EMPLOYEE RETENTION AGREEMENT
This EMPLOYEE RETENTION AGREEMENT ("Agreement") is made and
entered into as of the 19th day of December, 1996, by and among FAIRFIELD
SAVINGS BANK, F.S.B., a savings bank organized and operating under the federal
laws of the United States and having its executive offices at 0000 XXX, Xxxx
Xxxxx, Xxxxxxxx 00000-0000 ("Bank"); BIG FOOT FINANCIAL CORP., a business
corporation organized and existing under the laws of the State of Illinois and
also having its executive offices at 0000 XXX, Xxxx Xxxxx, Xxxxxxxx 00000-0000
("Holding Company"); and XXXXXXX X. XXXXX, an individual residing at 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx 00000 ("Employee").
W I T N E S S E T H :
WHEREAS, effective as of the date of this Agreement, the Bank
has converted from a federal mutual savings bank to a federal stock savings bank
and has become a wholly-owned subsidiary of the Holding Company; and
WHEREAS, the Bank desires to secure for itself the continued
availability of the Employee's services; and
WHEREAS, the Bank recognizes that a third party may at some
time in the future pursue a Change of Control of the Bank or the Holding Company
and that this possibility may result in the departure or distraction of the
Bank's employees; and
WHEREAS, the Bank has determined that appropriate steps should
be taken to encourage the continued attention and dedication of the Bank's
employees, including the Employee, to their duties for the Bank without the
distraction that may arise from the possibility of a Change of Control of the
Bank or the Holding Company; and
WHEREAS, the Bank believes that, by assuring certain
employees, including the Employee, of reasonable financial security in the event
of a Change of Control of the Bank or the Holding Company, such employees will
be in a position to perform their duties free from financial self-interest and
in the best interests of the Bank and its shareholders; and
WHEREAS, for purposes of securing the Employee's services for
the Bank, the Board of Directors of the Bank ("Board") has authorized the proper
officers of the Bank to enter into an employee retention agreement with the
Employee on the terms and conditions set forth herein; and
WHEREAS, the Board of Directors of the Holding Company has
authorized the Holding Company to guarantee the Bank's obligations under such an
employee retention agreement; and
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WHEREAS, the Employee is willing to make the Employee's
services available to the Bank on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and obligations hereinafter set forth, the Bank, the Holding
Company and the Employee hereby agree as follows:
SECTION 1. EFFECTIVE DATE.
(a) This Agreement shall be effective as of the date first
above written and shall remain in effect during the term of this Agreement which
shall be for a period of three (3) years commencing on the date of this
Agreement, plus such extensions as are provided pursuant to section 1(b);
PROVIDED, HOWEVER, that if the term of this Agreement has not otherwise
terminated, the term of this Agreement will terminate on the date of the
Employee's termination of employment with the Bank; and PROVIDED, FURTHER, that
the obligations under section 8 of this Agreement shall survive the term of this
Agreement if payments become due hereunder.
(b) Prior to each anniversary date of this Agreement, the
Board shall consider the advisability of an extension of the term in light of
the circumstances then prevailing and may, in its discretion, approve an
extension to take effect as of the upcoming anniversary date. If an extension is
approved, the term of this Agreement shall be extended so that it will expire
three (3) years after such anniversary date.
(c) Notwithstanding anything herein contained to the contrary:
(i) the Employee's employment with the Bank may be terminated at any time,
subject to the terms and conditions of this Agreement; and (ii) nothing in this
Agreement shall mandate or prohibit a continuation of the Employee's employment
following the expiration of the Assurance Period upon such terms and conditions
as the Bank and the Employee may mutually agree upon.
SECTION 2. ASSURANCE PERIOD.
