Contract
EXHIBIT 10.4
MALVERN
FEDERAL SAVINGS BANK
This
EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of the
11th day of
August 2008, by and between Malvern Federal Savings Bank (the
“Bank”), a federally chartered savings bank which is a wholly owned subsidiary
of Malvern Federal Bancorp, Inc. (the “Corporation”), and Xxxxxxx X. Xxxxxx, Xx.
(the “Executive”). The Corporation is a majority-owned subsidiary of
Malvern Federal Mutual Holding Company, a federally chartered mutual holding
company (the “MHC”).
WITNESSETH
WHEREAS,
the Executive is currently employed as the Senior Vice President and Chief
Lending Officer of the Bank (the Bank is referred to herein as the
“Employer”);
WHEREAS,
pursuant to a Plan of Reorganization from Mutual Savings Bank to Mutual Holding
Company and a Plan of Stock Issuance, the Bank has reorganized into the mutual
holding company structure, and the Bank is currently a wholly owned subsidiary
of the Corporation (the “Reorganization”);
WHEREAS,
the Employer desires to assure itself of the continued availability of the
Executive’s services as provided in this Agreement; and
WHEREAS,
the Executive is willing to serve the Employer on the terms and conditions
hereinafter set forth;
NOW
THEREFORE, in consideration of the mutual agreements herein contained, and upon
the other terms and conditions hereinafter provided, the Employer and the
Executive hereby agree as follows:
1.
Definitions. The
following words and terms shall have the meanings set forth below for the
purposes of this Agreement:
(a) Annual
Compensation. The Executive's “Annual Compensation” for
purposes of determining severance payable under this Agreement shall be deemed
to mean the sum of (i) the annual rate of Base Salary as of the Date of
Termination, and (ii) the cash bonus, if any, earned by the Executive for the
calendar year immediately preceding the year in which the Date of Termination
occurs.
(b) Base
Salary. “Base Salary” shall have the meaning set forth in
Section 3(a) hereof.
(c) Cause.
Termination of the Executive's employment for “Cause” shall mean termination
because of personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order or material
breach of any provision of this Agreement.
(d) Change in
Control. “Change in Control” shall mean a change in the
ownership of the Corporation or the Bank, a change in the effective control of
the Corporation or the Bank or a change in the ownership of a substantial
portion of the assets of the Corporation or the Bank, in each case as provided
under Section 409A of the Code and the regulations thereunder; provided,
however, that neither any second-step conversion and reorganization in which the
MHC ceases to exist nor any increase in the ownership of the Corporation by the
MHC shall be deemed to constitute a Change in Control.
(e) Code. “Code”
shall mean the Internal Revenue Code of 1986, as amended.
(f) Date of
Termination. “Date of Termination” shall mean (i) if the
Executive's employment is terminated for Cause, the date on which the Notice of
Termination is given, and (ii) if the Executive's employment is terminated for
any other reason, the date specified in such Notice of
Termination.
(g) Disability. “Disability”
shall mean the Executive (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (ii) is, by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a period of not less
than three months under an accident and health plan covering employees of the
Employer.
(h) Effective
Date. “Effective Date” shall mean the date this Agreement is
executed as first written above.
(i) ERISA. “ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended.
(j) Good
Reason. “Good Reason” means the occurrence of any of the
following conditions:
(i) any
material breach of this Agreement by the Employer, including without limitation
any of the following: (A) a material diminution in the Executive’s base
compensation, (B) a material diminution in the Executive’s authority, duties or
responsibilities, or (C) a material diminution in the authority, duties or
responsibilities of the supervisor to whom the Executive is required to report,
or
(ii) any
material change in the geographic location at which the Executive must perform
his services under this Agreement;
2
provided,
however, that prior to any termination of employment for Good Reason, the
Executive must first provide written notice to the Employer within ninety (90)
days of the initial existence of the condition, describing the existence of such
condition, and the Employer shall thereafter have the right to remedy the
condition within thirty (30) days of the date the Employer received the written
notice from the Executive. If the Employer remedies the condition
within such thirty (30) cure period, then no Good Reason shall be deemed to
exist with respect to such condition. If the Employer does not remedy
the condition within such thirty (30) day cure period, then the Executive may
deliver a Notice of Termination for Good Reason at any time within sixty (60)
days following the expiration of such cure period.
