UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 17, 2014
UNITED COMMUNITY FINANCIAL CORP.
(Exact name of registrant as specified in its charter)
OHIO | 0-024399 | 34-1856319 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
275 West Federal Street, Youngstown, Ohio 44503-1203
(Address of principal executive offices) (Zip Code)
Registrants telephone number, including area code: (330) 742-0500
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Section 5 Corporate Governance and Management
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(b) Retirement of Patrick W. Bevack as President and Chief Executive Officer
On March 17, 2014, United Community Financial Corp. (UCFC) and UCFCs wholly-owned subsidiary, The Home Savings and Loan Company of Youngstown, Ohio (Home Savings), announced that Patrick W. Bevack, President and Chief Executive Officer of UCFC and Home Savings, will be retiring as President and Chief Executive Officer effective March 31, 2014. Mr. Bevack will continue to serve on the Board of Directors of both UCFC and Home Savings. As a result, Mr. Bevacks current employment agreement will terminate on March 31, 2014. Mr. Bevack has executed a waiver and release of any claims he may have against Home Savings in exchange for Home Savings paying Mr. Bevacks premium payment for COBRA continuation coverage for medical, dental and/or vision benefits for a period of twelve months.
In addition, UCFC and Home Savings have entered into a Consulting Agreement with Mr. Bevack, dated as of March 17, 2014 (the Consulting Agreement). The Consulting Agreement is for a period of two years from the first business day following Mr. Bevacks retirement. Under the Consulting Agreement, UCFC, Home Savings and the President and Chief Executive Officer of UCFC and Home Savings may, from time to time, request consulting advice and services. In exchange for his services, Mr. Bevack will receive a monthly consulting fee of $32,187.50. This summary of the material terms of the Consulting Agreement is qualified by reference to the text of the agreement, which is filed herewith as Exhibit 10.1 and incorporated herein by reference.
(d) and (e) Hiring and Election of Mr. Small
On March 17, 2014, the Boards of Directors of UCFC and Home Savings approved the appointment of Gary M. Small as the President and Chief Executive Officer of UCFC and Home Savings, to be effective April 1, 2014. Mr. Small, 53, has served since January 2013 as Senior Executive Vice President Chief Banking Officer for S&T Bank, located in Indiana, Pennsylvania, with responsibility for wealth management, retail banking, and insurance business groups. Prior to joining S&T, Mr. Small worked from January 2009 until December 2012 for Jackson Hewitt Tax Services, initially serving as Chief Operating Officer for its nationwide, 1,000 store, company-owned business unit from January 2009 until May 2011. Mr. Small served as Senior Vice President Customer Operations from May 2011 until December 2012 where his responsibilities were expanded to include oversight of a significant portion of Jackson Hewitts franchise network, pricing strategies, financial products and support units.
In connection with Mr. Smalls appointment, UCFC and Home Savings entered into an employment agreement (the Employment Agreement) with Mr. Small that becomes effective on April 1, 2014. The Employment Agreement provides for a two-year term that is renewed automatically for an additional period of 12 months, so long as none of UCFC, Home Savings or Mr. Small provides written notice that the term will not be extended.
The Employment Agreement provides for a base salary of $350,000, which may be increased after each year in the sole discretion of UCFCs Compensation Committee or the UCFC Board. Mr. Small is entitled to participate in UCFCs Executive Incentive Plan, the Long-Term Incentive Plan and in any other executive incentive plan adopted from time to time. The Board approved an award to Mr. Small of 125,000 restricted shares of UCFC stock in accordance with an award agreement, the form of which is attached as Exhibit A to the Employment Agreement (the Award Agreement), which award will be made upon the effective date of the Employment Agreement, or April 1, 2014. The restricted shares will vest equally over three years beginning on the first anniversary of the effective date of the Employment Agreement. In addition, during the term, Mr. Small will be provided with all health and life insurance coverages, retirement plans and other fringe benefits offered by UCFC and Home Savings.
In the event of Mr. Smalls death or termination of employment due to Permanent Disability or for Cause, as each are defined in the Employment Agreement, UCFC and Home Savings shall pay any accrued but unpaid base salary and any unreimbursed business expenses and any rights and benefits provided under plans and programs of UCFC and Home Savings (Accrued Obligations). If UCFC and Home Savings terminate Mr. Smalls employment without cause, or if Mr. Small resigns and terminates his employment with UCFC and Home Savings for Good Reason, as defined in the Employment Agreement, Mr. Small is entitled to the payment of the Accrued Obligations, base salary for a period of time that is the greater of the remainder of the term of the Employment Agreement or 12 months, any accrued but unpaid bonus and any COBRA premium payments. If Mr. Smalls employment is terminated without Cause by UCFC, Home Savings or any successor or for Good Reason by Mr. Small within six months before or 12 months after a Change in Control, as defined in the Employment Agreement, then Mr. Small is entitled to the following payments: (i) Accrued Obligations, (ii) a lump sum payment equal to two times the greater of (a) Mr. Smalls total annual base salary for the most recently completed fiscal year, or (b) Mr. Smalls base salary immediately in effect before the Change in Control, (iii) a lump sum payment equal to two times the sum of Mr. Smalls target short-term and long-term bonuses in effect at the time of such termination, (iv) any accrued but unpaid annual bonus, and (v) any COBRA premium payments.
As previously reported on a Form 8-K filed March 13, 2014, Richard J. Buoncore will be resigning from the UCFC and Home Savings Boards of Directors effective March 25, 2014. On March 17, 2014, the UCFC and Home Savings Boards elected Mr. Small to fill the vacancy created as a result of Mr. Buoncores resignation on both the UCFC and Home Savings Boards. The Board believes that the attributes, skills and qualifications that Mr. Small has developed through more than 28 years of service in the banking industry allow him to provide technical knowledge in all operational areas of banking (including administration, operations, audit, accounting and finance, marketing, retail banking and lending) and invaluable business, strategic planning, financial, mergers and acquisitions and leadership insight to the Board. There are no arrangements or understandings between Mr. Small and any other persons pursuant to which he was selected as a director. Mr. Small has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
The above summary of the material terms of the Employment Agreement and the Award Agreement are qualified by reference to the text of those agreements, which are filed herewith as Exhibit 10.2 and incorporated herein by reference.
Section 9 Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number |
Description |
|
10.1 | Consulting Agreement with Patrick W. Bevack | |
10.2 | Employment Agreement with Gary M. Small | |
99 | Press release dated March 18, 2014 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
UNITED COMMUNITY FINANCIAL CORP. | ||
By: |
/s/ Jude J. Nohra |
|
Jude J. Nohra, General Counsel & Secretary |
Date: March 21, 2014
Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (hereinafter the Agreement) is made and entered into as of this 17th day of March, 2014, by and among UNITED COMMUNITY FINANCIAL CORP., an Ohio corporation and a unitary thrift holding company (UCFC), THE HOME SAVINGS AND LOAN COMPANY OF YOUNGSTOWN, OHIO, an Ohio chartered stock savings bank and a wholly-owned subsidiary of UCFC (Home Savings and together with UCFC, the Company), with the principal place of business of the Company located at 275 West Federal Street, Youngstown, Ohio 44503, and PATRICK W. BEVACK, an individual (Bevack) through PWB CONSULTING, LLC, an Ohio limited liability company, with its principal place of business located at 11701 Jamie Drive, Concord, Ohio 44077 (the LLC and together with Bevack, the Consultant).
