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EXHIBIT 10.3
ARGO FEDERAL SAVINGS BANK, FSB
EMPLOYMENT AGREEMENT
AS AMENDED AND RESTATED
AS OF NOVEMBER 1, 1999
This AGREEMENT is restated, amended and made effective as of November
1, 1999, by and among ARGO FEDERAL SAVINGS BANK, FSB (the "Bank"), a federally
chartered savings institution, with its principal administrative office at 0000
Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, ARGO BANCORP, INC., a corporation
organized under the laws of the State of Delaware, the holding company for the
Bank (the "Holding Company"), and XXXX X. XXXXXXX ("Executive").
WHEREAS, the Bank wishes to assure itself of the continued services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Bank on a
permanent basis for said period.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of Executive's employment hereunder, Executive agrees to
serve as Vice-Chairman, President and Chief Executive Officer of the Bank.
Executive shall render administrative and management services to the Bank such
as are customarily performed by persons situated in a similar executive
capacity. During said period, Executive also agrees to serve, if elected, as an
officer and director of the Holding Company or any subsidiary of the Bank.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the date first above written and shall continue
for a period of thirty-six (36) calendar months thereafter. Commencing on the
first anniversary date of this Agreement, and continuing on each anniversary
thereafter, the disinterested members of the board of directors of the Bank
("Board") may extend the Agreement an additional year such that the remaining
term of the Agreement shall be three years, unless the Executive elects not to
extend the term of this Agreement by giving written notice in accordance with
Section 9 of this Agreement. The Board will review the Agreement and Executive's
performance annually for purposes of determining whether to extend the Agreement
and the rationale and results thereof shall be included in the minutes of the
Board's meeting. The Board shall give notice to the Executive as soon as
possible after such review as to whether the Agreement is to be extended.
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(b) During the period of Executive's employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence, Executive shall devote such amounts of his
business time, attention, skill, and efforts reasonably required for the
faithful performance of his duties hereunder including activities and services
related to the organization, operation and management of the Bank and
participation in community and civic organizations; provided, however, that,
with the approval of the Board, as evidenced by a resolution of such Board, from
time to time, Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, companies or
organizations, which, in such Board's judgment, will not present any conflict of
interest with the Bank, or materially affect the performance of Executive's
duties pursuant to this Agreement.
(c) Notwithstanding anything herein to the contrary, Executive's
employment with the Bank may be terminated by the Bank or the Executive during
the term of this Agreement, subject to the terms and conditions of this
Agreement.
3. COMPENSATION AND REIMBURSEMENT
(a) The Bank shall pay Executive as compensation a salary of not less
than $167,107.00 per year ("Base Salary"). Base Salary shall include any amounts
of compensation deferred by Executive under any qualified or non-qualified plan
maintained by the Bank. Such Base Salary shall be payable bi-weekly. During the
period of this Agreement, Executive's Base Salary shall be reviewed at least
annually; the first such review will be made no later than one year from the
date of this Agreement. Such review shall be conducted by the Board or by a
Committee of the Board, delegated such responsibility by the Board. The
Committee or the Board may increase Executive's Base Salary. Any increase in
Base Salary shall become the "Base Salary" for purposes of this Agreement. In
addition to the Base Salary provided in this Section 3(a), the Bank shall also
provide Executive, at no cost to Executive, with all such other benefits as are
provided uniformly to permanent full-time employees of the Bank.
(b) The Executive shall be entitled to participate in any employee
benefit plans ("Benefit Plans"), arrangements and perquisites substantially
equivalent to those in which Executive was participating or otherwise deriving
benefit from immediately prior to the beginning of the term of this Agreement,
and the Bank will not, without Executive's prior written consent, make any
changes in such plans, arrangements or perquisites which would materially
adversely affect Executive's rights or benefits thereunder; provided, however,
that the Bank may make such changes to such plans, arrangements or perquisites
generally provided to all Bank employees on a non-discriminatory basis. The Bank
may acquire "Key Man" insurance on Executive upon such terms and conditions as
may be determined from time to time by the Bank. Upon an Event of Termination as
defined below, the Bank shall transfer an "Key Man" life insurance, if any is
owned by the Bank, to Executive. Without limiting the generality of the
foregoing provisions of this Subsection (b), Executive shall be entitled to
participate in or receive benefits under any Benefit
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Plans including but not limited to, stock grants, restricted stock, stock
options (and other option derived benefits), Employee Stock Ownership Plans
("ESOP"), or any other stock-based benefit plan, retirement plans, supplemental
retirement plans, pension plans, profit-sharing plans, health-and-accident
plans, medical coverage or any other employee benefit plan or arrangement made
available by the Bank in the future to its senior executives and key management
employees with awards, grants, levels and benefits for Executive equal at least
to levels customary in the industry for persons of like title, authority and
responsibility as Executive and with levels of Executive's past participation in
the Benefit Plans of the Bank, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements.
Executive shall be entitled to incentive compensation and bonuses as provided in
any plan of the Bank in which Executive is eligible to participate. Nothing paid
to the Executive under any such plan or arrangement will be deemed to be in lieu
of other compensation to which the Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3 and other compensation provided for by paragraph (b) of this
Section 3, the Bank shall pay or reimburse Executive for all travel,
entertainment and other reasonable expenses incurred in the performance of
Executive's obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine.
(d) In addition to Executive's Base Salary as provided in paragraph (a)
of this Section 3 and any incentive compensation or discretionary bonus
otherwise paid or payable to other senior executives or to Executive
exclusively, the Bank shall annually award a Fixed Incentive Award to Executive
in an amount equal to two percent (2%) of the Bank's pre-tax profit on an
unconsolidated basis. The Fixed Incentive Award shall be calculated annually for
the period August 1 through July 31 each year. The Fixed Incentive Award shall
be paid to Executive or his designated beneficiary upon the earlier of (i) the
termination by the Bank of his employment for other than Termination for Cause;
(ii) the expiration of this Agreement; (iii) his death or Disability; or (iv)
annually upon the anniversary of this Agreement. In the event Executive is
subject to Termination for Cause or voluntarily terminates his employment, other
than upon an Event of Termination as defined below, Executive shall forfeit all
rights to the Fixed Incentive Award provided under this paragraph.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank or the Holding Company of Executive's full-time
employment hereunder for any reason other than a termination governed by Section
5(a), for Disability, as defined in Section 7 hereof, or Termination for Cause,
as defined in Section 8 hereof; (ii) Executive's resignation from the Bank's
employ upon any (A) failure to elect or reelect or to appoint or reappoint
Executive as Vice-Chairman, President and Chief Executive Officer, unless
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consented to by the Executive, (B) a material change in Executive's function,
duties, or responsibilities, which change would cause Executive's position to
become one of lesser responsibility, importance, or scope from the position and
attributes thereof described in Section 1, above, unless consented to by
Executive, (C) a relocation of Executive's principal place of employment by more
than thirty (30) miles from its location at the effective date of this
Agreement, unless consented to by the Executive, (D) a material reduction in the
benefits and perquisites to the Executive from those being provided as of the
effective date of this Agreement, unless consented to by the Executive, or (E) a
liquidation or dissolution of the Bank or Holding Company, or (F) breach of this
Agreement by the Bank. Upon the occurrence of any event described in clauses
(A), (B), (C), (D), (E) or (F), above, Executive shall have the right to elect
to terminate his employment under this Agreement by resignation upon not less
than thirty (30) days prior written notice given within a reasonable period of
time not to exceed, except in the case of a continuing breach, four (4) calendar
months after the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the Bank shall be
obligated to pay Executive, or, in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, the following
payments and benefits:
(i) Base Salary for the remaining term of the Agreement which
shall be the highest annual Base Salary paid prior to Executive's termination of
employment with the Holding Company or Bank, and which shall be increased
annually during the remaining term of the Agreement at a rate of 4% per year
("Adjusted Base Salary").
(ii) Bonuses, the Fixed Incentive Award and other incentive
payments for the remaining term of the Agreement which shall be calculated as
the highest percentage of Base Salary, such bonuses and incentive payments
represented prior to Executive's termination of employment with the Holding
Company or Bank multiplied by the Adjusted Base Salary each year during the
remaining term of the Agreement ("Adjusted Bonus").
(iii) Continuation for the remaining term of the Agreement of
Executive's and Executive's dependents' participation in any life, medical,
health, disability, dental insurance or any other "welfare plan" (as such is
defined in Section 3 (1) of the Employee Retirement Security Act of 1974 as
amended from time to time ("ERISA") in which Executive participates in on the
day prior to the effective date of this Agreement (each being a "Welfare Plan"),
subject to the same premium contributions on the part of Executive as were
required immediately prior to the Event of Termination.
(iv) A benefit equal to the product of (i) the highest annual
allocation of ESOP shares Executive had previously received under the ESOP and
(ii) the lesser of (x) the remaining number of years remaining in the term of
the Agreement or (y) the number of annual allocations scheduled to be made
under the ESOP immediately prior to the Event of Termination.
(v) A benefit equal to the (i) additional employer
contributions and (ii) net return on all contributions, to which Executive would
have been entitled during the remaining term of the Agreement under any other
qualified or non-qualified defined contribution plan offered by
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the Holding Company or the Bank assuming that Executive was 100% vested,
Executive made the maximum allowable contributions or deferrals under such
plans, Executive's compensation reflected Adjusted Base Salary and Adjusted
Bonus and assuming the crediting of interest on contributions being equal to the
return provided during the five (5) year period immediately preceding the Event
of Termination.
(vi) A benefit equal to the difference between (i) the
benefits under any qualified or non-qualified pension plan (as defined in
Section 3 (2)(A) of ERISA) which he would have earned or accrued during the
remaining term of the Agreement assuming such benefit was vested and is
calculated using Adjusted Base Salary and Adjusted Bonus as appropriate in the
formula for Accrued Benefit under the plans and assuming such benefit was
calculated without making any reduction in the Accrued Benefit due to the
benefit being provided prior to the normal retirement age as set out in the
pension plan and (ii) the accrued benefit Executive is vested in at the time of
the Event of Termination.
(vii) A benefit under any non-qualified Supplemental Executive
Retirement Plan ("SERP") maintained by the Holding Company or the Bank which
Executive would have earned each year within the remaining term of the
Agreement, using compensation values which take into account Adjusted Base
Salary and Adjusted Bonus and further assuming that the qualified plans to which
the SERP refers provide the benefits generally provided to Executive under their
terms during the five year period immediately prior to the Event of Termination,
the limitations on compensation and benefits under the Code remained fixed at
their levels as of the time of the Event of Termination, and the ESOP continued
to allocate unallocated shares according to its loan amortization schedule in
place on the last day of the ESOP Plan Year immediately prior to the Event of
Termination up to the point at which the ESOP would be fully allocated.
(viii) The benefit (net of deferrals) which would have been
earned each year of the remaining term of the Agreement under any other
non-qualified deferred compensation arrangements offered by the Holding Company
or the Bank calculated using compensation values which take into account
Adjusted Base Salary and Adjusted Bonus and which assume a percentage of
deferred compensation equal to the highest percentage of compensation actually
deferred during the five (5) year period immediately preceding the Event of
Termination and assuming the crediting of interest on deferred monies equal to
the return provided during the five (5) year period immediately preceding the
Event of Termination.
(ix) A benefit consisting of the award, allocation or grant of
stock, restricted stock, stock options or any other stock or stock-related
benefit which would have been made to Executive under any and all stock based
qualified or non-qualified compensation plans or arrangements offered by Holding
Company or the Bank immediately prior to or during the term of the Agreement at
either (A) the highest level of award possible for Executive under the terms of
plans which provide awards based upon levels of individual or group or
institutional performance goals, or (B) if awards are made at the discretion of
the Holding Company or Bank, then at a level consistent with awards made in the
industry for persons of similar title, authority and responsibility and
Executive's past level of benefit under such plans. Such award, allocation or
grant as provided herein shall be deemed 100% vested immediately.
(x) Any award of stock options (or option derived benefits) to
Executive which have been made under a stock option plan or the stock option
feature of a broader compensation plan which have not already vested shall be
made fully vested and further, at the election of
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Executive, any stock options shall be subsequently cancelled by Executive in
consideration for a payment from the Holding Company in an amount equal to the
product of (i) the number of stock options cancelled and (ii) the difference
between (x) the fair market value (at the time of cancellation) of the stock
upon which the option was issued and (y) the exercise price of the stock option.
(xi) Any award of restricted stock or a stock grant (or award
and grant derived benefits) to Executive which have been made under a stock
grant plan or feature of a broader compensation plan which have not already
vested shall be made fully vested and further, at the election of Executive, any
stock awarded under such a plan shall at the election of Executive be subject to
a put option entitling Executive to sell all or some portion of such stock to
the Holding Company at the then fair market value.
(xii) For the purpose of calculating benefits to be provided
during the remaining term of the Agreement, benefits shall be provided in the
form and calculated as described above. In the event that a benefit otherwise
payable in a stock form cannot be provided in stock, such benefit will be
provided in the form of cash using the greater of the fair market value of the
stock at the time of the distribution of the benefit or the closing price of the
stock on the day prior to the time of distribution or the last day of trading
prior to the time of distribution.
(c) At the election of the Executive, which election is to be made
prior to an Event of Termination, such payments shall be made in a lump sum. In
the event that no election is made, payment to Executive will be made on a
bi-weekly basis in approximately equal installments during the remaining term of
the Agreement. Such payments shall not be reduced in the event the Executive
obtains other employment following termination of employment.
(d) No payments pursuant to this subsection shall, in the aggregate,
exceed three times Executive's average annual compensation for the five most
recent taxable years that Executive has been employed by the Bank or such lesser
number of years in the event that Executive shall have been employed by the Bank
for less than five years. For purposes of this subsection 4(b), "average annual
compensation" shall be the average annual compensation as defined in Section
5(c) of this Agreement. In the event the Bank is not in compliance with its
minimum capital requirements or if such payments pursuant to this subsection (b)
would cause the Bank's capital to be reduced below its minimum regulatory
capital requirements, such payments shall be deferred until such time as the
Bank or successor thereto is in capital compliance.
5. CHANGE IN CONTROL
(a) For purposes of this Agreement, a "Change in Control" of the Bank
or Holding Company shall mean an event of a nature that: (i) would be required
to be reported in response to Item 1 of the current report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); or (ii) results in a
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Change in Control of the Bank or the Holding Company within the meaning of the
Home Owners' Loan Act of 1933, as amended, the Federal Deposit Insurance Act and
the Rules and Regulations promulgated by the Office of Thrift Supervision
("OTS") (or its predecessor agency), as in effect on the date hereof (provided,
that in applying the definition of change in control as set forth under the
rules and regulations of the OTS, the Board shall substitute its judgment for
that of the OTS); or (iii) without limitation such a Change in Control shall be
deemed to have occurred at such time as (A) any "person" (as the 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 voting securities of the Bank or the Holding Company representing
20 % or more of the Bank's or the Holding Company's outstanding voting
securities or right to acquire such securities except for any voting securities
of the Bank purchased by the Holding Company and any voting securities purchased
by any Benefit Plan of the Bank or the Holding Company, or (B) individuals who
constitute the Board on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election was approved by
a vote of at least three-quarters of the directors comprising the Incumbent
Board, or whose nomination for election by the Holding Company's stockholders
was approved by the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (B), considered as though he were a member
of the Incumbent Board, or (C) a plan of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Bank or the Holding Company
or similar transaction occurs in which the Bank or Holding Company is not the
resulting entity; provided, however, that such an event listed above will be
deemed to have occurred or to have been effectuated upon the receipt of all
required regulatory approvals not including the lapse of any statutory waiting
periods.
