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BANCFIRST OHIO CORP.
EXECUTIVE RETENTION PLAN
Effective August 19, 1999, BancFirst Ohio Corp. adopts this Plan to provide
additional compensation to eligible management and highly compensated employees
whose employment is terminated under circumstances described in Section 2.01.
ARTICLE I
DEFINITIONS
Whenever used in this Plan, the following words and phrases will have the
meaning given below. Also, the form of each term will include any other form,
the singular form of any term will include the plural, the plural form will
include the singular, the masculine pronoun will include the feminine and the
feminine pronoun will include the masculine. Other words and phrases also may be
defined in the Plan text.
Affiliate means any entity which, together with the Company, is a member of a
controlled group of corporations or of a commonly controlled group of trades or
businesses [as defined in Code ss.ss.414(b) and (c), as modified by Code
ss.415(h)] or of an affiliated service group [as defined in Code ss.414(m)] or
other organization described in Code ss.414(o).
Beneficiary means the person designated by a Participant to receive any death
benefits payable under Section 2.02. This designation may be made in any form
acceptable to the Company. If a Participant does not name a Beneficiary, any
death benefit payable under this Plan will be distributed to the Participant's
surviving spouse or, if there is no surviving spouse, to the Participant's
estate.
Board of Directors or Board means the Company's board of directors.
Cause means:
(a) Any unauthorized disclosure by a Participant of the Company's
business practices or accounts to a competitor that results in
serious damage to the Company;
(b) Any willful and wrongful misappropriation by a Participant of
funds, property or rights of the Company that results in
serious damage to the Company;
(c) Any willful and wrongful destruction of business records or
other property by a Participant which results in serious
damage to the Company;
(d) The conviction of a Participant of a felony involving moral
turpitude or, as the result of a plea bargain, conviction of
the Participant of a misdemeanor, provided the Participant was
originally charged with a felony involving moral turpitude;
(e) Gross and willful misconduct by the Participant which results
in serious damage to the Company; or
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(f) The Participant's material breach of duties and
responsibilities associated with his or her employment.
Change of Control means:
(a) The acquisition by any entity or person ("Person") [within the
meaning of Rules 13d-3 or 14(d)(2) issued under the Securities
Exchange Act of 1934, as amended] of direct or beneficial
ownership of 25 percent or more of the combined voting power
of the Company's outstanding securities then entitled to vote
generally in the election of directors ("Voting Securities");
provided, however, that the following acquisitions will not
constitute a Change of Control: (i) any acquisition by the
Company, (ii) any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Company or any
Affiliate or (iii) any acquisition by any Person who on the
Effective Date was the beneficial owner of 20 percent or more
of the combined voting power of the Voting Securities
outstanding on that date;
(b) The adoption of a plan of complete liquidation of the Company
or of an agreement for the sale or disposition by the Company
(in one transaction or a series of transactions) of all or
substantially all of the Company's assets;
(c) Adoption of any plan of reorganization, merger or
consolidation, other than a reorganization, merger or
consolidation after which the voting Securities outstanding
immediately before the plan is adopted continue to represent
at least 60 percent of the Voting Securities (or those of the
surviving entity) immediately after the reorganization, merger
or consolidation.
(d) A change in the majority of the Board of Directors within a
12-month period; provided, however, that any new director
whose nomination for election by the Company's shareholders
was approved, or who was appointed or elected to the Board of
Directors by, the vote of two-thirds of the directors then
still in office who were in office at the beginning of the 12
month period will not be counted when determining if there has
been a change in the majority of the Board of Directors.
Code means the Internal Revenue Code of 1986, as amended.
Company means BancFirst Ohio Corp.
Compensation means a Participant's annual base salary payable by the Company in
effect on or immediately before the date a Participant Terminates.
Effective Date means August 19, 1999.
Employee means an individual who is performing services for the Company or an
Affiliate on the date that a Change of Control occurs.
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Participant means an Employee to whom the Board extends the benefits described
in Section 2.01 of this Plan. The Board will notify each Participant of his or
her participation in this Plan and will give each Participant a copy of this
document and of any subsequent Plan amendments.
Plan means the BancFirst Ohio Corp. Executive Retention Plan, as described in
this document and any amendments to it that are subsequently adopted.