(k) IRS. IRS
shall mean the Internal Revenue Service.
(l) Notice of
Termination. Any purported termination of the Executive's
employment by the Employer for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, including
without limitation for Good Reason, shall be communicated by a written “Notice
of Termination” to the other party hereto. For purposes of this
Agreement, a “Notice of Termination” shall mean a dated notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated, (iii) specifies a Date of Termination, which shall be effective
immediately if the Employer terminates the Executive's employment for Cause, and
(iv) is given in the manner specified in Section 10 hereof.
(m) Retirement. “Retirement”
shall means voluntary termination by the Executive which constitutes a
retirement, including early retirement, under the Bank’s 401(k)
plan.
2. Term
of Employment and Duties.
(a) The
Employer hereby employs the Executive as the Senior Vice President and Chief
Lending Officer of the Bank, and the Executive hereby accepts said employment
and agrees to render such services to the Employer on the terms and conditions
set forth in this Agreement. The term of employment under this
Agreement shall be for two years commencing on the Effective
Date. Upon approval of the Board of Directors of the Employer, the
term of employment shall extend for an additional year on each annual
anniversary of the Effective Date such that at any time the remaining term of
this Agreement shall be from one to two years in the absence of notice to the
contrary. Prior to each annual anniversary of the Effective Date, the
Board of Directors of the Employer shall consider and review (after taking into
account all relevant factors, including the Executive’s performance hereunder)
an extension of the term of this Agreement, and the term shall continue to
extend on each annual anniversary of the Effective Date if the Board of
Directors approves such extension unless the Executive gives written notice to
the Employer of the Executive’s election not to extend the term, with such
written notice to be given not less than thirty (30) days prior to any such
anniversary date. If the Board of Directors of the Employer elects not to extend
the term, it shall give written notice of such decision to the Executive not
less than thirty (30) days prior to any such anniversary date. If any
party gives timely notice that the term will not be extended as of any
anniversary date, then this Agreement shall terminate at the conclusion of its
remaining term. References herein to the term of this Agreement shall
refer both to the initial term and successive terms.
3
(b) Nothing
in this Agreement shall be deemed to prohibit the Employer at any time from
terminating the Executive's employment during the term of this Agreement for any
reason, provided that the relative rights and obligations of the Employer and
the Executive in the event of any such termination shall be determined under
this Agreement.
(c) During
the term of this Agreement, the Executive shall be responsible for the lending
operations of the Bank. The Executive shall report directly to the
President and Chief Executive Officer of the Employer. In addition, the
Executive shall perform such executive services for the Employer as may be
consistent with his titles and from time to time assigned to him by the
President and Chief Executive Officer of the Employer.
3. Compensation
and Benefits.
(a) The
Employer shall compensate and pay the Executive for his services during the term
of this Agreement at a minimum base salary of $128,000 per year (“Base Salary”),
which may be increased from time to time in such amounts as may be mutually
determined by the Board of Directors of the Employer and may not be decreased
without the Executive's express written consent. In addition to his
Base Salary, the Executive shall be entitled to receive during the term of this
Agreement such bonus payments as may be determined by the Board of Directors of
the Employer.
(b) During
the term of this Agreement, the Executive shall be entitled to participate in
and receive the benefits of any pension or other retirement benefit plan, profit
sharing, stock option, employee stock ownership, or other plans, benefits and
privileges given to employees and executives of the Employer, to the extent
commensurate with his then duties and responsibilities, as fixed by the Board of
Directors of the Employer. The Employer shall not make any changes in
such plans, benefits or privileges which would adversely affect the Executive's
rights or benefits thereunder, unless such change occurs pursuant to a program
applicable to all executive officers of the Employer and does not result in a
proportionately greater adverse change in the rights of or benefits to the
Executive as compared with any other executive officer of the
Employer. Nothing paid to the Executive under any plan or arrangement
presently in effect or made available in the future shall be deemed to be in
lieu of the salary payable to the Executive pursuant to Section 3(a)
hereof.
