EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated this __ day of _______ 2002, between Minden
Building and Loan Association (the "Association") and A. Xxxxx Xxxxx (the
"Executive") (the "Agreement").
WITNESSETH
WHEREAS, the Executive is presently an officer of Minden Bancorp, Inc.
(the "Corporation") and the Association (together, the "Employers");
WHEREAS, the Association desires to be ensured of the Executive's
active participation in the business of the Employers;
WHEREAS, the Association has reorganized (the "Reorganization") into
the mutual holding company form whereby the Association has become the wholly
owned subsidiary of the Corporation which is a majority owned subsidiary of
Minden Mutual Holding Company (the "MHC"); and
WHEREAS, in order to induce the Executive to serve in the employ of the
Employers and in consideration of the Executive's agreeing to serve in the
employ of the Employers, the parties desire to specify the severance benefits
which shall be due the Executive by the Association in the event that his
employment with the Association 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 highest level of
aggregate base salary and cash incentive compensation paid to the Executive by
the Employers or any subsidiary thereof during the calendar year in which the
Date of Termination occurs (determined on an annualized basis) or either of the
two calendar years immediately preceding the calendar year in which the Date of
Termination occurs.
(b) BASE SALARY. "Base Salary" shall have the meaning set forth in
Section 3(a) hereof.
(c) 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) or final
cease-and-desist order or material breach of any provision of this Agreement.
(d) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of the
Corporation" shall mean the occurrence of any of the following: (i) the
acquisition of control of the Corporation as defined in 12 C.F.R. Section
574.4, unless a presumption of control is successfully rebutted or unless the
transaction is exempted by 12 C.F.R. Section 574.3(c)(vii), or any successor
to such sections; (ii) an event that would be required to be reported in
response to Item 1(a) of Form 8-K or Item 6(e) of Schedule 14A of Regulation
14A pursuant to the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or any successor thereto, whether or not any class of securities of
the Corporation is registered under the Exchange Act; (iii) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Corporation representing
25% or more of the combined voting power of the Corporation's then
outstanding securities; or (iv) during any period of three consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Corporation or the Association cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by stockholders, of each new director was approved by a vote of
at least two-thirds of the directors then still in office who were directors
at the beginning of the period; provided, however, that no Change in Control
of the Corporation will be deemed to have occurred in the event the MHC
undertakes a mutual to stock conversion.
(e) CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause or for Disability, the date
specified in the Notice of Termination, and (ii) if the Executive's employment
is terminated for any other reason, the date on which a Notice of Termination is
given or as specified in such Notice.
(g) DISABILITY. Termination by the Association of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits under
the applicable long-term disability plan maintained by the Employers or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(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:
(i) Without the Executive's express written consent, a
material reduction by the Association in the
Executive's Base Salary as the same may be increased
from time to time or, except to the extent permitted
by Section 3(b) hereof, a reduction in the package of
fringe benefits provided to the Executive, taken as a
whole;
(ii) The principal executive office of either of the
Employers is relocated outside of Webster Parish,
Louisiana or, without the Executive's express written
consent,
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either of the Employers require the Executive to be
based anywhere other than an area in which the
Employers' principal executive office is located,
except for required travel on business of the
Employers to an extent substantially consistent with
the Executive's present business travel obligations;
(iii) 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 (j) below;
(iv) The failure by the Employers to obtain the
assumption of and agreement to perform this
Agreement by any successor as contemplated in
Section 10 hereof; or
(v) 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 offices of President
and Chief Executive Officer of the Association or a
material adverse change made by the Association in
the Executive's functions, duties or responsibilities
as President and Chief Executive Officer of the
Association.
(i) IRS. IRS shall mean the Internal Revenue Service.
(j) NOTICE OF TERMINATION. Any purported termination of the Executive's
employment by the Association 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 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 Association's termination of Executive's employment for Cause,
which shall be effective immediately; and (iv) is given in the manner specified
in Section 11 hereof.
(k) RETIREMENT. "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employers' retirement policies, including early
retirement, generally applicable to their salaried employees.
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2. TERM OF EMPLOYMENT.