Termination means, after a Change of Control:
(a) A complete severance of the employment relationship between a
Participant and the Company;
(b) A reduction of the Participant's base salary for any reason other than
in connection with the complete severance of his or her employment
relationship with the Company;
(c) A material reduction of the value of the fringe benefits provided to
the Participant immediately before the Change of Control or below the
level of fringe benefits provided generally to other actively employed
similarly situated Employees, unless the Company agrees to fully
compensate the Participant for any this material reduction;
(d) Any material breach by the Company of any other employment related
agreement between it and the Participant, including the Company's
failure or inability to discharge its obligations to the Participant.
ARTICLE II
RETENTION BENEFITS
2.01 Amount of Benefit
A Participant whose employment is Terminated (other than for Cause) within 24
months after a Change of Control occurs will receive a benefit under this Plan
equal to the smaller of (a) 200 percent of his or her Compensation or (b) the
maximum amount that may be distributed without incurring an excise tax under
Code ss.ss.280G and 4999. This benefit will be in addition to any other benefits
or amounts to which the Participant is entitled on account of his or her
termination of employment.
2.02 Time and Method of Payment
The benefit described in Section 2.01 (and adjusted as described in Section
2.03) will be paid to the Participant in a single lump sum amount within five
days after it becomes due. However, if the Participant dies between the date
that he or she Terminates and the date that he or she receives the benefit
provided under Section 2.01, the benefit will be paid to the deceased
Participant's Beneficiary.
2.03 Payment of Taxes
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Before it is distributed, the Company will withhold any income and employment
taxes due from the Participant or Beneficiary on account of any benefit payable
under Section 2.01 and will pay those withheld taxes to the appropriate taxing
authority.
2.04 No Multiple Benefits
No Participant is entitled to multiple benefits under Section 2.01, even if
there have been multiple Changes of Control. However, the amount and entitlement
to a benefit under Section 2.01 will be calculated separately from each Change
of Control. If there have been multiple Changes of Control within a single
24-month period, the Participant will be entitled to the largest benefit
produced under Section 2.01 even if the amount of that benefit is larger than
the amount that would be due on account of another Change of Control occurring
during a single 24-month period.
ARTICLE III
ADMINISTRATION
3.01 Administration
This Plan will be administered by the Company. Subject to Section 3.02, all
actions taken by the Company in connection with this Plan (including the
exercise of any discretionary matters contemplated by the Plan) will be
conclusive, final and binding under all Participants and upon all persons,
including Beneficiaries, claiming any rights under the Plan.
3.02 Claims Procedure
(a) Any Participant or Beneficiary who believes that he or she is
entitled to a Plan benefit may file a claim with the Company.
(b) If a claim is wholly or partially denied, the Company will
send a written notice of denial to the claimant. This notice
must be written in a manner calculated to be understood by the
claimant and must include:
(i) The specific reason or reasons for which the claim
was denied;
(ii) Specific reference to pertinent Plan provisions,
rules, procedures or protocols upon which the Company
relied to deny the claim;
(iii) A description of any additional material or
information that the claimant may file to perfect the
claim and an explanation of why this material or
information is necessary; and
(iv) A description of the steps the claimant may take to
appeal an adverse determination
The Company will render its decision within 90 days of receiving a benefit
claim. However, if special circumstances (such as the need for more information)
require additional time, this decision will be rendered as soon as possible,
but, not later than 180 days after receipt of the claim and only if the Company
notifies the claimant, in writing, that it needs more time to
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review a claim and why that additional time is needed. If the Company does not
issue its decision within this period, the claim will be deemed to have been
denied.
(c) If a claim has been wholly or partially denied, the affected
claimant, or his or her authorized representative may:
(i) Request that the Company reconsider its initial
denial by filing a written appeal no more than 60
days after receiving written notice that all or part
of the initial claim was denied;
(ii) Review pertinent documents and other material upon
which the Company relied when denying the initial
claim; and
(iii) Submit a written description of the reasons for which
the claimant disagrees with the Company's initial
adverse decision.
An appeal of an initial denial of benefits and all supporting material must be
made in writing and directed to the Company. The Company is solely responsible
for reviewing all benefit claims and appeals and taking all appropriate steps to
implement its decision.
The Company's decision on review will be sent to the claimant in writing and
will include specific reasons for the decision, written in a manner calculated
to be understood by the claimant, as well as specific references to the
pertinent Plan provisions, rules, procedures or protocols upon which the Company
relied to deny the appeal.
