CHANGE IN CONTROL SEVERANCE AGREEMENT
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THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (the "Agreement") is made
and entered into as of this 29th day of September 1998 (the "Commencement
Date"), by and between First Federal Savings Bank of Youngstown (which,
together with any successor thereto which executes and delivers the
assumption agreement provided for in Section 5(a) hereof or which otherwise
becomes bound by all of the terms and provisions of this Agreement by
operation of law, is hereinafter referred to as the "Bank"), and J. ▇▇▇▇▇
▇▇▇▇ (the "Executive").
WHEREAS, the Executive is currently serving as Vice President and
General Counsel of the Bank; and
WHEREAS, the Board of Directors of the Bank (the "Board") recognizes
that, as is the case with many publicly held corporations, the possibility
of a change in control of the Bank or of its holding company, FFY Financial
Corporation (the "Company"), may exist and that such possibility, and the
uncertainty and questions which it may raise among management, may result in
the departure or distraction of management personnel to the detriment of the
Bank, the Company and its stockholders; and
WHEREAS, the Board believes it is in the best interests of the Bank to
enter into this Agreement with the Executive in order to assure continuity
of management of the Bank and to reinforce and encourage the continued
attention and dedication of the Executive to the Executive's assigned duties
without distraction in the face of potentially disruptive circumstances
arising from the possibility of a change in control of the Company and/or
the Bank, although no such change is now contemplated; and
WHEREAS, the Board has approved and authorized the execution of this
Agreement with the Executive;
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein, it is AGREED as
follows:
1. Certain Definitions.
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(a) The term "Change in Control" means (i) any "person," as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (other than the Company, any Consolidated
Subsidiaries (as hereinafter defined), any person (as hereinabove defined)
acting on behalf of the Company as underwriter pursuant to an offering who
is temporarily holding securities in connection with such offering, any
trustee or other fiduciary holding securities under an employee benefit plan
of the Company, or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 25% or more of the combined voting
power of the Company's then outstanding securities; (ii) individuals who are
members of the Board on the Commencement 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 Commencement 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 Board, shall be considered a member of the Incumbent
Board; (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (1) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the combined voting
power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation or (2) a merger
or consolidation effected to 'implement a recapitalization of the Company
(or similar transaction) in which no person (as hereinabove defined)
acquires more than 25% of the combined voting power of the Company's then
outstanding securities; or (iv) the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets (or any transaction having a similar effect).
(b) The term "Consolidated Subsidiaries" means any subsidiary or
subsidiaries of the Company that are part of the affiliated group (as
defined in Section 1504 of the Internal Revenue Code of 1986, as amended
(the "Code"), without regard to subsection (b) thereof) that includes the
Company, including but not limited to the Bank.
(c) The term "Date of Termination" means the date specified in the
Notice of Termination (which, in the case of a Termination for Cause shall
not be less than 30 days from the date such Notice of Termination is given,
and in the case of a termination for Good Reason shall not be less than 15
nor more than 60 days from the date such Notice of Termination is given);
provided, however, that if within 15 days after any Notice of Termination is
given, or, if later, prior to the Date of Termination (as determined without
regard to this proviso), the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the termination,
then the Date of Termination shall be the date on which the dispute is
finally determined, whether by mutual written agreement of the parties, by a
binding arbitration award, or by a final judgment, order or decree of a
court of competent jurisdiction (which is not appealable or with respect to
which the time for appeal therefrom has expired and no appeal has been
perfected); and provided, further, that the Date of Termination shall be
extended by a notice of dispute only if such notice is given in good faith
and the party giving such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute, the
Bank will continue to pay the Executive the Executive's full salary at the
rate in effect when the notice giving rise to the dispute was given and
continue the Executive as a participant in all benefit and fringe benefit
plans in which the Executive was participating when the notice giving rise
to the dispute was given, until the dispute is finally resolved in
accordance with this Section 1(d).
(d) The term "Good Reason" means the occurrence, without the
Executive's express written consent, of a material diminution of or
interference with the Executive's duties, responsibilities or benefits,
including (without limitation) any of the following circumstances unless
such circumstances are fully corrected prior to the Date of Termination
specified in the Notice of Termination given by the Executive in respect
thereof:
(i) a requirement that the Executive be based at any location
not within thirty (30) miles of the current headquarters office or
that his travel requirements for Company or Bank business be
substantially increased or increased beyond a level commensurate with
his position in the Company.