(b) If a Change in Control has occurred pursuant to Section 5(a) or the
Board has determined that a Change in Control has occurred, Executive shall be
entitled to the benefits provided in paragraphs (c), and (d) of this Section 5
upon his subsequent termination of employment at any time during the term of
this Agreement due to: (1) Executive's dismissal or (2) Executive's voluntary
resignation following any demotion, loss of title, office or significant
authority or responsibility, reduction in annual compensation or material
reduction in benefits or relocation of his principal place of employment by more
than thirty (30) miles from its location immediately prior to the Change in
Control, unless such termination is because of his death or Termination for
Cause, provided, however, that such payments shall be reduced by any payment
made under Section 4 of this Agreement.
(c) Upon Executive's entitlement to benefits pursuant to Section 5(b),
the Bank shall pay Executive, or in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, a sum equal to
the greater of: (1) the payments due for the remaining term of the Agreement; or
2) three (3) times Executive's average annual compensation for the five (5) most
recent taxable years that Executive has been employed by the Bank or such lesser
number of years in the event that Executive shall have been employed by the Bank
for less than five (5) years; provided however, that no payments pursuant to
this subsection shall exceed three (3) times the Executive's average annual
compensation for the five (5) most recent taxable years that the
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Executive has been employed by the Bank or such lesser number of years in the
event the Executive shall have been employed by the Bank for less than five (5)
years. For purposes of this Agreement, such average annual compensation shall
include Base Salary, commissions, bonuses (including the Fixed Incentive Award),
contributions on Executive's behalf to any pension and/or profit sharing plan,
severance payments, retirement payments, directors or committee fees, fringe
benefits, and payment of expense items without accountability or business
purpose or that do not meet the IRS requirements for deductibility by the Bank.
In the event the Bank is not in compliance with its minimum capital requirements
or if such payments would cause the Bank's capital to be reduced below its
minimum regulatory capital requirements, such payments shall be deferred until
such time as the Bank or successor thereto is in capital compliance. At the
election of the Executive, which election is to be made prior to a Change in
Control, such payment may be made in a lump sum. In the event that no election
is made, payment to the Executive will be made on a bi-weekly basis in
approximately equal installments over a period of thirty-six (36) months
following the Executive's termination. Such payments shall not be reduced in the
event Executive obtains other employment following termination of employment.
(d) Upon the Executive's entitlement to benefits pursuant to Section
5(b), the Bank will cause to be continued life, medical, dental and disability
coverage substantially identical to the coverage maintained by the Bank for
Executive and his dependents prior to his severance at no premium cost to the
Executive, except to the extent that such coverage may, be changed in its
application for all Bank employees on a non-discriminatory basis. Such coverage
and payments shall cease upon the expiration of thirty-six (36) months following
the Date of Termination.
(e) In the event that the Executive is receiving bi-weekly payments
pursuant to Section 5(c) hereof, on an annual basis, thereafter, between the
dates of January 1 and January 31 of each year, Executive shall elect whether
the balance of the amount payable under the Agreement at that time shall be paid
in a lump sum or on a pro rata basis pursuant to such section. Such election
shall be irrevocable for the year for which such election is made.
6. CHANGE OF CONTROL RELATED PROVISIONS
Notwithstanding the paragraphs of Section 5, in no event shall the
aggregate payments or benefits to be made or afforded to Executive under said
paragraphs (the "Termination Benefits") constitute an "excess parachute payment"
under Section 28OG of the Code or any successor thereto, and in order to avoid
such a result, Termination Benefits will be reduced, if necessary, to an amount
(the "Non-Triggering Amount"), the value of which is one dollar ($1.00) less
than an amount equal to three (3) times Executive's "base amount", as determined
in accordance with said Section 280G. The allocation of the reduction required
hereby among the Termination Benefits provided by Section 5 shall be determined
by Executive.
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7. TERMINATION FOR DISABILITY; DEATH BENEFIT
(a) If, as a result of Executive's incapacity due to physical or mental
illness, such incapacity being determined by a doctor selected by the Bank, he
shall have been absent from his duties with the Bank on a full-time basis for
six (6) consecutive months, and within thirty (30) days after written notice of
potential termination is given he shall not have returned to the full-time
performance of his duties, the Bank may terminate Executive's employment for
"Disability.
(b) The Bank will pay Executive, as disability pay, a bi-weekly payment
equal to one hundred percent (100%) of Executive's bi-weekly rate of Base Salary
on the effective date of such termination. These disability payments shall
commence on the effective date of Executive's termination and will end on the
earlier of (i) the date Executive returns to the full-time employment of the
Bank in the same capacity as he was employed prior to his termination for
Disability and pursuant to an employment agreement between Executive and the
Bank; (ii) Executive's full-time employment by another employer; (iii) Executive
attaining the normal age of retirement or receiving benefits under any Defined
Benefit Plan of the Bank; (iv) Executive's death; or (v) the expiration of the
term of this Agreement. Notwithstanding any other provisions to the contrary,
the Bank may apply any proceeds from disability income insurance for Executive
which was paid for by the Bank or Holding Company as partial satisfaction of the
Bank's obligations under this Section.
(c) The Bank will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive and his dependents prior to his termination for Disability.
This coverage and payments shall cease upon the earlier of (i) the date
Executive returns to the full-time employment of the Bank, in the same capacity
as he, was employed prior to his termination for Disability and pursuant to an
employment agreement between Executive and the Bank; (ii) Executive's full-time
employment by another employer; (iii) Executive's attaining the normal age of
retirement or receiving benefits under any Defined Benefit Plan of the Bank;
(iv) the Executive's death; or (v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period which Executive is
incapable of performing his duties hereunder by reason of temporary disability.
(e) Notwithstanding anything to the contrary contained herein, upon the
death of the Executive during the term hereof, the Estate of the Executive shall
be paid his Base Compensation and Fixed Incentive Award for a period of twelve
(12) months following the death of the Executive, unless the remaining term of
the Agreement is less than twelve (12) months then the Estate of the Executive
shall be paid the Base Compensation and Fixed Incentive Award through the
remaining term of the Agreement.
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8. TERMINATION FOR CAUSE
(a) The term "Termination for Cause" shall mean termination because of
Executive's personal dishonesty, incompetence, willful misconduct, any 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. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to his a Notice of Termination which shall
include a copy of a resolution duly adopted by the affirmative vote of not less
than a majority of the members of the Board at a meeting of the Board called and
held for that purpose (after reasonable notice to Executive and an opportunity
for his, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail. Except
as provided in Section 8(b) hereof, Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause except for compensation and benefits already vested. During the period
beginning on the date of the Notice of Termination for Cause pursuant to Section
9 hereof through the Date of Termination, stock options and related limited
rights granted to Executive under any stock option plan shall not be exercisable
nor shall any unvested awards granted to Executive under any stock benefit plan
of the Bank, the Holding Company or any subsidiary or affiliate thereof vest. At
the Date of Termination, such stock options and related limited rights and such
unvested awards shall become null and void and shall not be exercisable by or
delivered to Executive at any time subsequent to such Date of Termination for
Cause.
(b) If, within thirty (30) days after Notice of Termination for Cause
is received by Executive, the Executive notifies the Bank that a dispute exists
concerning the termination ("Notice of Dispute"), the Date of Termination shall
be the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by a Notice of
Dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence. In the
event the Executive pursues resolution of such dispute through arbitration in
accordance with the rules of the American Arbitration Association then in
effect, the Bank will continue to pay Executive his Base Salary in effect when
the Notice of Dispute notice giving rise to the dispute was given until the
earlier of- 1) the resolution of the dispute pursuant to arbitration in
accordance with this Agreement or 2) six months from the Date of Termination as
specified in the Notice of Termination for Cause.
9. NOTICE
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances
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claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be less
than thirty days from the date such Notice of Termination is given.).
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of Termination shall
be the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Bank will continue to pay
Executive his full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, Base Salary) and the Executive
shall continue as a participant in all compensation, benefit and insurance plans
in which he was participating when the notice of dispute was given, until the
dispute is finally resolved in accordance with this Agreement. Amounts paid
under this Section are in addition to all other amounts due under this Agreement
and shall not be offset against or reduce any other amounts due under this
Agreement.
(d) The Bank may terminate the 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 or under any other benefit or compensation plans or programs
maintained by the Bank from time to time. Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause as defined in Section 8 hereinabove.
10. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall
be subject to Executive's compliance with paragraph (b) of this Section 10
during the term of this Agreement and for one (1) full year after the expiration
or termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information
and assistance to the Bank as may reasonably be required by the Bank in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party. The Bank will reimburse the Executive for
reasonable costs incurred by the Executive in connection with furnishing such
information and assistance to the Bank.
12
11. CONFIDENTIALITY
Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. Executive win not, during or after the term
of his employment, disclose any knowledge of the past, present, planned or
considered business activities of the Bank or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever, unless
expressly authorized by the Board of Directors or required by law.
Notwithstanding the foregoing, Executive may disclose any knowledge of legal,
banking, financial and/or economic principles, concepts or ideas which are not
solely and exclusively derived from the business plans and activities of the
Bank. In the event of a breach or threatened breach by Executive of the
provisions of this Section, the Bank will be entitled to an injunction
restraining Executive from disclosing, in whole or in part, the knowledge of the
past, present, planned or considered business activities of the Bank or
affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom such knowledge, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein will be construed as
prohibiting the Bank from pursuing any other remedies available to the Bank for
such breach or threatened breach, including the recovery of damages from
Executive.
12. SOURCE OF PAYMENTS
(a) All payments provided in this Agreement shall be timely paid in
cash or check from the general funds of the Bank. The Holding 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 Holding 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 dated and effective
November 1, 1999, between Executive and the Holding Company, except to the
extent that Base Salary is paid by the Holding Company under the Holding Company
Agreement with respect to duties performed pursuant thereto, such compensation
payments and benefits paid by the Holding Company will be subtracted from any
amounts due simultaneously to Executive under similar provisions of this
Agreement.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring
13
to Executive of a kind elsewhere provided. No provision of this Agreement shall
be interpreted to mean that Executive is subject to receiving fewer benefits
than those available to his without reference to this Agreement.
14. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Bank and their respective successors and assigns.
15. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
16. REQUIRED PROVISIONS
(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 8 hereinabove.
(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 g(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
ss.1818(e)(3) or (g)(1); the Bank's obligations under this Agreement shall be
suspended as of the date of service, unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, the Bank may in its discretion (i)
pay
14
Executive all or part of the compensation withheld while the respective
obligations under this Agreement 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.
ss.1818(e)(4) or (g)(1), all obligations of the institution under this Agreement
shall terminate as of the effective date of the order, but vested rights of the
parties hereto 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. ss.1813(x)(1) all obligations of the
Bank under this Agreement shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations of the Bank under this Agreement shall be
terminated, except to the extent determined that continuation of the Agreement
is necessary for the continued operation of the Bank, (i) by the Director of the
OTS (or his designee) or the FDIC, at the time the FDIC enters into an agreement
to provide assistance to or on behalf of the Bank under the authority contained
in Section 13(c) of the Federal Deposit Insurance Act, 12 U.S.C. ss.1823(c); or
(ii) by the Director of the OTS (or his designee) at the time the Director (or
his designee) approves a supervisory merger to resolve problems related to the
operations of the 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.ss.1828(k) and 12 C.F.R.ss.545.121 and any rules and regulations
promulgated thereunder.
17. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
15
19. GOVERNING LAW
The validity, interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of Illinois, but only to the extent
not superseded by federal law.
20. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by Executive within fifty
(50) miles from the location of the Bank, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of Executive, whether by judgment,
arbitration or settlement, Executive shall be entitled to the payment of all
back-pay, including salary, bonuses (including the Fixed Incentive Award) and
all other cash compensation, fringe benefits including those accruing under any
Benefit and any compensation and benefits due Executive under this Agreement.
21. PAYMENT OF COSTS AND LEGAL FEES
All reasonable costs and legal fees paid or incurred by Executive pursuant
to any dispute or question of interpretation relating to this Agreement shall be
paid or reimbursed by the Bank if Executive is successful on the merits pursuant
to a legal judgment, arbitration or settlement.
22. INDEMNIFICATION
(a) The Bank shall provide Executive (including his heirs, executors
and administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense and shall indemnify Executive (and the
Executive's heirs, executors and administrators) to the fullest extent permitted
under federal law against all expenses and liabilities reasonably incurred by
his in connection with or arising out of any action, suit or proceeding in which
he may be involved by reason of his having been a director or officer of the
Bank (whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such
16
expenses and liabilities to include, but not be limited to, judgments, court
costs and attorneys' fees and the cost of reasonable settlements.
(b) Any payments made to Executive pursuant to this Section are
subject to and conditioned upon compliance with 12 C. F. R.ss.545.121 and any
rules or regulations promulgated thereunder.
23. SUCCESSOR TO THE BANK
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Holding Company,
expressly and unconditionally to assume and agree to perform the Bank's
obligations under this Agreement, in the same manner and to the same extent that
the Bank would be required to perform if no such succession or assignment had
taken place.
17
ARGO BANCORP, INC.
By: /s/
-------------------------------------------
Name:
Title:
ARGO FEDERAL SAVINGS BANK
By: /s/
-------------------------------------------
Name:
Title:
EXECUTIVE:
/s/ XXXX X. XXXXXXX
-------------------------------------------
XXXX X. XXXXXXX
00
ARGO BANCORP, INC.
EMPLOYMENT AGREEMENT
AS AMENDED AND RESTATED
AS OF NOVEMBER 1, 1999
This AGREEMENT is made effective as of November 1, 1999, by and between
ARGO BANCORP, INC. (the "Holding Company"), a corporation organized under the
laws of Delaware, with its principal administrative office at 0000 Xxxx 00xx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and XXXXXXX X. XXXXX (the "Executive"). Any
reference to "Bank" herein shall mean Argo Federal Savings Bank, F.S.B. a
federally chartered stock savings bank or any successor thereto.
WHEREAS, the Holding Company wishes to assure itself of the continued
services of Executive for the period provided in this Agreement; and
WHEREAS, the Executive is willing to continue to serve in the employ of
the Holding Company for said period.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of her employment hereunder, Executive agrees to
serve as Executive Vice-President, General Counsel and Secretary of the Holding
Company. The Executive shall render administrative and management services to
the Holding Company and shall have such responsibilities and authority over the
management and operation of the Holding Company as Executive had prior to the
date hereof. During said period, Executive also agrees to serve, if elected, as
an officer and director of any subsidiary of the Holding Company. Failure to
reelect Executive as Vice-President and General Counsel of the Holding Company
or failure to reelect Executive as Vice-President and General Counsel of the
Bank without the consent of the Executive shall constitute a breach of this
Agreement.
2. TERMS
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the date first above written (the "Effective
Date") and shall continue for a period of sixty (60) full calendar months
thereafter. Commencing on the first date of this Agreement and continuing on
each anniversary thereafter, the Board of Directors ("Board") may extend the
Agreement an additional year such that the remaining term of the Agreement shall
be five years unless the Holding Company Executive elects not to extend the term
of the Agreement further by giving written notice to the other party in
accordance with Section 9 of this Agreement, in which case the term of this
Agreement shall be fixed and shall end on the fifth anniversary of the date of
such written notice. The Board will review the Agreement and the Executive's
performance annually for purposes of determining whether to give notice not to
extend the Agreement, and the results thereof shall be included in the minutes
of the Board's meeting.
