EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made this 11th day of October, 2005 (the "Agreement"),
by and between FIRST FEDERAL SAVINGS BANK, a federally-chartered savings bank
(the "Bank"), FEDFIRST FINANCIAL CORPORATION (the "Company") and XXXX X.
XXXXXXXX ("Executive").
WITNESSETH
WHEREAS, Executive has accepted employment with the Bank in a position
of substantial responsibility;
WHEREAS, the Bank and Executive wish to set forth the terms and
conditions of Executive's employment;
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and upon the other terms and conditions provided for in this
Agreement, the parties hereby agree as follows:
1. EMPLOYMENT. The Bank and the Company will employ Executive as
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Chief Executive Officer. Executive will perform all duties and
shall have all powers commonly incident to such offices or
which, consistent with those offices, the Boards of Directors
of the Bank and the Company (the "Board") delegates to
Executive. Executive shall report to the Board.
2. LOCATION AND FACILITIES. The Bank will furnish Executive with
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the working facilities and staff customary for the positions
held by Executive. The Bank will locate the office and staff
of Executive at the principal administrative offices of the
Bank.
3. TERM.
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a. The term of this Agreement shall include (i) the initial term,
consisting of the period commencing on September 19, 2005 (the
"Effective Date") and ending on September 19, 2007, plus (ii)
any and all extensions of the initial term made pursuant to
this Section 3.
b. Not later than September 19, 2006, and prior to each September
19th thereafter, the disinterested members of the Board may
extend the term of this Agreement for an additional twelve
months so that the remaining term of the Agreement becomes
twenty-four months, unless Executive elects not to extend the
term of this Agreement by giving written notice of his
intentions in accordance with Section 17 of this Agreement.
Each year, the Board will review Executive's performance for
purposes of determining whether to extend the term of this
Agreement and will include the rationale and results of its
review in the minutes of its meeting. Executive shall receive
notice as soon as possible after such review as to whether the
Agreement will be extended for an additional year.
4. BASE COMPENSATION.
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a. The Bank agrees to pay the Executive an annual base salary of
$160,000, payable in accordance with the customary payroll
practices of the Bank. Executive may have part of his
compensation deferred if he chooses.
b. Each year, the Board will review the level of Executive's base
salary, based upon factors they deem relevant, in order to
determine whether to maintain or increase Executive's base
salary.
5. BONUSES. Executive will participate in discretionary bonuses
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or other incentive compensation programs the Bank may sponsor
or award from time to time to other senior management
employees on such terms as the Board may establish.
6. BENEFIT PLANS.
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a. With the exception of health insurance, Executive will
participate in the employee welfare benefit plans the Bank
maintains for the benefit of its employees on the same terms
as other employees. As of the effective date of this
Agreement, those benefits include group-term life insurance,
dental insurance, and group short- and long-term disability
insurance. In lieu of coverage under the Bank's health
insurance plan, the Bank agrees to provide Executive with a
payment of $650.00 per month as an allowance toward the
purchase of his own health insurance coverage. During the term
of this Agreement, Executive may also participate in the
employee stock ownership plan and retirement savings plan
(i.e., 401(k) plan) sponsored by the Bank on the same terms as
other employees.
b. In connection with the implementation of any shareholder
approved equity incentive plan, the Compensation Committee of
the Company Board will consider Executive for participation in
the plan.
7. VACATION AND LEAVE. Executive may take up to four weeks paid
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vacation and three paid personal days annually. Any other
leave may be taken in accordance with the Bank's general
personnel policies. Executive shall not be charged leave of
any kind for attendance at professional meetings, seminars or
continuing education programs.
8. EXPENSE PAYMENTS AND REIMBURSEMENTS.
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a. The Bank will reimburse Executive for all reasonable and
documented out-of-pocket business expenses (including, but not
limited to, business cell phone use, parking, business
entertainment, seminars, membership fees for organizations
approved by the Board and dues for such organizations)
incurred in connection with his services under this Agreement.
Executive must substantiate the payment of all expenses in
accordance with applicable policies of the Bank.
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b. Executive will receive a monthly payment of $948.18 per month
as a car allowance during the term of this Agreement. In
addition, Executive shall be reimbursed at the rate of 35
cents per mile for business use of his vehicle.
