unless the parties agree to a date sooner.
9. ATTORNEYS FEES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Employee as a result of (i) the Employee's contesting or disputing any
termination of employment, or (ii) the Employee's seeking to obtain or enforce
any right or benefit provided by this Agreement or by any other plan or
arrangement maintained by the Company (or its successors) or the Consolidated
Subsidiaries under which the Employee is or may be entitled to receive benefits;
provided that the Company's obligation to pay such fees and expenses is subject
to the Employee's prevailing with respect to the matters in dispute in any
action initiated by the Employee or the Employee's having been determined to
have acted reasonably and in good faith with respect to any action initiated by
the Company or the Bank.
10. NON-DISCLOSURE AND NON-SOLICITATION.
(a) NON-DISCLOSURE. The Employee acknowledges that he has
acquired, and will continue to acquire while employed by the Company and/or any
Consolidated Subsidiary, special knowledge of the business, affairs, strategies
and plans of the Company and the Consolidated Subsidiaries which has not been
disclosed to the public and which constitutes confidential and proprietary
business information owned by the Company and the Consolidated Subsidiaries,
including but not limited to, information about the customers, customer lists,
software, data, formulae, processes, inventions, trade secrets, marketing
information and plans, and business strategies of the Company and the
Consolidated Subsidiaries, and other information about the products and services
offered or developed or planned to be offered or developed by the Company and/or
the Consolidated Subsidiaries ("Confidential Information"). The Employee agrees
that, without the prior written consent of the Company, he shall not, during
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the term of his employment or at any time thereafter, in any manner directly or
indirectly disclose any Confidential Information to any person or entity other
than the Company and the Consolidated Subsidiaries. Notwithstanding the
foregoing, if the Employee is requested or required (including but not limited
to by oral questions, interrogatories, requests for information or documents in
legal proceeding, subpoena, civil investigative demand or other similar process)
to disclose any Confidential Information the Employee shall provide the Company
with prompt written notice of any such request or requirement so that the
Company and/or a Consolidated Subsidiary may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this Section
10(a). If, in the absence of a protective order or other remedy or the receipt
of a waiver from the Company, the Employee is nonetheless legally compelled to
disclose Confidential Information to any tribunal or else stand liable for
contempt or suffer other censure or penalty, the Employee may, without liability
hereunder, disclose to such tribunal only that portion of the Confidential
Information which the Employee is legally required to be disclosed, provided
that the Employee exercise his best efforts to preserve the confidentiality of
the Confidential Information, including without limitation by cooperating with
the Company and/or a Consolidated Subsidiary to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
the Confidential Information by such tribunal. On the Date of Termination, the
Employee shall promptly deliver to the Company all copies of documents or other
records (including without limitation electronic records) containing any
Confidential Information that is in his possession or under his control, and
shall retain no written or electronic record of any Confidential Information.
(b) NON-SOLICITATION. During the three year period next
following the Date of Termination, the Employee shall not directly or indirectly
solicit, encourage, or induce any person while employed by the Company or any
Consolidated Subsidiary to (i) leave the Company or any Consolidated Subsidiary,
(ii) cease his or her employment with the Company or any Consolidated Subsidiary
or (iii) accept employment with another entity or person.
The provisions of this Section 10 shall survive any termination of the
Employee's employment and any termination of this Agreement.
11. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto,
and neither party may assign or delegate any of its rights or obligations
hereunder without first obtaining the written consent of the other party;
provided, however, that the Company shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) by
an assumption agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession or assignment had taken place. Failure of the Company to obtain such
an assumption agreement prior to the effectiveness of any such succession or
assignment shall be a breach of this Agreement and shall entitle the Employee to
compensation and benefits from the Company in the same amount and on the same
terms as provided for an Involuntary Termination under Section 7 hereof. For
purposes of implementing the provisions of this Section 11(a), the date on which
any such succession becomes effective shall be deemed the Date of Termination.
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(b) This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Company at its home
office, to the attention of the Board of Directors with a copy to the Secretary
of the Company, or, if to the Employee, to such home or other address as the
Employee has most recently provided in writing to the Company.
13. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
14. HEADINGS. The headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. 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.
16. REINSTATEMENT OF PRIOR AGREEMENT. Notwithstanding anything
contained in this Agreement to the contrary, the parties hereto agree that in
the event a Change in Control occurs within one year from the date of this
Agreement (not the Effective Date), then in that event, the Prior Agreement
shall be reinstated and this Agreement shall become void ab initio.
17. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Ohio.
18. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement (other than relating to the enforcement of the
provisions of Section 10) shall be settled exclusively by arbitration 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.
19. EQUITABLE AND OTHER JUDICIAL RELIEF. In the event of an actual or
threatened breach by the Employee of any of the provisions of Section 10, the
Company shall be entitled to equitable relief in the form of an injunction from
a court of competent jurisdiction and such other equitable and legal relief as
such court deems appropriate under the circumstances. The parties agree that the
Company shall not be required to post any bond in connection with the grant or
issuance of an injunction (preliminary, temporary and/or permanent) by a court
of competent jurisdiction, and if a bond is nevertheless required, the parties
agree that it shall be in a nominal amount. The parties further agree that in
the event of a breach by the Employee of any of the provisions of Section 10,
the Company will suffer irreparable damage and its remedy at law against the
Employee is inadequate to compensate it for such damage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
Attest: Charter One Financial, Inc.
/s/ Xxxxxx X. Xxxx /s/ Xxxxxxx Xxxx Xxxx
--------------------- ---------------------------
Secretary By: Xxxxxxx Xxxx Xxxx
Its: President & CEO
Employee
/s/ Xxxxxxx X. Xxx
----------------------------
Xxxxxxx X. Xxx
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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of this 16th day of March, 2000 (but effective as of August 1, 1999), by and
between Charter One Financial, Inc. (the "Company") and Xxxx X. Xxxx (the
"Employee").
WHEREAS, the Employee serves as Executive Vice President of the Company
and as Executive Vice President and Chief Lending and Credit Officer, and
Executive Vice President of Non-Insured Deposit Products of the Company's
wholly-owned subsidiary, Charter One Bank, F.S.B. (the "Bank");
WHEREAS, the Employee has an existing employment agreement entered into
as of October 31, 1995 and amended as of July 29, 1998 (the "Prior Employment
Agreement") which he is willing to terminate in consideration of this Agreement
becoming effective;
WHEREAS, the board of directors of the Company (the "Board of
Directors") believes it is in the best interests of the Company and its
subsidiaries for the Company to enter into this Agreement with the Employee in
order to assure continuity of management of the Company and its subsidiaries;
and
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Employee;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. DEFINITIONS.
(a) The term "Change in Control" means (1) an acquisition of
securities of the Company or the Bank that is determined by the Board of
Directors to constitute an acquisition of control of the Company or the Bank
within the meaning of the Change in Bank Control Act, 12 U.S.C. Section 1817(j),
and applicable regulations thereunder; (2) an event that would be required to be
reported in response to Item 1 of the current report on Form 8-K, as in effect
on the Effective Date, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); (3) any person (as the term is used
in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly
of securities of the Company or the Bank representing 25% or more of the
combined voting power of the Company's or the Bank's outstanding securities; (4)
individuals who are members of the Board of Directors on the Effective Date (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the
Effective Date whose election was approved by a vote of at least three-quarters
of the directors comprising the Incumbent Board, or whose nomination for
election by the
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Company's stockholders was approved by the nominating committee serving under an
Incumbent Board, shall be considered a member of the Incumbent Board; or (5)
approval by the Company's stockholders of a plan of reorganization, merger or
consolidation of the Company, sale of all or substantially all of the assets of
the Company, a similar transaction in which the Company is not the resulting
entity, or a transaction at the completion of which the former stockholders of
the acquired corporation become the holders of more than 40% of the outstanding
common stock of the Company and the Company is the resulting entity of such
transaction; provided that the term "change in control" shall not include an
acquisition of securities by an employee benefit plan of the Bank or the
Company. In the application of regulations under the Change in Bank Control Act,
determinations to be made by the applicable federal banking regulator shall be
made by the Board of Directors.
(b) The term "Consolidated Subsidiaries" means any subsidiary
or subsidiaries of the Company (or its successors) that are part of the
consolidated group of the Company (or its successors) for federal income tax
reporting.
(c) The term "Date of Termination" means the date upon which
the Employee's employment with the Company or the Bank or both ceases, as
specified in a notice of termination pursuant to Section 8 of this Agreement.
(d) The term "Effective Date" means August 1, 1999.
(e) The term "Involuntarily Termination" means the termination
of the employment of Employee (i) by either the Company or the Bank or both
without his express written consent; or (ii) by the Employee by reason of a
material diminution of or interference with his duties, responsibilities or
benefits, including (without limitation) any of the following actions unless
consented to in writing by the Employee: (1) a requirement that the Employee be
based at any place other than Cleveland, Ohio, or within 50 miles thereof,
except for reasonable travel on Company or Bank business; (2) a material
demotion of the Employee; (3) a material reduction in the number or seniority of
personnel reporting to the Employee or a material reduction in the frequency
with which, or in the nature of the matters with respect to which such personnel
are to report to the Employee, other than as part of a Bank- or Company-wide
reduction in staff; (4) a reduction in the Employee's salary or a material
adverse change in the Employee's perquisites, benefits, contingent benefits or
vacation, other than prior to a Change in Control as part of an overall program
applied uniformly and with equitable effect to all members of the senior
management of the Bank or the Company; (5) a material permanent increase in the
required hours of work or the workload of the Employee; or (6) the failure of
the Company or the Bank (or their respective successors) to maintain the
Employee's title, status, duties and functions as Executive Vice President of
the Company and as Executive Vice President and Chief Lending and Credit
Officer, and Executive Vice President of Non-Insured Deposit Products of the
Bank (including their respective successors) reporting directly and only to the
Chief Executive Officer of the Company and the Bank (or the Chief Executive
Officer of their respective successors). The term "Involuntary Termination" does
not include Termination for Cause or termination of employment due to death or
permanent disability pursuant to Section 7(g) of this Agreement, or suspension
or temporary or permanent prohibition from participation
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in the conduct of the affairs of a depository institution under Section 8 of the
Federal Deposit Insurance Act.
(f) The terms "Termination for Cause" and "Terminated for
Cause" mean termination of the employment of the Employee with either the
Company or the Bank, as the case may be, because of the Employee's dishonesty,
incompetence, willful misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (excluding violations which do not have an adverse
affect on the Company or the Bank) or final cease-and-desist order, or (except
as provided below) material breach of any provision of this Agreement. No act or
failure to act by the Employee shall be considered willful unless the Employee
acted or failed to act with an absence of good faith and without a reasonable
belief that his action or failure to act was in the best interest of the
Company. The Employee shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to the Employee a copy of a
resolution, duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board of Directors at a meeting of the Board duly
called and held for such purpose (after reasonable notice to the Employee and an
opportunity for the Employee, together with the Employee's counsel, to be heard
before the Board), stating that in the good faith opinion of the Board of
Directors the Employee has engaged in conduct described in the preceding
sentence and specifying the particulars thereof in detail.
