EX-10.3 4 dex103.htm EMPLOYMENT AGREEMENT BETWEEN BAY VANGUARD FEDERAL SAVINGS BANK BAY-VANGUARD FEDERAL SAVINGS BANK EMPLOYMENT AGREEMENT
EXHIBIT 10.3
BAY-VANGUARD FEDERAL SAVINGS BANK
THIS AGREEMENT, made this 12th day of January, 2005 (the “Agreement”), by and between BAY-VANGUARD FEDERAL SAVINGS BANK, a federally-chartered savings bank (the “Bank”), and XXXXXXX X. XXXX (“Executive”). References to the “Company” herein shall mean BV FINANCIAL, INC., a federally-chartered corporation and the Bank holding company.
WHEREAS, Executive serves in a position of substantial responsibility;
WHEREAS, Executive desires to remain employed by the Bank during the term of this Agreement.
a. | The term of this Agreement shall include (i) the initial term, consisting of the period commencing on the date of this Agreement (the “Effective Date”) and ending on the third anniversary of the Effective Date, plus (ii) any and all extensions of the initial term made pursuant to this Section 3. |
b. | Commencing on the first anniversary of the Effective Date, and continuing on each anniversary thereafter, the disinterested members of the board of directors of the Bank may extend the term of this Agreement for an additional year so that the remaining term of the Agreement again becomes thirty (36) months, unless Executive elects not to extend the term of this Agreement by giving written notice of her intentions in accordance with Section 20 of this Agreement. Each year, the Board of Directors of the Bank (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. |
a. | The Bank agrees to pay the Executive an annual base salary of $113,148, payable in accordance with the customary payroll practices of the Bank. |
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. |
a. | Executive may take vacation and other leave in accordance with the Bank’s policy for senior executives or otherwise as approved by the Board. |
b. | In addition to paid vacations and other leave, the Board may grant Executive a leave of absence, with or without pay, at such time or times and upon such terms and conditions as the Board may determine in its discretion. |
9. Automobile Allowance, Cellular Phone and Conference Attendance. During the term of this Agreement, the Bank will reimburse Executive for all costs associated with the business use of any automobile. Executive agrees to comply with reasonable reporting and expense limitations on the use of any automobile as may be established by the Bank from time to time, and the Bank will include any amount of income attributable to Executive’s personal use of an automobile on Executive’s Forms W-2. The Bank will also provide Executive with a cellular phone and will pay (or reimburse Executive) for all reasonable expenses related to the business use of such phone. In addition to the foregoing, Executive and her or her spouse, will be entitled to attend the annual Maryland Bankers Association conference and such other conferences as may be approved by the Board of Directors of the Bank from time to time.
10. Loyalty and Confidentiality.
a. | During the term of this Agreement, Executive shall: (i) devote all her business time, attention, skill, and efforts to the faithful performance of her duties as President and Chief Executive Officer of the Bank; 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 the Company 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 or the Company. |
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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 or the 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 and 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 she gains or of which she becomes aware during the course of her employment with the Bank. Executive further agrees that, unless required by law or specifically permitted by the Board in writing, she will not disclose to any person or entity, either during or subsequent to her employment, any of the above-mentioned information not generally known to the public, nor shall she use the information in any way other than for the benefit of the Bank. |
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 her 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 her 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. |
ii. | In the event of her 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 one hundred percent (100%) of Executive’s weekly rate of base salary in effect as of the date of her 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 she returns |
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to full-time employment at the Bank in the same capacity as she was employed prior to her termination for Disability; (B) her death; (C) her 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 her dependents, to the greatest extent possible, all benefits (including, without limitation, benefits under retirement plans and medical, dental and life insurance plans) provided to Executive and her dependents prior to her Disability, on the same terms as if Executive remained actively employed by the Bank.