(a) The assurance period ("Assurance Period") shall be for a
period commencing on the date of a Change of Control, as defined in section 10
of this Agreement, and ending on the second (2nd) anniversary of the date on
which the Assurance Period commences, plus such extensions as are provided
pursuant to the following sentence. The Assurance Period shall be automatically
extended for one (1) additional day each day, unless either the Bank or the
Employee elects not to extend the Assurance Period further by giving written
notice to the other party, in which case the Assurance Period shall become fixed
and shall end on the second (2nd) anniversary of the date on which such written
notice is given; PROVIDED, HOWEVER, that if, following a Change of Control, the
Office of Thrift Supervision (or its successor) is the Bank's primary federal
regulator, the Agreement shall be subject to extension not more frequently than
annually and only upon review and approval of the Board.
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(b) Upon termination of the Employee's employment with the
Bank, any daily extensions provided pursuant to the preceding sentence, if not
theretofore discontinued, shall cease and the remaining unexpired Assurance
Period under this Agreement shall be a fixed period ending on the later of the
second (2nd) anniversary of the date of the Change of Control, as defined in
section 10 of this Agreement, or the second (2nd) anniversary of the date on
which the daily extensions were discontinued.
SECTION 3. DUTIES.
During the period of the Employee's employment that falls
within the Assurance Period, the Employee shall: (a) except to the extent
allowed under section 6 of this Agreement, devote her full business time and
attention (other than during holidays, vacation periods, and periods of illness,
disability or approved leave of absence) to the business and affairs of the Bank
and use her best efforts to advance the Bank's interests; (b) serve in the
position to which the Employee is appointed by the Bank, which, during the
Assurance Period, shall be the position that the Employee held on the day before
the Assurance Period commenced or any higher office at the Bank to which she may
subsequently be appointed; and (c) subject to the direction of the Board and the
By-laws of the Bank, have such functions, duties, responsibilities and authority
commonly associated with such position.
SECTION 4. COMPENSATION.
In consideration for the services rendered by the Employee
during the Assurance Period, the Bank shall pay to the Employee during the
Assurance Period a salary at an annual rate
equal to the greater of:
(a) the annual rate of salary in effect for the Employee on
the day before the Assurance Period commenced; or
(b) such higher annual rate as may be prescribed by or under
the authority of the Board;
PROVIDED, HOWEVER, that in no event shall the Employee's annual rate of salary
under this Agreement in effect at a particular time during the Assurance Period
be reduced without the Employee's prior written consent. The annual salary
payable under this section 4 shall be subject to review at least once annually
and shall be paid in accordance with the Bank's customary payroll practices.
Nothing in this section 4 shall be deemed to prevent the Employee from receiving
additional compensation other than salary for her services to the Bank, or
additional compensation for her services to the Holding Company, upon such terms
and conditions as may be prescribed by or under the authority of the Board or
the Board of Directors of the Holding Company.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
Except as otherwise provided in this Agreement, the Employee
shall, during the Assurance Period, be treated as an employee of the Bank and be
eligible to participate in and re-
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ceive benefits under any qualified or non-qualified defined benefit or defined
contribution retirement plan, group life, health (including hospitalization,
medical and major medical), dental, accident and long-term disability insurance
plans, and such other employee benefit plans and programs, including, but not
limited to, any incentive compensation plans or programs (whether or not
employee benefit plans or programs), any stock option and appreciation rights
plan, em ployee stock ownership plan and restricted stock plan, as may from time
to time be maintained by, or cover employees of, the Bank, in accordance with
the terms and conditions of such employee benefit plans and programs and
compensation plans and programs and with the Bank's customary practices.
SECTION 6. BOARD MEMBERSHIPS.
The Employee may serve as a member of the boards of directors
of such business, community and charitable organizations as she may disclose to
and as may be approved by the Board (which approval shall not be unreasonably
withheld), and she may engage in personal business and investment activities for
her own account; PROVIDED, HOWEVER, that such service and personal business and
investment activities shall not materially interfere with the performance of her
duties under this Agreement.
SECTION 7. WORKING FACILITIES AND EXPENSES.
