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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into this ___ day of ___________, 1996, by and between
Peoples Financial Corporation, a savings and loan holding company incorporated
under Ohio law (hereinafter referred to as "PFC"), Peoples Federal Savings and
Loan Association of Massillon, a savings and loan association chartered under
the laws of the United States and a wholly-owned subsidiary of PFC (hereinafter
referred to as "Peoples Federal"), and Paul von Gunten, an individual
(hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of PFC and Peoples Federal
(hereinafter collectively referred to as the "EMPLOYERS");
WHEREAS, as a result of the skill, knowledge and experience of the
EMPLOYEE, the Boards of Directors of the EMPLOYERS desire to retain the services
of the EMPLOYEE as the President and Chief Executive Officer of each of the
EMPLOYERS;
WHEREAS, the EMPLOYEE desires to continue to serve as the President and
Chief Executive Officer of each of the EMPLOYERS; and
WHEREAS, the EMPLOYEE and the EMPLOYERS desire to enter into this
Agreement to set forth the terms and conditions of the employment relationship
between the EMPLOYERS and the EMPLOYEE;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the EMPLOYERS and the EMPLOYEE hereby agree as follows:
EMPLOYMENT AND TERM. Upon the terms and subject to the
conditions of this AGREEMENT, the EMPLOYERS hereby employ the EMPLOYEE, and the
EMPLOYEE hereby accepts employment, as the President and Chief Executive Officer
of each of the EMPLOYERS. The term of this AGREEMENT shall commence on the date
hereof and shall end on _______________, 1999 (hereinafter referred to as the
"TERM"). In January of each year, the Boards of Directors of the EMPLOYERS shall
review the EMPLOYEE's performance and record the results of such review in the
minutes of the Board of Directors. This AGREEMENT shall not be renewed or
extended without a taking of affirmative action by the Boards of Directors of
the EMPLOYERS to cause such renewal or extension.
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Duties of Employee.
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GENERAL DUTIES AND RESPONSIBILITIES. As the
President and Chief Executive Officer of each of the EMPLOYERS, the EMPLOYEE
shall perform the duties and responsibilities customary for such offices to the
best of his ability and in accordance with the policies established by the
Boards of Directors of the EMPLOYERS and all applicable laws and regulations.
The EMPLOYEE shall perform such other duties not inconsistent with his position
as may be assigned to him from time to time by the Boards of Directors of the
EMPLOYERS; provided, however, that the EMPLOYERS shall employ the EMPLOYEE
during the TERM in a senior executive capacity without material diminishment of
the importance or prestige of his position.
DEVOTION OF ENTIRE TIME TO THE BUSINESS OF THE
EMPLOYERS. The EMPLOYEE shall devote his entire productive time, ability and
attention during normal business hours throughout the TERM to the faithful
performance of his duties under this AGREEMENT. The EMPLOYEE shall not directly
or indirectly render any services of a business, commercial or professional
nature to any person or organization without the prior written consent of the
Boards of Directors of the EMPLOYERS; provided, however, that the EMPLOYEE shall
not be precluded from (i) vacations and other leave time in accordance with
Section 3(d) hereof; (ii) reasonable participation in community, civic,
charitable or similar organizations; or (iii) the pursuit of personal
investments which do not interfere or conflict with the performance of the
EMPLOYEE's duties to the EMPLOYERS.
Compensation, Benefits and Reimbursements.
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SALARY. The EMPLOYEE shall receive during the TERM
an annual salary payable in equal installments not less often than monthly. The
amount of such annual salary shall be $102,408 until changed by the Boards of
Directors of the EMPLOYERS in accordance with Section 3(b) of this AGREEMENT.
ANNUAL SALARY REVIEW. In January of each year
throughout the TERM, the annual salary of the EMPLOYEE shall be reviewed by the
Boards of Directors of the EMPLOYERS and shall be set, effective January 1, at
an amount not less than $102,408, based upon the EMPLOYEE's individual
performance and the overall profitability and financial condition of the
EMPLOYERS (hereinafter referred to as the "ANNUAL REVIEW"). The results of the
ANNUAL REVIEW shall be reflected in the minutes of the Boards of Directors of
the EMPLOYERS.
EMPLOYEE BENEFIT PROGRAM. (i) During the TERM, the
EMPLOYEE shall be entitled to participate in all formally established employee
benefit, bonus, pension and profit-sharing plans and similar programs that are
maintained by the EMPLOYERS from time to time, including programs in respect of
group health, disability or life insurance, and all employee benefit plans or
programs hereafter adopted in writing by the Boards of Directors of the
EMPLOYERS, for which senior management personnel are eligible, including any
employee stock ownership plan, stock option plan or other stock benefit plan
(hereinafter collectively referred to as the "BENEFIT PLANS"). Notwithstanding
the foregoing sentence, the EMPLOYERS may dis-
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continue or terminate at any time any such BENEFIT PLANS, now existing or
hereafter adopted, to the extent permitted by the terms of such plans and shall
not be required to compensate the EMPLOYEE for such discontinuance or
termination.
(ii) After the expiration of the TERM or the termination of the
employment of the employee for any reason other than JUST CAUSE (as defined
hereinafter), the EMPLOYERS shall provide a group health insurance program in
which the EMPLOYEE and his spouse will be eligible to participate and which
shall provide substantially the same benefits as are available to retired
employees of the EMPLOYERS on the date of this AGREEMENT until both the EMPLOYEE
and his spouse become 65 years of age; provided, however that all premiums for
such program shall be paid by the EMPLOYEE and/or his spouse after the
EMPLOYEE's retirement; provided further, however, that the EMPLOYEE may only
participate in such program for as long as the EMPLOYERS make available an
employee group health insurance program which permits the EMPLOYERS to make
coverage available for retirees.
VACATION AND SICK LEAVE. The EMPLOYEE shall be entitled,
without loss of pay, to be absent voluntarily from the performance of his duties
under this AGREEMENT, subject to the following conditions:
The EMPLOYEE shall be entitled to an annual vacation
in accordance with the policies periodically established by the
EMPLOYERS for senior management officials of the EMPLOYERS;
Vacation time shall be scheduled by the EMPLOYEE in
a reasonable manner subject to approval by the EMPLOYERS; and
The EMPLOYEE shall be entitled to annual sick leave as
established by the Boards of Directors of the EMPLOYERS for senior
management officials of the EMPLOYERS. Upon termination of employment,
the EMPLOYEE shall not be entitled to receive any additional
compensation from the EMPLOYERS for unused sick leave.
Termination of Employment.
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(a) GENERAL. In addition to the termination of the employment of the
EMPLOYEE upon the expiration of the TERM, the employment of the
EMPLOYEE shall terminate at any other time during the TERM upon the
delivery by the EMPLOYERS of written notice of employment termination
to the EMPLOYEE. Without limiting the generality of the foregoing
sentence, the following subparagraphs (i), (ii) and (iii) of this
Section 4(a) shall govern the obligations of the EMPLOYERS to the
EMPLOYEE upon the occurrence of the events described in such
subparagraphs:
(i) TERMINATION FOR JUST CAUSE. In the event that the
EMPLOYERS terminate the employment of the EMPLOYEE during the
TERM because of the EMPLOYEE's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure or refusal to
perform the
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duties and responsibilities assigned in this AGREEMENT,
willful violation of any law, rule, regulation or final
cease-and-desist order (other than traffic violations or
similar offenses), conviction of a felony or for fraud or
embezzlement, or material breach of any provision of this
AGREEMENT (hereinafter collectively referred to as "JUST
CAUSE"), the EMPLOYEE shall not receive, and shall have no
right to receive, any compensation or other benefits for any
period after such termination.
(ii) TERMINATION AFTER CHANGE OF CONTROL. In the event that,
before the expiration of the TERM and in connection with or
within one year after a CHANGE OF CONTROL (as defined
hereinafter) of either one of the EMPLOYERS, (A) the
employment of the EMPLOYEE is terminated for any reason other
than JUST CAUSE before the expiration of the TERM, (B) the
present capacity or circumstances in which the EMPLOYEE is
employed are materially changed before the expiration of the
TERM, or (C) the EMPLOYEE's responsibilities, authority,
compensation or other benefits provided under this AGREEMENT
are materially reduced, then the following shall occur:
(I) The EMPLOYERS shall promptly pay to
the EMPLOYEE or to his beneficiaries, dependents or
estate an amount equal to the sum of (1) the amount
of compensation to which the EMPLOYEE would be
entitled for the remainder of the TERM under this
AGREEMENT, plus (2) the difference between (x) the
product of three, multiplied by the greater of the
annual salary set forth in Section 3(a) of this
AGREEMENT or the annual salary payable to the
EMPLOYEE as a result of any ANNUAL REVIEW, less (xx)
the amount paid to the EMPLOYEE pursuant to clause
(1) of this subparagraph (I);
(II) The EMPLOYEE, his dependents,
beneficiaries and estate shall continue to be covered
under all BENEFIT PLANS of the EMPLOYERS at the
EMPLOYERS' expense as if the EMPLOYEE were still
employed under this AGREEMENT until the earliest of
the expiration of the TERM or the date on which the
EMPLOYEE is included in another employer's benefit
plans as a full-time employee; and
(III) The EMPLOYEE shall not be required
to mitigate the amount of any payment provided for in
this AGREEMENT by seeking other employment or
otherwise, nor shall any amounts received from other
employment or otherwise by the EMPLOYEE offset in any
manner the obligations of the EMPLOYERS hereunder,
except as specifically stated in subparagraph (II).