9. LOYALTY AND CONFIDENTIALITY.
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a. During the term of this Agreement, Executive shall: (i) devote
all his business time, attention, skill, and efforts to the
faithful performance of his duties as President and Chief
Executive Officer of the Bank and the Company; provided,
however, that from time to time, Executive may serve on the
board of directors of, and hold any other offices or positions
in, companies or organizations that will not present any
conflict of interest with the Bank or any of their affiliates,
and that will not unfavorably affect the performance of
Executive's employment duties, and that will not violate any
applicable statute or regulation. Executive shall not engage
in any business or activity contrary to the business affairs
or interests of the Bank and Company.
b. Nothing contained in this Agreement prevents or limits
Executive's right to invest in the capital stock or other
securities of any business dissimilar from that of the Bank
and Company, or, solely as a passive, minority investor, in
any business.
c. Executive agrees to maintain the confidentiality of any and
all information concerning the operation or financial status
of the Bank or the Company; the names or addresses of any
borrowers, depositors and other customers; any information
concerning or obtained from such customers; and any other
information concerning the Bank or the Company which he gains
or of which he becomes aware during the course of his
employment with the Bank or the Company. Executive further
agrees that, unless required by law or specifically permitted
by the Board in writing, he will not disclose to any person or
entity, either during or subsequent to his employment, any of
the above-mentioned information not generally known to the
public, nor shall he use the information in any way other than
for the benefit of the Bank or the Company.
10. TERMINATION AND TERMINATION PAY. Executive, the Bank or the
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Company may terminate Executive's employment under the
following circumstances:
a. DEATH. Executive's employment under this Agreement shall
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terminate upon his death during the term of this Agreement, in
which event Executive's estate shall receive the compensation
due to Executive through the last day of the calendar month in
which his death occurred.
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b. RETIREMENT. This Agreement shall terminate upon Executive's
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retirement under the retirement benefit plan or plans in which
he participates pursuant to Section 6 of this Agreement or
otherwise.
c. DISABILITY.
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i. The Board or Executive may terminate Executive's
employment after having determined Executive has
suffered a Disability. For purposes of this
Agreement, "Disability" means a physical or mental
infirmity that impairs Executive's ability to
substantially perform his duties under this Agreement
and results in Executive becoming eligible for
long-term disability benefits under any long-term
disability plans of the Bank (or, if no such benefits
exist, that impairs Executive's ability to
substantially perform his duties under this Agreement
for a period of at least one hundred eighty (180)
consecutive days). The Board, in good faith, shall
determine whether or not Executive becomes and
continues to be permanently disabled for purposes of
this Agreement, based upon competent medical advice
and other factors that the Board reasonably believes
to be relevant. As a condition to any benefits, the
Board may require Executive to submit to physical or
mental evaluations and tests as the Board or its
medical experts deem reasonably appropriate (copies
of which shall promptly be provided to Executive
and/or his designated representative).
ii. In the event of his Disability, Executive shall no
longer be obligated to perform services under this
Agreement. The Bank will pay Executive, as Disability
pay, an amount equal to two-thirds (2/3) of
Executive's weekly rate of base salary in effect as
of the date of his termination of employment due to
Disability. The Bank will make Disability payments on
a monthly basis commencing on the first day of the
month following the effective date of Executive's
termination of employment due to Disability and
ending on the earlier of: (A) the date he returns to
full-time employment at the Bank in the same capacity
as he was employed prior to his termination for
Disability; (B) his death; (C) his attainment of age
65; or (D) the date the Agreement would have expired
had Executive's employment not terminated by reason
of Disability. The Bank will reduce Disability pay
otherwise due to Executive under this provision by
the amount of any short- or long-term disability
benefits payable to Executive under any other
disability programs sponsored by the Bank. In
addition, during any period of Executive's
Disability, the Bank shall continue to provide
Executive and his dependents, to the greatest extent
possible, all benefits (including, without
limitation, benefits under retirement plans and
medical, dental and life insurance plans) provided to
Executive and his dependents prior to his Disability,
on the same terms as if Executive remained actively
employed by the Bank.
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d. TERMINATION FOR CAUSE.
