EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of this 21st day of March, 2000 by and between FFY Financial Corp. (the
"Company") and Jeffrey L. Francis (the "Employee").
WHEREAS, the Employee serves as the President and Chief Executive
Officer of the Company and of the Company's wholly-owned subsidiary, FFY
Bank (the "Bank");
WHEREAS, the Employee has an existing employment agreement originally
entered into as of May 11, 1993 and subsequently amended (the "Prior
Employment Agreement") which he is willing to terminate in consideration of
this Agreement becoming effective;
WHEREAS, the board of directors of the Company (the "Board of
Directors") believes it is in the best interests of the Company and its
subsidiaries for the Company to enter into this Agreement with the Employee
in order to assure continuity of management of the Company and its
subsidiaries; and
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Employee;
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein, it is AGREED as
follows:
1. Definitions.
------------
(a) The term "Change in Control" means (1) an acquisition of
securities of the Company or the Bank that is determined by the Board of
Directors to constitute an acquisition of control of the Company or the Bank
within the meaning of the Change in Bank Control Act, 12 U.S.C.
[SECTION] 1817(j) and the Savings and Loan Holding Company Act, 12U.S.C.
[SECTION] 1467a, and applicable regulations thereunder; (2) an event that
would be required to be reported in response to Item 1 of the current report
on Form 8-K, as in effect on the Effective Date, pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"); (3) any
person (as the term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) directly or indirectly of securities of the Company or the Bank
representing 25% or more of the combined voting power of the Company's or the
Bank's outstanding securities; (4) individuals who are members of the Board of
Directors on the Effective 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 Effective 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 a nominating committee serving under an Incumbent Board, shall
be considered a member of the Incumbent Board; or (5) approval by the
Company's stockholders of a plan of reorganization, merger or consolidation
of the Company, sale of all or substantially all of the assets of the
Company, a similar transaction in which the Company is not the resulting
entity; provided that the term "change in control" shall not include an
acquisition of securities by an employee benefit plan of the Bank or the
Company. In the application of regulations under the Change in Bank Control
Act or the Savings and Loan Holding Company Act, determinations to be made
by the applicable federal banking regulator shall be made by the Board of
Directors.
(b) The term "Consolidated Subsidiaries" means any subsidiary or
subsidiaries of the Company (or its successors) that are part of the
consolidated group of the Company (or its successors) for federal income tax
reporting.
(c) The term "Date of Termination" means the date upon which the
Employee's employment with the Company or the Bank or both ceases, as
specified in a notice of termination pursuant to Section 8 of this
Agreement.
(d) The term "Effective Date" means March 21, 2000.
(e) The term "Involuntarily Termination" means the termination of the
employment of Employee (i) by either the Company or the Bank or both without
his express written consent; or (ii) by the Employee by reason of a material
diminution of or interference with his duties, responsibilities or benefits,
including (without limitation) any of the following actions unless consented
to in writing by the Employee: (1) a requirement that the Employee be based
at any place other than Youngstown, Ohio, or within 35 miles thereof, except
for reasonable travel on Company or Bank business; (2) a material demotion
of the Employee; (3) a material reduction in the number or seniority of
personnel reporting to the Employee 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 Employee, other than as part of a Bank- or
Company-wide reduction in staff; (4) a reduction in the Employee's salary or
a material adverse change in the Employee's perquisites, benefits,
contingent benefits or vacation; (5) a material permanent increase in the
required hours of work or the workload of the Employee; or (6) the failure
of the Board of Directors (or a board of directors of a successor of the
Company) to elect him as President and Chief Executive Officer of the
Company (or a successor of the Company) or any action by the Board of
Directors (or a board of directors of a successor of the Company) removing
him from any of such offices, or the failure of the board of directors of
the Bank (or any successor of the Bank) to elect him as President and Chief
Executive Officer of the Bank (or any successor of the Bank) or any action
by such board (or board of a successor of the Bank) removing him from any of
such offices. The term "Involuntary Termination" does not include
Termination for Cause or termination of employment due to death or permanent
disability pursuant to Section 7(g) of this Agreement, or suspension or
temporary or permanent prohibition from participation in the conduct of the
affairs of a depository institution under Section 8 of the Federal Deposit
Insurance Act.