2. TERM; TERMINATION OF PRIOR EMPLOYMENT AGREEMENT. The term of this
Agreement shall be a period of five years commencing on the Effective Date,
subject to earlier termination as provided herein. On each anniversary of this
Agreement the term shall be extended for a period of one year in addition to the
then-remaining term, provided that the Company has not given notice to the
Employee in writing at least 90 days prior to such anniversary that the term of
this Agreement shall not be extended further, and provided further that the
Employee has not received an unsatisfactory performance review by either the
Board of Directors or the board of directors of the Bank. The Employee's Prior
Employment Agreement shall terminate immediately prior to the Effective Date
subject to reinstatement as provided in Section 16 below.
3. EMPLOYMENT. The Employee is employed as Executive Vice President of
the Company and as Executive Vice President and Chief Lending and Credit
Officer, and Executive Vice President of Non-Insured Deposit Products of the
Bank. As such, the Employee shall render administrative and management services
as are customarily performed by persons situated in similar executive
capacities, and shall have such other powers and duties as the Board of
Directors or the board of directors of the Bank may prescribe from time to time.
The Employee shall also render services to any subsidiary or subsidiaries of the
Company or the Bank as requested by the Company or the Bank from time to time
consistent with his executive position. The Employee shall devote his best
efforts and reasonable time and attention to the business and affairs of the
Company and the Bank to the extent necessary to discharge his responsibilities
hereunder. The Employee may (i) serve on corporate or charitable boards or
committees, and (ii) manage personal investments, so long as such activities do
not interfere materially with performance of his responsibilities hereunder.
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4. CASH COMPENSATION.
(a) SALARY. The Company agrees to pay the Employee during the
term of this Agreement a base salary (the "Company Salary") the annualized
amount of which shall be not less than the annualized aggregate amount of the
Employee's base salary from the Company and any Consolidated Subsidiaries in
effect at the Effective Date; provided that any amounts of salary actually paid
to the Employee by any Consolidated Subsidiaries shall reduce the amount to be
paid by the Company to the Employee. The Company Salary shall be paid no less
frequently than monthly and shall be subject to customary tax withholding. The
amount of the Employee's Company Salary shall be increased (but shall not be
decreased other than prior to a Change in Control as part of an overall program
applied uniformly and with equitable effect to all members of senior management
of the Company or the Bank) from time to time in accordance with the amounts of
salary approved by the Board of Directors or the board of directors of any of
the Consolidated Subsidiaries after the Effective Date.
(b) BONUSES. The Employee shall be entitled to participate in
an equitable manner with all other executive officers of the Company and the
Bank in such performance-based and discretionary bonuses, if any, as are
authorized and declared by the Board of Directors for executive officers of the
Company and by the board of directors of the Bank for executive officers of the
Bank.
(c) EXPENSES. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in performing
services under this Agreement in accordance with the policies and procedures
applicable to the executive officers of the Company and the Bank, provided that
the Employee accounts for such expenses as required under such policies and
procedures.
(d) DEFERRAL OF NON-DEDUCTIBLE COMPENSATION. In the event that
the Employee's aggregate compensation (including compensatory benefits which are
deemed remuneration for purposes of Section 162(m) of the Internal Revenue Code
of 1986 as amended (the "Code")) from the Company and the Consolidated
Subsidiaries for any calendar year exceeds the greater of (i) $1,000,000 or (ii)
the maximum amount of compensation deductible by the Company or any of the
Consolidated Subsidiaries in any calendar year under Section 162(m) of the Code
(the "maximum allowable amount"), then any such amount in excess of the maximum
allowable amount shall be mandatorily deferred with interest thereon at 8% per
annum, compounded annually, to a calendar year such that the amount to be paid
to the Employee in such calendar year, including deferred amounts and interest
thereon, does not exceed the maximum allowable amount. Subject to the foregoing,
deferred amounts including interest thereon shall be payable at the earliest
time permissible. All unpaid deferred amounts shall be paid to the Employee not
later than his Date of Termination unless his Date of Termination is on a
December 31st, in which case, the unpaid deferred amounts shall be paid to the
Employee on the first business day of the next succeeding calendar year. The
provisions of this subsection shall survive any termination of the Employee's
employment and any termination of this Agreement.
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5. BENEFITS.
(a) PARTICIPATION IN BENEFIT PLANS. The Employee shall be
entitled to participate, to the same extent as executive officers of the Company
and the Bank generally, in all plans of the Company and the Bank relating to
pension, retirement, thrift, profit-sharing, savings, group or other life
insurance, hospitalization, medical and dental coverage, travel and accident
insurance, education, cash bonuses, and other retirement or employee benefits or
combinations thereof. In addition, the Employee shall be entitled to be
considered for benefits under all of the stock and stock option related plans in
which the Company's or the Bank's executive officers are eligible or become
eligible to participate.
(b) FRINGE BENEFITS. The Employee shall be eligible to
participate in, and receive benefits under, any other fringe benefit plans or
perquisites which are or may become generally available to the Company's or the
Bank's executive officers, including but not limited to supplemental retirement,
incentive compensation, supplemental medical or life insurance plans, company
cars, club dues, physical examinations, financial planning and tax preparation
services.
6. VACATIONS; LEAVE. The Employee shall be entitled to annual paid
vacation in accordance with the policies established by the Board of Directors
and the board of directors of the Bank for executive officers, in no event less
than four weeks per year, and to voluntary leaves of absence, with or without
pay, from time to time at such times and upon such conditions as the Board of
Directors may determine in its discretion.
7. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. If the Employee experiences an
Involuntary Termination, such termination of employment shall be subject to the
Company's obligations under this Section 7. In the event of the Involuntary
Termination of the Employee, if the Employee has offered to continue to provide
the services contemplated by and on the terms provided in this Agreement and
such offer has been declined, subject to Section 7(b) of this Agreement, the
Company shall, during the lesser period of the remaining term of this Agreement
or three years following the Date of Termination (the "Liquidated Damage
Period"), as liquidated damages (i) pay to the Employee monthly one-twelfth of
the Company Salary at the annual rate in effect immediately prior to the Date of
Termination and one-twelfth of the average annual amount of cash bonus and cash
incentive compensation of the Employee, based on the average amounts of such
compensation earned by the Employee from the Company and the Bank for the two
full fiscal years preceding the Date of Termination; and (ii) maintain
substantially the same group life insurance, hospitalization, medical, dental,
prescription drug and other health benefits, and long-term disability insurance
(if any) for the benefit of the Employee and his dependents and beneficiaries
who would have been eligible for such benefits if the Employee had not suffered
Involuntary Termination and on terms substantially as favorable to the Employee
including amounts of coverage and deductibles and other costs to him in effect
immediately prior to such Involuntary Termination (the "Employee's Health
Coverage").
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(b) REDUCTION OF THE COMPANY'S OBLIGATIONS UNDER SECTION 7(a).
(1) In the event that the Employee becomes entitled
to liquidated damages pursuant to Section 7(a), (i) the Company's obligation
thereunder with respect to cash damages shall be reduced by the amount of the
Employee's cash income, if any, earned from providing personal services during
the Liquidated Damage Period; and (ii) the Company's obligation to maintain
Health Coverage shall be reduced to the extent, if any, that the Employee
receives such benefits, on no less favorable terms, from another employer during
the Liquidated Damage Period. For purposes of this Section 7(b), the term "cash
income" shall include amounts of salary, wages, bonuses, incentive compensation
and fees paid to the Employee in cash but shall not include shares of stock,
stock options, stock appreciation rights or other earned income not paid to the
Employee in cash. To the extent the provisions of this Section 7(b)(1) are
applicable and an overpayment has been made to the Employee as of the expiration
of Liquidated Damage Period, the Employee shall reimburse the Company in an
amount equal to the after tax benefit realized by the Employee from such
overpayment (i.e. amount realized net of all federal, state, local, employment
and medicare taxes). In making the reimbursement calculation it shall be
presumed that the Employee is subject to the highest marginal federal and state
income tax rates.
(2) The Employee agrees that in the event he becomes
entitled to liquidated damages pursuant to Section 7(a), throughout the
Liquidated Damage Period, he shall promptly inform the Company of the nature and
amounts of cash income and the type of health benefits and coverage which he
earns or receives from providing personal services, and shall provide such
documentation of such cash income and such health benefits and coverage as the
Company may request. In the event of changes to such cash income or such health
benefits or coverage from time to time, the Employee shall inform the Company of
such changes, in each case within five days after the change occurs, and shall
provide such documentation concerning the change as the Company may request.
(c) CHANGE IN CONTROL; CUT BACK; AND TAX GROSS UP. In the
event that the Employee experiences an Involuntary Termination within the 12
months preceding, at the time of, or within 24 months following a Change in
Control, in addition to the Company's obligations under Section 7(a) of this
Agreement, the Company shall pay to the Employee in cash, within 30 days after
the later of the date of such Change in Control or the Date of Termination, an
amount equal to 299% of the Employee's "base amount" as determined under Section
280G of the Code, less the acceleration and lapse value of options granted to
the Employee by the Company prior to January 1, 1999 that are taken into account
in the determination of "parachute payments" under 280G(b)(2) of the Code by
virtue of vesting acceleration or deemed vesting acceleration in connection with
such Change in Control. Notwithstanding the foregoing, for purposes of this
paragraph the Employee shall not be deemed to have experienced an Involuntary
Termination if he is requested to continue his employment under this Agreement
for a period of up to 6 months after a Change in Control and he elects to
terminate his employment at the time of or within 6 months after a Change in
Control solely by reason of an event described in Section 1(e)(ii)(6) of this
Agreement, in which case he shall not be entitled to the Change in Control
payment set forth in this paragraph. In the event the Employee is requested in
connection with or at the time of a Change in Control to continue employment for
an interim period and he shall die while
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employed during such interim period, then his estate, or such person as the
Employee may have previously designated in writing, shall be entitled to the
full Change in Control payment described in this paragraph in lieu of (and not
in addition to) the payment of the Company Salary for 180 days pursuant to
Section 7(f)(i)(x) below.
In the event that any payments, distributions or benefits
provided or to be provided to the Employee, whether pursuant to this Agreement
or from other plans or arrangements maintained by the Company or any of the
Consolidated Subsidiaries (excluding the Adjusted Gross Up Payment and
Additional Gross Up Payment (as such terms are hereinafter defined))
(collectively, the "Payment") would be subject to excise tax under Section 4999
of the Code (such excise tax and any penalties and interest collectively, the
"Penalty Tax"), the Company shall pay to the Employee in cash an additional
amount equal to the Adjusted Gross Up Payment. The "Adjusted Gross Up Payment"
shall be an amount such that after payment by the Employee of all federal,
state, local, employment and medicare taxes thereon (and any penalties and
interest with respect thereto), the Employee retains on an after tax basis a
portion of such amount equal to the aggregate of 80% of the Penalty Tax imposed
upon the Payment and 100% of the Penalty Tax imposed upon the Adjusted Gross Up
Payment.
For purposes of determining the amount of the Adjusted Gross
Up Payment, the value of any non-cash benefits and deferred payments or benefits
subject to the Penalty Tax shall be determined by the Company's independent
auditors in accordance with the principles of Section 280G(d)(3) and (4) of the
Code. In the event that, after the Adjusted Gross Up Payment is made, the
Employee becomes entitled to receive a refund of any portion of the Penalty Tax,
the Employee shall promptly pay to the Company 80% of such Penalty Tax refund
attributable to the Payment (together with 80% of any interest paid or credited
thereon by the Internal Revenue Service) and 100% of the Penalty Tax refund
attributable to the Adjusted Gross Up Payment (together with 100% of any
interest paid or credited thereon by the Internal Revenue Service).