(c) During
the term of this Agreement, the Executive shall be entitled to paid annual
vacation in accordance with the policies as established from time to time by the
Board of Directors of the Employer. The Executive shall not be
entitled to receive any additional compensation from the Employer for failure to
take a vacation, nor shall the Executive be able to accumulate unused vacation
time from one year to the next, except to the extent authorized by the Board of
Directors of the Employer.
4. Expenses. The
Employer shall reimburse the Executive or otherwise provide for or pay for all
reasonable expenses incurred by the Executive in furtherance of or in connection
with the business of the Employer, including, but not by way of limitation,
automobile expenses and traveling expenses, and all reasonable entertainment
expenses (whether incurred at the Executive's residence, while traveling or
otherwise), subject to such reasonable documentation and policies as may be
established by the Board of Directors of the Employer. If such
expenses are paid in the first instance by the Executive, the Employer shall
reimburse the Executive therefor. Such reimbursement shall be paid
promptly by the Employers and in any event no later than March 15 of the year
immediately following the year in which such expenses were
incurred.
4
5.
Termination.
(a) The
Employer shall have the right, at any time upon prior Notice of Termination, to
terminate the Executive's employment hereunder for any reason, including without
limitation termination for Cause, Disability or Retirement, and the Executive
shall have the right, upon prior Notice of Termination, to terminate his
employment hereunder for any reason.
(b) In
the event that (i) the Executive's employment is terminated by the Employer for
Cause or (ii) the Executive terminates his employment hereunder other than for
Disability, Retirement, death or Good Reason, the Executive shall have no right
pursuant to this Agreement to compensation or other benefits for any period
after the applicable Date of Termination.
(c) In
the event that the Executive's employment is terminated as a result of
Disability, Retirement or the Executive's death during the term of this
Agreement, the Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination.
(d) In
the event that prior to a Change in Control (i) the Executive's employment is
terminated by the Employer for other than Cause, Disability, Retirement or the
Executive's death or (ii) such employment is terminated by the Executive for
Good Reason, then the Employer shall:
(A) pay
to the Executive, in a lump sum as of the Date of Termination, a cash severance
amount equal to one (1) times his Base Salary, and
(B) maintain
and provide for a period ending at the earlier of (i) twelve (12) months after
the Date of Termination or (ii) the date of the Executive's full-time employment
by another employer (provided that the Executive is entitled under the terms of
such employment to benefits substantially similar to those described in this
subparagraph (B)), at no cost to the Executive, the continued participation of
the Executive and his dependents in all group insurance, life insurance, health
and accident insurance, and disability insurance offered by the Employer in
which the Executive and his dependents were participating immediately prior to
the Date of Termination, subject to compliance with Section 5(f)
below.
(e) In
the event that either concurrently with or following a Change in Control (i) the
Executive's employment is terminated by the Employer for other than Cause,
Disability, Retirement or the Executive's death or (ii) such employment is
terminated by the Executive for Good Reason, then the Employer shall, subject to
the provisions of Section 6 hereof, if applicable,
5
(A) pay
to the Executive, in a lump sum as of the Date of Termination, a cash severance
amount equal to two (2) times his Annual Compensation, and
(B) maintain
and provide for a period ending at the earlier of (i) twenty-four (24) months
after the Date of Termination or (ii) the date of the Executive's full-time
employment by another employer (provided that the Executive is entitled under
the terms of such employment to benefits substantially similar to those
described in this subparagraph (B)), at no cost to the Executive, the continued
participation of the Executive and his dependents in all group insurance, life
insurance, health and accident insurance, and disability insurance offered by
the Employer in which the Executive and his dependents were participating
immediately prior to the Date of Termination, subject to compliance with Section
5(f) below.