During the Assurance Period, the Employee's principal place of
employment shall be at the Bank's executive offices at the address first above
written, or at such other location within a 25-mile radius thereof at which the
Bank shall maintain its principal executive offices, or at such other location
as the Bank and the Employee may mutually agree upon. The Bank shall provide the
Employee, at her principal place of employment, with support services and
facilities suitable to her position with the Bank and necessary or appropriate
in connection with the per formance of her assigned duties under this Agreement.
The Bank shall reimburse the Employee for her ordinary and necessary business
expenses, including, without limitation, the Employee's travel and entertainment
expenses, incurred in connection with the performance of the Employee's duties
under this Agreement, upon presentation to the Bank of an itemized account of
such expenses in such form as the Bank may reasonably require.
SECTION 8. TERMINATION OF EMPLOYMENT WITH SEVERANCE BENEFITS.
(a) In the event that the Employee's employment with the Bank
shall terminate during the Assurance Period, or prior to the commencement of the
Assurance Period but within three (3) months of and in connection with a Change
of Control as defined in section 10 of this Agreement, on account of:
(i) The Employee's voluntary resignation from employment with
the Bank within ninety (90) days following:
(A) the failure of the Bank to appoint or
re-appoint or elect or re- elect the Employee to serve in the
same position in which the Employee was
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serving on the day before the Assurance Period commenced, or a
more senior office;
(B) the expiration of a thirty (30) day period
following the date on which the Employee gives written notice
to the Bank of its material failure, whether by amendment of
the Bank's Organization Certificate or By-laws, action of the
Board or the Holding Company's stockholders or otherwise, to
vest in the Employee the functions, duties, or
responsibilities vested in the Employee on the day before the
Assurance Period commenced (or the functions, duties and
responsibilities of a more senior office to which the Employee
may be appointed), unless during such thirty (30) day period,
the Bank fully cures such failure;
(C) the failure of the Bank to cure a material breach
of this Agreement by the Bank, within thirty (30) days
following written notice from the Employee of such material
breach;
(D) a reduction in the compensation provided to the
Employee, or a material reduction in the benefits provided to
the Employee under the Bank's program of employee benefits,
compared with the compensation and benefits that were provided
to the Employee on the day before the Assurance Period
commenced;
(E) a change in the Employee's principal place of
employment outside of a 25-mile radius of her principal place
of employment immediately prior to the Change of Control that
would require a relocation of her residence in order to be
able to commute to such new place of employment within a
one-way commuting time not in excess of the greater of (I) 60
minutes or (II) the Employee's commuting time immediately
prior to such change; or
(ii) the discharge of the Employee by the Bank for any
reason other than for "cause" as provided in section 9(a);
then, subject to section 21, the Bank shall provide the benefits and pay to the
Employee the amounts provided for under section 8(b) of this Agreement;
PROVIDED, HOWEVER, that if benefits or payments become due hereunder as a result
of the Employee's termination of employment prior to the commencement of the
Assurance Period, the benefits and payments provided for under section 8(b) of
this Agreement shall be determined as though the Employee had remained in the
service of the Bank (upon the terms and conditions in effect at the time of her
actual termination of service) and had not terminated employment with the Bank
until the date on which the Employee's Assurance Period would have commenced.