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i. The Board, by written notice to Executive in the form
and manner specified in this paragraph, may
immediately terminate Executive's employment at any
time for "Cause". Executive shall have no rights to
receive compensation or other benefits for any period
after termination for Cause, except for already
vested benefits. Termination for "Cause" shall mean
termination because of, in the good faith
determination of the Board, Executive's:
(1) Personal dishonesty;
(2) Incompetence;
(3) Willful misconduct;
(4) Breach of fiduciary duty involving personal
profit;
(5) Intentional failure to perform duties under
this Agreement;
(6) Willful violation of any law, rule or
regulation (other than traffic violations or
similar offenses) that reflects adversely on
the reputation of the Bank, any felony
conviction, any violation of law involving
moral turpitude, or any violation of a final
cease-and-desist order; or
(7) Material breach by Executive of any
provision of this Agreement.
ii. Notwithstanding the foregoing, Executive's
termination for Cause will not become effective
unless the Bank has delivered to Executive a copy of
a resolution duly adopted by the affirmative vote of
a majority of the entire membership of the Board, at
a meeting of the Board called and held for the
purpose of finding that, in the good faith opinion of
the Board (after reasonable notice to Executive and
an opportunity for Executive to be heard before the
Board with counsel), Executive was guilty of the
conduct described above and specifying the
particulars of his conduct.
e. VOLUNTARY TERMINATION BY EXECUTIVE. In addition to his other
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rights to terminate employment under this Agreement, Executive
may voluntarily terminate employment during the term of this
Agreement upon at least sixty (60) days prior written notice
to the Board. Upon Executive's voluntary termination,
Executive will receive only his compensation, vested rights
and employee benefits up to the date of his termination.
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f. WITHOUT CAUSE.
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i. In addition to termination pursuant to Sections 10(a)
through 10(e), the Board may, upon providing written
notice to Executive, immediately terminate his
employment at any time for a reason other than Cause
(a termination "Without Cause").
ii. In the event of his termination of employment under
this Section 10(f), Executive shall continue to
receive his base salary at the rate in effect at his
termination date for the remaining term of the
Agreement.
g. CHANGE IN CONTROL. In the event that the employment of the
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Executive is involuntarily terminated within one (1) year of a
Change in Control (as defined in paragraph h, below) Executive
shall be entitled to the following benefit:
i. a lump sum payment equal to three (3) times
Executive's base salary as of the date of the Change
in Control; and
ii. continuation (i) of the $650 payment described in
Section 6(a) of this Agreement; and (ii) dental
coverage for Executive and his dependents at the
Bank's expense, for a period not to exceed the
earlier of (i) 36 months from Executive's termination
date; (ii) Executive's employment with another
employer; or (iii) Executive's death.
h. DEFINITION OF CHANGE IN CONTROL. For purposes of this
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Agreement, a "Change in Control" means any of the following
events:
i. MERGER: The Company merges into or consolidates with
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another corporation, or merges another corporation
into the Company, and as a result, less than a
majority of the combined voting power of the
resulting corporation immediately after the merger or
consolidation is held by persons who were
stockholders of the Company immediately before the
merger or consolidation.
ii. ACQUISITION OF SIGNIFICANT SHARE OWNERSHIP: There is
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filed, or required to be filed, a report on Schedule
13D or another form or schedule (other than Schedule
13G) required under Sections 13(d) or 14(d) of the
Securities Exchange Act of 1934, if the schedule
discloses that the filing person or persons acting in
concert has or have become the beneficial owner(s) of
25% or more of a class of the Company's voting
securities, but this clause (ii) shall not apply to
beneficial ownership of Company voting shares held in
a fiduciary capacity by an entity of which the
Company directly or indirectly beneficially owns 50%
or more of its outstanding voting securities.
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iii. CHANGE IN BOARD COMPOSITION: During any period of
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two consecutive years, individuals who constitute the
Company's Board of Directors at the beginning of the
two-year period cease for any reason to constitute at
least a majority of the Company's Board of Directors;
provided, however, that for purposes of this clause
(iii), each director who is first elected by the
board (or first nominated by the board for election
by the stockholders) by a vote of at least two-thirds
(2/3) of the directors who were directors at the
beginning of the two-year period shall be deemed to
have also been a director at the beginning of such
period; or
iv. SALE OF ASSETS: The Company sells to a third party
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all or substantially all of its assets.
