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Exhibit 10(iii) - Employment Contract
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT, dated and effective as of April 16, 2001
(the "Agreement"), is made by and between The Croghan Colonial Bank (the
"Bank"), and Steven C. Futrell (the "Executive").
WHEREAS, it is the desire of the Bank to assure itself of the services
of the Executive by engaging the Executive to perform such services under the
terms hereof; and
WHEREAS, the Executive desires to commit himself to serve the Bank on
the terms herein provided;
NOW THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as follows:
Section 1. CERTAIN DEFINITIONS.
a. "Annual Base Salary" shall have the meaning set forth in
Subsection 5 (a).
b. "Board" shall mean the Board of Directors of the Bank or any
Committee thereof duly created or authorized by the Board to
act in its behalf.
c. The Bank shall have "Cause", in the discretion of the Board of
Directors, to terminate the Executive's employment hereunder
upon Executive's
i. failure to perform his duties hereunder, other than
any such failure resulting from the Executive's
Disability, as determined by the Board;
ii. conviction of a felony or a crime involving moral
turpitude; or
iii. fraud or personal dishonesty.
d. "Bank" shall have the meaning set forth in the preamble
hereto.
e. "Corporate Transaction" shall mean any of the following
events:
i. a merger or consolidation of the Bank with a
theretofore unaffiliated entity in which the
stockholders of the Bank receive cash, securities
and/or other marketable property in exchange for
their voting stock;
ii. the sale, transfer, exchange or other disposition of
all or substantially all of the assets of the Bank;
f. "Date of Termination" shall mean:
i. if the Executive's employment is terminated by his
death, the date of his death, or
ii. if the Executive's employment is terminated pursuant
to any other provision of Subsection 6(a), the date
specified in the Notice of Termination.
g. "Disability" shall mean the absence of the Executive from the
Executive's duties to the Bank on a full-time basis for a
total of six (6) months during any twelve (12) month period as
a result of incapacity due to any injury or to mental or
physical illness which is determined to be reasonably likely
to extend beyond the completion of the Term by a physician
selected by the Bank and acceptable to the Executive or the
Executive's legal representative (such agreement as to
acceptability not to be withheld unreasonably).
h. "Effective Date" shall mean the date first set forth in the
preamble hereto.
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i. "Executive" shall have the meaning set forth in the preamble
hereto.
j. The Executive shall have "Good Reason" to terminate his
employment in the event the Bank fails to make any payment or
provide any benefit hereunder or commits a material breach of
this Agreement and does not cure such failure or breach after
notice and a reasonable opportunity to cure.
k. "Notice of Termination" shall have the meaning set forth in
Subsection 6(b).
l. "Severance Period" shall have the meaning set forth in
Subsection 7(a)(i), 7(a)(ii), or 7(a)(iii).
m. "Term" shall have the meaning set forth in Subsection 2.
Section 2. EMPLOYMENT.
The Bank shall employ the Executive and the Executive shall work in the
employ of the Bank for the period set forth in this Section 2, in the position
or positions set forth in Section 3, and upon the other terms and conditions
herein provided. The term of this Agreement shall initially be a period of three
years from the effective date hereof. The parties agree to confer, in good
faith, six months prior to the termination of this agreement on any extension or
renegotiation. If the time period specified in this agreement should expire
before any written extension or renegotiation is completed, both parties agree
that the terms and conditions of this agreement shall remain in full force and
effect until a new agreement between the parties is reached, a written extension
of this agreement is signed by the parties or either party gives notice of its
intention not to extend this agreement or enter into a new agreement. The
parties agree that the purpose of this section is to provide continuity of the
rights and obligations of both parties in the event a new agreement or extension
of this agreement is not completed by expiration date of the current agreement.
This section is not meant to create and does not create a guarantee of
employment to Executive.
