Exhibit 10.4
AGREEMENT
AGREEMENT, dated this 20th day of September 1999, between First Federal
Financial Bancorp, Inc. (the "Corporation"), a Delaware corporation, First
Federal Savings Bank of Ironton (the "Savings Bank"), a federally-chartered
stock savings bank and I. XXXXXXX XXXX (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of the Corporation and
the Savings Bank (together, the "Employers"); and
WHEREAS, the Employers desire to be ensured of the Executive's
continued active participation in the business of the Employers; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Employers and in consideration of the Executive's agreeing to remain in the
employ of the Employers, the parties desire to specify the severance benefits
which shall be due the Executive in the event that his employment with the
Employers is terminated under specified circumstances;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereby agree as follows:
1. DEFINITIONS. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) BASE SALARY. "Base Salary" shall have the meaning set forth in
Section 3(a) hereof.
(b) CAUSE. Termination of the Executive's employment for "Cause" shall
mean termination because of personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order or material breach of any provision of this Agreement.
All such determinations pursuant to this Section 1(b) shall be made in the sole
and complete discretion of the Board of Directors, which determinations shall be
final and conclusive.
(c) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of the
Corporation" shall mean a change in control of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or any successor thereto, whether or not the Corporation is registered
under Exchange Act; provided that, without limitation, such a change in control
shall be deemed to have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Corporation
representing 25% or more of the combined voting power of the Corporation's then
outstanding securities; or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Corporation cease for any reason to constitute at least a
majority thereof unless the election, or the nomination for election by
stockholders, of each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning of the
period.
(d) CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(e) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause or for Disability, the date
specified in the Notice of Termination, and (ii) if the Executive's employment
is terminated for any other reason, the date on which a Notice of Termination is
given or as specified in such Notice.
(f) DISABILITY. Termination by the Employers of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits under
the applicable long-term disability plan maintained by the Employers or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(g) GOOD REASON. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive following a
Change in Control of the Corporation based on:
(i) Without the Executive's express written consent, a material
reduction by the Employers in the Executive's Base Salary as
the same may be increased from time to time or, except to
the extent permitted by Section 3(b) hereof, a material
reduction in the package of fringe benefits provided to the
Executive, taken as a whole;
(ii) The principal executive office of the Employers is relocated
more than 30 miles from the location of the Employers'
current principal executive office, or, without the
Executive's express written consent, the Employers require
the Executive to be based more than 30 miles from the
location of the Employers' current principal executive
office, except for required travel on business of the
Employers to an extent substantially consistent with the
Executive's present business travel obligations;
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(iii) Any purported termination of the Executive's employment for
Cause, Disability or Retirement which is not effected
pursuant to a Notice of Termination satisfying the
requirements of paragraph (i) below;
(iv) The failure by the Employers to elect or to re-elect or to
appoint or to reappoint the Executive to the office of
President of the Employers or a material adverse change made
by the Employers in the Executive's functions, duties or
responsibilities as President of the Employers without the
Executive's express written consent; or
(v) The failure by the Employers to obtain the assumption of and
agreement to perform this Agreement by any successor as
contemplated in Section 9 hereof.
(h) IRS. IRS shall mean the Internal Revenue Service.
(i) NOTICE OF TERMINATION. Any purported termination of the Executive's
employment by the Employers for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, including
without limitation for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30) nor
more than ninety (90) days after such Notice of Termination is given, except in
the case of the Employers termination of Executive's employment for Cause, which
shall be effective immediately; and (iv) is given in the manner specified in
Section 10 hereof.
(j) RETIREMENT. Termination by the Employers of the Executive's
employment based on "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employers' retirement policies, including early
retirement, generally applicable to their salaried employees.
2. TERM OF EMPLOYMENT.
(a) The Employers hereby employ the Executive as President and
Executive hereby accepts said employment and agrees to render such services to
the Employers on the terms and conditions set forth in this Agreement. The term
of employment under this Agreement shall be for three years, commencing on the
date of this Agreement and, subject to the requirements of the succeeding
sentence, shall be deemed automatically, without further action, to extend for
an additional year on each annual anniversary of the date of this Agreement such
that at any time the
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remaining term of this Agreement shall be from two to three years. Prior to the
first annual anniversary of the date of this Agreement and each annual
anniversary thereafter, the Board of Directors of the Employers shall consider
and review (with appropriate corporate documentation thereof, and after taking
into account all relevant factors, including the Executive's performance
hereunder) extension of the term under this Agreement, and the term shall
continue to extend in the manner set forth above unless either the Board of
Directors does not approve such extension and provides written notice to the
Executive of such event or the Executive gives written notice to the Employers
of the Executive's election not to extend the term, in each case with such
written notice to be given not less than thirty (30) days prior to any such
anniversary date. References herein to the term of this Agreement shall refer
both to the initial term and successive terms.