(f) Any
insurance premiums payable by the Employer or any successor pursuant to this
Section 5 shall be payable at such times and in such amounts (except that the
Employer shall also pay any employee portion of the premiums) as if the
Executive was still an employee of the Employer, subject to any increases in
such amounts imposed by the insurance company or COBRA, and the amount of
insurance premiums required to be paid by the Employer in any taxable year shall
not affect the amount of insurance premiums required to be paid by the Employer
in any other taxable year; provided, however, that if the Executive’s
participation in any group insurance plan is barred, the Employer shall either
arrange to provide the Executive with insurance benefits substantially similar
to those which the Executive was entitled to receive under such group insurance
plan or, if such coverage cannot be obtained, pay a lump sum cash equivalency
amount within thirty (30) days following the Date of Termination based on the
annualized rate of premiums being paid by the Employer as of the Date of
Termination.
6. Limitation of
Benefits under Certain Circumstances. If the payments and
benefits pursuant to Section 5 hereof, either alone or together with other
payments and benefits which the Executive has the right to receive from the
Employer and the Corporation, would constitute a “parachute payment” under
Section 280G of the Code, then the payments and benefits payable by the Employer
pursuant to Section 5 hereof shall be reduced by the minimum amount necessary to
result in no portion of the payments and benefits payable by the Employer under
Section 5 being non-deductible to the Employer pursuant to Section 280G of the
Code and subject to the excise tax imposed under Section 4999 of the Code. In no
event shall the payments and benefits payable under Section 5 exceed three times
the Executive’s average taxable income from the Employer for the five calendar
years preceding the year in which the Date of Termination occurs, with any
benefits to be provided subsequent to the Date of Termination to be discounted
to present value in accordance with Section 280G of the Code. If the payments
and benefits under Section 5 are required to be reduced, the cash severance
shall be reduced first, followed by a reduction in the fringe
benefits. The determination of any reduction in the payments and
benefits to be made pursuant to Section 5 shall be based upon the opinion of
independent tax counsel selected by the Employer and paid by the
Employer. Such counsel shall promptly prepare the foregoing opinion,
but in no event later than thirty (30) days from the Date of Termination, and
may use such actuaries as such counsel deems necessary or advisable for the
purpose. Nothing contained in this Section 6 shall result in a
reduction of any payments or benefits to which the Executive may be entitled
upon termination of employment under any circumstances other than as specified
in this Section 6, or a reduction in the payments and benefits specified in
Section 5 below zero.
6
7. Mitigation;
Exclusivity of Benefits.
(a) The
Executive shall not be required to mitigate the amount of any benefits hereunder
by seeking other employment or otherwise, nor shall the amount of any such
benefits be reduced by any compensation earned by the Executive as a result of
employment by another employer after the Date of Termination or otherwise,
except as set forth in Sections 5(d)(B)(ii) and 5(e)(B)(ii)
above.
(b) The
specific arrangements referred to herein are not intended to exclude any other
benefits which may be available to the Executive upon a termination of
employment with the Employer pursuant to employee benefit plans of the Employer
or otherwise.
8. Withholding. All
payments required to be made by the Employer hereunder to the Executive shall be
subject to the withholding of such amounts, if any, relating to tax and other
payroll deductions as the Employer shall determine are required to be withheld
pursuant to any applicable law or regulation.
9. Assignability. The
Employer may assign this Agreement and its rights and obligations
hereunder in whole, but not in part, to any corporation, bank or other entity
with or into which the Employer may hereafter merge or consolidate or to which
the Employer may transfer all or substantially all of its assets, if in any such
case said corporation, bank or other entity shall by operation of law or
expressly in writing assume all obligations of the Employer hereunder as fully
as if it had been originally made a party hereto, but may not otherwise assign
this Agreement or its rights and obligations hereunder. The Executive
may not assign or transfer this Agreement or any rights or obligations
hereunder.
10. Notice. For
the purposes of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by certified or registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth
below:
To the
Bank: Secretary
Malvern
Federal Savings Bank
00 Xxxx
Xxxxxxxxx Xxxxxx
Xxxxx,
Xxxxxxxxxxxx 00000
To the
Executive: Xxxxxxx X.
Xxxxxx, Xx.
