Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made this 31st day of March, 2006 (the "Agreement"), by and
between FIRST FEDERAL SAVINGS BANK, a federally-chartered savings bank (the
"Bank"), FEDFIRST FINANCIAL CORPORATION (the "Company") and XXXXXX X. XXXXX, XX.
("Executive").
WITNESSETH
WHEREAS, Executive has accepted employment with the Bank in a position of
substantial responsibility;
WHEREAS, the Bank and Executive wish to set forth the terms and conditions
of Executive's employment;
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, and upon the other terms and conditions provided for in this
Agreement, the parties hereby agree as follows:
1. EMPLOYMENT. The Bank and the Company will employ Executive as Chief
Financial Officer. Executive will perform all duties and shall have all powers
commonly incident to such offices or which, consistent with those offices, the
Chief Executive Officer or Boards of Directors of the Bank and the Company (the
"Board") delegates to Executive. Executive shall report to the Chief Executive
Officer.
2. LOCATION AND FACILITIES. The Bank will furnish Executive with the
working facilities and staff customary for the positions held by Executive. The
Bank will locate the office and staff of Executive at the principal
administrative offices of the Bank.
3. TERM.
a. The term of this Agreement shall include (i) the initial term,
consisting of the period commencing on March 31, 2006 (the "Effective
Date") and ending on September 19, 2007, plus (ii) any and all
extensions of the initial term made pursuant to this Section 3.
b. Not later than September 19, 2006, and prior to each September 19th
thereafter, the Board may extend the term of this Agreement for an
additional twelve months so that the remaining term of the Agreement
becomes twenty-four months, unless Executive elects not to extend the
term of this Agreement by giving written notice of his intentions in
accordance with Section 17 of this Agreement. Each year, the Board
will review Executive's performance for purposes of determining
whether to extend the term of this Agreement and will include the
rationale and results of its review in the minutes of its meeting.
Executive shall receive notice as soon as possible after such review
as to whether the Agreement will be extended for an additional year.
4. BASE COMPENSATION.
a. The Bank agrees to pay the Executive an annual base salary of
$150,000, payable in accordance with the customary payroll practices
of the Bank. Executive may have part of his compensation deferred if
he chooses.
b. Each year, the Board will review the level of Executive's base salary,
based upon factors they deem relevant, in order to determine whether
to maintain or increase Executive's base salary.
5. BONUSES. Executive will participate in discretionary bonuses or other
incentive compensation programs the Bank may sponsor or award from time to time
to other senior management employees on such terms as the Board may establish.
6. BENEFIT PLANS.
a. Executive will participate in the employee welfare benefit plans the
Bank maintains for the benefit of its employees on the same terms as
other employees. As of the effective date of this Agreement, those
benefits include health insurance, group-term life insurance, dental
insurance, and group short- and long-term disability insurance. During
the term of this Agreement, Executive may also participate in the
employee stock ownership plan and retirement savings plan (i.e.,
401(k) plan) sponsored by the Bank on the same terms as other
employees.
b. In connection with the implementation of any shareholder-approved
equity incentive plan, the Compensation Committee of the Company Board
will consider Executive for participation in the plan.
7. VACATION AND LEAVE. Executive may take up to four weeks paid vacation
and three paid personal days annually. Any other leave may be taken in
accordance with the Bank's general personnel policies. Executive shall not be
charged leave of any kind for attendance at professional meetings, seminars or
continuing education programs.
8. EXPENSE PAYMENTS AND REIMBURSEMENTS. The Bank will reimburse Executive
for all reasonable and documented out-of-pocket business expenses (including,
but not limited to, business cell phone use, parking, business entertainment,
seminars, membership fees for organizations approved by the Board and dues for
such organizations) incurred in connection with his services under this
Agreement. Executive must substantiate the payment of all expenses in accordance
with applicable policies of the Bank.