19
(b) During the period of her employment hereunder, except for periods
of absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote such amounts of her business time,
attention, skill, and efforts reasonably required for the faithful performance
of her duties hereunder including activities and services related to the
organization, operation and management of the Holding Company and participation
in community and civic organizations; provided, however, that, with the approval
of the Board, as evidenced by a resolution of such Board, from time to time,
Executive may serve, or continue to serve, on the boards of directors of, and
hold any other offices or positions in, companies or organizations, which, in
such Board's judgment, will not present any conflict of interest with the
Holding Company, or materially affect the performance of Executive's duties
pursuant to this Agreement.
(c) Notwithstanding anything herein contained to the contrary: (i)
Executive's employment with the Holding Company may be terminated by the Holding
Company or Executive during the term of this Agreement, subject to the terms and
conditions of this Agreement; and (ii) nothing in this Agreement shall mandate
or prohibit a continuation of Executive's employment following the expiration of
the term of this Agreement upon such terms and conditions as the Board and
Executive may mutually agree.
(d) Upon the termination of Executive's employment with the Holding
Company, the daily extensions provided pursuant to section 2(a), shall cease (if
such extensions have not previously ceased), and, if such termination is under
circumstances described in section 4(a), the term "remaining term of the
Agreement" in section 4(b) shall mean the period of time commencing from the
date of such termination and ending on the last day of the employment period
computed with reference to all extensions prior to such termination.
(e) In the event that Executive's duties and responsibilities with
respect to the Bank are temporarily or permanently terminated pursuant to the
Employment Agreement dated November 1, 1999 (or any successor agreement thereto)
between Executive and the Bank ("Bank Agreement") and the course of conduct upon
which such termination is based would not constitute grounds for Termination for
Cause under Section 8 of this Agreement then Executive shall, to the extent
practicable, assume such duties and responsibilities formerly performed at the
Bank as part of her duties and responsibilities as Vice-President and General
Counsel of the Holding Company. Nothing in this provision shall be interpreted
as restricting the Holding Company's right to remove Executive for Cause in
accordance with Section 8 of this Agreement.
3. COMPENSATION AND REIMBURSEMENT
(a) The Holding Company shall pay Executive as compensation under this
Agreement a salary of not less than $38,300.00 per year. The compensation
specified under this Agreement, together with a portion of that compensation
that otherwise would be paid by the Bank pursuant to the Bank Agreement ("Base
Salary"), shall constitute the consideration paid for the duties described in
Section 1. Base Salary shall also include any amounts of compensation deferred
by Executive
20
under a qualified plan maintained by the Bank. Such Base Salary shall be payable
bi-weekly. During the period of this Agreement, Executive's Base Salary shall be
reviewed at least annually; the first such review will be made no later than one
year from the date of this Agreement. Such review shall be conducted by the
Compensation Committee designated by the Board, and the Board may increase
Executive's Base Salary. An increase shall become the "Base Salary" for purposes
of this Agreement. In no event shall Executive's annual rate of salary under
this Agreement in effect at a particular time be reduced without her prior
written consent. In addition to the Base Salary provided in this Section 3(a),
the Holding Company shall also provide Executive at no cost to Executive with
all such other benefits as are provided uniformly to permanent full-time
employees of the Holding Company and the Bank.
(b) The Holding Company will provide Executive with employee benefit
plans, arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Holding Company will
not, without Executive's prior written consent, make any changes in such plans,
arrangements or perquisites which would adversely affect Executive's rights or
benefits thereunder, provided, however, that the Holding Company may make such
changes to such plans, agreements or perquisites generally provided on a
nondiscriminatory basis to all employees, without the Executive's consent. The
Holding Company may acquire "Key Man" insurance on Executive upon such terms and
conditions as may be determined from time to time by the Holding Company. Upon
an Event of Termination as defined below, the Holding Company shall transfer all
"Key Man" life insurance if any is owned by the Bank or the Holding Company to
Executive. Without limiting the generality of the foregoing provisions of this
Subsection (b), Executive will be entitled to participate in and receive
benefits under any employee benefit plans ("Benefit Plans") whether tax
qualified or not, including, but not limited to, stock grants, restricted stock,
stock options (and other option derived benefits), Employee Stock Ownership
Plans ("ESOP"), or any other stock based benefit plan, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident plan, medical coverage or any other Benefit Plan or
arrangement made available by the Holding Company or the Bank in the future to
its senior executives and key management employees, with awards, grants and
levels of benefits for Executive equal to at least levels customary in the
industry for persons of like title, authority and responsibility as Executive
and with levels of Executive's past participation in the Benefit Plans of the
Holding Company or Bank subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements.
Because the Holding Company has determined to pay a portion of Base
Salary that might otherwise be attributable to the Executive's efforts on behalf
of the Bank, in order that the Bank may continue to increase levels of capital
while making available sufficient levels of compensation as are necessary to
retain other senior executives instrumental to the continuing success of the
Bank, all Base Salary earned by the Executive from the Holding Company pursuant
to this Agreement and the Bank pursuant to the Bank Agreement shall be
considered when determining the maximum extent that the Executive can
participate under any Benefit Plan offered by either the Holding Company or the
Bank. Executive will be entitled to incentive compensation and bonuses
21
as provided in any plan of the Holding Company in which Executive is eligible to
participate. Nothing paid to the Executive under any such plan or arrangement
will be deemed to be in lieu of other compensation to which the Executive is
entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3 and other compensation provided for by paragraph (b) of this
Section 3, the Holding Company shall provide Executive with a late model
automobile ("Automobile"), or Automobile allowance in lieu thereof, and shall
pay or reimburse Executive for all business entertainment expense, travel,
Automobile maintenance, operation and insurance and any other reasonable
expenses incurred by Executive to performing her obligations under this
Agreement and may provide such additional compensation in such form and such
amounts as the Board may from time to time determine.
(d) In the event that Executive assumes additional duties and
responsibilities pursuant to Section 2(c) of this Agreement by reason of one of
the circumstances contained in Section 2(c) of this Agreement, and the Executive
receives or will receive less than the full amount of compensation and benefits
formerly entitled to him under the Bank Agreement, the Holding Company shall
assume the obligation to provide Executive with compensation and benefits in
accordance with the Bank Agreement, less any compensation and benefits received
from the Bank, subject to the terms and conditions of this Agreement including
the Termination for Cause provisions in Section 8.
(e) In addition to Executive's Base Salary as provided in paragraph (a)
of this Section 3 and any incentive compensation or discretionary bonus
otherwise paid or payable to other senior executives or to this Executive
exclusively, the Holding Company shall annually award a Fixed Incentive Award to
Executive in an amount equal to one (1%) percent of the pre-tax profit of the
Holding Company and each separately incorporated or organized subsidiary, on an
unconsolidated basis, except to the extent paid under the terms of the Bank
Agreement. The Fixed Incentive Award shall be calculated annually for the year
and shall be paid to the Executive within thirty (30) days from receipt and
final acceptance be the Board of the pre tax profits for such period. The Fixed
Incentive Award shall be paid to Executive or her designated beneficiary upon
the earlier of (i) the termination by the Holding Company of her employment for
other than Termination for Cause; (ii) the expiration of this Agreement; (iii)
her death or Disability; or (iv) annually, upon the anniversary of this
Agreement. In the event Executive is subject to Termination for Cause or
voluntarily terminates her employment, Executive shall forfeit all rights to the
Fixed Incentive Award provided under this paragraph.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
The provisions of this Section shall in afl respects be subject to the
terms and conditions stated in Section 8.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply.
22
As used in this Agreement, an "Event of Termination" shall mean and include any
one or more of the following: (i) the termination by the Holding Company of
Executive's full-time employment hereunder for any reason other than for
Disability, as defined in Section 6 hereof; upon Retirement, as defined in
Section 7 hereof; or for Cause, as defined in Section 8 hereof; (ii) Executive's
resignation from the Holding Company's employ, upon any (A) failure to elect or
reelect or to appoint or reappoint Executive as Vice-President and General
Counsel, or failure to nominate or re-nominate or elect or re-elect Executive to
the Board of Directors, (B) a material change in Executive's function, duties,
or responsibilities, which change would cause Executive's position to become one
of lesser responsibility, importance, or scope from the position and attributes
thereof described in Section 1, above, (and any such material adverse change
shall be deemed a continuing breach of this Agreement), (C) a relocation of
Executive's principal place of employment by more than 30 miles from its
location at the effective date of this Agreement, (D) failure to provide the
benefits required under Section 3(b) of this Agreement, or a material reduction
in the benefits and perquisites to the Executive from those being provided as of
the effective date of this Agreement, (E) liquidation or dissolution of the Bank
or Holding Company, or (F) material breach of this Agreement by the Holding
Company. Upon the occurrence of any event described in clauses (A), (B), (C),
(D), (E) or (F) above, Executive shall have the right to elect to terminate her
employment under this Agreement by resignation upon not less than thirty (30)
days prior written notice given within a reasonable period of time not to
exceed, except in case of a continuing breach, four calendar months after the
event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the Holding Company
shall be obligated to pay Executive, or, in the event of her subsequent death,
her beneficiary or beneficiaries, or her estate, as the case may be, the
following payments and benefits:
(i) Base Salary for the remaining term of the Agreement which
shall be the highest annual Base Salary paid prior to Executive's
termination of employment with the Holding Company or Bank, and which
shall be increased annually during the remaining term of the Agreement
at a rate of 4% per year ("Adjusted Base Salary").
(ii) Bonuses, the Fixed Incentive Award and other incentive
payments for the remaining term of the Agreement which shall be
calculated as the highest percentage of Base Salary such bonuses and
incentive payments represented prior to Executive's termination of
employment with the Holding Company or Bank multiplied by the Adjusted
Base Salary each year during the remaining term of the Agreement
("Adjusted Bonus").
(iii) Continuation for the remaining term of the Agreement of
Executive's and her dependents' participation in any life, medical,
health, disability, dental insurance or any other "welfare plan" (as
such is defined in Section 3 (1) of the Employee Retirement Security
Act of 1974 as amended from time to time ("ERISA") in which Executive
participates in on the day prior to the effective date of this
Agreement (each being a "Welfare Plan"), subject to the same premium
contributions on the part of Executive as were required immediately
prior to the Event of Termination.
23
(iv) A benefit equal to the product of (i) the highest annual
allocation of ESOP shares Executive had previously received under the
ESOP and (ii) the lesser of (x) the remaining number of years remaining
in the term of the Agreement or (y) the number of annual allocations
scheduled to be made under the ESOP immediately prior to the Event of
Termination.
(v) A benefit equal to the (i) additional employer
contributions and (ii) net return on all contributions, to which Executive would
have been entitled during the remaining term of the Agreement under any other
qualified or non-qualified defined contribution plan offered by the Holding
Company or the Bank assuming that Executive was 100% vested, Executive made the
maximum allowable contributions or deferrals under such plans, Executive's
compensation reflected Adjusted Base Salary and Adjusted Bonus and assuming the
crediting of interest on contributions being equal to the return provided during
the five (5) year period immediately preceding the Event of Termination.
(vi) A benefit equal to the difference between (i) the
benefits under any qualified or non-qualified pension plan (as defined in
Section 3 (2)(A) of ERISA) which he would have earned or accrued during the
remaining term of the Agreement assuming such benefit was vested and is
calculated using Adjusted Base Salary and Adjusted Bonus as appropriate in the
formula for Accrued Benefit under the plans and assuming such benefit was
calculated without making any reduction in the Accrued Benefit due to the
benefit being provided prior to the normal retirement age as set out in the
pension plan and (ii) the accrued benefit Executive is vested in at the time of
the Event of Termination.
(vii) A benefit under any non-qualified Supplemental Executive
Retirement Plan ("SERP") maintained by the Holding Company or the Bank
which Executive would have earned each year within the remaining term
of the Agreement, using compensation values which take into account
Adjusted Base Salary and Adjusted Bonus and further assuming that the
qualified plans to which the SERP refers provide the benefits generally
provided to Executive under their terms during the five year period
immediately prior to the Event of Termination, the limitations on
compensation and benefits under the Code remained fixed at their levels
as of the time of the Event of Termination, and the ESOP continued to
allocate unallocated shares according to its loan amortization schedule
in place on the last day of the ESOP Plan Year immediately prior to the
Event of Termination up to the point at which the ESOP would be fully
allocated;
(viii) The benefit (net of deferrals) which would have been
earned each year of the remaining term of the Agreement under any other
non-qualified deferred compensation arrangements offered by the Holding
Company or the Bank calculated using compensation values which take
into account Adjusted Base Salary and Adjusted Bonus and which assume a
percentage of deferred compensation equal to the highest percentage of
compensation actually deferred during the five (5) year period
immediately preceding the
24
Event of Termination and assuming the crediting of interest on deferred
monies equal to the return provided during the five (5) year period
immediately preceding the Event of Termination;
(ix) A benefit consisting of the award, allocation or grant of
stock, restricted stock, stock options or any other stock or
stock-related benefit which would have been made to Executive under any
and all stock based qualified or non-qualified compensation plans or
arrangements offered by Holding Company or the Bank immediately prior
to or during the term of the Agreement at either (A) the highest level
of award possible for Executive under the terms of plans which provide
awards based upon levels of individual or group or institutional
performance goals, or (B) if awards are made at the discretion of the
Holding Company or Bank, then at a level consistent with awards made in
the industry for persons of similar title, authority and responsibility
and Executive's past level of benefit under such plans. Such award,
allocation or grant as provided herein shall be deemed 100% vested
immediately.
(x) Any award of stock options (or option de-rived benefits)
to Executive which have been made under a stock option plan or the stock option
feature of a broader compensation plan which have not already vested shall be
made fully vested and further, at the election of Executive, any stock options
shall be subsequently cancelled by Executive in consideration for a payment from
the Holding Company in an amount equal to the product of (i) the number of stock
options cancelled and (ii) the difference between (x) the fair market value (at
the time of cancellation) of the stock upon which the option was issued and (y)
the "exercise price of the stock option;
(xi) Any award of restricted stock or a stock grant (or award
and grant derived benefits) to Executive which have been made under a
stock grant plan or feature of a broader compensation plan which have
not already vested shall be made fully vested and further, at the
election of Executive, any stock awarded under such a plan shall at the
election of Executive be subject to a put option entitling Executive to
sell all or some portion of such stock to the Holding Company at the
then fair market value.
(xii) For the purpose of calculating benefits to be provided
during the remaining term of the Agreement, benefits shall be provided
in the form and calculated as described above. In the event that a
benefit otherwise payable in a stock form cannot be provided in stock,
such benefit will be provided in the form of cash using the greater of
the fair market value of the stock at the time of the distribution of
the benefit or the closing price of the stock on the day prior to the
time of distribution or the last day of trading prior to the time of
distribution.
(c) At the election of the Executive, which election must be made prior
to or on the Date of Termination, such payments shall be made in a lump sum or
paid monthly during the remaining term of the Agreement following the
Executive's termination. In the event that no
25
election is made, payment to the Executive will be made on a monthly basis
during the remaining term of the Agreement. Such payments shall not be reduced
in the event the Executive obtains other employment following termination of
employment. In the event that the Executive is receiving monthly payments
pursuant to this Section 4, on an annual basis, thereafter, between the dates of
January 1 and January 31 of each year, Executive shall elect whether, the
balance of the amount payable under the Agreement at that time shall be paid in
a lump sum or on a pro rata basis. Such election shall be irrevocable for the
year for which such election is made.