WITNESSETH
WHEREAS , Bevack has served as the President and Chief Executive Officer of the Company until his retirement on March __, 2014, most recently, pursuant to the terms of an employment agreement, dated April 30, 2010, by and between the Company and Bevack (the Employment Agreement), and the Company recognizes the significant efforts that Bevack provided to the Company during the past five years as President and CEO of Home Savings (and prior to such time as President and CEO of Home Savings, as an executive officer of Home Savings serving in various capacities) and the past three years as President and CEO of UCFC;
WHEREAS , Bevack has more than 38 years of service in the financial services industry, and he has (i) extensive knowledge and experience in all operational areas of banking, (ii) access to and significant relationships with current and potential customers of Home Savings and other executive officers within the banking industry and (iii) significant regulatory experience with UCFCs and Home Savings regulators, and the Company desires to maintain, on a formal basis, access to the knowledge, information, contacts and expertise of Bevack; and
WHEREAS , the Company desires to retain Consultant, and Consultant desires to provide certain consulting services to the Company, on the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the respective covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which has been acknowledged by the parties, the Company and Consultant, intending to be legally bound, hereby agree as follows:
1. | Description of Engagement |
Under the terms of this Agreement, Consultant will assist the Company by providing specific consulting advice and services (the Services) to the Company as requested by UCFCs or Home Savings Board of Directors (collectively, the Board) and President and Chief Executive Officer of UCFC and Home Savings (the CEO), all as more specifically described below under Section 3, Scope of Engagement.
2. | Term of Engagement |
The term of this Agreement shall begin on the first business day following Bevacks retirement from the Company as President and CEO and shall continue for a period of two (2) years from the date thereof (the Term).
3. | Scope of Engagement |
During the Term, Consultant shall provide certain Services to the Company, including, but not limited to:
(a) Advising the Board, the CEO and other executive and senior officers of the Company regarding the Companys growth strategies, business planning, Board succession, any further executive or management succession planning and promoting the Companys business and interest in the Companys market area and at industry conferences and association meetings; and
(b) Advising the Board, the CEO and other executive and senior officers of the Company regarding the Companys regulatory requirements and relationships, including reviewing and evaluating the Companys plans and initiatives to address any regulatory actions or recommendations made by any Federal or state regulator with jurisdiction over the Company, and further the Companys interests as appropriate and in accordance with applicable laws, rules and regulations in Bevacks position as a member of the Ohio Division of Financial Institutions Savings and Loan Association and Savings Bank Board.
Consultant shall deliver the Services orally or, upon request, in writing to the Board and CEO. Any written recommendations shall be directed to the Board of Directors of the Company, c/o the President and CEO.
4. | Professional Standards |
Consultant will adhere to commercially reasonable standards of professional conduct and performance in carrying out his responsibilities under the terms of this Agreement and providing the Services.
5. | Confidentiality and Access to Information |
Consultant acknowledges and agrees that he has entered into a Confidentiality Agreement of even date herewith (the Confidentiality Agreement) that governs the disclosure and use of Home Savings and/or UCFCs confidential and proprietary information in connection with the Services provided under this Agreement. Consultant further acknowledges and agrees that he will provide unrestricted access to work papers prepared in connection with the Services upon request of the Company and any regulatory authorities. All work papers prepared in connection with the Services shall remain subject to the terms of this Section 5 and shall be the property of the Company. Consultant shall have access to such information, reports, executive and senior officers, plans and documents as is reasonably necessary to provide the Services, which may include, but shall not be limited to, the Companys financial statements, asset quality reports, strategic and capital plans and loan review reports (whether prepared internally or by a third party engaged by the Company).
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6. | Timing and Fees |
For Services provided pursuant to this Agreement, Consultant will be paid a fee of Thirty-Two Thousand One Hundred Eighty-Seven and 50/100 Dollars ($32,187.50) per month during the Term. The fee shall be payable as follows: (a) beginning on the first business day of the seventh (7 th ) month following the first day of the Term, Consultant shall receive a payment equal to the first seven (7) monthly payments hereunder; and (b) on or about the first business day of each month thereafter, Consultant shall receive each of the remaining seventeen (17) monthly payments hereunder. It is the intention of the parties that, for purposes of providing the Services, Consultant shall be considered an independent contractor and not an employee of the Company. Therefore, the fees paid hereunder will be reported for federal income tax purposes on Internal Revenue Service Form 1099 or any successor to such form.
In the event that Consultant should die prior to the end of the Term, any remaining unpaid monthly payments of Consultants fee for the remainder of the Term shall be paid in a single lump sum payment to the beneficiary or beneficiaries designated by Consultant to receive such payment. Such payment shall be made within thirty (30) days following Consultants death. In the event that Consultant should fail to designate a beneficiary, in writing, to the Company, or, in the event that Consultants designated beneficiary should predecease him, the payment described in this paragraph shall be paid to Consultants estate, within thirty (30) days following his death.
In addition, Consultant will be reimbursed, in accordance with Home Savings expense reimbursement policies, for all reasonable out-of-pocket costs actually incurred, to include but not to be limited to travel, meals and entertainment, mailing, reproduction and similar expenses, which expenses shall not exceed fifteen percent (15%) of the aggregate consulting fee set forth above.
7. | Indemnification |
Subject to applicable Federal or state law or regulation, the Company agrees to indemnify and hold harmless Consultant from and against any and all losses, costs, damages, expenses, obligations, claims or liabilities, including reasonable attorneys fees and expenses, incurred by Consultant arising out of or related to the provision of the Services, unless the same is caused by the unlawful conduct, willful misconduct, breach of duty or gross negligence of Consultant as determined by a court of appropriate jurisdiction. Consultant agrees to indemnify, defend and hold harmless the Company, its affiliates, officers, directors, employees, agents and representatives from and against any and all losses, costs, damages, expenses, obligations, suits, administrative procedures, claims or liabilities, including reasonable attorneys fees and expenses, incurred by the Company arising out of or related to any claim of any third party that the Services or written products provided to the Company under this Agreement violates any intellectual property right or constitutes any patent or copyright infringement or that Consultant mislead, deceived or fraudulently induced any third party into investing in the Company. The indemnification provided hereunder shall survive the termination of this Agreement.
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Notwithstanding anything to the contrary contained herein, neither party shall, under any circumstances, be liable to the other party for consequential, incidental, indirect or special damages including, without limitation, damages arising out of or in connection with any loss of profit, interruption of service or loss of business or anticipatory profit even if a party or a partys authorized representative has been apprised of the likelihood of such damages occurring.
8. | Termination; Notice of Termination |
(a) If either party is in material breach of this Agreement, the Company or Consultant, as the case may be, shall provide written notice of such breach, and the breaching party shall within thirty (30) days of written notice thereof, cure the breach. In the event such breach has not been cured within such thirty (30) day period, the non-breaching party may terminate this Agreement immediately by providing written notice to the breaching party.
(b) Notwithstanding the foregoing, the Company shall be entitled to terminate this Agreement for Cause (as defined below) by providing written notice thereof to Consultant. For purposes of this Agreement, Cause means (A) the Consultants continued intentional failure or refusal to perform substantially the Services (other than as a result of total or partial incapacity due to physical or mental illness) for a period of ten (10) days following written notice by the Company to the Consultant of such failure; (B) the Consultants conviction of, or plea of guilty or nolo contendere to a felony or a crime other than a felony, which felony or crime involves moral turpitude or a breach of trust or fiduciary duty owed to the Company or any of its affiliates; (C) a violation of the provisions set forth in Section 10 of this Agreement (D) the Consultants disclosure of trade secrets or material, non-public confidential information of the Company or any of its affiliates in violation any agreement with the Company or any of its affiliates in respect of confidentiality, nondisclosure or otherwise.
(c) At the time of termination of this Agreement under this Section 8, Consultant will submit to the Company a final invoice for fees and expenses incurred through the termination date; provided, however, in the event the termination by the Company results from a failure of Consultant to perform the Services, the Company and Consultant will negotiate in good faith the fair value of any services provided under this Agreement.