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(b) Upon the termination of the Employee's employment with the
Bank under circumstances described in section 8(a) of this Agreement, the Bank
shall pay and provide to the Employee (or, in the event of the Employee's death,
to the Employee's estate):
(i) the Employee's earned but unpaid compensation (including,
without limitation, all items which constitute wages under applicable
law and the payment of which is not otherwise provided for under this
section 8(b)) as of the date of the termination of the Employee's
employment with the Bank, such payment to be made at the time and in
the manner prescribed by law applicable to the payment of wages but in
no event later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Employee is entitled
as a former employee under the employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the
Bank's officers and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long-term disability
insurance benefits, in addition to that provided pursuant to section
8(b)(ii) and after taking into account the coverage provided by any
subsequent employer, if and to the extent necessary to provide for the
Employee, for the remaining unexpired Assurance Period, coverage
equivalent to the coverage to which the Employee would have been enti
tled under such plans (as in effect on the date of her termination of
employment, or, if her termination of employment occurs after a Change
of Control, on the date of such Change of Control, whichever benefits
are greater) if the Employee had continued working for the Bank during
the remaining unexpired Assurance Period at the highest annual rate of
compensation achieved during the Employee's period of actual employment
with the Bank, it being understood that the Employee's "qualifying
event" for purposes of continuation coverage under the Consolidated
Budget Reconciliation Act ("COBRA") shall occur at the expiration of
this period;
(iv) within thirty (30) days following the Employee's
termination of employment with the Bank, a lump sum payment, in an
amount equal to the present value of the salary that the Employee would
have earned if the Employee had continued working for the Bank during
the remaining unexpired Assurance Period at the highest annual rate of
salary achieved during the Employee's period of employment with the
Bank beginning three years before the date of the Change of Control and
ending on the date of termination of employment, where such present
value is to be determined using a discount rate equal to the applicable
short-term federal rate prescribed under section 1274(d) of the
Internal Revenue Code of 1986 ("Code"), compounded using the
compounding periods corresponding to the Bank's regular payroll periods
for its employees, such lump sum to be paid in lieu of all other
payments of salary provided for under this Agreement in respect of the
period following any such termination;
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(v) within thirty (30) days following the Employee's
termination of employment with the Bank, a lump sum payment in an
amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to
which the Employee would be entitled under any and all
qualified and non-qualified defined benefit pension plans
maintained by, or covering employees of, the Bank if the
Employee were 100% vested thereunder and had continued working
for the Bank during the remaining unexpired Assurance Period,
such benefits to be determined as of the date of termination
of employment by adding to the service actually recognized
under such plans an additional period equal to the remaining
unexpired Assurance Period and by adding to the compensation
recognized under such plans for the year in which termination
of employment occurs all amounts payable under sections
8(b)(i) and (vii);
(B) the present value of the benefits to which the
Employee is actually entitled under such defined benefit
pension plans as of the date of her termination;
where such present values are to be determined using the mortality
tables prescribed under section 415(b)(2)(E)(v) of the Code and a
discount rate, compounded monthly, equal to the annualized rate of
interest prescribed by the Pension Benefit Guaranty Corporation for the
valuation of immediate annuities payable under terminating
single-employer defined benefit plans for the month in which the
Employee's termination of employment occurs ("Applicable PBGC Rate").
(vi) within thirty (30) days following her termination of
employment with the Bank, a lump sum payment in an amount equal to the
present value of the additional employer contributions (or if greater
in the case of a leveraged employee stock ownership plan or similar
arrangement, the additional assets allocable to her through debt
service, based on the fair market value of such assets at termination
of employment) to which she would have been entitled under any and all
qualified and non-qualified defined contribution plans maintained by,
or covering employees of, the Bank, as if she were 100% vested
thereunder and had continued working for the Bank during the Remaining
Unexpired Employment Period at the highest annual rate of compensation
achieved during that portion of the Employment Period which is prior to
the Employee's termination of employment with the Bank, and making the
maximum amount of employee contributions, if any, required under such
plan or plans, such present value to be determined on the basis of a
discount rate, compounded using the compounding period that corresponds
to the frequency with which employer contributions are made to the
relevant plan, equal to the Applicable PBGC Rate; and
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(vii) the payments that would have been made to the Employee
under any cash bonus or long-term or short-term cash incentive
compensation plan maintained by, or covering employees of, the Bank, if
she had continued working for the Bank during the remaining unexpired
Assurance Period and had earned in each calendar year that ends during
the remaining unexpired Assurance Period a bonus in an amount equal to
the highest annual bonus or incentive award actually paid to her in any
calendar year ending during the period beginning three years prior to
the Change of Control and ending on the date of termination of
employment.
