<PAGE> 1
FORM 10-QSB
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1996
-------------------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____________ to _______________
Commission File No. 0-18993
WINTON FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Ohio 31-1303854
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
5511 Cheviot Road
Cincinnati, Ohio 45247
(Address of principal (Zip Code)
executive office)
Registrant's telephone number, including area code: (513) 385-3880
Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports) and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
----- -----
As of August 1, 1996, the latest practicable date, 1,986,152 shares of the
registrant's common stock, no par value, were issued and outstanding.
Page 1 of 17 pages
<PAGE> 2
WINTON FINANCIAL CORPORATION AND SUBSIDIARY
INDEX
<TABLE>
<CAPTION>
Page
<S> <C> <C>
PART I - FINANCIAL INFORMATION
Consolidated Statements of Financial
Condition 3
Consolidated Statements of Earnings 5
Consolidated Statements of Cash Flows 6
Notes to Consolidated Financial Statements 8
Management's Discussion and Analysis of
Financial Condition and Results of
Operations 12
PART II - OTHER INFORMATION 16
SIGNATURES 17
</TABLE>
<PAGE> 3
WINTON FINANCIAL CORPORATION AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION
(In thousands, except share data)
<TABLE>
<CAPTION>
JUNE 30, SEPTEMBER 30,
ASSETS 1996 1995
(Restated)
<S> <C> <C>
Cash and due from banks $ 1,397 $ 1,230
Interest-bearing deposits in other
financial institutions 941 2,288
---------- ---------
Cash and cash equivalents 2,338 3,518
Investment securities available for sale - at market 2,614 3,073
Investment securities - at cost, (approximate
market value of $9,988 and $10,173 at June 30, 1996
and September 30, 1995) 9,981 10,079
Mortgage-backed securities available for sale - at market 2,996 1,482
Mortgage-backed securities - at cost (approximate
market value of $16,403 and $17,616 at June 30, 1996
and September 30, 1995) 16,783 17,960
Loans receivable - net 239,351 204,885
Loans held for sale - at lower of cost or market - 1,079
Office premises and equipment - net 2,705 2,776
Real estate acquired through foreclosure 523 343
Federal Home Loan Bank stock, at cost 2,277 2,163
Accrued interest receivable on loans 1,856 1,579
Accrued interest receivable on mortgage-backed securities 131 136
Accrued interest receivable on investments 204 186
Prepaid expenses and other assets 535 336
Intangible assets - net 539 585
---------- ----------
TOTAL ASSETS $ 282,833 $ 250,180
========= =========
</TABLE>
3
<PAGE> 4
<TABLE>
<CAPTION>
JUNE 30, SEPTEMBER 30,
LIABILITIES AND SHAREHOLDERS' EQUITY 1996 1995
(Restated)
<S> <C> <C>
Deposits $215,251 $197,905
Advances from Federal Home Loan Bank 44,390 29,830
Accounts payable on mortgage loans serviced for others 665 622
Advance payments by borrowers for taxes and insurance 76 289
Other liabilities 719 607
Accrued federal income taxes 118 91
Deferred federal income taxes 531 439
-------- --------
Total liabilities 261,750 229,783
Shareholders' equity
Preferred stock - 2,000,000 shares without par value
authorized; no shares issued and outstanding - -
Common stock - 5,000,000 shares of no par value
authorized; 1,986,152 and 1,984,523 shares outstanding
at June 30, 1996 and September 30, 1995 - -
Additional paid-in capital 6,452 6,444
Retained earnings - substantially restricted 14,427 13,775
Unrealized gain on securities designated as available for sale 204 178
-------- --------
Total shareholders' equity 21,083 20,397
-------- --------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $282,833 $250,180
======= =======
</TABLE>
4
<PAGE> 5
WINTON FINANCIAL CORPORATION AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF EARNINGS
(In thousands, except share data)
<TABLE>
<CAPTION>
NINE MONTHS ENDED THREE MONTHS ENDED
JUNE 30, JUNE 30,
1996 1995 1996 1995
(Restated) (Restated)
<S> <C> <C> <C> <C>
Interest income
Loans $13,780 $12,698 $4,800 $4,335
Mortgage-backed securities 892 756 296 268
Investments and interest-bearing deposits 774 612 246 240
------- ------ ------ ------
Total interest income 15,446 14,066 5,342 4,843
Interest expense
Deposits 7,861 6,537 2,684 2,423
Borrowings 1,359 1,489 508 443
------- ------- ------ ------
Total interest expense 9,220 8,026 3,192 2,866
------- ------- ----- -----
Net interest income 6,226 6,040 2,150 1,977
Provision for losses on loans 253 78 - 36
-------- ------- ------ ------
Net interest income after provision
for losses on loans 5,973 5,962 2,150 1,941
Other income
Gain on sale of mortgage loans 499 102 10 76
Gain on sale of investment and mortgage-backed
securities designated as available for sale 9 47 - 27
Gain on sale of real estate acquired through
foreclosure - 5 - 5
Other 295 207 112 79
------- ------ ------ -------
Total other income 803 361 122 187
General, administrative and other expense
Employee compensation and benefits 1,955 2,045 640 666
Occupancy and equipment 880 854 296 284
Franchise taxes 190 177 66 57
Federal deposit insurance premiums 351 359 118 121
Amortization of intangible assets 46 24 15 10
Advertising 103 106 33 37
Other 651 596 208 163
Merger related expenses 615 - - -
-------- ------- ------ ------
Total general, administrative and other expense 4,791 4,161 1,376 1,338
------ ------ ----- -----
Earnings before income taxes 1,985 2,162 896 790
Federal income taxes
Current 650 610 223 310
Deferred 77 113 81 (47)
--------- -------- ------ ------
Total federal income taxes 727 723 304 263
-------- -------- ------ ------
NET EARNINGS $ 1,258 $ 1,439 $ 592 $ 527
======= ======= ====== ======
Earnings per share $.63 $.72 $.30 $.27
=== === === ===
Dividends per share $.31 $.30 $.105 $.10
=== === ==== ===
</TABLE>
5
<PAGE> 6
WINTON FINANCIAL CORPORATION AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the nine months ended June 30,
(In thousands)
<TABLE>
<CAPTION>
1996 1995
<S> <C> <C>
Cash flows provided by (used in) operating activities:
Net earnings for the period $ 1,258 $ 1,439
Adjustments to reconcile net earnings to net cash
provided by (used in) operating activities:
Amortization of premiums on investments and
mortgage-backed securities 9 54
Amortization of deferred loan origination fees (195) (200)
Depreciation and amortization 275 256
Amortization of intangible assets 46 33
Gain on sale of mortgage loans (499) (102)
Gain on sale of investment and mortgage-backed securities
designated as available for sale (9) (47)
Provision for losses on loans 253 78
Loans disbursed for sale in the secondary market (22,860) (12,878)
Proceeds from sale of loans in the secondary market 24,240 13,565
