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EXHIBIT 10.2
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") dated as of March 3,
1997, is made by and between People's Community Capital Corporation, a South
Carolina corporation (the "Employer" or the "Company") which is the proposed
bank holding company for People's Community Bank of South Carolina (Proposed),
a proposed state bank (the "Bank"), and XXXXX X. XXXXXXXXX, an individual
resident of South Carolina (the "Executive").
The Employer is in the process of organizing the Bank, and the
Executive has agreed to serve as Chairman and Chief Executive Officer of the
Company and the Bank. Upon organization of the Bank, the Employer and the
Executive contemplate that this Agreement will be assigned by the Employer to
the Bank and that the Bank will assume the duties of the Company hereunder
(except pursuant to Section 3). Following such assignment, the term "Employer"
as used herein from time to time shall refer to the Bank.
The Employer recognizes that the Executive's contribution to the
growth and success of the Bank during its organization and initial years of
operations will be a significant factor in the success of the Bank. The
Employer desires to provide for the employment of the Executive in a manner
which will reinforce and encourage the dedication of the Executive to the Bank
and promote the best interests of the Bank and its shareholders. The Executive
is willing to serve the Employer (and, after assignment of this Agreement, the
Bank) on the terms and conditions herein provided. Certain terms used in this
Agreement are defined in Section hereof.
In consideration of the foregoing, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Employment. The Employer shall employ the Executive, and the
Executive shall serve the Employer, as Chairman and Chief Executive Officer of
the Bank and the Company upon the terms and conditions set forth herein. The
Executive shall have such authority and responsibilities consistent with his
position as are set forth in the Company's or the Bank's Bylaws or assigned by
the Company's or the Bank's Board of Directors (the "Board") from time to time.
The Executive shall devote his full business time, attention, skill and efforts
to the performance of his duties hereunder, except during periods of illness or
periods of vacation and leaves of absence consistent with Bank policy. The
Executive may devote reasonable periods to service as a director or advisor to
other organizations, to charitable and community activities, and to managing
his personal investments, provided that such activities do not materially
interfere with the performance of his duties hereunder and are not in conflict
or competitive with, or adverse to, the interests of the Company or the Bank.
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2. Term. Unless earlier terminated as provided herein, the
Executive's employment under this Agreement shall commence on the date
hereof and be for a term (the "Term") of five years. At the end of each year of
the Term, upon adoption of a resolution by the Board of Directors of the Bank
(with the Executive abstaining) reflecting a determination by the Board that
the Executive has satisfactorily performed his duties hereunder through such
date, the Term shall be extended for an additional year so that the remaining
term shall continue to be five years; provided that the Executive may at any
time, by written notice to the Bank, fix the Term to a finite term of five
years commencing with the later of the date hereof or the date of the latest
such resolution. Notwithstanding the foregoing, the Term of employment
hereunder will end on the date that the Executive attains the retirement age,
if any, specified in the Bylaws of the Bank for directors of the Bank.
3. Compensation and Benefits.
(a) From the date of this Agreement through December 31, 1997,
the Employer shall pay the Executive a salary of $1.00 per annum, plus his
medical insurance premium yearly. Beginning January 1, 1998, the Employer shall
pay the Executive a salary of $75,000, plus his yearly medical insurance
premium. The Board (or an appropriate committee of the Board) shall review the
Executive's salary at least annually and may increase the Executive's base
salary if it determines in its sole discretion that an increase is appropriate.
In addition, as part of the consideration for the Executive's services
hereunder, on January 2, 1998, the Company shall issue to the Executive 5,000
shares of Common Stock for no additional consideration.
(b) The Executive shall be eligible to receive a cash bonus in
an amount determined by the Board on the first anniversary of the Opening Date,
with the Executive abstaining from participating in the consideration of and
vote on the matter, based on such intangible criteria as the Board shall
establish. For each anniversary of the Opening Date thereafter, the Executive
shall be eligible to receive a cash bonus equaling 5% of the net pre-tax income
of the Bank (determined in accordance with generally accepted accounting
principles) if the Bank achieves certain performance levels established by the
Board from time to time.