The Bank and the Employee hereby stipulate that the damages which may be
incurred by the Employee following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 8(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to the Employee's efforts, if any, to
mitigate damages.
SECTION 9. TERMINATION WITHOUT ADDITIONAL BANK LIABILITY.
In the event that the Employee's employment with the Bank
shall terminate during the Assurance Period on account of:
(a) the discharge of the Employee for "cause," which, for
purposes of this Agreement shall mean 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 any material
breach of this Agreement, in each case as measured against standards
generally prevailing at the relevant time in the savings and community
banking industry; PROVIDED, HOWEVER, that the Employee shall not be
deemed to have been discharged for cause unless and until the following
procedures shall have been followed:
(i) the Board shall adopt a resolution duly approved
by affirmative vote of a majority of the entire Board at a
meeting called and held for such purpose calling for the
Employee's termination for cause and setting forth the
purported grounds for such termination ("Proposed Termination
Resolution");
(ii) as soon as practicable, and in any event within
five (5) days, after adoption of such resolution, the Board
shall furnish to the Employee a written notice of termination
which shall be accompanied by a certified copy of the Proposed
Termination Resolution ("Notice of Proposed Termination");
(iii) the Employee shall be afforded a reasonable
opportunity to make oral and written presentations to the
members of the Board, on her
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own behalf, or through a representative, who may be her legal
counsel, to refute the grounds set forth in the Proposed
Termination Resolution at one or more meetings of the Board to
be held no sooner than fifteen (15) days and no later than
thirty (30) after the Employee's receipt of the Proposed
Termination Notice ("Termination Hearings"); and
(iv) within ten (10) days following the end of the
Termination Hearings, the Board shall adopt a resolution duly
approved by affirmative vote of a majority of the entire Board
at a meeting called and held for such purpose (A) finding that
in the good faith opinion of the Board the grounds for
termination set forth in the Proposed Termination Resolution
exist and (B) terminating the Employee's employment
("Termination Resolution"); and
(v) as promptly as practicable, and in any event
within one (1) business day after adoption of the Termination
Resolution, the Board shall furnish to the Employee written
notice of termination, which notice shall include a copy of
the Termination Resolution and specify an effective date of
termination that is not later than the date on which such
notice is given;
(b) the Employee's voluntary resignation from employment with
the Bank for reasons other than those specified in section 8(a)(i); or
(c) the Employee's death; or
(d) a determination that the Employee is eligible for
long-term disability benefits under the Bank's long-term disability
insurance program or, if there is no such program, under the federal
Social Security Act;
then the Bank shall have no further obligations under this Agreement, other than
the payment to the Employee (or, in the event of her death, to her estate) of
her earned but unpaid salary as of the date of the termination of her
employment, and the provision of such other benefits, if any, to which the
Employee is entitled as a former employee under the employee benefit plans and
pro grams and compensation plans and programs maintained by, or covering
employees of, the Bank.
(e) For purposes of section 9(a), no act or failure to act, on
the part of Employee, shall be considered "willful" unless it is done,
or omitted to be done, by Employee in bad faith or without reasonable
belief that Employee's action or omission was in the best interests of
the Bank. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon the
written advice of counsel for the Bank shall be conclusively presumed
to be done, or omitted to be done, by Employee in good faith and in the
best interests of the Bank. The cessation of employment of Employee
shall not be deemed to be for "cause" within the meaning of section
9(a) unless and until there shall have been delivered to Employee a
copy of a resolution duly adopted by the affirmative vote of
three-fourths of the non-employee members of the Board
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at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to Employee and Employee is given an
opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, Employee is
guilty of the conduct described in section 9(a) above, and specifying
the particulars thereof in detail.
SECTION 10. CHANGE OF CONTROL.