(ii) a material demotion of the Executive;
(iii) a material reduction in the number or seniority of
personnel reporting to the Executive 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 Executive, other than as
part of a Company-wide or Bank-wide reduction in staff;
(iv) a reduction in the Executive's salary or a material adverse
change in the Executive's perquisites, benefits, contingent benefits
or vacation, other than as part of an overall program applied
uniformly and with equitable effect to all members of the senior
management of the Company or the Bank;
(v) a material and extended increase in the required hours of
work or the workload of the Executive;
(vi) the failure of the Bank to obtain a satisfactory agreement
from any successor to assume the obligations and liabilities under
this Agreement, as contemplated in Section 5(a) hereof; or
(vii) any purported termination of the Executive's employment
that is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 4 hereof (and, if applicable, the
requirements of Section 1(g) hereof), which purported termination
shall not be effective for purposes of this Agreement.
(e) The term "Notice of Termination" means a notice of termination of
the Executive's employment pursuant to Section 7 of this Agreement.
(f) The term "Termination for Cause" means termination of the
employment of the Employee because of the Employee's personal 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 (other than traffic violations or
similar offenses) or final cease-and-desist order, or material breach of any
provision of this Agreement. No act or failure to act by the Executive shall
be considered intentional unless the Executive 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 Bank. Notwithstanding the
foregoing, no Termination for Cause shall be deemed to have occurred unless
and until there shall have been delivered to the Executive a copy of a
resolution, duly adopted by the affirmative vote of not less than three-
quarters of the entire membership of the Board at a meeting of the Board
duly called and held for such purpose (after reasonable notice to the
Executive and an opportunity for the Executive, together with the
Executive's counsel, to be heard before the Board), stating that in the good
faith opinion of the Board the Executive has engaged in conduct described in
the preceding sentence and specifying the particulars thereof in detail.
This paragraph and this definition of "termination for cause" apply only to
this agreement and do not affect the employment-at-will doctrine in any
other context.
2. Term. The term of this Agreement shall be a period of three (3)
years commencing on the Commencement Date, subject to earlier termination as
provided herein, and will renew for successive one year periods unless the
Board gives notice of non-renewal not less than thirty (30) days prior to
the end of the then current term.
3. Severance Benefits; Regulatory Provisions.
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(a) In the event that the Bank shall terminate the Executive's
employment other than Termination for Cause, or the Executive shall
terminate his employment for Good Reason, within 24 months following a
Change in Control, the Bank shall (i) pay the Executive his salary through
the Date of Termination at the rate in effect at the time the Notice of
Termination is given, at the time such payments are due; and (ii) pay to the
Executive in a lump sum in cash, within 25 days after the later of the date
of such Change in Control or the Date of Termination, an amount equal to one
hundred percent (100%) of the Executive's base annual salary (not including
any bonus) in effect at the time the Notice of Termination is given, less
the aggregate present value of the payments or benefits, if any, in the
nature of compensation for the benefit of the Executive, arising under any
other plans or arrangements (i.e., not this Agreement) between the Company
or any of the Consolidated Subsidiaries and the Executive, which constitute
"parachute payments" under Section 280G of the Code.
(b) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (the "FDIA"),
12 U.S.C. Section 1818(e)(3) and (g)(1), the 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
Bank may in its discretion (i) pay the Executive all or part of the
compensation withheld while its obligations under this Agreement were
suspended and (ii) reinstate in whole or in part any of its obligations
which were suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C. Section 1818(e)(4) and
(g)(1), all obligations of the Bank under this Agreement shall terminate as
of the effective date of the order, but vested rights of the contracting
parties shall not be affected.
(d) If the Bank is in default (as defined in Section 3(x)(1) of the
FDIA), all obligations under this Agreement shall terminate as of the date
of default, but this provision shall not affect any vested rights of the
contracting parties.
(e) All obligations 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: (1) by the Director of the Office
of Thrift Supervision (the "Director") or his or her designee, at the time
the Federal Deposit Insurance 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 (2) 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.
(f) Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12
U.S.C. Section 1828(k) and any regulations promulgated thereunder.