(c) The Executive shall participate in the Bank's long-term
equity incentive program and be eligible for the grant of stock options,
restricted stock, and other awards thereunder or under any similar plan adopted
by the Company. On the date of the closing of the stock offering for the
initial capitalization of the Bank, or as soon thereafter as an appropriate
stock option plan is adopted by the Board, the Company shall grant to the
Executive two sets of stock options: (i) an option (the "Time-Based Option") to
purchase 10,000 shares of Common Stock, and (ii) an option (the "Performance
Option") to purchase a number of shares of Common Stock equal to 5% of the
number of shares sold in the offering. The award agreement for the Time-Based
Option shall provide that 2,000 shares subject to the Time-Based Option will
vest on each of December 31, 1998, 1999, 2000, 2001, and 2002, but in each case
only if the Executive remains employed by the Company on such date. The award
agreement for the Performance Option shall provide
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that one-fifth of the shares subject to the Performance Option will vest on
each of the first five anniversaries of the Opening Date, but only if the
Executive remains employed by the Company on such date and the Bank has met the
performance goals set forth hereof for such year:
For each twelve month period beginning on the Opening Date, and
as a condition to the vesting of the shares subject to the
performance-based option in such year (except in the event of a Change
in Control), the Bank must meet the following performance criteria:
(i) the Bank shall meet or exceed 100% of the pro forma
projections contained in the application of the Bank
filed with the State Board of Financial Institutions
of the State of South Carolina for each year of
operations of the Bank;
(ii) for the fiscal quarter ending with or immediately
prior to the Bank's fiscal year, the Bank's ratio of
non-current loans and leases to total loans and
leases, as determined in the Uniform Bank
Performance Report (the "UBPR"), shall not exceed
the ratio of non-current loans and leases to total
loans and leases for banks in the Bank's peer group,
as defined in the UBPR; and
(iii) the Bank shall maintain a regulatory examination
rating of "satisfactory" or better;
provided, however, that if the Bank does not meet the performance
criteria for any year, the shares subject to the performance-based
option for such year may vest on the following anniversary date, in
the sole discretion of the Board, if the Bank meets or exceeds the
performance criteria for such year in the following year. The Board
shall notify the Executive of any shares subject to the
performance-based option vested hereunder within a reasonable period
of time after the anniversary date to which such options pertain. The
good faith determination of the Board regarding whether the Bank met
its yearly performance levels shall be conclusive.
In addition, the award agreements for both the Time-Based Option and the
Performance Option will provide that (i) the Executive's option shall be
qualified as an incentive stock option under the Internal Revenue Code of 1986,
as amended (the "Code"); (ii) all options shall be exercisable at any time
during the ten years following the date of grant at a price per share equal to
the public offering price in the offering (subject to standard antidilution
adjustments in the event of stock splits, dividends or combinations), which the
parties agree is the fair market value of the Common Stock as of the date of
grant; and (iii) all options shall be nontransferable and nonassignable by the
Executive or by any other person entitled hereunder to exercise any such
rights; provided, however, that upon the death of the Executive any rights
granted hereunder shall be transferable by the Executive's will or by the
applicable laws of descent and distribution. In the event of a Change in
Control, the restrictions on any outstanding incentive awards (including
restricted stock) granted to
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the Executive under any incentive plan or arrangement shall lapse and such
incentive award shall become 100% vested; all stock options and stock
appreciation rights granted to the Executive shall become immediately
exercisable and shall become 100% vested; and all performance units granted to
the Executive shall become 100% vested. Nothing herein shall be deemed to
preclude the granting to the Executive of warrants or options under a director
option plan in addition to the options granted hereunder.