9. LOYALTY AND CONFIDENTIALITY.
a. During the term of this Agreement, Executive shall: (i) devote all his
business time, attention, skill, and efforts to the faithful
performance of his duties as President and Chief Executive Officer of
the Bank and the Company; provided, however, that from time to time,
Executive may serve on the board of directors of, and hold any other
offices or positions in, companies or organizations that will not
present any conflict of interest with the Bank or any of their
affiliates, and that will not unfavorably affect the performance of
Executive's employment duties, and that will not violate any
applicable statute or regulation. Executive shall not engage in any
business or activity contrary to the business affairs or interests of
the Bank and Company.
b. Nothing contained in this Agreement prevents or limits Executive's
right to invest in the capital stock or other securities of any
business dissimilar from that of the Bank and Company, or, solely as a
passive, minority investor, in any business.
c. Executive agrees to maintain the confidentiality of any and all
information concerning the operation or financial status of the Bank
or the Company; the names or addresses of any borrowers, depositors
and other customers; any information concerning or obtained from such
customers; and any other information concerning the Bank or the
Company which he gains or of which he becomes aware during the course
of his employment with the Bank or the Company. Executive further
agrees that, unless required by law or specifically
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permitted by the Board in writing, he will not disclose to any person
or entity, either during or subsequent to his employment, any of the
above-mentioned information not generally known to the public, nor
shall he use the information in any way other than for the benefit of
the Bank or the Company.
10. TERMINATION AND TERMINATION PAY. Executive, the Bank or the Company may
terminate Executive's employment under the following circumstances:
a. Death. Executive's employment under this Agreement shall terminate
upon his death during the term of this Agreement, in which event
Executive's estate shall receive the compensation due to Executive
through the last day of the calendar month in which his death
occurred.
b. Retirement. This Agreement shall terminate upon Executive's retirement
under the retirement benefit plan or plans in which he participates
pursuant to Section 6 of this Agreement or otherwise.
c. Disability.
i. The Board or Executive may terminate Executive's employment after
having determined Executive has suffered a Disability. For
purposes of this Agreement, "Disability" means a physical or
mental infirmity that impairs Executive's ability to
substantially perform his duties under this Agreement and results
in Executive becoming eligible for long-term disability benefits
under any long-term disability plans of the Bank (or, if no such
benefits exist, that impairs Executive's ability to substantially
perform his duties under this Agreement for a period of at least
one hundred eighty (180) consecutive days). The Board, in good
faith, shall determine whether or not Executive becomes and
continues to be permanently disabled for purposes of this
Agreement, based upon competent medical advice and other factors
that the Board reasonably believes to be relevant. As a condition
to any benefits, the Board may require Executive to submit to
physical or mental evaluations and tests as the Board or its
medical experts deem reasonably appropriate (copies of which
shall promptly be provided to Executive and/or his designated
representative).
ii. In the event of his Disability, Executive shall no longer be
obligated to perform services under this Agreement. The Bank will
pay Executive, as Disability pay, an amount equal to two-thirds
(2/3) of Executive's weekly rate of base salary in effect as of
the date of his termination of employment due to Disability. The
Bank will make Disability payments on a monthly basis commencing
on the first day of the month following the effective date of
Executive's termination of employment due to Disability and
ending on the earlier of: (A) the date he returns to full-time
employment at the Bank in the same capacity as he was employed
prior to his termination for Disability; (B) his death; (C) his
attainment of age 65; or (D) the date the Agreement would have
expired had Executive's employment not terminated by reason of
Disability. The Bank will reduce Disability pay otherwise due to
Executive under this provision by the amount of any short- or
long-term disability benefits payable to Executive under any
other disability programs sponsored by the Bank. In addition,
during any period of Executive's Disability, the Bank shall
continue to provide Executive and his dependents, to the greatest
extent possible, all benefits (including, without limitation,
benefits under retirement plans and medical, dental and life
insurance plans) provided to
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Executive and his dependents prior to his Disability, on the same
terms as if Executive remained actively employed by the Bank.
d. Termination for Cause.
i. The Board, by written notice to Executive in the form and manner
specified in this paragraph, may immediately terminate
Executive's employment at any time for "Cause". Executive shall
have no rights to receive compensation or other benefits for any
period after termination for Cause, except for already vested
benefits. Termination for "Cause" shall mean termination because
of, in the good faith determination of the Board, Executive's:
(1) Personal dishonesty;
(2) Incompetence;
(3) Willful misconduct;
(4) Breach of fiduciary duty involving personal profit;
(5) Intentional failure to perform duties under this Agreement;
(6) Willful violation of any law, rule or regulation (other than
traffic violations or similar offenses) that reflects
adversely on the reputation of the Bank, any felony
conviction, any violation of law involving moral turpitude,
or any violation of a final cease-and-desist order; or
(7) Material breach by Executive of any provision of this
Agreement.