Gain on sale of real estate acquired through foreclosure - (5)
Federal Home Loan Bank stock dividends (114) (97)
Increase (decrease) in cash due to changes in:
Accrued interest receivable on loans (277) (92)
Accrued interest receivable on mortgage-backed securities 5 (11)
Accrued interest receivable on investments (18) (63)
Prepaid expenses and other assets (199) 225
Accounts payable on mortgage loans serviced for others 43 (225)
Other liabilities 112 6
Federal income taxes
Current 27 51
Deferred 77 157
-------- --------
Net cash provided by operating activities 2,174 2,144
Cash flows provided by (used in) investing activities:
Principal repayments on mortgage-backed securities 1,605 2,283
Purchase of mortgage-backed securities available for sale (3,077) (1,397)
Purchase of mortgage-backed securities held-to-maturity (293) -
Proceeds from sale of mortgage-backed securities designated
as available for sale 1,406 -
Proceeds from maturity of investment securities 1,922 3,566
Proceeds from sale of investment securities designated as available for sale - 58
Purchase of investment securities designated held to maturity (1,302) (6,966)
Loan principal repayments 37,556 23,983
Loan disbursements (71,882) (26,996)
Proceeds from the sale of real estate acquired through foreclosure - 211
Purchase of office premises and equipment (198) (18)
Additions to real estate acquired through foreclosure (186) (87)
Purchase of Federal Home Loan Bank stock - (152)
Intangible asset acquired in branch purchase - (619)
-------- --------
Net cash used in investing activities (34,449) (6,134)
-------- --------
Net cash used in operating and investing
activities (balance carried forward) (32,275) (3,990)
-------- --------
</TABLE>
6
<PAGE> 7
WINTON FINANCIAL CORPORATION AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
For the nine months ended June 30,
(In thousands)
<TABLE>
<CAPTION>
1996 1995
<S> <C> <C>
Net cash used in operating and investing
activities (balance brought forward) $(32,275) $ (3,990)
Cash flows provided by (used in) financing activities:
Net increase in deposit accounts, including purchased deposits 17,346 15,287
Proceeds from Federal Home Loan Bank advances 32,250 12,100
Repayment of Federal Home Loan Bank advances (17,690) (22,228)
Advances by borrowers for taxes and insurance (213) (181)
Proceeds from exercise of stock options 8 22
Dividends paid on common stock (606) (562)
-------- --------
Net cash provided by financing activities 31,095 4,438
Net increase (decrease) in cash and cash equivalents (1,180) 448
Cash and cash equivalents at beginning of period 3,518 3,181
-------- -------
Cash and cash equivalents at end of period $ 2,338 $ 3,629
======== -=======
Supplemental disclosure of cash flow information:
Cash paid during the year for:
Federal income taxes $ 622 $ 540
======== ========
Interest on deposits and borrowings $ 9,220 $ 8,026
======== -=======
Supplemental disclosure of noncash investing activities:
Transfers from loans to real estate acquired through foreclosure $ 176 $ 155
======== ========
Unrealized gain on securities designated as available for sale $ 26 $ 255
========= ========
</TABLE>
7
<PAGE> 8
WINTON FINANCIAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the three and nine month periods ended June 30, 1996 and 1995
1. Basis of Presentation
During fiscal 1995, the Board of Directors of Winton Financial
Corporation ("Corporation" or "Winton") approved a business combination
whereby Blue Chip Savings Bank (Blue Chip), a state-chartered savings
bank, merged with and into the Winton Savings and Loan Co. ("Winton
Savings") in January 1996, with the combined institutions continuing
operations as a wholly-owned subsidiary of the Corporation. The
business combination was accounted for as a pooling of interests and,
accordingly, the assets, liabilities and capital of Blue Chip and the
Corporation were added together at historic carrying value. The
consolidated financial statements included herein have been restated to
give effect to the combination.
The accompanying unaudited consolidated financial statements were
prepared in accordance with instructions for Form 10-QSB and,
therefore, do not include information or footnotes necessary for a
complete presentation of financial position, results of operations, and
cash flows in conformity with generally accepted accounting principles.
Accordingly, these financial statements should be read in conjunction
with the consolidated financial statements and notes thereto of the
Corporation included in Winton's Annual Report on Form 10-KSB for the
fiscal year ended September 30, 1995. However, all adjustments
(consisting of only normal recurring accruals) which in the opinion of
management are necessary for a fair presentation of the consolidated
financial statements have been included. The results of operations for
the three and six month periods ended June 30, 1996 and 1995 are not
necessarily indicative of the results which may be expected for the
entire fiscal year.
2. Principles of Consolidation
The accompanying consolidated financial statements include the accounts
of Winton and Winton Savings. All significant intercompany items have
been eliminated.
3. Effects of Recent Accounting Pronouncements
In March 1995, the Financial Accounting Standards Board (the "FASB")
issued Statement of Financial Accounting Standards ("SFAS") No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of". SFAS No. 121 requires that long-lived assets
and certain identifiable intangibles to be held and used by an entity
be reviewed for impairment whenever events or changes in circumstances
indicate that the carrying amount of an asset may not be recoverable.
In performing the review for recoverability, the entity should estimate
the future cash flows expected to result from the use of the asset and
its eventual disposition. If the sum of the expected future cash flows
(undiscounted and without interest charges) is less than the carrying
amount of the asset, an impairment loss is recognized. Measurement of
an impairment loss for long-lived assets and identifiable intangibles
that an entity expects to hold and use should be based on the fair
value of the asset. SFAS No. 121 is effective for financial statements
for fiscal years beginning after December 15, 1995 (fiscal 1997 as to
the Corporation). Earlier application is encouraged. Management is of
the opinion that adoption of SFAS No. 121 will not have a material
effect on consolidated financial position or results of operations, and
intends to adopt SFAS No. 121 on October 1, 1996, as required.
