EXHIBIT 10.1
CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT is dated this
21st day of April 2006, among Peoples Community Bancorp, Inc., a
Delaware corporation (the "Corporation"), Peoples Community Bank,
a Federally chartered savings bank and wholly owned subsidiary of
the Corporation (the "Bank"), and Xxxx X. Xxxx (the "Executive").
The Corporation and the Bank are collectively referred to as the
"Employers."
WITNESSETH
WHEREAS, the Executive is presently an officer of each of
the Employers;
WHEREAS, the Employers desire to be ensured of the
Executive's continued active participation in the business of the
Employers; and
WHEREAS, in order to induce the Executive to remain in the
employ of the Employers and in consideration of the Executive's
agreeing to remain in the employ of the Employers, the parties
desire to specify the severance benefits which shall be due the
Executive in the event that his employment with the Employers is
terminated under specified circumstances;
NOW THEREFORE, in consideration of the mutual agreements
herein contained, and upon the other terms and conditions
hereinafter provided, the parties hereby agree as follows:
1. Definitions. The following words and terms shall have
the meanings set forth below for the purposes of this Agreement:
(a) Annual Compensation. The Executive's "Annual
Compensation" for purposes of this Agreement shall be deemed to
mean the average level of compensation paid to the Executive by
the Employers or any subsidiary thereof during the most recent
five taxable years preceding the Date of Termination (or such
shorter period as the Executive was employed), and which was
included in the Executive's gross income for tax purposes,
including but not limited to the Executive's salary, bonuses and
all other amounts taxable to the Executive pursuant to any
employee benefit plans of the Employers.
(b) Cause. Termination of the Executive's employment for
"Cause" shall mean termination because of personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule or regulation (other
than traffic violations or similar offenses), final cease-and-
desist order or material breach of any provision of this
Agreement. For purposes of this paragraph, no act or failure to
act on the Executive's part shall be considered "willful" unless
done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that the Executive's action or
omission was in the best interests of the Employers.
(c) Change in Control of the Corporation. "Change in
Control of the Corporation" shall mean a change in the ownership
of the Corporation, a change in the effective control of the
Corporation or a change in the ownership of a substantial portion
of the assets of the Corporation as provided under Section 409A
of the Code, as amended from time to time, and any IRS guidance,
including Notice 2005-1, and regulations issued in connection
with Section 409A of the Code. In no event, however, shall a
Change in Control be deemed to have occurred as a result of any
acquisition of securities or assets of the Corporation, the Bank,
or a subsidiary of either of them, by the Corporation, the Bank,
or any subsidiary of either of them, or by any employee benefit
plan maintained by any of them.
(d) Code. "Code" shall mean the Internal Revenue Code of
1986, as amended.
(e) Date of Termination. "Date of Termination" shall mean
(i) if the Executive's employment is terminated for Cause, the
date on which the Notice of Termination is given, and (ii) if the
Executive's employment is terminated for any other reason, the
date specified in the Notice of Termination.
(f) Disability. Termination by the Employers of the
Executive's employment based on "Disability" shall be deemed to
have occurred if the Executive: (i) is unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or can be expected to last for a continuous
period of not less than 12 months, or (ii) is, by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than three months
under an accident and health plan covering employees of the
Employers.
(g) Effective Date. The Effective Date of this Agreement
shall mean the date first above written.
(h) Good Reason. Termination by the Executive of the
Executive's employment for "Good Reason" shall mean termination
by the Executive following a Change in Control of the Corporation
based on:
(1) Without the Executive's express written consent,
the failure to elect or to re-elect or to appoint
or to re-appoint the Executive to the office of
Senior Vice President, Chief Operations Officer of
the Employers or a material adverse change made by
the Employers in the Executive's functions, duties
or responsibilities as Senior Vice President,
Chief Operations Officer of the Employers;
(2) Without the Executive's express written consent, a
material reduction by the Employers in the
Executive's base salary as the same may be
increased from time to time or a material
reduction in the package of fringe benefits
provided to the Executive, taken as a whole;
(3) Without the Executive's express written consent,
the Employers require the Executive to work in an
office which is more than 30 miles from the
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location of the Employers' current principal
executive office, except for required travel on
business of the Employers to an extent
substantially consistent with the Executive's
present business travel obligations;
(4) Any purported termination of the
Executive's employment for Disability or
Retirement which is not effected pursuant to a
Notice of Termination satisfying the requirements
of paragraph (i) below; or
(5) The failure by the Employers to obtain
the assumption of and agreement to perform this
Agreement by any successor as contemplated in
Section 6 hereof.
(i) IRS. IRS shall mean the Internal Revenue Service.
(j) Notice of Termination. Any purported termination of
the Executive's employment by the Employers for any reason,
including without limitation for Cause, Disability or Retirement,
or by the Executive for any reason, including without limitation
for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a dated notice
which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) 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, (iii) specifies a Date of Termination, which shall be
not less than thirty (30) nor more than ninety (90) days after
such Notice of Termination is given, except in the case of the
Employers' termination of the Executive's employment for Cause,
which shall be effective immediately; and (iv) is given in the
manner specified in Section 7 hereof.