(a) A Change of Control of the Bank ("Change of Control")
shall be deemed to have occurred upon the happening of any of the following
events:
(i) approval by the stockholders of the Bank of a transaction
that would result in the reorganization, merger or consolidation of the
Bank, respectively, with one or more other persons, other than a
transaction following which:
(A) at least 51% of the equity ownership interests of
the entity resulting from such transaction are beneficially
owned (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended ("Exchange Act"))
in substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) at least 51% of the outstanding equity ownership
interests in the Bank; and
(B) at least 51% of the securities entitled to vote
generally in the election of directors of the entity resulting
from such transaction are beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) at least 51% of the securities entitled to vote
generally in the election of directors of the Bank;
(ii) the acquisition of substantially all of the assets of the
Bank or beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of the outstanding
securities of the Bank entitled to vote generally in the election of
directors by any person or by any persons acting in concert, or
approval by the stockholders of the Bank of any transaction which would
result in an acquisition; or
(iii) a complete liquidation or dissolution of the Bank, or
approval by the stockholders of the Bank of a plan for such liquidation
or dissolution;
(iv) the occurrence of any event if, immediately following
such event, at least fifty percent (50%) of the members of the board of
directors of the Bank do not belong to any of the following groups:
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(A) individuals who were members of the board of
directors of the Bank on the date of this Agreement; or
(B) individuals who first became members of the board
of directors of the Bank after the date of this Agreement
either:
(I) upon election to serve as a member of
such board by affirmative vote of three-quarters
(3/4) of the members of such board, or a nominating
committee thereof, in office at the time of such
first election; or
(II) upon election by the stockholders of
the Bank to serve as a member of such board, but only
if nominated for election by affirmative vote of
three-quarters (3/4) of the members of such board, or
of a nominating committee thereof, in office at the
time of such first nomination;
PROVIDED, HOWEVER, that such individual's election or nomination did
not result from an actual or threatened election contest (within the
meaning of Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents
(within the meaning of Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) other than by or on behalf of the Board of the Bank;
(v) any event which would be described in section 10(a)(i),
(ii), (iii) or (iv) if the term "Holding Company" were substituted for
the term "Bank" therein.
(b) In no event, however, shall a Change of Control be deemed
to have occurred as a result of any acquisition of securities or assets of the
Holding Company, the Bank or any subsidiary of either of them, by the Holding
Company, the Bank or any subsidiary of either of them, or by any employee
benefit plan maintained by any of them. For purposes of this section 10, the
term "person" shall have the meaning assigned to it under sections 13(d)(3) or
14(d)(2) of the Exchange Act.
SECTION 11. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of the Employee's employment during the
Assurance Period or thereafter, whether by the Bank or by the Employee, shall
have no effect on the rights and obligations of the parties hereto under the
Bank's Pension Plan, group life, health (including hospitalization, medical and
major medical), dental, accident and long-term disability insurance plans or
such other employee benefit plans or programs, or compensation plans or programs
(whether or not employee benefit plans or programs) and any defined contribution
plan, employee stock ownership plan, stock option and appreciation rights plan,
and restricted stock plan, as may be maintained by, or cover employees of, the
Bank from time to time; PROVIDED, HOWEVER, that nothing in this Agreement shall
be deemed to duplicate any compensation or benefits provided
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under any agreement, plan or program covering the Employee to which the Bank or
the Holding Company is a party and any duplicative amount payable under any such
agreement, plan or program shall be applied as an offset to reduce the amounts
otherwise payable hereunder.
SECTION 12. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding
upon the Employee, her legal representatives and testate or intestate
distributees, and the Bank and the Holding Company, their respective successors
and assigns, including any successor by merger or consolidation or a statutory
receiver or any other person or firm or corporation to which all or
substantially all of the respective assets and business of the Bank or the
Holding Company may be sold or otherwise transferred.
SECTION 13. NOTICES.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to the Employee:
Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
If to the Bank:
Fairfield Savings Bank, F.S.B.
0000 XXX
Xxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: BOARD OF DIRECTORS
WITH A COPY TO:
Xxxxxxx Xxxxxxxx & Xxxx
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. XXXXXX XXXXXX, ESQ.