Section 3. POSITION AND DUTIES.
a. The Executive shall serve as the President/CEO of the Bank. In
such capacity, the Executive shall have such customary
responsibilities, duties, and authority as may from time to
time be assigned by the Board. The Executive shall devote
substantially all his working time and efforts to the business
and affairs of the Bank. The Executive shall not be required
to perform any of his duties in a manner inconsistent with
applicable law or the Bank's Code of Ethics and Standards of
Conduct. Except as modified herein, Executive's employment
shall be subject to all rules and regulations applicable to
employees of the Bank as those rules and regulations may be
altered or amended from time to time. The Executive will be
evaluated on his performance annually by a committee of the
Bank's Board of Directors.
b. If elected or appointed thereto, and only for the duration of
such elected term or appointment, Executive shall, in addition
to the position(s) set forth in Subsection 3(a) above, serve
as a director of the Bank and/or any of its subsidiaries,
and/or in one or more executive offices of any other
subsidiaries of the Bank.
Section 4. PLACE OF PERFORMANCE.
In connection with his employment during the Term, the Executive shall
be based in Fremont, Ohio.
Section 5. COMPENSATION AND RELATED MATTERS.
a. ANNUAL BASE SALARY. During employment, the Executive shall
receive an Annual Base Salary which (i) is currently in the
amount specified in Exhibit A attached hereto and (ii) will
follow the salary administration program currently in effect
for all bank employees.
b. BENEFITS. The Executive shall be entitled to participate in
the employee benefit plans, programs, and arrangements of the
Bank now or hereafter in effect which are applicable to the
senior officers of the Bank, subject to and on a basis
consistent with the terms, conditions, and overall
administration thereof, including but not limited to those
benefits specified in Exhibit A attached hereto.
c. EXPENSES. The Bank shall reimburse the Executive for all
reasonable travel and other business expenses incurred by him
in the performance of his duties to the Bank, in accordance
with the Bank's expense reimbursement policy.
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Section 6. TERMINATION.
The Executive's employment hereunder may be terminated by the Bank or
the Executive, as applicable, without any breach of this Agreement only under
the following circumstances:
a. i. DEATH. The Executive's employment hereunder shall
terminate upon his death.
ii. DISABILITY. If the Bank determines in good faith that
the Executive has incurred a Disability, the Bank may
give the Executive written notice of its intention to
terminate the Executive's employment. In such event,
the Executive's employment with the Bank shall
terminate effective on the 30th day after receipt of
such notice by the Executive, provided that within 30
days after such receipt, the Executive shall not have
returned to full-time performance of his duties. The
Executive shall continue to receive his Annual Base
Salary until the Date of Termination.
iii. CAUSE. The Bank may terminate the Executive's
employment hereunder for Cause.
iv. GOOD REASON. The Executive may terminate his
employment for Good Reason.
v. WITHOUT CAUSE. The Bank may terminate the Executive's
employment hereunder without Cause. If there is a
"Corporate Transaction" as defined in this agreement
and the acquiring entity terminates Executive's
employment, such termination shall be construed as
termination Without Cause.
vi. RESIGNATION WITHOUT GOOD REASON. The Executive may
resign his employment without Good Reason upon sixty
(60) days prior written notice to the Bank. Any
retirement by Executive after age 55 and upon sixty
(60) days prior written notice shall be considered
Resignation without Good Reason hereunder.
b. NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Bank or by the Executive under this Section
6, other than termination pursuant to Subsection 6(a)(i),
shall be communicated by written notice to the other party
hereto indicating the specific termination provision in this
Agreement relied upon, setting forth in reasonable detail the
facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision
so indicated, and specifying a Date of Termination which,
except in the case of termination for Cause, shall be at least
fourteen days following the date of such notice (a "Notice of
Termination").
Section 7. SEVERANCE PAYMENTS.
a. TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If the
Executive's employment shall terminate without Cause pursuant
to Subsection 6(a)(v) above, or for Good Reason pursuant to
Section 6(a)(iv) above, the Bank shall:
i. if within the initial three year term of this agreement, pay
to the Executive, following the Date of Termination, a
severance amount equal to the Annual Base Salary that the
Executive would have been entitled to receive for a period
of two years had he continued his employment hereunder. The
Severance Period under this condition shall be two years.