(f) The terms "Termination for Cause" and "Terminated for Cause" mean
termination of the employment of the Employee with either the Company or the
Bank, as the case may be, because of the Employee's 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 (excluding violations which do not
have a material adverse affect on the Company or the Bank) or final cease-
and-desist order, or (except as provided below) material breach of any
provision of this Agreement. No act or failure to act by the Employee shall
be considered willful unless the Employee 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 Company. The Employee shall
not be deemed to have been Terminated for Cause unless and until there shall
have been delivered to the Employee a copy of a resolution, duly adopted by
the affirmative vote of not less than a majority of the entire membership of
the Board of Directors at a meeting of the Board duly called and held for
such purpose (after reasonable notice to the Employee and an opportunity for
the Employee, together with the Employee's counsel, to be heard before the
Board), stating that in the good faith opinion of the Board of Directors the
Employee has engaged in conduct described in the preceding sentence and
specifying the particulars thereof in detail.
2. Term; Termination of Prior Employment Agreement. The term of this
Agreement shall be a period of five years commencing on the Effective Date,
subject to earlier termination as provided herein. On each anniversary of
this Agreement the term shall be extended for a period of one year in
addition to the then-remaining term, provided that the Company has not given
notice to the Employee in writing at least 90 days prior to such anniversary
that the term of this Agreement shall not be extended further, and provided
further that the Employee has not received an unsatisfactory performance
review by either the Board of Directors or the board of directors of the
Bank. The Employee's Prior Employment Agreement shall terminate immediately
prior to the Effective Date.
3. Employment. The Employee is employed as the President and Chief
Executive Officer of the Company and as the President and Chief Executive
Officer of the Bank. As such, the Employee shall render administrative and
management services as are customarily performed by persons situated in
similar executive capacities, and shall have such other powers and duties as
the Board of Directors or the board of directors of the Bank may prescribe
from time to time. The Employee shall also render services to any subsidiary
or subsidiaries of the Company or the Bank as requested by the Company or
the Bank from time to time consistent with his executive position. The
Employee shall devote his best efforts and reasonable time and attention to
the business and affairs of the Company and the Bank to the extent necessary
to discharge his responsibilities hereunder. The Employee may (i) serve on
corporate or charitable boards or committees, and (ii) manage personal
investments, so long as such activities do not interfere materially with
performance of his responsibilities hereunder.
4. Cash Compensation.
------------------
(a) Salary. The Company agrees to pay the Employee during the term of
this Agreement a base salary (the "Company Salary") the annualized amount of
which shall be not less than the annualized aggregate amount of the
Employee's base salary from the Company and any Consolidated Subsidiaries in
effect at the Effective Date; provided that any amounts of salary actually
paid to the Employee by any Consolidated Subsidiaries shall reduce the
amount to be paid by the Company to the Employee. The Company Salary shall
be paid no less frequently than monthly and shall be subject to customary
tax withholding. The amount of the Employee's Company Salary shall be
increased (but shall not be decreased) from time to time in accordance with
the amounts of salary approved by the Board of Directors or the board of
directors of any of the Consolidated Subsidiaries after the Effective Date.
(b) Bonuses. The Employee shall be entitled to participate in an
equitable manner with all other executive officers of the Company and the
Bank in such performance-based and discretionary bonuses, if any, as are
authorized and declared by the Board of Directors for executive officers of
the Company and by the board of directors of the Bank for executive officers
of the Bank.
(c) Expenses. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in
performing services under this Agreement in accordance with the policies and
procedures applicable to the executive officers of the Company and the Bank,
provided that the Employee accounts for such expenses as required under such
policies and procedures.