(a) The Association hereby employs the Executive as President and Chief
Executive Officer, and the Executive hereby accepts said employment and agrees
to render such services to the Association on the terms and conditions set forth
in this Agreement. The term of this Agreement shall be a period of three years
commencing as of the date hereof (the "Commencement Date"), subject to earlier
termination as provided herein. Beginning on the day which is one year
subsequent to the Commencement Date, and on each annual anniversary thereafter,
the term of this Agreement shall be extended for a period of one year in
addition to the then-remaining term, provided that the Association has given
notice to the Executive in writing at least sixty (60) days prior to such day
that the term of the Agreement shall be extended further. Reference herein to
the term of this Agreement shall refer to both such initial term and such
extended terms. The Board of Directors of the Association shall review on a
periodic basis (and no less frequently than annually) whether to permit further
extensions of the term of this Agreement. As part of such review, the Board of
Directors shall consider all relevant factors, including the Executive's
performance hereunder, and shall either expressly approve further extensions of
the time of this Agreement or decide to provide notice to the contrary.
(b) During the term of this Agreement, the Executive shall perform such
executive services for the Association as may be consistent with his titles and
from time to time assigned to him by the Association's Board of Directors.
3. COMPENSATION AND BENEFITS.
(a) The Association shall compensate and pay the Executive for his
services during the term of this Agreement at a minimum base salary of
$[_________] per year ("Base Salary"), which may be increased from time to time
in such amounts as may be determined by the Board of Directors of the
Association and may not be decreased without the Executive's express written
consent. In addition to his Base Salary, the Executive shall be entitled to
receive during the term of this Agreement such bonus payments as may be
determined by the Board of Directors of the Association.
(b) During the term of this Agreement, the Executive shall be entitled
to participate in and receive the benefits of any pension or other retirement
benefit plan, profit sharing, stock option, employee stock ownership, or other
plans, benefits and privileges given to employees and executives of the
Employers, to the extent commensurate with his then duties and responsibilities,
as fixed by the Boards of Directors of the Employers. The Employers shall not
make any changes in such plans, benefits or privileges which would adversely
affect the Executive's rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all executive officers of the Employers and
does not result in a proportionately greater adverse change in the rights of or
benefits to the Executive as compared with any other executive officer of the
Employers. Nothing paid to the Executive under any plan or arrangement presently
in effect or made available in the future shall be deemed to be in lieu of the
salary payable to the Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, the Executive shall be entitled
to paid annual vacation in accordance with the policies as established from time
to time by the Board of Directors of the Association. The Executive shall not be
entitled to receive any additional compensation from the
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Association for failure to take a vacation, nor shall the Executive be able
to accumulate unused vacation time from one year to the next, except to the
extent authorized by the Board of Directors of the Association.
(d) In the event the Executive's employment is terminated due to
Disability or Retirement, the Association shall provide continued life, medical,
dental and disability coverage substantially identical to the coverage
maintained by the Employers for the Executive immediately prior to his
termination. Such coverage shall cease upon the expiration of the remaining term
of this Agreement.
4. EXPENSES. The Association shall reimburse the Executive or
otherwise provide for or pay for all reasonable expenses incurred by the
Executive in furtherance of or in connection with the business of the
Association, including, but not by way of limitation, automobile expenses and
other traveling expenses, and all reasonable entertainment expenses (whether
incurred at the Executive's residence, while traveling or otherwise), subject
to such reasonable documentation and other limitations as may be established
by the Board of Directors of the Association. If such expenses are paid in
the first instance by the Executive, the Association shall reimburse the
Executive therefor.
5. TERMINATION.
(a) The Association shall have the right, at any time upon prior Notice
of Termination, to terminate the Executive's employment hereunder for any
reason, including without limitation termination for Cause, Disability or
Retirement, and the Executive shall have the right, upon prior Notice of
Termination, to terminate his employment hereunder for any reason.
(b) In the event that (i) the Executive's employment is terminated by
the Association for Cause or (ii) the Executive terminates his employment
hereunder other than for Disability, Retirement, death, or Good Reason, the
Executive shall have no right pursuant to this Agreement to compensation or
other benefits for any period after the applicable Date of Termination.
(c) In the event that the Executive's employment is terminated as a
result of Disability, Retirement or the Executive's death during the term of
this Agreement, the Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination, except as provided for in Section 3(d) hereof.