8
<PAGE> 9
WINTON FINANCIAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
For the three and nine month periods ended June 30, 1996 and 1995
3. Effects of Recent Accounting Pronouncements (continued)
In May 1995, the FASB issued SFAS No. 122, "Accounting for
Mortgage-Servicing Rights", which requires that Winton recognize as
separate assets, rights to service mortgage loans for others,
regardless of how those servicing rights are acquired. An institution
that acquires mortgage servicing rights through either the purchase or
origination of mortgage loans and sells those loans with servicing
rights retained would allocate some of the cost of the loans to the
mortgage servicing rights. SFAS No. 122 requires that securitizations
of mortgage loans be accounted for as sales of mortgage loans and
acquisitions of mortgage-backed securities. Additionally, SFAS No. 122
requires that capitalized mortgage servicing rights and capitalized
excess servicing receivables be assessed for impairment. Impairment is
measured based on fair value. SFAS No. 122 would be applied
prospectively to fiscal years beginning after December 15, 1995,
(October 1, 1996, as to Winton) to transactions in which an entity
acquires mortgage servicing rights and to impairment evaluations of all
capitalized mortgage servicing rights and capitalized excess servicing
receivables whenever acquired. Retroactive application is prohibited
and earlier adoption is encouraged. Management elected early adoption
of SFAS No. 122 as of October 1, 1995, which resulted in a $228,000
pre-tax increase to earnings for the nine months ended June 30, 1996.
In October 1995, the FASB issued SFAS No. 123 entitled "Accounting for
Stock-Based Compensation." SFAS No. 123 established a fair value based
method of accounting for stock-based compensation paid to employees.
The Statement recognizes the fair value of an award of stock or stock
options on the grant date and is required to be adopted by fiscal 1996,
although earlier application is permitted. Management does not believe
that adoption of SFAS No. 123 will have a material adverse effect on
Winton's consolidated financial position or results of operations.
The deposit accounts of Winton Savings and of other savings
associations are insured by the FDIC in the Savings Association
Insurance Fund ("SAIF"). The reserves of the SAIF are below the level
required by law, because a significant portion of the assessments paid
into the fund are used to pay the cost of prior thrift failures. The
deposit accounts of commercial banks are insured by the FDIC in the
Bank Insurance Fund ("BIF"), except to the extent such banks have
acquired SAIF deposits. The reserves of the BIF met the level required
by law in May 1995. As a result of the respective reserve levels of the
funds, deposit insurance assessments paid by healthy savings
associations exceeded those paid by healthy commercial banks by
approximately $.19 per $100 in deposits in 1995 and in 1996, no BIF
assessments are required for healthy commercial banks except a $2,000
minimum fee. This premium disparity could have a negative competitive
impact on Winton Savings and other institutions with SAIF deposits.
9
<PAGE> 10
WINTON FINANCIAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
For the three and nine month periods ended June 30, 1996 and 1995
4. Pending Legislative Changes
Congress is considering legislation to recapitalize the SAIF and
eliminate the significant premium disparity. Currently, that
recapitalization plan provides for a special assessment of
approximately $.85 per $100 of SAIF deposits held at March 31, 1995, in
order to increase SAIF reserves to the level required by law. In
addition, the cost of prior thrift failures would be shared by both the
SAIF and the BIF. This would likely increase BIF assessments by up to
$.02 to $.025 per $100 in deposits. SAIF assessments would initially be
set at a significantly lower level but could never be reduced below
that level. These projected assessment levels may change if commercial
banks holding SAIF deposits are provided some relief from the special
assessment or are allowed to transfer SAIF deposits to the BIF.
A component of the recapitalization plan provides for the merger of the
SAIF and BIF on January 1, 1998. However, the SAIF recapitalization
legislation currently provides for an elimination of the thrift charter
or of the separate federal regulation of thrifts prior to the merger of
the deposit insurance funds. As a result, Winton Savings would be
regulated as a bank under Federal laws which would subject it to the
more restrictive activity limits imposed on national banks. Winton, as
the holding company of Winton Savings, would become a bank holding
company, which would subject it to more restrictive activity limits and
to capital requirements similar to those imposed on Winton Savings. In
a separate legislative proposal tax legislation would require Winton
Savings to recapture post-1987 additions to its bad debt reserve, and
Winton Savings would not be able to utilize the percentage of taxable
income method to compute its reserve in the future. Under such
legislation Winton Savings may be required to recapture, as taxable
income, approximately $300,000 of its bad debt reserve, which
represents the post-1987 additions to the reserve.
Winton Savings had $185.9 million in deposits (including $26.1 million
of deposits acquired in the merger with Blue Chip) at March 31, 1995.
If the special assessment is $.85 per $100 in deposits, Winton Savings
will pay an additional assessment of approximately $1.6 million. This
assessment should be tax deductible, but it will reduce earnings and
capital for the quarter in which it is recorded. It is expected that
quarterly SAIF assessments will be reduced to approximately $.06 to
$.065 per $100 in deposits.
No assurances can be given that the SAIF recapitalization plan will be
enacted into law or in what form it may be enacted. In addition, the
Corporation can give no assurances that the disparity between BIF and
SAIF assessments will be eliminated and cannot predict the impact of
being regulated as a bank holding company, or the change in tax
accounting for bad debt reserves, until the legislation requiring such
change is enacted.
10
<PAGE> 11
WINTON FINANCIAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
For the three and nine month periods ended June 30, 1996 and 1995
5. Earnings Per Share
Earnings per share for the three and nine month periods ended June 30,
1996 and 1995 is computed based on 1,986,152 weighted-average shares
outstanding during the respective periods, after giving effect to the
aforementioned business combination. Fully diluted earnings per share
has not been presented as there is no dilutive effect attendant to
Winton's Stock Option Plan during the respective periods.
11
<PAGE> 12
WINTON FINANCIAL CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Discussion of Financial Condition Changes from September 30, 1995 to June 30,
1996
At June 30, 1996, the Corporation had total assets of $282.8 million, an
increase of approximately $32.7 million, or 13.1%, from September 30, 1995. The
growth in assets was funded primarily by an increase in deposits of $17.3
million and an increase in advances from the Federal Home Loan Bank of $14.6
million.
Cash and due from banks, interest-bearing deposits, and investment securities
totaled approximately $14.9 million, a decrease of approximately $1.7 million,
or 10.4%, from September 30, 1995 levels.
Loans receivable, loans held for sale, and mortgage-backed securities increased
by approximately $33.7 million, or 15.0%, during the period to a total of $259.1
million. This increase resulted primarily from loan originations totaling $94.7
million, which exceeded loan sales of $23.7 million and principal repayments of
approximately $37.6 million. The Corporation's loan origination volume increased
during the current nine month period by approximately $54.9 million over the
same period in fiscal 1995. Similarly, sales volume increased during the same
period by $10.0 million. Mortgage-backed securities increased by approximately
$337,000, or 1.7%, from September 30, 1995 as purchases of $3.4 million exceeded
normal principal repayments of $1.6 million.
