CHANGE OF CONTROL AND NON-COMPETE AGREEMENT
Exhibit 10.4
CHANGE OF CONTROL AND NON-COMPETE AGREEMENT
THIS CHANGE OF CONTROL AND NON-COMPETE AGREEMENT (this “Agreement”) is entered into as of the 16th day of March, 2018, by and between First Federal Bank of the Midwest, a federal savings bank (the “Company”), and Xxxxxxx X. Xxxxx, an individual (the “Employee”).
WITNESSETH:
WHEREAS, the Employee is currently employed by the Company;
WHEREAS, as a result of the skill, knowledge and experience of the Employee, the Company believes it is in the best interest of the Company to provide the Employee with a sense of security to encourage the Employee to remain an employee of the Company; and
WHEREAS, the Employee is currently covered by an employment agreement dated September 27, 2007 (the “Employment Agreement”) which is currently scheduled to expire on December 31, 2019;
WHEREAS, the Company and the Employee desire to enter into this Agreement, to be effective as of the expiration of the Employment Agreement, provided that Employee is actively employed by the Company at that time, to set forth their understanding as to their respective rights and obligations in the event of the termination of Employee's employment under the circumstances set forth in this Agreement;
WHEREAS, the Company and Employee wish to document the Employee’s consent to Employee’s transfer to a new position with the Company on the terms set forth in Exhibit A and to acknowledge that the change in Employee’s role and compensation shall not constitute “good reason” under sections 1(j) and 5(d) of the Employment Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the Company and the Employee hereby agree as follows:
1. Term. The term of this Agreement shall begin upon expiration of the Employment Agreement, provided that Employee is actively employed by the Company at that time, and shall continue through December 31, 2020, unless sooner terminated for Just Cause, as defined in this Agreement. This Agreement shall automatically renew for additional one year periods following the original term, at the end of each subsequent one year period, upon the same terms and conditions unless the Company provides at least 30 days prior notice of its intent not to renew.
2. Termination of Employment.
(a) Termination by the Company in Connection with a Change of Control. In the event that the employment of the Employee is terminated by the Company, or its successors or assigns, at any time during the term of this Agreement for any reason other than Just Cause within six months prior to a Change of Control (hereinafter defined) or within one year after a Change of Control and provided that Employee has executed a Release pursuant to Section 2(g) below, then the following shall occur:
(i) The Company shall promptly pay to the Employee or to his beneficiaries, dependents or estate an amount equal to two times the Employee's current annual base salary and two times the Employee’s five year average annual short term cash bonus;
(ii) The Company shall pay the premiums required to maintain coverage for the Employee and his eligible dependents under the health insurance plan of the Employer in which the Employee is a participant immediately prior to the Change of Control of the Company in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, until the earliest of (A) the first anniversary of the termination of the Employee's employment or (B) the date on which the Employee is eligible to participate in another employer’s comparable health insurance plan as a full-time employee; and
(iii) The Employee shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall any amounts received from other employment or otherwise by the Employee offset in any manner the obligations of the Company hereunder, except as specifically stated in clause (ii) above.
For purposes of this Agreement, the term “Just Cause” 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 material breach of any provision of this Agreement. For purposes of this paragraph, no act or failure to act on the Employee’s part shall be considered “willful” unless done, or omitted to be done, by the Employee not in good faith and without reasonable belief that the Employee’s action or omission was in the best interest of the Company.
(b) Termination by the Employee in Connection with a Change of Control. The Employee may voluntarily terminate the Employee's employment pursuant to this Agreement within twelve months following a Change of Control and shall be entitled to compensation as set forth in Section 2(a) of this Agreement in the event that, without the Employee’s express written consent, there is:
(i) an assignment by the Company to the Employee of any duties that are materially inconsistent with his positions, duties, responsibilities and status with the Company immediately prior to such Change of Control;
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(ii) a material change in the Employee’s reporting responsibilities, titles or offices as an employee and as in effect immediately prior to such a Change of Control; or
(iii) a removal of the Employee from or a failure to re-elect the Employee to the office of Market Area Executive of the Company, except in connection with Just Cause, or the Employee’s death;
(iv) a reduction by the Company in the Employee’s base salary, as in effect immediately prior to the Change of Control;
(v) a relocation of the principal executive office of the Company outside of the Fort Xxxxx, Indiana area or, a requirement that the Employee be based anywhere other than an area in which the Company’s principal executive office is located, except for required travel on business of the Company to an extent substantially consistent with the Employee’s present business travel obligations;
(vi) a failure by the Company to provide the Employee with the same fringe benefits that were provided to the Employee immediately prior to a Change of Control, or with a package of fringe benefits (including paid vacations) that, though one or more of such benefits may vary from those in effect immediately prior to such Change of Control, is substantially comparable in all material respects to such fringe benefits taken as a whole;
(vii) a failure by the Company to obtain the assumption of and agreement to perform this Agreement by any successor as contemplated in Section 7 hereof; or
(viii) a failure by the Company to comply with any material provision of this Agreement.