5. CHANGE IN CONTROL
(a) No benefit shall be payable under this Section 5 unless there shall
have been a Change in Control of the Bank or the Holding Company as set forth
below. For purposes of this Agreement, a "Change in Control" of the Bank or
Holding Company shall mean an event of a nature that: (i) would be required to
be reported in response to Item l(a) of the Current Report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or (ii) results in a Change in
Control of the Bank or the Holding Company within the meaning of the Home
Owners' Loan Act of 1933 and the Rules and Regulations promulgated by the Office
of Thrift Supervision ("OTS") (or its predecessor agency), as in effect on the
date hereof (provided, that in applying the definition of change in control as
set forth under the rules and regulations of the OTS, the Board shall substitute
its judgment for that of the OTS); or (iii) without limitation such a Change in
Control shall be deemed to have occurred at such time as (A) any "person" (as
the 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 Bank or the Holding Company
representing 20% or more of the Bank's or the Holding Company's outstanding
securities except for any securities of the Bank purchased by the Holding
Company in connection with the conversion of the Bank to the stock form and any
securities purchased by any Benefit Plan of the Bank, or (B) individuals who
constitute the Board on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election was approved by
a vote of at least three-quarters of the directors comprising the Incumbent
Board, or whose nomination for election by the Holding Company's stockholders
was approved by the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (B), considered as though he were a member
of the Incumbent Board, or (C) a plan of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Bank or the Holding Company
or similar transaction occurs in which the Bank or Holding Company is not the
resulting entity, or (D) a proxy statement is distributed soliciting proxies
from stockholders of the Holding Company, by someone other than the current
management of the Holding Company, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Holding Company or Bank with one
or more corporations as a result of which the outstanding shares of the class of
securities then subject to such plan or transaction are exchanged for or
converted into cash or property or securities not issued by the Bank or the
Holding Company shall be distributed, or (E) a tender offer is made for 20% or
more of the voting securities of the Bank or Holding Company then outstanding.
26
(b) If any of the events described in Section 5(a) hereof constituting
a Change in Control have occurred or the Board has determined that a Change in
Control has occurred, Executive shall be entitled to the benefits provided in
paragraphs (c), (d), (e) and (f) of this Section 5 upon her subsequent
termination of employment at any time during the term of this Agreement
(regardless of whether such termination results from her dismissal or her
resignation at any time during the term of this Agreement following any
demotion, loss of title, office or significant authority or responsibility,
reduction in the annual compensation or benefits or relocation of her principal
place of employment by more than 30 miles from its location immediately prior to
the Change in Control), unless such termination is because of her death, or
Termination for Cause provided, however, that such payments shall be reduced by
any payment made under Section 4 of this Agreement.
(c) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Holding Company shall pay Executive,
or in the event of her subsequent death, her beneficiary or beneficiaries, or
her estate, as the case may be, as severance pay or liquidated damages, or both,
a sum equal to five (5) times the average of the three (3) preceding years' (i)
Base Salary, (ii) any other taxable income including but not limited to the
vesting of stock grants or restricted stock, the exercise of stock options, the
distribution of previously deferred compensation, including Fixed Incentive
Award, bonuses and any other cash or deferred compensation paid or to be paid to
the Executive during such years, and (iii) the amount of any contributions made
or to be made to any Benefit Plans whether tax qualified or non-qualified
including but not limited to defined benefit pension plans, defined contribution
plans, SERP'S, ESOP'S, Welfare Plans, stock option benefits, stock grant
benefits, on behalf of the Executive, maintained by the Bank or the Holding
Company during such years. At the election of the Executive, which election must
be made prior to or on the Date of Termination following a Change in Control,
such payment may be made in a lump sum or paid in equal bi-weekly installments
during the sixty (60) months following the Executive's termination. In the event
that no election is made, payment to the Executive will be made on a bi-weekly
basis during the remaining term of the Agreement.
(d) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Holding Company will cause to be
continued life, medical, dental and disability coverage for Executive and any of
her dependents covered under such plans prior to the Change in Control,
substantially identical to the coverage maintained by the Bank or the Holding
Company for Executive and her dependents prior to her severance. Such coverage
and payments shall cease upon the expiration of sixty (60) months. If Executive
or any dependent should die during this sixty (60) month period, coverage for
the remaining parties shall continue for the remainder of the sixty (60) month
period.
(e) In the event that the Executive is receiving bi-weekly payments
pursuant to Section 5(c) hereof, on an annual basis, thereafter, between the
dates of January 1 and January 31 of each year, Executive shall elect whether
the balance of the amount payable under the Agreement at that
27
time shall be paid in a lump sum or on a pro rata basis pursuant to such
section. Such election shall be irrevocable for the year for which such election
is made.
(f) Notwithstanding the preceding paragraphs of this Section 5, in the
event that: for any taxable year in which the Executive shall be liable, as
determined for the payment of an excise tax under Section 4999 of the Code, with
respect to any payment in the nature of the compensation made by the Company or
the Bank to (or for the benefit of) Executive, the Company shall pay to the
Executive an amount determined under the following formula:
An amount equal to: (E x P) + X
WHERE:
X = E x P
--------------------------------
1-[(FI x (1-SLI)) + SLI + E]
E = the rate at which the excise tax is assessed under Section
4999 of the Code;
P = the amount with respect to which such excise tax is
assessed, determined without regard to this Section 5;
FI= the highest marginal rate of deferral income tax
applicable to Executive under the Code for the taxable year in
question; and
SLI= the sum of the highest marginal rates of income,
unemployment, social security, medicare and any other payroll
tax applicable to Executive under applicable state and local
laws for the taxable year in question.
With respect to any payment in the nature of compensation that is made
to (or for the benefit of) Executive under the terms of this Agreement or
otherwise and on which an excise tax under Section 4999 of the Code will be
assessed, the payment determined under this Section 5 shall be made to Executive
on the earlier of (i) the date the Company is required to withhold such tax, or
(ii) the date the tax is required to be paid by Executive.
Notwithstanding the foregoing, if it shall subsequently be determined
in a final judicial determination or a final administrative settlement to which
Executive is a party that the excess parachute payment as defined in Section
4999 of the Code, reduced as described above, is more than the amount determined
as "P", above (such greater amount being hereafter referred to as the
"Determinative Excess Parachute Payment") then the Company's independent
accountants shall determine the amount (the "Adjustment Amount") the Company
must pay to the Executive, in order to put the Executive (or the Company, as the
case may be) in the same position as the Executive (or the Company, as the case
may be) would have been if the amount determined as "P" above had been equal to
the Determinative Excess Parachute Payment. In determining the Adjustment
28
Amount, the independent accountants shall take into account any and all taxes
(including any penalties and interest) paid by or for Executive or refunded to
Executive or for Executive's benefit. As soon as practicable after the
Adjustment Amount has been so determined, the Company shall pay the Adjustment
Amount to Executive.
In each calendar year that Executive receives payments or benefits
under the Employment Agreement, Executive shall report on her income tax returns
such information as is consistent with the determination made by the independent
accountants of the Company as described above. The Company shall indemnify and
hold Executive harmless from any and all losses, costs and expenses (including
without limitation, reasonable attorney's fees, interest, fees and penalties)
which Executive incurs as a result of so reporting such information. Executive
shall promptly notify the Company in writing whenever the Executive receives
notice of the institution of a judicial or administrative proceeding, formal or
informal, in which the federal tax treatment under Section 4999 of the Code of
any amount paid or payable under this Supplemental Agreement is being reviewed
or is in dispute. The Company shall assume control at its expense over all legal
and accounting matters pertaining to such federal tax treatment (except to the
extent necessary or appropriate for Executive to resolve any such proceeding
with respect to any matter unrelated to amounts paid or payable pursuant to this
Agreement) and Executive shall cooperate fully with the Company in any such
proceeding. The Executive shall not enter into any compromise or settlement or
otherwise prejudice any rights the Company may have in connection therewith
without prior consent to the Company.
6. ACTION FOR DISABILITY; DEATH OF EXECUTIVE
(a) If, as a result of Executive's incapacity due to physical or mental
illness, such incapacity being determined by a doctor selected by the Holding
Company, he shall have been absent from her duties with the Holding Company on a
full-time basis for six (6) consecutive months, and within thirty (30) days
after written notice of potential termination is given he shall not have
returned to the full-time performance of her duties, the Holding Company may
terminate Executive's employment for "Disability."
(b) The Holding Company will pay Executive, as disability pay, a
bi-weekly payment equal to one hundred percent (100%) of Executive's bi-weekly
rate of Base Salary on the effective date of such termination. These disability
payments shall commence on the effective date of Executive's termination and
will end on the earlier of (i) the date Executive returns to the full-time
employment of the Holding Company in the same capacity as he was employed prior
to her Termination for Disability and pursuant to an employment agreement
between Executive and the Holding Company; (ii) Executive's full-time employment
by another employer; (iii) Executive ag the normal age of retirement or
receiving benefits under any Defined Benefit Plan of the Bank or Holding
Company; (iv) Executive's death; or (v) the expiration of the term of this
Agreement. Notwithstanding any other provisions to the contrary, the Holding
Company may apply any proceeds from disability income insurance for Executive
which was paid for by the Bank or
29
Holding Company as partial satisfaction of its obligations under this Section.
(c) The Holding Company will cause to be continued life, medical,
dental and disability coverage substantially identical to the coverage
maintained by the Holding Company for Executive and her dependents prior to her
Termination for Disability. This coverage and payments shall cease upon the
earlier of (i) the date Executive returns to the full-time employment of the
Holding Company, in the same capacity as he was employed prior to her
Termination for Disability and pursuant to an employment agreement between
Executive and the Holding Company; (ii) Executive's full-time employment by
another employer; (iii) Executive's attaining the normal age of retirement or
receiving benefits under any Defined Benefit Plan of the Bank or Holding
Company; (iv) the Executive's death; or (v) the expiration of the term of this
Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period which Executive is
incapable of performing her duties hereunder by reason of temporary disability.
(e) Notwithstanding anything to the contrary contained herein, upon the
death of the Executive during the term hereof, the Estate of the Executive shall
be paid her Base Compensation and Fixed Incentive Award for a period of twelve
(12) months following the death of the Executive, unless the remaining term of
the Agreement is less than twelve (12) months then the Estate of the Executive
shall be paid the Base Compensation and Fixed Incentive Award through the
remaining term of the Agreement.
7. TERMINATION UPON RETIREMENT
Termination by the Holding Company of the Executive based on
"Retirement" shall mean termination in accordance with the Holding Company's or
Bank's retirement policy or in accordance with any retirement arrangement
established with Executive's consent with respect to him. Upon termination of
Executive upon Retirement, Executive shall be entitled to all benefits under any
retirement plan of the Holding Company or the Bank and other plans to which
Executive is a party, and shall be entitled to the benefits, if any, as a former
employee under the Holding Company's or the Bank's Benefit Plans and programs
and compensation plans and programs.
8. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination because of
personal dishonesty which results in loss to the Company or one of its
affiliates, intentional failure to perform stated duties, or willful violation
of any law, rule, regulation (other than traffic violations or similar offenses)
or final cease and desist order which results in substantial loss to the Holding
Company or one of its affiliates. For purposes of this Section, no act, or the
failure to act, on Executive's part
30
shall be "willful" unless done, or omitted to be done, not in good faith and
without reasonable belief that the action or omission was in the best interest
of the Holding Company or its affiliates. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to him a Notice of Termination which shall
include a copy of a resolution duly adopted by the affirmative vote of not less
than three-fourths of the members of the Board at a meeting of the Board called
and held for that purpose (after reasonable notice to Executive and an
opportunity for him, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, Executive was guilty of
conduct justifying Termination for Cause and specifying the particulars thereof
in detail. The Executive shall not have the right to receive compensation or
other benefits for any period after Termination for Cause. Any stock options and
related limited rights granted to Executive under any stock option plan, or any
unvested awards granted to Executive under any RRP of MRP of the Bank, the
Holding Company or any subsidiary or affiliate thereof, shall become null and
void effective upon Executive's receipt of Notice of Termination for Cause
pursuant to Section 9 hereof, and shall not be exercisable by or delivered to
Executive at any time subsequent to such Termination for Cause.
9. NOTICE
(a) Any purported termination by the Holding Company or by Executive
shall be communicated by Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(b) Subject to Section 9(c), "Date of Termination" shall mean (A) if
Executive's employment is terminated for Disability, thirty (30) days after a
Notice of Termination is given (provided that he shall not have returned to the
performance of her duties on a full-time basis during such thirty (30) day
period, and (B) if her employment is terminated for any other reason, the date
specified in the Notice of Termination (which, in the case of a Termination for
Cause, shall not be less than thirty (30) days from the date such Notice of
Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, except upon the occurrence of
a Change in Control and voluntary termination by the Executive in which case the
Date of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been perfected)
and provided further that the Date of Termination shall be extended by a notice
of dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such
31
dispute, the Holding Company will continue to pay Executive her full
compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, Base Salary) and the Executive shall continue as
a participant in all compensation, benefit and insurance plans in which he was
participating when the notice of dispute was given, until the dispute is finally
resolved in accordance with this Agreement. Amounts paid under this Section are
in addition to all other amounts due under this Agreement and shall not be
offset against or reduce any other amounts due under this Agreement.
(d) The Holding Company may terminate the Executive's employment at any
time, but any termination by the Holding Company, other than Termination for
Cause, shall not prejudice Executive's right to compensation or other benefits
under this Agreement or under any other benefit or compensation plans or
programs maintained by the Holding Company from time to time. Executive shall
not have the right to receive compensation or other benefits for any period
after Termination for Cause as defined in Section 8 hereinabove.
10. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall
be subject to Executive's compliance with paragraph (b) of this Section 10
during the term of this Agreement and for one (1) full year after the expiration
or termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information
and assistance to the Holding Company as may reasonably be required by the
Holding Company in connection with any litigation in which it or any of its
subsidiaries or affiliates is, or may become, a party. The Holding Company will
reimburse the Executive for reasonable costs incurred by the Executive in
connection with furnishing such information and assistance to the Holding
Company.
11. NON-DISCLOSURE OF HOLDING COMPANY BUSINESS
Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Holding Company and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the Holding Company. Executive will not,
during or after the term of her employment, disclose any knowledge of the past,
present, planned or considered business activities of the Bank or affiliates
thereof to any person, firm, corporation, or other entity for any reason or
purpose whatsoever. Notwithstanding the foregoing, Executive may disclose any
knowledge of banking, financial and/or economic principles, concepts or ideas
which are not solely and exclusively derived from the business plans and
activities of the Holding Company. In the event of a breach or threatened breach
by the Executive of the provisions of this Section, the Holding Company will be
entitled to an injunction restraining Executive from disclosing, in whole or in
part, the knowledge of the past, present, planned or considered business
activities of the Holding Company or affiliates thereof, or from rendering any
32
services to any person, firm, corporation, other entity to whom such knowledge,
in whole or in part, has been disclosed or is threatened to be disclosed.
Nothing herein will be construed as prohibiting the Holding Company from
pursuing any other remedies available to the Holding Company for such breach or
threatened breach, including the recovery of damages from Executive.
12. SOURCE OF PAYMENTS
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Holding Company subject to Section 13
hereof. The Holding Company may use insurance proceeds especially obtained
therefore as partial payment in the event of disability.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Holding Company
or any predecessor of the Holding Company and Executive, except that this
Agreement shall not affect or operate to reduce any benefit or compensation
inuring to the Executive of a kind elsewhere provided. No provision of this
Agreement shall be interpreted to mean that Executive is subject to receiving
fewer benefits than those available to him without reference to this Agreement.
14. EFFECT OF ACTION UNDER BANK AGREEMENT
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 Bank Agreement (or any successor thereto),
except to the extent that Base Salary is paid under the Bank Agreement with
respect to duties performed thereto, such compensation payments and benefits
paid by the Bank will be subtracted from any amount due simultaneously to
Executive under similar provisions of this Agreement. Payments pursuant to this
Agreement and the Bank Agreement shall be allocated in proportion to the level
of activity and the time expended on such activities by the Executive as
determined by the Holding Company and the Bank on an annual basis.
15. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
33
16. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
17. SUCCESSOR AND ASSIGNS.
This Agreement will inure to the benefit of and be binding upon
Executive, her legal representatives and testate or intestate distributees, and
the Holding Company, its successors and assigns, including any successor by
purchase, merger, consolidation or otherwise or a statutory receiver or any
other person or firm or corporation to which all or substantially all of the
assets and business of the Holding Company may be sold or otherwise transferred.
Any such successor of the Holding Company shall be deemed to have assumed this
Agreement and to have become obligated hereunder to the same extent as the
Holding Company, and Executive's obligations hereunder shall continue in favor
of such successor.
18. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
19. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
20. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Illinois,
unless otherwise specified herein.
34
21. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by the Executive within
fifty (50) miles from the location of the Holding Company, in accordance with
the rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitrator's award in any court having jurisdiction; provided,
however, that Executive shall be entitled to seek specific performance of her
right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
In the event any dispute or controversy arising under or in connection
with Executive's termination is resolved in favor of the Executive, whether by
judgment, arbitration or settlement, Executive shall be entitled to the payment
of all back-pay, including salary, bonuses, Fixed Incentive Award and any other
cash compensation, fringe benefits including those accruing under any Benefit
Plan, and any compensation and benefits due Executive under this Agreement.
22. INDEMNIFICATION AND ATTORNEYS' FEES
(a) The Holding Company shall indemnify, hold harmless and defend
Executive against reasonable costs, including legal fees, incurred by him in
connection with her consultation with legal counsel or arising out of any
action, suit or proceeding in which he may be involved, as a result of her
efforts, in good faith, to defend or enforce the terms of this Agreement. such
reimbursement shall be made within ten (10) days of Executive providing written
documentation of such expense.
(b) In the event any dispute or controversy arising under or in
connection with Executive's termination is resolved in favor of the Executive,
whether by judgment, arbitration or settlement, Executive shall be entitled to
the payment of all back-pay, including salary, bonuses, Fixed Incentive Award
and any other cash compensation, fringe benefits including those accruing under
any Benefit Plan, and any compensation and benefits due Executive under this
Agreement.
(c) The Holding Company shall indemnify, hold harmless and defend
Executive for all acts or omissions taken or not taken by him in good faith
while performing services for the Holding Company to the same extent and upon
the same terms and conditions as other similarly situated officers and directors
of the Holding Company. If and to the extent that the Holding Company maintains,
at any time during the remaining term of this Agreement and for an additional
period of seven (7) years thereafter, an insurance policy covering the other
officers and directors of the Holding Company against law suits, the Holding
Company shall use its best efforts to cause
35
Executive to be covered under such policy upon the same terms and conditions as
other similarly situated officers and directors.
23. MISCELLANEOUS
Unless otherwise subject to law, all lump sum calculations shall be
done using the methods, rates and assumptions set out in Code Section 1274(d)
and the regulations and statements issued thereunder by the IRS.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and
effective as of November 1, 1999.
ARGO BANCORP, INC.
By: /s/
---------------------------------------
On Behalf of the Entire Board of Directors
/s/ XXXXXXX X. XXXXX
------------------------------------------
Executive - XXXXXXX X. XXXXX
36
ARGO FEDERAL SAVINGS BANK, FSB
EMPLOYMENT AGREEMENT
AS AMENDED AND RESTATED
AS OF NOVEMBER 1, 1999
This AGREEMENT is restated, amended and made effective as of November
1, 1999, by and among ARGO FEDERAL SAVINGS BANK, FSB (the "Bank"), a federally
chartered savings institution, with its principal administrative office at 0000
Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, ARGO BANCORP, INC., a corporation
organized under the laws of the State of Delaware, the holding company for the
Bank (the "Holding Company"), and XXXXXXX X. XXXXX ("Executive").
WHEREAS, the Bank wishes to assure itself of the continued services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Bank on a
permanent basis for said period.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of Executive's employment hereunder, Executive agrees to
serve as Senior Vice President and General Counsel of the Bank. Executive shall
render administrative and management services to the Bank such as are
customarily performed by persons situated in a similar executive capacity.
During said period, Executive also agrees to serve, if elected, as an officer
and director of the Holding Company or any subsidiary of the Bank.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the date first above written and shall continue
for a period of thirty-six (36) calendar months thereafter. Commencing on the
first anniversary date of this Agreement, and continuing on each anniversary
thereafter, the disinterested members of the board of directors of the Bank
("Board") may extend the Agreement an additional year such that the remaining
term of the Agreement shall be three years, unless the Executive elects not to
extend the term of this Agreement by giving written notice in accordance with
Section 9 of this Agreement. The Board will review the Agreement and Executive's
performance annually for purposes of determining whether to extend the Agreement
and the rationale and results thereof shall be included in the minutes of the
Board's meeting. The Board shall give notice to the Executive as soon as
possible after such review as to whether the Agreement is to be extended.
37
(b) During the period of Executive's employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence, Executive shall devote such amounts of her
business time, attention, skill, and efforts reasonably required for the
faithful performance of her duties hereunder including activities and services
related to the organization, operation and management of the Bank and
participation in community and civic organizations; provided, however, that,
with the approval of the Board, as evidenced by a resolution of such Board, from
time to time, Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, companies or
organizations, which, in such Board's judgment, will not present any conflict of
interest with the Bank, or materially affect the performance of Executive's
duties pursuant to this Agreement.
(c) Notwithstanding anything herein to the contrary, Executive's
employment with the Bank may be terminated by the Bank or the Executive during
the term of this Agreement, subject to the terms and conditions of this
Agreement.
3. COMPENSATION AND REIMBURSEMENT
(a) The Bank shall pay Executive as compensation a salary of not less
than $112,326.00 per year ("Base Salary"). Base Salary shall include any amounts
of compensation deferred by Executive under any qualified or non-qualified plan
maintained by the Bank. Such Base Salary shall be payable bi-weekly. During the
period of this Agreement, Executive's Base Salary shall be reviewed at least
annually; the first such review will be made no later than one year from the
date of this Agreement. Such review shall be conducted by the Board or by a
Committee of the Board, delegated such responsibility by the Board. The
Committee or the Board may increase Executive's Base Salary. Any increase in
Base Salary shall become the "Base Salary" for purposes of this Agreement. In
addition to the Base Salary provided in this Section 3(a), the Bank shall also
provide Executive, at no cost to Executive, with all such other benefits as are
provided uniformly to permanent full-time employees of the Bank.
(b) The Executive shall be entitled to participate in any employee
benefit plans ("Benefit Plans"), arrangements and perquisites substantially
equivalent to those in which Executive was participating or otherwise deriving
benefit from immediately prior to the beginning of the term of this Agreement,
and the Bank will not, without Executive's prior written consent, make any
changes in such plans, arrangements or perquisites which would materially
adversely affect Executive's rights or benefits thereunder; provided, however,
that the Bank may make such changes to such plans, arrangements or perquisites
generally provided to all Bank employees on a non-discriminatory basis. The Bank
may acquire "Key Man" insurance on Executive upon such terms and conditions as
may be determined from time to time by the Bank. Upon an Event of Termination as
defined below, the Bank shall transfer an "Key Man" life insurance, if any is
owned by the Bank, to Executive. Without limiting the generality of the
foregoing provisions of this Subsection (b), Executive shall be entitled to
participate in or receive benefits under any Benefit
38
Plans including but not limited to, stock grants, restricted stock, stock
options (and other option derived benefits), Employee Stock Ownership Plans
("ESOP"), or any other stock-based benefit plan, retirement plans, supplemental
retirement plans, pension plans, profit-sharing plans, health-and-accident
plans, medical coverage or any other employee benefit plan or arrangement made
available by the Bank in the future to its senior executives and key management
employees with awards, grants, levels and benefits for Executive equal at least
to levels customary in the industry for persons of like title, authority and
responsibility as Executive and with levels of Executive's past participation in
the Benefit Plans of the Bank, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements.
Executive shall be entitled to incentive compensation and bonuses as provided in
any plan of the Bank in which Executive is eligible to participate. Nothing paid
to the Executive under any such plan or arrangement will be deemed to be in lieu
of other compensation to which the Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3 and other compensation provided for by paragraph (b) of this
Section 3, the Bank shall pay or reimburse Executive for all travel,
entertainment and other reasonable expenses incurred in the performance of
Executive's obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine.
(d) In addition to Executive's Base Salary as provided in paragraph (a)
of this Section 3 and any incentive compensation or discretionary bonus
otherwise paid or payable to other senior executives or to Executive
exclusively, the Bank shall annually award a Fixed Incentive Award to Executive
in an amount equal to one percent (1%) of the Bank's pre-tax profit on an
unconsolidated basis. The Fixed Incentive Award shall be calculated annually for
the period of August 1 through July 31 of each year. The Fixed Incentive Award
shall be paid to Executive or her designated beneficiary upon the earlier of (i)
the termination by the Bank of her employment for other than Termination for
Cause; (ii) the expiration of this Agreement; (iii) her death or Disability; or
(iv) annually upon the anniversary of this Agreement. In the event Executive is
subject to Termination for Cause or voluntarily terminates her employment, other
than upon an Event of Termination as defined below, Executive shall forfeit all
rights to the Fixed Incentive Award provided under this paragraph.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank or the Holding Company of Executive's full-time
employment hereunder for any reason other than a termination governed by Section
5(a), for Disability, as defined in Section 7 hereof, or Termination for Cause,
as defined in Section 8 hereof; (ii) Executive's resignation from the Bank's
employ upon any (A) failure to elect or reelect or to
39
appoint or reappoint Executive as Senior Vice President and General Counsel,
unless consented to by the Executive, (B) a material change in Executive's
function, duties, or responsibilities, which change would cause Executive's
position to become one of lesser responsibility, importance, or scope from the
position and attributes thereof described in Section 1, above, unless consented
to by Executive, (C) a relocation of Executive's principal place of employment
by more than thirty (30) miles from its location at the effective date of this
Agreement, unless consented to by the Executive, (D) a material reduction in
the benefits and perquisites to the Executive from those being provided as of
the effective date of this Agreement, unless consented to by the Executive, or
(E) a liquidation or dissolution of the Bank or Holding Company, or (F) breach
of this Agreement by the Bank. Upon the occurrence of any event described in
clauses (A), (B), (C), (D), (E) or (F), above, Executive shall have the right
to elect to terminate her employment under this Agreement by resignation upon
not less than thirty (30) days prior written notice given within a reasonable
period of time not to exceed, except in the case of a continuing breach, four
(4) calendar months after the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the Bank shall be
obligated to pay Executive, or, in the event of her subsequent death, her
beneficiary or beneficiaries, or her estate, as the case may be, the following
payments and benefits:
(i) Base Salary for the remaining term of the Agreement which
shall be the highest annual Base Salary paid prior to Executive's termination of
employment with the Holding Company or Bank, and which shall be increased
annually during the remaining term of the Agreement at a rate of 4% per year
("Adjusted Base Salary").
(ii) Bonuses, the Fixed Incentive Award and other incentive
payments for the remaining term of the Agreement which shall be calculated as
the highest percentage of Base Salary, such bonuses and incentive payments
represented prior to Executive's termination of employment with the Holding
Company or Bank multiplied by the Adjusted Base Salary each year during the
remaining term of the Agreement ("Adjusted Bonus").
(iii) Continuation for the remaining term of the Agreement of
Executive's and Executive's dependents' participation in any life, medical,
health, disability, dental insurance or any other "welfare plan" (as such is
defined in Section 3 (1) of the Employee Retirement Security Act of 1974 as
amended from time to time ("ERISA") in which Executive participates in on the
day prior to the effective date of this Agreement (each being a "Welfare Plan"),
subject to the same premium contributions on the part of Executive as were
required immediately prior to the Event of Termination.
(iv) A benefit equal to the product of (i) the highest annual
allocation of ESOP shares Executive had previously received under the ESOP and
(ii) the lesser of (x) the remaining number of years remaining in the term of
the Agreement or (y) the number of annual allocations scheduled to be made under
the ESOP immediately prior to the Event of Termination.
(v) A benefit equal to the (i) additional employer contributions
and (ii) net return on all contributions, to which Executive would have been
entitled during the remaining term of the Agreement under any other qualified or
non-qualified defined contribution plan offered by the Holding Company or the
Bank assuming that Executive was 100% vested, Executive made the maximum
allowable contributions or deferrals under such plans, Executive's compensation
reflected Adjusted Base Salary and Adjusted Bonus and assuming the crediting of
interest on contributions being equal to the return provided during the five (5)
year period immediately preceding the Event of Termination.
40
(vi) A benefit equal to the difference between (i) the benefits
under any qualified or non-qualified pension plan (as defined in Section 3
(2)(A) of ERISA) which she would have earned or accrued during the remaining
term of the Agreement assuming such benefit was vested and is calculated using
Adjusted Base Salary and Adjusted Bonus as appropriate in the formula for
Accrued Benefit under the plans and assuming such benefit was calculated without
making any reduction in the Accrued Benefit due to the benefit being provided
prior to the normal retirement age as set out in the pension plan and (ii) the
accrued benefit Executive is vested in at the time of the Event of Termination.
(vii) A benefit under any non-qualified Supplemental Executive
Retirement Plan ("SERP") maintained by the Holding Company or the Bank which
Executive would have earned each year within the remaining term of the
Agreement, using compensation values which take into account Adjusted Base
Salary and Adjusted Bonus and further assuming that the qualified plans to which
the SERP refers provide the benefits generally provided to Executive under their
terms during the five year period immediately prior to the Event of Termination,
the limitations on compensation and benefits under the Code remained fixed at
their levels as of the time of the Event of Termination, and the ESOP continued
to allocate unallocated shares according to its loan amortization schedule in
place on the last day of the ESOP Plan Year immediately prior to the Event of
Termination up to the point at which the ESOP would be fully allocated.
(viii) The benefit (net of deferrals) which would have been earned
each year of the remaining term of the Agreement under any other non-qualified
deferred compensation arrangements offered by the Holding Company or the Bank
calculated using compensation values which take into account Adjusted Base
Salary and Adjusted Bonus and which assume a percentage of deferred compensation
equal to the highest percentage of compensation actually deferred during the
five (5) year period immediately preceding the Event of Termination and assuming
the crediting of interest on deferred monies equal to the return provided during
the five (5) year period immediately preceding the Event of Termination.
(ix) A benefit consisting of the award, allocation or grant of
stock, restricted stock, stock options or any other stock or stock-related
benefit which would have been made to Executive under any and all stock based
qualified or non-qualified compensation plans or arrangements offered by Holding
Company or the Bank immediately prior to or during the term of the Agreement at
either (A) the highest level of award possible for Executive under the terms of
plans which provide awards based upon levels of individual or group or
institutional performance goals, or (B) if awards are made at the discretion of
the Holding Company or Bank, then at a level consistent with awards made in the
industry for persons of similar title, authority and responsibility and
Executive's past level of benefit under such plans. Such award, allocation or
grant as provided herein shall be deemed 100% vested immediately.
(x) Any award of stock options (or option derived benefits) to
Executive which have been made under a stock option plan or the stock option
feature of a broader compensation plan which have not already vested shall be
made fully vested and further, at the election of Executive, any stock options
shall be subsequently cancelled by Executive in consideration for a payment from
the Holding Company in an amount equal to the product of (i) the number of stock
options cancelled and (ii) the difference between (x) the fair market value (at
the time of cancellation) of the stock upon which the option was issued and (y)
the exercise price of the stock option.
