Exhibit 10.1
FIRST AMENDMENT
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TO
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS FIRST AMENDMENT is made and entered into as of this 18th day of
December, 1996, by and between First Federal Lincoln Bank, formerly known as
First Federal Savings and Loan Association of Lincoln, a United States
corporation, with its principal office in Lincoln, Nebraska ("Association"), and
Xxxxxxx X. Xxxxxxxxx ("Executive").
RECITALS
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A. The Association and Executive entered into an Employment
Agreement dated October 27, 1993, which was amended by an Amended and Restated
Employment Agreement dated February 23,1995 (the "Agreement").
B. The parties desire to further amend the Agreement as provided
herein.
C. Paragraph 15 of the Agreement permits written amendments if
signed by the parties or their respective assigns.
NOW, THEREFORE, the Association and Executive agree that effective
January 1, 1997, said Agreement shall be and is hereby agreed to be amended, as
follows:
1. Paragraph 1 is amended to add after the word "percentile" in
the sixth line the following: "(the top of the third quartile)" so as to read,
as amended, that the "Salary shall be at least equivalent to the 75th percentile
(the top of the third quartile) of the. . ."
2. Paragraph 1 is further amended to add the following at the end
of the first paragraph. as follows:
In the event profits of the Association are insufficient in
any one year and causes a majority of the Board of Directors
to determine that an increase in the annual salary for the
next calendar year, as required by this paragraph, would be
unsound, such a determination, in writing, shall be submitted
to the Executive. The Executive agrees to carefully evaluate
such a written determination, provided, however, if the
Executive agrees to voluntarily forego or waive any or all of
the increase of salary as provided herein for the next year,
such a waiver shall be without prejudice and shall not be
construed to constitute a waiver of the Executive's right to
insist upon full compliance with all the terms of the
Agreement in subsequent years.
3. Except as specifically amended herein, all other terms and
conditions of said Agreement remain unchanged and are in all other respects
hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment, in duplicate, as of the day and year first above written.
FIRST FEDERAL LINCOLN BANK
By: /s/ X. X. Xxxxxxxxxx
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X. X. Xxxxxxxxxx
Chairman of the Board
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
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Assistant Secretary
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made
and entered into this 23/rd/ day of February, 1995, by and between FIRST FEDERAL
SAVINGS AND LOAN ASSOCIATION OF LINCOLN, a United States corporation, with its
principal office in Lincoln, Nebraska ("Association"), and XXXXXXX X. XXXXXXXXX,
whose residence address is 0000 Xxxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000
("Executive").
RECITALS
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A. The Association and the Executive entered into an Employment
Agreement dated as of October 27, 1993 (the "1993 Agreement").
B. The Board of Directors of the Association (the "Board of Directors")
believes that it is in the best interests of the Association to amend the 1993
Agreement in order to comply with certain regulations promulgated by the
Department of Treasury, Office of Thrift Supervision.
C. The Association desires to continue to employ the Executive, and the
Executive desires to continue his employment with the Association, on the terms
and conditions set forth below.
D. The Board of Directors has approved and authorized the execution of
this Agreement with the Executive to take effect as stated in Section 4 hereof.
NOW, THEREFORE, In consideration of the premises and of the mutual
promises herein contained, the parties agree as follows:
1. Employment. The Executive is hereby employed as the President and
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Chief Operating Officer of the Association and shall be accountable to the Chief
Executive Officer and Board of Directors, and, subject to the authority and
direction of the Chief Executive Officer and Board of Directors, shall have the
duties and responsibilities customary to the office, including those
specifically set out below. As President and Chief Operating Officer, the
Employee shall render management services to the Association and its
subsidiaries of the type customarily performed by persons situated in a similar
management position. These services shall include, but not be limited to:
(a) conducting day-to-day management of the Association;
(b) hiring, making job assignments, and discharging of the
Association's employees;
(c) recommending to the Association's Board of Directors policies
for pricing deposits of the Association and then implementing such pricing
policies as the Association's Board of Directors approves;
(d) recommending loan policies to the Association's Board of
Directors concerning compliance with all of the normal and necessary operating
needs of an insured savings and loan association;
(e) providing advice to the Association's Board of Directors
concerning compliance with all of the normal and necessary operating needs of an
insured savings and loan association;
(f) performing such other duties and making such other
recommendations to the Association's Board of Directors as the Association's
Board of Directors or Chairman of the Board may request; provided, that such
duties are consistent with his present duties and with the Executive's position
as a senior executive officer in charge of the general management of the
Association.
The Executive will be elected as a member of the Board of Directors. If
at any time during the term of employment the Executive shall fail to be
reelected to the Board or the Board shall fail to reelect the Executive to the
office of President or shall remove him from such office, the Executive shall
have "Good Reason" (as further defined in Paragraph 6(d)) to terminate his
services hereunder and the Executive shall have no further obligation under this
Agreement. Executive hereby accepts the employment described herein and agrees
to perform such duties as are commensurate with the position and to abide by the
terms and conditions of this Agreement.