9. | WAIVER OF JURY TRIAL |
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS IN THIS SECTION 9.
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10. | Noncompetition; Non-Solicitation Covenant |
(a) During the Term, Bevack agrees to be bound by the terms and provisions of Section 9(a) of the Employment Agreement.
(b) During the Term and for a period of two (2) years following its expiration or termination, Bevack agrees to be bound by the terms and provisions of Sections 9(b) and 9(c) of the Employment Agreement.
(c) The provisions of this Section 10 constitute an essential element of this Agreement, without which the Company would not have entered into this Agreement. Notwithstanding any other remedy available to the Company at law or at equity, the parties hereto agree that the Company or any successor thereto, will have the right, at any and all times, to seek injunctive relief in order to enforce the terms and conditions of this Section 10.
11. | Miscellaneous Provisions |
(a) Time is of the essence in this Agreement.
(b) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. This Agreement shall be binding upon both of the parties hereto and their respective successors in interest and assigns.
(c) This Agreement, the Employment Agreement and the confidential separation and general release agreement, dated March 17, 2014, by and between the Company and Bevack constitute the entire agreement of the parties regarding the provision of the Services provided hereunder, and no statement or representation shall be considered a part of this Agreement or binding upon the parties unless the same is contained herein.
(d) This Agreement may not be amended or modified in any way without the prior written consent of all parties to this Agreement.
(e) This Agreement may be executed in counterparts, each of which shall be deemed to be duplicate original, but all of which taken together shall be one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF , the parties or authorized representatives of the parties have executed this Agreement as of the date first written above.
PATRICK W. BEVACK |
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By: |
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PWB CONSULTING, LLC |
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By: |
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Name: Patrick W. Bevack |
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Title: President |
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UNITED COMMUNITY FINANCIAL CORP. |
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By: |
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Name: Jude J. Nohra |
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Title: General Counsel & Secretary |
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THE HOME SAVINGS AND LOAN COMPANY OF YOUNGSTOWN, OHIO | ||
By: |
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Name: Jude J. Nohra |
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Title: Executive Vice President, Corporate Governance, & Secretary |
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Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this Agreement), is entered into this day of March, 2014 by and among, United Community Financial Corp., an Ohio corporation (UCFC), The Home Savings and Loan Company of Youngstown, Ohio, a state chartered savings bank incorporated under Ohio law (the Bank and collectively with UCFC, the Company) and Gary M. Small, an individual (hereinafter referred to as the Executive).
WITNESSETH:
WHEREAS, the Boards of Directors of the Company (the Board) desire to retain the services of the Executive as President and Chief Executive Officer of the Bank and as Chief Executive Officer of UCFC, and the Executive desires to so serve; and
WHEREAS, the Executive and the Company desire to enter into this Agreement to set forth the terms and conditions of the employment relationship between the Company and the Executive.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the Company and the Executive, each party intending to be legally bound, hereby agree as follows:
1. Employment and Term .
(a) Term. Upon the terms and subject to the conditions of this Agreement, the Company hereby employs the Executive for a term beginning on , 2014 (the Effective Date) and continuing for a period of 24 months (together with any renewal period described in Section 1(b), the Term).
(b) Renewal . The Term of this Agreement shall be extended automatically for an additional period of 12 months, unless either the Company or the Executive provides the other party with written notice that the Term shall not be so extended within at least 90 days prior to the second anniversary of the Effective Date. The Term shall be subject to further extension in the manner set forth in this Section 1(b) for additional 12-month periods on each anniversary of the effective date of the immediately preceding extension.
2. Duties of the Executive .
(a) General Duties and Responsibilities . The Executive shall serve as the President and Chief Executive Officer of the Bank and as the Chief Executive Officer of UCFC. In such capacity(ies), the Executive shall have the authority commensurate with such position and such duties as shall be determined from time to time by the Board and as further described in the Executives most recent job description on file with the Company. The Executive shall report directly to the Board. The Executive will further perform such other duties and hold such other positions related to the business of the Company and its Affiliates as may from time to time be reasonably requested of the Executive by the Board. For purposes of this Agreement, an Affiliate shall mean any corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, trust, association or organization which, directly or indirectly, controls, is controlled by, or is under common control with, the Company.
(b) Devotion of Entire Time to the Business of the Company . The Executive shall devote the Executives entire productive time, ability and attention during normal business hours throughout the Term to the faithful performance of the Executives duties under this Agreement. The Executive shall not directly or indirectly render any services of a business, commercial or professional nature to any person or organization other than the Company or its Affiliates without the prior written consent of the Board; provided, however, that the Executive shall not be precluded from taking such vacation or sick leave as is applicable to the Executive, pursuing personal investments that do not interfere or conflict with the performance of the Executives duties to the Company, reasonable participation in community, civic, charitable or similar organizations, or in industry-related activities, including, but not limited to, attending state and national trade association meetings and serving as an officer, director, trustee or committee member of a state or national trade association or Federal Home Loan Bank, or such other regulatory governing body.
(c) Establishment of Permanent Residency . Within twelve (12) months of the Effective Date, the Executive shall establish permanent residency in the general Youngstown metropolitan area, which shall include its surrounding suburbs; provided, however, that nothing herein shall prohibit the Executive from maintaining a secondary residence in any other location.
(d) Standards . During the Term, the Executive shall perform the Executives duties in accordance with such reasonable standards expected of executives with comparable positions in comparable organizations and as may be established from time to time by the Board.
3. Compensation and Review .
(a) Base Salary . During the Term, the Executive will receive an annual base salary of $350,000. In the event that the Company increases the Executives annual base salary, the amount of the initial annual base salary, together with any increase(s) will be the Executives base salary (the Base Salary). The Base Salary will be payable in accordance with the Companys regular payroll payment practices, but not less frequently than monthly.
(b) Annual Review . On or about December 31 of each year, the compensation of the Executive shall be reviewed in accordance with the Companys charter documents and applicable laws, rules or regulations, including those of any listing agency applicable to the Company, by either the Board or the Compensation Committee of the Board (the Committee) and, based upon the Executives individual performance and such other factors as the Board or the Committee (as applicable) may deem appropriate, the Board or the Committee may, in its sole discretion, increase the Executives Base Salary.
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(c) Incentive Compensation . The Executive shall be eligible to participate during the Term in the Executive Incentive Plan, the Long-Term Incentive Plan and in any other executive incentive bonus plan that the Company may adopt and implement from time to time. Nothing contained in this Section shall obligate the Company to institute, maintain or refrain from changing, amending or discontinuing any incentive bonus plan, so long as such changes are similarly applicable to other executive employees under such plan.
(d) Initial Equity Grant . At its meeting immediately following the Effective Date, the Compensation Committee of UCFC and the UCFC Board will make an award to the Executive of 125,000 restricted shares of UCFC which shall vest equally over 3 years beginning on the first anniversary of the Effective Date. This award will constitute an award of unregistered restricted shares outside the terms of UCFCs 2007 Amended and Restated Long-Term Incentive Plan and will be made pursuant to the applicable award agreement to be entered into between UCFC and the Executive, which shall be in the form substantially similar to Exhibit A attached hereto and made a part hereof.
(e) Fringe Benefits . During the Term, the Company will provide the Executive with all health and life insurance coverages, disability programs, tax-qualified retirement plans, equity compensation programs, and similar fringe benefit plans, paid holidays, paid vacation, perquisites, and such other fringe benefits of employment as the Company may provide from time to time to actively employed similarly situated employees of the Company. Notwithstanding any provision contained in this Agreement, the Company may discontinue or terminate at any time any employee benefit plan, policy or program described in this Section 3(e), now existing or hereafter adopted, to the extent permitted by the terms of such plan, policy or program and will not be required to compensate the Executive for such discontinuance or termination.