(b) During the term of this Agreement, the Executive shall perform such
executive services for the Employers as may be consistent with his titles and
from time to time assigned to him by the Employers' Board of Directors.
3. COMPENSATION AND BENEFITS.
(a) The Employers shall compensate and pay Executive for his services
during the term of this Agreement at a minimum salary of $56,900 per year, which
may be increased from time to time in such amounts as may be determined by the
Board of Directors of the Employers and, except in connection with a
company-wide general reduction in salaries as a result of general economic
conditions, may not be decreased without the Executive's express written consent
(hereinafter, referred to as Executive's "Base Salary"). In addition, the
Executive may also receive bonus payments when, as, and if determined in the
sole discretion of the Board of Directors of the Employers.
(b) During the term of the Agreement, Executive shall be entitled to
participate in and receive the benefits of any pension or other retirement
benefit plan, profit sharing, stock option, employee stock ownership, or other
plans, benefits and privileges given to employees and executives of the
Employers, to the extent commensurate with his then duties and responsibilities,
as fixed by the Board of Directors of the Employers. The Employers shall not
make any changes in such plans, benefits or privileges which would adversely
affect Executive's rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all executive officers of the Employers and
does not result in a proportionately greater adverse change in the rights of or
benefits to Executive as compared with any other executive officer of the
Employers. Nothing paid to Executive under any plan or arrangement presently in
effect or made available in the future shall be deemed to be in lieu of the
salary payable to Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, Executive shall be entitled to
paid annual vacation in accordance with the policies as established from time to
time by the Board of Directors of the Employers, which shall in no event be less
than four weeks per annum. Executive shall not be
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entitled to receive any additional compensation from the Employers for failure
to take a vacation, nor shall Executive be able to accumulate unused vacation
time from one year to the next, except to the extent authorized by the Board of
Directors of the Employers.
(d) In the event of termination by the Employers of the Executive's
employment because of Disability, the Employers shall provide continued medical
insurance in the Employers' health plan for the benefit of the Executive and his
spouse until the Executive shall have attained the age of 65, and such insurance
shall be comparable to that which is provided to the Executive as of the date of
this Agreement notwithstanding anything to the contrary in this Agreement. In
the event of the Executive's death before he attains the age of 65, the
Employers shall provide the Executive's spouse said medical insurance for two
years from the date of the Executive's death.
(e) In the event of the Executive's death during the term of this
Agreement, the Executive's spouse, estate, legal representative or named
beneficiaries (as directed by the Executive in writing) shall be paid on a
monthly basis the greater of (i) the death benefits which may be available under
one or more policies of the Employers or (ii) the Executive's annual
compensation from the Employers at the rate in effect at the time of the
Executive's death for a period of twelve (12) months from the date of the
Executive's death.
(f) The Executive's compensation, benefits and expenses which are
required to be provided under this Agreement shall be paid by the Corporation
and the Savings Bank in the same proportion as the time and services actually
expended by the Executive on behalf of each respective Employer.
4. EXPENSES. The Employers shall reimburse Executive or otherwise
provide for or pay for all reasonable expenses incurred by Executive in
furtherance of, or in connection with the business of the Employers, including,
but not by way of limitation, traveling expenses, subject to such reasonable
documentation and other limitations as may be established by the Board of
Directors of the Employers. If such expenses are paid in the first instance by
Executive, the Employers shall reimburse the Executive therefor.
5. TERMINATION.
(a) The Employers shall have the right, at any time upon prior Notice
of Termination, to terminate the Executive's employment hereunder for any
reason, including without limitation termination for Cause, Disability or
Retirement, and Executive shall have the right, upon prior Notice of
Termination, to terminate his employment hereunder for any reason.
