EXHIBIT 10.9
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT ("Agreement") is made and entered into
as of this 18th day of September, 2007, but effective as of January 16,
2007, by and between MFB FINANCIAL, a federally chartered savings association
whose address is 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
(which, together with any successor thereto which executes and delivers the
assumption agreement provided for in Section 12(a) hereof or which otherwise
becomes bound by the terms and provisions of this Agreement by operation of law,
is hereinafter referred to as the "Bank"), and XXXXX X. XXXXXXX III, whose
residence address is 00000 Xxxxxx Xxx Xxxx, Xxxxxxx, Xxxxxxx 00000
(the "Employee").
WHEREAS, the Employee is currently serving as Executive Vice President
and Director of Wealth Management of the Bank; and
WHEREAS, the Bank is a wholly-owned subsidiary of MFB Corp., a publicly
traded corporation organized under Indiana law (the "Holding Company"); and
WHEREAS, the Board of Directors of the Bank recognizes that, as is the
case with publicly held corporations generally, the possibility of a change in
control of the Holding Company may exist and that such possibility, and the
uncertainty and questions which it may raise among management, may result in the
departure or distraction of key management personnel to the detriment of the
Bank, the Holding Company and its shareholders; and
WHEREAS, the Board of Directors of the Bank believes it is in the best
interests of the Bank to enter into this Agreement with the Employee in order to
assure continuity of management of the Bank and to reinforce and encourage the
continued attention and dedication of the Employee to his or her assigned duties
without distraction in the face of potentially disruptive circumstances arising
from the possibility of a change in control of the Holding Company, although no
such change is now contemplated;
WHEREAS, a Special Termination Agreement dated as of January 16, 2007,
between the Bank and Employee needs to be revised to address certain tax changes
made under Section 409A of the Internal Revenue Code of 1986, as amended, and
the parties wish to restate that agreement to make such changes; and
WHEREAS, the Board of Directors of the Bank has approved and authorized
the execution of this Agreement with the Employee to take effect as stated in
Section 1 hereof;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, it is agreed as
follows:
1. TERM OF AGREEMENT. The term of this Agreement shall be deemed
to have commenced as of January 16, 2007 (the "Effective
Date") and shall continue until the anniversary of the
Effective Date. Prior to that anniversary date and at each
anniversary date thereafter, the Board of Directors may review
this Agreement and, in its discretion, authorize extension
thereof for an additional one-year period.
2. PAYMENTS TO THE EMPLOYEE UPON CHANGE IN CONTROL.
(a) Upon the occurrence of a change in control of the Bank or the
Holding Company (as herein defined) at any time during the
term of this Agreement followed within 12 months by the
involuntary termination of the Employee's employment with the
Bank, whether or not such termination occurs during the term
of this Agreement, the provisions of Section 3 shall apply.
(b) A "change in control" shall mean any of the following:
(i) a change in the ownership of the Bank or the Holding Company, which
shall occur on the date that any one person, or more than one person
acting as a group, acquires ownership of stock of the Bank or the
Holding Company that, together with stock held by such person or
group, constitutes more than fifty percent (50%) of the total fair
market value or total voting power of the stock of the Bank or the
Holding Company. Such acquisition may occur as a result of a merger
of the Holding Company or the Bank into another entity which pays
consideration for the shares of capital stock of the Holding Company
or the Bank in the merger. However, if any one person, or more
than one person acting as a group, is considered to own more than
fifty percent (50%) of the total fair market value or total voting
power of the stock of the Bank or the Holding Company, the
acquisition of additional stock by the same person or persons is not
considered to cause a change in the ownership of the Bank or the
Holding Company (or to cause a change in the effective control of
the Bank or the Holding Company (within the meaning of subsection
(ii)). An increase in the percentage of stock owned by any one
person, or persons acting as a group, as a result of a transaction
in which the Bank or the Holding Company acquires its stock in
exchange for property will be treated as an acquisition of stock for
purposes of this subsection. This subsection applies only when
there is a transfer of stock of the Bank or the Holding Company
(or issuance of stock of the Bank or the Holding Company) and
stock in the Bank or the Holding Company remains outstanding after
the transaction.