(f) Expenses . The Company shall reimburse the Executive for reasonable travel, industry, entertainment and miscellaneous expenses incurred in connection with the performance of the Executives duties under this Agreement, including participation in industry-related activities, in accordance with the existing policies and procedures of the Company pertaining to reimbursement of such expenses to executives.
4. Termination of Employment . For purposes of this Agreement, any reference to the Executives termination of employment (or any form thereof) shall mean the Executives separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and Treasury Regulation §1.409A-1(h).
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(a) Death of Executive . The Term and the Executives employment will terminate upon the Executives death and the Executives beneficiary (as designated by the Executive in writing with the Company prior to the Executives death) will be entitled to the following payments and benefits:
(i) | any Base Salary that is accrued but unpaid and any business expenses that are unreimbursed all, as of the date of termination of employment; and |
(ii) | any rights and benefits (if any) provided under plans and programs of the Company, determined in accordance with the applicable terms and provisions of such plans and programs (the payments described in Sections 4(a)(i) and (ii) are hereinafter collectively referred to as the Accrued Obligations). |
In the absence of a beneficiary designation by the Executive, or, if the Executives designated beneficiary does not survive the Executive, payments and benefits described in this Section 4(a) will be paid to the Executives estate. Any payments due under Section 4(a)(i) shall be made within 30 days after the date of the Executives death.
(b) Disability . The Term and the Executives employment may be terminated by the Company upon written notice from the Company following the determination, as set forth immediately below, that the Executive suffers from a Permanent Disability. For purposes of this Agreement, Permanent Disability means a physical or mental impairment that renders the Executive incapable of performing the essential functions of the Executives job, on a full-time basis, even taking into account reasonable accommodation required by law, as determined by a physician who is selected by the agreement of the Executive and the Company, for a period of greater than 150 days. During any period that the Executive fails to perform the Executives duties hereunder as a result of a Permanent Disability (Disability Period), the Executive will continue to receive the Executives Base Salary at the rate then in effect for such period until the Executives employment is terminated pursuant to this Section 4(b); provided, however, that payments of Base Salary so made to the Executive will be reduced by the sum of the amounts, if any, that were payable to the Executive at or before the time of any such salary payment under any disability benefit plan or plans of the Company and that were not previously applied to reduce any payment of Base Salary. In the event that the Company elects to terminate the Executives employment due to Disability, the Executive will be entitled to payment of the Accrued Obligations in accordance with Section 4(a). In addition to the foregoing, provided that the Executive elects COBRA coverage, the Company shall pay the Executives COBRA premium payments consistent with the group health, dental and vision coverage in existence on the date of termination beginning on the date of termination and continuing until the earlier of: (A) the 12th consecutive month following the Executives termination or (B) the Executive becoming eligible as a full-time employee to participate in the group health plan of any other employer.
(c) For Cause Termination . The Company may terminate the Term and the Executives employment upon notice at any time for Cause.
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(i) | For purposes of this Agreement, Cause means (A) the Executives continued intentional failure or refusal to materially abide by the terms and conditions of this Agreement or perform substantially the Executives assigned duties (other than as a result of total or partial incapacity due to physical or mental illness) for a period of ten days following written notice by the Company to the Executive of such failure; (B) the Executives engagement in willful misconduct, including without limitation, fraud, embezzlement, theft or dishonesty in the course of the Executives employment with the Company; (C) the Executives conviction of, or plea of guilty or nolo contendere to a felony or a crime other than a felony, which felony or crime involves moral turpitude or a breach of trust or fiduciary duty owed to the Company or any of its Affiliates; or (D) the Executives disclosure of trade secrets or material, non-public confidential information of the Company or any of its Affiliates in violation of the Companys or its Affiliates policies that applies to the Executive or any agreement with the Company or any of its Affiliates in respect of confidentiality, nondisclosure, non-competition or otherwise. |
(ii) | In the event that the Company terminates the Executives employment for Cause, the Executive will only be entitled to payment of the Accrued Obligations in accordance with Section 4(a). |
(d) Termination Without Cause . The Company may terminate the Term and the Executives employment for any reason at any time. If the Executives employment is terminated by the Company for any reason other than the reasons set forth in subsections (a), (b), (c), (e) or (f) of this Section 4, the Executive will be entitled to the following payments and benefits:
(i) | Payment of the Accrued Obligations in accordance with Section 4(a); |
(ii) | Continuation of the Executives Base Salary in effect on the date of the Executives termination of employment for a period of time equal to the greater of (A) the remainder of the Term; and (B) 12 months following the date of the Executives termination. Except as otherwise prohibited by applicable Federal or state law or regulation, the payments due under this Section 4(d)(ii) shall begin immediately following the date of termination and be made in accordance with the Companys normal payroll practices over such period; |
(iii) | Payment of any accrued but unpaid bonus, which shall be paid pursuant to the terms of the applicable bonus plan; and |
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(iv) | Provided that the Executive elects COBRA coverage and provided that such COBRA coverage remains in effect under applicable law, the Company shall pay the Executives COBRA premium payments consistent with the group health, dental and vision coverage in existence on the date of termination beginning on the date of termination and continuing until the 12th consecutive month following the Executives termination. |
(e) Good Reason Termination . The Executive may resign and terminate the Term and the Executives employment with the Company for Good Reason upon not less than 30 days prior written notice to the Company if the Company fails to fully cure the effect of such condition within 30 days following receipt of Executives written notice.
(i) | For purposes of this Agreement, the Executive will have Good Reason to terminate the Executives employment with the Company if any of the following events occur without the Executives consent: |
(A) | A material diminution in the Executives Base Salary; |
(B) | A material diminution in the Executives authority, duties or responsibilities as set forth in Section 2; |
(C) | To the extent applicable, a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the Board of Directors of the Company or its Affiliates or any of their successors, survivors or assigns; |
(D) | A material diminution in title; |
(E) | A material change in the geographic location in which the Executive must perform services under this Agreement; or |
(F) | Any other action or inaction that constitutes a material breach of this Agreement. |
Notwithstanding the foregoing, Good Reason shall cease to exist for an event on the 90th day following the later of its occurrence or the Executives knowledge thereof, unless the Executive has given the Company written notice of Executives intent to terminate prior to such date.
The mere occurrence of a Change in Control shall not constitute Good Reason for the Executive to voluntarily terminate the Term and the Executives employment.