2. Compensation.
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(a) Base Salary. The Executive received an annual base salary
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("Base Salary") at the rate of $189,000 for the initial year after the
Commencement Date (as defined in Section 4 hereof) and thereafter the Base
Salary shall be reviewed and adjusted by the Board of Directors at least
annually. The annual minimum Base Salary shall be at least equivalent to the
75th percentile of the salary grade to which the Executive's position is
assigned in accordance with the recommendations of Mercer. Xxxxxx'x
recommendations concerning changes in the salary grade structure will be
consistent with its past practices and in accordance with sound compensation
planning. Xxxxxx'x recommendations will be based on compensation data developed
from its financial industry peer group data base ("Data Base") then in effect
and other relevant sources of statistical information pertaining to compensation
practices for positions comparable to the Executive's. The Association agrees to
continue to employ Mercer or some other mutually acceptable consulting firm
which can provide comparable compensation data for the entire term of this
Agreement, including any extension thereof.
Any increase in Base Salary or other compensation shall in no way limit
or reduce any other obligation of the Association hereunder and, once
established at an increased specified rate, the Executive's Base Salary
hereunder shall not thereafter be reduced. The Executive's salary shall be
payable not less frequently than monthly and not later than the tenth day
following the expiration of the month in question.
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(b) Discretionary Bonuses. The Executive shall be entitled to
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participate in an equitable manner with all other executive officers of the
Association in discretionary bonuses as authorized and declared by the Board of
Directors of the Association to its executive employees. No other compensation
provided for in this Agreement shall be deemed a substitute for the Executive's
right to participate in such bonuses when and as declared by the Board of
Directors.
(c) Expenses. During the term of employment hereunder, the
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Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred (in accordance with policies and procedures at least as
favorable to the Executive as those presently applicable to the senior executive
officers of the Association) in performing services hereunder, provided that the
Executive properly accounts therefor in accordance with Association policy.
(d) Supplemental Benefit. In addition, Executive shall
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receive certain deferred compensation and insurance benefits pursuant to the
terms of a Supplemental Retirement Plan and Split Dollar Agreement, copies of
which are attached hereto as Exhibits "A" and "B".
3. Benefits.
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(a) Participation in Retirement and Executive Benefit Plans.
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The Executive shall be entitled while employed hereunder to participate in, and
receive benefits under, all plans relating to stock options, stock purchases,
pension, thrift, profit-sharing, group life insurance, medical coverage,
education, cash or stock bonuses, and other retirement or employee benefits or
combinations thereof, that are now or hereafter maintained for the benefit of
the Association's executive employees or for its employees generally.
(b) Fringe Benefits. The Executive shall be eligible while
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employed hereunder to participate in, and receive benefits under, any other
fringe benefits which are or may become applicable to the Association's
executive employees or to its employees generally. 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 Base Salary or other compensation to
the Executive hereunder.
4. Term. The term of employment under this Agreement shall be for
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an initial period of three years commencing on January 1, 1994 (the
"Commencement Date"). Beginning on the first anniversary of the Commencement
Date, and on each anniversary thereafter, the term of employment under this
Agreement shall be extended for a period of one year in addition to the
then-remaining term of employment under this Agreement, it being the intent of
the parties hereto that the Executive be assured of a continuous three (3) year
term of employment, unless either the Board of Directors or the Executive gives
contrary written notice to the other not less than 90 days in advance of the
date on which the term of employment under this Agreement would otherwise be
extended; provided, however, that the term of employment under this Agreement
shall expire not later than the Executive's attainment of age 65 (or, at the
election of the Executive, the first January 1 after the Executive's attainment
of age 65). The Board of Directors of the Association shall, at the regularly
scheduled Board of Directors meeting immediately prior to the beginning of the
90-day notice period referred to above, explicitly review this Agreement and the
Executive's performance hereunder and take specific action with respect to the
extension of this Agreement pursuant to the
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terms hereof. Reference herein to the term of employment under this Agreement
shall refer to both such initial term and such extended terms.
5. Vacations. The Executive shall be entitled, without loss of
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pay, to absent himself voluntarily from the performance of his employment under
this Agreement, all such voluntary absences to count as vacation time, as
follows:
(a) The Executive shall be entitled to an annual vacation in
accordance with the most favorable plans, policies, programs or practices of the
Association and its affiliated companies as in effect generally at any time with
respect to other senior executives of the Association but in no event less than
three weeks per year, one week of which may be carried over one (1) year.
(b) The timing of vacations shall be scheduled in a reasonable
manner by the Executive. The Executive shall not be entitled to receive any
additional compensation on account of any failure to take a vacation; nor shall
more than one (1) week of unused vacation time be allowed to accumulate for more
than one calendar year.
6. Termination.
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(a) Death. The Executive's employment hereunder shall
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terminate upon his death.
