EXHIBIT 10
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made
and entered into as of this 21st day of November, 2002 by and between STATE
FEDERAL SAVINGS AND LOAN ASSOCIATION OF DES MOINES, (hereinafter referred to as
the "Association") and Xxxxx Xxxx (the "Employee").
WHEREAS, the Association and the Employee previously entered into that
certain Employment Agreement dated April 17, 2001 (the "Existing Employment
Agreement"); and
WHEREAS, the Association desires to continue to employ the services of
the Employee, and the Employee desires to continue to be employed by the
Association, on a part time basis, as the Chairman of the Board of Directors of
the Association; and
WHEREAS in consideration for the continued employment of the Employee,
both the Association and the Employee desire to amend and restate the Existing
Employment Agreement, on the terms and conditions set forth herein; and
WHEREAS, the Board of Directors of the Association recognizes that, as
is the case with publicly held corporations generally, the possibility of a
change in control of the Association and or its holding company, StateFed
Financial Corporation ("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 Association, the Holding Company and its stockholders; and
WHEREAS, the Board of Directors of the Association believes it is in
the best interests of the Association to enter into this Agreement with the
Employee in order to assure continuity of management of the Association and to
reinforce and encourage the continued attention and dedication of the Employee
to his 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; and
WHEREAS, the Board of Directors of the Association has approved and
authorized the execution of this Agreement with the Employee to take effect as
stated in Section 4 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. Employment. The Employee will be employed as Chairman of the Board
of the Association. As Chairman, Employee shall render administrative and
management services as are customarily performed by persons situated in similar
executive capacities, and shall have other powers and duties as may from time to
time be prescribed by the Board. The Employee shall continue to devote his best
efforts and an average minimum of 24 hours per week of his time to the business
and affairs of the Association and its subsidiaries and affiliated companies. It
is understood that not all of this time must be spent on Association premises.
2. Compensation. (a) Salary. The Association agrees to pay the Employee
during the term of this Agreement a salary established by the Board of
Directors. The salary hereunder as of the
Commencement Date (as defined in Section 4 hereof) shall begin at $64,000 per
year. As long as Employee is a member of the board of directors of the
Association and the Holding Company, Employee shall also receive board fees as
per Association and Holding Company policy and practice. The salary provided for
herein shall be payable in accordance with the practices of the Association,
provided, however, that no such salary is required to be paid by the terms of
this Agreement in respect of any month or portion thereof subsequent to the
termination of this Agreement and provided further, that the amount of such
salary shall be reviewed by the Board of Directors not less often than annually
and may be increased from time to time in such amounts as the Board of Directors
in its discretion may decide, subject to the customary withholding tax and other
employee taxes as required with respect to compensation paid by a corporation to
an employee.
(b) Discretionary Bonuses. The Board of Directors of the
Association may, in its sole and complete discretion, provide bonuses to the
Employee as additional compensation for services rendered.
(c) Expenses. During the term of his employment hereunder, the
Employee shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by him (in accordance with policies and procedures at least as
favorable to the Employee as those presently applicable to the senior executive
officers of the Association) in performing services hereunder, provided that the
Employee properly accounts therefor in accordance with Association policy.
3. Benefits. (a) Participation in Retirement and Employee Benefit
Plans. The Employee shall be entitled while employed hereunder to participate
in, and receive benefits under, all plans for which he is eligible relating to
stock options, stock purchases, pension, thrift, profit-sharing, group life
insurance, medical coverage, education, cash or stock bonuses, and other
retirement or employee benefits or combinations thereof, that are now or
hereafter maintained for the benefit of the Association's executive employees or
for its employees generally.
(b) Fringe Benefits. The Employee shall be eligible while
employed for the requisite number of hours hereunder to participate in, and
receive benefits under, any other fringe benefits which are or may become
applicable to the Association's executive employees or to its employees
generally.
4. Term. The term of employment under this Agreement shall be a period
of three (3) years commencing on April 17, 2002 (the "Commencement Date"),
subject to earlier termination as provided herein. Beginning on the first
anniversary of the Commencement Date, and on each anniversary thereafter, the
term of employment under this Agreement shall be extended for a period of one
year unless either the Association or the Employee gives contrary written notice
to the other not less than 30 days in advance of the date on which the term of
employment under this Agreement would otherwise be extended, provided that such
term will not be automatically extended unless, prior thereto, such extension is
approved by the Board of Directors following the Board's review of a formal
performance evaluation of the Employee performed by the disinterested members of
the Board of Directors of the Association and reflected in the minutes of the
Board of Directors. Reference herein to the term of employment under this
Agreement shall refer to both such initial term and such extended terms.
