Exhibit 10
AGREEMENT NOT TO COMPETE
BETWEEN
FIRST FEDERAL BANCORP, INC.
FIRST FEDERAL SAVINGS BANK OF EASTERN OHIO
AND
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Effective October 1, 2003, First Federal Bancorp, Inc., a savings and loan
holding company incorporated under Ohio Law ("Bancorp"), First Federal
Savings Bank of Eastern Ohio, a savings bank chartered under the laws of
the United States and a wholly-owned subsidiary of Bancorp ("First
Federal") and J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual ("Employee") entered into
an employment agreement ("Employment Agreement"). Effective May 19, 2004
("Effective Date"), Bancorp, First Federal (collectively, "Employers") and
the EMPLOYEE (collectively, "Parties") enter into this noncompetition
agreement ("Noncompete Agreement"). The PARTIES specifically intend that
the compensation provided under this NONCOMPETE AGREEMENT is in addition to
(and is not a substitution for) amounts that may be due under the
EMPLOYMENT AGREEMENT in similar or dissimilar circumstances.
1.00 Duration
Except as otherwise provided, this NONCOMPETE AGREEMENT will remain in
effect from the EFFECTIVE DATE until the end of the last period described
in Section 3.00. Any notice of termination required to be given under this
NONCOMPETE AGREEMENT must be given as provided in Section 4.00.
2.00 Compensation
In exchange for the obligations described in Section 3.00 of this
NONCOMPETE AGREEMENT, the EMPLOYERS will jointly pay the EMPLOYEE
US$165,000.00. This amount will be paid in a lump sum as soon as
administratively feasible after the EMPLOYEE terminates employment under
Sections 4(a)(ii) or 4(a)(iii) of the EMPLOYMENT AGREEMENT. However, this
amount will not be due (and will not be paid) if the EMPLOYEE terminates
employment under Sections 4(a)(i) or 4(b) of the EMPLOYMENT AGREEMENT. The
PARTIES also agree that good and adequate consideration for the additional
undertakings described in this NONCOMPETE AGREEMENT has been exchanged.
3.00 EMPLOYEE'S Obligations
The consideration described in Section 2.00 is provided by the EMPLOYERS in
exchange for EMPLOYEE'S performance of the obligations described in this
NONCOMPETE AGREEMENT, including performance of the duties and the covenants
made and entered into by and between the EMPLOYEE and the EMPLOYERS in this
NONCOMPETE AGREEMENT.
3.01 Confidential Information.
[1] Obligation to Protect Confidential Information. The EMPLOYEE
acknowledges that the EMPLOYERS and their subsidiaries, parent
corporation and
affiliated entities (collectively, "Group" and separately, "Group
Member") have a legitimate and continuing proprietary interest in the
protection of CONFIDENTIAL INFORMATION (as defined in Section
3.01[2]) and have invested, and will continue to invest, substantial
sums of money to develop, maintain and protect CONFIDENTIAL
INFORMATION. The EMPLOYEE agrees [a] during and for all periods after
employment with all GROUP MEMBERS terminates for any reason [i] that
any CONFIDENTIAL INFORMATION will be held in confidence and treated
as proprietary to the GROUP, [ii] not to use or disclose any
CONFIDENTIAL INFORMATION except to promote and advance the GROUP'S
business interests and [b] immediately upon termination of employment
with all GROUP MEMBERS for any reason, to return to the EMPLOYERS any
and all CONFIDENTIAL INFORMATION. However, this prohibition will not
preclude EMPLOYEE from providing GROUP MEMBER employees with job
references or from including personal information on any job
application filed in his own behalf, but, in both cases, only to the
extent reasonably germane to that purpose and only to the extent that
the information disclosed is not otherwise CONFIDENTIAL INFORMATION.