(d) The Executive shall participate in all retirement, welfare
and other benefit plans or programs of the Employer now or hereafter applicable
generally to employees of the Employer or to a class of employees that includes
senior executives of the Employer; provided that during any period during the
Term that the Executive is subject to a Disability, and during the 180-day
period of physical or mental infirmity leading up to the Executive's
Disability, the amount of the Executive's compensation provided under this
Section 3 shall be reduced by the sum of the amounts, if any, paid to the
Executive for the same period under any disability benefit or pension plan of
the Employer or any of its subsidiaries.
(e) Beginning upon the opening of the Bank for business, the
Company shall provide the Executive with either i) an automobile (at a cost not
to exceed $25,000) owned or leased by the Company of a make and model
appropriate to the Executive's status, or ii) a monthly automobile allowance
not to exceed $600 per month.
(f) In addition, the Employer shall obtain a membership in, and
pay the dues pertaining to, an area Country Club and shall designate the
Executive as the authorized user of such membership for so long as the
Executive remains the Chairman and CEO of the Employer and this Agreement
remains in force.
(g) The Employer shall reimburse the Executive for reasonable
travel and other expenses related to the Executive's duties which are incurred
and accounted for in accordance with the normal practices of the Employer.
4. Termination.
(a) The Executive's employment under this Agreement may
be terminated prior to the end of the Term only as follows:
(i) upon the death of the Executive;
(ii) by the Employer due to the Disability of the
Executive upon delivery of a Notice of Termination to the
Executive;
(iii) by the Employer for Cause upon delivery of a
Notice of Termination to the Executive;
(iv) by the Executive for Good Reason upon delivery
of a Notice of Termination to the Employer within a 90-day
period beginning on the 30th day
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after the occurrence of a Change in Control or within a 90-day period
beginning on the one year anniversary of the occurrence of a Change
in Control;
(v) by the Employer if its effort to organize
the Bank is abandoned; and
(vi) by the Executive effective upon the 30th day
after delivery of a Notice of Termination.
(b) If the Executive's employment with the Employer is
terminated during the Term (i) by reason of the Executive's death or (ii) by
the Employer for Disability or Cause, the Employer shall pay to the Executive
(or, in the case of his death, the Executive's estate) within fifteen days
after the Termination Date a lump sum cash payment equal to the Accrued
Compensation and, if such termination is other than by the Employer for Cause,
the Pro Rata Bonus.
(c) If the Executive's employment with the Employer is
terminated by the Employer in violation of this Agreement or by the Executive
for Good Reason, in addition to other rights and remedies available in law or
equity, the Executive shall be entitled to the following:
(i) the Employer shall pay the Executive in cash
within fifteen days of the Termination Date an amount equal to
all Accrued Compensation and the Pro Rata Bonus;
(ii) the Employer shall pay to the Executive in cash
at the end of each of the twelve consecutive months following
the Termination Date an amount equal to one-twelfth of the sum
of the Base Amount and the Bonus Amount;
(iii) for the period from the Termination Date
through the date that the Executive attains the age of 65 (the
"Continuation Period"), the Employer shall at its expense
continue on behalf of the Executive and his dependents and
beneficiaries the life insurance, disability, medical, dental,
and hospitalization benefits provided (x) to the Executive at
any time during the 90-day period prior to the Change in
Control or at any time thereafter or (y) to other similarly
situated executives who continue in the employ of the Employer
during the Continuation Period. The coverage and benefits
(including deductibles and costs) provided in this Section
4(c)(iii) during the Continuation Period shall be no less
favorable to the Executive and his dependents and beneficiaries
than the most favorable of such coverages and benefits during
any of the periods referred to in clauses (x) and (y) above.