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If to the Holding Company:
Big Foot Financial Corp.
0000 XXX
Xxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: BOARD OF DIRECTORS
WITH A COPY TO:
Xxxxxxx Xxxxxxxx & Xxxx
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. XXXXXX XXXXXX, ESQ.
SECTION 14. INDEMNIFICATION AND ATTORNEYS' FEES.
The Bank shall indemnify, hold harmless and defend the
Employee against rea sonable costs, including legal fees, incurred by the
Employee in connection with or arising out of any action, suit or proceeding in
which the Employee may be involved, as a result of the Employee's efforts, in
good faith, to defend or enforce the terms of this Agreement; provided, however,
that the Employee shall have substantially prevailed on the merits pursuant to a
judgment, decree or order of a court of competent jurisdiction or of an
arbitrator in an arbitration proceeding, or in a settlement. For purposes of
this Agreement, any settlement agreement which provides for payment of any
amounts in settlement of the Bank's obligations hereunder shall be conclusive
evidence of the Employee's entitlement to indemnification hereunder, and any
such indemnification payments shall be in addition to amounts payable pursuant
to such settlement agreement, unless such settlement agreement expressly
provides otherwise. This provision shall be inoperative if and to the extent
that, but only if and to the extent that, it shall be determined that compliance
herewith would violate any applicable law or regulation.
SECTION 15. SEVERABILITY.
A determination that any provision of this Agreement is
invalid or unenforceable shall not affect the validity or enforceability of any
other provision hereof.
SECTION 16. WAIVER.
Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right
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or power hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 17. COUNTERPARTS.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
SECTION 18. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced
in accordance with the federal laws of the United States, and in the absence of
controlling federal law, the laws of the State of Illinois, without reference to
conflicts of law principles.
SECTION 19. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience
of reference only and are not intended to qualify the meaning of any section.
Any reference to a section number shall refer to a section of this Agreement,
unless otherwise stated.
SECTION 20. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes in its entirety any and
all prior agreements, understandings or rep resentations relating to the subject
matter hereof. No modifications of this Agreement shall be
valid unless made in writing and signed by the parties hereto.
SECTION 21. REQUIRED REGULATORY PROVISIONS.
The following provisions are included for the purposes of
complying with various laws, rules and regulations applicable to the Bank:
(a) Notwithstanding anything herein contained to the contrary,
in no event shall the aggregate amount of compensation payable to the
Employee under section 8(b) hereof (exclusive of amounts described in
section 8(b)(i)) exceed the lesser of (i) three times the Employee's
average annual total compensation for the last five consecutive
calendar years to end prior to her termination of employment with the
Bank (or for her entire period of employment with the Bank if less than
five calendar years) and (ii) the maximum amount that may be paid
without producing an "excess parachute payment" (as such term is
defined in section 280G of the Code or any successor provision), the
applicability of such provision to the Employee and any such maximum
amount to be determined in good faith by the firm of independent
certified public accountants regularly retained to audit the Bank's
books and records.
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(b) Notwithstanding anything herein contained to the contrary,
any payments to the Employee by the Bank, whether pursuant to this
Agreement or otherwise, are subject to and conditioned upon their
compliance with section 18(k) of the Federal Deposit Insurance Act
("FDI Act"), 12 U.S.C. ss.1828(k), and any regulations promulgated
thereunder.
(c) Notwithstanding anything herein contained to the
contrary, if the Employee is suspended from office and/or temporarily
prohibited from participating in the conduct of the affairs of the
Bank pursuant to a notice served under section 8(e)(3) or 8(g)(1) of
the FDI Act, 12 U.S.C. ss.1818(e)(3) or 1818(g)(1), the Bank's
obligations under this Agreement shall be suspended as of the date of
service of such notice, unless stayed by appropriate proceedings. If
the charges in such notice are dismissed, the Bank, in its discretion,
may (i) pay to the Employee all or part of the compensation withheld
while the Bank's obligations hereunder were suspended and (ii)
reinstate, in whole or in part, any of the obligations which were
suspended.