ii. Notwithstanding the foregoing, Executive's termination for Cause
will not become effective unless the Bank has delivered to
Executive a copy of a resolution duly adopted by the affirmative
vote of a majority of the entire membership of the Board, at a
meeting of the Board called and held for the purpose of finding
that, in the good faith opinion of the Board (after reasonable
notice to Executive and an opportunity for Executive to be heard
before the Board with counsel), Executive was guilty of the
conduct described above and specifying the particulars of his
conduct.
e. Voluntary Termination by Executive. In addition to his other rights to
terminate employment under this Agreement, Executive may voluntarily
terminate employment during the term of this Agreement upon at least
sixty (60) days prior written notice to the Board. Upon Executive's
voluntary termination, Executive will receive only his compensation,
vested rights and employee benefits up to the date of his termination.
f. Without Cause.
i. In addition to termination pursuant to Sections 10(a) through
10(e), the Board may, upon providing written notice to Executive,
immediately terminate his employment at any time for a reason
other than Cause (a termination "Without Cause").
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ii. In the event of his termination of employment under this Section
10(f), Executive shall continue to receive his base salary at the
rate in effect at his termination date for the remaining term of
the Agreement.
g. Change in Control. In the event that the employment of the Executive
is involuntarily terminated within one (1) year of a Change in Control
Executive shall be entitled to the following benefit:
i. a lump sum payment equal to three (3) times Executive's base
salary as of the date of the Change in Control; and
ii. continuation of medical and dental coverage for Executive and his
dependents at the Bank's expense, for a period not to exceed the
earlier of (i) 36 months from Executive's termination date; (ii)
Executive's employment with another employer; or (iii)
Executive's death.
h. Definition of Change in Control. For purposes of this Agreement, a
"Change in Control" means any of the following events:
i. Merger: The Company merges into or consolidates with another
corporation, or merges another corporation into the Company, and
as a result, less than a majority of the combined voting power of
the resulting corporation immediately after the merger or
consolidation is held by persons who were stockholders of the
Company immediately before the merger or consolidation.
ii. Acquisition of Significant Share Ownership: There is filed, or
required to be filed, a report on Schedule 13D or another form or
schedule (other than Schedule 13G) required under Sections 13(d)
or 14(d) of the Securities Exchange Act of 1934, if the schedule
discloses that the filing person or persons acting in concert has
or have become the beneficial owner(s) of 25% or more of a class
of the Company's voting securities, but this clause (ii) shall
not apply to beneficial ownership of Company voting shares held
in a fiduciary capacity by an entity of which the Company
directly or indirectly beneficially owns 50% or more of its
outstanding voting securities.
iii. Change in Board Composition: During any period of two consecutive
years, individuals who constitute the Company's Board of
Directors at the beginning of the two-year period cease for any
reason to constitute at least a majority of the Company's Board
of Directors; provided, however, that for purposes of this clause
(iii), each director who is first elected by the board (or first
nominated by the board for election by the stockholders) by a
vote of at least two-thirds (2/3) of the directors who were
directors at the beginning of the two-year period shall be deemed
to have also been a director at the beginning of such period; or
iv. Sale of Assets: The Company sells to a third party all or
substantially all of its assets.
Notwithstanding anything in this Agreement to the contrary, in no event
shall the reorganization of the Bank from the mutual holding company form of
organization to the full stock holding company form of organization (including
the elimination of the mutual holding company) constitute a "Change in Control"
for purposes of this Agreement.