[2] Definition of CONFIDENTIAL INFORMATION. For purposes of this
NONCOMPETE AGREEMENT, CONFIDENTIAL INFORMATION includes any
confidential data, figures, projections, estimates, processes,
inventions, trade secrets, computer programs, technical data,
drawings or designs, information concerning pricing and pricing
policies, marketing techniques, plans and forecasts, new product
information, information concerning methods and manner of operations
and information relating to the identity and location of all past,
present and prospective agents and customers, policy and procedure
manuals or handbooks, tax records, personnel histories and records,
information regarding properties and any other CONFIDENTIAL
INFORMATION regarding the business, operations, properties or
personnel of the GROUP (or any GROUP MEMBER) which are disclosed to
or learned by the EMPLOYEE as a result of employment with any GROUP
MEMBER, but will not include [a] the EMPLOYEE'S personal personnel
records or [b] any information that [i] the EMPLOYEE possessed before
the date of initial employment (including periods before the
effective date) with any GROUP MEMBER that was a matter of public
knowledge, [ii] became or becomes a matter of public knowledge
through sources independent of the EMPLOYEE, [iii] has been or is
disclosed by any GROUP MEMBER without restriction on its use or
[iv] has been or is required to be disclosed by law or governmental
order or regulation. The EMPLOYEE also agrees that, if there is any
reasonable doubt whether an item is public knowledge, to not regard
the item as public knowledge until and unless the Chairman of
Bancorp's Board of Directors confirms to the EMPLOYEE that the
information is public knowledge or an arbitrator, acting under
Section 5.00, finally decides that the information is public
knowledge.
[3] Intellectual Property. The EMPLOYEE expressly acknowledges that
all right, title and interest to all inventions, designs,
discoveries, works of authorship, and ideas conceived, produced,
created, discovered, authored, or reduced to practice during the
EMPLOYEE'S performance of services under this NONCOMPETE AGREEMENT,
whether individually or jointly with any GROUP MEMBER (the
"Intellectual Property") will be owned solely by the GROUP, and will
be subject to the same restrictions set forth
2
in Section 3.01[2] above. All INTELLECTUAL PROPERTY which constitutes
copyrightable subject matter under the copyright laws of the United
States will, from the inception of creation, be deemed to be a "work
made for hire" under the United States copyright laws and all right,
title and interest in and to such copyrightable works will vest in
the GROUP. All right, title and interest in and to all INTELLECTUAL
PROPERTY developed or produced under this NONCOMPETE AGREEMENT by the
EMPLOYEE, whether constituting patentable subject matter or
copyrightable subject matter (to the extent deemed not to be a "work
made for hire") or otherwise, will be assigned and is hereby
irrevocably assigned to the GROUP by the EMPLOYEE. The EMPLOYEE will,
without any additional consideration, execute all documents and take
all other actions needed to convey the EMPLOYEE'S complete ownership
interest in any INTELLECTUAL PROPERTY to the GROUP so that the GROUP
may own and protect such INTELLECTUAL PROPERTY and obtain patent,
copyright and trademark registrations for it. The EMPLOYEE agrees
that any GROUP MEMBER may alter or modify the INTELLECTUAL PROPERTY
at the GROUP MEMBER'S sole discretion, and the EMPLOYEE waives all
right to claim or disclaim authorship.
3.02 Solicitation of Employees. The EMPLOYEE agrees that during
employment, and for three years after terminating employment with all GROUP
MEMBERS for any reason [1] not, directly or indirectly, to solicit any
employee of any GROUP MEMBER to leave employment with the GROUP, [2] not,
directly or indirectly, to employ or seek to employ any employee of any
GROUP MEMBER and [3] not to cause or induce any of the GROUP'S (or GROUP
MEMBER'S) competitors to solicit or employ any employee of any GROUP
MEMBER. However, this prohibition will not preclude EMPLOYEE from providing
GROUP MEMBER employees with job references, but only to the extent
reasonably germane to that purpose and only to the extent that the
information disclosed is not otherwise CONFIDENTIAL INFORMATION.