The Employer's obligation hereunder with respect to the
foregoing benefits shall be limited to the extent that the
Executive obtains any such benefits pursuant to a subsequent
employer's benefit plans, in which case the Employer may reduce
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the coverage of any benefits it is required to provide the
Executive hereunder as long as the aggregate coverages and
benefits of the combined benefit plans is no less favorable to
the Executive than the coverages and benefits required to be
provided hereunder. This subsection (iii) shall not be
interpreted so as to limit any benefits to which the Executive
or his dependents or beneficiaries may be entitled under any of
the Employer's employee benefit plans, programs, or practices
following the Executive's termination of employment, including,
without limitation, retiree medical and life insurance
benefits; and
(iv) the restrictions on any outstanding incentive
awards (including restricted stock) granted to the Executive
under the Company's or the Bank's long-term equity incentive
program or any other incentive plan or arrangement shall lapse
and become 100% vested, all stock options and stock
appreciation rights granted to the Executive shall become
immediately exercisable and shall become 100% vested, and all
performance units granted to the Executive shall become 100%
vested.
(d) If the Executive's employment with the Employer is
terminated by the Employer pursuant to Section 4(a)(v) hereof, the Executive
shall be entitled to the following:
(i) the Employer shall pay the Executive in cash
within fifteen days of the Termination Date an amount equal to
all Accrued Compensation; and
(ii) the Employer shall pay to the Executive in cash
at the end of each of the six consecutive months following the
Termination Date an amount equal to one-twelfth of the Base
Amount.
(e) If the Executive's employment with the Employer is
terminated by the Executive pursuant to Section 4(a)(vi) hereof, the Employer
shall pay the Executive in cash within fifteen days of the Termination Date an
amount equal to all Accrued Compensation.
(f) The Executive shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to the Executive in any subsequent employment
except as provided in Section 4(c)(iii).
(g) In the event that any payment or benefit (within the meaning
of Section 280(b)(2) of the Code) to the Executive or for his benefit paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise in connection with, or arising out of, his employment with the
Employer or a change in ownership or effective control of the Employer or of a
substantial portion of its assets (a "Payment" or "Payments"), would be subject
to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by the Executive with respect to such excise tax
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(such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Executive
will be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes (including any
interest or penalties, other than interest and penalties imposed by reason of
the Executive's failure to file timely a tax return or pay taxes shown due on
his return, imposed with respect to such taxes and the Excise Tax), including
any Excise Tax imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(h)The severance pay and benefits provided for in this Section
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Executive may be entitled under any Employer severance or termination plan,
program, practice or arrangement. The Executive's entitlement to any other
compensation or benefits shall be determined in accordance with the Employer's
employee benefit plans and other applicable programs, policies and practices
then in effect.
5. Trade Secrets. The Executive shall not, at any time, either during
the Term of his employment or after the Termination Date, use or disclose any
Trade Secrets of the Employer, except in fulfillment of his duties as the
Executive during his employment, for so long as the pertinent information or
data remain Trade Secrets, whether or not the Trade Secrets are in written or
tangible form.
6. Non-Competition and Non-Solicitation Covenants. The Executive shall
not, during the Term and for a period of twelve months thereafter, either for
himself or on behalf of any other person, directly or indirectly, without the
prior consent of the Employer, (i) serve as a director, officer at the Vice
President level or higher or organizer or promoter of, or provide executive
management services to, any financial institution located within Aiken County,
(ii) solicit any Major Customer for the purpose of providing banking services
to such Major Customer, or (iii) solicit any employee of the Employer for
employment by any other party. For purposes of this Section, a "Major Customer"
shall mean any customer of the Employer that Employee has contacted, negotiated
with, or performed any services on behalf of, during the Term or the preceding
two years of the Term, whichever is shorter, and that has maintained or
purchased from the Employer at any time during such period deposits, mutual
funds or other investments in excess of $20,000.
7. Successors; Binding Agreement.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the Employer, its Successors and Assigns and the Employer shall
require any Successors and Assigns to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Employer
would be required to perform it if no such succession or assignment had taken
place.
(b) Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Executive, his beneficiaries or legal
representatives,
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except by will or by the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Executive's legal personal
representative.