(ii) a change in the effective control of the Bank or the Holding
Company, which shall occur only on either of the following
dates:
a) the date any one person, or more than one person acting as a
group acquires (or has acquired during the 12 month period
ending on the date of the most recent acquisition by such
person or persons) ownership of stock of the Bank or the
Holding Company possessing thirty percent (30%) or more of the
total voting power of the stock of the Bank or the Holding
Company.
b) the date a majority of members of the Holding Company's board
of directors is replaced during any 12 month period by
directors whose appointment or election is not endorsed by a
majority of the members of the Holding Company's board of
directors before the date of the appointment or election;
provided, however, that this provision shall not apply if
another corporation is a majority shareholder of the Holding
Company.
If any one person, or more than one person acting as a group,
is considered to effectively control the Bank or the Holding
Company, the acquisition of additional control of the Bank or
the Holding Company by the same person or persons is not
considered to cause a change in the effective control of the
Bank or the Holding Company (or to cause a change in the
ownership of the Bank or the Holding Company within the
meaning of subsection (i) of this section).
(iii) a change in the ownership of a substantial portion of the Bank's
assets, which shall occur on the date that any one person,
or more than one person acting as a group, acquires (or has acquired
during the 12 month period ending on the date of the most recent
acquisition by such person or persons) assets from the Bank that have
a total gross fair market value equal to or more than forty
percent (40%) of the total gross fair market value of all of the
assets of the Bank immediately before such acquisition or
acquisitions. For this purpose, gross fair market value means the
value of the assets of the Bank, or the value of the assets being
disposed of, determined without regard to any liabilities associated
with such assets. No change in control event occurs under this
subsection (iii) when there is a transfer to an entity that is
controlled by the shareholders of the Bank immediately after the
transfer. A transfer of assets by the Bank is not treated as a
change in the ownership of such assets if the assets are
transferred to -
a) a shareholder of the Bank (immediately before the asset
transfer) in exchange for or with respect to its stock;
b) an entity, 50 percent or more of the total value or voting
power of which is owned, directly or indirectly, by the Bank.
c) a person, or more than one person acting as a group, that
owns, directly or indirectly, 50 percent or more of the total
value or voting power of all the outstanding stock of the
Bank; or
d) an entity, at least 50 percent of the total value or voting
power of which is owned, directly or indirectly, by a person
described in paragraph (iii).
For purposes of this subsection (iii) and except as otherwise
provided in paragraph 1) above, a person's status is
determined immediately after the transfer of the assets.
(iv) For purposes of this section, persons will not be considered to be acting
as a group solely because they purchase or own stock of the same corporation
at the same time, or as a result of the same public offering. Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the Bank or the Holding Company; provided,
however, that they will not be considered to be acting as a group if they are
owners of a corporation that merges into the Bank or the Holding Company where
the Bank or the Holding Company is the surviving corporation.
(c) The Employee's employment under this Agreement may be terminated at any time
by the Board of Directors of the Bank. If the Employee's employment is
terminated for any reason prior to a change in control, no benefits shall be
payable under this Agreement.
(d) The Employee's employment under this Agreement may be terminated at any time
by the Board of Directors of the Bank. The terms "involuntary termination" or
"involuntarily terminated" in this Agreement shall refer to the termination of
the employment of Employee without his or her express written consent. In
addition, a material diminution of or interference with the Employee's duties,
responsibilities and benefits shall be deemed and shall constitute an
involuntary termination of employment to the same extent as express notice of
such involuntary termination. By way of example and not by way of limitation,
any of the following actions, if unreasonable and materially adverse to the
Employee, shall constitute such diminution or interference unless consented to
in writing by the Employee: (1) the requirement that the Employee perform his
or her principal employment duties more than thirty-five (35) miles from his
or her primary office as of the date of the change in control; (2) a material
reduction in the Employee's salary, perquisites, contingent benefits or
vacation time as in effect on the date of the change in control as the same
may be changed by mutual agreement from time to time, unless part of an
institution-wide reduction; (3) the assignment to the Employee of duties and
responsibilities materially different from those normally associated with his
or her position as referenced in this Agreement; or (4) a material diminution
or reduction in the Employee's responsibilities or authority (including
reporting responsibilities) in connection with his or her employment with the
Bank.