(k) Retirement. "Retirement" shall mean voluntary
termination by the Executive in accordance with the Employers'
retirement policies, including early retirement, generally
applicable to the Employers' salaried employees.
2. Benefits Upon Termination. If the Executive's
employment by the Employers shall be terminated subsequent to a
Change in Control of the Corporation by (i) the Employers for
other than Cause, Disability, Retirement or the Executive's death
or (ii) the Executive for Good Reason, then the Employers shall:
(a) pay to the Executive a lump sum cash amount within five
business days of the Date of Termination, a cash severance amount
equal to one (1) times the Executive's Annual Compensation; and
(b) maintain and provide for a period ending at the earlier
of (i) the expiration of the remaining term of this Agreement as
of the Date of Termination or (ii) the date of the Executive's
full-time employment by another employer (provided that the
Executive is entitled under the terms of such employment to
benefits substantially similar to those described in this
subparagraph (b)), at no cost to the Executive, the Executive's
continued participation in all group insurance, life insurance,
health and accident insurance, disability insurance and other
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employee benefit plans, programs and arrangements offered by the
Employers in which the Executive was entitled to participate
immediately prior to the Date of Termination (excluding (y) stock
option and restricted stock plans of the Employers and (z) cash
incentive compensation included in Annual Compensation), provided
that in the event that the Executive's participation in any plan,
program or arrangement as provided in this subparagraph (b) is
barred, or during such period any such plan, program or
arrangement is discontinued or the benefits thereunder are
materially reduced, the Employers shall arrange to provide the
Executive with benefits substantially similar to those which the
Executive was entitled to receive under such plans, programs and
arrangements immediately prior to the Date of Termination; and
provided further, that if the provision of any of the benefits
covered by this Section or Section 3(d) would trigger the 20%
excise tax and interest penalties under Section 409A of the
Internal Revenue Code (the "Code"), then the benefit(s) that
would trigger such tax and interest penalties shall not be
provided (the "Excluded Benefits"), and in lieu of the Excluded
Benefits the Employers shall pay to the Executive, in a lump sum
within 30 days following termination of employment or within 30
days after such determination should it occur after termination
of employment, a cash amount equal to the cost to the Employers
of providing the Excluded Benefits.
3. Limitation of Benefits under Certain Circumstances. If
the payments and benefits pursuant to Section 2 hereof, either
alone or together with other payments and benefits which the
Executive has the right to receive from the Employers, would
constitute a "parachute payment" under Section 280G of the Code,
the payments and benefits payable by the Employers pursuant to
Section 2 hereof shall be reduced, in the manner determined by
the Executive, by the amount, if any, which is the minimum
necessary to result in no portion of the payments and benefits
under Section 2 being non-deductible to either of the Employers
pursuant to Section 280G of the Code and subject to the excise
tax imposed under Section 4999 of the Code. The determination of
any reduction in the payments and benefits to be made pursuant to
Section 2 shall be based upon the opinion of independent tax
counsel selected by the Employers and paid by the Employers.
Such counsel shall be reasonably acceptable to the Employers and
the Executive; shall promptly prepare the foregoing opinion, but
in no event later than thirty (30) days from the Date of
Termination; and may use such actuaries as such counsel deems
necessary or advisable for the purpose. In the event that the
Employers and/or the Executive do not agree with the opinion of
such counsel, (i) the Employers shall pay to the Executive the
maximum amount of payments and benefits pursuant to Section 2, as
selected by the Executive, which such opinion indicates that
there is a high probability do not result in any of such payments
and benefits being non-deductible to the Employers and subject to
the imposition of the excise tax imposed under Section 4999 of
the Code and (ii) the Employers may request, and Executive shall
have the right to demand that the Employers request, a ruling
from the IRS as to whether the disputed payments and benefits
pursuant to Section 2 hereof have such consequences. Any such
request for a ruling from the IRS shall be promptly prepared and
filed by the Employers, but in no event later than thirty (30)
days from the date of the opinion of counsel referred to above,
and shall be subject to Executive's approval prior to filing,
which shall not be unreasonably withheld. The Employers and
Executive agree to be bound by any ruling received from the IRS
and to make appropriate payments to each other to reflect any
such rulings, together with interest at the applicable federal
rate provided for in Section 7872(f)(2) of the Code. Nothing
contained herein shall result in a reduction of any payments or
benefits to which the Executive may be entitled
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upon termination of employment under any circumstances other than
as specified in this Section 3, or a reduction in the payments
and benefits specified in Section 2 below zero.
4. Mitigation; Exclusivity of Benefits.
(a) The Executive shall not be required to mitigate the
amount of any benefits hereunder by seeking other employment or
otherwise, nor shall the amount of any such benefits be reduced
by any compensation earned by the Executive as a result of
employment by another employer after the Date of Termination or
otherwise.