(d) Notwithstanding anything herein contained to the contrary,
if the Employee 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 FDI Act, 12 U.S.C.
ss.1818(e)(4) or (g)(1), all prospective obligations of the Bank under
this Agreement shall terminate as of the effective date of the order,
but vested rights and obligations of the Bank and the Employee shall
not be affected.
(e) Notwithstanding anything herein contained to the contrary,
if the Bank is in default (within the meaning of section 3(x)(1) of the
FDI Act, 12 U.S.C. ss.1813(x)(1), all prospective obligations of the
Bank under this Agreement shall terminate as of the date of default,
but vested rights and obligations of the Bank and the Employee shall
not be affected.
(f) Notwithstanding anything herein contained to the contrary,
all prospective obligations of the Bank hereunder shall be terminated,
except to the extent that a continuation of this Agreement is necessary
for the continued operation of the Bank: (i) by the Director of the
Office of Thrift Supervision ("OTS") or his designee, at the time the
Federal Deposit Insurance Corporation enters into an agreement to
provide assistance to or on behalf of the Bank under the authority
contained in section 13(c) of the FDI Act, 12 U.S.C. ss.1823(c); (ii)
by the Director of the OTS or his designee at the time such Director or
designee approves a supervisory merger to resolve problems related to
the operation of the Bank or when the Bank is determined by such
Director to be in an unsafe or unsound condition. The vested rights and
obligations of the parties shall not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
Page 15 of 17
SECTION 22. GUARANTY.
The Holding Company hereby irrevocably and unconditionally
guarantees to the Employee the payment of all amounts, and the performance of
all other obligations, due from the Bank in accordance with the terms of this
Agreement as and when due without any requirement of presentment, demand of
payment, protest or notice of dishonor or nonpayment.
IN WITNESS WHEREOF, the Bank and the Holding Company have
caused this Agreement to be executed and the Employee has hereunto set her hand,
all as of the day and year first above written.
---------------------------------
ATTEST:
By
Secretary By
---------------------------------
NAME: XXXXXX X. BRIOSY
[Seal] TITLE: PRESIDENT
ATTEST: BIG FOOT FINANCIAL CORP.
By____________________
Secretary By
---------------------------------
NAME: XXXXXX X. XXXXXX
[Seal] TITLE: PRESIDENT
Page 16 of 17
STATE OF ILLINOIS )
: ss.:
COUNTY OF )
On this day of , 19__, before me personally came ____________
_______________________________________________________________ to me known,
and known to me to be the individual described in the foregoing instrument, who,
being by me duly sworn, did depose and say that she resides at the address set
forth in said instrument, and that she signed her name to the foregoing
instrument.
------------------------------------
Notary Public
STATE OF ILLINOIS )
: ss.:
COUNTY OF )
On this day of , 19__, before me personally came XXXXXX X.
XXXXXX, to me known, who, being by me duly sworn, did depose and say that he
resides at 0000 Xxxx Xxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000, that he is
President of Fairfield Savings Bank, F.S.B., the savings bank described in and
which executed the foregoing instrument; that he knows the seal of said savings
bank; that the seal affixed to said instrument is such seal; that it was so
affixed by authority of the Board of Directors of said savings bank; and that he
signed his name thereto by like authority.
------------------------------------
Notary Public
STATE OF ILLINOIS )
: ss.:
COUNTY OF )
On this day of , 19__, before me personally came XXXXXX X.
XXXXXX, to me known, who, being by me duly sworn, did depose and say that he
resides at 0000 Xxxx Xxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000, that he is
President of Big Foot Financial Corp., the corporation described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such seal; that it was so affixed by
order of the Board of Directors of said corporation; and that he signed his name
thereto by like order.
------------------------------------
Notary Public
Page 17 of 17
