Exhibit 10.5
FIRST PLACE
BANK
CHANGE IN CONTROL SEVERANCE
AGREEMENT
This Agreement is effective
, and is entered into between First Place Bank (the
“Bank”), a federally chartered savings association, 185
East Market Street, Warren, Ohio 44481, and
(“Executive”). This Agreement replaces the Change in
Control Severance Agreement between Executive and First Place Bank
with the effective date of July 5, 2004.
First Place Financial
Corp. (the “Holding
Company”) is the holding company for the Bank. By signing
this Agreement, the Holding Company agrees to guarantee the
obligations of the Bank.
Whereas, the Bank wishes to provide
the Executive with certain benefits in event of termination of
employment under conditions described below following a change in
control of the Bank; and
Whereas, Executive has agreed to
continue to serve in the employ of the Bank;
The parties agree as
follows:
1. Term of
Agreement.
The initial Term of this Agreement
shall continue from the above effective date through
June 30, 2008 . The Term may be extended by the Board
of Directors in one-year increments as set forth below.
2. Extension of
Term.
Commencing on July 1,
2007 , and continuing annually thereafter, the Board of
Directors of the Bank (the “Board”) will review this
Agreement, the needs of the Bank, and the Executive’s
performance. The Board may extend the Term of this Agreement for an
additional year or may elect for any reason not to extend the Term.
The Board will include the extension or non-extension in the
minutes of the Board’s meeting and will notify the Executive
of any non-extension.
3. Change in Control followed
by Termination of Employment.
Upon occurrence of a Change in
Control of the Bank or the Holding Company followed by termination
of Executive’s employment within two years following the
effective date of the Change in Control, the provisions of
Section 5 below shall apply unless the termination is because
of death, disability, retirement, or Termination for Cause.
Executive may elect to terminate the employment in the event that
the Executive suffers any of the following within the two
(2) years following the effective date of the Change in
Control: (i) any material demotion or reassignment of duties
and responsibilities to duties and responsibilities not consistent
with Executive’s experience, expertise, and position with the
Bank prior to the Change in Control; (ii) any material
reduction or removal of title, office, responsibility, or
authority; (iii) any material reduction in annual compensation
or benefits; (iv) relocation of Executive’s principal
office if the relocation increases Executive’s one-way travel
distance to the office by more than 50 miles.
4.
Definitions.
(A) Change in Control.
A “Change in Control” of the Bank or Holding Company
shall mean an event of a nature that: (i) would be required to
be reported in response to Item 1 of the Current Report on
Form 8-K, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”); or (ii) results in a
Change in Control of the Bank or the Holding Company within the
meaning of the Home Owners’ Loan Act of 1933, as amended, the
Federal Deposit Insurance Act, or rules and regulations of the
Office of Thrift Supervision (“OTS”) (or its
predecessor agency), as in effect on the date of this Agreement
(provided, that in applying the definition of change in control as
set forth under the Rules and Regulations of the OTS, the Board
shall substitute its judgment for that of the OTS); or
(iii) without limitation such a Change in Control shall be
deemed to have occurred at such time as (a) 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 voting securities of the Bank or the
Holding Company representing 50% or more of the Bank’s
or the Holding Company’s outstanding voting securities or
right to acquire such securities except for any voting securities
of the Bank
purchased by the Holding Company and any voting
securities purchased by any employee benefit plan of the Bank or
the Holding Company, or (b) individuals who constitute the
Board on the date hereof (the “Incumbent Board”) cease
for any reason to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the date hereof
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 Holding Company’s stockholders was
approved by a Nominating Committee solely composed of members which
are Incumbent Board members, shall be, for purposes of this clause
(b), considered as though he were a member of the Incumbent Board,
or (c) a plan of reorganization, merger, consolidation, sale
of all or substantially all the assets of the Bank or the Holding
Company or similar transaction occurs or is effectuated in which
the Bank or Holding Company is not the resulting entity.
(B) Termination for
Cause. “Termination for Cause” shall mean
termination because of Executive’s personal dishonesty,
incompetence, willful misconduct, conduct damaging the reputation
of the Bank or the Holding Company, any breach of fiduciary duty
involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other
than traffic violations or similar offenses) or final cease and
desist order, or material breach of any provision of this
Agreement. Notwithstanding the foregoing, Executive shall not be
deemed to have been Terminated for Cause unless and until there
shall have been delivered to Executive a Notice of Termination
which shall include a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the members of the
Board at a meeting of the Board called and held for that purpose
(after reasonable notice to Executive and an opportunity for
Executive, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, Executive was
guilty of conduct justifying Termination for Cause and specifying
the particulars thereof in detail. Executive shall not have the
right to receive compensation or other benefits for any period
after the Date of Termination for Cause. During the period
beginning on the date of the Notice of Termination for Cause
pursuant to Section 6 hereof through the Date of Termination
for Cause, stock options and related limited rights granted to
Executive under any stock option plan shall not be exercisable nor
shall any unvested awards granted to Executive under any stock
benefit plan of the Bank, the Holding Company, or any subsidiary or
affiliate thereof, vest. At the Date of Termination for Cause, such
stock options and related limited rights and such unvested awards
shall become null and void and shall not be exercisable by or
delivered to Executive at any time subsequent to such Date of
Termination for Cause.
5. Termination
Benefits.
(A) Sum Payable. Upon
the occurrence of a Change in Control, followed by the termination
of the Executive’s employment within two years following the
Change in Control due to (i) Executive’s election to
terminate for reasons described in Section 3 above, or
(ii) Executive’s dismissal by the Bank or the Holding
Company, the Bank or the Holding Company shall pay Executive, or in
the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, a lump sum equal
to two (2) times Executive’s average annual
compensation for the five most recent taxable years that Executive
has been employed by the Bank or such lesser number of years in the
event that Executive shall have been employed by the Bank for less
than five years. Such average annual compensation shall include
base salary, commissions, bonuses, any other cash compensation,
contributions or accruals on behalf of Executive to any pension
and/or profit sharing plan, contributions to any incentive plan,
severance payments, retirement payments, director or committee
fees, fringe benefits paid or to be paid to the Executive in any
such year, and payment of any expense items without accountability
or business purpose or that do not meet the Internal Revenue
Service requirements for deductibility by the Bank.
(B) Time of Payment.
In the event of termination of the employment by the Bank or the
Holding Company, the payment shall be made not later than thirty
(30) days following the Date of Termination. In the event of
Executive’s election to terminate the employment for one or
more of the reasons set forth in Section 3 above, the payment
shall be made in lump sum not sooner than six (6) months and
not later than six (6) months and fifteen (15) days
following the Date of Termination.
(C) Regulatory Capital
Limitation. In the event that the Bank is not in compliance
with its minimum capital requirements, or if payment pursuant to
Section (A) above would cause the Bank’s capital to be
reduced below its minimum regulatory capital requirements, payment
shall be deferred until the earliest date at which the Bank or its
successor reasonably anticipates that payment will not cause a
capital compliance violation.
(D) Life and Medical Insurance
Coverage. Upon the occurrence of a Change in Control of the
Bank or the Holding Company followed by termination of
Executive’s employment as described in Section 3 above
within two years following the Change in Contr