At June 30, 1996, Winton Saving's allowance for loan losses totaled $886,000, an
increase of $232,000 over the level maintained at September 30, 1995. At June
30, 1996, the allowance represented approximately .35% of the total loan
portfolio and 121.7% of total non-performing loans. At that date, the ratio of
total non-performing loans to total loans amounted to .29%, as compared to .26%
at September 30, 1995. Although management believes that its allowance for loan
losses at June 30, 1996, was adequate based on facts and circumstances available
to it, there can be no assurances that additions to such allowance will not be
necessary in future periods, which could adversely affect the Corporation's
results of operations.
Deposits increased by $17.3 million, or 8.8%, from September 30, 1995 levels, as
management has elected to increase deposits to fund the growth in the loan
portfolio through advertising and pricing strategies.
Winton Savings is subject to capital standards which generally require the
maintenance of regulatory capital sufficient to meet each of three tests,
hereinafter described as the tangible capital requirement, the core capital
requirement and the risk-based capital requirement. At June 30, 1996, Winton
Savings' tangible capital of $20.1 million, or 7.1%, exceeded the minimum
requirement of $4.2 million by $15.8 million; Winton Savings' core capital of
$20.1 million, or 7.1%, exceeded the minimum requirement of $8.5 million by
$11.6 million; and Winton Savings' risk-based capital of $20.9 million, or
12.2%, exceeded the fully phased-in amount of 8% of risk- weighted assets by
approximately $7.1 million.
12
<PAGE> 13
WINTON FINANCIAL CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
Comparison of Operating Results for the Nine Month Periods ended June 30, 1996
and 1995
General
Net earnings totaled $1.3 million for the nine months ended June 30, 1996, as
compared to $1.4 million for the same period in 1995, a decrease of $181,000, or
12.6%. The decrease in earnings resulted primarily from a $175,000 increase in
the provision for losses on loans, a $630,000 increase in general,
administrative and other expense and a $4,000 increase in the provision for
federal income taxes, which were partially offset by a $186,000 increase in net
interest income and a $442,000 increase in other income.
Net Interest Income and Provision for Loan Losses
Interest on loans and mortgage-backed securities increased by $1.2 million, or
9.1%, for the nine months ended June 30, 1996, as compared to the same period in
1995. The increase resulted primarily from an increase in weighted-average yield
year-to-year, generally reflecting the increase of interest rates in the
economy, and an increase in the weighted-average portfolio balance outstanding
year-to-year.
Interest income on investments and interest-bearing deposits increased by
$162,000, or 26.5%, for the nine months ended June 30, 1996. The increase
resulted primarily from an increase in the weighted-average portfolio balance
outstanding year-to-year, coupled with an increase in the yield, generally
reflecting the increase in interest rates in the economy.
Interest expense on deposits increased by $1.3 million, or 20.3%, for the nine
months ended June 30, 1996. The increase was primarily due to an increase in
weighted-average cost of deposits, coupled with an increase in weighted-average
deposits outstanding year-to-year.
Interest expense on borrowings declined by $130,000, or 8.7%, for the nine
months ended June 30, 1996. The decrease was primarily due to a decrease in
weighted-average Federal Home Loan Bank advances outstanding year-to-year.
The provision for loan losses totaled $253,000 for the nine months ended June
30, 1996 as compared to $78,000 for the same period in 1995. The current period
provision was primarily comprised of a $225,000 charge recorded by Blue Chip
prior to the aforementioned merger. Loans greater than 90 days delinquent
totaled $728,000 at June 30, 1996, as compared to $602,000 at September 30,
1995.
Other Income
Other income increased by $442,000 for the nine months ended June 30, 1996, as
compared to the 1995 period, primarily due to an increase of $397,000 in gain on
sale of mortgage loans, coupled with an increase in other operating income of
$88,000, or 42.5%, which were partially offset by a decline in gain on sale of
investment securities of $38,000. The increase in other operating income was
comprised primarily of increases in rental income and service fees.
13
<PAGE> 14
WINTON FINANCIAL CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
Comparison of Operating Results for the Nine Month Periods ended June 30, 1996
and 1995 (continued)
General, Administrative and Other Expense
General, administrative and other expense increased by $630,000, or 15.1%, for
the nine months ended June 30, 1996, as compared to 1995. The increase was
comprised primarily of a nonrecurring $615,000 charge for merger related
expenses incurred in connection with the Blue Chip merger, coupled with an
increase of $26,000, or 3.0%, in occupancy and equipment, an increase of
$13,000, or 7.3%, in franchise taxes, an increase of $22,000, or 91.7%, in
amortization of intangible assets and an increase of $55,000, or 9.2%, in other
operating expense, which were partially offset by a decline of $90,000, or 4.4%,
in employee compensation and benefits.
The increase in occupancy and equipment relates to an increase in repairs and
maintenance on office buildings and equipment. The increase in other operating
expense resulted primarily from an increase in supervising assessments and costs
related to data processing. The decline in employee compensation and benefits
resulted from increased deferred loan origination costs attendant to greater
lending volume year-to-year.
Federal Income Taxes
The provision for federal income taxes increased by $4,000, or .6%, for the nine
months ended June 30, 1996, as compared to the same period in 1995, due
primarily to nondeductible merger expenses incurred in the 1996 period, as
pretax earnings declined by $177,000, or 8.2%. The effective tax rates were
36.6% and 33.4% for the nine months ended June 30, 1996 and 1995, respectively.
Comparison of Operating Results for the Three Month Periods ended June 30, 1996
and 1995
General
Net earnings totaled $592,000 for the three months ended June 30, 1996, as
compared to $527,000 for the same period in 1995, an increase of $65,000, or
12.3%. The increase in earnings resulted primarily from a $209,000 increase in
net interest income after provision for losses on loans, which was partially
offset by a $65,000 decrease in other income, a $38,000 increase in general,
administrative and other expense and a $41,000 increase in the provision for
federal income taxes.
Net Interest Income and Provision for Loan Losses
Interest on loans and mortgage-backed securities increased by $493,000, or
10.7%, for the three months ended June 30, 1996. The increase resulted primarily
from an increase in portfolio balances coupled with an increase in
weighted-average yield year-to-year, generally reflecting the rising interest
rates which had occurred in the economy.
14
<PAGE> 15
WINTON FINANCIAL CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
Comparison of Operating Results for the Three Month Periods ended June 30, 1996
and 1995 (continued)
Net Interest Income and Provision for Loan Losses (continued)
Interest income on investments and interest-bearing deposits increased by
$6,000, or 2.5%, for the three months ended June 30, 1996. The increase resulted
primarily from an increase in weighted-average yield during the 1996 period for
the same reason set forth above, coupled with an increase in portfolio balances.