In the event that payments pursuant to this subsection (ii)
would result in the imposition of a penalty tax pursuant to
Section 280G(b)(3) of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder
(hereinafter collectively referred to as "SECTION 280G"), such
payments shall be
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reduced to the maximum amount which may be paid under SECTION
280G without exceeding such limits. Payments pursuant to this
subsection also may not exceed the limit set forth in
Regulatory Bulletin 27a of the Office of Thrift Supervision.
(iii) TERMINATION WITHOUT CHANGE OF CONTROL. In the event that
the employment of the EMPLOYEE is terminated before the
expiration of the TERM other than (A) for JUST CAUSE or (B) in
connection with or within one year after a CHANGE OF CONTROL,
the EMPLOYERS shall be obligated to continue (1) to pay on a
monthly basis to the EMPLOYEE, his designated beneficiaries or
his estate, his annual salary provided pursuant to Section
3(a) or (b) of this AGREEMENT until the expiration of the TERM
and (2) to provide to the EMPLOYEE, at the EMPLOYERS' expense,
health, life, disability, and other benefits substantially
equal to those being provided to the EMPLOYEE at the date of
termination of his employment until the earliest to occur of
the expiration of the TERM or the date the EMPLOYEE becomes
employed full-time by another employer. In the event that
payments pursuant to this subsection (iii) would result in the
imposition of a penalty tax pursuant to SECTION 280G, such
payments shall be reduced to the maximum amount which may be
paid under SECTION 280G without exceeding those limits.
Payments pursuant to this subsection also may not exceed the
limit set forth in Regulatory Bulletin 27a of the Office of
Thrift Supervision.
(b) DEATH OF THE EMPLOYEE. The TERM automatically terminates upon the
death of the EMPLOYEE. In the event of such death, the EMPLOYEE's estate shall
be entitled to receive the compensation due the EMPLOYEE through the last day of
the calendar month in which the death occurred, except as otherwise specified
herein.
(c) "GOLDEN PARACHUTE" PROVISION. Any payments made to the EMPLOYEE
pursuant to this AGREEMENT or otherwise are subject to and conditioned upon
their compliance with 12 U.S.C. sec.1828(k) and any regulations promulgated
thereunder.
(d) DEFINITION OF "CHANGE OF CONTROL". A "CHANGE OF CONTROL" shall be
deemed to have occurred in the event that, at any time during the EMPLOYMENT
TERM, either any person or entity obtains "conclusive control" of the EMPLOYERS
within the meaning of 12 C.F.R. sec.574.4(a), or any person or entity obtains
"rebuttable control" within the meaning of 12 C.F.R. sec.574.4(b) and has not
rebuttable control in accordance with 12 C.F.R. sec.574.4(c).
SPECIAL REGULATORY EVENTS. Notwithstanding Section 4 of this
AGREEMENT, the obligations of the EMPLOYERS to the EMPLOYEE shall be as follows
in the event of the following circumstances:
If the EMPLOYEE is suspended and/or temporarily prohibited from
participating in the conduct of Peoples Federal's affairs by a notice served
under section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act
(hereinafter referred to as the "FDIA"), the EMPLOYERS'
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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 EMPLOYERS may, in their discretion, pay the EMPLOYEE
all or part of the compensation withheld while the obligations in this AGREEMENT
were suspended and reinstate, in whole or in part, any of the obligations that
were suspended.
If the EMPLOYEE is removed and/or permanently
prohibited from participating in the conduct of Peoples Federal's or PFC's
affairs by an order issued under Section 8(e)(4) or (g)(1) of the FDIA, all
obligations of the EMPLOYERS under this AGREEMENT shall terminate as of the
effective date of such order; provided, however, that vested rights of the
EMPLOYEE shall not be affected by such termination.
If Peoples Federal 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 EMPLOYEE shall not be affected.
All obligations under this AGREEMENT shall be
terminated, except to the extent of a determination that the continuation of
this AGREEMENT is necessary for the continued operation of the EMPLOYERS, (i) by
the Director of the Office of Thrift Supervision (hereinafter referred to as the
"OTS"), or his or her designee at the time that the Federal Deposit Insurance
Corporation or the Resolution Trust Corporation enters into an agreement to
provide assistance to or on behalf of Peoples Federal under the authority
contained in Section 13(c) of the FDIA or (ii) by the Director of the OTS, or
his or her designee, at any time the Director of the OTS, or his or her
designee, approves a supervisory merger to resolve problems related to the
operation of Peoples Federal or when Peoples Federal is determined by the
Director of the OTS to be in an unsafe or unsound condition. No vested rights of
the EMPLOYEE shall be affected by any such action.
CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in
this AGREEMENT shall preclude the EMPLOYERS from consolidating with, merging
into, or transferring all, or substantially all, of their assets to another
corporation that assumes all of the EMPLOYERS' obligations and undertakings
hereunder. Upon such a consolidation, merger or transfer of assets, the term
"EMPLOYERS," as used herein, shall mean such other corporation or entity, and
this AGREEMENT shall continue in full force and effect.
CONFIDENTIAL INFORMATION. The EMPLOYEE acknowledges
that during his employment he will learn and have access to confidential
information regarding the EMPLOYERS and their customers and businesses. The
EMPLOYEE agrees and covenants not to disclose or use for his own benefit, or the
benefit of any other person or entity, any confidential information, unless or
until the EMPLOYERS consent to such disclosure or use or such information
becomes common knowledge in the industry or is otherwise legally in the public
domain. The EMPLOYEE shall not knowingly disclose or reveal to any unauthorized
person any confidential information relating to the EMPLOYERS, their
subsidiaries or affiliates, or to any of the businesses operated by them, and
the EMPLOYEE confirms that such information constitutes the exclusive property
of the EMPLOYERS. The EMPLOYEE shall not otherwise knowingly
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act or conduct himself (a) to the material detriment of the EMPLOYERS, their
subsidiaries, or affiliates, or (b) in a manner which is inimical or contrary to
the interests of the EMPLOYERS.
NONASSIGNABILITY. Neither this AGREEMENT nor any
right or interest hereunder shall be assignable by the EMPLOYEE, his
beneficiaries, or legal representatives without the EMPLOYERS' prior written
consent; provided, however, that nothing in this Section 8 shall preclude (a)
the EMPLOYEE from designating a beneficiary to receive any benefits payable
hereunder upon his death, or (b) the executors, administrators, or other legal
representatives of the EMPLOYEE or his estate from assigning any rights
hereunder to the person or persons entitled thereto.
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.
BINDING AGREEMENT. This AGREEMENT shall be binding
upon, and inure to the benefit of, the EMPLOYEE and the EMPLOYERS and their
respective permitted successors and assigns.
AMENDMENT OF AGREEMENT. This AGREEMENT may not be
modified or amended, except by an instrument in writing signed by the parties
hereto.
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.
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 EMPLOYERS (or any predecessor thereof) and the
EMPLOYEE shall be deemed reinstated to the full extent permitted by law, as if
this AGREEMENT had not been executed.
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.
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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 this State of Ohio, except to
the extent that federal law is governing.
EFFECT OF PRIOR AGREEMENTS. This AGREEMENT contains
the entire understanding between the parties hereto and supersedes any prior
employment agreement between the EMPLOYERS or any predecessor of the EMPLOYERS
and the EMPLOYEE.
NOTICES. Any notice or other communication required
or permitted pursuant to this AGREEMENT shall be deemed delivered if such notice
or communication is in writing and is delivered personally or by facsimile
transmission or is deposited in the United States mail, postage prepaid,
addressed as follows:
If to PFC and/or Peoples' Federal:
Peoples Federal Savings and Loan Association of Massillon
211 Lincoln Way East
Massillon, Ohio 44646
Attention: Secretary
With copies to:
John C. Vorys, Esq.
Vorys, Sater, Seymour and Pease
Atrium Two, Suite 2100
221 East Fourth Street
Cincinnati, Ohio 45201-0236
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If to the EMPLOYEE to:
Paul von Gunten
1531 Merino Circle, N.E.
Massillon, Ohio 44646
IN WITNESS WHEREOF, the EMPLOYERS have caused this AGREEMENT to be
executed by its duly authorized officer, and the EMPLOYEE has signed this
AGREEMENT, each as of the day and year first above written.