The severance amount shall be paid, at the Executive's
election, either in a lump sum within 30 days following the
Date of Termination or over the duration of the Severance
Period in accordance with the Bank's regular payroll
practice for salaried employees.
ii. if subsequent to the initial three year term of this
agreement, pay to the Executive, following the Date of
Termination, a severance amount equal to the Annual Base
Salary that the Executive would have been entitled to
receive for a period of one year had he continued his
employment hereunder. The Severance Period under this
condition shall be one year. The severance amount shall be
paid, at the Executive's election, either in a lump sum
within 30 days following the Date of Termination or over the
duration of the Severance Period in accordance with the
Bank's regular payroll practice for salaried employees.
iii. if subsequent to the initial three year term of this
agreement and due to a Corporate Transaction as described in
Subsection 1(e)(i) and/or (ii) and under the conditions
described in Subsection 6(a)(v), pay to Executive, following
the
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Date of Termination, a severance amount equal to the Annual
Base Salary that the Executive would have been entitled to
receive for a period of two years had he continued his
employment hereunder. The Severance Period under this
condition shall be two years. The severance amount shall be
paid, at the Executive's election, either in a lump sum
within 30 days following the Date of Termination or over the
duration of the Severance Period in accordance with the
Bank's regular payroll practice for salaried employees.
iv. continue, for the remainder of the Severance Period,
Executive's coverage under all Bank welfare benefit plans
and programs in which the Executive was entitled to
participate immediately prior to the Date of Termination, at
the same premium cost, and at the same coverage level, as in
effect immediately preceding the Date of Termination.
However, in the event the premium cost shall change for all
employees of the Bank, or for management employees with
respect to supplemental benefits, the cost shall change for
Executive in a corresponding manner.
The payments required by Subsections 7(a)(i), 7(a)(ii), 7(a)(iii) and
7(a)(iv) above shall be in lieu of any payments to which Executive
would otherwise be entitled under the Bank's general severance policy
pertaining to reductions in force. In the event that Severance Payments
result from a Corporate Transaction, the Bank shall require, as part of
the Corporate Transaction, that the entity with which the Bank engages
in the Corporate Transaction, assumes all liability for the Severance
Payments to be made to the Executive.
b. 401K PROFIT SHARING PLAN. In the event that Executive's
employment is terminated under the circumstances contemplated
by Subsection 7(a) above, the Bank shall, under this Agreement
make such payments at such times and in such amounts as
necessary to produce the same chronological sequence and
amount of payments which Executive would have been eligible in
the context of such termination to receive under the Bank's
401k Profit Sharing Plan (the "Plan"), including calculation
of credited service for vesting purposes to include both
actual credited service and the Severance Period. Payments
under Section 7(b) shall be in addition to any payments made
to Executive under Section 7(a)(i), 7(a)(ii), 7(a)(iii),
and/or 7(a)(iv).
c. TAX INDEMNIFICATION. With respect to any payment(s) made to
Executive under this Section 7 or otherwise and any
accelerated vesting and/or exercise of stock options under any
stock option plan, and only in the event that any thereof
result in the assertion by the Internal Revenue Service
("IRS") that Executive is liable under Section 280G and/or
4999 of the Internal Revenue Code of 1986, as amended (the
"Code") for the payment of an excise tax on so called "excess
parachute payments" under such Code sections, or for any other
tax or imposition, however denominated, and whether federal,
state, or local, in addition to or excess of ordinary income
tax rates (any such tax being hereinafter referred to as an
"EPP Tax"), then the Bank shall indemnify and hold harmless
Executive from and against any such demand or assertion from
the IRS or any other taxing authority, by (i) paying to
Executive an amount sufficient to cover both such asserted EPP
Tax and any income or other tax payable by Executive on or on
account of receiving such indemnification payment, and/or (ii)
at the Bank's sole election, contesting, at the Bank's expense
and with counsel and/or other advisors of the Bank's choosing,
the applicability or amount of such EPP Tax with the IRS or
other taxing authority, in which event Executive shall
cooperate as reasonably requested by the Bank in any such
proceeding. The Bank, shall, in the event it is unsuccessful
in any challenge as to the applicability of or the amount of
any tax imposed under this section, pay the entire tax due as
agreed under this section.
d. SURVIVAL. The expiration or termination of the Term of
Employment shall not impair the rights or obligations of any
party hereto which shall have accrued hereunder prior to such
expiration.