3.03 Solicitation of Third Parties. The EMPLOYEE agrees that during
employment, and for three years after terminating employment with all GROUP
MEMBERS for any reason not, directly or indirectly, to recruit, solicit or
otherwise induce or influence any customer, supplier, sales representative,
lender, lessor, lessee or any other person having a business relationship
with the GROUP (or any GROUP MEMBER) to discontinue or reduce the extent of
that relationship except in the course of discharging the duties described
in this NONCOMPETE AGREEMENT and with the good faith objective of advancing
the GROUP'S (or any GROUP MEMBER'S) business interests.
3.04 Non-Competition. The EMPLOYEE agrees that for three years after
terminating employment with all GROUP MEMBERS for any reason not, directly
or indirectly, to accept employment with, act as a consultant to, or
otherwise perform services that are substantially the same or similar to
those for which the EMPLOYEE was compensated by any GROUP MEMBER (this
comparison will be based on job-related functions and responsibilities and
not on job title) for any business that, within the states of Ohio,
Pennsylvania and West Virginia, directly competes with any business in
which the GROUP or any GROUP MEMBER [1] is engaged on the date the EMPLOYEE
terminates employment with all GROUP MEMBERS for any reason, [2] was
engaged at any time within 36 months preceding the date the EMPLOYEE
terminates employment with all GROUP MEMBERS for any reason or [3] in
EMPLOYEE'S
3
knowledge intends to participate at any time within 36 months after the
date the EMPLOYEE terminates employment with all GROUP MEMBERS for any
reason. This restriction applies to any parent, division, affiliate, newly
formed or purchased business(es) and/or successor of a business that
competes or may compete with the GROUP'S (or any GROUP MEMBER'S) business.
3.05 Post-Termination Cooperation. As is required of the EMPLOYEE during
employment, the EMPLOYEE agrees that during and for all periods after
employment with all GROUP MEMBERS terminates for any reason and without
additional compensation (other than reimbursement for reasonable associated
expenses), to cooperate with the GROUP (and with each GROUP MEMBER) in the
following areas:
[1] Cooperation With the EMPLOYERS. The EMPLOYEE agrees [a] to be
reasonably available to answer questions for the GROUP'S (and any
GROUP MEMBER'S) officers regarding any matter, project, initiative or
effort for which the EMPLOYEE was responsible while employed by any
GROUP MEMBER and [b] to cooperate with the GROUP (and with each GROUP
MEMBER) during the course of all third-party proceedings arising out
of the GROUP'S (and any GROUP MEMBER'S) business about which the
EMPLOYEE has knowledge or information. For purposes of this
NONCOMPETE AGREEMENT, [c] "proceedings" includes internal
investigations, administrative investigations or proceedings and
lawsuits (including pre-trial discovery and trial testimony) and
[d] "cooperation" includes [i] the EMPLOYEE'S being reasonably
available for interviews, meetings, depositions, hearings and/or
trials without the need for subpoena or assurances by the GROUP (or
any GROUP MEMBER), [ii] providing any and all documents in the
EMPLOYEE'S possession that relate to the proceeding, and
[iii] providing assistance in locating any and all relevant notes
and/or documents.
[2] Cooperation With Third Parties. Unless compelled to do so by
lawfully-served subpoena or court order, the EMPLOYEE agrees not to
communicate with, or give statements or testimony to, any opposing
attorney, opposing attorney's representative (including private
investigator) or current or former employee relating to any matter
(including pending or threatened lawsuits or administrative
investigations) about which the EMPLOYEE has knowledge or information
(other than knowledge or information that is not CONFIDENTIAL
INFORMATION) as a result of employment with the GROUP (or any GROUP
MEMBER) except in cooperation with the EMPLOYERS. The EMPLOYEE also
agrees to notify the Chairman of Bancorp's Board of Directors
immediately after being contacted by a third party or receiving a
subpoena or court order to appear and testify with respect to any
matter affected by this section.