(c) In the event that payments pursuant to this Agreement, either alone or together with any other payments that are made by the Company to the Employee, would constitute a “parachute payment” within the meaning of Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder (“Section 280G”), or would result in the imposition of a penalty tax pursuant to Section 280G, such payments shall be reduced to the maximum amount that may be paid under Section 280G without exceeding such limits. In the event a reduction in payments is necessary in order to comply with the requirements of this Agreement relating to the limitations of Section 280G or applicable banking regulatory limits, then such reductions shall be applied based on the following principles, in order: (i) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (ii) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (iii) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro-rata among the payments or benefits otherwise due or payable (on the basis of the relative present value of the parachute payments).
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(d) Death of the Employee. This Agreement shall automatically terminate upon the death of the Employee.
(e) “Golden Parachute” Provision. Any payments made to the Employee pursuant to this Agreement or otherwise are subject to and conditioned upon compliance with 12 U.S.C. §1828(k) and any regulations promulgated thereunder.
(f) Definition of “Change of Control”. A “Change of Control” shall have the meaning set forth in Section 409A(a)(2)(A)(v) of the Code.
(g) As a condition to receiving any payments under Section 2 of this Agreement, the Employee shall agree to release the Companies and all of their affiliates and subsidiaries, employees, directors and successors (the “Released Parties”) from any and all claims that the Employee may have against the Released Parties through the date of such release (the “Release”) in a form similar to the attached Exhibit B, and no payments shall be made under Section 2 until such Release has become irrevocable, effective and enforceable. In the event that the release execution period spans two tax years, no amount will be payable under Section 2 until the second tax year.
3. Confidential Information. The Employee acknowledges that the Employee has learned and has access to confidential information regarding the Company and its customers and businesses. The Employee agrees and covenants not to disclose or use for the Employee's own benefit, or the benefit of any other person or entity, any confidential information, unless or until the Company consents to such disclosure or use or such information becomes common knowledge in the industry or is otherwise legally in the public domain. The Employee shall not knowingly disclose or reveal to any unauthorized person any confidential information relating to the Company, its parent, subsidiaries or affiliates, or to any of the businesses operated by them, and the Employee confirms that such information constitutes the exclusive property of the Company. The Employee shall not otherwise knowingly act (a) to the material detriment of the Company, its subsidiaries, or affiliates, or (b) in a manner which is inimical or contrary to the interests of the Company.
4. Nonassignability. Neither this Agreement nor any right or interest hereunder shall be assignable by the Employee, the Employee's beneficiaries or legal representatives without the Company's prior written consent; provided, however, that nothing in this Section 4 shall preclude (a) the Employee from designating a beneficiary to receive any benefits which were payable hereunder prior to the Employee's death, or (b) the executors, administrators, or other legal representatives of the Employee or the Employee's estate from assigning any rights hereunder to the person or persons entitled thereto. The Company may assign this Agreement and Company’s rights hereunder in whole, but not in part, to any entity with or into which either Company may hereafter merge or consolidate or to which the Company may transfer all or substantially all of its assets, provided that the assignee assumes all of the Company’s obligations under this Agreement, either by operation of law or by express written agreement.
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5. Non-Solicitation Provisions. If the Employee terminates his employment with the Company for any reason other than in accordance with Section 2(b) of this Agreement, the Employee agrees that, for a period of 12 months following the termination of the Employee's employment, the Employee shall not (i) either as principal, agent, owner, shareholder or investor of more than 3% of the stock, officer, director, partner, lender, independent contractor, consultant or in any other capacity, engage in, have a financial interest in or be in any way connected or affiliated with, or render advice or services to, any person or entity that engages in any activity which would compete in any way with the business operated by the Company in the counties where they do business, or (ii) directly or indirectly, solicit, divert, take away or interfere with, or attempt to solicit, divert, take away or interfere with, the relationship of the Company or any of their subsidiaries with any person or entity who is or was a customer, or employee or supplier of the Company or any of their subsidiaries immediately prior to the date of termination. Notwithstanding the foregoing, nothing contained herein shall prevent the Employee from engaging directly or indirectly in any banking or financial industry business in a county or counties in which the Company is doing business if the only activity conducted in such county or counties is the servicing of loans.