3. PAYMENTS UPON A CHANGE IN CONTROL.
(a) If during the term of this Agreement there is a change in control of the
Bank or the Holding Company, and within 12 months following such change in
control there is an involuntary termination of the Employee's employment with
the Bank, whether or not such termination occurs during the term of this
Agreement, the Bank shall pay to the Employee in a lump sum
in cash within 25 business days after the date of severance of employment an
amount equal to 100 percent of the Employee's "base amount" of compensation,
as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as
amended ("Code").
(b) If during the term of this Agreement there is a change in control, and
within 12 months following such change in control there is an involuntary
termination of the Employee's employment, whether or not such termination
occurs during the term of this Agreement, the Bank shall cause to be continued
life, health and disability coverage substantially identical to the coverage
maintained by the Bank for the Employee prior to his severance. Subject to
applicable federal and state laws, such coverage shall cease upon the earlier
of the Employee's obtaining similar coverage by another employer or twelve
(12) months from the date of the Employee's termination. In the event the
Employee obtains new employment and receives less coverage for life, health or
disability, the Bank shall provide coverage substantially identical to the
coverage maintained by the Bank for the Employee prior to termination for the
balance of the twelve (12) month period.
4. CERTAIN REDUCTION OF PAYMENTS BY THE BANK.
(a) Anything in this Agreement to the contrary notwithstanding, in the event it
shall be determined that any payment or distribution by the Bank to or for the
benefit of the Employee (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise) (a
"Payment") would be nondeductible (in whole or part) by the Bank for Federal
income tax purposes because of Section 280G of the Code, then the aggregate
present value of amounts payable or distributable to or for the benefit of the
Employee pursuant to this Agreement (such amounts payable or distributable
pursuant to this Agreement are hereinafter referred to as "Agreement
Payments") shall be reduced to the Reduced Amount. The "Reduced Amount" shall
be an amount, not less than zero, expressed in present value which maximizes
the aggregate present value of Agreement Payments without causing any Payment
to be nondeductible by the Bank because of Section 280G of the Code. For
purposes of this Section 4, present value shall be determined in accordance
with Section 280G(d)(4) of the Code.
(b) All determinations required to be made under this Section 4 shall be made by
the Bank's independent auditors, or at the election of such auditors by such
other firm or individuals of recognized expertise as such auditors may select
(such auditors or, if applicable, such other firm or individual, are
hereinafter referred to as the "Advisory Firm"). The Advisory Firm shall
within ten business days of the date of termination of the Employee's
employment by the Bank or the Holding Company resulting in benefit payments
hereunder (the "Date of Termination"), or at such earlier time as is requested
by the Bank, provide to both the Bank and the Employee an opinion (and
detailed supporting calculations) that the Bank has substantial authority to
deduct for federal income tax purposes the full amount of the Agreement
Payments and that the Employee has substantial authority not to report on his
or her federal income tax return any excise tax imposed by Section 4999 of the
Code with respect to the Agreement Payments. Any such determination and
opinion by the Advisory Firm shall be binding upon the Bank and the Employee.
The Employee shall determine which and how much, if any, of the Agreement
Payments shall be eliminated or reduced consistent with the requirements of
this Section 4, provided that, if the Employee does not make such
determination within ten business days of the receipt of the calculations made
by the Advisory Firm, the Bank shall elect which and how much, if any, of the
Agreement Payments shall be eliminated or reduced consistent with the
requirements of this Section 4 and shall notify the Employee promptly of such
election. Within five business days of the earlier of (i) the Bank's receipt
of the Employee's determination pursuant to the immediately preceding sentence
of this Agreement or (ii) the Bank's election in lieu of such determination,
the Bank shall pay to or distribute to or for the benefit of the Employee such
amounts as are then due the Employee under this Agreement. The Bank and the
Employee shall cooperate fully with the Advisory Firm, including without
limitation providing to the Advisory Firm all information and materials
reasonably requested by it, in connection with the making of the
determinations required under this Section 4.
