Exhibit 10.2
EMPLOYMENT AGREEMENT
(Updated to 01-01-2000)
THIS AGREEMENT is made and entered into (effective) the 31/st/ day of
March, 1998, and as amended from time to time by and among FC Banc Corp., an
Ohio bank holding company (the "Holding Company") and its wholly owned
subsidiary The Farmers Citizens Bank, an Ohio-chartered, FDIC-insured bank (the
"Bank") and ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Executive"). Any reference to "FRB" herein
shall mean the Board of Governors of the Federal Reserve System and any
reference to "FDIC" herein shall mean the Federal Deposit Insurance Corporation.
Any reference to "Superintendent" herein shall mean the Ohio Superintendent of
Banks. Any reference herein to the "Employer" shall mean either or both of the
Holding Company and the Bank, as appropriate in a given case.
WHEREAS, the parties wish this Agreement to supersede all prior
understandings, agreements and contracts, whether written or oral, between or
among the parties hereto that concern the subject matter hereof;
NOW THEREFORE, in consideration of the performance of the responsibilities
of the Executive and upon the other terms and conditions hereinafter provided,
the parties hereto agree as follows:
1. Employment.
(a) The Executive shall be employed as President and Chief Executive
Officer of the Bank and the Holding Company. The Executive also agrees to serve
as a director of both the Holding Company and the Bank when appointed by the
respective Boards of Directors and when elected by the respective shareholders.
The Board of Directors of each of the Bank and the Holding Company shall
undertake every lawful effort to ensure that Executive continues throughout the
term of this Agreement to be nominated for election to the Board of Directors of
each of the Bank and the Holding Company, and to recommend that shareholder(s)
of each of the Bank and Holding Company vote in favor of Executive's election as
a director. The Executive shall comply with Ohio Revised Code Sec. 1115.03 with
regard to qualification as a director. The Executive shall not receive any
compensation or fees for his service on or attendance at meetings of (i) the
Bank's Board of Directors or committees thereof or (ii) the Holding Company
Board of Directors or committees thereof, nor shall he receive any compensation
or fees for attendance at shareholders' meetings.
2. Compensation.
In consideration for his services, Executive will be paid a base salary of
$96,700.00 per year, or such other greater amount as may be agreed upon from
time to time, payable every two weeks or in accord with whatever pay schedule is
then currently in effect for all employees.
3. Specified Additional Employment Terms.
(a) In addition to his base salary, Bank will provide Executive with:
(i) all benefits provided to full-time executives of the Company;
(ii) Salary Continuation Agreement as more particularly set forth in an
agreement dated October 20, 1998;
(iii) Executive's dues at a suitable Country Club to be mutually agreed upon and
reasonable expenses associated with Executive's use of said Club in carrying out
his duties as president and chief executive officer of the Bank;
(iv) reimbursement of all reasonable expenses incurred by Executive in
promoting the business of the Bank;
(v) reimbursement of the reasonable expenses of attendance at the annual
meetings of the Ohio Bankers Association, the CBAO, and Sheshunoff Affiliation
Meetings.
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(vi) four weeks paid vacation each year which shall not cumulate from year to
year and shall be taken at times approved by the Board of Directors;
(vii) bonus as provided in Schedule A attached hereto;
(viii) options to purchase stock in the Bank as provided in Schedule B attached
hereto;
(ix) Executive's Rotary dues;
(x) Executive's health center/fitness family dues for YMCA membership;
(xi) complete physical exam annually;
(xii) long term disability insurance
(b) The Executive shall be furnished with a private office,
stenographic and other necessary secretarial assistance, and with such other
facilities, amenities and services as are appropriate for the Executive's
position as President and Chief Executive Officer of the Employer and adequate
for the performance of his duties hereunder (including a mobile telephone, an
automobile and expenses associated therewith). Executive shall have the right
to purchase the bank's automobile at fair market value in the event Executive
terminates his employment or is terminated by the Bank.
4. Standards of Performance.
Executive agrees that he will devote his best efforts and his entire
business time during regular business hours to the business of the Holding
Company/Bank and its subsidiaries, will conduct himself in a manner that will
reflect credit on the Holding Company/Bank, will supervise the day-to-day
operations of the Holding Company/Bank, and will carry out the duties and
policies assigned to him by the Holding Company's/Bank's Board of Directors,
through the Chairman of the Board. Executive agrees that he will not, during
the term of this Agreement, be engaged in any other business activity whether or
not such business activity is pursued for gain, profit or other pecuniary
advantage without prior written consent of the Board of Directors; provided,
however, Executive shall not be restricted from investing his assets in such
form or manner as will not require any services on the part of Executive in the
operation of the affairs of the enterprises in which such investments are made.