(d) Deferral of Non-Deductible Compensation. In the event that the
Employee's aggregate compensation (including compensatory benefits which are
deemed remuneration for purposes of Section 162(m) of the Internal Revenue
Code of 1986 as amended (the "Code")) from the Company and the Consolidated
Subsidiaries for any calendar year exceeds the greater of (i) $1,000,000 or
(ii) the maximum amount of compensation deductible by the Company or any of
the Consolidated Subsidiaries in any calendar year under Section 162(m) of
the Code (the "maximum allowable amount"), then any such amount in excess of
the maximum allowable amount shall be mandatorily deferred with interest
thereon at 8% per annum, compounded annually, to a calendar year such that
the amount to be paid to the Employee in such calendar year, including
deferred amounts and interest thereon, does not exceed the maximum allowable
amount. Subject to the foregoing, deferred amounts including interest
thereon shall be payable at the earliest time permissible. All unpaid
deferred amounts shall be paid to the Employee not later than his Date of
Termination unless his Date of Termination is on a December 31st, in which
case, the unpaid deferred amounts shall be paid to the Employee on the first
business day of the next succeeding calendar year. The provisions of this
subsection shall survive any termination of the Employee's employment and
any termination of this Agreement.
5. Benefits.
---------
(a) Participation in Benefit Plans. The Employee shall be entitled to
participate, to the same extent as executive officers of the Company and the
Bank generally, in all plans of the Company and the Bank relating to
pension, retirement, thrift, profit-sharing, savings, group or other life
insurance, hospitalization, medical and dental coverage, travel and accident
insurance, education, cash bonuses, and other retirement or employee
benefits or combinations thereof. In addition, the Employee shall be
entitled to be considered for benefits under all of the stock and stock
option related plans in which the Company's or the Bank's executive officers
are eligible or become eligible to participate.
(b) Fringe Benefits. The Employee shall be eligible to participate in,
and receive benefits under, any other fringe benefit plans or perquisites
which are or may become generally available to the Company's or the Bank's
executive officers, including but not limited to supplemental retirement,
incentive compensation, supplemental medical or life insurance plans,
company cars, club dues, physical examinations, financial planning and tax
preparation services.
6. Vacations; Leave. The Employee shall be entitled to annual paid
vacation in accordance with the policies established by the Board of
Directors and the board of directors of the Bank for executive officers, in
no event less than four weeks per year, and to voluntary leaves of absence,
with or without pay, from time to time at such times and upon such
conditions as the Board of Directors may determine in its discretion.
7. Termination of Employment.
--------------------------
(a) Involuntary Termination. If the Employee experiences an
Involuntary Termination, such termination of employment shall be subject to
the Company's obligations under this Section 7. In the event of the
Involuntary Termination of the Employee, if the Employee has offered to
continue to provide the services contemplated by and on the terms provided
in this Agreement and such offer has been declined, subject to Section 7(b)
of this Agreement, the Company shall, during the lesser period of the
remaining term of this Agreement or three years following the Date of
Termination (the "Liquidated Damage Period"), as liquidated damages (i) pay
to the Employee monthly one-twelfth of the Company Salary at the annual rate
in effect immediately prior to the Date of Termination and one-twelfth of
the average annual amount of cash bonus and cash incentive compensation of
the Employee, based on the average amounts of such compensation earned by
the Employee from the Company and the Bank for the two full fiscal years
preceding the Date of Termination; and (ii) maintain substantially the same
group life insurance, hospitalization, medical, dental, prescription drug
and other health benefits, and long-term disability insurance (if any) for
the benefit of the Employee and his dependents and beneficiaries who would
have been eligible for such benefits if the Employee had not suffered
Involuntary Termination and on terms substantially as favorable to the
Employee including amounts of coverage and deductibles and other costs to
him in effect immediately prior to such Involuntary Termination (the
"Employee's Health Coverage").
(b) Reduction of the Company's Obligations Under Section 7(a).