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(ii) | In the event that the Executive terminates the Term and the Executives employment with the Company for Good Reason pursuant to this Section 4(e), the Executive will be entitled to: |
(A) | Payment of the Accrued Obligations in accordance with Section 4(a); |
(B) | Continuation of the Executives Base Salary in effect on the date of the Executives termination of employment or, if greater, the Executives Base Salary in effect immediately prior to any event described in Section 4(e)(i)(A) for a period of time equal to the greater of (I) the remainder of the Term; and (II) 12 months following the date of the Executives termination, which payments shall begin immediately following the date of termination (subject to applicable Federal and state law and regulation) and be payable in accordance with the Companys normal payroll practices, over such period; |
(C) | Any accrued but unpaid annual bonus, which shall be paid pursuant to the terms of the applicable bonus plan; and |
(D) | Provided that the Executive elects COBRA coverage and provided that such COBRA coverage remains in effect under applicable law, the Company shall pay the Executives COBRA premium payments consistent with the group health, dental and vision coverage in existence on the date of termination beginning on the date of termination and continuing until the 12th consecutive month following the Executives termination. |
(f) Termination in Connection with Change In Control . In the event that during the Term, a Change in Control of the Company occurs and, within 6 months prior or 12 months following such Change in Control, this Agreement and the Executives employment is terminated by the Company or its successor without Cause as described in Section 4(d) or is terminated for Good Reason by the Executive as described in Section 4(e), then in lieu of any payment that might be provided under any other subsection of this Section 4 of this Agreement, the Executive will be entitled to the following payments and benefits from the Company or its successor:
(i) | Payment of the Accrued Obligations in accordance with Section 4(a); |
(ii) | A single lump sum payment equal to two (2) times the greater of: (A) the total annual Base Salary paid or payable to the Executive with respect to the most recently completed fiscal year of the Company or (B) the Base Salary in effect immediately prior to the Change in Control or immediately prior to any event described in Section 4(e)(i)(A), which such payment shall be made within 60 days after the date of the Executives termination or the occurrence of the Change in Control, as applicable; |
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(iii) | A single lump sum payment equal to two (2) times the sum of the Executives target short-term and long-term bonuses in effect at the time of the Executives termination of employment under the applicable Company incentive bonus plans, which such payment shall be made within 60 days after the date of the Executives termination or the occurrence of the Change in Control, as applicable; |
(iv) | Any accrued but unpaid annual bonus, which shall be paid pursuant to the terms of the applicable bonus plan; and |
(v) | Provided that the Executive elects COBRA coverage and provided that such COBRA coverage remains in effect under applicable law, the Company shall pay the Executives COBRA premium payments consistent with the group health, dental and vision coverage in existence on the date of termination beginning on the date of termination and continuing until the 18th consecutive month following the Executives termination; or, if the Executives termination occurred prior to the Change in Control, a single lump sum payment equal to the value of the benefits described in this Section 4(f)(v), payable within 60 days following the Change in Control. |
(g) Definition of Change in Control . For purposes of this Agreement, a Change in Control shall mean the occurrence of any of the following events:
(i) | The date any one person, or more than one person acting as a group acquires ownership of shares of the Bank or UCFC possessing 25% or more of the total voting power of the shares of the Company or UCFC; |
(ii) | The date that any one person, or more than one person acting as a group, acquires the ability to control the election of a majority of the directors of the Company or UCFC; |
(iii) | The date a majority of the members of the board of directors of the Company or the Bank is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of such board of directors before the date of the appointment or election; or |
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(iv) | The acquisition by any person, or more than one person acting as a group, of control of the Company within the meaning of 12 C.F.R. Section 303.81(c). |
For purposes of this subsection (g), the term person refers to an individual or corporation, partnership, trust, association, limited liability company or other organization, but does not include the Executive and any person or persons with whom the Executive is acting in concert within the meaning of 12 C.F.R. Section 303.81 (b).
(h) Treatment of Taxes . If payments provided under this Agreement, when combined with payments and benefits under all other plans and programs maintained by the Company, constitute parachute payments within the meaning of Section 280G of the Code, the Company or its successor will reduce the Executives payments and benefits under this Agreement and/or the other plans and programs maintained by the Company so that the Executives total payments and benefits under this Agreement and all other plans and programs will be $1.00 less than the amount that would be considered a parachute payment. Any reduction pursuant to this Section 4(h) shall be applied consistent with the requirements of Section 409A of the Code. In addition, in the event of any subsequent inquiries regarding the treatment of tax payments under this Section 4(i), the parties will agree to the procedures to be followed in order to deal with such inquiries.
(i) Expiration of Term of Agreement . If the Term expires and it is not extended by the parties, the Executives employment will terminate at the end of such Term and the Executive will be entitled to Payment of the Accrued Obligations in accordance with Section 4(a).
(j) Release . As a condition to receiving any payments, other than payment of the Accrued Obligations and accrued but unpaid bonus (if any), pursuant to this Agreement, the Executive agrees to release the Company and all of its Affiliates, employees and directors from any and all claims that the Executive may have against the Company and all of its Affiliates, employees and directors up to and including the date the Executive signs a Waiver and Release of Claims (Release) in the form provided by the Company, which form shall provide for such waivers and/or revocation periods as are required by, or advisable under, applicable Federal law and/or regulation. Notwithstanding anything to the contrary in this Agreement, (i) the Executive acknowledges that the Executive is not entitled to receive, and will not receive, any payments pursuant to this Agreement unless and until the Executive provides the Company with said Release prior to the first date that payment is to be made or is to commence; and (ii) to the extent that any payments hereunder are subject to the provisions of Section 409A of the Code and the time period between the Executives termination of employment and the date on which the Release will become effective begins in one calendar year and ends in a second calendar year, no such payments under this Agreement shall be made, or begin to be made until the second calendar year.
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(k) Coordination of Benefits . If the Executives employment is terminated for any reason described in Sections 4(d) or (e) and, after such termination, the Executive becomes entitled to payments under Section 4(f), the Executive shall receive the payments described in Section 4(f), at the time and in the form described in Section 4(f), less the amount of any payments previously paid that are described in Sections 4(d) or (e).
5. Withholding. All payments required to be made by the Company hereunder to the Executive shall be subject to the withholding of such amounts, if any, relating to Federal, State and local tax and other payroll deductions as the Company may reasonably determine should be withheld pursuant to any applicable law or regulation.
6. Indemnification; Insurance .
(a) Indemnification. The Company agrees to indemnify the Executive and his heirs, executors, and administrators to the fullest extent permitted under applicable law and regulations, including, without limitation 12 U.S.C. Section 1828(k), against any and all expenses and liabilities reasonably incurred by the Executive in connection with or arising out of any action, suit or proceeding in which the Executive may be involved by reason of having been a director or officer of the Company, or any Affiliate, whether or not the Executive is a director or officer at the time of incurring any such expenses or liabilities. Such expenses and liabilities shall include, but shall not be limited to, judgments, court costs and attorneys fees and the cost of reasonable settlements. The Executive shall be entitled to indemnification in respect of a settlement only if the Board of Directors of the Company has approved such settlement. Notwithstanding anything herein to the contrary, (i) indemnification for expenses shall not extend to matters for which the Executive has been terminated, and (ii) the obligations of this Section shall survive the termination of this Agreement. Nothing contained herein shall be deemed to provide indemnification prohibited by applicable law or regulation.
(b) Insurance. During the Term of the Agreement, the Company shall provide the Executive (and his heirs, executors, and administrators) with coverage under a directors and officers liability policy at the Companys expense, at least equivalent to such coverage otherwise provided to the other directors and senior executives of the Company.
7. Special Regulatory Events . Notwithstanding the provisions of Section 4 of this Agreement, the obligations of the Company to the Executive shall be as follows in the event of the following circumstances:
(a) If the Executive is suspended and/or temporarily prohibited from participating in the conduct of the Companys affairs by a notice served under section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act (hereinafter referred to as the FDIA), the Companys obligations under this Agreement shall be suspended as of the date of service of such notice, unless stayed by appropriate proceedings. If the charges in the notice are dismissed, the Company shall pay the Executive all of the compensation withheld while the obligations in this Agreement were suspended and reinstate any of the obligations that were suspended.
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(b) If the Executive is removed and/or permanently prohibited from participating in the conduct of the Companys affairs by an order issued under Section 8(e)(4) or 8(g)(1) of the FDIA, all obligations of the Company under this Agreement shall terminate as of the effective date of such order; provided, however, that vested rights of the Executive shall not be affected by such termination.
(c) If the Company 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; provided, however, that vested rights of the Executive shall not be affected.
(d) In the event and to the extent the terms and conditions of this Agreement are subject to regulatory approval and/or may be nullified or rendered inoperative or inapplicable by operation of applicable law, the Agreement shall be effective only to the extent permissible under such regulatory and/or other legal requirements, but to the fullest extent as may be permissible thereunder.