Interest expense on deposits increased by $261,000, or 10.8%, for the three
months ended June 30, 1996. The increase was primarily attributable to an
increase in the weighted-average cost of deposits, and an increase in the
average balance of deposits outstanding.
Interest expense on borrowings increased by $65,000, or 14.7%, during the three
months ended June 30, 1996. The increase was primarily attributable to an
increase in the average balance of borrowings outstanding.
The provision for loan losses decreased by $36,000 for the three months ended
June 30, 1996.
Other Income
Other income decreased by $65,000, or 34.8%, for the 1996 quarter primarily due
to a decline of $66,000 in gain on sale of mortgage loans, and declines of
$27,000 and $5,000 in gain on sale of investment securities and real estate
acquired through foreclosure, respectively, which were partially offset by an
increase in other operating income of $33,000, or 41.8%.
General, Administrative and Other Expense
General, administrative and other expense increased by $38,000, or 2.8%, for the
quarter ended June 30, 1996. The increase was comprised primarily of a $45,000,
or 27.6%, increase in other operating expenses.
15
<PAGE> 16
WINTON FINANCIAL CORPORATION
PART II
<TABLE>
<CAPTION>
<S> <C> <C>
ITEM 1. Legal Proceedings
Not applicable
ITEM 2. Changes in Securities
Not applicable
ITEM 3. Defaults Upon Senior Securities
Not applicable
ITEM 4. Submission of Matters to a Vote of Security Holders
Not applicable
ITEM 5. Other Materially Important Events
None
ITEM 6. Exhibits and Reports on Form 8-K
Exhibit 10.1 Employment Agreement, dated May 1, 1996, between Winton
Financial Corporation, The Winton Savings and Loan Co. and
Robert L. Bollin.
Exhibit 10.2 Employment Agreement, dated May 1, 1996, between Winton
Financial Corporation, The Winton Savings and Loan Co. and
Gregory J. Bollin.
Exhibit 10.3 Employment Agreement, dated May 1, 1996, between Winton
Financial Corporation, The Winton Savings and Loan Co. and
James W. Brigger.
Exhibit 10.4 Employment Agreement, dated May 1, 1996, between Winton
Financial Corporation, The Winton Savings and Loan Co. and
Mary Ellen Lovett.
Exhibit 10.5 Employment Agreement, dated May 1, 1996, between Winton
Financial Corporation, The Winton Savings and Loan Co. and
Jill M. Burke.
Exhibit 10.6 Employment Agreement, dated May 1, 1996, between Winton
Financial Corporation, The Winton Savings and Loan Co. and
Anthony G. Gerstner.
Exhibit 27 Financial Data Schedule
Form 8-K None.
</TABLE>
16
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: August 9, 1996 By: /s/ Robert L. Bollin
------------------------------------
Robert L. Bollin
President
Date: August 9, 1996 By: /s/ Jill M. Burke
-------------------------------------
Jill M. Burke
Chief Financial Officer
17
<PAGE> 18
<TABLE>
<CAPTION>
EXHIBIT INDEX
<S> <C>
Exhibit 10.1 Employment Agreement, dated May 1, 1996, between Winton Financial
Corporation, The Winton Savings and Loan Co. and Robert L. Bollin.
Exhibit 10.2 Employment Agreement, dated May 1, 1996, between Winton Financial
Corporation, The Winton Savings and Loan Co. and Gregory J. Bollin.
Exhibit 10.3 Employment Agreement, dated May 1, 1996, between Winton Financial
Corporation, The Winton Savings and Loan Co. and James W. Brigger.
Exhibit 10.4 Employment Agreement, dated May 1, 1996, between Winton Financial
Corporation, The Winton Savings and Loan Co. and Mary Ellen Lovett.
Exhibit 10.5 Employment Agreement, dated May 1, 1996, between Winton Financial
Corporation, The Winton Savings and Loan Co. and Jill M. Burke.
Exhibit 10.6 Employment Agreement, dated May 1, 1996, between Winton Financial
Corporation, The Winton Savings and Loan Co. and Anthony J. Gerstner.
</TABLE>
<PAGE> 1
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into this 1st day of May, 1996, by and between Winton
Financial Corporation, a savings and loan holding company incorporated under
Ohio law (hereinafter referred to as "WFC"), The Winton Savings and Loan Co., a
savings and loan association incorporated under Ohio law and a wholly-owned
subsidiary WFC (hereinafter referred to as "WINTON"), and Robert L. Bollin, an
individual (hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of WFC and WINTON (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 of each of the EMPLOYERS;
WHEREAS, the EMPLOYEE desires to continue to serve as the President 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:
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 President of each of the EMPLOYERS.
The term of this AGREEMENT shall commence on the date hereof and shall end on
April 30, 1999 (hereinafter referred to as the "TERM").
Section 2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. As the President of each of
the EMPLOYERS, the EMPLOYEE shall perform the duties and responsibilities
customary for such
<PAGE> 2
office 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 diminishment
of the importance or prestige of his position.
(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 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(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 $152,000 until changed by the Boards of Directors of the
EMPLOYER 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 l of the following year, at
an amount not less than $152,000, 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, reimbursement of membership fees in civic, social
and professional organizations and all employee benefit plans or
<PAGE> 3
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 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 four 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.
<PAGE> 4
(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 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 of 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 is
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 (l) 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 (l) 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
<PAGE> 5
(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.
(iii) Termination Without CHANGE OF CONTROL. In the event that
the employment of the EMPLOYEE is terminated before the expiration of
the TERM for any reason other than JUST CAUSE or in connection with or
within one year of a CHANGE OF CONTROL, the EMPLOYERS shall be
obligated to continue (A) 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 (B) 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.
(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. Section1828(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 TERM, either
any person or entity obtains "conclusive control" of the EMPLOYERS within the
meaning of 12 C.F.R. Section574.4(a), or any person or entity obtains
"rebuttable control" within the meaning of 12 C.F.R. Section574.4(b) and has not
rebutted control in accordance with 12 C.F.R. Section574.4(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:
<PAGE> 6
(a) If the EMPLOYEE is suspended and/or temporarily prohibited from
participating in the conduct of the EMPLOYERS' 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 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 EMPLOYERS' affairs by an order issued under
Section 8(e) (4) or (g) (l) 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 the EMPLOYERS are 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 the EMPLOYERS 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 EMPLOYERS or when the
EMPLOYERS are 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.
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
<PAGE> 7
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. Nonassignabilitv. 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 l0. 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 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.
<PAGE> 8
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 and the EMPLOYEE, each of which is
hereby terminated and is of no further force or effect.