8. Fees and Expenses. The Employer shall pay all legal fees and
related expenses (including the costs of experts, evidence and counsel)
incurred by the Executive as they become due as a result of (a) the Executive's
termination of employment (including all such fees and expenses, if any,
incurred in contesting or disputing any such termination of employment) and (b)
the Executive seeking to obtain or enforce any right or benefit provided by
this Agreement; but only if the circumstances set forth in clauses (a) and (b)
occurred on or after a Change in Control.
9. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Employer shall be directed to
the attention of the Board with a copy to the Secretary of the Employer. All
notices and communications shall be deemed to have been received on the date of
delivery thereof, except that notice of change of address shall be effective
only upon receipt.
10. Settlement of Claims. The Employer's obligation to make the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any circumstances, including,
without limitation, any set-off, counterclaim, recoupment, defense, or other
right which the Employer may have against the Executive or others. The Employer
may, however, withhold from any benefits payable under this Agreement all
federal, state, city, or other taxes as shall be required pursuant to any law
or governmental regulation or ruling.
11. Modification and Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and the Employer. No waiver by
any party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
12. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of South Carolina without
giving effect to the conflict of laws principles thereof. Any action brought by
any party to this Agreement shall be brought and maintained in a court of
competent jurisdiction in Aiken County in the State of South Carolina.
13. Severability. The parties agree that the provisions of this
Agreement are severable and the invalidity or unenforceability of any
provision in whole or part shall not affect the validity or enforceability of
any enforceable part of such provision or any other
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provisions hereof. It is further agreed that the courts may "blue pencil" the
provisions of this Agreement to provide for maximum enforcement of such
provisions.
14. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior
agreements, if any, understandings and arrangements, oral or written, between
the parties hereto with respect to the subject matter hereof.
15. Headings. The headings of Sections herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
17. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) "Accrued Compensation" shall mean an amount which includes
all amounts earned or accrued through the Termination Date, but not paid as of
the Termination Date including (i) base salary and any vacation time earned but
not used, (ii) reimbursement for reasonable and necessary expenses incurred by
the Executive on behalf of the Employer during the period ending on the
Termination Date, and (iii) bonuses and incentive compensation (other than the
Pro Rata Bonus).
(b) "Base Amount" shall mean the greater of the Executive's
annual base salary (i) at the rate in effect on the Termination Date or (ii) at
the highest rate in effect at any time during the ninety-day period prior to
the Change in Control, and shall include all amounts of his base salary that
are deferred under the qualified and non-qualified employee benefit plans of
the Employer or any other agreement or arrangement.
(c) "Bonus Amount" shall mean the greater of (i) the most
recent annual bonus paid or payable to the Executive or, if greater, the annual
bonus paid or payable for the full fiscal year ended prior to the fiscal year
during which a Change in Control occurred, or (ii) the average of the annual
bonuses paid or payable during the three full fiscal years ended prior to the
Termination Date or, if greater, the three full fiscal years ended prior to the
Change in Control (or, in each case, such lesser period for which annual
bonuses were paid or payable to the Executive).
(d) The termination of the Executive's employment shall be for
"Cause" if it is a result of:
(i) any act that (A) constitutes, on the part of the
Executive, fraud, dishonesty, gross malfeasance of duty, or
conduct grossly inappropriate to the Executive's office, and
(B) is demonstrably likely to lead to material injury to
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the Employer or resulted or was intended to result in direct or
indirect gain to or personal enrichment of the Executive; or
(ii) the conviction (from which no appeal may be
or is timely taken) of the Executive of a felony; or
(iii) the suspension or removal of the Executive by
federal or state banking regulatory authorities acting under
lawful authority pursuant to provisions of federal or state law
or regulation which may be in effect from time to time;
provided, however, that in the case of clause (i) above, such conduct shall not
constitute Cause unless (A) there shall have been delivered to the Executive a
written notice setting forth with specificity the reasons that the Board
believes the Executive's conduct constitutes the criteria set forth in clause
(i), (B) the Executive shall have been provided the opportunity to be heard in
person by the Board (with the assistance of the Executive's counsel if the
Executive so desires), and (C) after such hearing, the termination is evidenced
by a resolution adopted in good faith by two-thirds of the members of the Board
(other than the Executive).