(b) Action by Board of Directors. The Association's Board
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of Directors may terminate Executive's employment at any time, but any
termination by the Board of Directors, other than termination for Cause, shall
not prejudice the Executive's right to compensation or other benefits under this
Agreement. The Executive shall have no right to receive compensation or other
benefits, excepting only Vested Benefits described in Section 9(a) hereof, for
any period after termination for Cause. For the purposes of this Agreement,
"Cause" shall mean (i) the wilful failure by the Executive to perform his duties
hereunder, other than any such failure resulting from the Executive's incapacity
due to physical or mental illness; (ii) the commission by the Executive of an
act involving moral turpitude in the course of his employment with the
Association; (iii) any act of personal dishonesty by the Executive; (iv)
incompetence; (v) willful misconduct; (vi) breach of fiduciary duty involving
personal profit; (vii) willful violation of any law, rule, or regulation (other
than traffic violations or similar offenses) or final cease-and-desist order, or
(viii) any material breach of the provisions of this contract. For purposes of
this paragraph, no act, or failure to act, on the Executive's part shall be
considered "wilful" unless the Association's Board of Directors shall determine
in good faith, based upon all available facts, that such was done, or omitted to
be done, by the Executive not in good faith and without reasonable belief that
his action or omission was in the best interest of the Association.
(c) Termination by Regulatory Action.
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(i) If the Executive is suspended from office
and/or temporarily prohibited from participating in the conduct of the
Association by a notice served under Section 8(e)(3) or (g)(1) of the Federal
Deposit Insurance Act, (12 U.S.C. ss.1818(e)(3), (g)(l))("FDIA"), the
Association's obligations under this Agreement shall be suspended as of the date
of service, unless
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stayed by appropriate proceedings. If the charges in the notice are dismissed,
the Association may in its discretion (A) pay the Executive all or part of the
compensation withheld while its obligations under this Agreement were suspended
and (B) reinstate in whole or in part any of the obligations which were
suspended.
(ii) If the Executive is removed from office
and/or permanently prohibited from participating in the conduct of the
Association's affairs by an order issued under Section 8(e)(4) or (g)(1) of the
FDIA, (12 U.S.C. (S)1818(e)(4), (g)(1)), all obligations of the Association
under this Agreement shall terminate as of the effective date of the order, but
vested rights of the parties hereto shall not be affected.
(iii) If the Association becomes in default (as
defined in Section 3(x)(1) of the FDIA, 12 U.S.C. (S)1813(x)(1)), all
obligations under this Agreement shall terminate as of the date of default, but
this provision shall not affect any vested rights of the parties hereto.
(iv) All obligations under this Agreement shall
be terminated, except to the extent determined that continuation of this
Agreement is necessary for the continued operation of the Association: (i) by
the Director of the Office of Thrift Supervision (the "Director") or his or her
designee, at the time the Federal Deposit Insurance Corporation or Resolution
Trust Corporation enters into an agreement to provide assistance to or on behalf
of the Association under the authority contained in 13(c) of the Federal Deposit
Insurance Act; or (ii) by the Director or his or her designee, at the time the
Director or his or her designee approves a supervisory merger to resolve
problems related to operation of the Association or when the Association 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 any
such action.
(d) Termination by the Executive. The Executive may
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terminate his employment hereunder (i) for Good Reason, or (ii) if his health
should become impaired to an extent that makes the continued performance of his
duties hereunder hazardous to his physical or mental health or his life but any
vested rights of the parties hereto shall not be affected by such action. For
purposes of this Agreement, "Good Reason" shall mean (A) a change in control of
the Association (as defined below) having occurred not more than 12 months prior
to delivery of notice of termination, (B) any assignment to the Executive of any
duties significantly different than those contemplated by Section 1 hereof, (C)
any limitation of the powers of the Executive in any respect not contemplated
by, Section 1 hereof, (D) any removal of the Executive from or any failure to
reelect the Executive to any of the positions indicated in section 1 hereof,
except in connection with termination of the Executive's employment for Cause,
(E) a reduction in the Executive's Base Salary, or a material reduction in the
Executive's fringe benefits (including termination by the Association of the
Split Dollar Agreement) or any other material failure by the Association to
comply with Section 2 hereof.
(e) Notice. Any termination by the Association pursuant
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to Subsections (b) or (c) above or by the Executive pursuant to Subsection (d)
above 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
notice which shall indicate the specific termination provision in this
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Agreement relied upon and shall set 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.
(f) Date of Termination. "Date of Termination" shall mean (i)
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if the Executive's employment is terminated by his death, the date of his death,
or (ii) if the Executive's employment is terminated for any other reason, the
date specified in the Notice of Termination.