(xi) Any award of restricted stock or a stock grant (or award and
grant derived benefits) to Executive which have been made under a stock grant
plan or feature of a broader compensation plan which have not already vested
shall be made fully vested and further, at the election of Executive, any stock
awarded under such a plan shall at the election of Executive be subject to a put
option entitling Executive to sell all or some portion of such stock to the
Holding Company at the then fair market value.
41
(xii) For the purpose of calculating benefits to be provided
during the remaining term of the Agreement, benefits shall be provided in the
form and calculated as described above. In the event that a benefit otherwise
payable in a stock form cannot be provided in stock, such benefit will be
provided in the form of cash using the greater of the fair market value of the
stock at the time of the distribution of the benefit or the closing price of the
stock on the day prior to the time of distribution or the last day of trading
prior to the time of distribution.
(c) At the election of the Executive, which election is to be made
prior to an Event of Termination, such payments shall be made in a lump sum. In
the event that no election is made, payment to Executive will be made on a
bi-weekly basis in approximately equal installments during the remaining term of
the Agreement. Such payments shall not be reduced in the event the Executive
obtains other employment following termination of employment.
(d) No payments pursuant to this subsection shall, in the aggregate,
exceed three times Executive's average annual compensation for the five most
recent taxable years that Executive has been employed by the Bank or such lesser
number of years in the event that Executive shall have been employed by the Bank
for less than five years. For purposes of this subsection 4(b), "average annual
compensation" shall be the average annual compensation as defined in Section
5(c) of this Agreement. In the event the Bank is not in compliance with its
minimum capital requirements or if such payments pursuant to this subsection (b)
would cause the Bank's capital to be reduced below its minimum regulatory
capital requirements, such payments shall be deferred until such time as the
Bank or successor thereto is in capital compliance.
5. CHANGE IN CONTROL
(a) For purposes of this Agreement, a "Change in Control" of the Bank
or Holding Company shall mean an event of a nature that: (i) would be required
to be reported in response to Item 1 of the current report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); or (ii) results in a
Change in Control of the Bank or the Holding Company within the meaning of the
Home Owners' Loan Act of 1933, as amended, the Federal Deposit Insurance Act and
the Rules and Regulations promulgated by the Office of Thrift Supervision
("OTS") (or its predecessor agency), as in effect on the date hereof (provided,
that in applying the definition of change in control as set forth under the
rules and regulations of the OTS, the Board shall substitute its judgment for
that of the OTS); or (iii) without limitation such a Change in Control shall be
deemed to have occurred at such time as (A) any "person" (as the 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 voting securities of the Bank or the Holding Company representing
20 % or more of the Bank's or the Holding Company's outstanding voting
securities or right to acquire such securities except for any voting securities
of the Bank purchased by the Holding Company and any voting securities purchased
by any Benefit Plan of the Bank or the Holding Company, or (B) individuals who
constitute the Board on the date hereof (the "Incumbent Board") cease for any
42
reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election was approved by
a vote of at least three-quarters of the directors comprising the Incumbent
Board, or whose nomination for election by the Holding Company's stockholders
was approved by the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (B), considered as though he were a member
of the Incumbent Board, or (C) a plan of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Bank or the Holding Company
or similar transaction occurs in which the Bank or Holding Company is not the
resulting entity; provided, however, that such an event listed above will be
deemed to have occurred or to have been effectuated upon the receipt of all
required regulatory approvals not including the lapse of any statutory waiting
periods.
(b) If a Change in Control has occurred pursuant to Section 5(a) or the
Board has determined that a Change in Control has occurred, Executive shall be
entitled to the benefits provided in paragraphs (c), and (d) of this Section 5
upon her subsequent termination of employment at any time during the term of
this Agreement due to: (1) Executive's dismissal or (2) Executive's voluntary
resignation following any demotion, loss of title, office or significant
authority or responsibility, reduction in annual compensation or material
reduction in benefits or relocation of her principal place of employment by more
than thirty (30) miles from its location immediately prior to the Change in
Control, unless such termination is because of her death or Termination for
Cause, provided, however, that such payments shall be reduced by any payment
made under Section 4 of this Agreement.
(c) Upon Executive's entitlement to benefits pursuant to Section 5(b),
the Bank shall pay Executive, or in the event of her subsequent death, her
beneficiary or beneficiaries, or her estate, as the case may be, a sum equal to
the greater of: (1) the payments due for the remaining term of the Agreement; or
2) three (3) times Executive's average annual compensation for the five (5) most
recent taxable years that Executive has been employed by the Bank or such lesser
number of years in the event that Executive shall have been employed by the Bank
for less than five (5) years; provided however, that no payments pursuant to
this subsection shall exceed three (3) times the Executive's average annual
compensation for the five (5) most recent taxable years that the Executive has
been employed by the Bank or such lesser number of years in the event the
Executive shall have been employed by the Bank for less than five (5) years. For
purposes of this Agreement, such average annual compensation shall include Base
Salary, commissions, bonuses (including the Fixed Incentive Award),
contributions on Executive's behalf to any pension and/or profit sharing plan,
severance payments, retirement payments, directors or committee fees, fringe
benefits, and payment of expense items without accountability or business
purpose or that do not meet the IRS requirements for deductibility by the Bank.
In the event the Bank is not in compliance with its minimum capital requirements
or if such payments would cause the Bank's capital to be reduced below its
minimum regulatory capital requirements, such payments shall be deferred until
such time as the Bank or successor thereto is in capital compliance. At the
election of the Executive, which election is to be made prior to a Change in
Control, such payment may be made in a lump sum. In the event that no election
is made, payment to the Executive will be made on a bi-weekly basis in
approximately equal installments over a period of thirty-six (36) months
following the Executive's
43
termination. Such payments shall not be reduced in the event Executive obtains
other employment following termination of employment.
(d) Upon the Executive's entitlement to benefits pursuant to Section
5(b), the Bank will cause to be continued life, medical, dental and disability
coverage substantially identical to the coverage maintained by the Bank for
Executive and her dependents prior to her severance at no premium cost to the
Executive, except to the extent that such coverage may, be changed in its
application for all Bank employees on a non-discriminatory basis. Such coverage
and payments shall cease upon the expiration of thirty-six (36) months following
the Date of Termination.
(e) In the event that the Executive is receiving bi-weekly payments
pursuant to Section 5(c) hereof, on an annual basis, thereafter, between the
dates of January 1 and January 31 of each year, Executive shall elect whether
the balance of the amount payable under the Agreement at that time shall be paid
in a lump sum or on a pro rata basis pursuant to such section. Such election
shall be irrevocable for the year for which such election is made.
6. CHANGE OF CONTROL RELATED PROVISIONS
Notwithstanding the paragraphs of Section 5, in no event shall the
aggregate payments or benefits to be made or afforded to Executive under said
paragraphs (the "Termination Benefits") constitute an "excess parachute payment"
under Section 28OG of the Code or any successor thereto, and in order to avoid
such a result, Termination Benefits will be reduced, if necessary, to an amount
(the "Non-Triggering Amount"), the value of which is one dollar ($1.00) less
than an amount equal to three (3) times Executive's "base amount", as determined
in accordance with said Section 280G. The allocation of the reduction required
hereby among the Termination Benefits provided by Section 5 shall be determined
by Executive.
7. TERMINATION FOR DISABILITY; DEATH BENEFIT
(a) If, as a result of Executive's incapacity due to physical or mental
illness, such incapacity being determined by a doctor selected by the Bank, she
shall have been absent from her duties with the Bank on a full-time basis for
six (6) consecutive months, and within thirty (30) days after written notice of
potential termination is given she shall not have returned to the full-time
performance of her duties, the Bank may terminate Executive's employment for
"Disability.
(b) The Bank will pay Executive, as disability pay, a bi-weekly payment
equal to one hundred percent (100%) of Executive's bi-weekly rate of Base Salary
on the effective date of such termination. These disability payments shall
commence on the effective date of Executive's termination and will end on the
earlier of (i) the date Executive returns to the full-time employment of the
Bank in the same capacity as she was employed prior to her termination for
Disability and pursuant to an employment agreement between Executive and the
Bank; (ii) Executive's full-time
44
employment by another employer; (iii) Executive attaining the normal age of
retirement or receiving benefits under any Defined Benefit Plan of the Bank;
(iv) Executive's death; or (v) the expiration of the term of this Agreement.
Notwithstanding any other provisions to the contrary, the Bank may apply any
proceeds from disability income insurance for Executive which was paid for by
the Bank or Holding Company as partial satisfaction of the Bank's obligations
under this Section.
(c) The Bank will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive and her dependents prior to her termination for Disability.
This coverage and payments shall cease upon the earlier of (i) the date
Executive returns to the full-time employment of the Bank, in the same capacity
as she, was employed prior to her termination for Disability and pursuant to an
employment agreement between Executive and the Bank; (ii) Executive's full-time
employment by another employer; (iii) Executive's attaining the normal age of
retirement or receiving benefits under any Defined Benefit Plan of the Bank;
(iv) the Executive's death; or (v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period which Executive is
incapable of performing her duties hereunder by reason of temporary disability.
(e) Notwithstanding anything to the contrary contained herein, upon the
death of the Executive during the term hereof, the Estate of the Executive shall
be paid her Base Compensation and Fixed Incentive Award for a period of twelve
(12) months following the death of the Executive, unless the remaining term of
the Agreement is less than twelve (12) months then the Estate of the Executive
shall be paid the Base Compensation and Fixed Incentive Award through the
remaining term of the Agreement.
8. TERMINATION FOR CAUSE
(a) The term "Termination for Cause" shall mean termination because of
Executive's personal dishonesty, incompetence, willful misconduct, any 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. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to her a Notice of Termination which shall
include a copy of a resolution duly adopted by the affirmative vote of not less
than a majority of the members of the Board at a meeting of the Board called and
held for that purpose (after reasonable notice to Executive and an opportunity
for her, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail. Except
as provided in Section 8(b) hereof, Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause except
45
for compensation and benefits already vested. During the period beginning on the
date of the Notice of Termination for Cause pursuant to Section 9 hereof through
the Date of Termination, stock options and related limited rights granted to
Executive under any stock option plan shall not be exercisable nor shall any
unvested awards granted to Executive under any stock benefit plan of the Bank,
the Holding Company or any subsidiary or affiliate thereof vest. At the Date of
Termination, such stock options and related limited rights and such unvested
awards shall become null and void and shall not be exercisable by or delivered
to Executive at any time subsequent to such Date of Termination for Cause.
(b) If, within thirty (30) days after Notice of Termination for Cause
is received by Executive, the Executive notifies the Bank that a dispute exists
concerning the termination ("Notice of Dispute"), the Date of Termination shall
be the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by a Notice of
Dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence. In the
event the Executive pursues resolution of such dispute through arbitration in
accordance with the rules of the American Arbitration Association then in
effect, the Bank will continue to pay Executive his Base Salary in effect when
the Notice of Dispute notice giving rise to the dispute was given until the
earlier of- 1) the resolution of the dispute pursuant to arbitration in
accordance with this Agreement or 2) six months from the Date of Termination as
specified in the Notice of Termination for Cause.
9. NOTICE
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be less
than thirty days from the date such Notice of Termination is given.).
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of Termination shall
be the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected) and
provided further that the Date of Termination
46
shall be extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any such dispute, the
Bank will continue to pay Executive her full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to, Base
Salary) and the Executive shall continue as a participant in all compensation,
benefit and insurance plans in which she was participating when the notice of
dispute was given, until the dispute is finally resolved in accordance with this
Agreement. Amounts paid under this Section are in addition to all other amounts
due under this Agreement and shall not be offset against or reduce any other
amounts due under this Agreement.
(d) The Bank may terminate the 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 or under any other benefit or compensation plans or programs
maintained by the Bank from time to time. Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause as defined in Section 8 hereinabove.
10. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall
be subject to Executive's compliance with paragraph (b) of this Section 10
during the term of this Agreement and for one (1) full year after the expiration
or termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information
and assistance to the Bank as may reasonably be required by the Bank in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party. The Bank will reimburse the Executive for
reasonable costs incurred by the Executive in connection with furnishing such
information and assistance to the Bank.
11. CONFIDENTIALITY
Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. Executive win not, during or after the term
of her employment, disclose any knowledge of the past, present, planned or
considered business activities of the Bank or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever, unless
expressly authorized by the Board of Directors or required by law.
Notwithstanding the foregoing, Executive may disclose any knowledge of legal,
banking, financial and/or economic principles, concepts or ideas which are not
solely and exclusively derived from the business plans and activities of the
Bank. In the event of a breach or threatened breach by Executive of the
provisions of this Section, the Bank will be entitled to an
47
injunction restraining Executive from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of the
Bank or affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom such knowledge, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein will be construed as
prohibiting the Bank from pursuing any other remedies available to the Bank for
such breach or threatened breach, including the recovery of damages from
Executive.
12. SOURCE OF PAYMENTS
(a) All payments provided in this Agreement shall be timely paid in
cash or check from the general funds of the Bank. The Holding 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 Holding 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 dated and effective
November 1, 1999, between Executive and the Holding Company, except to the
extent that Base Salary is paid by the Holding Company under the Holding Company
Agreement with respect to duties performed pursuant thereto, such compensation
payments and benefits paid by the Holding Company will be subtracted from any
amounts due simultaneously to Executive under similar provisions of this
Agreement.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to Executive of
a kind elsewhere provided. No provision of this Agreement shall be interpreted
to mean that Executive is subject to receiving fewer benefits than those
available to her without reference to this Agreement.
14. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
48
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Bank and their respective successors and assigns.
15. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
16. REQUIRED PROVISIONS
(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 8 hereinabove.
(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 g(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
ss.1818(e)(3) or (g)(1); the Bank's obligations under this Agreement shall be
suspended as of the date of service, unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, the Bank may in its discretion (i)
pay Executive all or part of the compensation withheld while the respective
obligations under this Agreement 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.
ss.1818(e)(4) or (g)(1), all obligations of the institution under this Agreement
shall terminate as of the effective date of the order, but vested rights of the
parties hereto shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) of the
Federal Deposit
49
Insurance Act, 12 U.S.C. ss.1813(x)(1) all obligations of the Bank under this
Agreement shall terminate as of the date of default, but this paragraph shall
not affect any vested rights of the contracting parties.
(e) All obligations of the Bank under this Agreement shall be
terminated, except to the extent determined that continuation of the Agreement
is necessary for the continued operation of the Bank, (i) by the Director of the
OTS (or his designee) or the FDIC, at the time the FDIC enters into an agreement
to provide assistance to or on behalf of the Bank under the authority contained
in Section 13(c) of the Federal Deposit Insurance Act, 12 U.S.C. ss.1823(c); or
(ii) by the Director of the OTS (or his designee) at the time the Director (or
his designee) approves a supervisory merger to resolve problems related to the
operations of the 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.ss.1828(k) and 12 C.F.R.ss.545.121 and any rules and regulations
promulgated thereunder.
17. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
19. GOVERNING LAW
The validity, interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of Illinois, but only to the extent
not superseded by federal law.
20. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be
50
settled exclusively by arbitration, conducted before a panel of three
arbitrators sitting in a location selected by Executive within fifty (50) miles
from the location of the Bank, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of her right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of Executive, whether by judgment,
arbitration or settlement, Executive shall be entitled to the payment of all
back-pay, including salary, bonuses (including the Fixed Incentive Award) and
all other cash compensation, fringe benefits including those accruing under any
Benefit and any compensation and benefits due Executive under this Agreement.