(d) In the event that (i) the Executive's employment is terminated by
the Association for other than Cause, Disability, Retirement or the Executive's
death or (ii) such employment is terminated by the Executive due to a material
breach of this Agreement by the Association, which breach has not been cured
within twenty (20) days after a written notice of non-compliance has been given
by the Executive to the Association, then the Association shall, subject to the
provisions of Section 6 hereof, if applicable:
(1) pay to the Executive, in either twenty-four (24) equal
monthly installments beginning with the first business day of the month
following the Date of Termination or in a
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lump sum within five business days of the Date of Termination (at
the Executive's election), a cash severance amount equal to two (2)
times the Executive's Annual Compensation; and
(2) maintain and provide for a period ending at the earlier of
(i) the expiration of the remaining term of employment pursuant hereto
prior to the Notice 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 (2)), 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 employee benefit plans, programs and
arrangements offered by the Association in which the Executive was
entitled to participate immediately prior to the Date of Termination
(excluding (x) stock option and restricted stock plans of the
Employers, (y) bonuses and other items of cash compensation included in
Annual Compensation and (z) other benefits, or portions thereof,
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 (2) is barred, or during such period any
such plan, program or arrangement is discontinued or the benefits
thereunder are materially reduced, the Association 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.
(e) In the event the Executive's employment is terminated for Good
Reason subsequent to a Change in Control of the Corporation, then the
Association shall, subject to the provisions of Section 6 hereof, if
applicable:
(1) pay to the Executive, in either thirty-six (36) equal
monthly installments beginning with the first business day of the month
following the Date of Termination or in a lump sum within five business
days of the Date of Termination (at the Executive's election), a cash
severance amount equal to three (3) times the Executive's Annual
Compensation; and
(2) maintain and provide for a period ending at the earlier of
(i) the expiration of the remaining term of employment pursuant hereto
prior to the Notice 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 (2)), 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 employee benefit plans, programs and
arrangements offered by the Association in which the Executive was
entitled to participate immediately prior to the Date of Termination
(excluding (x) stock option and restricted stock plans of the
Employers, (y) bonuses and other items of cash compensation included in
Annual Compensation and (z) other benefits, or portions thereof,
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 (2) is barred, or during such period any
such plan, program or arrangement is
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discontinued or the benefits thereunder are materially reduced, the
Association 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.
6. LIMITATION OF BENEFITS UNDER CERTAIN CIRCUMSTANCES. If the
payments and benefits pursuant to Section 5 hereof, either alone or together
with other payments and benefits which the Executive has the right to receive
from the Association, would constitute a "parachute payment" under Section
280G of the Code, the payments and benefits payable by the Association
pursuant to Section 5 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 payable by the Association
under Section 5 being non-deductible to the Association 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 5 shall be based upon the opinion of independent
counsel selected by the Association's independent public accountants and paid
by the Association. Such counsel shall be reasonably acceptable to the
Association 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. Nothing contained herein shall result in a reduction of any payments
or benefits to which the Executive may be entitled upon termination of
employment under any circumstances other than as specified in this Section 6,
or a reduction in the payments and benefits specified in Section 5 below zero.
7. COVENANT NOT TO COMPETE.
(a) Except as provided in Section 7(b) hereof, the Executive hereby
covenants and agrees that, in the event of his termination of employment with
the Association for any reason prior to the expiration of the term of this
Agreement, for a period of two years following the date of his termination of
employment with the Association, he shall not, without the written consent of
the Association, become an officer, employee, consultant, director or trustee
of any savings bank, savings and loan association, savings and loan holding
company, bank or bank holding company, or any direct or indirect subsidiary
or affiliate of any such entity, that entails working within Bienville,
Bossier, Caddo, Claiborne or Xxxxxxx Parishes, Louisiana.
(b) The Executive shall not be subject to the provisions of
Section 7(a) if (i) the Executive is terminated by the Association for Cause and
does not receive any further compensation or benefits from the Association
subsequent to the applicable Date of Termination or (ii) the Executive's
employment with the Association is terminated by the Association or the
Executive subsequent to a change in control of the Corporation.
8. 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
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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 Association pursuant to employee benefit
plans of the Association or otherwise.
9. WITHHOLDING. All payments required to be made by the
Association hereunder to the Executive shall be subject to the withholding of
such amounts, if any, relating to tax and other payroll deductions as the
Association may reasonably determine should be withheld pursuant to any
applicable law or regulation.