7. Disability.
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(a) If, as a result of the Executive's Disability, the
Executive shall have been absent from his duties hereunder on a full-time basis
for six consecutive months, and within 30 days after the Association notifies
the Executive in writing that it intends to replace him, the Executive shall not
have returned to the performance of his duties hereunder on a full-time basis,
the Association may replace the Executive without breaching this Agreement. Such
disability will not act to terminate the Executive's employment under this
Agreement. For purposes of this Agreement, "Disability" shall be deemed to have
occurred after the Executive shall have become so disabled by bodily or mental
injury or disease as to be prevented thereby from engaging in substantially all
the duties performed by the Executive at the time of the Disability began, as
determined and certified to the Association and the Executive by a physician
selected by the Chief Medical Officer at the University of Nebraska Medical
Center at Omaha Nebraska. For purposes of this Agreement, the Executive shall be
deemed to have been absent from his duties hereunder on a full-time basis for
six consecutive months if he has not, within any six-month period, attended to
his duties on a full-time basis for 15 consecutive business days within such
six-month period. Prior to replacement of the Executive pursuant to this
section, and during any period of physical disability or mental illness, the
Association may, without breaching this Agreement, appoint another person or
persons to act as interim President and interim Chief Operating Officer pending
the Executive's return to his duties on a full-time basis hereunder or his
termination as a result of such disability.
(b) If disabled within the meaning of this paragraph, the
Association shall maintain in full force and effect, for the continued benefit
of the Executive for the full term of this Agreement, including any extension
thereof, all employee benefit plans and programs in which the Executive was
entitled to participate immediately prior to the replacement date provided that
the Executive's continued participation is possible under the general terms and
provisions of such plans and programs. In the event the Executive's
participation in any such plan or program is barred as a result of such
disability, the Executive shall be entitled to receive an amount equal to the
annual contributions, payments, credits or allocations which would have been
made by the Association, to his account or on his behalf under such plans and
programs from which his continued participation is barred.
(c) During any period that the Executive fails to perform his
duties hereunder as a result of incapacity due to physical disability or mental
illness, the Executive shall continue to receive his full Base Salary and
Bonuses until the Executive is replaced in accordance with Section 7(a) hereof,
or until the Executive terminates his employment pursuant to Section 6(d)(ii)
hereof, whichever first occurs. After the Executive is replaced, he shall be
paid such Disability payments as are provided in the Supplemental Retirement
Plan Agreement.
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8. Beneficiary. If Executive dies before receiving all the
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payments to which he is entitled, the remainder thereof shall be paid to such
person ("Beneficiary") as may be designated by an instrument in writing, and in
a form acceptable to the Board, executed by the Executive and delivered to the
Board in care of the Secretary of the Association during the Executive's
lifetime, which designation may be changed from time to time by similar action.
If no such designation is delivered to the Board, or if no such designated
Beneficiary is then living, then the remaining distributions shall be paid to
the surviving spouse of the Executive, or in the event there is no such
surviving spouse, to the estate of the Executive.
9. Termination Benefits.
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(a) General. If the Executive's employment is terminated by
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the Association or by the Executive for any reason, the Executive shall be
entitled to all Vested Benefits. For purposes of this Agreement, the Executive's
"Vested Benefits" shall include the following amounts, payable as described
herein: (i) all base salary for the time period ending on the Termination Date;
(ii) reimbursement for any and all monies advanced in connection with the
Executive's employment for reasonable and necessary expenses incurred by the
Executive on behalf of the Association for the time period ending on the
Termination Date; (iii) any and all other cash earned through the Termination
Date and deferred at the election of the Executive or pursuant to any deferred
compensation plan then in effect; (iv) a lump sum payment of the ratable bonus
or ratable incentive compensation otherwise payable to the Executive with
respect to the year in which termination occurs to the extent provided by all
bonus or incentive compensation plans in which the Executive is a participant;
and (v) all other payments and benefits to which the Executive (or in the event
of the Executive's death, the Executive's surviving spouse or other beneficiary)
may be entitled as compensatory fringe benefits or under the terms of any
benefit plan of the Association, including the Supplemental Retirement Plan,
Split Dollar Plan Agreement, and any severance payments under the Company's
severance policies and practices in the form most favorable to the Executive
which were in effect on the Termination Date (in the event that any compensatory
fringe benefits, severance policies or other benefits were reduced or eliminated
by the association during the 180-day period prior to the Termination Date the
Executive will also be entitled to payment of benefits under such plans as they
existed prior to termination or reduction to the extent such plans are
reinstated in whole or in part during the period ending 180 days after the
Termination Date). Payment of Accrued Benefits shall be made promptly in
accordance with the Association's prevailing practice with respect to
Subsections (i) and (ii) or, with respect to Subsections (iii), (iv) and (v),
pursuant to the terms of the benefit plan or practice establishing such
benefits.
(b) Termination by Association. If the Executive's employment
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is terminated by the Association (other than for Cause pursuant to Section 6(b)
or by regulatory action pursuant to Section 6(c)) the Executive shall be
entitled to the benefits provided below:
(i) The Association shall pay the Executive his salary
and bonus in accordance with Section 2 and provide him with all benefits,
including health insurance, in accordance with Section 3 for the remaining term
of employment under this Agreement; plus
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(ii) The Association shall pay to the Executive
in a lump sum in cash within 25 business days after the Date of Termination (as
hereinbefore defined) of employment an amount equal to the Executive's "base
amount" of compensation, as defined in Section 280G(b)(3) of the Internal
Revenue Code of 1986, as amended ("Code") times the number of years or
fractional portion thereof remaining in the term of this Agreement as of the
Termination Date; plus
(iii) The Association shall cause any split dollar
life insurance policy on the life of the Executive to be funded to point of "N
pay" (as defined in the Supplemental Retirement Plan Agreement) and cause the
ownership of the policy to be transferred to the Executive.
