AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT
TO
WHEREAS, Xxx X. Xxxxxxxx (the
“Executive”) is a party with M&F Bancorp, Inc. (the “Company”) and Mechanics
and Farmers Bank, a wholly-owned subsidiary of the Company (the “Bank”), to an
Employment Agreement, dated January 12, 2007 (the “Employment
Agreement”);
WHEREAS,
the Company intends to enter into a letter agreement with the United States
Department of the Treasury (the “UST”) pursuant to which the Company shall issue
shares of preferred stock and the UST shall purchase from the Company the shares
of preferred stock (the “Program”); and
WHEREAS, it is a condition to
participation in the Program under the Emergency Economic Stabilization Act of
2008, as amended (“EESA”), and rules, regulations, guidance or other
requirements issued thereunder (collectively, along with the EESA, the “EESA
Restrictions”), that (i) employment agreements and other agreements with the
Executive and certain other employees of the Company and the Bank (the “Covered
Employees”) be amended to comply with the EESA Restrictions; and (ii) the
Covered Employees execute a form of waiver (the “Waiver”); and
WHEREAS,
the Executive intends to execute the Waiver, wherein the Executive: (i)
acknowledges that the EESA Restrictions may require modification of the
employment, compensation, bonus, incentive, severance, retention and other
benefit plans, arrangements, policies and agreements (including so-called
“golden parachute” agreements), whether or not in writing, that the Executive
may have with the Company and the Bank (together, the “Employer”) or in which
the Executive participates as they relate to the period the United States holds
any equity or debt securities of the Company acquired through the Program
(collectively, along with the Employment Agreement, the “Benefit Plans”); (ii)
consents to all such modifications; and (iii) acknowledges and agrees that if
the Employer notifies her in writing that she has received payments in violation
of the EESA Restrictions, she shall repay the aggregate amount of such
payments
to the Employer no later than fifteen (15) business days following her receipt
of such notice;
NOW,
THEREFORE, in consideration of the mutual covenants and obligations set forth
herein, and as consideration for the benefits that the Executive will receive as
a result of the Company’s participation in the Program, the Company, the Bank
and the Executive agree as follows:
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1.
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No Golden Parachute
Payments. The Executive shall not receive any golden parachute
payment that is prohibited by the EESA
Restrictions.
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2.
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Recovery of
Payments
in Violation of the EESA Restrictions. If the
Employer notifies the Executive in writing that she has received payments
in violation of the EESA Restrictions, the Executive hereby agrees to
repay the aggregate amount of such payments to the Employer no later than
fifteen (15) business days following her receipt of such
notice.
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3.
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General. The
Benefit Plans are hereby amended to the extent necessary so as to be
consistent with the EESA
Restrictions.
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4.
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Interpretation This Amendment is
intended to, and shall be interpreted, administered and construed to
comply with the EESA Restrictions (and, to the maximum extent consistent
with the preceding, to permit operation of the Benefit Plans in accordance
with their terms before giving effect to this
Amendment.)
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626049v4
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5.
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Miscellaneous .
This Amendment shall be effective only so long as the Employer is subject
to the EESA Restrictions. In the event that the EESA Restrictions cease to
apply to the Employer, this Amendment shall immediately become null and
void. Further, to the extent permitted by the EESA Restrictions and
applicable law, Executive’s benefits under the Employment Agreement shall
accrue and shall be paid to the Executive at a future date when and if so
permitted by the EESA Restrictions and applicable law (“Accrued
Payments”). Any such Accrued Payments will not accrue interest. To the
extent not subject to federal law, this Amendment will be governed by and
construed in accordance with the laws of the State of North Carolina. This
Amendment may be executed in two or more counterparts, each of which will
be deemed to be an original. Except as amended herein, the Benefit Plans
shall remain in full force and
effect.
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IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Amendment to the Employment Agreement as of June 26, 2009.
M&F BANCORP, INC.
By:_______________________________________
Chairman
MECHANICS AND FARMERS
BANK
By:_______________________________________
Chairman
EXECUTIVE:
__________________________________________
Xxx X. Xxxxxxxx
626049v4