(b) In the event that (i) Executive's employment is terminated by the
Employers for Cause, Disability or Retirement or in the event of the Executive's
death, or (ii) Executive terminates his employment hereunder other than for Good
Reason, Executive shall have no right pursuant to
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this Agreement to compensation or other benefits for any period after the
applicable Date of Termination, other than as set forth in subsections 3(d) and
3(e) hereinabove.
(c) In the event that (i) Executive's employment is terminated by the
Employers for other than Cause, Disability, Retirement or the Executive's death,
or (ii) such employment is terminated by the Executive (a) due to a material
breach of this Agreement by the Employers, which breach has not been cured
within fifteen (15) days after a written notice of non-compliance has been given
by the Executive to the Employers, or (b) for Good Reason, then the Employers
shall:
(A) pay to the Executive, in thirty-six (36) equal monthly
installments beginning with the first business day of the month
following the Date of Termination, a cash severance amount equal to
three (3) times the Executive's Base Salary, and
(B) maintain and provide for a period ending at the earlier of
(i) the expiration of the remaining term of employment pursuant hereto
prior to the Notice of Termination or (ii) the date of the Executive's
full-time employment by another employer (provided that the Executive
is entitled under the terms of such employment to benefits
substantially similar to those described in this subparagraph (B)), at
no additional cost to the Executive beyond that which the Executive is
responsible for prior to the Date of Termination, the Executive's
continued participation in all group insurance, life insurance, health
and accident, disability and other employee benefit plans, programs and
arrangements in which the Executive was entitled to participate
immediately prior to the Date of Termination (other than stock option
and restricted stock plans of the Employers), provided that in the
event that the Executive's participation in any plan, program or
arrangement as provided in this subparagraph (B) is barred, or during
such period any such plan, program or arrangement is discontinued or
the benefits thereunder are materially reduced, the Employers shall
arrange to provide the Executive with benefits substantially similar to
those which the Executive was entitled to receive under such plans,
programs and arrangements immediately prior to the Date of Termination.
6. LIMITATION OF BENEFITS UNDER CERTAIN CIRCUMSTANCES. If the payments
and benefits pursuant to Section 5 hereof, either alone or together with other
payments and benefits which Executive has the right to receive from the
Employers, would constitute a "parachute payment" under Section 280G of the
Code, the payments and benefits pursuant to Section 5 hereof shall be reduced,
in the manner determined by the Executive, by the amount, if any, which is the
minimum necessary to result in no portion of the payments and benefits under
Section 5 being non-deductible to the Employers pursuant to Section 280G of the
Code and subject to the excise tax imposed under Section 4999 of the Code. The
determination of any reduction in the payments and benefits to be made pursuant
to Section 5 shall be based upon the opinion of independent tax counsel selected
by the Employers' independent public accountants and paid by the Employers. Such
counsel shall be reasonably acceptable to the Employers and the Executive; shall
promptly prepare the foregoing
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opinion, but in no event later than thirty (30) days from the Date of
Termination; and may use such actuaries as such counsel deems necessary or
advisable for the purpose. In the event that the Employers and/or the Executive
do not agree with the opinion of such counsel, (i) the Employers shall pay to
the Executive the maximum amount of payments and benefits pursuant to Section 5,
as selected by the Executive, which such opinion indicates that there is a high
probability do not result in any of such payments and benefits being
non-deductible to the Employers and subject to the imposition of the excise tax
imposed under Section 4999 of the Code and (ii) the Employers may request, and
Executive shall have the right to demand that the Employers request, a ruling
from the IRS as to whether the disputed payments and benefits pursuant to
Section 5 hereof have such consequences. Any such request for a ruling from the
IRS shall be promptly prepared and filed by the Employers, 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 Employers 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 the Executive may be
entitled upon termination of employment under any circumstances other than as
specified in this Section 6, or a reduction in the payments and benefits
specified in Section 5 below zero.
7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) In the event that the Employers are required to make payments to
the Executive pursuant to Section 5 hereof in connection with a termination of
Executive's employment for other than Good Reason, the cash severance amount
required to be paid by the Employers shall be reduced during each year that such
payments are required to be made by 50% of any payments made to the Executive by
any other employer. In all other circumstances, the Executive shall not be
required to mitigate the amount of any benefits hereunder by seeking other
employment or otherwise, nor shall the amount of any such benefits be reduced by
any compensation earned by the Executive as a result of employment by another
employer after the Date of Termination or otherwise.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employers pursuant to employee benefit plans
of the Employers or otherwise.