Attest: PEOPLES FINANCIAL CORPORATION
- ---------------------------------- By
-------------------------------
its
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Attest: PEOPLES FEDERAL SAVINGS AND LOAN
ASSOCIATION OF MASSILLON
By
- ---------------------------------- By
-------------------------------
its
----------------------------
Attest:
- ---------------------------------- -------------------------------
Paul von Gunten
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into this ___ day of ___________, 1996, by Peoples Federal
Savings and Loan Association of Massillon, a savings and loan association
chartered under the laws of the United States (hereinafter referred to as the
"EMPLOYER"), and Linda L. Fowler, an individual (hereinafter referred to as the
"EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of the EMPLOYER;
WHEREAS, as a result of the skill, knowledge and experience of the
EMPLOYEE, the Board of Directors of the EMPLOYER desire to retain the services
of the EMPLOYEE as the Secretary of the EMPLOYER;
WHEREAS, the EMPLOYEE desires to continue to serve as the Secretary of
the EMPLOYER; and
WHEREAS, the EMPLOYEE and the EMPLOYER desire to enter into this
Agreement to set forth the terms and conditions of the employment relationship
between the EMPLOYER and the EMPLOYEE;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the EMPLOYER and the EMPLOYEE hereby agree as follows:
I. EMPLOYMENT AND TERM. Upon the terms and subject to the conditions of
this AGREEMENT, the EMPLOYER hereby employ the EMPLOYEE, and the EMPLOYEE hereby
accepts employment, as the Secretary of the EMPLOYER. The term of this AGREEMENT
shall commence on the date hereof and shall end on _______________, 1999
(hereinafter referred to as the "TERM"). In January of each year, the Board of
Directors of the EMPLOYER shall review the EMPLOYEE's performance and record the
results of such review in the minutes of the Board of Directors. This AGREEMENT
shall not be renewed or extended without a taking of affirmative action by the
Board of Directors of the EMPLOYER to cause such renewal or extension.
II. Duties of EMPLOYEE.
A. GENERAL DUTIES AND RESPONSIBILITIES. As the Secretary of the
EMPLOYER, the EMPLOYEE shall perform the duties and responsibilities customary
for such offices to the best of her ability and in accordance with the policies
established by the Board of Directors of the
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EMPLOYER and all applicable laws and regulations. The EMPLOYEE shall perform
such other duties not inconsistent with her position as may be assigned to her
from time to time by the Boards of Directors of the EMPLOYER; provided,
however, that the EMPLOYER shall employ the EMPLOYEE during the TERM in a
senior executive capacity without material diminishment of the importance or
prestige of her position.
B. DEVOTION OF ENTIRE TIME TO THE BUSINESS OF THE EMPLOYER. The
EMPLOYEE shall devote her entire productive time, ability and attention during
normal business hours throughout the TERM to the faithful performance of her
duties under this AGREEMENT. The EMPLOYEE shall not directly or indirectly
render any services of a business, commercial or professional nature to any
person or organization without the prior written consent of the Board of
Directors of the EMPLOYER; provided, however, that the EMPLOYEE shall not be
precluded from (i) vacations and other leave time in accordance with Section
3(d) hereof; (ii) reasonable participation in community, civic, charitable or
similar organizations; or (iii) the pursuit of personal investments which do not
interfere or conflict with the performance of the EMPLOYEE's duties to the
EMPLOYER.
III. Compensation, Benefits and Reimbursements.
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A. SALARY. The EMPLOYEE shall receive during the TERM an annual salary
payable in equal installments not less often than monthly. The amount of such
annual salary shall be $60,780 until changed by the Board of Directors of the
EMPLOYER in accordance with Section 3(b) of this AGREEMENT.
B. ANNUAL SALARY REVIEW. In January of each year throughout the TERM,
the annual salary of the EMPLOYEE shall be reviewed by the Board of Directors of
the EMPLOYER and shall be set, effective January 1, at an amount not less than
$60,780, based upon the EMPLOYEE's individual performance and the overall
profitability and financial condition of the EMPLOYER (hereinafter referred to
as the "ANNUAL REVIEW"). The results of the ANNUAL REVIEW shall be reflected in
the minutes of the Board of Directors of the EMPLOYER.
C. EMPLOYEE BENEFIT PROGRAM. (i) During the TERM, the EMPLOYEE shall be
entitled to participate in all formally established employee benefit, bonus,
pension and profit-sharing plans and similar programs that are maintained by the
EMPLOYER from time to time, including programs in respect of group health,
disability or life insurance, and all employee benefit plans or programs
hereafter adopted in writing by the Board of Directors of the EMPLOYER, for
which senior management personnel are eligible, including any employee stock
ownership plan, stock option plan or other stock benefit plan (hereinafter
collectively referred to as the "BENEFIT PLANS"). Notwithstanding the foregoing
sentence, the EMPLOYER may discontinue or terminate at any time any such BENEFIT
PLANS, now existing or hereafter adopted, to the extent permitted by the terms
of such plans and shall not be required to compensate the EMPLOYEE for such
discontinuance or termination.
(ii) After the expiration of the TERM or the termination of the
employment of the employee for any reason other than JUST CAUSE (as defined
hereinafter), the
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EMPLOYER shall provide a group health insurance program in which the EMPLOYEE
and her spouse will be eligible to participate and which shall provide
substantially the same benefits as are available to retired employees of the
EMPLOYER on the date of this AGREEMENT until both the EMPLOYEE and her spouse
become 65 years of age; provided, however that all premiums for such program
shall be paid by the EMPLOYEE and/or her spouse after the EMPLOYEE's retirement;
provided further, however, that the EMPLOYEE may only participate in such
program for as long as the EMPLOYER make available an employee group health
insurance program which permits the EMPLOYER to make coverage available for
retirees.
D. VACATION AND SICK LEAVE. The EMPLOYEE shall be entitled, without
loss of pay, to be absent voluntarily from the performance of her duties under
this AGREEMENT, subject to the following conditions:
1. The EMPLOYEE shall be entitled to an annual vacation in
accordance with the policies periodically established by the Boards
of Directors of the EMPLOYER for senior management officials of the
EMPLOYER;
2. Vacation time shall be scheduled by the EMPLOYEE in a
reasonable manner subject to approval by the EMPLOYER.
3. The EMPLOYEE shall be entitled to annual sick leave as
established by the Board of Directors of the EMPLOYER for senior
management officials of the EMPLOYER. Upon termination of
employment, the EMPLOYEE shall not be entitled to receive any
additional compensation from the EMPLOYER for unused sick leave.
IV. Termination of Employment.
A. GENERAL. In addition to the termination of the employment of the
EMPLOYEE upon the expiration of the TERM, the employment of the EMPLOYEE shall
terminate at any other time during the TERM upon the delivery by the EMPLOYER of
written notice of employment termination to the EMPLOYEE. Without limiting the
generality of the foregoing sentence, the following subparagraphs (i), (ii) and
(iii) of this Section 4(a) shall govern the obligations of the EMPLOYER to the
EMPLOYEE upon the occurrence of the events described in such subparagraphs:
1. Termination for JUST CAUSE. In the event that the
EMPLOYER terminates the employment of the EMPLOYEE during the TERM
because of the EMPLOYEE's personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure or refusal to perform the duties and
responsibilities assigned in this AGREEMENT, willful violation of
any law, rule, regulation or final cease-and-desist order (other
than traffic violations or similar offenses), conviction of a
felony or for fraud or embezzlement, or material breach of any
provision of this AGREEMENT (hereinafter collectively referred to
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as "JUST CAUSE"), the EMPLOYEE shall not receive, and shall have no
right to receive, any compensation or other benefits for any period
after such termination.
2. TERMINATION AFTER CHANGE OF CONTROL. In the event
that, before the expiration of the TERM and in connection with or
within one year after a CHANGE OF CONTROL (as defined hereinafter)
of either one of the EMPLOYER, (A) the employment of the EMPLOYEE
is terminated for any reason other than JUST CAUSE before the
expiration of the TERM, (B) the present capacity or circumstances
in which the EMPLOYEE is employed are materially changed before the
expiration of the TERM, or (C) the EMPLOYEE's responsibilities,
authority, compensation or other benefits provided under this
AGREEMENT are materially reduced, then the following shall occur:
a. The EMPLOYER shall promptly pay to the
EMPLOYEE or to her beneficiaries, dependents or estate
an amount equal to the sum of (1) the amount of
compensation to which the EMPLOYEE would be entitled
for the remainder of the TERM under this AGREEMENT,
plus (2) the difference between (x) the product of
three, multiplied by the greater of the annual salary
set forth in Section 3(a) of this AGREEMENT or the
annual salary payable to the EMPLOYEE as a result of
any ANNUAL REVIEW, less (xx) the amount paid to the
EMPLOYEE pursuant to clause (1) of this subparagraph
(I);
b. The EMPLOYEE, her dependents,
beneficiaries and estate shall continue to be covered
under all BENEFIT PLANS of the EMPLOYER at the
EMPLOYER'S expense as if the EMPLOYEE were still
employed under this AGREEMENT until the earliest of
the expiration of the TERM or the date on which the
EMPLOYEE is included in another employer's benefit
plans as a full-time employee; and
c. The EMPLOYEE shall not be required to
mitigate the amount of any payment provided for in
this AGREEMENT by seeking other employment or
otherwise, nor shall any amounts received from other
employment or otherwise by the EMPLOYEE offset in any
manner the obligations of the EMPLOYER hereunder,
except as specifically stated in subparagraph (II).