10. ASSIGNABILITY. The Association may assign this Agreement
and its rights and obligations hereunder in whole, but not in part, to any
corporation, Association or other entity with or into which the Association
may hereafter merge or consolidate or to which the Association may transfer
all or substantially all of its assets, if in any such case said corporation,
Association or other entity shall by operation of law or expressly in writing
assume all obligations of the Association hereunder as fully as if it had
been originally made a party hereto, but may not otherwise assign this
Agreement or its rights and obligations hereunder. The Executive may not
assign or transfer this Agreement or any rights or obligations hereunder.
11. 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: Board of Directors
Minden Building and Loan Association
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxx 00000
To the Executive: A. Xxxxx Xxxxx
0000 Xxxx Xxxx
Xxxxxx, Xxxxxxxxx 00000
12. 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 signed by the Executive and such officer or
officers as may be specifically designated by the Board of Directors of the
Association to sign on its behalf. 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.
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13. 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 State of
Louisiana.
14. NATURE OF OBLIGATIONS. Nothing contained herein shall create
or require the Association 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 Association hereunder, such right shall
be no greater than the right of any unsecured general creditor of the
Association.
15. 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.
16. 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.
17. 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.
18. 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, including
12 C.F.R. Part 359.
19. REGULATORY ACTIONS. The following provisions shall be
applicable to the parties to the extent that they are required to be included
in employment agreements between a savings association and its employees
pursuant to Section 563.39(b) of the Regulations Applicable to All Savings
Associations, 12 C.F.R. Section 563.39(b), or any successor thereto, and
shall be controlling in the event of a conflict with any other provision of
this Agreement, including without limitation Section 5 hereof.
(a) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Employers' affairs pursuant
to notice served under Section 8(e)(3) or Section 8(g)(1) of the Federal Deposit
Insurance Act ("FDIA") (12 U.S.C. Sections 1818(e)(3) and 1818(g)(1)), the
Employers' obligations under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Employers may, in their discretion: (i) pay the Executive all
or part of the compensation withheld while its obligations under this Agreement
were suspended, and (ii) reinstate (in whole or in part) any of its obligations
which were suspended.
(b) If the Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Employers' affairs by an
order issued under Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C.
Sections 1818(e)(4) and (g)(1)), all obligations of the Employers
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under this Agreement shall terminate as of the effective date of the order,
but vested rights of the Executive and the Employers as of the date of
termination shall not be affected.
(c) If the Association is in default, as defined in Section 3(x)(1)
of the FDIA (12 U.S.C. Section 1813(x)(1)), all obligations under this
Agreement shall terminate as of the date of default, but vested rights of the
Executive and the Employers as of the date of termination shall not be
affected.
(d) All obligations under this Agreement shall be terminated
pursuant to 12 C.F.R. Section 563.39(b)(5) (except to the extent that it is
determined that continuation of the Agreement for the continued operation of
the Employers is necessary): (i) by the Director of the Office of Thrift
Supervision ("OTS"), or his/her designee, at the time the Federal Deposit
Insurance Corporation ("FDIC") enters into an agreement to provide assistance
to or on behalf of the Association under the authority contained in Section
13(c) of the FDIA (12 U.S.C. Section 1823(c)); or (ii) by the Director of the
OTS, or his/her designee, at the time the Director or his/her designee
approves a supervisory merger to resolve problems related to operation of the
Association or when the Association is determined by the Director of the OTS
to be in an unsafe or unsound condition, but vested rights of the Executive
and the Employers as of the date of termination shall not be affected.
20. PAYMENT OF COSTS AND LEGAL FEES AND REINSTATEMENT OF
BENEFITS. In the event any dispute or controversy arising under or in
connection with the Executive's termination is resolved in favor of the
Executive, whether by judgment, arbitration or settlement, the Executive
shall be entitled to the payment of (a) all legal fees incurred by the
Executive in resolving such dispute or controversy, and (2) any back-pay,
including Base Salary, bonuses and any other cash compensation, fringe
benefits and any compensation and benefits due to the Executive under this
Agreement.
21. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement between the Association and the Executive with respect to the
matters agreed to herein. Effective upon the Commencement Date, any and all
prior agreements between the Association and the Executive with respect to
the matters agreed to herein are hereby superseded and shall have no force or
effect.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Attest: MINDEN BUILDING AND LOAN ASSOCIATION
By:
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[____________], Director
EXECUTIVE
By:
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A. Xxxxx Xxxxx
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