EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into as of the 24th day of May, 2000, by and between
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 Paul von Gunten, 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 Boards of Directors of the EMPLOYER desires to retain the services
of the EMPLOYEE as the President and Chief Executive Officer of the EMPLOYER;
WHEREAS, the EMPLOYEE desires to continue to serve as the President and
Chief Executive Officer 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:
1. 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 President and Chief Executive Officer of the
EMPLOYER. The term of this AGREEMENT shall commence on the date hereof and shall
end on January 31, 2001 (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.
2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. As the President and Chief
Executive Officer of the EMPLOYER, the EMPLOYEE shall perform the duties and
responsibilities customary for such office to the best of his ability and in
accordance with the policies established by the Board of Directors of the
EMPLOYER 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 Board of Directors of the EMPLOYER; provided, however,
that the EMPLOYER shall employ the EMPLOYEE during the TERM in a senior
management 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 EMPLOYER. 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 and his duties for affiliates of the EMPLOYER. 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.
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 $112,308 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
$112,308, 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. 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.
(d) 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 EMPLOYER
for senior management officials of the EMPLOYER;
(ii) Vacation time shall be scheduled by the EMPLOYEE in a
reasonable manner subject to approval by the EMPLOYER; and
(iii) 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.
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 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:
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(i) 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 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 in connection with CHANGE OF CONTROL.
(A) In the event that, before the expiration of the TERM and
within six months before or within one year after a CHANGE OF CONTROL
(as defined hereinafter) of the EMPLOYER, (I) the employment of the
EMPLOYEE is terminated for any reason other than JUST CAUSE, (II) the
present capacity or circumstances in which the EMPLOYEE is employed
are materially changed, or (III) 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 his beneficiaries, dependents or estate an amount
equal to two times the greater of (1) the annual salary set
forth in Section 3(a) of this AGREEMENT or (2) the annual
salary payable to the EMPLOYEE as a result of any ANNUAL
REVIEW; and
(b) 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.
(B) The EMPLOYEE may voluntarily terminate his employment
pursuant to this AGREEMENT within twelve months following a CHANGE OF
CONTROL and shall be entitled to compensation as set forth in Section
4(a)(ii)(A) of this AGREEMENT in the event that:
(I) the present capacity or circumstances in which
the EMPLOYEE is employed are materially changed (including,
without limitation, a material reduction in responsibilities
or authority, or the assignment of duties or
responsibilities substantially inconsistent with those
normally associated with the position of President and Chief
Executive Officer);
(II) the EMPLOYEE is no longer the President and
Chief Executive Officer of the EMPLOYER;
(III) the EMPLOYEE is required to move his personal
residence, or perform his principal executive functions,
more than thirty-five (35) miles from his primary office as
of the date of the commencement of the TERM of this
AGREEMENT; or
(IV) the EMPLOYER otherwise breaches this AGREEMENT
in any material respect.
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 that 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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(iii) Termination Without JUST CAUSE or 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) within
six months before or within one year after a CHANGE OF CONTROL, the
following shall occur:
(I) The EMPLOYER shall promptly pay to the EMPLOYEE
or to his beneficiaries, dependents or estate an amount
equal to the greater of (a) the annual salary set forth in
Section 3(a) of this AGREEMENT or (b) the annual salary
payable to the EMPLOYEE as a result of any ANNUAL REVIEW;
(II) The EMPLOYEE, his dependents, beneficiaries and
estate shall continue to be covered under the health benefit
plan of the EMPLOYER at the EMPLOYER'S expense as if the
EMPLOYEE were still employed under this AGREEMENT until the
earliest of one year after the termination of the EMPLOYEE's
employment or the date on which the EMPLOYEE is included in
another employer's health benefit plan as a full-time
employee; provided, however, that if EMPLOYER is unable,
pursuant to the terms of its health insurance plan, to
provide such coverage to the EMPLOYEE after termination, the
EMPLOYER shall pay to the EMPLOYEE an amount sufficient for
the EMPLOYEE to obtain substantially equivalent health
insurance from another source; 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 EMPLOYER
hereunder.
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 that 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.ss.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. ss.574.4(a), or any person or entity obtains
"rebuttable control" within the meaning of 12 C.F.R. ss.574.4(b) and has not
rebutted control in accordance with 12 C.F.R. ss.574.4(c).
5. 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
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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 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 his or her
designee at the time that the Federal Deposit Insurance Corporation enters into
an agreement to provide assistance to or on behalf of the EMPLOYER 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 the EMPLOYER or when 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.
6. 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.
7. Confidential Information. The EMPLOYEE acknowledges that during his
employment he 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 his 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 them, and the EMPLOYEE confirms that such
information constitutes the exclusive property of the EMPLOYER. The EMPLOYEE
shall not otherwise knowingly act or conduct himself (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.
8. Nonassignability. Neither this AGREEMENT nor any right or interest
hereunder shall be assignable by the EMPLOYEE, his 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 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.
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.
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10. 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.
11. Amendment of AGREEMENT. This AGREEMENT may not be modified or
amended, except by an instrument in writing signed by the parties hereto.
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.
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 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.
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.
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.
16. Effect of Prior Agreements. This AGREEMENT contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement between the EMPLOYER or any predecessor o f the EMPLOYER and the
EMPLOYEE.
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 the EMPLOYER:
Peoples Federal Savings and Loan Association of Massillon
211 Lincoln Way East
Massillon, Ohio 44646
Attention: Secretary
With copies to:
Cynthia A. Shafer
Vorys, Sater, Seymour and Pease LLP
Atrium Two, Suite 2100
221 East Fourth Street
Cincinnati, Ohio 45201-0236
If to the EMPLOYEE to:
Paul von Gunten
1531 Merino Circle, N.E.
Massillon, Ohio 44646
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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
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its ____________________
Attest:
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Paul von Gunten
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