As a result of the uncertainty regarding the application of
Section 4999 of the Code, it is possible that the Internal Revenue Service may
assert that the Penalty Tax due is in excess of the amount of the anticipated
Penalty Tax used in calculating the Adjusted Gross Up Payment (such excess
amount is hereafter referred to as the "Underpayment"). In such event, the
Company shall pay to the Employee, in immediately available funds, at the time
the Underpayment is assessed or otherwise determined, an additional amount equal
to the Additional Gross Up Payment. The "Additional Gross Up Payment" shall be
an amount such that after payment by the Employee of all federal, state, local,
employment and medicare taxes thereon (and any penalties and interest with
respect thereto), the Employee retains on an after tax basis a portion of such
amount equal to the aggregate of (i) 80% of the portion of the Underpayment
attributable to the Payment, (ii) 100% of the portion of the Underpayment
attributable to the Adjusted Gross Up Payment and (iii) 100% of the Penalty Tax
imposed on the Additional Gross Up Payment.
(d) TERMINATION FOR CAUSE. In the event of Termination for
Cause, the Company shall have no further obligation to the Employee under this
Agreement after the Date of Termination other than deferred amounts under
Section 4(d).
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(e) VOLUNTARY TERMINATION. The Employee may terminate his
employment voluntarily at any time by a notice pursuant to Section 8 of this
Agreement. In the event that the Employee voluntarily terminates his employment
other than by reason of any of the actions that constitute Involuntary
Termination under Section 1(e)(ii) of this Agreement ("Voluntary Termination"),
the Company shall be obligated to the Employee for the amount of his Company
Salary and benefits only through the Date of Termination, at the time such
payments are due, and the Company shall have no further obligation to the
Employee under this Agreement except as provided in Section 4(d).
(f) DEATH. In the event of the death of the Employee while
employed under this Agreement and prior to any termination of employment, the
Company shall pay to the Employee's estate, or such person as the Employee may
have previously designated in writing, (i) the Company Salary which was not
previously paid to the Employee and, either (x) the Company Salary which he
would have earned if he had continued to be employed under this Agreement
through the 180th day after the date on which the Employee died or (y) the
Change in Control payment set forth in the first paragraph of Section 7(c),
whichever is applicable; (ii) the amounts of any benefits or awards which,
pursuant to the terms of any applicable plan or plans, were earned with respect
to the fiscal year in which the Employee died and which the Employee would have
been entitled to receive if he had continued to be employed, and the amount of
any bonus or incentive compensation for such fiscal year which the Employee
would have been entitled to receive if he had continued to be employed,
pro-rated in accordance with the portion of the fiscal year prior to his death,
provided that such amounts shall be payable when and as ordinarily payable under
the applicable plans; and (iii) the unpaid deferred amounts under Section 4(d).
(g) PERMANENT DISABILITY. For purposes of this Agreement, the
term "permanently disabled" means that the Employee has a mental or physical
infirmity which permanently impairs his ability to perform substantially his
duties and responsibilities under this Agreement and which results in (i)
eligibility of the Employee under the long-term disability plan of the Company
or the Bank, if any; or (ii) inability of the Employee to perform substantially
his duties and responsibilities under this Agreement for a period of 180
consecutive days. Either the Company or the Bank or both may terminate the
employment of the Employee after having established that the Employee is
permanently disabled.
(h) REGULATORY ACTION. Notwithstanding any other provisions of
this Agreement:
(1) If the Employee is removed and/or permanently
prohibited from participating in the conduct of the affairs of a depository
institution by an order issued under Section 8(e)(4) or (g)(1) of the Federal
Deposit Insurance Act ("FDIA"), 12 U.S.C. Section 1818(e)(4) and (g)(1), all
obligations of the Company under this Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall
not be affected.
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(2) If the Bank is in default (as defined in Section
3(x)(1) of the FDIA), all obligations of the Company under this Agreement shall
terminate as of the date of default, but this provision shall not affect any
vested rights of the contracting parties; and
(3) All obligations of the Company under this
Agreement shall be terminated, except to the extent determined that continuation
of this Agreement is necessary for the continued operation of the Bank: (i) by
the Director of the Office of Thrift Supervision (the "Director") or his or her
designee, at the time the Federal Deposit Insurance Corporation or the
Resolution Trust Corporation enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) of the
FDIA; or (ii) by the Director or his or her designee, at the time the Director
or his or her designee approves a supervisory merger to resolve problems related
to operation of the Bank or when the Bank is determined by the Director to be in
an unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by any such action.
8. NOTICE OF TERMINATION. In the event that the Company or the Bank, or
both, desire to terminate the employment of the Employee during the term of this
Agreement, the Company or the Bank, or both, shall deliver to the Employee a
written notice of termination, stating whether such termination constitutes
Termination for Cause or Involuntary Termination, setting forth in reasonable
detail the facts and circumstances that are the basis for the termination, and
specifying the date upon which employment shall terminate, which date shall be
at least 30 days after the date upon which the notice is delivered, except in
the case of Termination for Cause. In the event that the Employee determines in
good faith that he has experienced an Involuntary Termination of his employment,
he shall send a written notice to the Company stating the circumstances that
constitute such Involuntary Termination and the date upon which his employment
shall have ceased due to such Involuntary Termination. In the event that the
Employee desires to effect a Voluntary Termination, he shall deliver a written
notice to the Company, stating the date upon which employment shall terminate,
which date shall be at least 30 days after the date upon which the notice is
delivered, unless the parties agree to a date sooner.
9. ATTORNEYS FEES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Employee as a result of (i) the Employee's contesting or disputing any
termination of employment, or (ii) the Employee's seeking to obtain or enforce
any right or benefit provided by this Agreement or by any other plan or
arrangement maintained by the Company (or its successors) or the Consolidated
Subsidiaries under which the Employee is or may be entitled to receive benefits;
provided that the Company's obligation to pay such fees and expenses is subject
to the Employee's prevailing with respect to the matters in dispute in any
action initiated by the Employee or the Employee's having been determined to
have acted reasonably and in good faith with respect to any action initiated by
the Company or the Bank.
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10. NON-DISCLOSURE AND NON-SOLICITATION.
(a) NON-DISCLOSURE. The Employee acknowledges that he has
acquired, and will continue to acquire while employed by the Company and/or any
Consolidated Subsidiary, special knowledge of the business, affairs, strategies
and plans of the Company and the Consolidated Subsidiaries which has not been
disclosed to the public and which constitutes confidential and proprietary
business information owned by the Company and the Consolidated Subsidiaries,
including but not limited to, information about the customers, customer lists,
software, data, formulae, processes, inventions, trade secrets, marketing
information and plans, and business strategies of the Company and the
Consolidated Subsidiaries, and other information about the products and services
offered or developed or planned to be offered or developed by the Company and/or
the Consolidated Subsidiaries ("Confidential Information"). The Employee agrees
that, without the prior written consent of the Company, he shall not, during the
term of his employment or at any time thereafter, in any manner directly or
indirectly disclose any Confidential Information to any person or entity other
than the Company and the Consolidated Subsidiaries. Notwithstanding the
foregoing, if the Employee is requested or required (including but not limited
to by oral questions, interrogatories, requests for information or documents in
legal proceeding, subpoena, civil investigative demand or other similar process)
to disclose any Confidential Information the Employee shall provide the Company
with prompt written notice of any such request or requirement so that the
Company and/or a Consolidated Subsidiary may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this Section
10(a). If, in the absence of a protective order or other remedy or the receipt
of a waiver from the Company, the Employee is nonetheless legally compelled to
disclose Confidential Information to any tribunal or else stand liable for
contempt or suffer other censure or penalty, the Employee may, without liability
hereunder, disclose to such tribunal only that portion of the Confidential
Information which the Employee is legally required to be disclosed, provided
that the Employee exercise his best efforts to preserve the confidentiality of
the Confidential Information, including without limitation by cooperating with
the Company and/or a Consolidated Subsidiary to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
the Confidential Information by such tribunal. On the Date of Termination, the
Employee shall promptly deliver to the Company all copies of documents or other
records (including without limitation electronic records) containing any
Confidential Information that is in his possession or under his control, and
shall retain no written or electronic record of any Confidential Information.
(b) NON-SOLICITATION. During the three year period next
following the Date of Termination, the Employee shall not directly or indirectly
solicit, encourage, or induce any person while employed by the Company or any
Consolidated Subsidiary to (i) leave the Company or any Consolidated Subsidiary,
(ii) cease his or her employment with the Company or any Consolidated Subsidiary
or (iii) accept employment with another entity or person.
The provisions of this Section 10 shall survive any termination of the
Employee's employment and any termination of this Agreement.
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11. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto,
and neither party may assign or delegate any of its rights or obligations
hereunder without first obtaining the written consent of the other party;
provided, however, that the Company shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) by
an assumption agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession or assignment had taken place. Failure of the Company to obtain such
an assumption agreement prior to the effectiveness of any such succession or
assignment shall be a breach of this Agreement and shall entitle the Employee to
compensation and benefits from the Company in the same amount and on the same
terms as provided for an Involuntary Termination under Section 7 hereof. For
purposes of implementing the provisions of this Section 11(a), the date on which
any such succession becomes effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Company at its home
office, to the attention of the Board of Directors with a copy to the Secretary
of the Company, or, if to the Employee, to such home or other address as the
Employee has most recently provided in writing to the Company.
13. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
14. HEADINGS. The headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. 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.
16. REINSTATEMENT OF PRIOR AGREEMENT. Notwithstanding anything
contained in this Agreement to the contrary, the parties hereto agree that in
the event a Change in Control occurs within one year from the date of this
Agreement (not the Effective Date), then in that event, the Prior Agreement
shall be reinstated and this Agreement shall become void ab initio.
17. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Ohio.
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18. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement (other than relating to the enforcement of the
provisions of Section 10) shall be settled exclusively by arbitration 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.
19. EQUITABLE AND OTHER JUDICIAL RELIEF. In the event of an actual or
threatened breach by the Employee of any of the provisions of Section 10, the
Company shall be entitled to equitable relief in the form of an injunction from
a court of competent jurisdiction and such other equitable and legal relief as
such court deems appropriate under the circumstances. The parties agree that the
Company shall not be required to post any bond in connection with the grant or
issuance of an injunction (preliminary, temporary and/or permanent) by a court
of competent jurisdiction, and if a bond is nevertheless required, the parties
agree that it shall be in a nominal amount. The parties further agree that in
the event of a breach by the Employee of any of the provisions of Section 10,
the Company will suffer irreparable damage and its remedy at law against the
Employee is inadequate to compensate it for such damage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
Attest: Charter One Financial, Inc.
/s/ Xxxxxx X. Xxxx /s/ Xxxxxxx Xxxx Xxxx
--------------------- ---------------------------
Secretary By: Xxxxxxx Xxxx Xxxx
Its: President & CEO
Employee
/s/ Xxxx X. Xxxx
----------------------------
Xxxx X. Xxxx
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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of this 16th day of March, 2000 (but effective as of August 1, 1999), by and
between Charter One Financial, Inc. (the "Company") and Xxxx X. Xxxxxx (the
"Employee").