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 Winton Financial Corporation and/or The Winton Savings & Loan
Company:
Winton Financial Corporation
5511 Cheviot Road
Cincinnati, Ohio 45247-7095
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:
Robert L. Bollin
3358 Kuliga Park Drive
Cincinnati, Ohio 45248
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: WINTON FINANCIAL CORPORATION
<PAGE> 9
Linda A. Seitzer________________ By William J Parchman________________
William J Parchman________________
its President ________________________
Attest: THE WINTON SAVINGS AND LOAN
CO.
Linda A. Seitzer______________ By William J Parchman ________________
William J Parchman _______________
its President ________________________
Attest:
Linda A. Seitzer_____________ Robert L. Bollin______________________
Robert L. Bollin
<PAGE> 1
Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into this 1st day of May, 1996, by and between Winton
Financial Corporation, a savings and loan holding company incorporated under
Ohio law (hereinafter referred to as "WFC"), The Winton Savings and Loan Co., a
savings and loan association incorporated under Ohio law and a wholly-owned
subsidiary WFC (hereinafter referred to as "WINTON"), and Gregory J. Bollin, an
individual (hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of WFC and WINTON (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 Executive Vice President of WINTON and the Vice President
of WFC;
WHEREAS, the EMPLOYEE desires to continue to serve as the Executive
Vice President of WINTON and the Vice President of WFC; 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 Executive Vice President of WINTON
and the Vice President of WFC. The term of this AGREEMENT shall commence on the
date hereof and shall end on April 30, 1999 (hereinafter referred to as the
"TERM").
Section 2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. As an officer of each of the
EMPLOYERS, 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 Boards of Directors of
<PAGE> 2
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 diminishment of the importance or prestige of
his position.
(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 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(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 $110,000 until changed by the Boards of Directors of the
EMPLOYER 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 l of the following year, at
an amount not less than $110,000, 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, reimbursement of membership fees in civic, social
and professional organizations and all employee benefit plans or programs
hereafter adopted in writing by the Boards of Directors of the EMPLOYERS, for
<PAGE> 3
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 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 four 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.
<PAGE> 4
(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 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 of 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 is
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 (l) 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 (l) 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
<PAGE> 5
(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.
(iii) Termination Without CHANGE OF CONTROL. In the event that
the employment of the EMPLOYEE is terminated before the expiration of
the TERM for any reason other than JUST CAUSE or in connection with or
within one year of a CHANGE OF CONTROL, the EMPLOYERS shall be
obligated to continue (A) 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 (B) 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.
(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. Section1828(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 TERM, either
any person or entity obtains "conclusive control" of the EMPLOYERS within the
meaning of 12 C.F.R. Section574.4(a), or any person or entity obtains
"rebuttable control" within the meaning of 12 C.F.R. Section574.4(b) and has not
rebutted control in accordance with 12 C.F.R. Section574.4(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:
<PAGE> 6
(a) If the EMPLOYEE is suspended and/or temporarily prohibited from
participating in the conduct of the EMPLOYERS' 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 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 EMPLOYERS' affairs by an order issued under
Section 8(e) (4) or (g) (l) 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 the EMPLOYERS are 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 the EMPLOYERS 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 EMPLOYERS or when the
EMPLOYERS are 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.
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
<PAGE> 7
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. Nonassignabilitv. 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 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.
<PAGE> 8
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 and the EMPLOYEE, each of which is
hereby terminated and is of no further force or effect.
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 Winton Financial Corporation and/or The Winton Savings & Loan
Company:
Winton Financial Corporation
5511 Cheviot Road
Cincinnati, Ohio 45247-7095
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:
Gregory J. Bollin
4440 Hubble Road
Cincinnati, Ohio 45247
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: WINTON FINANCIAL CORPORATION
<PAGE> 9
Nancy Van Beck________________ By Robert L. Bollin____________________
Robert L. Bollin___________________
its President_________________________
Attest: THE WINTON SAVINGS AND LOAN
CO.
Nancy Van Beck______________________ By Robert L. Bollin_________________
Robert L. Bollin_________________
its President_______________________
Attest:
Nancy Van Beck_____________________ Gregory J. Bollin___________________
Gregory J. Bollin
<PAGE> 1
Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into this 1st day of May, 1996, by and between Winton
Financial Corporation, a savings and loan holding company incorporated under
Ohio law (hereinafter referred to as "WFC"), The Winton Savings and Loan Co., a
savings and loan association incorporated under Ohio law and a wholly-owned
subsidiary WFC (hereinafter referred to as "WINTON"), and James W. Brigger, an
individual (hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of WFC and WINTON (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 Vice President of each of the EMPLOYERS;
WHEREAS, the EMPLOYEE desires to continue to serve as the Vice
President of each of the EMPLOYERS and as 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 Vice President of each of the
EMPLOYERS. The term of this AGREEMENT shall commence on the date hereof and
shall end on April 30, 1998 (hereinafter referred to as the "TERM").
Section 2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. As the Vice President of each
of the EMPLOYERS, 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 Boards of Directors of the EMPLOYERS and all
applicable laws and regulations. The EMPLOYEE shall
<PAGE> 2
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 diminishment of the importance or prestige of
his position.
(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 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(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 $64,000 until changed by the Boards of Directors of the
EMPLOYER 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 l of the following year, at
an amount not less than $64,000 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, reimbursement of membership fees in civic, social
and professional organizations 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,
<PAGE> 3
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 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 four 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
<PAGE> 4
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 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 of 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 is
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 (l) 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 two, 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 (l) 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
<PAGE> 5
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.
(iii) Termination Without CHANGE OF CONTROL. In the event that
the employment of the EMPLOYEE is terminated before the expiration of
the TERM for any reason other than JUST CAUSE or in connection with or
within one year of a CHANGE OF CONTROL, the EMPLOYERS shall be
obligated to continue (A) 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 (B) 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.
(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. Section1828(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 TERM, either
any person or entity obtains "conclusive control" of the EMPLOYERS within the
meaning of 12 C.F.R. Section574.4(a), or any person or entity obtains
"rebuttable control" within the meaning of 12 C.F.R. Section574.4(b) and has not
rebutted control in accordance with 12 C.F.R. Section574.4(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 the EMPLOYERS' affairs by a notice served under
section 8(e) (3) or (g) (1) of
<PAGE> 6
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 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 EMPLOYERS' affairs by an order issued under
Section 8(e) (4) or (g) (l) 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 the EMPLOYERS are 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 the EMPLOYERS 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 EMPLOYERS or when the
EMPLOYERS are 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.