5. Term.
The term of employment under this Agreement shall be for a period of
three years commencing March 31, 1998 (hereinafter referred to as the
"anniversary date"). Commencing on the anniversary date of this Agreement, and
continuing at each anniversary date thereafter, this Agreement shall
automatically renew for three (3) additional years beyond the then effective
expiration date, such that the then remaining term of this Agreement shall be
continuously three (3) years; provided, however, that the term of this Agreement
shall not be automatically extended for an additional term at any anniversary
date if written notice is provided to the Executive at least 90 days prior to
such anniversary date at the election of either Employer, acting through its
Board of Directors, not to permit the automatic extension. Such election shall
not, however, affect the then remaining term of this Agreement. References
herein to the term of this Agreement shall refer both to such initial term and
such extended terms.
6. Termination of Employment.
The Holding Company/Bank may terminate Executive's employment at any
time, but, in the event such termination by the Holding Company/Bank is other
than termination for cause, then Executive shall receive severance pay in the
amount equal to the compensation remaining to be paid under the then current
term of the contract (i.e. up to three years and not less than two years
depending upon when the termination occurs in the
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contract year); payable in a lump sum within thirty days. (All employee benefits
shall continue for a period of ninety days). (In the event Executive becomes
disabled all employee benefits shall continue for a period of six (6) months.)
Such amount shall be in full and complete satisfaction of any and all
claims which Executive may have against the Holding Company and Bank (excluding
rights under COBRA) except Executive's rights under the company's 401K or other
retirement plan, or any vested stock options employee may hold, if any.
Termination will eliminate Executive's rights under the Holding Company's/Bank's
split dollar life insurance program. (Executive shall have the right to
purchase any life insurance on his life then in effect for its then current cash
value from the bank). Upon such termination, Executive shall immediately resign
as a Director of both the Holding Company and the Bank.
7. Termination of Employment for Cause.
Executive may be terminated for cause for personal or professional
dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional or persistent failure to perform stated duties,
willful violation of any law, rule, or regulation (other than traffic violations
or similar offenses) which materially affects the Holding Company/Bank, or
material breaches of any provision of this Agreement. "Incompetence" shall mean
the Executive's inability to perform his duties hereunder due to insufficient
knowledge or skills; when determining incompetence, the Board of Directors of
the Bank and the Holding Company, respectively, shall among other things,
consider the Bank's CAMELS rating (a rate of 4 or 5 shall be considered "cause")
and the Holding Company's BOPEC rating (a rating of 4 or 5 shall be considered
"cause") relative to the Ohio banking industry peer group and measure the
Executive's acts and omissions against standards then prevailing in the Ohio
banking industry.
Executive may also be terminated for cause if the becomes incapacitated or
disabled in a way that prevents or seriously impairs his ability to carry out
his duties for a period of six months or longer. Termination of the Executive
for any other reason shall not be "termination for cause." For the purposes of
this paragraph, no act, or failure to act, on Executive's part shall be
considered "willful" unless done, or omitted to be done, by Executive in bad
faith and without reasonable belief that Executive's action or omission was in,
or not opposed to the best interests of the Holding Company/Bank.
Notwithstanding the foregoing, except in cases involving personal or
professional dishonesty, Executive shall not be deemed to have been terminated
for cause unless and until there shall have been delivered to Executive a copy
of a resolution duly adopted by the affirmative vote of not less than seventy
per cent of the entire membership of the Board of Directors at a meeting of the
Board of Directors called and held for the purpose (after reasonable notice to
Executive and an opportunity for Executive to be heard before the Board),
finding that in the good faith opinion of the Board of Directors Executive was
guilty of the conduct set forth above in this paragraph and specifying the
particulars thereof. Upon such finding by the Board of Directors, Executive
shall immediately resign as a Director of the Holding Company and the Bank.
Executive shall have no right to receive compensation or other benefits for any
period after termination for cause; except that, if such termination is on the
grounds of incapacity or disability, Executive shall continue to receive
benefits under any disability compensation plan or insurance.