----------------------------------------------------------
(1) In the event that the Employee becomes entitled to liquidated
damages pursuant to Section 7(a), (i) the Company's obligation thereunder
with respect to cash damages shall be reduced by the amount of the
Employee's cash income, if any, earned from providing personal services
during the Liquidated Damage Period; and (ii) the Company's obligation to
maintain Health Coverage shall be reduced to the extent, if any, that the
Employee receives such benefits, on no less favorable terms, from another
employer during the Liquidated Damage Period. For purposes of this Section
7(b), the term "cash income" shall include amounts of salary, wages,
bonuses, incentive compensation and fees paid to the Employee in cash but
shall not include shares of stock, stock options, stock appreciation rights
or other earned income not paid to the Employee in cash. To the extent the
provisions of this Section 7(b)(1) are applicable and an overpayment has
been made to the Employee as of the expiration of the Liquidated Damage
Period, the Employee shall reimburse the Company in an amount equal to the
after tax benefit realized by the Employee from such overpayment (i.e.
amount realized net of all federal, state, local, employment and medicare
taxes). In making the reimbursement calculation it shall be presumed that
the Employee is subject to the highest marginal federal and state income tax
rates.
(2) The Employee agrees that in the event he becomes entitled to
liquidated damages pursuant to Section 7(a), throughout the Liquidated
Damage Period, he shall promptly inform the Company of the nature and
amounts of cash income and the type of health benefits and coverage which he
earns or receives from providing personal services, and shall provide such
documentation of such cash income and such health benefits and coverage as
the Company may request. In the event of changes to such cash income or such
health benefits or coverage from time to time, the Employee shall inform the
Company of such changes, in each case within five days after the change
occurs, and shall provide such documentation concerning the change as the
Company may request.
(c) Change in Control; Cut Back; and Tax Gross Up. In the event that
the Employee experiences an Involuntary Termination within the 6 months
preceding, at the time of, or within 24 months following a Change in
Control, in addition to the Company's obligations under Section 7(a) of this
Agreement, the Company shall pay to the Employee in cash, within 30 days
after the later of the date of such Change in Control or the Date of
Termination, an amount equal to 299% of the Employee's "base amount" as
determined under Section 280G of the Code, less the acceleration and lapse
value of options granted to the Employee by the Company that are taken into
account in the determination of "parachute payments" under 280G(b)(2) of the
Code by virtue of vesting acceleration or deemed vesting acceleration in
connection with such Change in Control. Notwithstanding the foregoing, for
purposes of this paragraph the Employee shall not be deemed to have
experienced an Involuntary Termination if he is requested to continue his
employment under this Agreement for a period of up to 6 months after a
Change in Control and he elects to terminate his employment at the time of
or within 6 months after a Change in Control solely by reason of an event
described in Section 1(e)(ii)(6) of this Agreement, in which case he shall
not be entitled to the Change in Control payment set forth in this
paragraph. In the event the Employee is requested in connection with or at
the time of a Change in Control to continue employment for an interim period
and he shall die while employed during such interim period, then his estate,
or such person as the Employee may have previously designated in writing,
shall be entitled to the full Change in Control payment described in this
paragraph.