(c) Termination by Executive. If the Executive shall
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terminate his employment for Good Reason or otherwise pursuant to Section 6(d)
hereof, the Executive shall be entitled to receive the compensation described in
Section 9(b) on the same basis as is set forth in Section 9(b).
(d) Definitions. For purposes of sections 9 and 13 of
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this Agreement, "Date of Termination" means the earlier of (i) the date upon
which the Association gives notice to the Executive of the termination of his
employment with the Association or (ii) the date upon which the Executive ceases
to serve as an Executive of the Association, and "Change in Control" is defined
solely as any acquisition of control (other than pursuant to the Conversion or
by a trustee or other fiduciary holding securities under an employee benefit
plan of the Holding Company or a subsidiary of the Holding Company), as defined
in 12 C.F.R. 574.4, or any successor regulation, of the Association or Holding
Company which would require the filing of an application for acquisition of
control or notice of change in control in a manner as set forth in 12 C.F.R.
574.3, or any successor regulation.
(e) Limitation.
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(i) Any payments made to the Executive pursuant
to this Agreement, or otherwise, are subject to and conditioned upon their
compliance with 12 U.S.C. (S)1828(k) and any regulations promulgated thereunder.
(ii) Notwithstanding any other provision of this
Agreement, if any portion of the termination benefits or any other payment under
this Agreement, or under any other agreement with or plan of the Association (in
the aggregate "Total Payments"), would constitute an "excess parachute payment,"
then the Total Payments to be made to the Executive shall be reduced such that
the value of the aggregate Total Payments that the Executive is entitled to
receive shall be One Dollar ($1) less than the maximum amount which the
Executive may receive without becoming subject to the tax imposed by Section
4999 of the Code (or any successor provision) or which the Association may pay
without loss of deduction under Section 280G(a) of the Code (or any successor
provision). For purposes of this Agreement, the terms "excess parachute payment"
and "parachute payments" shall have the meanings assigned to them in Section
280G of the Code (or any successor provision), and such "parachute payments"
shall be valued as provided therein. Present value for purposes of this
Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code
(or any successor provision). Within sixty days following delivery of the Notice
of Termination or notice by the Association to the Executive of its belief that
there is a payment or benefit due the
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Executive which will result in an excess parachute payment as defined in Section
280G of the Code (or any successor provision), the Executive and the
Association, at the Association's expense, shall obtain the opinion (which need
not be unqualified) of nationally recognized tax counsel selected by the
Association's independent auditors and acceptable to the Executive in his sole
discretion, which sets forth (A) the amount of the Base Period Income, (B) the
amount and present value of Total Payments and (C) the amount and present value
of any excess parachute payments without regard to the limitations of this
Subsection 9(e). As used in this Subsection 9(e), the term "Base Period Income"
means an amount equal to the Executive's "annualized includible compensation for
the base period" as defined in Section 280G(d)(l) of the Code (or any successor
provision). For purposes of such opinion, the value of any noncash benefits or
any deferred payment or benefit shall be determined by the Association's
independent auditors in accordance with the principles of Sections 280G(d)(3)
and (4) of the Code (or any successor provisions), which determination shall be
evidenced in a certificate of such auditors addressed to the Association and the
Executive. Such opinion shall be dated as of the Termination Date and addressed
to the Association and the Executive and shall be binding upon the Association
and the Executive. If such opinion determines that there would be an excess
parachute payment, the Termination Payment hereunder or any other payment
determined by such counsel to be includible in Total Payments shall be reduced
or eliminated as specified by the Executive in writing delivered to the
Association within thirty days of his receipt of such opinion or, if the
Executive fails to so notify the Association, then as the Association shall
reasonably determine, so that under the bases of calculations set forth in such
opinion there will be no excess parachute payment. The provisions of this
Subsection 9(e), including the calculations, notices and opinions provided for
herein, shall be based upon the conclusive presumption that the following are
reasonable: (1) the compensation and benefits provided for in Sections 2 and 3
hereof and (2) any other compensation, including but not limited to the Accrued
Benefits, earned prior to the Termination Date by the Executive pursuant to the
Association's compensation programs if such payments would have been made in the
future in any event even though the timing of such payment is triggered by the
change in Control of the Association or the Termination Date.
10. Other Activities. As of the Commencement Date, Executive shall
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terminate his active partnership status with the Xxxxx & Xxxxxx Law Firm ("Law
Firm"). The Executive shall be entitled, with or without remuneration: (i) to
serve on the Board of Directors of other profit and non-profit corporations; and
(ii) to continue to perform duties as a Trustee or Personal Representative, or
any other fiduciary capacity, so long as all of such duties do not unreasonably
detract from the performance of duties under this Agreement.