WHEREAS, the Employee serves as Executive Vice President of the Company
and as Executive Vice President - Retail Banking of the Company's wholly-owned
subsidiary, Charter One Bank, F.S.B. (the "Bank");
WHEREAS, the Employee has an existing employment agreement entered into
as of October 31, 1995 and amended as of July 29, 1998 (the "Prior Employment
Agreement") which he is willing to terminate in consideration of this Agreement
becoming effective;
WHEREAS, the board of directors of the Company (the "Board of
Directors") believes it is in the best interests of the Company and its
subsidiaries for the Company to enter into this Agreement with the Employee in
order to assure continuity of management of the Company and its subsidiaries;
and
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Employee;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. DEFINITIONS.
(a) The term "Change in Control" means (1) an acquisition of
securities of the Company or the Bank that is determined by the Board of
Directors to constitute an acquisition of control of the Company or the Bank
within the meaning of the Change in Bank Control Act, 12 U.S.C. Section 1817(j),
and applicable regulations thereunder; (2) an event that would be required to be
reported in response to Item 1 of the current report on Form 8-K, as in effect
on the Effective Date, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); (3) any person (as the term is used
in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly
of securities of the Company or the Bank representing 25% or more of the
combined voting power of the Company's or the Bank's outstanding securities; (4)
individuals who are members of the Board of Directors on the Effective Date (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the
Effective Date whose election was approved by a vote of at least three-quarters
of the directors comprising the Incumbent Board, or whose nomination for
election by the Company's stockholders was approved by the nominating committee
serving under an Incumbent
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Board, shall be considered a member of the Incumbent Board; or (5) approval by
the Company's stockholders of a plan of reorganization, merger or consolidation
of the Company, sale of all or substantially all of the assets of the Company, a
similar transaction in which the Company is not the resulting entity, or a
transaction at the completion of which the former stockholders of the acquired
corporation become the holders of more than 40% of the outstanding common stock
of the Company and the Company is the resulting entity of such transaction;
provided that the term "change in control" shall not include an acquisition of
securities by an employee benefit plan of the Bank or the Company. In the
application of regulations under the Change in Bank Control Act, determinations
to be made by the applicable federal banking regulator shall be made by the
Board of Directors.
(b) The term "Consolidated Subsidiaries" means any subsidiary
or subsidiaries of the Company (or its successors) that are part of the
consolidated group of the Company (or its successors) for federal income tax
reporting.
(c) The term "Date of Termination" means the date upon which
the Employee's employment with the Company or the Bank or both ceases, as
specified in a notice of termination pursuant to Section 8 of this Agreement.
(d) The term "Effective Date" means August 1, 1999.
(e) The term "Involuntarily Termination" means the termination
of the employment of Employee (i) by either the Company or the Bank or both
without his express written consent; or (ii) by the Employee by reason of a
material diminution of or interference with his duties, responsibilities or
benefits, including (without limitation) any of the following actions unless
consented to in writing by the Employee: (1) a requirement that the Employee be
based at any place other than Cleveland, Ohio, or within 50 miles thereof,
except for reasonable travel on Company or Bank business; (2) a material
demotion of the Employee; (3) a material reduction in the number or seniority of
personnel reporting to the Employee or a material reduction in the frequency
with which, or in the nature of the matters with respect to which such personnel
are to report to the Employee, other than as part of a Bank- or Company-wide
reduction in staff; (4) a reduction in the Employee's salary or a material
adverse change in the Employee's perquisites, benefits, contingent benefits or
vacation, other than prior to a Change in Control as part of an overall program
applied uniformly and with equitable effect to all members of the senior
management of the Bank or the Company; (5) a material permanent increase in the
required hours of work or the workload of the Employee; or (6) the failure of
the Company or the Bank (or their respective successors) to maintain the
Employee's title, status, duties and functions as Executive Vice President of
the Company and Executive Vice President - Retail Banking of the Bank (including
their respective successors) reporting directly and only to the Chief Executive
Officer of the Company and the Bank (or the Chief Executive Officer of their
respective successors). The term "Involuntary Termination" does not include
Termination for Cause or termination of employment due to death or permanent
disability pursuant to Section 7(g) of this Agreement, or suspension or
temporary or permanent prohibition from participation in the conduct of the
affairs of a depository institution under Section 8 of the Federal Deposit
Insurance Act.
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(f) The terms "Termination for Cause" and "Terminated for
Cause" mean termination of the employment of the Employee with either the
Company or the Bank, as the case may be, because of the Employee's dishonesty,
incompetence, willful misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (excluding violations which do not have an adverse
affect on the Company or the Bank) or final cease-and-desist order, or (except
as provided below) material breach of any provision of this Agreement. No act or
failure to act by the Employee shall be considered willful unless the Employee
acted or failed to act with an absence of good faith and without a reasonable
belief that his action or failure to act was in the best interest of the
Company. The Employee shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to the Employee a copy of a
resolution, duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board of Directors at a meeting of the Board duly
called and held for such purpose (after reasonable notice to the Employee and an
opportunity for the Employee, together with the Employee's counsel, to be heard
before the Board), stating that in the good faith opinion of the Board of
Directors the Employee has engaged in conduct described in the preceding
sentence and specifying the particulars thereof in detail.
2. TERM; TERMINATION OF PRIOR EMPLOYMENT AGREEMENT. The term of this
Agreement shall be a period of five years commencing on the Effective Date,
subject to earlier termination as provided herein. On each anniversary of this
Agreement the term shall be extended for a period of one year in addition to the
then-remaining term, provided that the Company has not given notice to the
Employee in writing at least 90 days prior to such anniversary that the term of
this Agreement shall not be extended further, and provided further that the
Employee has not received an unsatisfactory performance review by either the
Board of Directors or the board of directors of the Bank. The Employee's Prior
Employment Agreement shall terminate immediately prior to the Effective Date
subject to reinstatement as provided in Section 16 below.
3. EMPLOYMENT. The Employee is employed as Executive Vice President of
the Company and as Executive Vice President - Retail Banking of the Bank. As
such, the Employee shall render administrative and management services as are
customarily performed by persons situated in similar executive capacities, and
shall have such other powers and duties as the Board of Directors or the board
of directors of the Bank may prescribe from time to time. The Employee shall
also render services to any subsidiary or subsidiaries of the Company or the
Bank as requested by the Company or the Bank from time to time consistent with
his executive position. The Employee shall devote his best efforts and
reasonable time and attention to the business and affairs of the Company and the
Bank to the extent necessary to discharge his responsibilities hereunder. The
Employee may (i) serve on corporate or charitable boards or committees, and (ii)
manage personal investments, so long as such activities do not interfere
materially with performance of his responsibilities hereunder.
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4. CASH COMPENSATION.
(a) SALARY. The Company agrees to pay the Employee during the
term of this Agreement a base salary (the "Company Salary") the annualized
amount of which shall be not less than the annualized aggregate amount of the
Employee's base salary from the Company and any Consolidated Subsidiaries in
effect at the Effective Date; provided that any amounts of salary actually paid
to the Employee by any Consolidated Subsidiaries shall reduce the amount to be
paid by the Company to the Employee. The Company Salary shall be paid no less
frequently than monthly and shall be subject to customary tax withholding. The
amount of the Employee's Company Salary shall be increased (but shall not be
decreased other than prior to a Change in Control as part of an overall program
applied uniformly and with equitable effect to all members of senior management
of the Company or the Bank) from time to time in accordance with the amounts of
salary approved by the Board of Directors or the board of directors of any of
the Consolidated Subsidiaries after the Effective Date.
(b) BONUSES. The Employee shall be entitled to participate in
an equitable manner with all other executive officers of the Company and the
Bank in such performance-based and discretionary bonuses, if any, as are
authorized and declared by the Board of Directors for executive officers of the
Company and by the board of directors of the Bank for executive officers of the
Bank.
(c) EXPENSES. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in performing
services under this Agreement in accordance with the policies and procedures
applicable to the executive officers of the Company and the Bank, provided that
the Employee accounts for such expenses as required under such policies and
procedures.
(d) DEFERRAL OF NON-DEDUCTIBLE COMPENSATION. In the event that
the Employee's aggregate compensation (including compensatory benefits which are
deemed remuneration for purposes of Section 162(m) of the Internal Revenue Code
of 1986 as amended (the "Code")) from the Company and the Consolidated
Subsidiaries for any calendar year exceeds the greater of (i) $1,000,000 or (ii)
the maximum amount of compensation deductible by the Company or any of the
Consolidated Subsidiaries in any calendar year under Section 162(m) of the Code
(the "maximum allowable amount"), then any such amount in excess of the maximum
allowable amount shall be mandatorily deferred with interest thereon at 8% per
annum, compounded annually, to a calendar year such that the amount to be paid
to the Employee in such calendar year, including deferred amounts and interest
thereon, does not exceed the maximum allowable amount. Subject to the foregoing,
deferred amounts including interest thereon shall be payable at the earliest
time permissible. All unpaid deferred amounts shall be paid to the Employee not
later than his Date of Termination unless his Date of Termination is on a
December 31st, in which case, the unpaid deferred amounts shall be paid to the
Employee on the first business day of the next succeeding calendar year. The
provisions of this subsection shall survive any termination of the Employee's
employment and any termination of this Agreement.
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5. BENEFITS.
(a) PARTICIPATION IN BENEFIT PLANS. The Employee shall be
entitled to participate, to the same extent as executive officers of the Company
and the Bank generally, in all plans of the Company and the Bank relating to
pension, retirement, thrift, profit-sharing, savings, group or other life
insurance, hospitalization, medical and dental coverage, travel and accident
insurance, education, cash bonuses, and other retirement or employee benefits or
combinations thereof. In addition, the Employee shall be entitled to be
considered for benefits under all of the stock and stock option related plans in
which the Company's or the Bank's executive officers are eligible or become
eligible to participate.
(b) FRINGE BENEFITS. The Employee shall be eligible to
participate in, and receive benefits under, any other fringe benefit plans or
perquisites which are or may become generally available to the Company's or the
Bank's executive officers, including but not limited to supplemental retirement,
incentive compensation, supplemental medical or life insurance plans, company
cars, club dues, physical examinations, financial planning and tax preparation
services.
6. VACATIONS; LEAVE. The Employee shall be entitled to annual paid
vacation in accordance with the policies established by the Board of Directors
and the board of directors of the Bank for executive officers, in no event less
than four weeks per year, and to voluntary leaves of absence, with or without
pay, from time to time at such times and upon such conditions as the Board of
Directors may determine in its discretion.
7. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. If the Employee experiences an
Involuntary Termination, such termination of employment shall be subject to the
Company's obligations under this Section 7. In the event of the Involuntary
Termination of the Employee, if the Employee has offered to continue to provide
the services contemplated by and on the terms provided in this Agreement and
such offer has been declined, subject to Section 7(b) of this Agreement, the
Company shall, during the lesser period of the remaining term of this Agreement
or three years following the Date of Termination (the "Liquidated Damage
Period"), as liquidated damages (i) pay to the Employee monthly one-twelfth of
the Company Salary at the annual rate in effect immediately prior to the Date of
Termination and one-twelfth of the average annual amount of cash bonus and cash
incentive compensation of the Employee, based on the average amounts of such
compensation earned by the Employee from the Company and the Bank for the two
full fiscal years preceding the Date of Termination; and (ii) maintain
substantially the same group life insurance, hospitalization, medical, dental,
prescription drug and other health benefits, and long-term disability insurance
(if any) for the benefit of the Employee and his dependents and beneficiaries
who would have been eligible for such benefits if the Employee had not suffered
Involuntary Termination and on terms substantially as favorable to the Employee
including amounts of coverage and deductibles and other costs to him in effect
immediately prior to such Involuntary Termination (the "Employee's Health
Coverage").
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(b) REDUCTION OF THE COMPANY'S OBLIGATIONS UNDER SECTION 7(a).
(1) In the event that the Employee becomes entitled
to liquidated damages pursuant to Section 7(a), (i) the Company's obligation
thereunder with respect to cash damages shall be reduced by the amount of the
Employee's cash income, if any, earned from providing personal services during
the Liquidated Damage Period; and (ii) the Company's obligation to maintain
Health Coverage shall be reduced to the extent, if any, that the Employee
receives such benefits, on no less favorable terms, from another employer during
the Liquidated Damage Period. For purposes of this Section 7(b), the term "cash
income" shall include amounts of salary, wages, bonuses, incentive compensation
and fees paid to the Employee in cash but shall not include shares of stock,
stock options, stock appreciation rights or other earned income not paid to the
Employee in cash. To the extent the provisions of this Section 7(b)(1) are
applicable and an overpayment has been made to the Employee as of the expiration
of Liquidated Damage Period, the Employee shall reimburse the Company in an
amount equal to the after tax benefit realized by the Employee from such
overpayment (i.e. amount realized net of all federal, state, local, employment
and medicare taxes). In making the reimbursement calculation it shall be
presumed that the Employee is subject to the highest marginal federal and state
income tax rates.
(2) The Employee agrees that in the event he becomes
entitled to liquidated damages pursuant to Section 7(a), throughout the
Liquidated Damage Period, he shall promptly inform the Company of the nature and
amounts of cash income and the type of health benefits and coverage which he
earns or receives from providing personal services, and shall provide such
documentation of such cash income and such health benefits and coverage as the
Company may request. In the event of changes to such cash income or such health
benefits or coverage from time to time, the Employee shall inform the Company of
such changes, in each case within five days after the change occurs, and shall
provide such documentation concerning the change as the Company may request.
(c) CHANGE IN CONTROL; CUT BACK; AND TAX GROSS UP. In the
event that the Employee experiences an Involuntary Termination within the 12
months preceding, at the time of, or within 24 months following a Change in
Control, in addition to the Company's obligations under Section 7(a) of this
Agreement, the Company shall pay to the Employee in cash, within 30 days after
the later of the date of such Change in Control or the Date of Termination, an
amount equal to 299% of the Employee's "base amount" as determined under Section
280G of the Code, less the acceleration and lapse value of options granted to
the Employee by the Company prior to January 1, 1999 that are taken into account
in the determination of "parachute payments" under 280G(b)(2) of the Code by
virtue of vesting acceleration or deemed vesting acceleration in connection with
such Change in Control. Notwithstanding the foregoing, for purposes of this
paragraph the Employee shall not be deemed to have experienced an Involuntary
Termination if he is requested to continue his employment under this Agreement
for a period of up to 6 months after a Change in Control and he elects to
terminate his employment at the time of or within 6 months after a Change in
Control solely by reason of an event described in Section 1(e)(ii)(6) of this
Agreement, in which case he shall not be entitled to the Change in Control
payment set forth in this paragraph. In the event the Employee is requested in
connection with or at the time of a Change in Control to continue employment for
an interim period and he shall die while employed during such interim period,
then his estate, or such person as the Employee may have
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previously designated in writing, shall be entitled to the full Change in
Control payment described in this paragraph in lieu of (and not in addition to)
the payment of the Company Salary for 180 days pursuant to Section 7(f)(i)(x)
below.
In the event that any payments, distributions or benefits
provided or to be provided to the Employee, whether pursuant to this Agreement
or from other plans or arrangements maintained by the Company or any of the
Consolidated Subsidiaries (excluding the Adjusted Gross Up Payment and
Additional Gross Up Payment (as such terms are hereinafter defined))
(collectively, the "Payment") would be subject to excise tax under Section 4999
of the Code (such excise tax and any penalties and interest collectively, the
"Penalty Tax"), the Company shall pay to the Employee in cash an additional
amount equal to the Adjusted Gross Up Payment. The "Adjusted Gross Up Payment"
shall be an amount such that after payment by the Employee of all federal,
state, local, employment and medicare taxes thereon (and any penalties and
interest with respect thereto), the Employee retains on an after tax basis a
portion of such amount equal to the aggregate of 80% of the Penalty Tax imposed
upon the Payment and 100% of the Penalty Tax imposed upon the Adjusted Gross Up
Payment.
For purposes of determining the amount of the Adjusted Gross
Up Payment, the value of any non-cash benefits and deferred payments or benefits
subject to the Penalty Tax shall be determined by the Company's independent
auditors in accordance with the principles of Section 280G(d)(3) and (4) of the
Code. In the event that, after the Adjusted Gross Up Payment is made, the
Employee becomes entitled to receive a refund of any portion of the Penalty Tax,
the Employee shall promptly pay to the Company 80% of such Penalty Tax refund
attributable to the Payment (together with 80% of any interest paid or credited
thereon by the Internal Revenue Service) and 100% of the Penalty Tax refund
attributable to the Adjusted Gross Up Payment (together with 100% of any
interest paid or credited thereon by the Internal Revenue Service).
As a result of the uncertainty regarding the application of
Section 4999 of the Code, it is possible that the Internal Revenue Service may
assert that the Penalty Tax due is in excess of the amount of the anticipated
Penalty Tax used in calculating the Adjusted Gross Up Payment (such excess
amount is hereafter referred to as the "Underpayment"). In such event, the
Company shall pay to the Employee, in immediately available funds, at the time
the Underpayment is assessed or otherwise determined, an additional amount equal
to the Additional Gross Up Payment. The "Additional Gross Up Payment" shall be
an amount such that after payment by the Employee of all federal, state, local,
employment and medicare taxes thereon (and any penalties and interest with
respect thereto), the Employee retains on an after tax basis a portion of such
amount equal to the aggregate of (i) 80% of the portion of the Underpayment
attributable to the Payment, (ii) 100% of the portion of the Underpayment
attributable to the Adjusted Gross Up Payment and (iii) 100% of the Penalty Tax
imposed on the Additional Gross Up Payment.
(d) TERMINATION FOR CAUSE. In the event of Termination for
Cause, the Company shall have no further obligation to the Employee under this
Agreement after the Date of Termination other than deferred amounts under
Section 4(d).
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(e) VOLUNTARY TERMINATION. The Employee may terminate his
employment voluntarily at any time by a notice pursuant to Section 8 of this
Agreement. In the event that the Employee voluntarily terminates his employment
other than by reason of any of the actions that constitute Involuntary
Termination under Section 1(e)(ii) of this Agreement ("Voluntary Termination"),
the Company shall be obligated to the Employee for the amount of his Company
Salary and benefits only through the Date of Termination, at the time such
payments are due, and the Company shall have no further obligation to the
Employee under this Agreement except as provided in Section 4(d).
(f) DEATH. In the event of the death of the Employee while
employed under this Agreement and prior to any termination of employment, the
Company shall pay to the Employee's estate, or such person as the Employee may
have previously designated in writing, (i) the Company Salary which was not
previously paid to the Employee and, either (x) the Company Salary which he
would have earned if he had continued to be employed under this Agreement
through the 180th day after the date on which the Employee died or (y) the
Change in Control payment set forth in the first paragraph of Section 7(c),
whichever is applicable; (ii) the amounts of any benefits or awards which,
pursuant to the terms of any applicable plan or plans, were earned with respect
to the fiscal year in which the Employee died and which the Employee would have
been entitled to receive if he had continued to be employed, and the amount of
any bonus or incentive compensation for such fiscal year which the Employee
would have been entitled to receive if he had continued to be employed,
pro-rated in accordance with the portion of the fiscal year prior to his death,
provided that such amounts shall be payable when and as ordinarily payable under
the applicable plans; and (iii) the unpaid deferred amounts under Section 4(d).
(g) PERMANENT DISABILITY. For purposes of this Agreement, the
term "permanently disabled" means that the Employee has a mental or physical
infirmity which permanently impairs his ability to perform substantially his
duties and responsibilities under this Agreement and which results in (i)
eligibility of the Employee under the long-term disability plan of the Company
or the Bank, if any; or (ii) inability of the Employee to perform substantially
his duties and responsibilities under this Agreement for a period of 180
consecutive days. Either the Company or the Bank or both may terminate the
employment of the Employee after having established that the Employee is
permanently disabled.
(h) REGULATORY ACTION. Notwithstanding any other provisions of
this Agreement:
(1) If the Employee is removed and/or permanently
prohibited from participating in the conduct of the affairs of a depository
institution by an order issued under Section 8(e)(4) or (g)(1) of the Federal
Deposit Insurance Act ("FDIA"), 12 U.S.C. Section 1818(e)(4) and (g)(1), all
obligations of the Company under this Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall
not be affected;.
(2) If the Bank is in default (as defined in Section
3(x)(1) of the FDIA), all obligations of the Company under this Agreement shall
terminate as of the date of default, but this provision shall not affect any
vested rights of the contracting parties; and
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(3) All obligations of the Company under this
Agreement shall be terminated, except to the extent determined that continuation
of this Agreement is necessary for the continued operation of the Bank: (i) by
the Director of the Office of Thrift Supervision (the "Director") or his or her
designee, at the time the Federal Deposit Insurance Corporation or the
Resolution Trust Corporation enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) of the
FDIA; or (ii) by the Director or his or her designee, at the time the Director
or his or her designee approves a supervisory merger to resolve problems related
to operation of the Bank or when the Bank is determined by the Director to be in
an unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by any such action.
8. NOTICE OF TERMINATION. In the event that the Company or the Bank, or
both, desire to terminate the employment of the Employee during the term of this
Agreement, the Company or the Bank, or both, shall deliver to the Employee a
written notice of termination, stating whether such termination constitutes
Termination for Cause or Involuntary Termination, setting forth in reasonable
detail the facts and circumstances that are the basis for the termination, and
specifying the date upon which employment shall terminate, which date shall be
at least 30 days after the date upon which the notice is delivered, except in
the case of Termination for Cause. In the event that the Employee determines in
good faith that he has experienced an Involuntary Termination of his employment,
he shall send a written notice to the Company stating the circumstances that
constitute such Involuntary Termination and the date upon which his employment
shall have ceased due to such Involuntary Termination. In the event that the
Employee desires to effect a Voluntary Termination, he shall deliver a written
notice to the Company, stating the date upon which employment shall terminate,
which date shall be at least 30 days after the date upon which the notice is
delivered, unless the parties agree to a date sooner.