[3] Cooperation With Media. The EMPLOYEE agrees not to communicate
with, or give statements to, any member of the media (including
print, television or radio media) relating to any matter (including
pending or threatened lawsuits or administrative investigations)
about which the EMPLOYEE has knowledge or information. The EMPLOYEE
also agrees to notify the Chairman of Bancorp's Board of Directors
immediately after being contacted by any member of the media with
respect to any matter affected by this section.
4
3.06 Non-Disparagement. The EMPLOYEE and the EMPLOYERS (on its behalf and
on behalf of the GROUP and each GROUP MEMBER) agree that neither will make
any disparaging remarks about the other and the EMPLOYEE will not make any
disparaging remarks about any of the GROUP'S employees or directors at any
time. However, this section will not preclude [1] any remarks that may be
made by the EMPLOYEE as part of any proceedings under Section 5.00 or that
are required to discharge the duties described in this NONCOMPETE AGREEMENT
or [2] the EMPLOYERS from making (or eliciting from any person) disparaging
remarks about the EMPLOYEE concerning any conduct that may lead to a
termination for Cause, as defined in Section 4(a)(i) of the EMPLOYMENT
AGREEMENT (including initiating an inquiry or investigation that may result
in a termination for Cause), but only to the extent reasonably necessary to
investigate the EMPLOYEE'S conduct and to protect the GROUP'S (or any GROUP
MEMBER'S) interests or as part of any proceedings under Section 5.00.
3.07 Remedies. The EMPLOYEE acknowledges that money will not adequately
compensate the GROUP for the substantial damages that will arise upon the
breach of any provision of Sections 3.01 through 3.06. For this reason, any
disputes arising under Section s 3.01 through 3.06 will not be subject to
arbitration under Sections 3.01 through 3.06. Instead, if the EMPLOYEE
breaches or threatens to breach any provision of Section s 3.01 through
3.06, the EMPLOYERS will be entitled, in addition to other rights and
remedies, to specific performance, injunctive relief and other equitable
relief to prevent or restrain any breach or threatened breach of Section s
3.01 through 3.06.
4.00 Notice
Any notices or other communications required or permitted pursuant to this
NONCOMPETE AGREEMENT will be deemed delivered if the notice or
communication is in writing and is delivered personally or by facsimile
transmission or is deposited in the United States mail, postage prepaid,
addressed as follows:
If to Bancorp and/or First Federal:
First Federal Savings Bank of astern ▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
With copies to:
▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to the EMPLOYEE:
Mr. J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
5
5.00 Arbitration
5.01 Acknowledgement of Arbitration. Unless stated otherwise in this
NONCOMPETE AGREEMENT, the PARTIES agree that arbitration is the sole and
exclusive remedy for each of them to resolve and redress any dispute, claim
or controversy involving the interpretation of this NONCOMPETE AGREEMENT or
the terms, conditions or termination of this NONCOMPETE AGREEMENT,
including any claims for any tort, breach of contract, violation of public
policy or discrimination, whether such claim arises under federal or state
law.
5.02 Scope of Arbitration. The EMPLOYEE expressly understands and agrees
that claims subject to arbitration under this section include asserted
violations of the Employee Retirement and Income Security Act of 1974; the
Age Discrimination in Employment Act; the Older Worker's Benefit Protection
Act; the Americans with Disabilities Act; Title VII of the Civil Rights Act
of 1964 (as amended); the Family and Medical Leave Act; any law prohibiting
discrimination, harassment or retaliation in employment; any claim of
promissory estoppel or detrimental reliance, defamation, intentional
infliction of emotional distress; or the public policy of any state, or any
federal, state or local law.
5.03 Effect of Arbitration. The PARTIES intend that any arbitration award
relating to any matter described in Section 5.01 will be final and binding
on them and that a judgment on the award may be entered in any court of
competent jurisdiction, and enforcement may be had according to the terms
of that award. This section will survive the termination or expiration of
this NONCOMPETE AGREEMENT.