<PAGE> 7
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. Nonassignabilitv. 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
<PAGE> 8
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.
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 and the EMPLOYEE, each of which is
hereby terminated and is of no further force or effect.
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 Winton Financial Corporation and/or The Winton Savings & Loan
Company:
Winton Financial Corporation
5511 Cheviot Road
Cincinnati, Ohio 45247-7095
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 W. Brigger
123 Bonham Road
Cincinnati, Ohio 45215
<PAGE> 9
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: WINTON FINANCIAL CORPORATION
Linda A. Seitzer________________ By Robert L.Bollin____________________
Robert L.Bollin____________________
its President______________________
Attest: THE WINTON SAVINGS AND LOAN
CO.
Linda A. Seitzer______________________ By Robert L.Bollin ___________________
Robert L.Bollin ___________________
its President______________________
Attest:
Linda A. Seitzer______________________ James W. Brigger________________
James W. Brigger
<PAGE> 1
Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into this 1st day of May, 1996, by and between Winton
Financial Corporation, a savings and loan holding company incorporated under
Ohio law (hereinafter referred to as "WFC"), The Winton Savings and Loan Co., a
savings and loan association incorporated under Ohio law and a wholly-owned
subsidiary WFC (hereinafter referred to as "WINTON"), and Mary Ellen Lovett, an
individual (hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of WFC and WINTON (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 of WINTON and the Vice President of
WFC;
WHEREAS, the EMPLOYEE desires to continue to serve as the Senior Vice
President of WINTON and the Vice President of WFC; 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, THEREFOR, 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 of WINTON and
the Vice President of WFC. The term of this AGREEMENT shall commence on the date
hereof and shall end on April 30, 1998 (hereinafter referred to as the "TERM").
Section 2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. As an officer of each of the
EMPLOYERS, the EMPLOYEE shall perform the duties and responsibilities customary
for such office to the best of her 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
<PAGE> 2
other duties not inconsistent with her position as may be assigned to her 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 diminishment of the importance or prestige of her
position.
(b) Devotion of Entire Time to the Business of the EMPLOYERS. 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 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(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 $51,000 until changed by the Boards of Directors of the
EMPLOYER 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 l of the following year, at
an amount not less than $51,000 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 her 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, reimbursement of membership fees in civic, social
and professional organizations 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,
<PAGE> 3
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 her 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 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 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 her 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 four 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
her 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
<PAGE> 4
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 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 of 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 is
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 her beneficiaries, dependents or estate an amount equal
to the sum of (l) 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 two, 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 (l) of this subparagraph (I);
(II) The EMPLOYEE, her 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
<PAGE> 5
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.
(iii) Termination Without CHANGE OF CONTROL. In the event that
the employment of the EMPLOYEE is terminated before the expiration of
the TERM for any reason other than JUST CAUSE or in connection with or
within one year of a CHANGE OF CONTROL, the EMPLOYERS shall be
obligated to continue (A) 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 (B) 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 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.
(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. Section1828(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 TERM, either
any person or entity obtains "conclusive control" of the EMPLOYERS within the
meaning of 12 C.F.R. Section 574.4(a), or any person or entity obtains
"rebuttable control" within the meaning of 12 C.F.R. Section 574.4(b) and has
not rebutted control in accordance with 12 C.F.R. Section 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 the EMPLOYERS' affairs by a notice served under
section 8(e) (3) or (g) (1) of
<PAGE> 6
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 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 EMPLOYERS' affairs by an order issued under
Section 8(e) (4) or (g) (l) 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 the EMPLOYERS are 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 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 the EMPLOYERS 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 EMPLOYERS or when the
EMPLOYERS are 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.
Section 7. Confidential Information. The EMPLOYEE acknowledges that
during her employment she 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 her 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
<PAGE> 7
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. Nonassignabilitv. Neither this AGREEMENT nor any right or
interest hereunder shall be assignable by the EMPLOYEE, her 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 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.
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 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.
<PAGE> 8
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 and the EMPLOYEE, each of which is
hereby terminated and is of no further force or effect.
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 Winton Financial Corporation and/or The Winton Savings & Loan
Company:
Winton Financial Corporation
5511 Cheviot Road
Cincinnati, Ohio 45247-7095
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:
Mary Ellen Lovett
5330 Chatelaine Ct.
Cincinnati, Ohio 45247-7501
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: WINTON FINANCIAL CORPORATION
Mary J. Hermann_______________ By Robert L. Bollin____________________
<PAGE> 9
Robert L. Bollin___________________
its President_____________________
Attest: THE WINTON SAVINGS AND LOAN
CO.
Mary J. Hermann_____________________ By Robert L. Bollin ___________________
Robert L. Bollin __________________
its President________________________
Attest:
Mary J. Hermann_____________________ Mary Ellen Lovett____________________
Mary Ellen Lovett
<PAGE> 1
Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into this 1st day of May, 1996, by and between Winton
Financial Corporation, a savings and loan holding company incorporated under
Ohio law (hereinafter referred to as "WFC"), The Winton Savings and Loan Co., a
savings and loan association incorporated under Ohio law and a wholly-owned
subsidiary WFC (hereinafter referred to as "WINTON"), and Jill M. Burke, an
individual (hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of WFC and WINTON (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 and Chief Financial Officer of each of the
EMPLOYERS;
WHEREAS, the EMPLOYEE desires to continue to serve as the Treasurer and
Chief Financial 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, THEREFOR, 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 Treasurer and Chief Financial Officer
of each of the EMPLOYERS. The term of this AGREEMENT shall commence on the date
hereof and shall end on April 30, 1998 (hereinafter referred to as the "TERM").
Section 2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. As the Treasurer and Chief
Financial Officer of each of the EMPLOYERS, the EMPLOYEE shall perform the
duties and responsibilities customary for such office to the best of her ability
and in accordance with the policies established by the Boards of Directors of
the EMPLOYERS and all applicable laws and regulations. The
<PAGE> 2
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
EMPLOYERS; provided, however, that the EMPLOYERS shall employ the EMPLOYEE
during the TERM in a senior executive capacity without diminishment of the
importance or prestige of her position.
(b) Devotion of Entire Time to the Business of the EMPLOYERS. 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 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(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 $60,000 until changed by the Boards of Directors of the
EMPLOYER 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 l of the following year, at
an amount not less than $60,000, 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 her 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, reimbursement of membership fees in civic, social
and professional organizations 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,
<PAGE> 3
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 her 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 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 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 her 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 three 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
her 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.