9. ATTORNEYS FEES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Employee as a result of (i) the Employee's contesting or disputing any
termination of employment, or (ii) the Employee's seeking to obtain or enforce
any right or benefit provided by this Agreement or by any other plan or
arrangement maintained by the Company (or its successors) or the Consolidated
Subsidiaries under which the Employee is or may be entitled to receive benefits;
provided that the Company's obligation to pay such fees and expenses is subject
to the Employee's prevailing with respect to the matters in dispute in any
action initiated by the Employee or the Employee's having been determined to
have acted reasonably and in good faith with respect to any action initiated by
the Company or the Bank.
10. NON-DISCLOSURE AND NON-SOLICITATION.
(a) NON-DISCLOSURE. The Employee acknowledges that he has
acquired, and will continue to acquire while employed by the Company and/or any
Consolidated Subsidiary, special knowledge of the business, affairs, strategies
and plans of the Company and the Consolidated Subsidiaries which has not been
disclosed to the public and which constitutes
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confidential and proprietary business information owned by the Company and the
Consolidated Subsidiaries, including but not limited to, information about the
customers, customer lists, software, data, formulae, processes, inventions,
trade secrets, marketing information and plans, and business strategies of the
Company and the Consolidated Subsidiaries, and other information about the
products and services offered or developed or planned to be offered or developed
by the Company and/or the Consolidated Subsidiaries ("Confidential
Information"). The Employee agrees that, without the prior written consent of
the Company, he shall not, during the term of his employment or at any time
thereafter, in any manner directly or indirectly disclose any Confidential
Information to any person or entity other than the Company and the Consolidated
Subsidiaries. Notwithstanding the foregoing, if the Employee is requested or
required (including but not limited to by oral questions, interrogatories,
requests for information or documents in legal proceeding, subpoena, civil
investigative demand or other similar process) to disclose any Confidential
Information the Employee shall provide the Company with prompt written notice of
any such request or requirement so that the Company and/or a Consolidated
Subsidary may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Section 10(a). If, in the absence of a
protective order or other remedy or the receipt of a waiver from the Company,
the Employee is nonetheless legally compelled to disclose Confidential
Information to any tribunal or else stand liable for contempt or suffer other
censure or penalty, the Employee may, without liability hereunder, disclose to
such tribunal only that portion of the Confidential Information which the
Employee is legally required to be disclosed, provided that the Employee
exercise his best efforts to preserve the confidentiality of the Confidential
Information, including without limitation by cooperating with the Company and/or
a Consolidated Subsidiary to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the Confidential
Information by such tribunal. On the Date of Termination, the Employee shall
promptly deliver to the Company all copies of documents or other records
(including without limitation electronic records) containing any Confidential
Information that is in his possession or under his control, and shall retain no
written or electronic record of any Confidential Information.
(b) NON-SOLICITATION. During the three year period next
following the Date of Termination, the Employee shall not directly or indirectly
solicit, encourage, or induce any person while employed by the Company or any
Consolidated Subsidiary to (i) leave the Company or any Consolidated Subsidiary,
(ii) cease his or her employment with the Company or any Consolidated Subsidiary
or (iii) accept employment with another entity or person.
The provisions of this Section 10 shall survive any termination of the
Employee's employment and any termination of this Agreement.
11. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto,
and neither party may assign or delegate any of its rights or obligations
hereunder without first obtaining the written consent of the other party;
provided, however, that the Company shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) by
an assumption agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the
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48
Company would be required to perform it if no such succession or assignment had
taken place. Failure of the Company to obtain such an assumption agreement prior
to the effectiveness of any such succession or assignment shall be a breach of
this Agreement and shall entitle the Employee to compensation and benefits from
the Company in the same amount and on the same terms as provided for an
Involuntary Termination under Section 7 hereof. For purposes of implementing the
provisions of this Section 11(a), the date on which any such succession becomes
effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Company at its home
office, to the attention of the Board of Directors with a copy to the Secretary
of the Company, or, if to the Employee, to such home or other address as the
Employee has most recently provided in writing to the Company.
13. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
14. HEADINGS. The headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. 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.
16. REINSTATEMENT OF PRIOR AGREEMENT. Notwithstanding anything
contained in this Agreement to the contrary, the parties hereto agree that in
the event a Change in Control occurs within one year from the date of this
Agreement (not the Effective Date), then in that event, the Prior Agreement
shall be reinstated and this Agreement shall become void ab initio.
17. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Ohio.
18. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement (other than relating to the enforcement of the
provisions of Section 10) shall be settled exclusively by arbitration 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.
19. EQUITABLE AND OTHER JUDICIAL RELIEF. In the event of an actual or
threatened breach by the Employee of any of the provisions of Section 10, the
Company shall be entitled to equitable relief in the form of an injunction from
a court of competent jurisdiction and such other equitable and legal relief as
such court deems appropriate under the circumstances. The parties
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49
agree that the Company shall not be required to post any bond in connection with
the grant or issuance of an injunction (preliminary, temporary and/or permanent)
by a court of competent jurisdiction, and if a bond is nevertheless required,
the parties agree that it shall be in a nominal amount. The parties further
agree that in the event of a breach by the Employee of any of the provisions of
Section 10, the Company will suffer irreparable damage and its remedy at law
against the Employee is inadequate to compensate it for such damage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
Attest: Charter One Financial, Inc.
/s/ Xxxxxx X. Xxxx /s/ Xxxxxxx Xxxx Xxxx
--------------------- ---------------------------
Secretary By: Xxxxxxx Xxxx Xxxx
Its: President & CEO
Employee
/s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx
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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of this 16th day of March, 2000 (but effective as of August 1, 1999), by and
between Charter One Financial, Inc. (the "Company") and Xxxxxx X. Xxxx (the
"Employee").
WHEREAS, the Employee serves as Senior Vice President, Chief Corporate
Counsel and Corporate Secretary of the Company and as Senior Vice President,
Chief Corporate Counsel and Corporate Secretary of the Company's wholly-owned
subsidiary, Charter One Bank, F.S.B. (the "Bank");
WHEREAS, the Employee has an existing employment agreement entered into
as of October 31, 1995 and amended as of July 29, 1998 (the "Prior Employment
Agreement") which he is willing to terminate in consideration of this Agreement
becoming effective;
WHEREAS, the board of directors of the Company (the "Board of
Directors") believes it is in the best interests of the Company and its
subsidiaries for the Company to enter into this Agreement with the Employee in
order to assure continuity of management of the Company and its subsidiaries;
and
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Employee;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. DEFINITIONS.
(a) The term "Change in Control" means (1) an acquisition of
securities of the Company or the Bank that is determined by the Board of
Directors to constitute an acquisition of control of the Company or the Bank
within the meaning of the Change in Bank Control Act, 12 U.S.C. Section 1817(j),
and applicable regulations thereunder; (2) an event that would be required to be
reported in response to Item 1 of the current report on Form 8-K, as in effect
on the Effective Date, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); (3) any person (as the term is used
in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly
of securities of the Company or the Bank representing 25% or more of the
combined voting power of the Company's or the Bank's outstanding securities; (4)
individuals who are members of the Board of Directors on the Effective Date (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the
Effective Date whose election was approved by a vote of at least three-quarters
of the directors comprising the Incumbent Board, or whose nomination for
election by the Company's stockholders was approved by the nominating committee
serving under an Incumbent
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Board, shall be considered a member of the Incumbent Board; or (5)approval by
the Company's stockholders of a plan of reorganization, merger or consolidation
of the Company, sale of all or substantially all of the assets of the Company, a
similar transaction in which the Company is not the resulting entity, or a
transaction at the completion of which the former stockholders of the acquired
corporation become the holders of more than 40% of the outstanding common stock
of the Company and the Company is the resulting entity of such transaction;
provided that the term "change in control" shall not include an acquisition of
securities by an employee benefit plan of the Bank or the Company. In the
application of regulations under the Change in Bank Control Act, determinations
to be made by the applicable federal banking regulator shall be made by the
Board of Directors.
(b) The term "Consolidated Subsidiaries" means any subsidiary
or subsidiaries of the Company (or its successors) that are part of the
consolidated group of the Company (or its successors) for federal income tax
reporting.
(c) The term "Date of Termination" means the date upon which
the Employee's employment with the Company or the Bank or both ceases, as
specified in a notice of termination pursuant to Section 8 of this Agreement.
(d) The term "Effective Date" means August 1, 1999.
(e) The term "Involuntarily Termination" means the termination
of the employment of Employee (i) by either the Company or the Bank or both
without his express written consent; or (ii) by the Employee by reason of a
material diminution of or interference with his duties, responsibilities or
benefits, including (without limitation) any of the following actions unless
consented to in writing by the Employee: (1) a requirement that the Employee be
based at any place other than Cleveland, Ohio, or within 50 miles thereof,
except for reasonable travel on Company or Bank business; (2) a material
demotion of the Employee; (3) a material reduction in the number or seniority of
personnel reporting to the Employee or a material reduction in the frequency
with which, or in the nature of the matters with respect to which such personnel
are to report to the Employee, other than as part of a Bank- or Company-wide
reduction in staff; (4) a reduction in the Employee's salary or a material
adverse change in the Employee's perquisites, benefits, contingent benefits or
vacation, other than prior to a Change in Control as part of an overall program
applied uniformly and with equitable effect to all members of the senior
management of the Bank or the Company; (5) a material permanent increase in the
required hours of work or the workload of the Employee; or (6) the failure of
the Company or the Bank (or their respective successors) to maintain the
Employee's title, status, duties and functions as Senior Vice President, Chief
Corporate Counsel and Corporate Secretary of the Company and Senior Vice
President, Chief Corporate Counsel and Corporate Secretary of the Bank
(including their respective successors) reporting directly and only to the Chief
Executive Officer of the Company and the Bank (or the Chief Executive Officer of
their respective successors). The term "Involuntary Termination" does not
include Termination for Cause or termination of employment due to death or
permanent disability pursuant to Section 7(g) of this Agreement, or suspension
or temporary or permanent prohibition from participation in the
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52
conduct of the affairs of a depository institution under Section 8 of the
Federal Deposit Insurance Act.
(f) The terms "Termination for Cause" and "Terminated for
Cause" mean termination of the employment of the Employee with either the
Company or the Bank, as the case may be, because of the Employee's dishonesty,
incompetence, willful misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (excluding violations which do not have an adverse
affect on the Company or the Bank) or final cease-and-desist order, or (except
as provided below) material breach of any provision of this Agreement. No act or
failure to act by the Employee shall be considered willful unless the Employee
acted or failed to act with an absence of good faith and without a reasonable
belief that his action or failure to act was in the best interest of the
Company. The Employee shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to the Employee a copy of a
resolution, duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board of Directors at a meeting of the Board duly
called and held for such purpose (after reasonable notice to the Employee and an
opportunity for the Employee, together with the Employee's counsel, to be heard
before the Board), stating that in the good faith opinion of the Board of
Directors the Employee has engaged in conduct described in the preceding
sentence and specifying the particulars thereof in detail.