5.04 Location of Arbitration. Arbitration will be held in Zanesville,
Ohio, and will be conducted by a retired federal judge or other qualified
arbitrator. The arbitrator will be mutually agreed upon by the PARTIES and
the arbitration will be conducted in accordance with the National Rules for
the Resolution of Employment Disputes of the American Arbitration
Association. The PARTIES will have the right to conduct discovery pursuant
to the Federal Rules of Civil Procedure; provided, however, that the
arbitrator will have the authority to establish an expedited discovery
schedule and cutoff and to resolve any discovery disputes. The arbitrator
will have no jurisdiction or authority to change any provision of this
NONCOMPETE AGREEMENT by alterations of, additions to or subtractions from
the terms of this NONCOMPETE AGREEMENT. The arbitrator's sole authority
will be to interpret or apply any provision(s) of this NONCOMPETE AGREEMENT
or any public law alleged to have been violated. The arbitrator will be
limited to awarding compensatory damages, including unpaid wages or
benefits, but, to the extent allowed by law, will have no authority to
award punitive, exemplary or similar-type damages.
5.05 Time for Initiating Arbitration. Any claim or controversy not sought
to be submitted to arbitration, in writing, within 120 days of the date the
Party asserting the claim knew, or through reasonable diligence should have
known, of the facts giving rise to that Party's claim, will be deemed
waived and the Party asserting the claim will have no further right to seek
arbitration or recovery with respect to that claim or controversy. Both
PARTIES agree to strictly comply with the time limitation specified in
Section 5.00. For purposes of this section, a claim or controversy is
sought to be submitted to arbitration on the date the complaining Party
gives written notice to the other that [1] an issue has arisen or is likely
to arise that, unless resolved
6
otherwise, may be resolved through arbitration under Section 5.00 and
[2] unless the issue is resolved otherwise, the complaining Party intends
to submit the matter to arbitration under the terms of Section 5.00.
5.06 Costs of Arbitration. The EMPLOYERS will bear the arbitrator's fee
and other costs associated with any arbitration, unless the arbitrator,
acting under Federal Rule of Civil Procedure 54(b), elects to award these
fees to the EMPLOYERS.
5.07 Arbitration Exclusive Remedy. The PARTIES acknowledge that, because
arbitration is the exclusive remedy for resolving issues arising under this
NONCOMPETE AGREEMENT, neither Party may resort to any federal, state or
local court or administrative agency concerning breaches of this NONCOMPETE
AGREEMENT or any other matter subject to arbitration under Section 5.00,
except as otherwise provided in this NONCOMPETE AGREEMENT, and that the
decision of the arbitrator will be a complete defense to any suit, action
or proceeding instituted in any federal, state or local court before any
administrative agency with respect to any arbitrable claim or controversy.
5.08 Waiver of Jury. The EMPLOYEE and the EMPLOYERS each waive the right
to have a claim or dispute with one another decided in a judicial forum or
by a jury, except as otherwise provided in this NONCOMPETE AGREEMENT.
6.00 General Provisions
6.01 Representation of EMPLOYEE. The EMPLOYEE represents and warrants that
the EMPLOYEE is not under any contractual or legal restraint that prevents
or prohibits the EMPLOYEE from entering into this NONCOMPETE AGREEMENT or
performing the duties and obligations described in this NONCOMPETE
AGREEMENT.
6.02 Modification or Waiver; Entire NONCOMPETE AGREEMENT. No provision of
this NONCOMPETE AGREEMENT may be modified or waived except in a document
signed by the EMPLOYEE and the EMPLOYERS. This NONCOMPETE AGREEMENT, and
any attachments referenced in the NONCOMPETE AGREEMENT, constitute the
entire agreement between the PARTIES regarding the employment relationship
described in this NONCOMPETE AGREEMENT, and any other agreements are
terminated and of no further force or legal effect. No agreements or
representations, oral or otherwise, with respect to the EMPLOYEE'S
employment relationship with the EMPLOYERS have been made or relied upon by
either Party which are not set forth expressly in this NONCOMPETE
AGREEMENT.