d. | Termination for Cause. |
i. | The board of directors of the Bank may, by written notice to Executive in the form and manner specified in this paragraph, 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 her conduct. |
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f. | Without Cause or With Good Reason. |
1. | In addition to termination pursuant to Sections 11(a) through 11(e), the Board, may, upon providing written notice to Executive, immediately terminate her employment at any time for a reason other than Cause (a termination “Without Cause”) and Executive may, upon providing written notice to the Board, immediately terminate this Agreement at any time within ninety (90) days following an event constituting “Good Reason” as defined below (a termination “With Good Reason”). |
2. | Subject to Section 12 of this Agreement, in the event of her termination of employment under this Section 11(f), Executive shall receive her base salary for the remaining term of the Agreement paid in one lump sum within ten (10) calendar days of her termination. Executive shall also receive, for the remaining term of the Agreement, the benefits she would have received under any retirement programs (whether tax-qualified or non-qualified) in which she participated prior to her termination (with the amount of benefits determined by reference to the benefits Executive received or which the Bank accrued on her behalf during the twelve (12) months preceding her termination). Executive shall also continue to participate in any health (including medical and dental), life, disability or similar insurance coverage or benefit plans for the remaining term of the Agreement, upon terms no less favorable than the most favorable terms provided to senior executives of the Bank during such period. If the Bank cannot provide such coverage because the Executive is no longer an employee, the Bank shall provide Executive with comparable coverage on an individual policy basis or the cash equivalent. |
3. | “Good Reason” shall exist if, without Executive’s express written consent, the Bank materially breaches any of its respective obligations under this Agreement. Without limitation, such a material breach would occur upon any of the following: |
(i) | A material reduction in Executive’s responsibilities or authority in connection with her employment with the Company or the Bank; |
(ii) | Assignment to Executive of duties of a non-executive nature or duties for which she is not reasonably equipped by her skills and experience; |
(iii) | A reduction in salary or benefits contrary to the terms of this Agreement, or, following a Change in Control as defined in Section 12 of this Agreement, any reduction in salary or material reduction in benefits below the amounts Executive was entitled to receive prior to the Change in Control; |
(iv) | Termination of incentive and benefit plans, programs or arrangements, or reduction of Executive’s participation to such an extent as to materially reduce their aggregate value below their aggregate value as of the Effective Date; |
(v) | A requirement that Executive relocate her principal business office or her principal place of residence outside of the area consisting of a twenty-five |
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(25) mile radius from the current main office and any branch of the Bank, or the assignment to Executive of duties that would reasonably require such a relocation; or
(vi) | liquidation or dissolution of the Bank. |
Notwithstanding the foregoing, a reduction or elimination of Executive’s benefits under one or more benefit plans maintained by the Bank as part of a good faith, overall reduction or elimination of such plans or benefits thereunder, that applies to all participants in a non-discriminatory manner (except as discrimination may be necessary to comply with law) shall not constitute an event of Good Reason or a material breach of this Agreement. However, benefits of the same type or general extent as those offered prior to an overall reduction or elimination also must not be available to other officers of the Bank or any company that controls either of them under a plan or plans in or under which Executive is not entitled to participate.
g. | Continuing Covenant Not to Compete or Interfere with Relationships. Regardless of anything in this Agreement to the contrary, following Executive’s termination of employment pursuant to Section 11(f): |
1. | Executive’s obligations under Section 10(c) of this Agreement will continue in effect; and |
2. | During the period ending on the first anniversary of Executive’s termination, Executive shall not serve as an officer, director or employee of any bank holding company, bank, savings bank, savings and loan holding company, mortgage company or other financial institution that offers products or services competing with those offered by the Bank from any office within thirty-five (35) miles from the main office or any branch of the Bank and, further, Executive shall not interfere with the relationship of the Bank with any of its employees, agents, or representatives. |
12. Termination in Connection with a Change in Control.
a. | Definition of Change in Control. For purposes of this Agreement, a Change in Control means any of the following events: |
1. | Merger: The Company merges into or consolidates with another corporation, or merges another corporation into the Company, and, as a result, persons who were stockholders of the Company immediately before the merger or consolidation hold less than a majority of the combined voting power of the resulting corporation immediately after the merger or consolidation. |
2. | 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 (2) 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. |
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3. | Change in Board Composition: If, 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 (d), 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 the two-year period; or |
4. | 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.