Section 8. COMPETITION.
a. Executive shall not, at any time during the Term, and, if
Executive's employment is terminated by the Executive not for
Good Reason, or by the Bank for Cause, then during the
twenty-four (24) month period following such Date of
Termination, without the prior written consent of the Board,
directly or indirectly engage in, or have any interest in or
manage or operate any Bank or Financial Institution located
within a 50 mile radius of Fremont, Ohio, whether such
engagement occurs in the capacity of a director, officer,
employee, agent, representative, partner, security holder,
consultant, or otherwise or solicit any customer or employee
of the Bank for any purpose; provided, however, that Executive
shall be permitted to acquire a stock interest in such a
corporation provided such stock is publicly traded and the
stock so acquired is not more than one percent of the
outstanding shares of such corporation.
b. In the event that the provisions of Subsection 8(a) shall be
determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a
period of time or over too great a geographical area or by
reason of its being too extensive in any other respect, then
such provisions shall be interpreted to extend only over the
maximum period of time for which it may be enforceable, and/or
over the maximum geographical area as to
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which it may be enforceable, and/or to the maximum extent in
all other respects as to which it may be enforceable, all as
determined by such court in such action.
Section 9. NONDISCLOSURE OF PROPRIETARY INFORMATION.
a. Except as required in the faithful performance of the
Executive's duties hereunder or pursuant to Subsection 9(c)
below, Executive shall, in perpetuity, maintain in confidence
and shall not directly or indirectly use, disseminate,
disclose, or publish, or use for his benefit or the benefit of
any person, firm, corporation, or other entity any
confidential or proprietary information or trade secrets of or
relating to the Bank, including, without limitation,
information with respect to the Bank's operations, processes,
products, inventions, business practices, finances,
principals, vendors, suppliers, customers, potential
customers, marketing methods, costs, prices, contractual
relationships, regulatory sums, compensation paid to employees
or other terms of employment, or deliver to any person, firm,
corporation or other entity any document, record, notebook,
computer program, or similar repository of or containing any
such confidential or proprietary information or trade secrets.
The parties hereby stipulate and agree that as between them
the foregoing matters are important, material, confidential,
and proprietary information and trade secrets and affect the
successful conduct of the business of the Bank.
b. Upon termination of Executive's employment with Bank for any
reason, the Executive shall promptly deliver to the Bank all
correspondence, drawings, manuals, letters, notes, notebooks,
reports, programs, plans, proposals, financial documents, or
any other documents which either concern the Bank's customers,
business plans, marketing strategies, products, or processes,
or which contain proprietary information or trade secrets of
the Bank.
c. Executive may respond to a lawful and valid subpoena or other
legal process seeking any of the information or material
referred to in Subsection 9(a) or 9(b) above, but shall give
the Bank the earliest possible notice thereof, and shall, as
much in advance of the return date as possible, make available
to the Bank and its counsel the documents and other
information sought and shall assist such counsel in resisting
or otherwise responding to such process.
10. INJUNCTIVE RELIEF.
The Executive recognizes and acknowledges that a breach of the
covenants contained in Sections 8 and 9 would cause irreparable damage to Bank
and its goodwill, the exact amount of which would be difficult or impossible to
ascertain, and that the remedies at law for any such breach would be inadequate.
Accordingly, Executive agrees that in the event of a breach of any of the
covenants contained in Sections 8 and 9, in addition to any other remedy which
may be available at law or in equity, the Bank shall be entitled to specific
performance and injunctive relief.
11. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
Bank, the Executive, and their respective successors, assigns, personnel and
legal representatives, executors, administrators, heirs, distributees, devisees,
and legatees, as applicable, provided however that Executive acknowledges that
this Agreement is a personal services contract and is therefore not assignable
by Executive.
12. GOVERNING LAW.
This Agreement shall be governed, construed, interpreted, and enforced
in accordance with the laws of the State of Ohio.
13. VALIDITY.
The invalidity or unenforceability of any provision or provisions of
his Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
14. NOTICES.
Any notice, request, claim, demand, document, or other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt)
and shall be in writing and delivered personally or sent by telex, telecopy, or
certified or registered mail, postage prepaid, as follows:
a. If to the Bank,
Allan E. Mehlow, Vice President
The Croghan Colonial Bank
323 Croghan Street
Fremont, OH 43420
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b. If to the Executive, to him at the address set forth below
under his signature on the last page of this Agreement; or to
any other address as any party shall have specified for itself
by notice in writing to the other parties.
Section 15. COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one
and the same Agreement, which shall be sufficiently evidenced by any one of such
original counterparts.
Section 16. SCOPE OF AQREEMENT.
The terms of this Agreement are intended by the parties to constitute
the final expression of their agreement with respect to the employment of the
Executive by the Bank and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this Agreement shall
constitute the complete and exclusive statement of its terms and that no
extrinsic evidence whatsoever may be introduced in any judicial, administrative,
or other legal proceeding to vary the terms of this Agreement.
Section 17. AMENDMENTS AND WAIVERS.
This Agreement may not be modified, amended, or terminated except by an
instrument in writing, signed by the Executive and by a member of the Board
acting under the express authority of the Board. No right or power under this
Agreement, including but not limited to any right of termination by either party
under Section 6, shall be waived except by an instrument in writing, signed by
the party whose right or power is thereby being waived. No such waiver shall
operate as a waiver of, or estoppel with respect to, any other or subsequent
failure. No failure to exercise and no delay in exercising any right, remedy, or
power hereunder shall preclude any other or further exercise of such or any
other right, remedy, or power provided herein or by law or in equity.
Section 18. NO INCONSISTENT ACTIONS.
The parties hereto shall not voluntarily undertake or fail to undertake
any action or course of action inconsistent with the provisions or essential
intent of this Agreement. Furthermore, it is the intent of the parties hereto to
act in a fair and reasonable manner with respect to the interpretation and
application of the provisions of this Agreement.
Section 19. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators in accordance with the rules of the American Arbitration
Association then in effect. The arbitration shall be held at a location mutually
agreed to by the parties. If no agreement can be reached, then the arbitration
shall be held in Toledo, Ohio at a location designated by the arbitration
chairperson. The Bank shall be entitled to pick one arbitrator and Executive
shall pick an arbitrator. The two arbitrators so chosen shall submit names for a
third arbitrator to Bank and Executive. The third arbitrator chosen shall serve
as chairperson. Following the selection of arbitrators, a time for arbitration
mutually convenient to all parties shall be chosen. Judgment may be entered on
the arbitrator's award in any court having jurisdiction; provided however, that
the Bank shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
the provisions of Sections 8 or 9 of this Agreement and the Executive hereby
consents that such restraining order or injunction may be granted without the
necessity of the Bank's posting any bond; and provided further that the
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement. The fees and expenses of the
arbitrators shall be borne by the Bank.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