6.03 Governing Law; Severability. This NONCOMPETE AGREEMENT is intended to
be performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations. If any provision of
this NONCOMPETE AGREEMENT, or the application of any provision of this
NONCOMPETE AGREEMENT to any person or circumstance, is, for any reason and
to any extent, held invalid or unenforceable, such invalidity and
unenforceability will not affect the remaining provisions of this
NONCOMPETE AGREEMENT of its application to other persons or circumstances,
all of which will be enforced to the greatest extent permitted by law and
the EMPLOYEE and the EMPLOYERS agree that the arbitrator (or judge) is
authorized to reform the invalid or enforceable provision [1] to the
7
extent needed to avoid the invalidity or unenforceability and [2] in a
manner that is as similar as possible to the intent (as described in this
NONCOMPETE AGREEMENT). The validity, construction and interpretation of
this NONCOMPETE AGREEMENT and the rights and duties of the PARTIES will be
governed by the laws of the State of Ohio, without reference to the Ohio
choice of law rules.
6.04 No Waiver. Except as otherwise provided in Section 5.05, failure to
insist upon strict compliance with any term of this NONCOMPETE AGREEMENT
will not be considered a waiver of any such term.
6.05 Withholding. All payments made to the EMPLOYEE under this NONCOMPETE
AGREEMENT will be reduced by any amount:
[1] That the EMPLOYERS are required to withhold in advance payment
of the EMPLOYEE'S federal, state and local income, wage and
employment tax liability; and
[2] To the extent allowed by law, that the EMPLOYEE owes (or, after
employment is deemed to owe) to the EMPLOYERS.
6.06 Survival. The PARTIES agree that the covenants and promises set forth
in this NONCOMPETE AGREEMENT will survive the termination of this
NONCOMPETE AGREEMENT and continue in full force and effect.
6.07 Miscellaneous.
[1] The EMPLOYEE may not assign any right or interest to, or in,
any payments payable under this NONCOMPETE AGREEMENT.
[2] This NONCOMPETE AGREEMENT will be binding upon and will inure
to the benefit of the EMPLOYEE, the EMPLOYEE'S heirs and legal
representatives and the EMPLOYERS and its successors.
[3] The headings in this NONCOMPETE AGREEMENT are inserted for
convenience of reference only and will not be a part of or control or
affect the meaning of any provision of the NONCOMPETE AGREEMENT.
6.08 Successors to EMPLOYERS. This NONCOMPETE AGREEMENT may and will be
assigned or transferred to, and will be binding upon and will inure to the
benefit of, any successor of the EMPLOYERS, and any successor will be
substituted for the EMPLOYERS under the terms of this NONCOMPETE AGREEMENT.
As used in this NONCOMPETE AGREEMENT, the term "successor" means any
person, firm, corporation or business entity which at any time, whether by
merger, purchase or otherwise, acquires all or essentially all of the
assets of the business of the EMPLOYERS. Notwithstanding any assignment,
the EMPLOYERS will remain, with any successor, jointly and severally liable
for all its obligations under this NONCOMPETE AGREEMENT.
8
IN WITNESS WHEREOF, the PARTIES have duly executed and delivered this
NONCOMPETE AGREEMENT, which includes an arbitration provision, and consists
of nine (9) pages.
Attest: FIRST FEDERAL BANCORP, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
----------------------------- ---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Its Chairman
Attest: FIRST FEDERAL SAVINGS BANK OF
EASTERN OHIO
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
----------------------------- ---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Its Chairman
Attest: EMPLOYEE
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- ------------------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
9