21. PAYMENT OF COSTS AND LEGAL FEES
All reasonable costs and legal fees paid or incurred by Executive pursuant
to any dispute or question of interpretation relating to this Agreement shall be
paid or reimbursed by the Bank if Executive is successful on the merits pursuant
to a legal judgment, arbitration or settlement.
22. INDEMNIFICATION
(a) The Bank shall provide Executive (including her heirs, executors
and administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense and shall indemnify Executive (and the
Executive's heirs, executors and administrators) to the fullest extent permitted
under federal law against all expenses and liabilities reasonably incurred by
her in connection with or arising out of any action, suit or proceeding in which
she may be involved by reason of her having been a director or officer of the
Bank (whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys' fees and
the cost of reasonable settlements.
(b) Any payments made to Executive pursuant to this Section are
subject to and conditioned upon compliance with 12 C. F. R.ss.545.121 and any
rules or regulations promulgated thereunder.
23. SUCCESSOR TO THE BANK
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Holding Company,
expressly and unconditionally to assume and agree to perform the Bank's
obligations under this Agreement, in the same manner and to the same extent that
the Bank would be required to perform if no such succession or assignment had
taken place.
51
ARGO BANCORP, INC.
By: /s/ XXXX X. XXXXXXX
----------------------------------------------
Xxxx X. Xxxxxxx
President and Chief Executive Officer
ARGO FEDERAL SAVINGS BANK
By: /s/ XXXX X. XXXXXXX
----------------------------------------------
Xxxx X. Xxxxxxx
President and Chief Executive Officer
EXECUTIVE:
/s/ XXXXXXX X. XXXXX
-------------------------------------------
XXXXXXX X. XXXXX
52
ARGO FEDERAL SAVINGS BANK, FSB
EMPLOYMENT AGREEMENT
AS AMENDED AND RESTATED
AS OF NOVEMBER 1, 1999
This AGREEMENT is restated, amended and made effective as of November
1, 1999, by and among ARGO FEDERAL SAVINGS BANK, FSB (the "Bank"), a federally
chartered savings institution, with its principal administrative office at 0000
Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, ARGO BANCORP, INC., a corporation
organized under the laws of the State of Delaware, the holding company for the
Bank (the "Holding Company"), and XXXXXXX X. XXXXX ("Executive").
WHEREAS, the Bank wishes to assure itself of the continued services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Bank on a
permanent basis for said period.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of Executive's employment hereunder, Executive agrees to
serve as Senior Vice President and General Counsel of the Bank. Executive shall
render administrative and management services to the Bank such as are
customarily performed by persons situated in a similar executive capacity.
During said period, Executive also agrees to serve, if elected, as an officer
and director of the Holding Company or any subsidiary of the Bank.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the date first above written and shall continue
for a period of thirty-six (36) calendar months thereafter. Commencing on the
first anniversary date of this Agreement, and continuing on each anniversary
thereafter, the disinterested members of the board of directors of the Bank
("Board") may extend the Agreement an additional year such that the remaining
term of the Agreement shall be three years, unless the Executive elects not to
extend the term of this Agreement by giving written notice in accordance with
Section 9 of this Agreement. The Board will review the Agreement and Executive's
performance annually for purposes of determining whether to extend the Agreement
and the rationale and results thereof shall be included in the minutes of the
Board's meeting. The Board shall give notice to the Executive as soon as
possible after such review as to whether the Agreement is to be extended.
53
(b) During the period of Executive's employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence, Executive shall devote such amounts of her
business time, attention, skill, and efforts reasonably required for the
faithful performance of her duties hereunder including activities and services
related to the organization, operation and management of the Bank and
participation in community and civic organizations; provided, however, that,
with the approval of the Board, as evidenced by a resolution of such Board, from
time to time, Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, companies or
organizations, which, in such Board's judgment, will not present any conflict of
interest with the Bank, or materially affect the performance of Executive's
duties pursuant to this Agreement.
(c) Notwithstanding anything herein to the contrary, Executive's
employment with the Bank may be terminated by the Bank or the Executive during
the term of this Agreement, subject to the terms and conditions of this
Agreement.
3. COMPENSATION AND REIMBURSEMENT
(a) The Bank shall pay Executive as compensation a salary of not less
than $112,326.00 per year ("Base Salary"). Base Salary shall include any amounts
of compensation deferred by Executive under any qualified or non-qualified plan
maintained by the Bank. Such Base Salary shall be payable bi-weekly. During the
period of this Agreement, Executive's Base Salary shall be reviewed at least
annually; the first such review will be made no later than one year from the
date of this Agreement. Such review shall be conducted by the Board or by a
Committee of the Board, delegated such responsibility by the Board. The
Committee or the Board may increase Executive's Base Salary. Any increase in
Base Salary shall become the "Base Salary" for purposes of this Agreement. In
addition to the Base Salary provided in this Section 3(a), the Bank shall also
provide Executive, at no cost to Executive, with all such other benefits as are
provided uniformly to permanent full-time employees of the Bank.
(b) The Executive shall be entitled to participate in any employee
benefit plans ("Benefit Plans"), arrangements and perquisites substantially
equivalent to those in which Executive was participating or otherwise deriving
benefit from immediately prior to the beginning of the term of this Agreement,
and the Bank will not, without Executive's prior written consent, make any
changes in such plans, arrangements or perquisites which would materially
adversely affect Executive's rights or benefits thereunder; provided, however,
that the Bank may make such changes to such plans, arrangements or perquisites
generally provided to all Bank employees on a non-discriminatory basis. The Bank
may acquire "Key Man" insurance on Executive upon such terms and conditions as
may be determined from time to time by the Bank. Upon an Event of Termination as
defined below, the Bank shall transfer an "Key Man" life insurance, if any is
owned by the Bank, to Executive. Without limiting the generality of the
foregoing provisions of this Subsection (b), Executive shall be entitled to
participate in or receive benefits under any Benefit
54
Plans including but not limited to, stock grants, restricted stock, stock
options (and other option derived benefits), Employee Stock Ownership Plans
("ESOP"), or any other stock-based benefit plan, retirement plans, supplemental
retirement plans, pension plans, profit-sharing plans, health-and-accident
plans, medical coverage or any other employee benefit plan or arrangement made
available by the Bank in the future to its senior executives and key management
employees with awards, grants, levels and benefits for Executive equal at least
to levels customary in the industry for persons of like title, authority and
responsibility as Executive and with levels of Executive's past participation in
the Benefit Plans of the Bank, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements.
Executive shall be entitled to incentive compensation and bonuses as provided in
any plan of the Bank in which Executive is eligible to participate. Nothing paid
to the Executive under any such plan or arrangement will be deemed to be in lieu
of other compensation to which the Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3 and other compensation provided for by paragraph (b) of this
Section 3, the Bank shall pay or reimburse Executive for all travel,
entertainment and other reasonable expenses incurred in the performance of
Executive's obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine.
(d) In addition to Executive's Base Salary as provided in paragraph (a)
of this Section 3 and any incentive compensation or discretionary bonus
otherwise paid or payable to other senior executives or to Executive
exclusively, the Bank shall annually award a Fixed Incentive Award to Executive
in an amount equal to one percent (1%) of the Bank's pre-tax profit on an
unconsolidated basis. The Fixed Incentive Award shall be calculated annually for
the period of August 1 through July 31 of each year. The Fixed Incentive Award
shall be paid to Executive or her designated beneficiary upon the earlier of (i)
the termination by the Bank of her employment for other than Termination for
Cause; (ii) the expiration of this Agreement; (iii) her death or Disability; or
(iv) annually upon the anniversary of this Agreement. In the event Executive is
subject to Termination for Cause or voluntarily terminates her employment, other
than upon an Event of Termination as defined below, Executive shall forfeit all
rights to the Fixed Incentive Award provided under this paragraph.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank or the Holding Company of Executive's full-time
employment hereunder for any reason other than a termination governed by Section
5(a), for Disability, as defined in Section 7 hereof, or Termination for Cause,
as defined in Section 8 hereof; (ii) Executive's resignation from the Bank's
employ upon any (A) failure to elect or reelect or to
55
appoint or reappoint Executive as Senior Vice President and General Counsel,
unless consented to by the Executive, (B) a material change in Executive's
function, duties, or responsibilities, which change would cause Executive's
position to become one of lesser responsibility, importance, or scope from the
position and attributes thereof described in Section 1, above, unless consented
to by Executive, (C) a relocation of Executive's principal place of employment
by more than thirty (30) miles from its location at the effective date of this
Agreement, unless consented to by the Executive, (D) a material reduction in the
benefits and perquisites to the Executive from those being provided as of the
effective date of this Agreement, unless consented to by the Executive, or (E) a
liquidation or dissolution of the Bank or Holding Company, or (F) breach of this
Agreement by the Bank. Upon the occurrence of any event described in clauses
(A), (B), (C), (D), (E) or (F), above, Executive shall have the right to elect
to terminate her employment under this Agreement by resignation upon not less
than thirty (30) days prior written notice given within a reasonable period of
time not to exceed, except in the case of a continuing breach, four (4) calendar
months after the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the Bank shall be
obligated to pay Executive, or, in the event of her subsequent death, her
beneficiary or beneficiaries, or her estate, as the case may be, the following
payments and benefits:
(i) Base Salary for the remaining term of the Agreement which
shall be the highest annual Base Salary paid prior to Executive's
termination of employment with the Holding Company or Bank, and which
shall be increased annually during the remaining term of the Agreement
at a rate of 4% per year ("Adjusted Base Salary").
(ii) Bonuses, the Fixed Incentive Award and other incentive
payments for the remaining term of the Agreement which shall be
calculated as the highest percentage of Base Salary, such bonuses and
incentive payments represented prior to Executive's termination of
employment with the Holding Company or Bank multiplied by the Adjusted
Base Salary each year during the remaining term of the Agreement
("Adjusted Bonus").
(iii) Continuation for the remaining term of the Agreement of
Executive's and Executive's dependents' participation in any life,
medical, health, disability, dental insurance or any other "welfare
plan" (as such is defined in Section 3 (1) of the Employee Retirement
Security Act of 1974 as amended from time to time ("ERISA") in which
Executive participates in on the day prior to the effective date of
this Agreement (each being a "Welfare Plan"), subject to the same
premium contributions on the part of Executive as were required
immediately prior to the Event of Termination.
(iv) A benefit equal to the product of (i) the highest annual
allocation of ESOP shares Executive had previously received under the
ESOP and (ii) the lesser of (x) the remaining number of years remaining
in the term of the Agreement or (y) the number of annual allocations
scheduled to be made under the ESOP immediately prior to the Event of
Termination.
(v) A benefit equal to the (i) additional employer
contributions and (ii) net return on all contributions, to which
Executive would have been entitled during the remaining term of the
Agreement under any other qualified or non-qualified defined
contribution plan offered by the Holding Company or the Bank assuming
that Executive was 100% vested, Executive made the maximum allowable
contributions or deferrals under such plans, Executive's compensation
reflected Adjusted Base Salary and Adjusted Bonus and assuming the
crediting of interest on contributions being equal to the return
provided during the five (5) year period immediately preceding the
Event of Termination.
56
(vi) A benefit equal to the difference between (i) the
benefits under any qualified or non-qualified pension plan (as defined
in Section 3 (2)(A) of ERISA) which she would have earned or accrued
during the remaining term of the Agreement assuming such benefit was
vested and is calculated using Adjusted Base Salary and Adjusted Bonus
as appropriate in the formula for Accrued Benefit under the plans and
assuming such benefit was calculated without making any reduction in
the Accrued Benefit due to the benefit being provided prior to the
normal retirement age as set out in the pension plan and (ii) the
accrued benefit Executive is vested in at the time of the Event of
Termination.
(vii) A benefit under any non-qualified Supplemental Executive
Retirement Plan ("SERP") maintained by the Holding Company or the Bank
which Executive would have earned each year within the remaining term
of the Agreement, using compensation values which take into account
Adjusted Base Salary and Adjusted Bonus and further assuming that the
qualified plans to which the SERP refers provide the benefits generally
provided to Executive under their terms during the five year period
immediately prior to the Event of Termination, the limitations on
compensation and benefits under the Code remained fixed at their levels
as of the time of the Event of Termination, and the ESOP continued to
allocate unallocated shares according to its loan amortization schedule
in place on the last day of the ESOP Plan Year immediately prior to the
Event of Termination up to the point at which the ESOP would be fully
allocated.
(viii) The benefit (net of deferrals) which would have been
earned each year of the remaining term of the Agreement under any other
non-qualified deferred compensation arrangements offered by the Holding
Company or the Bank calculated using compensation values which take
into account Adjusted Base Salary and Adjusted Bonus and which assume a
percentage of deferred compensation equal to the highest percentage of
compensation actually deferred during the five (5) year period
immediately preceding the Event of Termination and assuming the
crediting of interest on deferred monies equal to the return provided
during the five (5) year period immediately preceding the Event of
Termination.
(ix) A benefit consisting of the award, allocation or grant of
stock, restricted stock, stock options or any other stock or
stock-related benefit which would have been made to Executive under any
and all stock based qualified or non-qualified compensation plans or
arrangements offered by Holding Company or the Bank immediately prior
to or during the term of the Agreement at either (A) the highest level
of award possible for Executive under the terms of plans which provide
awards based upon levels of individual or group or institutional
performance goals, or (B) if awards are made at the discretion of the
Holding Company or Bank, then at a level consistent with awards made in
the industry for persons of similar title, authority and responsibility
and Executive's past level of benefit under such plans. Such award,
allocation or grant as provided herein shall be deemed 100% vested
immediately.
(x) Any award of stock options (or option derived benefits) to
Executive which have been made under a stock option plan or the stock
option feature of a broader compensation plan which have not already
vested shall be made fully vested and further, at the election of
Executive, any stock options shall be subsequently cancelled by
Executive in consideration for a payment from the Holding Company in an
amount equal to the product of (i) the number of stock options
cancelled and (ii) the difference between (x) the fair market value (at
the time of cancellation) of the stock upon which the option was issued
and (y) the exercise price of the stock option.
(xi) Any award of restricted stock or a stock grant (or award
and grant derived benefits) to Executive which have been made under a
stock grant plan or feature of a broader compensation plan which have
not already vested shall be made fully vested and further, at the
election of Executive, any stock awarded under such a plan shall at the
election of Executive be subject to a put option entitling Executive to
sell all or some portion of such stock to the Holding Company at the
then fair market value.
57
(xii) For the purpose of calculating benefits to be provided
during the remaining term of the Agreement, benefits shall be provided
in the form and calculated as described above. In the event that a
benefit otherwise payable in a stock form cannot be provided in stock,
such benefit will be provided in the form of cash using the greater of
the fair market value of the stock at the time of the distribution of
the benefit or the closing price of the stock on the day prior to the
time of distribution or the last day of trading prior to the time of
distribution.
(c) At the election of the Executive, which election is to be made
prior to an Event of Termination, such payments shall be made in a lump sum. In
the event that no election is made, payment to Executive will be made on a
bi-weekly basis in approximately equal installments during the remaining term of
the Agreement. Such payments shall not be reduced in the event the Executive
obtains other employment following termination of employment.
(d) No payments pursuant to this subsection shall, in the aggregate,
exceed three times Executive's average annual compensation for the five most
recent taxable years that Executive has been employed by the Bank or such lesser
number of years in the event that Executive shall have been employed by the Bank
for less than five years. For purposes of this subsection 4(b), "average annual
compensation" shall be the average annual compensation as defined in Section
5(c) of this Agreement. In the event the Bank is not in compliance with its
minimum capital requirements or if such payments pursuant to this subsection (b)
would cause the Bank's capital to be reduced below its minimum regulatory
capital requirements, such payments shall be deferred until such time as the
Bank or successor thereto is in capital compliance.