8. WITHHOLDING. All payments required to be made by the Employers
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Employers may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
9. ASSIGNABILITY. The Employers may assign this Agreement and their
rights and obligations hereunder in whole, but not in part, to any corporation,
bank or other entity with or into
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which the Employers may hereafter merge or consolidate or to which the Employers
may transfer all or substantially all of their assets, if in any such case said
corporation, bank or other entity shall by operation of law or expressly in
writing assume all obligations of the Employers hereunder as fully as if it had
been originally made a party hereto, but may not otherwise assign this Agreement
or their rights and obligations hereunder. The Executive may not assign or
transfer this Agreement or any rights or obligations hereunder.
10. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Employers: Secretary
First Federal Financial Bancorp, Inc.
First Federal Savings Bank of Ironton
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxx 00000
To the Executive: I. Xxxxxxx Xxxx
000 Xxxxxxxx Xxxx 000
Xxxxxxx, Xxxx 00000
11. AMENDMENT; WAIVER. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Employers to sign on
their behalf. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
12. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the State of Ohio.
13. NATURE OF OBLIGATIONS. Nothing contained herein shall create or
require the Employers to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that the Executive acquires a right
to receive benefits from the Employers hereunder, such right shall be no greater
than the right of any unsecured general creditor of the Employers.
14. HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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15. VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. REGULATORY PROHIBITION. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. Section 1828(k)) and any regulations
promulgated thereunder.
The following provisions shall be applicable to the parties to the
extent that they are required to be included in employment agreements between
a savings association and its employees pursuant to Section 563.39(b) of the
Regulations Applicable to all Savings Associations, 12 C.F.R. Section 563.39(b),
or any successor thereto, and shall be controlling in the event of a conflict
with any other provision of this Agreement, including without limitation
Section 5 hereof.
(a) If Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Employers' affairs
pursuant to notice served under Section 8(e)(3) or Section 8(g)(1) of the
Federal Deposit Insurance Act ("FDIA")(12 U.S.C. Sections 1818(e)(3) and
1818(g)(1)), the Employers' obligations under this Agreement shall be
suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Employers may,
in their discretion: (i) pay Executive all or part of the compensation
withheld while its obligations under this Agreement were suspended, and
(ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(b) If Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Employers' affairs by an
order issued under Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C.
Sections 1818(e)(4) and (g)(1)), all obligations of the Employers under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the Executive and the Employers as of the date of termination shall
not be affected.
(c) If the Savings Bank is in default, as defined in Section 3(x)(1)
of the FDIA (12 U.S.C. Section 1813(x)(1)), all obligations under this Agreement
shall terminate as of the date of default, but vested rights of the Executive
and the Employers as of the date of termination shall not be affected.
(d) All obligations under this Agreement shall be terminated pursuant
to 12 C.F.R. Section 563.39(b)(5) (except to the extent that it is determined
that continuation of the Agreement for the continued operation of the Employers
is necessary): (i) by the Director of the Office of Thrift
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Supervision ("OTS"), or his/her designee, at the time the Federal Deposit
Insurance Corporation ("FDIC") or Resolution Trust Corporation enters into an
agreement to provide assistance to or on behalf of the Savings Bank under the
authority contained in Section 13(c) of the FDIA (12 U.S.C. Section 1823(c)); or
(ii) by the Director of the OTS, or his/her designee, at the time the Director
or his/her designee approves a supervisory merger to resolve problems related to
operation of the Savings Bank or when the Savings Bank is determined by the
Director of the OTS to be in an unsafe or unsound condition, but vested rights
of the Executive and the Employers as of the date of termination shall not be
affected.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Attest: FIRST FEDERAL FINANCIAL BANCORP, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------- -------------------------------
Xxxxx X. Xxxxxxx, Secretary Xxxxxx X. Xxxxxxxx
Chairman
Attest: FIRST FEDERAL SAVINGS BANK OF IRONTON
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------- -------------------------------
Xxxxx X. Xxxxxxx, Secretary Xxxxxx X. Xxxxxxxx
Chairman
EXECUTIVE
By: /s/ I. Xxxxxxx Xxxx
-------------------------------
I. Xxxxxxx Xxxx
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