Notwithstanding anything in this Agreement to the contrary, in no event
shall the reorganization of the Bank from the mutual holding company form of
organization to the full stock holding company form of organization (including
the elimination of the mutual holding company) constitute a "Change in Control"
for purposes of this Agreement.
i. LIMITATION OF BENEFITS UNDER CERTAIN CIRCUMSTANCES. If the
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payments and benefits pursuant to Section 10 of this
Agreement, either alone or together with other payments and
benefits which Executive has the right to receive from the
Company and the Bank, would constitute a "parachute payment"
under Section 280G of the Code, the payments and benefits
pursuant to Section 10 shall be reduced or revised, in the
manner determined by Executive, by the amount, if any, which
is the minimum necessary to result in no portion of the
payments and benefits under Section 10 being non-deductible to
the Company and the Bank pursuant to Section 280G of the Code
and subject to the excise tax imposed under Section 4999 of
the Code. The determination of any reduction in the payments
and benefits to be made pursuant to Section 10 shall be based
upon the opinion of the Company and the Bank's independent
public accountants and paid for by the Company and the Bank.
In the event that the Company, the Bank and/or Executive do
not agree with the opinion of such counsel, (i) the Company
and the Bank shall pay to Executive the maximum amount of
payments and benefits pursuant to Section 10, as selected by
Executive, which such opinion indicates there is a high
probability do not result in any of such payments and benefits
being non-deductible to the Company and the Bank and subject
to the imposition of the excise tax imposed under Section 4999
of the Code and (ii) the Company and the Bank may request, and
Executive shall have the right to demand that they request, a
ruling from the IRS as to whether the disputed payments and
benefits pursuant to Section 10 have such consequences. Any
such request for a ruling from the IRS shall be promptly
prepared and filed by the Company and the Bank, but in no
event later than thirty (30) days from the date of the opinion
of counsel referred to above, and shall be subject to
Executive's approval prior to filing, which shall not be
unreasonably withheld. The Company, the Bank and Executive
agree to be bound by any ruling received from the IRS and to
make appropriate payments to each other to reflect any such
rulings, together with interest at the applicable federal rate
provided for in Section 7872(f)(2) of the Code. Nothing
contained herein shall result in a reduction of any payments
or benefits to which Executive may be entitled upon
termination of employment other than pursuant to Section 10
hereof, or a reduction in the payments and benefits specified
in Section 10 below zero.
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11. INDEMNIFICATION AND LIABILITY INSURANCE.
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a. INDEMNIFICATION. The Bank and Company agree to
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indemnify Executive (and his heirs, executors, and
administrators) under this Agreement, and to advance
expenses related to this indemnification, to the
fullest extent permitted under applicable law and
regulations against any and all expenses and
liabilities that Executive reasonably incurs in
connection with or arising out of any action, suit,
or proceeding in which he becomes involved by reason
of his service as an Executive of the Bank and the
Company (whether or not Executive continues to serve
as an Executive at the time of incurring the expenses
or liabilities). Covered expenses and liabilities
include, without limitation, judgments, court costs,
attorneys' fees and the costs of reasonable
settlements (subject to Board approval), provided
legal action is brought against Executive in his
capacity as an Executive of the Bank, the Company or
any of its subsidiaries. Indemnification for expenses
shall not extend to matters related to Executive's
termination for "Cause." Notwithstanding anything in
this Section 11(a) to the contrary, the Bank and the
Company shall not be required to provide any
indemnification otherwise prohibited by applicable
law or regulation. The obligations of this Section
11(a) shall survive the term of this Agreement
(including extensions thereof) by a period of six (6)
years.
b. INSURANCE. During the period in which the Bank and
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the Company must indemnify Executive, the Bank and
the Company, at its expense, will arrange for
Executive's coverage (and his heirs, executors, and
administrators) under a directors' and executives'
liability policy at least equivalent to the insurance
coverage provided to directors and other senior
executives of the Bank and the Company.
12. REIMBURSEMENT OF EXECUTIVE'S EXPENSES TO ENFORCE THIS
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AGREEMENT. The Bank will reimburse Executive for all out-of-pocket expenses,
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including, without limitation, reasonable attorneys' fees, that Executive incurs
in connection with his successful enforcement of the Bank's obligations under
this Agreement. Successful enforcement shall mean the grant of an award of money
or the requirement that the Bank take some action specified by this Agreement:
as a result of court order; or otherwise following an initial failure by the
Bank to pay such money or take such action promptly following receipt of a
written demand from Executive stating the reason that the Bank must make payment
or take action under this Agreement.
13. INJUNCTIVE RELIEF. Upon a breach or threatened breach of the
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prohibitions upon disclosure contained in Section 9(c) of this Agreement, the
parties agree that there is no adequate remedy at law for such breach, and the
Bank shall be entitled to injunctive relief restraining Executive from such
breach or threatened breach, but such relief shall not be the exclusive remedy
for a breach of this Agreement. The parties to this Agreement further agree that
Executive, without limitation, may seek injunctive relief to enforce the Bank's
obligations under this Agreement.