(e) A "Change in Control" shall mean the occurrence during the
Term of any of the following events:
(i) An acquisition (other than directly from the
Company) of any voting securities of the Bank (the "Voting
Securities") by any "Person" (as the term person is used for
purposes of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934 (the "1934 Act")) immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule
13d-3 promulgated under the 0000 Xxx) of 20% or more of the
combined voting power of the Company's then outstanding Voting
Securities; provided, however, that in determining whether a
Change in Control has occurred, Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would cause
a Change in Control. A "Non-Control Acquisition" shall mean an
acquisition by (1) an employee benefit plan (or a trust forming
a part thereof) maintained by (x) the Company or (y) any
corporation or other Person of which a majority of its voting
power or its equity securities or equity interest is owned
directly or indirectly by the Company (a "Subsidiary"), (2) the
Company or any Subsidiary, or (3) any Person in connection with
a "Non-Control Transaction" (as hereinafter defined).
(ii) The individuals who, as of the date of this
Agreement, are members of the Board of either the Company or
the Bank (the "Incumbent Board") cease for any reason to
constitute at least two-thirds of the Board; provided, however,
that if the election, or nomination for election by the
Company's or Bank's shareholders, of any new director was
approved by a
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vote of at least two-thirds of the Incumbent Board, such new
director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board; provided, further, however,
that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as
a result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the 0000 Xxx) or
other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(iii) Approval by shareholders of the Company or
the Bank of:
(A) A merger, consolidation or
reorganization involving the Bank, unless
(1) the shareholders of the Company
or the Bank, as the case may be,
immediately before such merger,
consolidation or reorganization,
own, directly or indirectly,
immediately following such
merger, consolidation or
reorganization, at least
two-thirds of the combined voting
power of the outstanding voting
securities of the corporation
resulting from such merger or
consolidation or reorganization
(the "Surviving Corporation") in
substantially the same proportion
as their ownership of the Voting
Securities immediately before
such merger, consolidation or
reorganization, and
(2) the individuals who were members
of the Incumbent Board
immediately prior to the
execution of the agreement
providing for such merger,
consolidation or reorganization
constitute at least two-thirds of
the members of the board of
directors of the Surviving
Corporation.
(A transaction described in clauses (1)
and (2) shall herein be referred to as a
"Non-Control Transaction.")
(B) A complete liquidation or dissolution
of the Company or the Bank; or
(C) An agreement for the sale or other
disposition of all or substantially all
of the assets of the Company or the
Bank to any Person (other than a
transfer to a Subsidiary).
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(iv) Notwithstanding anything contained in this Agreement to
the contrary, if the Executive's employment is terminated prior to a
Change in Control and the Executive reasonably demonstrates that such
termination (A) was at the request of a third party who has indicated
an intention or taken steps reasonably calculated to effect a Change
in Control and who effectuates a Change in Control (a "Third Party")
or (B) otherwise occurred in connection with, or in anticipation of, a
Change in Control which actually occurs, then for all purposes of this
Agreement, the date of a Change in Control with respect to the
Executive shall mean the date immediately prior to the date of such
termination of the Executive's employment.
(f) "Disability" shall mean a physical or mental infirmity which
impairs the Executive's ability to substantially perform his duties with the
Employer for a period of 180 consecutive days, as determined by an independent
physician selected with the approval of both the Employer and the Executive.