5. CHANGE IN CONTROL
(a) For purposes of this Agreement, a "Change in Control" of the Bank
or Holding Company shall mean an event of a nature that: (i) would be required
to be reported in response to Item 1 of the current report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); or (ii) results in a
Change in Control of the Bank or the Holding Company within the meaning of the
Home Owners' Loan Act of 1933, as amended, the Federal Deposit Insurance Act and
the Rules and Regulations promulgated by the Office of Thrift Supervision
("OTS") (or its predecessor agency), as in effect on the date hereof (provided,
that in applying the definition of change in control as set forth under the
rules and regulations of the OTS, the Board shall substitute its judgment for
that of the OTS); or (iii) without limitation such a Change in Control shall be
deemed to have occurred at such time as (A) any "person" (as the 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 voting securities of the Bank or the Holding Company representing
20 % or more of the Bank's or the Holding Company's outstanding voting
securities or right to acquire such securities except for any voting securities
of the Bank purchased by the Holding Company and any voting securities purchased
by any Benefit Plan of the Bank or the Holding Company, or (B) individuals who
constitute the Board on the date hereof (the "Incumbent Board") cease for any
58
reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election was approved by
a vote of at least three-quarters of the directors comprising the Incumbent
Board, or whose nomination for election by the Holding Company's stockholders
was approved by the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (B), considered as though he were a member
of the Incumbent Board, or (C) a plan of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Bank or the Holding Company
or similar transaction occurs in which the Bank or Holding Company is not the
resulting entity; provided, however, that such an event listed above will be
deemed to have occurred or to have been effectuated upon the receipt of all
required regulatory approvals not including the lapse of any statutory waiting
periods.
(b) If a Change in Control has occurred pursuant to Section 5(a) or the
Board has determined that a Change in Control has occurred, Executive shall be
entitled to the benefits provided in paragraphs (c), and (d) of this Section 5
upon her subsequent termination of employment at any time during the term of
this Agreement due to: (1) Executive's dismissal or (2) Executive's voluntary
resignation following any demotion, loss of title, office or significant
authority or responsibility, reduction in annual compensation or material
reduction in benefits or relocation of her principal place of employment by more
than thirty (30) miles from its location immediately prior to the Change in
Control, unless such termination is because of her death or Termination for
Cause, provided, however, that such payments shall be reduced by any payment
made under Section 4 of this Agreement.
(c) Upon Executive's entitlement to benefits pursuant to Section 5(b),
the Bank shall pay Executive, or in the event of her subsequent death, her
beneficiary or beneficiaries, or her estate, as the case may be, a sum equal to
the greater of: (1) the payments due for the remaining term of the Agreement; or
2) three (3) times Executive's average annual compensation for the five (5) most
recent taxable years that Executive has been employed by the Bank or such lesser
number of years in the event that Executive shall have been employed by the Bank
for less than five (5) years; provided however, that no payments pursuant to
this subsection shall exceed three (3) times the Executive's average annual
compensation for the five (5) most recent taxable years that the Executive has
been employed by the Bank or such lesser number of years in the event the
Executive shall have been employed by the Bank for less than five (5) years. For
purposes of this Agreement, such average annual compensation shall include Base
Salary, commissions, bonuses (including the Fixed Incentive Award),
contributions on Executive's behalf to any pension and/or profit sharing plan,
severance payments, retirement payments, directors or committee fees, fringe
benefits, and payment of expense items without accountability or business
purpose or that do not meet the IRS requirements for deductibility by the Bank.
In the event the Bank is not in compliance with its minimum capital requirements
or if such payments would cause the Bank's capital to be reduced below its
minimum regulatory capital requirements, such payments shall be deferred until
such time as the Bank or successor thereto is in capital compliance. At the
election of the Executive, which election is to be made prior to a Change in
Control, such payment may be made in a lump sum. In the event that no election
is made, payment to the Executive will be made on a bi-weekly basis in
approximately equal installments over a period of thirty-six (36) months
following the Executive's
59
termination. Such payments shall not be reduced in the event Executive obtains
other employment following termination of employment.
(d) Upon the Executive's entitlement to benefits pursuant to Section
5(b), the Bank will cause to be continued life, medical, dental and disability
coverage substantially identical to the coverage maintained by the Bank for
Executive and her dependents prior to her severance at no premium cost to the
Executive, except to the extent that such coverage may, be changed in its
application for all Bank employees on a non-discriminatory basis. Such coverage
and payments shall cease upon the expiration of thirty-six (36) months following
the Date of Termination.
(e) In the event that the Executive is receiving bi-weekly payments
pursuant to Section 5(c) hereof, on an annual basis, thereafter, between the
dates of January 1 and January 31 of each year, Executive shall elect whether
the balance of the amount payable under the Agreement at that time shall be paid
in a lump sum or on a pro rata basis pursuant to such section. Such election
shall be irrevocable for the year for which such election is made.
6. CHANGE OF CONTROL RELATED PROVISIONS
Notwithstanding the paragraphs of Section 5, in no event shall the
aggregate payments or benefits to be made or afforded to Executive under said
paragraphs (the "Termination Benefits") constitute an "excess parachute payment"
under Section 28OG of the Code or any successor thereto, and in order to avoid
such a result, Termination Benefits will be reduced, if necessary, to an amount
(the "Non-Triggering Amount"), the value of which is one dollar ($1.00) less
than an amount equal to three (3) times Executive's "base amount", as determined
in accordance with said Section 280G. The allocation of the reduction required
hereby among the Termination Benefits provided by Section 5 shall be determined
by Executive.
7. TERMINATION FOR DISABILITY; DEATH BENEFIT
(a) If, as a result of Executive's incapacity due to physical or mental
illness, such incapacity being determined by a doctor selected by the Bank, she
shall have been absent from her duties with the Bank on a full-time basis for
six (6) consecutive months, and within thirty (30) days after written notice of
potential termination is given she shall not have returned to the full-time
performance of her duties, the Bank may terminate Executive's employment for
"Disability.
(b) The Bank will pay Executive, as disability pay, a bi-weekly payment
equal to one hundred percent (100%) of Executive's bi-weekly rate of Base Salary
on the effective date of such termination. These disability payments shall
commence on the effective date of Executive's termination and will end on the
earlier of (i) the date Executive returns to the full-time employment of the
Bank in the same capacity as she was employed prior to her termination for
Disability and pursuant to an employment agreement between Executive and the
Bank; (ii) Executive's full-time
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employment by another employer; (iii) Executive attaining the normal age of
retirement or receiving benefits under any Defined Benefit Plan of the Bank;
(iv) Executive's death; or (v) the expiration of the term of this Agreement.
Notwithstanding any other provisions to the contrary, the Bank may apply any
proceeds from disability income insurance for Executive which was paid for by
the Bank or Holding Company as partial satisfaction of the Bank's obligations
under this Section.
(c) The Bank will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive and her dependents prior to her termination for Disability.
This coverage and payments shall cease upon the earlier of (i) the date
Executive returns to the full-time employment of the Bank, in the same capacity
as she, was employed prior to her termination for Disability and pursuant to an
employment agreement between Executive and the Bank; (ii) Executive's full-time
employment by another employer; (iii) Executive's attaining the normal age of
retirement or receiving benefits under any Defined Benefit Plan of the Bank;
(iv) the Executive's death; or (v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period which Executive is
incapable of performing her duties hereunder by reason of temporary disability.
(e) Notwithstanding anything to the contrary contained herein, upon the
death of the Executive during the term hereof, the Estate of the Executive shall
be paid her Base Compensation and Fixed Incentive Award for a period of twelve
(12) months following the death of the Executive, unless the remaining term of
the Agreement is less than twelve (12) months then the Estate of the Executive
shall be paid the Base Compensation and Fixed Incentive Award through the
remaining term of the Agreement.
8. TERMINATION FOR CAUSE
(a) The term "Termination for Cause" shall mean termination because of
Executive's personal dishonesty, incompetence, willful misconduct, any 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. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to her a Notice of Termination which shall
include a copy of a resolution duly adopted by the affirmative vote of not less
than a majority of the members of the Board at a meeting of the Board called and
held for that purpose (after reasonable notice to Executive and an opportunity
for her, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail. Except
as provided in Section 8(b) hereof, Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause except
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for compensation and benefits already vested. During the period beginning on
the date of the Notice of Termination for Cause pursuant to Section 9 hereof
through the Date of Termination, stock options and related limited rights
granted to Executive under any stock option plan shall not be exercisable nor
shall any unvested awards granted to Executive under any stock benefit plan of
the Bank, the Holding Company or any subsidiary or affiliate thereof vest. At
the Date of Termination, such stock options and related limited rights and such
unvested awards shall become null and void and shall not be exercisable by or
delivered to Executive at any time subsequent to such Date of Termination for
Cause.
(b) If, within thirty (30) days after Notice of Termination for Cause
is received by Executive, the Executive notifies the Bank that a dispute exists
concerning the termination ("Notice of Dispute"), the Date of Termination shall
be the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by a Notice of
Dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence. In the
event the Executive pursues resolution of such dispute through arbitration in
accordance with the rules of the American Arbitration Association then in
effect, the Bank will continue to pay Executive his Base Salary in effect when
the Notice of Dispute notice giving rise to the dispute was given until the
earlier of- 1) the resolution of the dispute pursuant to arbitration in
accordance with this Agreement or 2) six months from the Date of Termination as
specified in the Notice of Termination for Cause.
9. NOTICE
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be less
than thirty days from the date such Notice of Termination is given.).
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of Termination shall
be the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected) and
provided further that the Date of Termination
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shall be extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any such dispute, the
Bank will continue to pay Executive her full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to, Base
Salary) and the Executive shall continue as a participant in all compensation,
benefit and insurance plans in which she was participating when the notice of
dispute was given, until the dispute is finally resolved in accordance with this
Agreement. Amounts paid under this Section are in addition to all other amounts
due under this Agreement and shall not be offset against or reduce any other
amounts due under this Agreement.
(d) The Bank may terminate the 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 or under any other benefit or compensation plans or programs
maintained by the Bank from time to time. Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause as defined in Section 8 hereinabove.
10. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall
be subject to Executive's compliance with paragraph (b) of this Section 10
during the term of this Agreement and for one (1) full year after the expiration
or termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information
and assistance to the Bank as may reasonably be required by the Bank in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party. The Bank will reimburse the Executive for
reasonable costs incurred by the Executive in connection with furnishing such
information and assistance to the Bank.
11. CONFIDENTIALITY
Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. Executive win not, during or after the term
of her employment, disclose any knowledge of the past, present, planned or
considered business activities of the Bank or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever, unless
expressly authorized by the Board of Directors or required by law.
Notwithstanding the foregoing, Executive may disclose any knowledge of legal,
banking, financial and/or economic principles, concepts or ideas which are not
solely and exclusively derived from the business plans and activities of the
Bank. In the event of a breach or threatened breach by Executive of the
provisions of this Section, the Bank will be entitled to an
63
injunction restraining Executive from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of
the Bank or affiliates thereof, or from rendering any services to any person,
firm, corporation, other entity to whom such knowledge, in whole or in part, has
been disclosed or is threatened to be disclosed. Nothing herein will be
construed as prohibiting the Bank from pursuing any other remedies available to
the Bank for such breach or threatened breach, including the recovery of damages
from Executive.
12. SOURCE OF PAYMENTS
(a) All payments provided in this Agreement shall be timely paid in
cash or check from the general funds of the Bank. The Holding 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 Holding 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 dated and effective
November 1, 1999, between Executive and the Holding Company, except to the
extent that Base Salary is paid by the Holding Company under the Holding Company
Agreement with respect to duties performed pursuant thereto, such compensation
payments and benefits paid by the Holding Company will be subtracted from any
amounts due simultaneously to Executive under similar provisions of this
Agreement.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to Executive of
a kind elsewhere provided. No provision of this Agreement shall be interpreted
to mean that Executive is subject to receiving fewer benefits than those
available to her without reference to this Agreement.
14. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
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(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Bank and their respective successors and assigns.
15. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
16. REQUIRED PROVISIONS
(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 8 hereinabove.
(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 g(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
ss.1818(e)(3) or (g)(1); the Bank's obligations under this Agreement shall be
suspended as of the date of service, unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, the Bank may in its discretion (i)
pay Executive all or part of the compensation withheld while the respective
obligations under this Agreement 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.
ss.1818(e)(4) or (g)(1), all obligations of the institution under this Agreement
shall terminate as of the effective date of the order, but vested rights of the
parties hereto shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) of the
Federal Deposit
65
Insurance Act, 12 U.S.C. ss.1813(x)(1) all obligations of the Bank under this
Agreement shall terminate as of the date of default, but this paragraph shall
not affect any vested rights of the contracting parties.
(e) All obligations of the Bank under this Agreement shall be
terminated, except to the extent determined that continuation of the Agreement
is necessary for the continued operation of the Bank, (i) by the Director of the
OTS (or his designee) or the FDIC, at the time the FDIC enters into an agreement
to provide assistance to or on behalf of the Bank under the authority contained
in Section 13(c) of the Federal Deposit Insurance Act, 12 U.S.C. ss.1823(c); or
(ii) by the Director of the OTS (or his designee) at the time the Director (or
his designee) approves a supervisory merger to resolve problems related to the
operations of the 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.
ss.1828(k) and 12 C.F.R. ss.545.121 and any rules and regulations promulgated
thereunder.
17. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
19. GOVERNING LAW
The validity, interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of Illinois, but only to the extent
not superseded by federal law.
20. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be
66
settled exclusively by arbitration, conducted before a panel of three
arbitrators sitting in a location selected by Executive within fifty (50) miles
from the location of the Bank, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of her right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of Executive, whether by judgment,
arbitration or settlement, Executive shall be entitled to the payment of all
back-pay, including salary, bonuses (including the Fixed Incentive Award) and
all other cash compensation, fringe benefits including those accruing under any
Benefit and any compensation and benefits due Executive under this Agreement.
21. PAYMENT OF COSTS AND LEGAL FEES
All reasonable costs and legal fees paid or incurred by Executive pursuant
to any dispute or question of interpretation relating to this Agreement shall be
paid or reimbursed by the Bank if Executive is successful on the merits pursuant
to a legal judgment, arbitration or settlement.
22. INDEMNIFICATION
(a) The Bank shall provide Executive (including her heirs, executors
and administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense and shall indemnify Executive (and the
Executive's heirs, executors and administrators) to the fullest extent permitted
under federal law against all expenses and liabilities reasonably incurred by
her in connection with or arising out of any action, suit or proceeding in which
she may be involved by reason of her having been a director or officer of the
Bank (whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys' fees and
the cost of reasonable settlements.
(b) Any payments made to Executive pursuant to this Section are
subject to and conditioned upon compliance with 12 C.F.R. ss.545.121 and any
rules or regulations promulgated thereunder.
23. SUCCESSOR TO THE BANK
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Holding Company,
expressly and unconditionally to assume and agree to perform the Bank's
obligations under this Agreement, in the same manner and to the same extent that
the Bank would be required to perform if no such succession or assignment had
taken place.
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ARGO BANCORP, INC.
By: /s/ XXXX X. XXXXXXX
-------------------------------------------
Xxxx X. Xxxxxxx
President and Chief Executive Officer
ARGO FEDERAL SAVINGS BANK
By: /s/ XXXX X. XXXXXXX
--------------------------------------------
Xxxx X. Xxxxxxx
President and Chief Executive Officer
EXECUTIVE:
/s/ XXXXXXX X. XXXXX
-----------------------------------------------
XXXXXXX X. XXXXX