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i. Limitation of Benefits Under Certain Circumstances. If the
payments and benefits pursuant to Section 10 of this Agreement,
either alone or together with other payments and benefits which
Executive has the right to receive from the Company and the Bank,
would constitute a "parachute payment" under Section 280G of the
Code, the payments and benefits pursuant to Section 10 shall be
reduced or revised, in the manner determined by Executive, by the
amount, if any, which is the minimum necessary to result in no
portion of the payments and benefits under Section 10 being
non-deductible to the Company and the Bank 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 10 shall
be based upon the opinion of the Company and the Bank's
independent public accountants and paid for by the Company and
the Bank. In the event that the Company, the Bank and/or
Executive do not agree with the opinion of such counsel, (i) the
Company and the Bank shall pay to Executive the maximum amount of
payments and benefits pursuant to Section 10, as selected by
Executive, which such opinion indicates there is a high
probability do not result in any of such payments and benefits
being non-deductible to the Company and the Bank and subject to
the imposition of the excise tax imposed under Section 4999 of
the Code and (ii) the Company and the Bank may request, and
Executive shall have the right to demand that they request, a
ruling from the IRS as to whether the disputed payments and
benefits pursuant to Section 10 have such consequences. Any such
request for a ruling from the IRS shall be promptly prepared and
filed by the Company and the Bank, 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 Company,
the Bank 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 Executive may be entitled upon
termination of employment other than pursuant to Section 10
hereof, or a reduction in the payments and benefits specified in
Section 10 below zero.
11. INDEMNIFICATION AND LIABILITY INSURANCE.
a. Indemnification. The Bank and Company agree to indemnify
Executive (and his heirs, executors, and administrators) under
this Agreement, and to advance expenses related to this
indemnification, to the fullest extent permitted under applicable
law and regulations against any and all expenses and liabilities
that Executive reasonably incurs in connection with or arising
out of any action, suit, or proceeding in which he becomes
involved by reason of his service as an Executive of the Bank and
the Company (whether or not Executive continues to serve as an
Executive at the time of incurring the expenses or liabilities).
Covered expenses and liabilities include, without limitation,
judgments, court costs, attorneys' fees and the costs of
reasonable settlements (subject to Board approval), provided
legal action is brought against Executive in his capacity as an
Executive of the Bank, the Company or any of its subsidiaries.
Indemnification for expenses shall not extend to matters related
to Executive's termination for "Cause." Notwithstanding anything
in this Section 11(a) to the contrary, the Bank and the Company
shall not be required to provide any indemnification otherwise
prohibited by applicable law or regulation. The obligations of
this Section 11(a) shall survive the term of this Agreement
(including extensions thereof) by a period of six (6) years.
b. Insurance. During the period in which the Bank and the Company
must indemnify Executive, the Bank and the Company, at its
expense, will arrange for
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Executive's coverage (and his heirs, executors, and
administrators) under a directors' and executives' liability
policy at least equivalent to the insurance coverage provided to
directors and other senior executives of the Bank and the
Company.
12. REIMBURSEMENT OF EXECUTIVE'S EXPENSES TO ENFORCE THIS AGREEMENT. The
Bank will reimburse Executive for all out-of-pocket expenses, including, without
limitation, reasonable attorneys' fees, that Executive incurs in connection with
his successful enforcement of the Bank's obligations under this Agreement.
Successful enforcement shall mean the grant of an award of money or the
requirement that the Bank take some action specified by this Agreement: as a
result of court order; or otherwise following an initial failure by the Bank to
pay such money or take such action promptly following receipt of a written
demand from Executive stating the reason that the Bank must make payment or take
action under this Agreement.
13. INJUNCTIVE RELIEF. Upon a breach or threatened breach of the
prohibitions upon disclosure contained in Section 9(c) of this Agreement, the
parties agree that there is no adequate remedy at law for such breach, and the
Bank shall be entitled to injunctive relief restraining Executive from such
breach or threatened breach, but such relief shall not be the exclusive remedy
for a breach of this Agreement. The parties to this Agreement further agree that
Executive, without limitation, may seek injunctive relief to enforce the Bank's
obligations under this Agreement.
14. SOURCE OF PAYMENTS. All payments provided for in this Agreement shall
be timely paid in cash or check from the general funds of the Bank or the
Company.
15. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon any corporate or other successor of the Bank and the Company
which shall acquire, directly or indirectly, by merger, consolidation, purchase
or otherwise, all or substantially all of the assets or stock of the Company.
Since the Bank and the Company have contracted for the unique and personal
skills of Executive, Executive shall not assign or delegate his rights or duties
hereunder without first obtaining the written consent of the Bank and the
Company.
16. NO MITIGATION. 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 payment under this Agreement shall be offset or reduced by any
compensation or benefits provided to Executive in any subsequent employment.