11. Indemnification. In accordance with the provisions of 12 C.F.R.
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545.121, Association shall save harmless and indemnify Executive, against any
financial losses, claims, damages or liabilities arising out of any alleged
negligence or other act of Executive during the term of this Agreement, provided
that at the time of such loss, claim, damage or liability was sustained,
Executive was acting in the discharge of duties hereunder and within the scope
of his employment and such loss, claim, damage or liability did not result from
the willful and wrongful act or gross negligence of Executive.
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12. Mitigation. The Executive shall not be required to mitigate
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the amount of any severance benefits provided for in Sections 9(a), or described
in Sections 9(b)(ii) or 9(b)(iii), of this Agreement by seeking other employment
or otherwise, nor shall the amount of any payment or benefit provided for in
Section 9(a) of this Agreement be reduced by any compensation earned by the
Executive as a result of employment by another employer or by retirement
benefits after the date of termination or otherwise; provided however, that the
benefits described at Section 9(b)(i) and any other damages to which the
Executive shall be entitled hereunder shall be subject to mitigation to the
extent required by law.
13. No Assignments.
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(a) This Agreement is personal to each of the parties hereto,
and neither party may assign or delegate any of its rights or obligations
hereunder without first obtaining the written consent of the other party;
provided, however, that the Association will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Association, by an
assumption agreement in form and substance satisfactory to the Executive, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Association would be required to perform it if no such
succession or assignment had taken place. Failure of the Association to obtain
such an assumption agreement prior to the effectiveness of any such succession
or assignment shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Association in the same amount and on the
same terms as the compensation pursuant to Section 9(a) hereof. For purposes of
implementing the provisions of this Section l3(a), the date on which any such
succession becomes effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the Executive's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts would still be payable to the Executive hereunder if the Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executive's
Beneficiary.
14. Notice. For the purposes of this Agreement, notices and all
------
other communications provided for in the Agreement 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 set forth on the first page of this Agreement (provided that all
notices to the Association shall be directed to the attention of the Board of
Directors of the Association with a copy to the Secretary of the Association),
or to such other address as either party may have furnished to the other in
writing in accordance herewith.
15. Amendments. No amendments or additions to this Agreement
----------
shall be binding unless in writing and signed by both parties, except as herein
otherwise provided.
10
16. Paragraph Headings. The paragraph headings used in this
------------------
Agreement are included solely for convenience and shall not affect, or be used
in connection with, the interpretation of this Agreement.
17. 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 hereof.
18. Governing Law. This Agreement shall be governed by the laws of
-------------
the United States to the extent applicable and otherwise by the laws of the
State of Nebraska.
19. Dispute Resolution.
------------------
(a) In the event of any dispute, claim, question or
disagreement arising out of or relating to this Agreement or the breach hereof,
the parties hereto shall use their best efforts to settle such dispute, claim,
question or disagreement. To this effect, they shall consult and negotiate with
each other, in good faith, and, recognizing their mutual interests, attempt to
reach a just and equitable solution satisfactory to both parties.
(b) If they do not reach such a solution within a period of
thirty (30) days, then the parties agree first to endeavor in good faith to
amicably settle their dispute by mediation under the Commercial Mediation Rules
of the American Arbitration Association (the "AAA"), before resorting to
arbitration.
(c) Thereafter, any unresolved controversy or claim arising
out of or relating to this Agreement or the breach thereof, upon notice by any
party to the other, shall be submitted to and finally settled by arbitration in
accordance with the Commercial Arbitration Rules (the "Rules") of the AAA in
effect at the time demand for arbitration is made by any such party. The parties
shall mutually agree upon a single arbitrator within thirty (30) days of such
demand. In the event that the parties are unable to so agree within such thirty
(30) day period, then within the following thirty (30) day period, one
arbitrator shall be named by each party. A third arbitrator shall be named by
the two arbitrators so chosen within ten (10) days after the appointment of the
first two arbitrators. In the event that the third arbitrator is not agreed
upon, he or she shall be named by the AAA. Arbitration shall occur in Lincoln,
Nebraska.
(d) The award made by all or a majority of the panel of
arbitrators shall be final and binding, and judgment may be entered based upon
such award in any court of law having competent jurisdiction. The award is
subject to confirmation, modification, correction or vacation only as explicitly
provided in Title 9 of the United States Code. The prevailing party shall be
entitled to receive an award of pre- and post-award interest as well as
attorney's fees incurred in connection with the arbitration and any judicial
proceedings relate thereto. The parties acknowledge that this Agreement
evidences a transaction involving interstate commerce. The United States
Arbitration Act and the Rules shall govern the interpretation, enforcement, and
proceedings pursuant to this Section. Any provisional remedy which would be
available from a court of law shall be available from the arbitrators to the
parties to this Agreement pending arbitration. Either party may make an
11
application to the arbitrators seeking injunctive relief to maintain the status
quo, or may seek from a court of competent jurisdiction any interim or
provisional relief that may be necessary to protect the rights and property of
that party, until such times as the arbitration award is rendered or the
controversy otherwise resolved.