In the event that payments pursuant to this subsection (ii) would
result in the imposition of a penalty tax pursuant to Section
280G(b)(3) of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder (hereinafter collectively referred
to as "SECTION 280G"), such payments shall be reduced to the maximum
amount which may be paid under SECTION 280G without exceeding such
limits. Payments pursuant to this subsection also may not exceed the
limit set forth in Regulatory Bulletin 27a of the Office of Thrift
Supervision.
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3. TERMINATION WITHOUT CHANGE OF CONTROL. In the event
that the employment of the EMPLOYEE is terminated before the
expiration of the TERM other than (A) for JUST CAUSE or (B) in
connection with or within one year after a CHANGE OF CONTROL, the
EMPLOYER shall be obligated to continue (1) to pay on a monthly
basis to the EMPLOYEE, her designated beneficiaries or her estate,
her annual salary provided pursuant to Section 3(a) or (b) of this
AGREEMENT until the expiration of the TERM and (2) to provide to
the EMPLOYEE, at the EMPLOYER'S expense, health, life, disability,
and other benefits substantially equal to those being provided to
the EMPLOYEE at the date of termination of her employment until the
earliest to occur of the expiration of the TERM or the date the
EMPLOYEE becomes employed full-time by another employer. In the
event that payments pursuant to this subsection (iii) would result
in the imposition of a penalty tax pursuant to SECTION 280G, such
payments shall be reduced to the maximum amount which may be paid
under SECTION 280G without exceeding those limits. Payments
pursuant to this subsection also may not exceed the limit set forth
in Regulatory Bulletin 27a of the Office of Thrift Supervision.
B. DEATH OF THE EMPLOYEE. The TERM automatically terminates upon
the death of the EMPLOYEE. In the event of such death, the EMPLOYEE's estate
shall be entitled to receive the compensation due the EMPLOYEE through the last
day of the calendar month in which the death occurred, except as otherwise
specified herein.
C. "GOLDEN PARACHUTE" PROVISION. Any payments made to the EMPLOYEE
pursuant to this AGREEMENT or otherwise are subject to and conditioned upon
their compliance with 12 U.S.C. sec.1828(k) and any regulations promulgated
thereunder.
D. DEFINITION OF "CHANGE OF CONTROL". A "CHANGE OF CONTROL" shall
be deemed to have occurred in the event that, at any time during the EMPLOYMENT
TERM, either any person or entity obtains "conclusive control" of the EMPLOYER
within the meaning of 12 C.F.R. sec.574.4(a), or any person or entity obtains
"rebuttable control" within the meaning of 12 C.F.R. sec.574.4(b) and has not
rebuttable control in accordance with 12 C.F.R. sec.574.4(c).
V. SPECIAL REGULATORY EVENTS. Notwithstanding Section 4 of this
AGREEMENT, the obligations of the EMPLOYER to the EMPLOYEE shall be
as follows in the event of the following circumstances:
A. If the EMPLOYEE is suspended and/or temporarily prohibited from
participating in the conduct of the EMPLOYER'S affairs by a notice served under
section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (hereinafter
referred to as the "FDIA"), the EMPLOYER'S 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
EMPLOYER may, in its discretion, pay the EMPLOYEE all or part of the
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15
compensation withheld while the obligations in this AGREEMENT were suspended and
reinstate, in whole or in part, any of the obligations that were suspended.
B. If the EMPLOYEE is removed and/or permanently prohibited from
participating in the conduct of the EMPLOYER'S affairs by an order issued under
Section 8(e)(4) or (g)(1) of the FDIA, all obligations of the EMPLOYER under
this AGREEMENT shall terminate as of the effective date of such order; provided,
however, that vested rights of the EMPLOYEE shall not be affected by such
termination.
C. If the EMPLOYER 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 EMPLOYEE shall not be
affected.
D. All obligations under this AGREEMENT shall be terminated, except
to the extent of a determination that the continuation of this AGREEMENT is
necessary for the continued operation of the EMPLOYER, (i) by the Director of
the Office of Thrift Supervision (hereinafter referred to as the "OTS"), or her
or her designee at the time that the Federal Deposit Insurance Corporation or
the Resolution Trust Corporation enters into an agreement to provide assistance
to or on behalf of Peoples Federal under the authority contained in Section
13(c) of the FDIA or (ii) by the Director of the OTS, or her or her designee, at
any time the Director of the OTS, or her or her designee, approves a supervisory
merger to resolve problems related to the operation of the EMPLOYER is
determined by the Director of the OTS to be in an unsafe or unsound condition.
No vested rights of the EMPLOYEE shall be affected by any such action.
VI. CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in this AGREEMENT
shall preclude the EMPLOYER from consolidating with, merging into, or
transferring all, or substantially all, of its assets to another corporation
that assumes all of the EMPLOYER'S obligations and undertakings hereunder. Upon
such a consolidation, merger or transfer of assets, the term "EMPLOYER," as used
herein, shall mean such other corporation or entity, and this AGREEMENT shall
continue in full force and effect.
VII. CONFIDENTIAL INFORMATION. The EMPLOYEE acknowledges that during her
employment she will learn and have access to confidential information regarding
the EMPLOYER and its customers and businesses. The EMPLOYEE agrees and covenants
not to disclose or use for her own benefit, or the benefit of any other person
or entity, any confidential information, unless or until the EMPLOYER consent to
such disclosure or use or such information becomes common knowledge in the
industry or is otherwise legally in the public domain. The EMPLOYEE shall not
knowingly disclose or reveal to any unauthorized person any confidential
information relating to the EMPLOYER, its subsidiaries or affiliates, or to any
of the businesses operated by it, and the EMPLOYEE confirms that such
information constitutes the exclusive property of the EMPLOYER. The EMPLOYEE
shall not otherwise knowingly act or conduct herself (a) to the material
detriment of the EMPLOYER, its subsidiaries, or affiliates, or (b) in a manner
which is inimical or contrary to the interests of the EMPLOYER.
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VIII. NONASSIGNABILITY. Neither this AGREEMENT nor any right or interest
hereunder shall be assignable by the EMPLOYEE, her beneficiaries, or legal
representatives without the EMPLOYER'S prior written consent; provided, however,
that nothing in this Section 8 shall preclude (a) the EMPLOYEE from designating
a beneficiary to receive any benefits payable hereunder upon her death, or (b)
the executors, administrators, or other legal representatives of the EMPLOYEE or
her estate from assigning any rights hereunder to the person or persons entitled
thereto.
IX. 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.
X. BINDING AGREEMENT. This AGREEMENT shall be binding upon, and inure to
the benefit of, the EMPLOYEE and the EMPLOYER and their respective permitted
successors and assigns.
XII. AMENDMENT OF AGREEMENT. This AGREEMENT may not be modified or
amended, except by an instrument in writing signed by the parties hereto.
XIII. WAIVER. No term or condition of three 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.
XIV. 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 EMPLOYER (or any predecessor thereof) and the EMPLOYEE shall be
deemed reinstated to the full extent permitted by law, as if this AGREEMENT had
not been executed.
XIV. 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.
XV. 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 three State of Ohio, except to the extent that
federal law is governing.
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XVI. EFFECT OF PRIOR AGREEMENTS. This AGREEMENT contains the entire
understanding between the parties hereto and supercedes any prior employment
agreement between the EMPLOYER or any predecessor of the EMPLOYER and the
EMPLOYEE.
XVII. NOTICES. Any notice or other communication required or permitted
pursuant to three AGREEMENT shall be deemed delivered if such notice or
communication is in writing and is delivered personally or by facsimile
transmission or is deposited in the United States mail, postage prepaid,
addressed as follows:
If to Peoples Federal:
Peoples Federal Savings and Loan Association of Massillon
211 Lincoln Way East
Massillon, Ohio 44646
Attention: President
With copies to:
John C. Vorys, Esq.
Vorys, Sater, Seymour and Pease
Atrium Two, Suite 2100
221 East Fourth Street
Cincinnati, Ohio 45201-0236
If to the EMPLOYEE to:
Linda L. Fowler
1652 Clyde Avenue N.W.
Massillon, Ohio 44646
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18
IN WITNESS WHEREOF, the EMPLOYER has caused this AGREEMENT to be
executed by its duly authorized officer, and the EMPLOYEE has signed this
AGREEMENT, each as of the day and year first above written.