While it is not contemplated that the Employee will receive any
amounts or benefits that will constitute "excess parachute payments" under
Section 280G of the Code, in the event that any payments or benefits
provided or to be provided to the Employee pursuant to this Agreement, in
combination with payments or benefits, if any, from other plans or
arrangements maintained by the Company or any of the Consolidated
Subsidiaries, constitute "excess parachute payments" under Section 280G of
the Code that are subject to excise tax under Section 4999 of the Code, the
Company shall pay to the Employee in cash an additional amount equal to the
amount of the Gross Up Payment (as hereinafter defined). The "Gross Up
Payment" shall be the amount needed to ensure that the amount of such
payments and the value of such benefits received by the Employee (net of
such excise tax and any federal, state and local tax on the Company's
payment to him attributable to such excise tax) equals the amount of such
payments and value of such benefits as he would receive in the absence of
such excise tax and any federal, state and local tax on the Company's
payment to him attributable to such excise tax. The Company shall pay the
Gross Up Payment within 30 days after the Date of Termination. For purposes
of determining the amount of the Gross Up Payment, the value of any non-cash
benefits and deferred payments or benefits shall be determined by the
Company's independent auditors in accordance with the principles of Section
280G(d)(3) and (4) of the Code. In the event that, after the Gross Up
Payment is made, the amount of the excise tax is determined to be less than
the amount calculated in the determination of the actual Gross Up Payment
made by the Company, the Employee shall repay to the Company, at the time
that such reduction in the amount of excise tax is finally determined, the
portion of the Gross Up Payment attributable to such reduction, plus
interest on the amount of such repayment at the applicable federal rate
under Section 1274 of the Code from the date of the Gross Up Payment to the
date of the repayment. The amount of the reduction of the Gross Up Payment
shall reflect any subsequent reduction in excise taxes resulting from such
repayment. In the event that, after the Gross Up Payment is made, the amount
of the excise tax is determined to exceed the amount anticipated at the time
the Gross Up Payment was made, the Company shall pay to the Employee, in
immediately available funds, at the time that such additional amount of
excise tax is finally determined, an additional payment ("Additional Gross
Up Payment") equal to such additional amount of excise tax and any federal,
state and local taxes thereon, plus all interest and penalties, if any,
owned by the Employee with respect to such additional amount of excise and
other tax. The Company shall have the right to challenge, on the Employee's
behalf, any excise tax assessment against him as to which the Employee is
entitled to (or would be entitled if such assessment is finally determined
to be proper) a Gross Up Payment or Additional Gross Up Payment, provided
that all costs and expenses incurred in such a challenge shall be borne by
the Company and the Company shall indemnify the Employee and hold him
harmless, on an after-tax basis, from any excise or other tax (including
interest and penalties with respect thereto) imposed as a result of such
payment of costs and expenses by the Company.
(d) Termination for Cause. In the event of Termination for Cause, the
Company shall have no further obligation to the Employee under this
Agreement after the Date of Termination other than deferred amounts under
Section 4(d).
(e) Voluntary Termination. The Employee may terminate his employment
voluntarily at any time by a notice pursuant to Section 8 of this Agreement.
In the event that the Employee voluntarily terminates his employment other
than by reason of any of the actions that constitute Involuntary Termination
under Section 1(e)(ii) of this Agreement ("Voluntary Termination"), the
Company shall be obligated to the Employee for the amount of his Company
Salary and benefits only through the Date of Termination, at the time such
payments are due, and the Company shall have no further obligation to the
Employee under this Agreement except as provided in Section 4(d).
(f) Death. In the event of the death of the Employee while employed
under this Agreement and prior to any termination of employment, the Company
shall pay to the Employee's estate, or such person as the Employee may have
previously designated in writing, (i) the Company Salary which was not
previously paid to the Employee through the last day of the calendar month
in which Employee's death occurred and, if applicable, the Change in Control
payment set forth in the first paragraph of Section 7(c), provided Employee
died within six months prior or 24 months following such change in control;
(ii) the amounts of any benefits or awards which, pursuant to the terms of
any applicable plan or plans, were earned with respect to the fiscal year in
which the Employee died and which the Employee would have been entitled to
receive if he had continued to be employed, and the amount of any bonus or
incentive compensation for such fiscal year which the Employee would have
been entitled to receive if he had continued to be employed, pro-rated in
accordance with the portion of the fiscal year prior to his death, provided
that such amounts shall be payable when and as ordinarily payable under the
applicable plans; and (iii) the unpaid deferred amounts under Section 4(d).