2. TERM; TERMINATION OF PRIOR EMPLOYMENT AGREEMENT. The term of this
Agreement shall be a period of five years commencing on the Effective Date,
subject to earlier termination as provided herein. On each anniversary of this
Agreement the term shall be extended for a period of one year in addition to the
then-remaining term, provided that the Company has not given notice to the
Employee in writing at least 90 days prior to such anniversary that the term of
this Agreement shall not be extended further, and provided further that the
Employee has not received an unsatisfactory performance review by either the
Board of Directors or the board of directors of the Bank. The Employee's Prior
Employment Agreement shall terminate immediately prior to the Effective Date
subject to reinstatement as provided in Section 16 below.
3. EMPLOYMENT. The Employee is employed as Senior Vice President, Chief
Corporate Counsel and Corporate Secretary of the Company and as Senior Vice
President, Chief Corporate Counsel and Corporate Secretary of the Bank. As such,
the Employee shall render administrative and management services as are
customarily performed by persons situated in similar executive capacities, and
shall have such other powers and duties as the Board of Directors or the board
of directors of the Bank may prescribe from time to time. The Employee shall
also render services to any subsidiary or subsidiaries of the Company or the
Bank as requested by the Company or the Bank from time to time consistent with
his executive position. The Employee shall devote his best efforts and
reasonable time and attention to the business and affairs of the Company and the
Bank to the extent necessary to discharge his responsibilities hereunder. The
Employee may (i) serve on corporate or charitable boards or committees, and (ii)
manage personal investments, so long as such activities do not interfere
materially with performance of his responsibilities hereunder.
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4. CASH COMPENSATION.
(a) SALARY. The Company agrees to pay the Employee during the
term of this Agreement a base salary (the "Company Salary") the annualized
amount of which shall be not less than the annualized aggregate amount of the
Employee's base salary from the Company and any Consolidated Subsidiaries in
effect at the Effective Date; provided that any amounts of salary actually paid
to the Employee by any Consolidated Subsidiaries shall reduce the amount to be
paid by the Company to the Employee. The Company Salary shall be paid no less
frequently than monthly and shall be subject to customary tax withholding. The
amount of the Employee's Company Salary shall be increased (but shall not be
decreased other than prior to a Change in Control as part of an overall program
applied uniformly and with equitable effect to all members of senior management
of the Company or the Bank) from time to time in accordance with the amounts of
salary approved by the Board of Directors or the board of directors of any of
the Consolidated Subsidiaries after the Effective Date.
(b) BONUSES. The Employee shall be entitled to participate in
an equitable manner with all other executive officers of the Company and the
Bank in such performance-based and discretionary bonuses, if any, as are
authorized and declared by the Board of Directors for executive officers of the
Company and by the board of directors of the Bank for executive officers of the
Bank.
(c) EXPENSES. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in performing
services under this Agreement in accordance with the policies and procedures
applicable to the executive officers of the Company and the Bank, provided that
the Employee accounts for such expenses as required under such policies and
procedures.
(d) DEFERRAL OF NON-DEDUCTIBLE COMPENSATION. In the event that
the Employee's aggregate compensation (including compensatory benefits which are
deemed remuneration for purposes of Section 162(m) of the Internal Revenue Code
of 1986 as amended (the "Code")) from the Company and the Consolidated
Subsidiaries for any calendar year exceeds the greater of (i) $1,000,000 or (ii)
the maximum amount of compensation deductible by the Company or any of the
Consolidated Subsidiaries in any calendar year under Section 162(m) of the Code
(the "maximum allowable amount"), then any such amount in excess of the maximum
allowable amount shall be mandatorily deferred with interest thereon at 8% per
annum, compounded annually, to a calendar year such that the amount to be paid
to the Employee in such calendar year, including deferred amounts and interest
thereon, does not exceed the maximum allowable amount. Subject to the foregoing,
deferred amounts including interest thereon shall be payable at the earliest
time permissible. All unpaid deferred amounts shall be paid to the Employee not
later than his Date of Termination unless his Date of Termination is on a
December 31st, in which case, the unpaid deferred amounts shall be paid to the
Employee on the first business day of the next succeeding calendar year. The
provisions of this subsection shall survive any termination of the Employee's
employment and any termination of this Agreement.
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5. BENEFITS.
(a) PARTICIPATION IN BENEFIT PLANS. The Employee shall be
entitled to participate, to the same extent as executive officers of the Company
and the Bank generally, in all plans of the Company and the Bank relating to
pension, retirement, thrift, profit-sharing, savings, group or other life
insurance, hospitalization, medical and dental coverage, travel and accident
insurance, education, cash bonuses, and other retirement or employee benefits or
combinations thereof. In addition, the Employee shall be entitled to be
considered for benefits under all of the stock and stock option related plans in
which the Company's or the Bank's executive officers are eligible or become
eligible to participate.
(b) FRINGE BENEFITS. The Employee shall be eligible to
participate in, and receive benefits under, any other fringe benefit plans or
perquisites which are or may become generally available to the Company's or the
Bank's executive officers, including but not limited to supplemental retirement,
incentive compensation, supplemental medical or life insurance plans, company
cars, club dues, physical examinations, financial planning and tax preparation
services.
6. VACATIONS; LEAVE. The Employee shall be entitled to annual paid
vacation in accordance with the policies established by the Board of Directors
and the board of directors of the Bank for executive officers, in no event less
than four weeks per year, and to voluntary leaves of absence, with or without
pay, from time to time at such times and upon such conditions as the Board of
Directors may determine in its discretion.
7. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. If the Employee experiences an
Involuntary Termination, such termination of employment shall be subject to the
Company's obligations under this Section 7. In the event of the Involuntary
Termination of the Employee, if the Employee has offered to continue to provide
the services contemplated by and on the terms provided in this Agreement and
such offer has been declined, subject to Section 7(b) of this Agreement, the
Company shall, during the lesser period of the remaining term of this Agreement
or three years following the Date of Termination (the "Liquidated Damage
Period"), as liquidated damages (i) pay to the Employee monthly one-twelfth of
the Company Salary at the annual rate in effect immediately prior to the Date of
Termination and one-twelfth of the average annual amount of cash bonus and cash
incentive compensation of the Employee, based on the average amounts of such
compensation earned by the Employee from the Company and the Bank for the two
full fiscal years preceding the Date of Termination; and (ii) maintain
substantially the same group life insurance, hospitalization, medical, dental,
prescription drug and other health benefits, and long-term disability insurance
(if any) for the benefit of the Employee and his dependents and beneficiaries
who would have been eligible for such benefits if the Employee had not suffered
Involuntary Termination and on terms substantially as favorable to the Employee
including amounts of coverage and deductibles and other costs to him in effect
immediately prior to such Involuntary Termination (the "Employee's Health
Coverage").
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55
(b) REDUCTION OF THE COMPANY'S OBLIGATIONS UNDER SECTION 7(a).
(1) In the event that the Employee becomes entitled
to liquidated damages pursuant to Section 7(a), (i) the Company's obligation
thereunder with respect to cash damages shall be reduced by the amount of the
Employee's cash income, if any, earned from providing personal services during
the Liquidated Damage Period; and (ii) the Company's obligation to maintain
Health Coverage shall be reduced to the extent, if any, that the Employee
receives such benefits, on no less favorable terms, from another employer during
the Liquidated Damage Period. For purposes of this Section 7(b), the term "cash
income" shall include amounts of salary, wages, bonuses, incentive compensation
and fees paid to the Employee in cash but shall not include shares of stock,
stock options, stock appreciation rights or other earned income not paid to the
Employee in cash. To the extent the provisions of this Section 7(b)(1) are
applicable and an overpayment has been made to the Employee as of the expiration
of Liquidated Damage Period, the Employee shall reimburse the Company in an
amount equal to the after tax benefit realized by the Employee from such
overpayment (i.e. amount realized net of all federal, state, local, employment
and medicare taxes). In making the reimbursement calculation it shall be
presumed that the Employee is subject to the highest marginal federal and state
income tax rates.
(2) The Employee agrees that in the event he becomes
entitled to liquidated damages pursuant to Section 7(a), throughout the
Liquidated Damage Period, he shall promptly inform the Company of the nature and
amounts of cash income and the type of health benefits and coverage which he
earns or receives from providing personal services, and shall provide such
documentation of such cash income and such health benefits and coverage as the
Company may request. In the event of changes to such cash income or such health
benefits or coverage from time to time, the Employee shall inform the Company of
such changes, in each case within five days after the change occurs, and shall
provide such documentation concerning the change as the Company may request.
(c) CHANGE IN CONTROL; CUT BACK; AND TAX GROSS UP. In the
event that the Employee experiences an Involuntary Termination within the 12
months preceding, at the time of, or within 24 months following a Change in
Control, in addition to the Company's obligations under Section 7(a) of this
Agreement, the Company shall pay to the Employee in cash, within 30 days after
the later of the date of such Change in Control or the Date of Termination, an
amount equal to 299% of the Employee's "base amount" as determined under Section
280G of the Code, less the acceleration and lapse value of options granted to
the Employee by the Company prior to January 1, 1999 that are taken into account
in the determination of "parachute payments" under 280G(b)(2) of the Code by
virtue of vesting acceleration or deemed vesting acceleration in connection with
such Change in Control. Notwithstanding the foregoing, for purposes of this
paragraph the Employee shall not be deemed to have experienced an Involuntary
Termination if he is requested to continue his employment under this Agreement
for a period of up to 6 months after a Change in Control and he elects to
terminate his employment at the time of or within 6 months after a Change in
Control solely by reason of an event described in Section 1(e)(ii)(6) of this
Agreement, in which case he shall not be entitled to the Change in Control
payment set forth in this paragraph. In the event the Employee is requested in
connection with or at the time of a Change in Control to continue employment for
an interim period and he shall die while employed during such interim period,
then his estate, or such person as the Employee may have
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previously designated in writing, shall be entitled to the full Change in
Control payment described in this paragraph in lieu of (and not in addition to)
the payment of the Company Salary for 180 days pursuant to Section 7(f)(i)(x)
below.
In the event that any payments, distributions or benefits
provided or to be provided to the Employee, whether pursuant to this Agreement
or from other plans or arrangements maintained by the Company or any of the
Consolidated Subsidiaries (excluding the Adjusted Gross Up Payment and
Additional Gross Up Payment (as such terms are hereinafter defined))
(collectively, the "Payment") would be subject to excise tax under Section 4999
of the Code (such excise tax and any penalties and interest collectively, the
"Penalty Tax"), the Company shall pay to the Employee in cash an additional
amount equal to the Adjusted Gross Up Payment. The "Adjusted Gross Up Payment"
shall be an amount such that after payment by the Employee of all federal,
state, local, employment and medicare taxes thereon (and any penalties and
interest with respect thereto), the Employee retains on an after tax basis a
portion of such amount equal to the aggregate of 80% of the Penalty Tax imposed
upon the Payment and 100% of the Penalty Tax imposed upon the Adjusted Gross Up
Payment.
For purposes of determining the amount of the Adjusted Gross
Up Payment, the value of any non-cash benefits and deferred payments or benefits
subject to the Penalty Tax shall be determined by the Company's independent
auditors in accordance with the principles of Section 280G(d)(3) and (4) of the
Code. In the event that, after the Adjusted Gross Up Payment is made, the
Employee becomes entitled to receive a refund of any portion of the Penalty Tax,
the Employee shall promptly pay to the Company 80% of such Penalty Tax refund
attributable to the Payment (together with 80% of any interest paid or credited
thereon by the Internal Revenue Service) and 100% of the Penalty Tax refund
attributable to the Adjusted Gross Up Payment (together with 100% of any
interest paid or credited thereon by the Internal Revenue Service).