17. NOTICES. All notices, requests, demands and other communications made
in connection with this Agreement shall be made in writing and shall be deemed
to have been given when delivered by hand or 48 hours after mailing at any
general or branch United States Post Office, by registered or certified mail,
postage prepaid, addressed to the Bank at its principal business office and to
Executive at his home address as maintained in the records of the Bank.
18. NO PLAN CREATED BY THIS AGREEMENT. Executive, the Bank and the Company
expressly declare and agree that this Agreement was negotiated between them and
that no provision or provisions of this Agreement are intended to, or shall be
deemed to, create any plan for purposes of the Employee Retirement Income
Security Act or any other law or regulation, and each party expressly waives any
right to assert the contrary. Any party who makes such an assertion in any
judicial or administrative filing, hearing, or process shall have materially
breached this Agreement upon making the assertion.
19. AMENDMENTS. No amendments or additions to this Agreement will bind the
parties unless made in writing and signed by all of the parties, except as
herein otherwise specifically provided.
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20. APPLICABLE LAW. Except to the extent preempted by federal law,
Pennsylvania law shall govern this Agreement in all respects, whether as to its
validity, construction, capacity, performance or otherwise.
21. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions of this Agreement.
22. HEADINGS. Headings contained in this Agreement are for convenience of
reference only.
23. ENTIRE AGREEMENT. This Agreement, together with any understanding or
modifications agreed to in writing by the parties, shall constitute the entire
agreement among the parties hereto with respect to the subject matter of this
Agreement, other than written agreements with respect to specific plans,
programs or arrangements described in Sections 5 and 6.
24. REQUIRED PROVISIONS. In the event any of the foregoing provisions of
this Agreement are in conflict with the terms of this Section 24, this Section
24 shall prevail.
a. The Board may terminate Executive's employment at any time, but
any termination by the Board, other than Termination for Cause,
shall not prejudice Executive's right to compensation or other
benefits under this Agreement. Executive shall not have the right
to receive compensation or other benefits for any period after
termination for Cause as defined in Section 10 of this Agreement.
b. If Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's
affairs by a notice served under Section 8(e)(3) or 8(g)(1) of
the Federal Deposit Insurance Act, 12 U.S.C. Sec. 1818(e)(3) or
(g)(1), the Bank's 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 Bank
may in its discretion: (i) pay Executive all or part of the
compensation withheld while contract obligations were suspended;
and (ii) reinstate (in whole or in part) any of the obligations
which were suspended.
c. If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order
issued under Section 8(e)(4) or 8(g)(1) of the Federal Deposit
Insurance Act, 12 U.S.C. Sec. 1818(e)(4) or (g)(1), all
obligations of the Bank under this Agreement shall terminate as
of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
d. If the Bank is in default as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act, 12 U.S.C. Sec. 1813(x)(1), all
obligations of the Bank under this Agreement shall terminate as
of the date of default, but this paragraph shall not affect any
vested rights of the contracting parties.
e. All obligations of the Bank under this Agreement shall be
terminated, except to the extent determined that continuation of
the Agreement is necessary for the continued operation of the
institution: (i) by the Director of the OTS (or his designee) or
the FDIC, at the time the FDIC enters into an agreement to
provide assistance to or on behalf of the Bank under the
authority contained in Section 13(c) of the Federal Deposit
Insurance Act, 12 U.S.C. Sec. 1823(c); or (ii) by the Director of
the OTS (or his designee) at the time the Director (or his
designee) approves a supervisory merger to resolve problems
related to the operations of the
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Bank or when the Bank is determined by the Director to be in an
unsafe or unsound condition. Any rights of the parties that have
already vested, however, shall not be affected by such action.
f. Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12
U.S.C. Sec. 1828(k) and 12 C.F.R. Sec. 545.121 and any rules and
regulations promulgated thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
ATTEST: FIRST FEDERAL SAVINGS BANK
/s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxxx
------------------------------------- ------------------------------------
ATTEST: FEDFIRST FINANCIAL CORPORATION
/s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxxx
------------------------------------- ------------------------------------
/s/ Xxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxx, XX.
------------------------------------- ----------------------------------------
WITNESS XXXXXX X. XXXXX, XX.
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