(g) Permanent Disability. For purposes of this Agreement, the term
"permanently disabled" means that the Employee has a mental or physical
infirmity which permanently impairs his ability to perform substantially his
duties and responsibilities under this Agreement and which results in (i)
eligibility of the Employee under the long-term disability plan of the
Company or the Bank, if any; or (ii) inability of the Employee to perform
substantially his duties and responsibilities under this Agreement for a
period of 180 consecutive days. Either the Company or the Bank or both may
terminate the employment of the Employee after having established that the
Employee is permanently disabled.
(h) Regulatory Action. Notwithstanding any other provisions of this
Agreement:
(1) If the Employee is suspended and/or temporarily prohibited
from participating in the conduct of the affairs of a depositary
institution by a notice served under section 8 (e)(3) or (g)(1) of
Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(3) and (g)(1)) the
Company's obligations under the contract shall be suspended as of the
date of service unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Company may in its discretion
(i) pay the Employee all or part of the compensation withheld while
its contract obligations were suspended, and (ii) reinstate (in whole
or in part) any of its obligations which were suspended.
(2) If the Employee is removed and/or permanently prohibited
from participating in the conduct of the affairs of a depository
institution by an order issued under Section 8(e)(4) or (g)(1) of the
Federal Deposit Insurance Act ("FDIA"), 12 U.S.C. [SECTION] 1818(e)(4)
and (g)(1), all obligations of the Company under this Agreement shall
terminate as of the effective date of the order, but vested rights of
the contracting parties shall not be affected;.
(3) If the Bank is in default (as defined in Section 3(x)(1) of
the FDIA), all obligations of the Company under this Agreement shall
terminate as of the date of default, but this provision shall not
affect any vested rights of the contracting parties; and
(4) All obligations of the Company 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: (i) 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 (ii) 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.
8. Notice of Termination. In the event that the Company or the Bank,
or both, desire to terminate the employment of the Employee during the term
of this Agreement, the Company or the Bank, or both, shall deliver to the
Employee a written notice of termination, stating whether such termination
constitutes Termination for Cause or Involuntary Termination, setting forth
in reasonable detail the facts and circumstances that are the basis for the
termination, and specifying the date upon which employment shall terminate,
which date shall be at least 30 days after the date upon which the notice is
delivered, except in the case of Termination for Cause. In the event that
the Employee determines in good faith that he has experienced an Involuntary
Termination of his employment, he shall send a written notice to the Company
stating the circumstances that constitute such Involuntary Termination and
the date upon which his employment shall have ceased due to such Involuntary
Termination. In the event that the Employee desires to effect a Voluntary
Termination, he shall deliver a written notice to the Company, stating the
date upon which employment shall terminate, which date shall be at least 30
days after the date upon which the notice is delivered, unless the parties
agree to a date sooner.
9. Attorneys Fees. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by
the Employee as a result of (i) the Employee's contesting or disputing any
termination of employment, or (ii) the Employee's seeking to obtain or
enforce any right or benefit provided by this Agreement or by any other plan
or arrangement maintained by the Company (or its successors) or the
Consolidated Subsidiaries under which the Employee is or may be entitled to
receive benefits; provided that the Company's obligation to pay such fees
and expenses is subject to the Employee's prevailing with respect to the
matters in dispute in any action initiated by the Employee or the Employee's
having been determined to have acted reasonably and in good faith with
respect to any action initiated by the Company or the Bank.