20. Trade Secrets. Executive agrees not to disclose to any person
-------------
or entity, other than an employee of the Association or a person to whom
disclosure is reasonably necessary or appropriate, any confidential information
of a material nature obtained while in the employ of the Association regarding
the business of the Association, including its customers, products, prices,
manner of operation, without first obtaining the Association's written consent.
In the event Executive breaches this Section, the Association shall be entitled,
among other remedies, to injunctive relief prohibiting the Executive from
disclosing such information. This Section shall survive termination of this
Agreement.
21. Other Agreements. The parties hereto acknowledge that the
----------------
terms and provisions of this Agreement shall not impact any of the rights and
obligations of the parties pursuant to a Supplemental Retirement Plan Agreement
of even date.
IN WITNESS WHEREOF, the Association has caused this amended and
restated Agreement to be signed and its corporate seal affixed hereto, and
Executive has executed this Agreement, in duplicate, as of the date first above
written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
FIRST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF LINCOLN
By: /s/ X.X. Xxxxxxxxxx
---------------------------
Chairman and C.E.O.
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
-------------------------
Asst. Secretary
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
XXXXXXX X. XXXXXXXXX
00
SUPPLEMENTAL RETIREMENT PLAN AGREEMENT
--------------------------------------
THIS AGREEMENT, made and entered into as of this 27th day of October,
1993, by and between FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF LINCOLN, a
United States corporation, with its principal office in Lincoln, Nebraska
(`Association'), and XXXXXXX X. XXXXXXXXX, an individual residing in the State
of Nebraska (`Executive').
RECITALS
--------
A. The Executive proposes to be employed by the Association pursuant to
the terms of a separate Employment Agreement executed as of this same date. All
terms defined in the Employment Agreement shall have the same meanings herein.
B. The Association recognizes the value of the services to be performed
by the Executive and wishes to encourage his continued employment.
C. The Executive wishes to be assured that he will be entitled to a
certain minimum amount of additional compensation (a) if he becomes totally
disabled while in the employ of the Association; (b) for some definite period of
time from and after his retirement from active service with the Association; or
(c) that his family will be entitled to such compensation from and after his
death either while in the employ of the Association or after his retirement.
D. The parties hereto wish to provide the terms and conditions upon
which the Association shall pay such additional compensation to the Executive
after his disability, retirement or to his designated beneficiary in event of
his death.
NOW, THEREFORE, In consideration of the premises and of the mutual
promises herein contained, the parties agree as follows:
1. Retirement. In consideration of the Executive's remaining in its
----------
employ until his retirement, the Association agrees that, from and after the
retirement of the Executive from the active service of the Association at age
sixty-five (65), or such earlier or later retirement age as may be approved by
the Association, the Association shall thereafter pay the Executive an annual
Supplemental Benefit (as defined herein) for a period of fifteen (15) years from
and after his retirement, payable in equal monthly installments, commencing with
the first day of the first month following his retirement.
2. Supplemental Benefit. For purposes of this Agreement, `Supplemental
--------------------
Benefit' means an amount calculated as follows: (A) the average annual
compensation (excluding bonuses and incentive compensation) received by the
Executive from the Association during three years of employment affording the
highest such average, or during all the years of employment if less than three
years; as reduced by (B) amounts paid under the Association's qualified defined
benefit pension plan or any disability insurance benefits purchased by the
Association; and (C) multiplying such amount by 50% to determine the benefit
payable hereunder as a Supplemental Benefit.
3. Death After Retirement. The Association further agrees that, in the
----------------------
event of the Executive's death after his retirement but prior to completing
fifteen (15) years of monthly payments; the Association will continue to make
Supplemental Benefit payments during the remainder of said fifteen (15) year
period to the Executive's Beneficiary (as defined in the Employment Agreement).
4. Disability. The Association agrees that, in the event of the total
----------
disability of the Executive (as defined in the Employment Agreement) while in
the employ of the Association, it shall pay an annual Supplemental Benefit for
up to ten (10) years, payable in equal monthly installments commencing with the
first day of the first month following replacement of the Executive as provided
in Section 7(a) of the Employment Agreement (i) until discontinuance of such
disability and employment is fully restored to the Executive; (ii) until the
Executive becomes eligible for the benefits provided at retirement hereunder
which retirement benefits shall be exclusive of and in addition to any
disability payments, or (iii) until death of the Executive, whichever shall
first occur. For all purposes of this Agreement, the Executive shall be
considered to be in the employ of the Association to receive customary fringe
benefits (or service credits therefor, as the case may be) during the
continuance of such disability.
5. Death Prior to Retirement. The Association will enter into a
-------------------------
separate Split Dollar Life Insurance Agreement and pay all premiums required
thereunder, or if the Association fails to purchase or keep in force the Split
Dollar policy, it shall pay an annual Supplemental Benefit for ten (10) years
after death, payable as otherwise provided in Paragraph 4 hereof.
6. Noncompetition. In consideration of the foregoing agreements of the
--------------
Association and of the payments to be made by the Association pursuant hereto,
the Executive hereby agrees that, so long as he remains in the active employ of
the Association, he will devote substantially all of his time, skill, diligence
and attention to the business of the Association, and will not actively engage,
either directly or indirectly, in any business or other activity which is or may
be deemed to be in any way competitive with or adverse to the best interests of
the business of the Association.