As a result of the uncertainty regarding the application of
Section 4999 of the Code, it is possible that the Internal Revenue Service may
assert that the Penalty Tax due is in excess of the amount of the anticipated
Penalty Tax used in calculating the Adjusted Gross Up Payment (such excess
amount is hereafter referred to as the "Underpayment"). In such event, the
Company shall pay to the Employee, in immediately available funds, at the time
the Underpayment is assessed or otherwise determined, an additional amount equal
to the Additional Gross Up Payment. The "Additional Gross Up Payment" shall be
an amount such that after payment by the Employee of all federal, state, local,
employment and medicare taxes thereon (and any penalties and interest with
respect thereto), the Employee retains on an after tax basis a portion of such
amount equal to the aggregate of (i) 80% of the portion of the Underpayment
attributable to the Payment, (ii) 100% of the portion of the Underpayment
attributable to the Adjusted Gross Up Payment and (iii) 100% of the Penalty Tax
imposed on the Additional Gross Up Payment.
(d) TERMINATION FOR CAUSE. In the event of Termination for
Cause, the Company shall have no further obligation to the Employee under this
Agreement after the Date of Termination other than deferred amounts under
Section 4(d).
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(e) VOLUNTARY TERMINATION. The Employee may terminate his
employment voluntarily at any time by a notice pursuant to Section 8 of this
Agreement. In the event that the Employee voluntarily terminates his employment
other than by reason of any of the actions that constitute Involuntary
Termination under Section 1(e)(ii) of this Agreement ("Voluntary Termination"),
the Company shall be obligated to the Employee for the amount of his Company
Salary and benefits only through the Date of Termination, at the time such
payments are due, and the Company shall have no further obligation to the
Employee under this Agreement except as provided in Section 4(d).
(f) DEATH. In the event of the death of the Employee while
employed under this Agreement and prior to any termination of employment, the
Company shall pay to the Employee's estate, or such person as the Employee may
have previously designated in writing, (i) the Company Salary which was not
previously paid to the Employee and, either (x) the Company Salary which he
would have earned if he had continued to be employed under this Agreement
through the 180th day after the date on which the Employee died or (y) the
Change in Control payment set forth in the first paragraph of Section 7(c),
whichever is applicable; (ii) the amounts of any benefits or awards which,
pursuant to the terms of any applicable plan or plans, were earned with respect
to the fiscal year in which the Employee died and which the Employee would have
been entitled to receive if he had continued to be employed, and the amount of
any bonus or incentive compensation for such fiscal year which the Employee
would have been entitled to receive if he had continued to be employed,
pro-rated in accordance with the portion of the fiscal year prior to his death,
provided that such amounts shall be payable when and as ordinarily payable under
the applicable plans; and (iii) the unpaid deferred amounts under Section 4(d).
(g) PERMANENT DISABILITY. For purposes of this Agreement, the
term "permanently disabled" means that the Employee has a mental or physical
infirmity which permanently impairs his ability to perform substantially his
duties and responsibilities under this Agreement and which results in (i)
eligibility of the Employee under the long-term disability plan of the Company
or the Bank, if any; or (ii) inability of the Employee to perform substantially
his duties and responsibilities under this Agreement for a period of 180
consecutive days. Either the Company or the Bank or both may terminate the
employment of the Employee after having established that the Employee is
permanently disabled.
(h) REGULATORY ACTION. Notwithstanding any other provisions of
this Agreement:
(1) If the Employee is removed and/or permanently
prohibited from participating in the conduct of the affairs of a depository
institution by an order issued under Section 8(e)(4) or (g)(1) of the Federal
Deposit Insurance Act ("FDIA"), 12 U.S.C. Section 1818(e)(4) and (g)(1), all
obligations of the Company under this Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall
not be affected;.
(2) If the Bank is in default (as defined in Section
3(x)(1) of the FDIA), all obligations of the Company under this Agreement shall
terminate as of the date of default, but this provision shall not affect any
vested rights of the contracting parties; and
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(3) All obligations of the Company under this
Agreement shall be terminated, except to the extent determined that continuation
of this Agreement is necessary for the continued operation of the Bank: (i)by
the Director of the Office of Thrift Supervision (the "Director") or his or her
designee, at the time the Federal Deposit Insurance Corporation or the
Resolution Trust Corporation enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) of the
FDIA; or (ii)by the Director or his or her designee, at the time the Director or
his or her designee approves a supervisory merger to resolve problems related to
operation of the Bank or when the Bank is determined by the Director to be in an
unsafe or unsound condition. Any rights of the parties that have already vested,
however, shall not be affected by any such action.
8. NOTICE OF TERMINATION. In the event that the Company or the Bank, or
both, desire to terminate the employment of the Employee during the term of this
Agreement, the Company or the Bank, or both, shall deliver to the Employee a
written notice of termination, stating whether such termination constitutes
Termination for Cause or Involuntary Termination, setting forth in reasonable
detail the facts and circumstances that are the basis for the termination, and
specifying the date upon which employment shall terminate, which date shall be
at least 30 days after the date upon which the notice is delivered, except in
the case of Termination for Cause. In the event that the Employee determines in
good faith that he has experienced an Involuntary Termination of his employment,
he shall send a written notice to the Company stating the circumstances that
constitute such Involuntary Termination and the date upon which his employment
shall have ceased due to such Involuntary Termination. In the event that the
Employee desires to effect a Voluntary Termination, he shall deliver a written
notice to the Company, stating the date upon which employment shall terminate,
which date shall be at least 30 days after the date upon which the notice is
delivered, unless the parties agree to a date sooner.
9. ATTORNEYS FEES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Employee as a result of (i) the Employee's contesting or disputing any
termination of employment, or (ii) the Employee's seeking to obtain or enforce
any right or benefit provided by this Agreement or by any other plan or
arrangement maintained by the Company (or its successors) or the Consolidated
Subsidiaries under which the Employee is or may be entitled to receive benefits;
provided that the Company's obligation to pay such fees and expenses is subject
to the Employee's prevailing with respect to the matters in dispute in any
action initiated by the Employee or the Employee's having been determined to
have acted reasonably and in good faith with respect to any action initiated by
the Company or the Bank.
10. NON-DISCLOSURE AND NON-SOLICITATION.
(a) NON-DISCLOSURE. The Employee acknowledges that he has
acquired, and will continue to acquire while employed by the Company and/or any
Consolidated Subsidiary, special knowledge of the business, affairs, strategies
and plans of the Company and the Consolidated Subsidiaries which has not been
disclosed to the public and which constitutes
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confidential and proprietary business information owned by the Company and the
Consolidated Subsidiaries, including but not limited to, information about the
customers, customer lists, software, data, formulae, processes, inventions,
trade secrets, marketing information and plans, and business strategies of the
Company and the Consolidated Subsidiaries, and other information about the
products and services offered or developed or planned to be offered or developed
by the Company and/or the Consolidated Subsidiaries ("Confidential
Information"). The Employee agrees that, without the prior written consent of
the Company, he shall not, during the term of his employment or at any time
thereafter, in any manner directly or indirectly disclose any Confidential
Information to any person or entity other than the Company and the Consolidated
Subsidiaries. Notwithstanding the foregoing, if the Employee is requested or
required (including but not limited to by oral questions, interrogatories,
requests for information or documents in legal proceeding, subpoena, civil
investigative demand or other similar process) to disclose any Confidential
Information the Employee shall provide the Company with prompt written notice of
any such request or requirement so that the Company and/or a Consolidated
Subsidiary may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Section 10(a). If, in the absence of a
protective order or other remedy or the receipt of a waiver from the Company,
the Employee is nonetheless legally compelled to disclose Confidential
Information to any tribunal or else stand liable for contempt or suffer other
censure or penalty, the Employee may, without liability hereunder, disclose to
such tribunal only that portion of the Confidential Information which the
Employee is legally required to be disclosed, provided that the Employee
exercise his best efforts to preserve the confidentiality of the Confidential
Information, including without limitation by cooperating with the Company and/or
a Consolidated Subsidiary to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the Confidential
Information by such tribunal. On the Date of Termination, the Employee shall
promptly deliver to the Company all copies of documents or other records
(including without limitation electronic records) containing any Confidential
Information that is in his possession or under his control, and shall retain no
written or electronic record of any Confidential Information.
(b) NON-SOLICITATION. During the three year period next
following the Date of Termination, the Employee shall not directly or indirectly
solicit, encourage, or induce any person while employed by the Company or any
Consolidated Subsidiary to (i) leave the Company or any Consolidated Subsidiary,
(ii) cease his or her employment with the Company or any Consolidated Subsidiary
or (iii) accept employment with another entity or person.
The provisions of this Section 10 shall survive any termination of the
Employee's employment and any termination of this Agreement.
11. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto,
and neither party may assign or delegate any of its rights or obligations
hereunder without first obtaining the written consent of the other party;
provided, however, that the Company shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) by
an assumption agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the
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Company would be required to perform it if no such succession or assignment had
taken place. Failure of the Company to obtain such an assumption agreement prior
to the effectiveness of any such succession or assignment shall be a breach of
this Agreement and shall entitle the Employee to compensation and benefits from
the Company in the same amount and on the same terms as provided for an
Involuntary Termination under Section 7 hereof. For purposes of implementing the
provisions of this Section 11(a), the date on which any such succession becomes
effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Company at its home
office, to the attention of the Board of Directors with a copy to the Secretary
of the Company, or, if to the Employee, to such home or other address as the
Employee has most recently provided in writing to the Company.
13. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
14. HEADINGS. The headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. 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.
16. REINSTATEMENT OF PRIOR AGREEMENT. Notwithstanding anything
contained in this Agreement to the contrary, the parties hereto agree that in
the event a Change in Control occurs within one year from the date of this
Agreement (not the Effective Date), then in that event, the Prior Agreement
shall be reinstated and this Agreement shall become VOID AB INITIO.
17. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Ohio.
18. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement (other than relating to the enforcement of the
provisions of Section 10) shall be settled exclusively by arbitration 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.
19. EQUITABLE AND OTHER JUDICIAL RELIEF. In the event of an actual or
threatened breach by the Employee of any of the provisions of Section 10, the
Company shall be entitled to equitable relief in the form of an injunction from
a court of competent jurisdiction and such other equitable and legal relief as
such court deems appropriate under the circumstances. The parties
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agree that the Company shall not be required to post any bond in connection with
the grant or issuance of an injunction (preliminary, temporary and/or permanent)
by a court of competent jurisdiction, and if a bond is nevertheless required,
the parties agree that it shall be in a nominal amount. The parties further
agree that in the event of a breach by the Employee of any of the provisions of
Section 10, the Company will suffer irreparable damage and its remedy at law
against the Employee is inadequate to compensate it for such damage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
Attest: Charter One Financial, Inc.
/s/ Xxxxxxx X. Xxx /s/ Xxxxxxx Xxxx Xxxx
--------------------- ---------------------------
Executive Vice President By: Xxxxxxx Xxxx Xxxx
Its: President & CEO
Employee
/s/ Xxxxxx X. Xxxx
----------------------------
Xxxxxx X. Xxxx
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