At the
address last appearing on
the
personnel records of the Employer
7
11. Amendment;
Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Employer to sign on its
behalf. No waiver by any party hereto at any time of any breach by
any other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. In addition, notwithstanding anything in this
Agreement to the contrary, the Employer may amend in good faith any terms of
this Agreement, including retroactively, in order to comply with Section 409A of
the Code.
12. Governing
Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the Commonwealth of
Pennsylvania.
13. Nature of
Obligations. Nothing contained herein shall create or require
the Employer to create a trust of any kind to fund any benefits which may be
payable hereunder, and to the extent that the Executive acquires a right to
receive benefits from the Employer hereunder, such right shall be no greater
than the right of any unsecured general creditor of the
Employer.
14. Headings. The
section headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement.
15. Validity. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement,
which shall remain in full force and effect.
16. Changes in Statutes
or Regulations. If any statutory or regulatory provision referenced
herein is subsequently changed or re-numbered, or is replaced by a separate
provision, then the references in this Agreement to such statutory or regulatory
provision shall be deemed to be a reference to such section as amended,
re-numbered or replaced.
17. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.
18. Regulatory
Actions. The following provisions shall be applicable to the
parties to the extent that they are required to be included in employment
agreements between a savings bank and its employees pursuant to Section
563.39(b) of the Office of Thrift Supervision (“OTS”) Rules and Regulations, 12
C.F.R. §563.39(b), or any successor thereto, and shall be controlling in the
event of a conflict with any other provision of this Agreement, including
without limitation Section 5 hereof.
(a) If
the Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the Bank's affairs pursuant to notice served
under Section 8(e)(3) or Section 8(g)(1) of the Federal Deposit Insurance Act
(“FDIA”)(12 U.S.C. §§1818(e)(3) and 1818(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 the Executive all or part of
the compensation withheld while its obligations under this Agreement were
suspended, and (ii) reinstate (in whole or in part) any of its obligations which
were suspended.
8
(b) If
the Executive is removed from office and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C. §§1818(e)(4) and
(g)(1)), all obligations of the Bank under this Agreement shall terminate as of
the effective date of the order, but vested rights of the Executive and the Bank
as of the date of termination shall not be affected.
(c) If
the Bank is in default, as defined in Section 3(x)(1) of the FDIA (12 U.S.C.
§1813(x)(1)), all obligations under this Agreement shall terminate as of the
date of default, but vested rights of the Executive and the Bank as of the date
of termination shall not be affected.
(d) All
obligations under this Agreement shall be terminated pursuant to 12 C.F.R.
§563.39(b)(5), except to the extent that it is determined that continuation of
the Agreement for the continued operation of the Bank is necessary: (i) by the
Director of the OTS, or his/her designee, at the time the Federal Deposit
Insurance Corporation (“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
FDIA (12 U.S.C. §1823(c)); or (ii) by the Director of the OTS, or his/her
designee, at the time the Director or his/her designee approves a supervisory
merger to resolve problems related to operation of the Bank or when the Bank is
determined by the Director of the OTS to be in an unsafe or unsound condition,
but vested rights of the Executive and the Employers as of the date of
termination shall not be affected.
19. Regulatory
Prohibition. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. §1828(k)) and 12 C.F.R. Part
359.
20. Entire
Agreement. This Agreement embodies the entire agreement
between the Employer and the Executive with respect to the matters agreed to
herein. All prior agreements between the Employer and the Executive
with respect to the matters agreed to herein are hereby superseded and shall
have no force or effect.
9
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first written
above.
|
Attest:
|
MALVERN
FEDERAL SAVINGS BANK
|
||
| /s/Xxxxxxx Xxxxxx |
By:
|
/s/F. Xxxxxx Xxxxxx, Jr. | |
|
Xxxxxxx
Xxxxxx
|
F.
Xxxxxx Xxxxxx, Jr.
|
||
|
Corporate
Secretary
|
Chairman
of the Board
|
||
|
|
|
||
|
EXECUTIVE
|
|||
|
By:
|
/s/Xxxxxxx X. Xxxxxx, Xx. | ||
|
|
Xxxxxxx
X. Xxxxxx, Xx.
|
||
|
|
|
||
10