Attest: PEOPLES FEDERAL SAVINGS AND LOAN
ASSOCIATION OF MASSILLON
- ------------------------- By
-----------------------------
Paul von Gunten
its President
Attest:
- ------------------------- --------------------------------
Linda L. Fowler
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EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into this ___ day of ___________, 1996, by and between
Peoples Financial Corporation, a savings and loan holding company incorporated
under Ohio law (hereinafter referred to as "PFC"), Peoples Federal Savings and
Loan Association of Massillon, a savings and loan association chartered under
the laws of the United States and a wholly-owned subsidiary of PFC (hereinafter
referred to as "Peoples Federal"), and James R. Rinehart, an individual
(hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of PFC and Peoples
Federal (hereinafter collectively referred to as the "EMPLOYERS");
WHEREAS, as a result of the skill, knowledge and experience of the
EMPLOYEE, the Boards of Directors of the EMPLOYERS desire to retain the services
of the EMPLOYEE as the Treasurer of each of the EMPLOYERS;
WHEREAS, the EMPLOYEE desires to continue to serve as the Treasurer of
each of the EMPLOYERS; and
WHEREAS, the EMPLOYEE and the EMPLOYERS desire to enter into this
Agreement to set forth the terms and conditions of the employment relationship
between the EMPLOYERS and the EMPLOYEE;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the EMPLOYERS and the EMPLOYEE hereby agree as follows:
EMPLOYMENT AND TERM. Upon the terms and subject to the
conditions of this AGREEMENT, the EMPLOYERS hereby employ the EMPLOYEE, and the
EMPLOYEE hereby accepts employment, as the Treasurer of each of the EMPLOYERS.
The term of this AGREEMENT shall commence on the date hereof and shall end on
_______________, 1999 (hereinafter referred to as the "TERM"). In January of
each year, the Boards of Directors of the EMPLOYERS shall review the EMPLOYEE's
performance and record the results of such review in the minutes of the Board of
Directors. This AGREEMENT shall not be renewed or extended without the taking of
affirmative action by the Boards of Directors of the EMPLOYERS to cause such
renewal or extension.
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DUTIES OF EMPLOYEE.
-------------------
GENERAL DUTIES AND RESPONSIBILITIES. As the
Treasurer of each of the EMPLOYERS, the EMPLOYEE shall perform the duties and
responsibilities customary for such offices to the best of his ability and in
accordance with the policies established by the Boards of Directors of the
EMPLOYERS and all applicable laws and regulations. The EMPLOYEE shall perform
such other duties not inconsistent with his position as may be assigned to him
from time to time by the Boards of Directors of the EMPLOYERS; provided,
however, that the EMPLOYERS shall employ the EMPLOYEE during the TERM in a
senior executive capacity without material diminishment of the importance or
prestige of his position.
DEVOTION OF ENTIRE TIME TO THE BUSINESS OF THE
EMPLOYERS. The EMPLOYEE shall devote his entire productive time, ability and
attention during normal business hours throughout the TERM to the faithful
performance of his duties under this AGREEMENT. The EMPLOYEE shall not directly
or indirectly render any services of a business, commercial or professional
nature to any person or organization without the prior written consent of the
Boards of Directors of the EMPLOYERS; provided, however, that the EMPLOYEE shall
not be precluded from (i) vacations and other leave time in accordance with
Section 3(d) hereof; (ii) reasonable participation in community, civic,
charitable or similar organizations; or (iii) the pursuit of personal
investments which do not interfere or conflict with the performance of the
EMPLOYEE's duties to the EMPLOYERS.
COMPENSATION, BENEFITS AND REIMBURSEMENTS.
------------------------------------------
SALARY. The EMPLOYEE shall receive during the TERM
an annual salary payable in equal installments not less often than monthly. The
amount of such annual salary shall be $41,460 until changed by the Boards of
Directors of the EMPLOYERS in accordance with Section 3(b) of this AGREEMENT.
ANNUAL SALARY REVIEW. In January of each year
throughout the TERM, the annual salary of the EMPLOYEE shall be reviewed by the
Boards of Directors of the EMPLOYERS and shall be set, effective January 1, at
an amount not less than $41,460, based upon the EMPLOYEE's individual
performance and the overall profitability and financial condition of the
EMPLOYERS (hereinafter referred to as the "ANNUAL REVIEW"). The results of the
ANNUAL REVIEW shall be reflected in the minutes of the Boards of Directors of
the EMPLOYERS.
EMPLOYEE BENEFIT PROGRAM. (i) During the TERM, the
EMPLOYEE shall be entitled to participate in all formally established employee
benefit, bonus, pension and profit-sharing plans and similar programs that are
maintained by the EMPLOYERS from time to time, including programs in respect of
group health, disability or life insurance, and all employee benefit plans or
programs hereafter adopted in writing by the Boards of Directors of the
EMPLOYERS, for which senior management personnel are eligible, including any
employee stock ownership plan, stock option plan or other stock benefit plan
(hereinafter collectively referred to as the "BENEFIT PLANS"). Notwithstanding
the foregoing sentence, the EMPLOYERS may dis-
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continue or terminate at any time any such BENEFIT PLANS, now existing or
hereafter adopted, to the extent permitted by the terms of such plans and shall
not be required to compensate the EMPLOYEE for such discontinuance or
termination.
(ii) After the expiration of the TERM or the termination of the
employment of the employee for any reason other than JUST CAUSE (as defined
hereinafter), the EMPLOYERS shall provide a group health insurance program in
which the EMPLOYEE and his spouse will be eligible to participate and which
shall provide substantially the same benefits as are available to retired
employees of the EMPLOYERS on the date of this AGREEMENT until both the EMPLOYEE
and his spouse become 65 years of age; provided, however that all premiums for
such program shall be paid by the EMPLOYEE and/or his spouse after the
EMPLOYEE's retirement; provided further, however, that the EMPLOYEE may only
participate in such program for as long as the EMPLOYERS make available an
employee group health insurance program which permits the EMPLOYERS to make
coverage available for retirees.
VACATION AND SICK LEAVE. The EMPLOYEE shall be entitled,
without loss of pay, to be absent voluntarily from the performance of his duties
under this AGREEMENT, subject to the following conditions:
The EMPLOYEE shall be entitled to an annual vacation
in accordance with the policies periodically established by the Boards
of Directors of the EMPLOYERS for senior management officials of the
EMPLOYERS;
Vacation time shall be scheduled by the EMPLOYEE in
a reasonable manner subject to approval by the EMPLOYERS; and
The EMPLOYEE shall be entitled to annual sick leave as established by
the Boards of Directors of the EMPLOYERS for senior management
officials of the EMPLOYERS. Upon termination of employment, the
EMPLOYEE shall not be entitled to receive any additional
compensation from the EMPLOYERS for unused sick leave.
TERMINATION OF EMPLOYMENT.
--------------------------
(a) GENERAL. In addition to the termination of the employment of the
EMPLOYEE upon the expiration of the TERM, the employment of the
EMPLOYEE shall terminate at any other time during the TERM upon the
delivery by the EMPLOYERS of written notice of employment termination
to the EMPLOYEE. Without limiting the generality of the foregoing
sentence, the following subparagraphs (i), (ii) and (iii) of this
Section 4(a) shall govern the obligations of the EMPLOYERS to the
EMPLOYEE upon the occurrence of the events described in such
subparagraphs:
(i) TERMINATION FOR JUST CAUSE. In the event that the
EMPLOYERS terminate the employment of the EMPLOYEE during the
TERM because of the EMPLOYEE's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure or refusal to
perform the
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duties and responsibilities assigned in this AGREEMENT,
willful violation of any law, rule, regulation or final
cease-and-desist order (other than traffic violations or
similar offenses), conviction of a felony or for fraud or
embezzlement, or material breach of any provision of this
AGREEMENT (hereinafter collectively referred to as "JUST
CAUSE"), the EMPLOYEE shall not receive, and shall have no
right to receive, any compensation or other benefits for any
period after such termination.
(ii) TERMINATION AFTER CHANGE OF CONTROL. In the event that,
before the expiration of the TERM and in connection with or
within one year after a CHANGE OF CONTROL (as defined
hereinafter) of either one of the EMPLOYERS, (A) the
employment of the EMPLOYEE is terminated for any reason other
than JUST CAUSE before the expiration of the TERM, (B) the
present capacity or circumstances in which the EMPLOYEE is
employed are materially changed before the expiration of the
TERM, or (C) the EMPLOYEE's responsibilities, authority,
compensation or other benefits provided under this AGREEMENT
are materially reduced, then the following shall occur:
(I) The EMPLOYERS shall promptly pay to
the EMPLOYEE or to his beneficiaries, dependents or
estate an amount equal to the sum of (1) the amount
of compensation to which the EMPLOYEE would be
entitled for the remainder of the TERM under this
AGREEMENT, plus (2) the difference between (x) the
product of three, multiplied by the greater of the
annual salary set forth in Section 3(a) of this
AGREEMENT or the annual salary payable to the
EMPLOYEE as a result of any ANNUAL REVIEW, less (xx)
the amount paid to the EMPLOYEE pursuant to clause
(1) of this subparagraph (I);
(II) The EMPLOYEE, his dependents,
beneficiaries and estate shall continue to be covered
under all BENEFIT PLANS of the EMPLOYERS at the
EMPLOYERS' expense as if the EMPLOYEE were still
employed under this AGREEMENT until the earliest of
the expiration of the TERM or the date on which the
EMPLOYEE is included in another employer's benefit
plans as a full-time employee; and
(III) The EMPLOYEE shall not be required
to mitigate the amount of any payment provided for in
this AGREEMENT by seeking other employment or
otherwise, nor shall any amounts received from other
employment or otherwise by the EMPLOYEE offset in any
manner the obligations of the EMPLOYERS hereunder,
except as specifically stated in subparagraph (II).