(b) The specific arrangements referred to herein are not
intended to exclude any other benefits which may be available to
the Executive upon a termination of employment with the Employers
pursuant to employee benefit plans of the Employers or otherwise.
5. Withholding. All payments required to be made by the
Employers hereunder to the Executive shall be subject to the
withholding of such amounts, if any, relating to tax and other
payroll deductions as the Employers may reasonably determine
should be withheld pursuant to any applicable law or regulation.
6. Assignability. The Employers may assign this Agreement
and their rights and obligations hereunder in whole, but not in
part, to any corporation, bank, savings association or other
entity with or into which either of the Employers may hereafter
merge or consolidate or to which either of the Employers may
transfer all or substantially all of its respective assets, if in
any such case said corporation, bank or other entity shall by
operation of law or expressly in writing assume all obligations
of the Employers hereunder as fully as if it had been originally
made a party hereto, but may not otherwise assign this Agreement
or their rights and obligations hereunder. The Executive may not
assign or transfer this Agreement or any rights or obligations
hereunder.
7. Notice. For the purposes of this Agreement, notices
and all other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when
delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective
addresses set forth below:
To the Employers: Boards of Directors
Peoples Community Bancorp, Inc.
Peoples Community Bank
0000 Xxxx Xxxxxxx Xxxx
Xxxx Xxxxxxx, Xxxx 00000
To the Executive: Xxxx X. Xxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
8. Amendment; Waiver. No provisions of this Agreement may
be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and
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signed by the Executive and such officer or officers as may be
specifically designated by the Boards of Directors of the Employers
to sign on their behalf; however, that if the Employers determine,
after a review of the final regulations issued under Section 409A of
the Code and all applicable IRS guidance, that this Agreement should
be further amended to avoid triggering the tax and interest
penalties imposed by Section 409A of the Code, the Employers may
amend this Agreement to the extent necessary to avoid triggering
the tax and interest penalties imposed by Section. No waiver by
any party hereto at any time of any breach by any 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.
9. Governing Law. The validity, interpretation,
construction and performance of this Agreement shall be governed
by the laws of the United States where applicable and otherwise
by the substantive laws of the Corporation's state of
jurisdiction.
10. Nature of Employment and Obligations.
(a) Nothing contained herein shall be deemed to create
other than a terminable at will employment relationship between
the Employers and the Executive, and the Employers may terminate
the Executive's employment at any time, subject to providing any
payments specified herein in accordance with the terms hereof.
(b) Nothing contained herein shall create or require the
Employers to create a trust of any kind to fund any benefits
which may be payable hereunder, and to the extent that the
Executive acquires a right to receive benefits from the Employers
hereunder, such right shall be no greater than the right of any
unsecured general creditor of the Employers.
11. Term of Agreement. The term of this Agreement shall
run from the Effective Date through and including March 25, 2007,
and upon approval of the Boards of Directors of the Employers,
shall extend for an additional year on each March 25 thereafter.
Prior to March 25, 2007 and each March 25 thereafter, the Boards
of Directors of the Employers shall consider and review (after
taking into account all relevant factors, including the
Executive's performance) an extension of the term of this
Agreement, and the term shall continue to extend each year if the
Boards of Directors approve such extension unless the Executive
gives written notice to the Employers of the Executive's election
not to extend the term, with such written notice to be given not
less than thirty (30) days prior to any such anniversary date. If
the Boards of Directors of the Employers elect not to extend the
term, they shall give written notice of such decision to the
Executive not less than thirty (30) days prior to any such
anniversary date. If any party gives timely notice that the term
will not be extended as of any annual anniversary date, then this
Agreement shall terminate at the conclusion of its remaining
term. References herein to the term of this Agreement shall
refer both to the initial term and successive terms.
12. Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
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13. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which
shall remain in full force and effect.
14. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the
same instrument.
15. Regulatory Prohibition. Notwithstanding any other
provision of this Agreement to the contrary, any payments made to
the Executive pursuant to this Agreement, or otherwise, are
subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act (12 U.S.C. Section 1828(k))
and the regulations promulgated thereunder.
16. Entire Agreement. This Agreement embodies the entire
agreement between the Employers and the Executive with respect to
the matters agreed to herein. All prior agreements between the
Employers and the Executive with respect to the matters agreed to
herein are hereby superseded and shall have no force or effect.
IN WITNESS WHEREOF, this Agreement has been executed as of
the date first above written.
Attest: PEOPLES COMMUNITY BANCORP, INC.
/s/Xxxx X. Xxxxxxxx By: /s/Xxxxx X. Xxxxxxxx
__________________________ ___________________________________
Xxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
Attest: PEOPLES COMMUNITY BANK
/s/Xxxx X. Xxxxxxxx By: /s/Xxxxx X. Xxxxxxxx
__________________________ __________________________________
Xxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
EXECUTIVE
By: /s/Xxxx X. Xxxx
__________________________________
Xxxx X. Xxxx
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