10. Non-Disclosure and Non-Solicitation.
------------------------------------
(a) Non-Disclosure. The Employee acknowledges that he has acquired,
and will continue to acquire while employed by the Company and/or any
Consolidated Subsidiary, special knowledge of the business, affairs,
strategies and plans of the Company and the Consolidated Subsidiaries which
has not been disclosed to the public and which constitutes confidential and
proprietary business information owned by the Company and the Consolidated
Subsidiaries, including but not limited to, information about the customers,
customer lists, software, data, formulae, processes, inventions, trade
secrets, marketing information and plans, and business strategies of the
Company and the Consolidated Subsidiaries, and other information about the
products and services offered or developed or planned to be offered or
developed by the Company and/or the Consolidated Subsidiaries ("Confidential
Information"). The Employee agrees that, without the prior written consent
of the Company, he shall not, during the term of his employment or at any
time thereafter, in any manner directly or indirectly disclose any
Confidential Information to any person or entity other than the Company and
the Consolidated Subsidiaries. Notwithstanding the foregoing, if the
Employee is requested or required (including but not limited to by oral
questions, interrogatories, requests for information or documents in legal
proceeding, subpoena, civil investigative demand or other similar process)
to disclose any Confidential Information the Employee shall provide the
Company with prompt written notice of any such request or requirement so
that the Company and/or a Consolidated Subsidiary may seek a protective
order or other appropriate remedy and/or waive compliance with the
provisions of this Section 10(a). If, in the absence of a protective order
or other remedy or the receipt of a waiver from the Company, the Employee is
nonetheless legally compelled to disclose Confidential Information to any
tribunal or else stand liable for contempt or suffer other censure or
penalty, the Employee may, without liability hereunder, disclose to such
tribunal only that portion of the Confidential Information which is legally
required to be disclosed, provided that the Employee exercise his best
efforts to preserve the confidentiality of the Confidential Information,
including without limitation by cooperating with the Company and/or a
Consolidated Subsidiary to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the
Confidential Information by such tribunal. On the Date of Termination, the
Employee shall promptly deliver to the Company all copies of documents or
other records (including without limitation electronic records) containing
any Confidential Information that is in his possession or under his control,
and shall retain no written or electronic record of any Confidential
Information.
(b) Non-Solicitation. During the three year period next following the
Date of Termination, the Employee shall not directly or indirectly solicit,
encourage, or induce any person while employed by the Company or any
Consolidated Subsidiary to (i) leave the Company or any Consolidated
Subsidiary, (ii) cease his or her employment with the Company or any
Consolidated Subsidiary or (iii) accept employment with another entity or
person.
The provisions of this Section 10 shall survive any termination of the
Employee's employment and any termination of this Agreement.
11. No Assignments.
---------------
(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 Company shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) by an assumption agreement in form and substance satisfactory to
the Employee, to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place. Failure of
the Company 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 Employee to compensation and benefits from
the Company in the same amount and on the same terms as provided for an
Involuntary Termination under Section 7 hereof. For purposes of implementing
the provisions of this Section 11(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 Employee hereunder shall
inure to the benefit of and be enforceable by the Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
12. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when personally delivered or sent by
certified mail, return receipt requested, postage prepaid, to the Company at
its home office, to the attention of the Board of Directors with a copy to
the Secretary of the Company, or, if to the Employee, to such home or other
address as the Employee has most recently provided in writing to the
Company.
13. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein
otherwise provided.
14. 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.
15. 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.
16. Governing Law. This Agreement shall be governed by the laws of the
State of Ohio.
17. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement (other than relating to the enforcement of
the provisions of Section 10) shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction.
18. Equitable and Other Judicial Relief. In the event of an actual or
threatened breach by the Employee of any of the provisions of Section 10,
the Company shall be entitled to equitable relief in the form of an
injunction from a court of competent jurisdiction and such other equitable
and legal relief as such court deems appropriate under the circumstances.
The parties agree that the Company shall not be required to post any bond in
connection with the grant or issuance of an injunction (preliminary,
temporary and/or permanent) by a court of competent jurisdiction, and if a
bond is nevertheless required, the parties agree that it shall be in a
nominal amount. The parties further agree that in the event of a breach by
the Employee of any of the provisions of Section 10, the Company will suffer
irreparable damage and its remedy at law against the Employee is inadequate
to compensate it for such damage.
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: FFY Financial Corp.
_____________________ ____________________________
Secretary By: W. Terry Patrick
Its: Chairman
Employee
____________________________
Jeffrey L. Francis