8. Consolidation, Merger or Sale of Assets . Nothing in this Agreement shall preclude the Company from consolidating with, merging into, or transferring all, or substantially all, of their assets to another corporation that assumes all their obligations and undertakings hereunder. Upon such a consolidation, merger or transfer of assets, the term Company as used herein, shall mean such other corporation or entity, and this Agreement shall continue in full force and effect.
9. Noncompetition Covenant . The Executive agrees that, during the Term, including any extension thereof, and for a period of one year following the Executives termination of his employment for any reason other than Good Reason, the Executive shall not, without the express written consent of the Company:
(a) Be engaged, directly or indirectly, in any county where the Company has an office at the time of Executives termination, as a partner, officer, director, employee, consultant, independent contractor, security holder, or owner of any entity engaged in any business activity competitive with that of the Company or its Affiliates; provided, however, nothing in this Agreement shall prevent the Executive from owning or acquiring an interest in any entity engaged in any competitive business activity if such interest does not constitute control as defined in 12 C.F.R. Section 303.81(c);
(b) Call upon or solicit, either for the Executive or for any other person or firm that engages in competition with any business operation actively conducted by the Company or any Affiliate during the Term, any customer with whom the Company or any Affiliate directly conducts business during the Term; or interfere with any relationship, contractual or otherwise, between the Company or any Affiliate and any customer with whom the Company or any Affiliate directly conducts business during the Term; or
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(c) Induce or solicit any person who is at the date of termination or was during the 12 months preceding termination an employee, officer or agent of the Company or any Affiliate to terminate said relationship.
In the event of a breach by the Executive of any covenant set forth in this Section 9, the term of such covenant will be extended by the period of the duration of such breach and such covenant will survive any termination of this Agreement but only for the limited period of such extension.
The restrictions on competition provided herein shall be in addition to any restrictions on competition contained in any other agreement between the Company and the Executive and may be enforced by the Company and/or any successor thereto, by an action to recover payments made under this Agreement, an action for injunction, and/or an action for damages. The provisions of this Section 9 constitute an essential element of this Agreement, without which the Company would not have entered into this Agreement. Notwithstanding any other remedy available to the Company at law or at equity, the parties hereto agree that the Company or any successor thereto, will have the right, at any and all times, to seek injunctive relief in order to enforce the terms and conditions of this Section 9.
If the scope of any restriction contained in this Section 9 is too broad to permit enforcement of such restriction to its fullest extent, then such restriction will be enforced to the maximum extent permitted by law, and the Executive hereby consents and agrees that such scope may be judicially modified accordingly in any proceeding brought to enforce such restriction.
10. Confidential Information . The Executive will hold in a fiduciary capacity, for the benefit of the Company, all secret or confidential information, knowledge, and data relating to the Company and its Affiliates (Confidential Information), that shall have been obtained by the Executive in connection the Executives employment with the Company and that is not public knowledge (other than by acts by the Executive or the Executives representatives in violation of this Agreement). During the Term and after termination of the Executives employment with the Company, the Executive will not, without the prior written consent of the Company, communicate or divulge any material non-public Confidential Information to anyone other than the Company or those designated by it, unless the communication of such information, knowledge or data is required pursuant to a compulsory proceeding in which the Executives failure to provide such information, knowledge, or data would subject the Executive to criminal or civil sanctions and then only if the Executive provides prior notice to the Company prior to disclosure.
The restrictions imposed on the release of information described in this Section 10 may be enforced by the Company and/or any successor thereto, by an action for injunction or an action for damages. The provisions of this Section 10 constitute an essential element of this Agreement, without which the Company would not have entered into this Agreement. Notwithstanding any other remedy available to the Company at law or at equity, the parties hereto agree that the Company or any successor thereto, will have the right, at any and all times, to seek injunctive relief in order to enforce the terms and conditions of this Section 10.
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If the scope of any restriction contained in this Section 10 is too broad to permit enforcement of such restriction to its fullest extent, then such restriction will be enforced to the maximum extent permitted by law, and the Executive hereby consents and agrees that such scope may be judicially modified accordingly in any proceeding brought to enforce such restriction.
11. Non-Assignability . Neither this Agreement nor any right or interest hereunder shall be assignable by the Executive, his beneficiaries or legal representatives without the Companys prior written consent; provided, however, that nothing in this Section 11 shall preclude the Executive from designating a beneficiary to receive any benefits payable hereunder upon his death or the executors, administrators or legal representatives of the Executive or his estate from assigning any rights hereunder to the person or persons entitled thereto.
12. No Attachment . Except as required by law, no right to receive payment under this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge or hypothecation or to execution, attachment, levy, or similar process of assignment by operation of law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void and of no effect.
13. Binding Agreement . This Agreement shall be binding upon, and inure to the benefit of, the Executive and the Company and its successors and assigns. In the case of a merger, with the Company the surviving entity will assume and perform the obligations of the Company under this Agreement.
14. Amendment of Agreement . This Agreement may not be modified or amended, except by an instrument in writing signed by the parties hereto.
15. Waiver . No term or condition of this Agreement shall be deemed to have been waived, nor shall there be an estoppel against the enforcement of any provision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver, unless specifically stated therein, and each waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than the act specifically waived.
16. Severability. If, for any reason, any provision of this Agreement is held invalid, such invalidity shall not affect the other provisions of this Agreement not held so invalid, and each such other provision shall, to the full extent consistent with applicable law, continue in full force and effect. If this Agreement is held invalid or cannot be enforced, then any prior Agreement between the Company (or any predecessor thereof) and the Executive shall be deemed reinstated to the full extent permitted by law, as this Agreement had not been executed.
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17. Headings . The headings of the paragraphs herein are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement.
18. Governing Law . This Agreement has been executed and delivered in the State of Ohio and its validity, interpretation, performance, and enforcement shall be governed by the laws of the State of Ohio, except to the extent that federal law is governing.
19. Effect of Prior Agreements . This Agreement contains the entire understanding between the parties hereto and supersedes any prior employment agreement between the Company or any predecessor of the Company and the Executive.
20. Arbitration . Any dispute concerning the interpretation or application of this Agreement that cannot be resolved by mutual agreement of the Company and Executive must be submitted for determination by an impartial arbitrator selected in accordance with the American Arbitration Associations Employment Dispute Resolution Rules.
21. Notices . Any notice required or permitted under this Agreement shall be in writing and either delivered personally or sent by nationally recognized overnight courier, express mail, or certified or registered mail, postage prepaid, return receipt requested, at the following respective address unless the party notifies the other party in writing of a change of address:
If to the Company:
Chairman, Board of Directors
The Home Savings and Loan Company of Youngstown, Ohio
275 West Federal Street
Youngstown, Ohio 44503-1203
With a copy to:
General Counsel
The Home Savings and Loan Company of Youngstown, Ohio
275 West Federal Street
Youngstown, Ohio 44503-1203
If to the Executive:
Gary M. Small
At the last address on file with the Company
A notice delivered personally shall be deemed delivered and effective as of the date of delivery. A notice sent by overnight courier or express mail shall be deemed delivered and effective one (1) day after it is deposited with the postal authority or commercial carrier. A notice sent by certified or registered mail shall be deemed delivered and effective two (2) days after it is deposited with the postal authority.
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22. Code Section 409A Requirements.