b. | Termination. If, within the period ending one year after a Change in Control, (i) the Bank terminates Executive’s employment Without Cause, or (ii) Executive voluntarily terminates her employment With Good Reason, the Bank shall, within ten calendar days of the termination of Executive’s employment, make a lump-sum cash payment to her equal to 2.99 times Executive’s average Annual Compensation over the five (5) most recently completed calendar years ending with the year immediately preceding the effective date of the Change in Control. In determining Executive’s average Annual Compensation, Annual Compensation shall include base salary and any other taxable income, including, but not limited to, amounts related to the granting, vesting or exercise of restricted stock awards or stock options, commissions, bonuses, retirement benefits, director or committee fees and fringe benefits paid to Executive or accrued or paid on Executive’s behalf during any applicable calendar year. Annual Compensation shall also include profit sharing, employee stock ownership plan and other retirement contributions or benefits, including those made to or accrued on behalf of Executive under any tax-qualified or non-qualified plan or arrangement (whether or not such amounts are taxable) during any applicable calendar year. The cash payment made under this Section 12(b) shall be made in lieu of any payment also required under Section 11(f) of this Agreement because of a termination of Executive’s employment; however, Executive’s rights under Section 11(f) are not otherwise affected by this Section 12. |
Also, upon termination under this Section 12, Executive shall receive for a thirty-six (36) month period the benefits she would have received under any retirement programs (whether tax-qualified or non-qualified) in which she participated prior to her termination. The amount of these retirement benefits will be determined by reference to the benefits Executive received or which the Bank accrued on Executive’s behalf under the benefit programs during the twelve (12) months preceding the Change in Control. Executive will also continue to participate in any Bank-sponsored health (including medical and dental), life, disability or similar insurance coverage or benefit plans for a thirty-six (36) month period, under terms no less favorable than the most favorable terms provided to senior executives during such period. In the event the Bank cannot provide such coverage because Executive is no longer an employee, the Bank shall provide Executive with comparable coverage on an individual policy basis or the cash equivalent.
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c. | The provisions of this Section 12 and Sections 14 through 26, including the defined terms used in such sections, shall continue in effect until the later of the expiration of this Agreement or two years following a Change in Control. |
13. Indemnification and Liability Insurance.
14. 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 her 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.
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ruling from the IRS, but in no event shall the Bank make such filing later than thirty (30) days from the date of the accountant’s opinion referred to above. The request shall also be subject to the Executive’s approval prior to filing; Executive shall not unreasonably withhold her approval. 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 IRS rulings, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained in this Agreement 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 12 hereof, or a reduction in the payments and benefits specified in Section 12, below zero.
a. | All payments provided for in this Agreement shall be timely paid in cash or check from the general funds of the Bank. The Company, however, unconditionally guarantees payment and provision of all amounts and benefits due hereunder to Executive and, if such amounts and benefits due from the Bank are not timely paid or provided by the Bank, such amounts and benefits shall be paid or provided by the Company. |
b. | Notwithstanding any provision herein to the contrary, to the extent that payments and benefits, as provided by this Agreement, are paid to or received by Executive under the Employment Agreement in effect between Executive and the Company (the “Company Agreement”), such compensation payments and benefits paid by the Company will be subtracted from any amount due simultaneously to Executive under similar provisions of this Agreement. Payments pursuant to this Agreement and the Company Agreement shall be allocated in proportion to the level of activity and the time expended on such activities by Executive as determined by the Company and the Bank. |
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21. No Plan Created by this Agreement. Executive and the Bank 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.
23. Applicable Law. Except to the extent preempted by federal law, Maryland law shall govern this Agreement in all respects, whether as to its validity, construction, capacity, performance or otherwise.
25. Headings. Headings contained in this Agreement are for convenience of reference only.
a. | The Bank may terminate Executive’s employment at any time, but any termination by the Bank, 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 7 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 contract 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 contract 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 contract shall terminate as of the date of default, but this paragraph shall not affect any vested rights of the contracting parties. |
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e. | All obligations of the Bank under this contract shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the institution: (i) by the Director of the OTS (or her designee), the FDIC or the Resolution Trust Corporation, 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 her designee) at the time the Director (or her designee) approves a supervisory merger to resolve problems related to the operations of the 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. |
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Attest: | BV FINANCIAL, INC. | |||
(as Guarantor) | ||||
/s/ Xxxxxx X. Xxxxxxxxx, Xx. | By: | /s/ Xxxxxx X. Xxxxxxx | ||
Attest: | BAY-VANGUARD FEDERAL SAVINGS BANK | |||
/s/ Xxxxxx X. Xxxxxxxxx, Xx. | By: | /s/ Xxxxxx X. Xxxxxxx | ||
Attest: | EXECUTIVE | |||
/s/ Xxxxxx X. Xxxxxxxxx, Xx. | By: | /s/ Xxxxxxx X. Xxxx | ||
Xxxxxxx X. Xxxx |
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