7. Termination. In the event that the employment of the Executive is
-----------
terminated for any reason other than Cause (as defined), the Association agrees
to fund a Separate Split Dollar policy to the point of "N Pay" and cause
ownership of such policy to be transferred to the Executive or if no policy was
obtained to pay to the Executive the present value of the sum of the annual
Supplemental Benefits for fifteen (15) years. This payment is to be made in one
lump sum on the first day of the first month after which the Executive's
employment terminates. For purposes hereof, "N-PAY" means that the cash value of
dividend additions within the policy, together with projected future dividends,
are estimated to be sufficient to pay all remaining additional premiums required
by the terms of policy; provided, however, that if the future dividends actually
paid are less than the assumed dividends, the Association will be required to
pay any deficiency.
8. Other Benefits and Programs. It is expressly understood by the
---------------------------
parties hereto that this Agreement relates exclusively to additional
compensation for the Executive's services and any benefits payable under this
Agreement shall be independent of, and in addition to, any other benefits or
compensation payable under a separate Employment Agreement of even date herewith
or as may
2
hereinafter be amended from time to time. This Agreement does not involve a
reduction in salary or foregoing of an increase in future salary by the
Executive, nor does the Agreement in any way affect or reduce the proposed or
future compensation of the Executive.
9. Benefits Not Funded. This Agreement represents a contractual
-------------------
promise to pay by the Association, assuming satisfaction by Executive of the
requirements herein, and that said promise to pay is not represented by notes or
secured or funded in any way. If the Association, solely at its own discretion,
shall acquire a life insurance or annuity contract or any other asset in
connection with the liabilities assumed by it hereunder, it is expressly agreed
that neither Executive nor any Beneficiary hereunder shall have any right with
respect to, or claim against, such contract or other asset. Such contract or
other asset shall not be held in any way as collateral security for the
fulfilling of the obligations of the Association under this Agreement. Such
contract or other asset shall be and remain a general, unpledged, unrestricted
asset of the Association. Executive may unilaterally change the person or
persons who are to receive payments hereunder following his death, including
provisions for payment to a Trust or Trusts, notwithstanding any other provision
hereof, by written instrument executed by him and delivered to the Association
during Executive lifetime.
10. Nonalienation of Benefits. Neither the Executive, his designated
-------------------------
Beneficiary nor any other beneficiary under this Agreement shall have any power
or right to transfer, assign, anticipate, hypothecate or otherwise encumber any
part or all of the amounts payable by the Association hereunder, nor shall such
amounts be subject to seizure by any creditor of any such beneficiary, by a
proceeding at law or in equity, and no such benefit shall be transferable by
operation of law in the event of bankruptcy, insolvency or death of the
Executive, his spouse, his designated beneficiary or any other beneficiary
hereunder. Any such attempted assignment or transfer shall be void and shall
terminate this Agreement, and the Association shall thereupon have no further
liability hereunder.
11. Binding Effect. This Agreement, and any amendment hereto, shall be
--------------
binding upon and inure to the benefit of the Association, its successors and
assigns, and the Executive, and his beneficiaries, heirs, executors,
administrators and legal representatives.
12. Amendments. This Agreement may not be amended, altered or
----------
modified, except by a written instrument signed by the parties hereto, or their
respective successors or assigns, and may not be otherwise terminated except as
provided herein.
13. Notice. Any notice, consent or demand required or permitted to be
------
given under the provisions of this Agreement shall be in writing, and shall be
signed by the party giving or making the same. If such notice, consent or demand
is mailed to a party hereto, it shall be sent by United States mail, postage
prepaid, addressed to such party's last known address as shown on the records of
the Association. The date of such mailing shall be deemed the date of notice,
consent or demand.
14. Applicable Law. This Agreement, and the rights of the parties
--------------
hereunder, shall be governed by and construed in accordance with the laws of the
state of Nebraska.
3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in
duplicate, as of the day and year first above written.
FIRST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF LINCOLN
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Asst. Secretary
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
XXXXXXX X. XXXXXXXXX
0
EXCERPT FROM MINUTES
OF SEPTEMBER 26, 2001 BOARD MEETING
BD 01-9-28
WHEREAS, a formal written review of the performance of Xxxxxxx X. Xxxxxxxxx will
be prepared and a performance review conducted by the Compensation Committee in
December, 2001.
WHEREAS, the Board conducted the formal discussion on the annual review of the
Employment Contract for Xxxxxxx X. Xxxxxxxxx. This review included the
requirement to formally extend the contract by an additional one year at the end
of the present three year term.
THEREFORE, after review and discussion of his performance, it was moved,
seconded, and carried that his contract be extended as to term only for an
additional one year and the other contractual provisions, including
compensation, will be discussed and appropriate contract amendments, if any,
addressed by the Compensation Committee before year end.
Note: Xx. Xxxxxxxxx excused himself from the meeting during the discussion, and
did not vote on the motion to extend his contract.