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14. SOURCE OF PAYMENTS. All payments provided for in this
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Agreement shall be timely paid in cash or check from the general funds of the
Bank or the Company.
15. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
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benefit of and be binding upon any corporate or other successor of the Bank and
the Company which shall acquire, directly or indirectly, by merger,
consolidation, purchase or otherwise, all or substantially all of the assets or
stock of the Company. Since the Bank and the Company have contracted for the
unique and personal skills of Executive, Executive shall not assign or delegate
his rights or duties hereunder without first obtaining the written consent of
the Bank and the Company.
16. NO MITIGATION. Executive shall not be required to mitigate the
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amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no payment under this Agreement shall be offset or reduced by
any compensation or benefits provided to Executive in any subsequent employment.
17. NOTICES. All notices, requests, demands and other
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communications made in connection with this Agreement shall be made in writing
and shall be deemed to have been given when delivered by hand or 48 hours after
mailing at any general or branch United States Post Office, by registered or
certified mail, postage prepaid, addressed to the Bank at its principal business
office and to Executive at his home address as maintained in the records of the
Bank.
18. NO PLAN CREATED BY THIS AGREEMENT. Executive, the Bank and the
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Company expressly declare and agree that this Agreement was negotiated between
them and that no provision or provisions of this Agreement are intended to, or
shall be deemed to, create any plan for purposes of the Employee Retirement
Income Security Act or any other law or regulation, and each party expressly
waives any right to assert the contrary. Any party who makes such an assertion
in any judicial or administrative filing, hearing, or process shall have
materially breached this Agreement upon making the assertion.
19. AMENDMENTS. No amendments or additions to this Agreement will
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bind the parties unless made in writing and signed by all of the parties, except
as herein otherwise specifically provided.
20. APPLICABLE LAW. Except to the extent preempted by federal law,
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Pennsylvania law shall govern this Agreement in all respects, whether as to its
validity, construction, capacity, performance or otherwise.
21. SEVERABILITY. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions of this Agreement.
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22. HEADINGS. Headings contained in this Agreement are for
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convenience of reference only.
23. ENTIRE AGREEMENT. This Agreement, together with any
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understanding or modifications agreed to in writing by the parties, shall
constitute the entire agreement among the parties hereto with respect to the
subject matter of this Agreement, other than written agreements with respect to
specific plans, programs or arrangements described in Sections 5 and 6.
24. REQUIRED PROVISIONS. In the event any of the foregoing
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provisions of this Agreement are in conflict with the terms of this Section 24,
this Section 24 shall prevail.
a. The Board may terminate Executive's employment at any
time, but any termination by the Board, 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 10 of this Agreement.
b. If Executive is suspended from office and/or
temporarily prohibited from participating in the
conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or 8(g)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. Sec. 1818(e)(3) or
(g)(1), the Bank's obligations under this 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 contract obligations were
suspended; and (ii) reinstate (in whole or in part)
any of the obligations which were suspended.
c. If Executive is removed and/or permanently prohibited
from participating in the conduct of the Bank's
affairs by an order issued under Section 8(e)(4) or
8(g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. Sec. 1818(e)(4) or (g)(1), all obligations of
the Bank under this Agreement shall terminate as of
the effective date of the order, but vested rights of
the contracting parties shall not be affected.
d. If the Bank is in default as defined in Section
3(x)(1) of the Federal Deposit Insurance Act, 12
U.S.C. Sec. 1813(x)(1), all obligations of the Bank
under this 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 institution: (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
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Federal Deposit Insurance Act, 12 U.S.C. Sec.
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. Sec.
1828(k) and 12 C.F.R. Sec. 545.121 and any rules and
regulations promulgated thereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
Attest: FIRST FEDERAL SAVINGS BANK
/s/ XxXxxxx Xxxxx, III By: /s/ Xxxx X. XxXxxxxx
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Attest: FEDFIRST FINANCIAL CORPORATION
/s/ XxXxxxx Xxxxx, III By: /s/ Xxxx X. XxXxxxxx
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EXECUTIVE
/s/ XxXxxxx Xxxxx, III /s/ Xxxx X. Xxxxxxxx
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Witness Xxxx X. Xxxxxxxx