The Company will render its decision within 60 days of receiving a benefit
appeal. However, if special circumstances (such as the need to hold a hearing on
any matter pertaining to the denied claim) require additional time, this
decision will be rendered as soon as possible, but not later than 120 days after
receipt of the claimant's written appeal and only if the Company notifies the
claimant, in writing, that it needs more time to review an appeal and why that
additional time is needed. If the Company does not issue its decision within
this period, the claim will be deemed to have been denied.
ARTICLE IV
AMENDMENT TO AND TERMINATION OF THE PLAN
4.01 Right to Amend
The Company may modify, alter or amend the Plan at any time. However, no
amendment may affect any Participant's or Beneficiary's right to receive the
benefit described in Article II without the Participant's (or Beneficiary's)
consent and the Plan may not be amended in any respect after a Change of
Control.
4.02 Right to Terminate
Unless it is renewed by the Board of Directors, this Plan will automatically
terminate at the end of the twelfth calendar month beginning after the Effective
Date ("Expiration Date") and on each anniversary of the Expiration Date. However
if a Change of Control occurs while the Plan is in effect, the Plan will
continue (with or without action by the Board) for the longer of 24 months after
the Change of Control or the date that all benefits due under Section 2.01 have
been paid.
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4.03 Plan Merger and Consolidation
If the Plan is merged into or consolidated with any other plan, each affected
Participant will be entitled to a benefit immediately after the merger,
consolidation or transfer (determined as if the surviving plan had then
terminated) at least equal to the benefit he or she had accrued immediately
before the merger or consolidation (determined as if the Plan terminated
immediately before that merger or consolidation).
4.04 Successor Employer
If the Company dissolves into, reorganizes, merges into or consolidates with
another business entity, provision may be made by which the successor will
continue the Plan, in which case the successor will be substituted for the
Company under the terms and provision of this Plan. The substitution of the
successor for the Company will constitute an assumption by the successor of all
Plan liabilities and the successor will have all of the powers, duties and
responsibilities of the Company under the Plan.
ARTICLE V
MISCELLANEOUS
5.01 Non-alienation of Benefits
The right of a Participant, Beneficiary or any other person to receive Plan
benefits may not be assigned, transferred, pledged or encumbered except as
provided in the Participant's Beneficiary designation, by will or by applicable
laws of descent and distribution. Any attempt to assign, transfer, pledge or
encumber a Plan benefit will be null and void and of no legal effect.
5.02 Inability to Receive Benefits
Any Plan benefit payable to a Participant or Beneficiary who is declared
incompetent will be paid to the guardian, conservator or other person legally
charged with the care of his or her person or estate. Also, if the Company, in
its sole discretion, concludes that a Participant or Beneficiary is unable to
manage his or her financial affairs, it may but is not required to, distribute
Plan benefits to the Participant's or Beneficiary's spouse, lineal ascendants or
descendants or other close living relatives who demonstrates to the satisfaction
of the Company the propriety of those distributions. Any payment made under this
Section will completely discharge the Plan's liability with respect to that
payment. This Company is not required to see to the application of any
distribution made to any person.
5.03 Lost Participants
Each participant is obliged to keep the Company apprised of his or her current
mailing address and that of his or her Beneficiary. The Company's obligation to
search for any Participant or Beneficiary is limited to sending a registered or
certified letter to the Participant's or Beneficiary's last known address. Any
amounts credited to the Accounts or any Participant or Beneficiary who does not
file a claim for benefits with the Company will be forfeited no later than 12
months after benefits are otherwise payable. However, this forfeited benefit
will be restored and paid if the Company subsequently approves a claim for
benefits under the procedures described in Section 3.02.
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5.04 Limitation of Rights
Nothing in the Plan, expressed or implied, is intended to confer, or may be
construed as conferring, upon or giving to any person, firm or association
(other than the Company, an Affiliate, Participants, their Beneficiaries and
their successors in interest) any right, remedy or claim under or by reason of
this Plan.
5.05 Invalid Provision
If any provision of this Plan is held to be illegal or invalid for any reason,
the Plan will be construed and enforced as if the offending provision has not
been included in the Plan. However, that determination will not affect the
legality or validity of the remaining parts of this Plan.
5.06 One Plan
This Plan may be executed in any number of counterparts, each of which will be
deemed to be an original.
5.07 Governing Law
The Plan will be governed by and construed in accordance with the laws of the
United States and, to the extent applicable, the laws of Ohio.
BANCFIRST OHIO CORP.
By:
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Print Name:
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Title:
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Date:
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