(c) As a result of uncertainty in application of Section 280G of the Code at the
time of the initial determination by the Advisory Firm hereunder, it is
possible that Agreement Payments will have been made by the Bank which should
not have been made ("Overpayment") or that additional Agreement Payments will
not have been made by the Bank which should have been made ("Underpayment"),
in each case, consistent with the calculations required to be made hereunder.
In the event that the Advisory Firm, based upon the assertion by the Internal
Revenue Service against the Employee of a deficiency which the Advisory Firm
believes has a high probability of success, determines that an Overpayment has
been made, any such Overpayment paid or distributed by the Bank to or for the
benefit of Employee shall be treated for all purposes as a loan ab initio
which the Employee shall repay to the Bank together with interest at the
applicable federal rate provided for in Section 7872(f)(2) of the Code;
provided, however, that no such loan shall be deemed to have been made and no
amount shall be payable by the Employee to the Bank if and to the extent such
deemed loan and payment would not either reduce the amount on which the
Employee is subject to tax under Section 1 and Section 4999 of the Code or
generate a refund of such taxes. In the event that the Advisory Firm, based
upon controlling precedent or other substantial authority, determines that an
Underpayment has occurred, any such Underpayment shall be promptly paid by the
Bank to or for the benefit of the Employee together with interest at the
applicable federal rate provided for in Section 7872(f)(2) of the Code.
5. REQUIRED REGULATORY PROVISIONS.
(a) The Bank may terminate the Employee's employment at any time, but any
termination by the Bank on or after a change in control shall not prejudice
the Employee's right to compensation or other benefits under this Agreement.
(b) If the Employee is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S. C.
ss.1818 (e)(3) and (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 Employee 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 the obligations which were suspended.
(c) If the Employee 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 (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. ss.
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
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), all obligations under this Agreement shall terminate
as of the date of default, but this provision (d) shall not affect any vested
rights of the parties.
(e) All obligations under this Agreement may be terminated, except to the extent
determined that continuation of this Agreement is necessary for the continued
operation of the Bank: (i) by the Director of the Office of Thrift Supervision
(the "Director"), or his or her 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
Federal Deposit Insurance Act, 12 U.S.C. ss.1823(c), or (ii) by the Director,
or his or her designee, at the time the Director or his or her designee
approves a supervisory merger to resolve problems related to operation 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 any such action.
6. REINSTATEMENT OF BENEFITS UNDER SECTION 3. In the event the Employee is
suspended and/or temporarily prohibited from participating in the conduct of
the Bank's affairs by a notice described in Section 5(b) hereof (the "Notice")
during the term of this Agreement and a change in control occurs, the Bank
will assume its obligation to pay and the Employee will be entitled to receive
all of the termination benefits provided for under Section 3 of this Agreement
upon the Bank's receipt of a dismissal of charges in the Notice.
7. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS. This Agreement
contains the entire understanding between the parties hereto and supersedes
any prior agreement between the Bank and the Employee, including the Special
Termination Agreement dated January 16, 2007, between the Bank and the
Employee which shall be void and without further force and effect from and
after the date hereof.
8. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this Agreement
shall be subject to anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge, or hypothecation, or to execution, attachment,
levy, or similar process or assignment by operation of law, and any attempt,
voluntary or involuntary, to affect any such action shall be null, void, and
of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of, the
Employee, the Bank and their respective successors and assigns.
9. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument in
writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been waived,
nor shall there be any estoppel against the enforcement of any provision of
this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
10. NO MITIGATION. Except as expressly provided herein, the amount of any
payment or benefit provided for in this Agreement shall not be reduced by any
compensation earned by the Employee as the result of employment by another
employer, by retirement benefits after the date of termination or otherwise.
11. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto, and neither party
may assign or delegate any of its rights or obligations hereunder without
first obtaining the written consent of the other party; provided, however,
that the Bank will require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Bank, by an assumption
agreement in form and substance satisfactory to the Employee, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Bank would be required to perform it if no such succession or
assignment had taken place. Failure of the Bank to obtain such an assumption
agreement prior to the effectiveness of any such succession or assignment
shall be a breach of this Agreement and shall entitle the Employee to
compensation from the Bank in the same amount and on the same terms as the
compensation pursuant to Section 3 hereof. For purposes of implementing the
provisions of this Section 11(a), the date on which any such succession
becomes effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder shall inure to the
benefit of and be enforceable by the Employee's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Employee should die while any amounts would
still be payable to the Employee hereunder if the Employee had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Employee's devisee, legatee
or other designee or if there is no such designee, to the Employee's estate.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the first page of this Agreement (provided that all
notices to the Bank shall be directed to the attention of the Board of
Directors of the Bank with a copy to the Secretary of the Bank), or to such
other address as either party may have furnished to the other in writing in
accordance herewith.
13. AMENDMENTS. No amendments or additions to this Agreement shall be binding
unless in writing and signed by both parties, except as herein otherwise
provided.
14. PARAGRAPH HEADINGS. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
15. SEVERABILITY. The provisions of this Agreement shall be deemed severable and
the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the United
States to the extent applicable and otherwise by the laws of the State of
Indiana.
17. ARBITRATION. Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in accordance with
the rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitrator's award in any court having jurisdiction.
18. SPECIFIED EMPLOYEE LIMITS.
(a) To the extent the Employee is a "specified employee" (as defined below), any
payments due to the Employee upon his separation from service with the Bank
under this Agreement shall begin no sooner than six months after the
Employee's separation from service; provided, however, that any payments not
made during the six month period described in this Section 19 shall be made in
a single lump sum as soon as administratively practicable after the expiration
of such six month period; provided, further, that the six month delay required
under this Section 25(a) shall not apply to the portion of any payment
resulting from the Employee's "involuntary separation from service" (as
defined in Treasury Reg. Section 1.409A-1(n) and including a "separation from
service for good reason," as defined in Treasury Reg. Section 1.409A-1(n)(2))
that (i) is payable no later than the last day of the second year following
the year in which the separation from service occurs, and (ii) does not exceed
two times the lesser of (1) the Employee's annualized compensation for the
year prior to the year in which the separation from service occurs, or (2) the
dollar limit described in Section 401(a)(17) of the Code.
(b) To the extent any life, health, disability or other welfare benefit coverage
provided to the Employee under this Agreement would be taxable to the
Employee, the taxable amount of such coverage shall not exceed the applicable
dollar amount under Section 402(g)(1)(B) of the Code determined as of the year
in which the Employee's separation from service occurs. The intent of the
foregoing sentence is to permit the Lincoln Bancorp and the Bank to treat the
provision of such benefits as a limited payment under Treasury Reg. Section
1.409A-1(a)(9)(v)(D) so as to avoid application of the six month delay rule
for specified employees. For purposes of this Agreement, the phrase
"separation from service" shall be as defined in Treasury Reg. Section
1.409A-1(h).
(c) For purposes of this Agreement, the term "specified employee" shall have the
meaning set forth in Treasury Reg. Section 1.409A-1(i) and shall include,
without limitation, (1) an officer of the Bank or Lincoln Bancorp having
annual compensation greater than $130,000 (as adjusted for inflation under the
Code), (2) a five percent owner of the Bank or Lincoln Bancorp, or (3) a one
percent owner of the Bank or Lincoln Bancorp having annual compensation of
more than $150,000. The determination of whether the Employee is a "specified
employee" shall be made by the Bank in good faith applying the applicable
Treasury regulations.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
MFB FINANCIAL
By:
Xxxxxxx X. Xxxxxx, President
"BANK"
Xxxxx X. Xxxxxxx, III
"Employee"
The undersigned, MFB Corp., sole shareholder of Bank, agrees that if it
shall be determined for any reason that any obligation on the part of Bank to
continue to make any payments due under this Agreement to Employee is
unenforceable for any reason, Lincoln Bancorp agrees to honor the terms of this
Agreement and continue to make any such payments due hereunder to Employee or to
satisfy any such obligation pursuant to the terms of this Agreement, as though
it were the Bank hereunder.
MFB CORP.
By:
-----------------------------------------
Xxxxxxx X. Xxxxxx, President
INDS01 CVS 904287v45