<PAGE> 4
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 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 after CHANGE OF CONTROL. In the event that,
before the expiration of the TERM and in connection with or within one
year of 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 is
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 her beneficiaries, dependents or estate an amount equal
to the sum of (l) 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 two, 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 (l) of this subparagraph (I);
(II) The EMPLOYEE, her 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
<PAGE> 5
(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.
(iii) Termination Without CHANGE OF CONTROL. In the event that
the employment of the EMPLOYEE is terminated before the expiration of
the TERM for any reason other than JUST CAUSE or in connection with or
within one year of a CHANGE OF CONTROL, the EMPLOYERS shall be
obligated to continue (A) 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 (B) 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 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.
(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. Section 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 TERM, either
any person or entity obtains "conclusive control" of the EMPLOYERS within the
meaning of 12 C.F.R. Section 574.4(a), or any person or entity obtains
"rebuttable control" within the meaning of 12 C.F.R. Section 574.4(b) and has
not rebutted control in accordance with 12 C.F.R. Section 574.4(c).
<PAGE> 6
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 the EMPLOYERS' 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 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 EMPLOYERS' affairs by an order issued under
Section 8(e) (4) or (g) (l) 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 the EMPLOYERS are 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 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 the EMPLOYERS 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 EMPLOYERS or when the
EMPLOYERS are 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.
Section 7. Confidential Information. The EMPLOYEE acknowledges that
during her employment she will learn and have access to confidential information
regarding the EMPLOYERS and their customers and businesses. The EMPLOYEE agrees
and covenants not
<PAGE> 7
to disclose or use for her 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. Nonassignabilitv. Neither this AGREEMENT nor any right or
interest hereunder shall be assignable by the EMPLOYEE, her 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 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.
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 invalid or cannot be enforced, then any prior
AGREEMENT between the EMPLOYERS (or any predecessor thereof) and the
<PAGE> 8
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 and the EMPLOYEE, each of which is
hereby terminated and is of no further force or effect.
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 Winton Financial Corporation and/or The Winton Savings & Loan
Company:
Winton Financial Corporation
5511 Cheviot Road
Cincinnati, Ohio 45247-7095
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:
Jill M. Burke
25 Indiana Drive
Covington, Kentucky 41015
<PAGE> 9
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: WINTON FINANCIAL CORPORATION
Linda A. Seitzer________________ By Robert L. Bollin___________________
Robert L. Bollin__________________
its President________________________
Attest: THE WINTON SAVINGS AND LOAN
CO.
Linda A. Seitzer______________________ By Robert L. Bollin ___________________
Robert L. Bollin ___________________
its President______________________
Attest:
Linda A. Seitzer_____________________ Jill M. Burke________________________
Jill M. Burke
<PAGE> 1
Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as this
"AGREEMENT"), entered into this 1st day of May, 1996, by and among Winton
Financial Corporation, a savings and loan holding company incorporated under
Ohio law (hereinafter referred to as "WFC"), The Winton Savings and Loan Co., a
savings and loan association incorporated under Ohio law and a wholly-owned
subsidiary WFC (hereinafter referred to as "WINTON"), and Anthony G. Gerstner,
an individual (hereinafter referred to as the "EMPLOYEE");
WITNESSETH:
WHEREAS, the EMPLOYEE is an employee of WFC and WINTON (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 Compliance Officer of each of the EMPLOYERS;
WHEREAS, the EMPLOYEE desires to continue to serve as the Compliance
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:
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 Compliance Officer of each of the
EMPLOYERS. The term of this AGREEMENT shall commence on the date hereof and
shall end on April 30, 1997 (hereinafter referred to as the "TERM").
Section 2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. As the Compliance Officer of
each of the EMPLOYERS, 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 Boards of Directors of the
EMPLOYERS and all applicable laws and regulations. The EMPLOYEE shall
<PAGE> 2
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 an
executive capacity without diminishment of the importance or prestige of his
position.
(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 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(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 $65,000 until changed by the Boards of Directors of the
EMPLOYER in accordance with Section 3(b) of this AGREEMENT.
(b) Annual Salary Review. In December 1996, the annual salary of the
EMPLOYEE shall be reviewed by the Boards of Directors of the EMPLOYERS and shall
be set, effective January l of 1997, at an amount not less than $65,000 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, reimbursement of membership fees in civic, social
and professional organizations 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
<PAGE> 3
"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 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 four 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.
<PAGE> 4
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 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 after CHANGE OF CONTROL. In the event that,
before the expiration of the TERM and in connection with or within one
year of 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 is
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 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 the ANNUAL REVIEW;
(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
<PAGE> 5
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.
(iii) Termination Without CHANGE OF CONTROL. In the event that
the employment of the EMPLOYEE is terminated before the expiration of
the TERM for any reason other than JUST CAUSE or in connection with or
within one year of a CHANGE OF CONTROL, the EMPLOYERS shall be
obligated to continue (A) 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 (B) 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.
(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. Section 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 TERM, either
any person or entity obtains "conclusive control" of the EMPLOYERS within the
meaning of 12 C.F.R. Section 574.4(a), or any person or entity obtains
"rebuttable control" within the meaning of 12 C.F.R. Section 574.4(b) and has
not rebutted control in accordance with 12 C.F.R. Section 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 the EMPLOYERS' affairs by a notice served under
section 8(e) (3) or (g) (1) of
<PAGE> 6
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 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 EMPLOYERS' affairs by an order issued under
Section 8(e) (4) or (g) (l) 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 the EMPLOYERS are 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 the EMPLOYERS 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 EMPLOYERS or when the
EMPLOYERS are 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.
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
<PAGE> 7
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. Nonassignabilitv. 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 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.
<PAGE> 8
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 and the EMPLOYEE, each of which is
hereby terminated and is of no further force or effect.
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 Winton Financial Corporation and/or The Winton Savings & Loan
Company:
Winton Financial Corporation
5511 Cheviot Road
Cincinnati, Ohio 45247-7095
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:
Anthony Gerstner
--------------------
--------------------
--------------------
<PAGE> 9
IN WITNESS WHEREOF, the EMPLOYERS have caused this AGREEMENT to be
executed by their duly authorized officers, and the EMPLOYEE has signed this
AGREEMENT, each as of the day and year first above written.
Attest: WINTON FINANCIAL CORPORATION
Linda A. Seitzer________________ By Robert L. Bollin___________________
Robert L. Bollin__________________
its President_______________________
Attest: THE WINTON SAVINGS AND LOAN
CO.
Linda A. Seitzer__________________ By Robert L. Bollin ___________________
Robert L. Bollin__________________
its President______________________
Attest:
Linda A. Seitzer__________________ Anthony G. Gerstner__________________
Anthony G. Gerstner
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<S> <C>
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<PERIOD-START> OCT-01-1996
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