BANK EXECUTIVE
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By:/s/ Thomas Hite /s/ Steven C. Futrell
Name:Thomas F. Hite Address: 1440 Spring Falls Circle
Title:President & CEO Dayton, OH 45440
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OFFICER POSITIONS Exhibit A
BENEFITS PACKAGE
1. Medical coverage
- 30 days eligibility
- Coverage is effective 1st of the month following 30 day
eligibility
- Deductible is $250 for single coverage/$500 for 2 party and
family coverage
- Employee cost sharing per month: $20.00 for single; $40.00 for
2 party; $80 for family coverage
- Plan includes mail order prescription program ($15 for generic
drugs and $30 for brand name drugs for 90 day supply)
2. Dental coverage
- 30 days eligibility
- Coverage is effective 1st of the month following 30 day
eligibility
- Deductible is $50 per person
- Employee cost sharing per month: $5.00 for single; $10.00 for
2 party; $15.00 for family coverage
- Plan includes 2 free cleanings per year and 1 set of x-rays
3. Life Insurance
A. Sun Life insurance
- 30 day eligibility
- Coverage is effective 1st of the month following 30 day
eligibility
- Amount of coverage is 2x annual salary rounded to
nearest $1,000
- Bank pays premium
B. Provident Life insurance (optional)
- Eligibility 1 year of service by January 1
- Bank pays 1/2 employee premium after 5 years of service
- Amount of coverage is up to 1x annual salary
4. Group Accidental Death & Dismemberment Insurance (optional)
- 30 days eligibility
- Amount of benefit is decided by employee (ex. $.38 per
month for $10,000 of coverage)
- Employee pays entire premium
5. Profit Sharing 401(k) Plan
- Eligibility is 1 year of service; 21 years of age; 1000
hours worked
- Plan entry dates are January 1 and July 1
- Employee has option to defer up to 12% of pay into plan
- Plan will match 50% of deferral (for up to 6% of annual
pay)
- Full vesting at 7 years of service (on scale before
that)
6. Salary Continuation
- Eligibility is 90 days of service
- Full salary first 90 days of disability
- Long Term Disability - eligibility is 1 year of service,
plan pays 66 2/3% of salary after 90 days of disability
- Bank pays premium
7. Employee Assistance Program
- Effective date of hire
- Includes 3 free visits for employee and family per year
8. Vacation
- The Executive is entitled to 3 weeks vacation in 2001 as
follows: up to 1 week after 30 days from date of hire
and the remaining time after 60 days from date of hire
- 4 weeks vacation in 2002 and after
9. Probation Period
- 6 months (written review after 3 months and 6 months)
- Maintain written record of time at work for 3 months
- No sick pay until after 3 months
10. Miscellaneous
- Bank provides 2 blazers
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STEVEN C. FUTRELL Exhibit A (cont.)
Additional Items Regarding Potential Employment with
The Croghan Colonial Bank
Fremont, Ohio
All Items Subject to Review
BASE ANNUAL SALARY: $ 145,000
INCENTIVE BONUS PROGRAM: To be developed by Executive and Board for
implementation in 2002
STOCK OPTION PROGRAM: To be developed by Executive and Board
MOVING EXPENSES: * Actual cost if Woleslagel Moving Company,
Fremont, Ohio is engaged.
* Actual cost with a maximum of $6,500.00 if
another mover is engaged.
* Moving company invoice to be presented.
TEMPORARY HOUSING: Bank agrees to provide for arrangements for
temporary housing at a reasonable rental
figure in Fremont, OH for Executive for a
maximum six (6) month period beginning with
the date of hire. Temporary housing
arrangement to expire 30 days after the
successful sale of current residence in
Dayton, OH.
RELOCATION COST: If Executive, after a four (4) month period conducting a
good faith effort at a market price, is unable to sell his
current residence, bank agrees to engage a relocation
company to assist in finalizing the move from Dayton to
Fremont.
TRAVEL EXPENSE: Bank agrees to re-imburse Executive for one round trip per
week from Fremont to Dayton to Fremont beginning with the
date of hire and ending 30 days after sale of the current
residence.
COUNTRY CLUB: Bank agrees to bonus the membership cost to Executive for
annual dues and initiation fee at the Fremont Country
Club. (Purchase of stock certificate is at Executive's
expense)
SERVICE CLUB: Bank agrees to pay membership fees and related expenses
for a Service Club (i.e. Rotary, Kiwanis, Lions,
Exchange).
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