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MILTON FEDERAL FINANCIAL CORPORATION
EXHIBIT NO. 10.5
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this "AGREEMENT"),
entered into this 1st day of May, 1999, by and between Milton Federal Financial
Corporation, a savings and loan holding company incorporated under Ohio law
(hereinafter referred to as "MFFC"), Milton Federal Savings Bank, a savings bank
incorporated under Ohio law and a wholly-owned subsidiary MFFC (hereinafter
referred to as "MILTON FEDERAL"), and Dennis L. Piper, an individual
(hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of MFFC and MILTON 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 Senior Vice President/Lending of MILTON FEDERAL;
WHEREAS, the EMPLOYEE desires to continue to serve as the Senior Vice
President/Lending of MILTON FEDERAL; 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:
Section 1. 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 Senior Vice President/Lending of MILTON FEDERAL. The term of
this AGREEMENT shall commence on the date hereof and shall end on May 1, 2002
(hereinafter referred to as the "TERM"). In December 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.
Section 2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. As the Senior Vice
President/Lending of MILTON FEDERAL, 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.
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(b) 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 Board 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(e) 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.
Section 3. 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 $80,000 until changed by the Board of Directors of the
EMPLOYERS in accordance with Section 3(b) of this AGREEMENT.
(b) Annual Salary Review. In December 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 of the following year, at
an amount not less than $80,000, 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.
(c) Expenses. In addition to any compensation received under Section 3(a)
or (b) of this AGREEMENT, the EMPLOYERS shall pay or reimburse the EMPLOYEE for
all reasonable travel, entertainment and miscellaneous expenses incurred in
connection with the performance of his duties under this AGREEMENT. Such
reimbursement shall be made in accordance with the existing policies and
procedures of the EMPLOYERS pertaining to reimbursement of expenses to senior
management officials.
(d) 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 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 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
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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.
(e) 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:
(i) 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, the duration of which shall not be less than five weeks
each calendar year;
(ii) Vacation time shall be scheduled by the EMPLOYEE in a
reasonable manner and shall be subject to approval by the Boards of
Directors of the EMPLOYERS. The EMPLOYEE shall not be entitled to
receive any additional compensation from the EMPLOYERS in the event
of his failure to take the full allotment of vacation time in any
calendar year; provided, however, that a maximum of one week of
unused vacation time in any calendar year may be carried over into
any succeeding calendar year; and
(iii) 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. In the event that any sick
leave time shall not have been used during any calendar year, such
leave shall accrue to subsequent calendar years, only to the extent
authorized by the Boards of Directors 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.
Section 4. 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 dishonest, 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 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
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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 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 of 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.
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(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. Paragraph 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. Paragraph 574.4(a), or any person or entity
obtains "rebuttable control" within the meaning of 12 C.F.R. Paragraph 574.4(b)
and has not rebutted control in accordance with 12 C.F.R.
Paragraph 574.4(c).
Section 5. 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:
(a) If the EMPLOYEE is suspended and/or temporarily prohibited from
participating in the conduct of MFFC's or MILTON 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' 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.
(b) If the EMPLOYEE is removed and/or permanently prohibited from
participating in the conduct of MFFC's or MILTON FEDERAL'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.
(c) If MILTON 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.
(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 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 MILTON 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 MILTON FEDERAL or when
MILTON 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.
Section 6. 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.
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Section 7. 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 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.
Section 8. 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.
Section 9. 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.
Section 10. 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.
Section 11. Amendment of Agreement.
This AGREEMENT may not be modified or amended, except by an instrument in
writing signed by the parties hereto.
Section 12. 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.
Section 13. 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
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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.
Section 14. 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.
Section 15. 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.
Section 16. 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
predecessors of the EMPLOYERS and the EMPLOYEE.
Section 17. 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 MFFC and/or MILTON FEDERAL:
Milton Federal Savings Bank
25 Lowry Drive
West Milton, OH 45383
With copies to:
John C. Vorys, Esq.
Vorys, Sater, Seymour and Pease
Atrium Two, Suite 2100
221 East Fourth Street
Cincinnati, OH 45201-0236
If to the EMPLOYEE to:
Mr. Dennis L. Piper
1214 Yorkshire Court
Celina, OH 45822
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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: MILTON FEDERAL FINANCIAL CORPORATION
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ATTEST: MILTON FEDERAL SAVINGS BANK
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