(a) Treatment of Reimbursements and/or In-Kind Benefits . Notwithstanding anything in this Agreement to the contrary, any reimbursements or in-kind benefits provided under this Agreement that are subject to Section 409A of the Code shall be made or provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirements that: (i) any reimbursement is for expenses incurred during the period of time specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year of the Executive may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year of the Executive, (iii) the reimbursement of an eligible expense will be made no later than the last day of the Executives taxable year following the year in which the expense is incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(b) Six-Month Distribution Delay for Specified Employees . Notwithstanding anything in this Agreement to the contrary, in the event that the Executive is a specified employee (as defined in Section 409A of the Code) of the Company, or its Affiliates, as determined pursuant to the Companys policy for identifying specified employees, on the date of the Executives termination of employment and the Executive is entitled to a payment and/or a benefit under this Agreement that is required to be delayed pursuant to Section 409A(a)(2)(B)(i) of the Code, then such payment or benefit, as applicable, shall not be paid or provided (or begin to be paid or provided) until the first day of the seventh month following the date of the Executives termination of employment (or, if earlier, the date of the Executives death). The first payment that can be made to the Executive following such period shall include the cumulative amount of any payments or benefits that could not be paid or provided during such period due to the application of Section 409A(a)(2)(B)(i) of the Code.
(c) Compliance with Section 409A of the Code . The parties intend that this Agreement comply with, or be exempt from, the requirements of Section 409A of the Code, as applicable, and, to the maximum extent permitted by law, shall administer, operate and construe this Agreement accordingly. For purposes of the limitations on nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under this Agreement shall be treated as a separate payment of compensation for purposes of applying the deferral election rules of Section 409A of the Code and the exclusion from Section 409A of the Code for certain short-term deferrals. Any amounts payable solely on account of an involuntary separation from service within the meaning of Section 409A of the Code shall be excludible from the requirements of Section 409A of the Code, either as separation pay or as a short-term deferral to the maximum possible extent. Nothing herein shall be construed as the guarantee of any particular tax treatment to the Executive, and none of the Company, their Boards of Directors, or any Affiliates shall have any liability with respect to any failure to comply with the requirements of Section 409A of the Code.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Executive has signed this Agreement, each as of the day and year first above written.
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EXHIBIT A
UNITED COMMUNITY FINANCIAL CORP.
RESTRICTED STOCK
AWARD AGREEMENT
THIS AWARD AGREEMENT ( Agreement ) is made to be effective as of the 1st day of April, 2014, by and between United Community Financial Corp. (the Company ) and Gary M. Small (the Grantee ). Capitalized terms used in this Agreement and otherwise not defined herein shall have the meanings given them in the employment agreement, dated March , 2014, by and among the Company, The Home Savings and Loan Company of Youngstown, Ohio (the Bank) and the Grantee (the Employment Agreement).
RECITALS :
WHEREAS, pursuant to the provisions of the Employment Agreement, the Company and the Bank agreed to make an award of restricted shares of the Company to the Grantee;
WHEREAS, the Board has determined that an Award should be made to the Grantee upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above premises and intending to be legally bound by this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to the following:
1. Grant of Award . The Company hereby grants to the Grantee, as of the effective date of this Agreement (the Grant Date), an award (the Award) of 125,000 shares of common stock of the Company (the Shares), subject to the terms and restrictions of this Agreement.
2. Terms and Conditions of the Award .
a. Vesting . The Award shall vest in accordance with the following schedule:
Date |
Number of Shares Covered by
Award Which Become Vested |
Cumulative Percentage
Vested |
||||||
1 st Anniversary of Grant Date |
41,666 | 33 | % | |||||
2 nd Anniversary of Grant Date |
41,667 | 67 | % | |||||
3 rd Anniversary of Grant Date |
41,667 | 100 | % |
b. Accelerated Vesting . Notwithstanding the provisions of Paragraph (a) of this Section 2, the Award shall become fully vested and nonforfeitable upon (i) the death of the Grantee; (ii) the Grantee suffering a Permanent Disability; (iii) termination of the Grantees employment with the Company and the Bank without Cause or for Good Reason; or (iv) a Change in Control.
c. Grantee Rights Prior to Vesting . The Company shall retain the certificates representing the Shares in the Companys possession until such time as the Shares vest pursuant to the provisions of either Paragraph (a) or Paragraph (b) of this Section 2. Notwithstanding the preceding sentence, the Grantee may exercise full voting rights associated with the Shares and will be entitled to receive all dividends and other distributions paid with respect to the Shares; provided, however, that if any dividends or other distributions are paid in common shares of the Company, those common shares will be subject to the same restrictions on transferability and forfeitability as the Shares with respect to which they were issued.
d. Delivery of Shares . If the applicable vesting conditions of this Agreement are satisfied, the Shares will be delivered by the Company to the Grantee as soon as administratively feasible after all applicable vesting restrictions have lapsed.
e. Beneficiary Designation . The Grantee may name a beneficiary or beneficiaries to receive the Shares that are delivered after the Grantees death by completing a Beneficiary Designation Form in a form provided by the Company. The Beneficiary Designation Form does not need to be completed upon execution of this Agreement and is not required to be completed as a condition of receiving the Shares. However, if the Grantee dies without completing a Beneficiary Designation Form or if the Grantee does not complete the form correctly, the Grantees beneficiary under this Agreement will be the Grantees surviving spouse or, if the Grantee does not have a surviving spouse, the Grantees estate.
f. Transferring the Agreement . This Agreement may not be sold, transferred, pledged, assigned or otherwise alienated or hypothecated, except by will or the laws of descent and distribution. However, as described in Section 2(e), the Grantee may designate a beneficiary to receive any Shares in the event of the Grantees death.
3. Satisfaction of Taxes and Tax Withholding . The Company or a subsidiary shall be entitled, if the Board deems it necessary or desirable, to withhold (or secure payment from the Grantee in lieu of withholding) the amount necessary to satisfy any withholding or employment-related tax obligation attributable to the exercise of the Award or otherwise incurred with respect to the Award, and the Company may defer delivery of any Shares pursuant to the exercise of the Award unless indemnified to its satisfaction. The Board may, in its discretion and subject to such rules as the Board may adopt, permit the Grantee to satisfy, in whole or in part, any withholding or employment-related tax obligation that may arise in connection with the grant, exercise or disposition of the Award by electing to have the Company withhold Shares to be issued, or by electing to deliver to the Company common shares already owned by the Grantee having a fair market value equal to the amount of such tax obligation.
4. Governing Law . The rights and obligations of the Grantee and the Company under this Agreement shall be governed by and construed in accordance with the laws of the State of Ohio (without giving effect to the conflict of laws principles thereof). All disputes and matters arising under, in connection with or incident to this Agreement shall be litigated, if at all, in and before any Federal court sitting within the Northern District of Ohio or any State court sitting in Mahoning County, Ohio, to the exclusion of the courts of any other state or county.
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5. WAIVER OF JURY TRIAL . THE PARTIES, EACH AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, OR RELATED TO, THIS AGREEMENT. NO PARTY SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY LITIGATION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
6. Rights and Remedies Cumulative . All rights and remedies of the Company and of the Grantee enumerated in this Agreement shall be cumulative and, except as expressly provided otherwise in this Agreement, none shall exclude any other rights or remedies allowed by law or in equity, and each of said rights or remedies may be exercised and enforced concurrently.
7. Captions . The captions contained in this Agreement are included only for convenience of reference and do not define, limit, explain or modify this Agreement or its interpretation, construction or meaning and are in no way to be construed as a part of this Agreement.
8. Severability . If any provision of this Agreement or the application of any provision hereof to any person or any circumstance shall be determined to be invalid or unenforceable, then such determination shall not affect any other provision of this Agreement or the application of said provision to any other person or circumstance, all of which other provisions shall remain in full force and effect. It is the intention of each party to this Agreement that if any provision of this Agreement is susceptible of two or more constructions, one of which would render the provision enforceable and the other or others of which would render the provision unenforceable, then the provision shall have the meaning that renders it enforceable.