(g) "Good Reason" shall mean the occurrence after a Change in Control
of any of the events or conditions described in subsections (i) through (viii)
hereof:
(i) a change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which,
in the Executive's reasonable judgment, represents an adverse change
from his status, title, position or responsibilities as in effect at
any time within ninety days preceding the date of a Change in Control
or at any time thereafter; the assignment to the Executive of any
duties or responsibilities which, in the Executive's reasonable
judgment, are inconsistent with his status, title, position or
responsibilities as in effect at any time within ninety days preceding
the date of a Change in Control or at any time thereafter; any removal
of the Executive from or failure to reappoint or reelect him to any of
such offices or positions, except in connection with the termination
of his employment for Disability or Cause, as a result of his death,
or by the Executive other than for Good Reason, or any other change in
condition or circumstances that in the Executive's reasonable judgment
makes it materially more difficult for the Executive to carry out the
duties and responsibilities of his office than existed at any time
within ninety days preceding the date of Change in Control or at any
time thereafter;
(ii) a reduction in the Executive's base salary or any failure
to pay the Executive any compensation or benefits to which
he is entitled within five days of the date due;
(iii) the Employer's requiring the Executive to be based at any
place outside a 30-mile radius from the executive offices occupied by
the Executive immediately prior to the Change in Control, except for
reasonably required travel on the Employer's business which is not
materially greater than such travel requirements prior to the Change
in Control;
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(iv) the failure by the Employer to (A) continue in effect
(without reduction in benefit level and/or reward opportunities) any
material compensation or employee benefit plan in which the Executive
was participating at any time within ninety days preceding the
date of a Change in Control or at any time thereafter, unless such
plan is replaced with a plan that provides substantially equivalent
compensation or benefits to the Executive, or (B) provide the
Executive with compensation and benefits, in the aggregate, at least
equal (in terms of benefit levels and/or reward opportunities) to
those provided for under each other employee benefit plan, program
and practice in which the Executive was participating at any time
within ninety days preceding the date of a Change in Control or at
any time thereafter;
(v) the insolvency or the filing (by any party, including the
Employer) of a petition for bankruptcy of the Employer, which
petition is not dismissed within sixty days;
(vi) any material breach by the Employer of any material
provision of this Agreement;
(vii) any purported termination of the Executive's employment
for Cause by the Employer which does not comply with the terms of
this Agreement; or
(viii) the failure of the Employer to obtain an agreement,
satisfactory to the Executive, from any Successors and Assigns to
assume and agree to perform this Agreement, as contemplated in
Section 6 hereof.
Any event or condition described in clause (i) through (viii) above which
occurs prior to a Change in Control but which the Executive reasonably
demonstrates (A) was at the request of a Third Party, or (B) otherwise arose in
connection with, or in anticipation of, a Change in Control which actually
occurs, shall constitute Good Reason for purposes of this Agreement,
notwithstanding that it occurred prior to the Change in Control. The
Executive's right to terminate his employment for Good Reason shall not be
affected by his incapacity due to physical or mental illness.
(h) "Notice of Termination" shall mean a written notice of termination
from the Employer or the Executive which specifies an effective date of
termination, indicates the specific termination provision in this Agreement
relied upon, and sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
(i) "Opening Date" shall mean the date the Bank commences operations.
(j) "Pro Rata Bonus" shall mean an amount equal to the Bonus Amount
multiplied by a fraction the numerator of which is the number of days in the
fiscal year through the Termination Date and the denominator of which is 365.
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(k) "Successors and Assigns" shall mean the Bank or a corporation or
other entity acquiring all or substantially all the assets and business of the
Bank (including this Agreement), whether by operation of law or otherwise.
(l) "Termination Date" shall mean, in the case of the Executive's
death, his date of death, and in all other cases, the date specified in the
Notice of Termination.
(m) "Trade Secrets" shall mean any information, including but not
limited to technical or non-technical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing, a process,
financial data, financial plans, product plans, information on customers, or a
list of actual or potential customers or suppliers, which: (i) derives economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use, and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers thereunto duly
authorized, and the Executive has signed and sealed this Agreement, effective
as of the date first above written.
ATTEST: PEOPLE'S COMMUNITY CAPITAL
CORPORATION
By: By:
------------------------------- -----------------------------
Name:
Title:
EXECUTIVE
--------------------------------
Xxxxx X. Xxxxxxxxx
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