The parties hereto acknowledge and agree that the duration and area for which the covenant not to compete and other covenants set forth in this Agreement are to be effective are fair and reasonable and are reasonably required for the protection of the Companies. In the event that any court determines that the time period or the area, or both of them, are unreasonable as to any covenant and that such covenant is to that extent unenforceable, the parties hereto agree that the covenant shall remain in full force and effect for the greatest time period and in the greatest area that would not render it unenforceable.
6. No Attachment. Except as required by law, no right to receive payment under this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge or hypothecation or to execution, attachment, levy, or similar process of assignment by operation of law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void and of no effect.
7. Binding Agreement. This Agreement shall be binding upon, and inure to the benefit of, the Employee and the Company and their respective permitted successors and assigns.
8. Amendment of Agreement. This Agreement may not be modified or amended, except by an instrument in writing signed by the parties hereto.
9. Waiver. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be an estoppel against the enforcement of any provision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver, unless specifically stated therein, and each waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than the act specifically waived.
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10. Severability. If, for any reason, any provision of this Agreement is held invalid, such invalidity shall not affect the other provisions of this Agreement not held so invalid, and each such other provision shall, to the full extent consistent with applicable law, continue in full force and effect.
11. Headings. The headings of the paragraphs herein are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement.
12. Governing Law; Regulatory Authority. This Agreement has been executed and delivered in the State of Ohio and its validity, interpretation, performance and enforcement shall be governed by the laws of the State of Ohio, except to the extent that federal law is governing. If this Agreement conflicts with any applicable federal law as now or hereafter in effect, then federal law shall govern.
13. Effect of Prior Agreements. This Agreement contains the entire understanding between the parties hereto and supersedes any prior employment agreement between the Company or any predecessor of the Company and the Employee; provided that the Employment Agreement between the Company and the Employee dated September 27, 2007 shall remain in full force and effect until the term of this Agreement begins.
14. Notices. Any notice or other communication required or permitted pursuant to this Agreement shall be deemed delivered if such notice or communication is in writing and is delivered personally or by facsimile transmission or is deposited in the United States mail, postage prepaid, addressed as follows:
If to the Company:
First Federal Bank of the Midwest.
000 Xxxxxxx Xx.
Xxxxxxxx, XX 00000
If to the Employee:
Xxxxxxx X. Xxxxx
0000 Xxxxxxxxx Xx
Xxxxxxx, XX 00000
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[signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officers, and the Employee has signed this Agreement, each as of the day and year first above written.
| Attest: | |||
| EMPLOYEE | |||
| By | /s/ Xxxxxxx X. Xxxxx | ||
| Xxxxxxx X. Xxxxx | |||
| FIRST FEDERAL BANK OF THE MIDWEST | |||
| /s/ Xxxxxxxx Xxxxxx | By | /s/ Xxxxxx X. Xxxxxxx | |
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EXHIBIT A
Terms of Employment as Market Area Executive – Fort Xxxxx
Reporting to: Xxxxxx X. Xxxxxxx, President and CEO.
Base Compensation: $8,461.53 bi-weekly; annualized at $220,000.00, with your next merit review in February 2019. Effective upon execution of this Agreement, this pay rate will be given retroactive effect to January 8, 2018 and you will be paid a lump sum payment for the retroactive increase with the first paycheck after that date.
Incentive Compensation:
| · | Annual Incentive opportunity equal to 25% of base salary upon satisfaction of pre-established performance criteria. |
| · | Commissions based on loan production and collected fees. |
| · | Transition incentive bonuses up to $60,000 payable upon satisfaction of various short-term performance goals related to the Fort Xxxxx market growth. |
| · | Annual Restricted Stock Unit grant, with a value up to 10% of base salary upon satisfaction of pre-established performance criteria and subject to 3 year cliff vesting. |
| · | Upon execution of this Agreement, a one-time Restricted Stock Unit grant for 3,000 shares of FDEF common stock, subject to 3 year cliff vesting |
Other Benefits:
| · | Company provided vehicle. |
| · | Direct payment and/or reimbursement of expenses related to membership fees for approved social or civic organizations and one country club. |
Please note that the compensation described above will be reviewed on an annual basis and is subject to change with 30 day notice.
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