8. Material Change of Benefits or Responsibilities.
Executive shall have the right to treat any material reduction in his
salary or benefits, or transfer to a location outside ▇▇▇▇▇▇▇▇ County, Ohio, or
significant change in status or responsibilities without his consent as
termination without cause as of the date Executive gives written notice to the
Holding Company/Bank that he elects to do so. Such notice shall be given within
15 days of such event. Acceptance of any such change by Executive for a period
of less than 15 days shall not be deemed to be consent unless Executive
specifically consents to such change in writing. Notwithstanding the foregoing,
Executive shall not have the right to treat any such reduction, transferor
change as termination without cause unless the Holding Company/Bank fails to
retract the action leading to such reduction, transfer or change within fifteen
(15) days following its receipt of written notice from Executive objecting to
such reduction, transfer or change.
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Executive shall have the right to treat a change of ownership or control of
the holding company as a termination without cause. For this purpose, change of
ownership or control occurs when any new person, new group of persons acting in
concert, or new syndicate acquires 20% or more of the outstanding stock of the
company.
9. Suspension of Employment.
If Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Holding Company's/Bank's affairs by a notice
served under section 8(e) of the Federal Deposit Insurance Act (12 U.S.C. Sec.
1818(e)), the Holding Company/Bank's obligations under this Agreement shall be
suspended as of the date of service, unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, the Holding Company/Bank shall
reinstate any of its obligations which were suspended.
10. Regulatory Removal of Executive.
If the Executive is removed from office and/or permanently prohibited
from participating in the conduct of the Holding Company's affairs or the Bank's
affairs by an order issued under Section 8(e)(4) or (g)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. Section 1818(e)(4) or (g)(1), all obligations
of the Employer under this Agreement shall terminate as of the effective date of
the order, but vested rights of the contracting parties shall not be affected.
For purposes of this paragraph, "vested rights" shall include but not be limited
to company provided life insurance, disability insurance, right to purchase
health insurance at Executive's expense, the right of the Executive to purchase
bank car, 401K plan vested rights, right to acquire split dollar insurance at
cash value, and stock options.
11. Solvency of Holding Company and Bank.
(a) If the Holding Company/Bank is declared insolvent by the
Superintendent (defined with reference to Section 1125.18 of the Ohio Revised
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Code), all obligations under this Agreement shall terminate as of the date of
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default, but vested rights of the contracting parties shall not be affected.
(b) All obligations under this Agreement shall be terminated, except
to the extent determined that continuation of the contract is necessary for the
continued operation of the Bank, by the FRB or its designee at the time the FDIC
enters into an agreement to provide assistance to or on behalf of the Holding
Company/Bank under the authority contained in Section 13(c) of the Federal
Deposit Insurance Act, 12 U.S.C. Sec. 1823(c). Any rights of the parties that
have already vested, however, shall not be affected by such action.
(c) Notwithstanding any provision in this Agreement to the contrary,
in the event the Holding Company/Bank files a voluntary bankruptcy petition
under Title 11 of the United States Code or an involuntary bankruptcy petition
with respect to the Holding Company/Bank is not dismissed within sixty (60) days
of filing, and provided the Bank has not been declared insolvent by the
Superintendent, then the Holding Company/Bank shall have the right upon ninety
(90) days' prior notice to the Executive to terminate this Agreement without
further obligation hereunder.
(d) Nothing herein shall deprive Executive of any vested benefits
that he has in the Holding Company/Bank's 401(K) or other retirement plan.
12. Successors; Binding Agreement.
The Holding Company/Bank will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Holding Company or the
Bank, by an assumption agreement in form and substance satisfactory to the
Executive, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Holding Company/Bank would be required to
perform it if no such succession had taken place. Failure of the Employer to
obtain such assumption agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the Executive
to severance pay as set forth in Paragraph 6 herein.
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13. Enforceability.
This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributes, devisees and legatees.
14. No Assignments.
This Agreement is personal to each of the parties hereto, and, except
as provided in Paragraph 13, neither party may assign or delegate any of its
rights or obligations hereunder without first obtaining the written consent of
the other party.
15. Non-waiver; Amendment.
No provision of this Agreement may be modified, waived or discharged
unless such modification, waiver or discharge is agreed to in writing signed by
Executive and the Chairman of the Board of the Holding Company/Bank . No waiver
by either party hereto at any time of any breach by the other party hereto of,
or of compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Ohio.
16. Resignation.
If Executive terminates his employment with the Bank for any reason
other than as provided in paragraph 8 hereof, then Executive agrees that he will
resign from the Board of Directors of the Holding Company and the Bank and
further agrees that he will not, for a period of three years following
termination, disclose, use or otherwise exploit for his own benefit, any
confidential information disclosed to him of which he became aware by reason of
his employment with the Holding Company/Bank.