In the event that payments pursuant to this subsection (ii)
would result in the imposition of a penalty tax pursuant to
Section 280G(b)(3) of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder
(hereinafter collectively referred to as "SECTION 280G"), such
payments shall be
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reduced to the maximum amount which may be paid under
SECTION 280G without exceeding such limits. Payments pursuant
to this subsection also may not exceed the limit set forth in
Regulatory Bulletin 27a of the Office of Thrift Supervision.
(iii) TERMINATION WITHOUT CHANGE OF CONTROL. In the event that
the employment of the EMPLOYEE is terminated before the
expiration of the TERM other than (A) for JUST CAUSE or (B) in
connection with or within one year after a CHANGE OF CONTROL,
the EMPLOYERS shall be obligated to continue (1) to pay on a
monthly basis to the EMPLOYEE, his designated beneficiaries or
his estate, his annual salary provided pursuant to Section
3(a) or (b) of this AGREEMENT until the expiration of the TERM
and (2) to provide to the EMPLOYEE, at the EMPLOYERS' expense,
health, life, disability, and other benefits substantially
equal to those being provided to the EMPLOYEE at the date of
termination of his employment until the earliest to occur of
the expiration of the TERM or the date the EMPLOYEE becomes
employed full-time by another employer. In the event that
payments pursuant to this subsection (iii) would result in the
imposition of a penalty tax pursuant to SECTION 280G, such
payments shall be reduced to the maximum amount which may be
paid under SECTION 280G without exceeding those limits.
Payments pursuant to this subsection also may not exceed the
limit set forth in Regulatory Bulletin 27a of the Office of
Thrift Supervision.
(b) DEATH OF THE EMPLOYEE. The TERM automatically terminates upon the
death of the EMPLOYEE. In the event of such death, the EMPLOYEE's estate shall
be entitled to receive the compensation due the EMPLOYEE through the last day of
the calendar month in which the death occurred, except as otherwise specified
herein.
(c)"GOLDEN PARACHUTE" PROVISION. Any payments made to the EMPLOYEE
pursuant to this AGREEMENT or otherwise are subject to and conditioned
upon their compliance with 12 U.S.C. Sec. 1828(k) and any regulations
promulgated thereunder.
(d) DEFINITION OF "CHANGE OF CONTROL". A "CHANGE OF CONTROL" shall be
deemed to have occurred in the event that, at any time during the EMPLOYMENT
TERM, either any person or entity obtains "conclusive control" of the EMPLOYERS
within the meaning of 12 C.F.R. Sec. 574.4(a), or any person or entity obtains
"rebuttable control" within the meaning of 12 C.F.R. Sec. 574.4(b) and has not
rebuttable control in accordance with 12 C.F.R. Sec. 574.4(c).
SPECIAL REGULATORY EVENTS. Notwithstanding Section 4 of this
AGREEMENT, the obligations of the EMPLOYERS to the EMPLOYEE shall be as follows
in the event of the following circumstances:
If the EMPLOYEE is suspended and/or temporarily prohibited from
participating in the conduct of Peoples Federal's affairs by a notice served
under section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act
(hereinafter referred to as the "FDIA"), the EMPLOYERS'
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24
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 EMPLOYERS may, in their discretion, pay the EMPLOYEE
all or part of the compensation withheld while the obligations in this AGREEMENT
were suspended and reinstate, in whole or in part, any of the obligations that
were suspended.
If the EMPLOYEE is removed and/or permanently prohibited from
participating in the conduct of Peoples Federal's or PFC's affairs by an order
issued under Section 8(e)(4) or (g)(1) of the FDIA, all obligations of the
EMPLOYERS under this AGREEMENT shall terminate as of the effective date of such
order; provided, however, that vested rights of the EMPLOYEE shall not be
affected by such termination.
If Peoples Federal 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 EMPLOYEE shall not be
affected.
All obligations under this AGREEMENT shall be terminated,
except to the extent of a determination that the continuation of this AGREEMENT
is necessary for the continued operation of the EMPLOYERS, (i) by the Director
of the Office of Thrift Supervision (hereinafter referred to as the "OTS"), or
his or her designee at the time that the Federal Deposit Insurance Corporation
or the Resolution Trust Corporation enters into an agreement to provide
assistance to or on behalf of Peoples Federal under the authority contained in
Section 13(c) of the FDIA or (ii) by the Director of the OTS, or his or her
designee, at any time the Director of the OTS, or his or her designee, approves
a supervisory merger to resolve problems related to the operation of Peoples
Federal or when Peoples Federal is determined by the Director of the OTS to be
in an unsafe or unsound condition. No vested rights of the EMPLOYEE shall be
affected by any such action.
CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in this
AGREEMENT shall preclude the EMPLOYERS from consolidating with, merging into, or
transferring all, or substantially all, of their assets to another corporation
that assumes all of the EMPLOYERS' obligations and undertakings hereunder. Upon
such a consolidation, merger or transfer of assets, the term "EMPLOYERS," as
used herein, shall mean such other corporation or entity, and this AGREEMENT
shall continue in full force and effect.
CONFIDENTIAL INFORMATION. The EMPLOYEE acknowledges that
during his employment he will learn and have access to confidential information
regarding the EMPLOYERS and their customers and businesses. The EMPLOYEE agrees
and covenants not to disclose or use for his own benefit, or the benefit of any
other person or entity, any confidential information, unless or until the
EMPLOYERS consent to such disclosure or use or such information becomes common
knowledge in the industry or is otherwise legally in the public domain. The
EMPLOYEE shall not knowingly disclose or reveal to any unauthorized person any
confidential information relating to the EMPLOYERS, their subsidiaries or
affiliates, or to any of the businesses operated by them, and the EMPLOYEE
confirms that such information constitutes the exclusive property of the
EMPLOYERS. The EMPLOYEE shall not otherwise knowingly
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act or conduct himself (a) to the material detriment of the EMPLOYERS, their
subsidiaries, or affiliates, or (b) in a manner which is inimical or contrary
to the interests of the EMPLOYERS.
NONASSIGNABILITY. Neither this AGREEMENT nor any right or
interest hereunder shall be assignable by the EMPLOYEE, his beneficiaries, or
legal representatives without the EMPLOYERS' prior written consent; provided,
however, that nothing in this Section 8 shall preclude (a) the EMPLOYEE from
designating a beneficiary to receive any benefits payable hereunder upon his
death, or (b) the executors, administrators, or other legal representatives of
the EMPLOYEE or his estate from assigning any rights hereunder to the person or
persons entitled thereto.
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.
BINDING AGREEMENT. This AGREEMENT shall be binding upon, and
inure to the benefit of, the EMPLOYEE and the EMPLOYERS and their respective
permitted successors and assigns.
AMENDMENT OF AGREEMENT. This AGREEMENT may not be modified or
amended, except by an instrument in writing signed by the parties hereto.
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.
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 EMPLOYERS (or any predecessor thereof) and the EMPLOYEE
shall be deemed reinstated to the full extent permitted by law, as if this
AGREEMENT had not been executed.
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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.
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 this State of Ohio, except to the
extent that federal law is governing.
EFFECT OF PRIOR AGREEMENTS. This AGREEMENT contains the entire
understanding between the parties hereto and supercedes any prior employment
agreement between the EMPLOYERS or any predecessor of the EMPLOYERS and the
EMPLOYEE.
NOTICES. Any notice or other communication required or
permitted pursuant to this AGREEMENT shall be deemed delivered if such notice or
communication is in writing and is delivered personally or by facsimile
transmission or is deposited in the United States mail, postage prepaid,
addressed as follows:
If to PFC and/or Peoples Federal:
Peoples Federal Savings and Loan Association
of Massillon
211 Lincoln Way East
Massillon, Ohio 44646
Attention: President
With copies to:
John C. Vorys, Esq.
Vorys, Sater, Seymour and Pease
Atrium Two, Suite 2100
221 East Fourth Street
Cincinnati, Ohio 45201-0236
If to the EMPLOYEE to:
James R. Rinehart
2297 Magnolia Road N.W.
Magnolia, Ohio 44643
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IN WITNESS WHEREOF, the EMPLOYERS have caused this AGREEMENT to be
executed by its duly authorized officer, and the EMPLOYEE has signed this
AGREEMENT, each as of the day and year first above written.