(g) The Executive shall not be required to mitigate the amount of any
payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Agreement be reduced by any compensation earned by the
Executive as the result of employment by another employer, by retirement
benefits after the Date of Termination or otherwise. This Agreement shall
not be construed as providing the Executive any right to be retained in the
employ of the Bank or any affiliate of the Bank.
4. Notice of Termination. In the event that the Bank desires to
terminate the employment of the Executive during the term of this Agreement,
the Bank shall deliver to the Executive a written notice of termination,
stating (i) whether such termination constitutes Termination for Cause, and,
if so, setting forth in reasonable detail the facts and circumstances that
are the basis for the Termination for Cause, and (ii) specifying the Date of
Termination. In the event that the Executive desires to terminate his
employment and determines in good faith that he has experienced Good Reason
to terminate his employment, he shall send a written notice to the Bank
stating the circumstances that constitute Good Reason and the Date of
Termination.
The Executive's right to terminate his employment for Good Reason
shall not be affected by the Executive's incapacity due to physical or
mental illness. The Executive's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason under this Agreement.
5. No Assignments.
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(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 Bank shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation, operation
of law or otherwise) to all or substantially all of the business and/or
assets of 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 Bank would be
required to perform it if no such succession or assignment had taken place.
Failure of the Bank 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 Executive to compensation and benefits from
the Bank in the same amount and on the same terms that he would be entitled
to hereunder if he terminated his employment for Good Reason, in addition to
any payments and benefits to which the Executive is entitled under Section 3
hereof. For purposes of implementing the provisions of this Section 5(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 Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. In the event of the death of the
Executive, unless otherwise provided herein, all amounts payable hereunder
shall be paid to the Executive's devisee, legatee, or other designee or, if
there be no such designee, to the Executive's estate.
6. Deferred Payments. If following a termination of the Executive, the
aggregate payments to be made by the Bank under this Agreement and all other
plans or arrangements maintained by the Company or any of the Consolidated
Subsidiaries would exceed the limitation on deductible compensation
contained in Section 162(m) of the Code in any calendar year, any such
amounts in excess of such limitation shall be mandatorily deferred with
interest thereon at 7.0% per annum to a calendar year such that the amount
to be paid to the Executive in such calendar year, including deferred
amounts, does not exceed such limitation.
7. Delivery of Notices. For the purposes of this Agreement, all
notices and other communications to any party hereto shall be in writing and
shall be deemed to have been duly given when delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: J. ▇▇▇▇▇ ▇▇▇▇
At the address last appearing
on the personnel records of
the Executive
If to the Bank: First Federal Savings Bank
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Secretary
or to such other address as such party may have furnished to the other in
writing in accordance herewith, except that a notice of change of address
shall be effective only upon receipt.
8. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein
otherwise provided.
9. 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.
10. 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.
11. Governing Law. This Agreement shall be governed by the laws of
the State of Ohio to the extent that federal law does not govern.
12. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding
arbitration, conducted before a panel of three arbitrators in a location
selected by the Executive within 100 miles of such Executive's job location
with the Bank, in accordance with the rules of the American Arbitration
Association then in effect; provided, however, that the Executive shall be
entitled to seek specific performance of his rights under Section 1(d)
during the pendency of any dispute or controversy arising under or in
connection with this Agreement. Judgment may be entered on the arbitrators'
award in any court having jurisdiction.
13. Reimbursement of Expenses. In the event any dispute should arise
between the Executive and the Bank as to the terms or interpretation of this
Agreement, including this Section 13, whether instituted by formal legal
proceedings or otherwise, including any action taken by the Executive to
enforce the terms of this Section 13, or in defending against any action
taken by the Bank, the bank shall reimburse the Executive for all costs and
expenses incurred by the Executive, including reasonable attorney's fees,
arising from such dispute, proceedings or actions, unless a court of
competent jurisdiction renders a final and nonappealable judgment against
the Executive as to the matter in dispute. Reimbursement of the Executive's
expenses shall be paid within ten days of the Executive furnishing to the
Bank written evidence, which may be in the form, among other things of a
canceled check or receipt, of any costs or expenses incurred by the
Executive.
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: FIRST FEDERAL SAVINGS BANK
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and CEO
EXECUTIVE
/s/ J. ▇▇▇▇▇ ▇▇▇▇
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J. ▇▇▇▇▇ ▇▇▇▇