17. Notices.
Except as otherwise provided in this Agreement, all notices, offers,
acceptances and other communications hereunder shall be made in writing signed
by the party making the same, shall specify the paragraph hereunder pursuant to
which it is given, and shall be deemed given on the date of personal delivery or
on the date of mailing, if sent by certified or register United States mail,
postage prepaid, to the following addresses:
If to Executive, address to:
▇▇. ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to the Bank, addressed to:
Farmers Citizens Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Chairman of the Board
or to such other address as either party may specify by written notice to the
other party.
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18. Survival of Provisions.
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision.
19. Supervisory Action.
Notwithstanding provisions herein to the contrary, this Agreement is
subject to any action that may be taken by the appropriate Federal Bank
supervisory authorities pursuant to Section 38 and 39 of the Federal Deposit
Insurance Corporation Improvement Act of 1991 and implementing regulations
issued there under, as may be in effect from time to time, and any other
applicable Federal Law.
20. Stock Option.
The Option Agreement set forth in Schedule B shall not become
effective unless and until it shall be approved by a majority vote of the
Shareholders of the Holding Company/Bank and shall have received any required
regulatory agency approvals.
21. Attorney Fees.
In the event any dispute should arise between the parties hereto
concerning the provisions of this Employment Contract, and such dispute results
in the filing of legal action, then the party who prevails in such legal action
shall be entitled to receive from the losing party all attorney's fees, costs
and expenses arising out of said dispute.
22. Additional Retirement Funding.
In the event, because of nondiscrimination requirements, executive is
limited in the amount he may contribute to his 401K plan, Bank will deposit:
(a) an amount equal to the maximum possible match (less the maximum
allowable matching contribution) which would be allowed to executive but for the
nondiscrimination regulations;
(b) an amount equal to the taxes incurred on the contribution
outlined in paragraph a) plus an amount equal to the taxes incurred on
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executive's non allowed contribution (due to nondiscrimination regulations);
Bank will deposit the above funds at executive's direction by April
15/th/ of each plan year, subject to year end adjustments.
The purpose of this clause is to allow Executive to fund his
retirement so that the net effect to executive is the same as if executive were
able to maximize his 401K contributions.
In the event Executive leaves the company during any year and this
provision has already been funded for the year, the contribution shall be
prorated and the company shall be reimbursed for any part of the year which has
not been earned, by deduction from Executive's last pay check(s).
23. Paragraph Headings.
The paragraph 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.
In witness whereof, the parties hereto have executed this Agreement as
of the date above written.
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WITNESSES: FC BANC CORP.
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Chairman of the Board of Directors
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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WITNESSES: FARMERS CITIZENS BANK
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Chairman of the Board of Directors
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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WITNESSES:
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ /S/ ▇. ▇▇▇▇▇▇▇▇▇ Holden
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▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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SCHEDULE A
1999 Bonus / Incentive Plan
(As Relates to ▇. ▇. ▇▇▇▇▇▇)
Threshold I: Holding Company net income $1,050,000, 5% increase over 1998
earnings
Bonus at $1,050,000.00 - $15,000.00
Threshold II: Holding Company net income $1,075,000, 7.5% increase over 1998
earnings
Bonus at $1,075,000.00 - $25,000.00
Threshold III: Holding Company net income $1,100,000, 10% increase over 1998
earnings.
Bonus at $1,100,000.00 - $40,000.00
Qualifications
1. ROA of 1% or higher
2. All examinations be satisfactory; CAMELS of 2 or higher.
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SCHEDULE B
1997
On May 6, ▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ was granted a 10 year qualified stock option to
purchase 8,125 shares of common stock at $44.00 per share. The option vests in
five equal annual installments beginning May 6, 1998 and ending May 2, 2002.
Adjusted for 2:1 split on 8-14-98 so that option is 16,250 @ $22.00/share.
1998
On March 3, ▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ was granted a 10 year qualified stock option to
purchase 1,100 shares of common stock at $44.00 per share. The option vests in
five equal annual installments beginning March 3, 1999 and ending March 3, 2003.
Adjusted for 2:1 split on 8-14-98 so that option is 2,200 @ $22.00/share.
1999
On March 24, 1999 ▇.▇. ▇▇▇▇▇▇ was granted a 10 year qualified stock option to
purchase 1,800 shares of common stock at $28.00 per share (adjusted for split).
The option vests in five equal annual installments beginning March 24, 2000 and
ending March 24, 2004.
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