Attest: PEOPLES FINANCIAL CORPORATION
- ---------------------------- By
------------------------------
Paul von Gunten
its President
Attest: PEOPLES FEDERAL SAVINGS AND LOAN
ASSOCIATION OF MASSILLON
- ---------------------------- By
------------------------------
Paul von Gunten
its President
Attest:
- ---------------------------- --------------------------------
James R. Rinehart
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EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into this ___ day of ___________, 1996, by Peoples Federal
Savings and Loan Association of Massillon a savings and loan association
chartered under the laws of the United States (hereinafter referred to as the
"EMPLOYER"), and Cindy A. Wagner, an individual (hereinafter referred to as the
"EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of the EMPLOYER;
WHEREAS, as a result of the skill, knowledge and experience of the
EMPLOYEE, the Board of Directors of the EMPLOYER desire to retain the services
of the EMPLOYEE as the Assistant Treasurer of the EMPLOYER;
WHEREAS, the EMPLOYEE desires to continue to serve as the Assistant
Treasurer of the EMPLOYER; and
WHEREAS, the EMPLOYEE and the EMPLOYER desire to enter into this
Agreement to set forth the terms and conditions of the employment relationship
between the EMPLOYER and the EMPLOYEE;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the EMPLOYER and the EMPLOYEE hereby agree as follows:
I. EMPLOYMENT AND TERM. Upon the terms and subject to the conditions of
this AGREEMENT, the EMPLOYER hereby employs the EMPLOYEE, and the EMPLOYEE
hereby accepts employment, as the Assistant Treasurer of the EMPLOYER. The term
of this AGREEMENT shall commence on the date hereof and shall end on
_______________, 1999 (hereinafter referred to as the "TERM"). In January of
each year, the Board of Directors of the EMPLOYER shall review the EMPLOYEE's
performance and record the results of such review in the minutes of the Board of
Directors. This AGREEMENT shall not be renewed or extended without a taking of
affirmative action by the Board of Directors of the EMPLOYER to cause such
renewal or extension.
II. DUTIES OF EMPLOYEE.
A. GENERAL DUTIES AND RESPONSIBILITIES. As the Assistant Treasurer of
the EMPLOYER, the EMPLOYEE shall perform the duties and responsibilities
customary for such offices to the best of her ability and in accordance with the
policies established by the Board of
29
Directors of the EMPLOYER and all applicable laws and regulations. The EMPLOYEE
shall perform such other duties not inconsistent with her position as may be
assigned to her from time to time by the Board of Directors of the EMPLOYER;
provided, however, that the EMPLOYER shall employ the EMPLOYEE during the TERM
in a senior executive capacity without material diminishment of the importance
or prestige of her position.
B. DEVOTION OF ENTIRE TIME TO THE BUSINESS OF THE EMPLOYER. The
EMPLOYEE shall devote her entire productive time, ability and attention during
normal business hours throughout the TERM to the faithful performance of her
duties under this AGREEMENT. The EMPLOYEE shall not directly or indirectly
render any services of a business, commercial or professional nature to any
person or organization without the prior written consent of the Board of
Directors of the EMPLOYER; provided, however, that the EMPLOYEE shall not be
precluded from (i) vacations and other leave time in accordance with Section
3(d) hereof; (ii) reasonable participation in community, civic, charitable or
similar organizations; or (iii) the pursuit of personal investments which do not
interfere or conflict with the performance of the EMPLOYEE's duties to the
EMPLOYER.
III. COMPENSATION, BENEFITS AND REIMBURSEMENTS.
A. SALARY. The EMPLOYEE shall receive during the TERM an annual salary
payable in equal installments not less often than monthly. The amount of such
annual salary shall be $35,640 until changed by the Board of Directors of the
EMPLOYER in accordance with Section 3(b) of this AGREEMENT.
B. ANNUAL SALARY REVIEW. In January of each year throughout the TERM,
the annual salary of the EMPLOYEE shall be reviewed by the Board of Directors of
the EMPLOYER and shall be set, effective January 1, at an amount not less than
$35,640, based upon the EMPLOYEE's individual performance and the overall
profitability and financial condition of the EMPLOYER (hereinafter referred to
as the "ANNUAL REVIEW"). The results of the ANNUAL REVIEW shall be reflected in
the minutes of the Board of Directors of the EMPLOYER.
C. EMPLOYEE BENEFIT PROGRAM. (i) During the TERM, the EMPLOYEE shall be
entitled to participate in all formally established employee benefit, bonus,
pension and profit-sharing plans and similar programs that are maintained by the
EMPLOYER from time to time, including programs in respect of group health,
disability or life insurance, and all employee benefit plans or programs
hereafter adopted in writing by the Board of Directors of the EMPLOYER, for
which senior management personnel are eligible, including any employee stock
ownership plan, stock option plan or other stock benefit plan (hereinafter
collectively referred to as the "BENEFIT PLANS"). Notwithstanding the foregoing
sentence, the EMPLOYER may discontinue or terminate at any time any such BENEFIT
PLANS, now existing or hereafter adopted, to the extent permitted by the terms
of such plans and shall not be required to compensate the EMPLOYEE for such
discontinuance or termination.
(ii) After the expiration of the TERM or the termination of
the employment of the employee for any reason other than JUST CAUSE (as
defined hereinafter), the
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EMPLOYER shall provide a group health insurance program in which the EMPLOYEE
and her spouse will be eligible to participate and which shall provide
substantially the same benefits as are available to retired employees of the
EMPLOYER on the date of this AGREEMENT until both the EMPLOYEE and her spouse
become 65 years of age; provided, however that all premiums for such program
shall be paid by the EMPLOYEE and/or her spouse after the EMPLOYEE's retirement;
provided further, however, that the EMPLOYEE may only participate in such
program for as long as the EMPLOYER make available an employee group health
insurance program which permits the EMPLOYER to make coverage available for
retirees.
D. VACATION AND SICK LEAVE. The EMPLOYEE shall be entitled, without
loss of pay, to be absent voluntarily from the performance of her duties under
this AGREEMENT, subject to the following conditions:
1. The EMPLOYEE shall be entitled to an annual vacation in accordance
with the policies periodically established by the Board of Directors of the
EMPLOYER for senior management officials of the EMPLOYER;
2. Vacation time shall be scheduled by the EMPLOYEE in a reasonable
manner subject to approval by the EMPLOYER.
3. The EMPLOYEE shall be entitled to annual sick leave as established
by the Board of Directors of the EMPLOYER for senior management officials
of the EMPLOYER. Upon termination of employment, the EMPLOYEE shall not be
entitled to receive any additional compensation from the EMPLOYER for
unused sick leave.
IV. Termination of Employment.
------------------------------
A. GENERAL. In addition to the termination of the employment of the
EMPLOYEE upon the expiration of the TERM, the employment of the EMPLOYEE shall
terminate at any other time during the TERM upon the delivery by the EMPLOYER of
written notice of employment termination to the EMPLOYEE. Without limiting the
generality of the foregoing sentence, the following subparagraphs (i), (ii) and
(iii) of this Section 4(a) shall govern the obligations of the EMPLOYER to the
EMPLOYEE upon the occurrence of the events described in such subparagraphs:
1. Termination for JUST CAUSE. In the event
that the EMPLOYER terminates the employment of the EMPLOYEE
during the TERM because of the EMPLOYEE's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure or refusal to
perform the duties and responsibilities assigned in this
AGREEMENT, willful violation of any law, rule, regulation or
final cease-and-desist order (other than traffic violations or
similar offenses), conviction of a felony or for fraud or
embezzlement, or material breach of any provision of this
AGREEMENT (hereinafter collectively referred to
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31
as "JUST CAUSE"), the EMPLOYEE shall not receive, and shall
have no right to receive, any compensation or other benefits for any
period after such termination.
2. Termination after CHANGE OF CONTROL. In the event that,
before the expiration of the TERM and in connection with or within one
year after a CHANGE OF CONTROL (as defined hereinafter) of the
EMPLOYER, (A) the employment of the EMPLOYEE is terminated for any
reason other than JUST CAUSE before the expiration of the TERM, (B)
the present capacity or circumstances in which the EMPLOYEE is
employed are materially changed before the expiration of the TERM, or
(C) the EMPLOYEE's responsibilities, authority, compensation or other
benefits provided under this AGREEMENT are materially reduced, then
the following shall occur:
a. The EMPLOYER shall promptly pay to the EMPLOYEE
or to her beneficiaries, dependents or estate an amount
equal to the sum of (1) the amount of compensation to which
the EMPLOYEE would be entitled for the remainder of the TERM
under this AGREEMENT, plus (2) the difference between (x)
the product of three, multiplied by the greater of the
annual salary set forth in Section 3(a) of this AGREEMENT or
the annual salary payable to the EMPLOYEE as a result of any
ANNUAL REVIEW, less (xx) the amount paid to the EMPLOYEE
pursuant to clause (1) of this subparagraph (I);
b. The EMPLOYEE, her dependents, beneficiaries and
estate shall continue to be covered under all BENEFIT PLANS
of the EMPLOYER at the EMPLOYER'S expense as if the EMPLOYEE
were still employed under this AGREEMENT until the earliest
of the expiration of the TERM or the date on which the
EMPLOYEE is included in another employer's benefit plans as
a full-time employee; and
c. The EMPLOYEE shall not be required to mitigate
the amount of any payment provided for in this AGREEMENT by
seeking other employment or otherwise, nor shall any amounts
received from other employment or otherwise by the EMPLOYEE
offset in any manner the obligations of the EMPLOYER
hereunder, except as specifically stated in subparagraph
(II).