9. Entire Agreement . This Agreement and the applicable provisions of the Employment Agreement constitute the entire agreement between the Company and the Grantee in respect of the subject matter of this Agreement, and this Agreement supersedes all prior and contemporaneous agreements between the parties hereto in connection with the subject matter of this Agreement. All representations of any type relied upon by the Grantee and the Company in making this Agreement are specifically set forth herein, and the Grantee and the Company acknowledge that each of them has relied on no other representation in entering into this Agreement. No change, termination or attempted waiver of any of the provisions of this Agreement shall be binding upon any party hereto unless contained in a writing signed by the party to be charged.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed to be effective as of the date first written above.
UNITED COMMUNITY FINANCIAL CORP. | ||
By: |
|
|
Name: | Jude J. Nohra | |
Title: | General Counsel & Secretary | |
Grantee |
||
|
||
Gary M. Small |
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EXHIBIT 99
For Immediate Release
Media Contact: |
Investor Contact: |
|||
Colleen Scott | James R. Reske | |||
Vice President of Marketing | Chief Financial Officer | |||
Home Savings | United Community Financial Corp. | |||
(330) 742-0638 | (330) 742-0592 | |||
cscott@homesavings.com | jreske@ucfconline.com |
United Community Financial Corp. Announces
Leadership Transition and Director Resignation
| Patrick W. Bevack to retire as President and CEO on March 31, 2014, remain a director of United Community and Home Savings and be engaged as a consultant for two years |
| United Community and Home Savings Boards select Gary M. Small to assume role of President and Chief Executive Officer of United Community and Home Savings following Bevack retirement |
| Richard J. Buoncore to resign from Boards of United Community and Home Savings as of March 25, 2014, and Small will fill vacancy created by Buoncores resignation |
YOUNGSTOWN, Ohio (March 18, 2014) United Community Financial Corp. (NASDAQ: UCFC), holding company of The Home Savings and Loan Company of Youngstown, Ohio , announced that Patrick W. Bevack, President and Chief Executive Officer of United Community and Home Savings, will retire on March 31, 2014. Mr. Bevack will remain on the Board of Directors of both United Community and Home Savings, and the Board has retained Mr. Bevack as an advisor for two years.
Mr. Bevack, who joined Home Savings in June 2000, was appointed President and Chief Executive Officer of United Community on January 1, 2011. Additionally, Mr. Bevack has served as President and CEO of Home Savings since March 2009. Prior to that time, Mr. Bevack had served in numerous executive positions with Home Savings, including President and Chief Operating Officer, Executive Vice President, Chief Financial Officer and Treasurer and Senior Vice President of Mortgage Lending.
Bevack commented, I am extremely proud of our management team and all that we have accomplished since my appointment as President and CEO, and I am very grateful for the confidence the Board showed in me and their unending support during the last five years. Bevack added, While I am retiring, I am excited to begin my new role as an outside director and advisor to the Board and Gary. I believe its an excellent transition plan, and it will allow me to stay involved with the Board and our employees, all of whom mean a great deal to me. The Boards selection of Gary gives me great confidence in our future, and I believe our team will accomplish our strategic goals.
Richard J. Schiraldi, Chairman of the Board of United Community and Home Savings, commented, Under Pats leadership, all regulatory orders and agreements have been terminated, we dramatically improved our financial condition and risk profile, we successfully raised capital, we returned Home Savings to profitability and we are once again considered well capitalized by our regulators. Pat achieved all that the Board asked of him, and we are grateful to his leadership, dedication and tremendous effort, and we appreciate his willingness to stay on the Board and serve as an advisor to our team.
Mr. Small joins UCFC and Home Savings as its President and CEO, bringing more than 28 years of industry experience and a successful record of developing businesses, growing revenue and improving organizational performance. Small most recently served as Senior Executive Vice President Chief Banking Officer for S&T Bank in Indiana, Pennsylvania, with responsibility for their Wealth Management, Retail Banking and Insurance business groups.
Prior to joining S&T, Small worked for Jackson Hewitt Tax Services, initially serving as Chief Operating Officer for its nationwide, 1,000 store company owned business unit. Smalls responsibilities expanded to include oversight of a significant portion of Jackson Hewitts franchise network, pricing strategies, financial products and support units.
Before Jackson Hewitt, Mr. Small was with Sky Financial Group, serving as its Executive Vice PresidentHead of Regional Banking, and subsequent to its merger with Huntington Bank, Small served as Huntington Banks Executive Vice President Regional Banking Group President. In each of his roles with Sky Financial and Huntington Bank, Small had responsibility for the Mahoning Valley market.
Prior to joining Sky Financial, Small spent 20 years with National City Corporation, and a predecessor, Merchants National Corporation, in a number of senior operating and financial roles, including four years as an Executive Vice President Retail Network Executive, with responsibility for over 200 branch locations across the Midwest.
Schiraldi stated, Gary has excelled at every position and institution that he has been associated with, and the Board and management team are excited to build upon that long history to ensure Home Savings becomes the premier community bank in Ohio and western Pennsylvania. As we turn our attention to growth, Gary is uniquely qualified to lead our team into the future. His experience in all aspects of banking will enable Gary to develop new business lines, expand our geographic footprint and continue our long commitment to the communities we currently serve, especially the Mahoning Valley.
Small commented, I am very excited to be joining the Home Savings team. Few organizations can match Home Savings rich 125 year history of superior customer service and our dedication to the communities we serve. Through the efforts of many, Home Savings has never been in a better position to expand our products and services to meet the needs of our customers.
Small further stated that The combination of a talented leadership team, dedicated and engaged associates and a forward-looking Board of Directors, ensure a bright future for our customers, associates and shareholders alike. We look forward to capitalizing on the opportunities emerging in the Ohio and western Pennsylvania markets.
As previously disclosed, Richard J. Buoncore, whose three year term as a director of United Community and Home Savings expires this year, has notified the Boards of United Community and Home Savings that he will not sit for reelection at the 2014 Annual Meeting of Shareholders, and he will resign from the Boards following the close of business on March 25, 2014. Small will be appointed by the Board to fill the vacancy created by Buoncores resignation.
Schiraldi stated, We cannot begin to express to Rick the level of gratitude we have for his exceptional service, dedication and loyalty since his appointment to the Board in 2007. Given Ricks recent appointment as Chairman of the Board of United Way of Greater Cleveland and his role as Managing Partner at MAI Wealth Advisors, LLC in Cleveland, Ricks decision to resign from the Board is understandable, but we certainly will miss his guidance and expertise. Rick has chaired our Compensation and Audit Committees. No Board could ask for a more involved director, especially in light of the effort that was required during the past five years.
As a wholly-owned subsidiary of United Community Financial Corp., Home Savings operates 33 full-service banking offices and ten loan production offices located throughout Ohio and western Pennsylvania. Additional information on UCFC and Home Savings may be found at www.ucfconline.com .
When used in this press release, the words or phrases believes, will likely result, are expected to, will continue, is anticipated, estimate, project, will have or similar expressions are intended to identify forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements are subject to certain risks and uncertainties, including changes in economic conditions in the Companys market area, changes in policies by regulatory agencies, fluctuations in interest rates, demand for loans in the Companys market area, and competition that could cause actual results to differ materially from historical earnings and those presently anticipated or projected. The Company cautions readers not to place undue reliance on any such forward-looking statements, which speak only as of the date made. The Company advises readers that the factors listed above could affect the Companys financial performance and could cause the Companys actual results for future periods to differ materially from any opinions or statements expressed with respect to future periods in any current statements.
The Company does not undertake, and specifically disclaims any obligation, to release publicly the result of any revisions that may be made to any forward-looking statements to reflect events or circumstances after the date of such statements or to reflect the occurrence of anticipated or unanticipated events.
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