In the event that payments pursuant to this subsection (ii) would
result in the imposition of a penalty tax pursuant to Section
280G(b)(3) of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder (hereinafter collectively referred
to as "SECTION 280G"), such payments shall be reduced to the maximum
amount which may be paid under SECTION 280G without exceeding such
limits. Payments pursuant to this subsection also may not exceed the
limit set forth in Regulatory Bulletin 27a of the Office of Thrift
Supervision.
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3. TERMINATION WITHOUT CHANGE OF CONTROL. In the event that
the employment of the EMPLOYEE is terminated before the expiration of
the TERM other than (A) for JUST CAUSE or (B) in connection with or
within one year after a CHANGE OF CONTROL, the EMPLOYER shall be
obligated to continue (1) to pay on a monthly basis to the EMPLOYEE,
her designated beneficiaries or her estate, her annual salary provided
pursuant to Section 3(a) or (b) of this AGREEMENT until the expiration
of the TERM and (2) to provide to the EMPLOYEE, at the EMPLOYER'S
expense, health, life, disability, and other benefits substantially
equal to those being provided to the EMPLOYEE at the date of
termination of her employment until the earliest to occur of the
expiration of the TERM or the date the EMPLOYEE becomes employed
full-time by another employer. In the event that payments pursuant to
this subsection (iii) would result in the imposition of a penalty tax
pursuant to SECTION 280G, such payments shall be reduced to the
maximum amount which may be paid under SECTION 280G without exceeding
those limits. Payments pursuant to this subsection also may not exceed
the limit set forth in Regulatory Bulletin 27a of the Office of Thrift
Supervision.
B. DEATH OF THE EMPLOYEE. The TERM automatically terminates
upon the death of the EMPLOYEE. In the event of such death, the
EMPLOYEE's estate shall be entitled to receive the compensation due
the EMPLOYEE through the last day of the calendar month in which the
death occurred, except as otherwise specified herein.
C. "GOLDEN PARACHUTE" PROVISION. Any payments made to the
EMPLOYEE pursuant to this AGREEMENT or otherwise are subject to and
conditioned upon their compliance with 12 U.S.C. Sec. 1828(k) and any
regulations promulgated thereunder.
D. DEFINITION OF "CHANGE OF CONTROL". A "CHANGE OF CONTROL"
shall be deemed to have occurred in the event that, at any time
during the EMPLOYMENT TERM, either any person or entity obtains
"conclusive control" of the EMPLOYER within the meaning of 12 C.F.R.
Sec. 574.4(a), or any person or entity obtains "rebuttable control"
within the meaning of 12 C.F.R. Sec. 574.4(b) and has not rebuttable
control in accordance with 12 C.F.R. Sec. 574.4(c).
V. SPECIAL REGULATORY EVENTS. Notwithstanding Section 4 of this
AGREEMENT, the obligations of the EMPLOYER to the EMPLOYEE shall be as follows
in the event of the following circumstances:
A. If the EMPLOYEE is suspended and/or temporarily
prohibited from participating in the conduct of the EMPLOYER'S affairs
by a notice served under section 8(e)(3) or (g)(1) of the Federal
Deposit Insurance Act (hereinafter referred to as the "FDIA"), the
EMPLOYER'S 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 EMPLOYER
may, in its discretion, pay the EMPLOYEE all or part of the
compensation withheld while the obligations in this
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33
AGREEMENT were suspended and reinstate, in whole or in part,
any of the obligations that were suspended.
B. If the EMPLOYEE is removed and/or permanently prohibited
from participating in the conduct of the EMPLOYER'S affairs by an
order issued under Section 8(e)(4) or (g)(1) of the FDIA, all
obligations of the EMPLOYER under this AGREEMENT shall terminate as of
the effective date of such order; provided, however, that vested
rights of the EMPLOYEE shall not be affected by such termination.
C. If the EMPLOYER 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 EMPLOYEE shall not be affected.
D. All obligations under this AGREEMENT shall be terminated,
except to the extent of a determination that the continuation of this
AGREEMENT is necessary for the continued operation of the EMPLOYER,
(i) by the Director of the Office of Thrift Supervision (hereinafter
referred to as the "OTS"), or her or her designee at the time that the
Federal Deposit Insurance Corporation or the Resolution Trust
Corporation enters into an agreement to provide assistance to or on
behalf of Peoples Federal under the authority contained in Section
13(c) of the FDIA or (ii) by the Director of the OTS, or her or her
designee, at any time the Director of the OTS, or her or her designee,
approves a supervisory merger to resolve problems related to the
operation of the EMPLOYER is determined by the Director of the OTS to
be in an unsafe or unsound condition. No vested rights of the EMPLOYEE
shall be affected by any such action.
VI. CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in this AGREEMENT
shall preclude the EMPLOYER from consolidating with, merging into, or
transferring all, or substantially all, of its assets to another corporation
that assumes all of the EMPLOYER'S obligations and undertakings hereunder. Upon
such a consolidation, merger or transfer of assets, the term "EMPLOYER," as used
herein, shall mean such other corporation or entity, and this AGREEMENT shall
continue in full force and effect.
VII. CONFIDENTIAL INFORMATION. The EMPLOYEE acknowledges that during
her employment she will learn and have access to confidential information
regarding the EMPLOYER and its customers and businesses. The EMPLOYEE agrees and
covenants not to disclose or use for her own benefit, or the benefit of any
other person or entity, any confidential information, unless or until the
EMPLOYER consents to such disclosure or use or such information becomes common
knowledge in the industry or is otherwise legally in the public domain. The
EMPLOYEE shall not knowingly disclose or reveal to any unauthorized person any
confidential information relating to the EMPLOYER, its subsidiaries or
affiliates, or to any of the businesses operated by it, and the EMPLOYEE
confirms that such information constitutes the exclusive property of the
EMPLOYER. The EMPLOYEE shall not otherwise knowingly act or conduct herself (a)
to the material detriment of the EMPLOYER, its subsidiaries, or affiliates, or
(b) in a manner which is inimical or contrary to the interests of the EMPLOYER.
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34
VII. NONASSIGNABILITY. Neither this AGREEMENT nor any right or interest
hereunder shall be assignable by the EMPLOYEE, her beneficiaries, or legal
representatives without the EMPLOYER'S prior written consent; provided, however,
that nothing in this Section 8 shall preclude (a) the EMPLOYEE from designating
a beneficiary to receive any benefits payable hereunder upon her death, or (b)
the executors, administrators, or other legal representatives of the EMPLOYEE or
her estate from assigning any rights hereunder to the person or persons entitled
thereto.
IX. 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.
X. BINDING AGREEMENT. This AGREEMENT shall be binding upon, and inure
to the benefit of, the EMPLOYEE and the EMPLOYER and its respective permitted
successors and assigns.
XI. AMENDMENT OF AGREEMENT. This AGREEMENT may not be modified or
amended, except by an instrument in writing signed by the parties hereto.
XII. WAIVER. No term or condition of three 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.
XIII. 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 EMPLOYER (or any predecessor thereof) and the EMPLOYEE shall be
deemed reinstated to the full extent permitted by law, as if this AGREEMENT had
not been executed.
XIV. 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.
XV. 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 three State of Ohio, except to the extent that
federal law is governing.
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XVI. EFFECT OF PRIOR AGREEMENTS. This AGREEMENT contains the entire
understanding between the parties hereto and supercedes any prior employment
agreement between the EMPLOYER or any predecessor of the EMPLOYER and the
EMPLOYEE.
XVII. NOTICES. Any notice or other communication required or permitted
pursuant to three AGREEMENT shall be deemed delivered if such notice or
communication is in writing and is delivered personally or by facsimile
transmission or is deposited in the United States mail, postage prepaid,
addressed as follows:
If to Peoples Federal Savings and Loan Association of Massillon:
Peoples Federal Savings and Loan Association of Massillon
211 Lincoln Way East
Massillon, Ohio 44646
Attention: President
With copies to:
John C. Vorys, Esq.
Vorys, Sater, Seymour and Pease
Atrium Two, Suite 2100
221 East Fourth Street
Cincinnati, Ohio 45201-0236
If to the EMPLOYEE to:
Cindy A. Wagner
254 Gail Avenue N.E.
Massillon, Ohio 44646
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36
IN WITNESS WHEREOF, the EMPLOYER has caused this AGREEMENT to be
executed by its duly authorized officer, and the EMPLOYEE has signed this
AGREEMENT, each as of the day and year first above written.
Attest: PEOPLES FEDERAL SAVINGS AND LOAN
ASSOCIATION OF MASSILLON
- ----------------------- By
------------------------------
Paul von Gunten
its President
Attest:
- ----------------------- --------------------------------
Cindy A. Wagner
9