5. Vacations. The Employee shall be entitled, without loss of pay, to
absent himself voluntarily from the performance of his employment under this
Agreement, all such voluntary
absences to count as vacation time, provided that:
(a) the Employee shall be entitled to an annual vacation of
not more than12 days per year, pro-rated to date of employment;
(b) the timing of vacations shall be scheduled in a reasonable
manner by the Employee; and
(c) solely at the Employee's request, the Board of Directors
shall be entitled to grant to the Employee a leave or leaves of absence with or
without pay at such time or times and upon such terms and conditions as the
Board, in its sole and complete discretion, may determine.
6. Termination and Suspension of Employment; Death or Disability.
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(a) The Board of Directors may terminate the Employee's
employment at any time, but any termination by the Association's Board of
Directors, other than termination for cause, shall not prejudice the Employee's
right to compensation or other benefits under the Agreement. If the employment
of the employee is involuntarily terminated, other than for "cause" as provided
in this Section 6 (a) or pursuant to any of Sections 6 (d) through 6 (g) , or by
reason of death or disability as provided in Sections 6 (c) or 7, the Employee
shall be entitled to receive, (i) his then applicable salary for the
then-remaining term of the Agreement as calculated in accordance with Section 4
hereof, payable in such manner and at such times as such salary would have been
payable to the Employee under Section 2 had he remained in the employ of the
Association, and (ii) health insurance benefits as maintained by the Association
for the benefit of its senior executive employees or its employees generally
over the then-remaining term of the Agreement as calculated in accordance with
Section 4 hereof.
The terms "termination" or "involuntarily terminated" in this Agreement
shall refer to the termination of the employment of Employee without his express
written consent. The Employee shall be considered to be involuntarily terminated
(1) if the employment of the Employee is involuntarily terminated for any reason
other than for "cause" as provided in this Section 6(a), pursuant to any of
Sections 6(d) through 6(g) or by reason of death or disability as provided in
Sections 6(c) and 7.
In case of termination of the Employee's employment for cause, the
Association shall pay the Employee his salary through the date of termination,
and the Association shall have no further obligation to the Employee under this
Agreement. The Employee shall have no right to receive compensation or other
benefits for any period after termination for cause. For purposes of this
Agreement, termination for "cause" shall include termination because of the
Employee's personal dishonesty, incompetence, willful misconduct, breach of a
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, material breach
of any provision of this Agreement, or unsatisfactory job performance as
determined by the Board of Directors. Notwithstanding the foregoing, the
Employee shall not be deemed to have been terminated for cause unless and until
there shall have been delivered to the Employee a copy of a resolution, duly
adopted by the affirmative vote of not less than a two-thirds majority of the
disinterested members of the Board of Directors of the Association at a meeting
of the Board called and held for such purpose.
(b) The Employee's employment may be voluntarily terminated by
the Employee at any time upon 60 days written notice to the Association or upon
such shorter period as may be agreed upon between the Employee and the Board of
Directors of the Association. In the event of such voluntary termination, the
Association shall be obligated to continue to pay the Employee his salary only
through the date of termination, at the time such payments are due, and the
Association shall have no further obligation to the Employee under this
Agreement.
(c) In the event of the death of the Employee during the term
of employment under this Agreement and prior to any termination hereunder, the
Employee's estate, or such person as the Employee may have previously designated
in writing, shall be entitled to receive from the Association the salary of the
Employee through the last day of the calendar month in which his death shall
have occurred, and the term of employment under this Agreement shall end on such
last day of the month.
(d) If the Employee is suspended from office and/or
temporarily prohibited from participating in the conduct of the Association's
affairs by a notice served under Section 8(e)(3) or (g) (1) of the Federal
Deposit Insurance Act (" FDIA") , 12 U.S.C. ss. 1818 (e) (3) ; (g) (1) , the
Association'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 Association 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.
(e) If the Employee is removed from office and/or permanently
prohibited from participating in the conduct of the Association's affairs by an
order issued under Section 8( e )( 4) or (g) (1) of the FDIA, 12 U. S. C. ss.
1818 (e) (4); (g) (1), all obligations of the Association under this Agreement
shall terminate, as of the effective date of the order, but vested rights of the
parties shall not be affected.
(f) If the Association becomes in default (as defined in
Section 3(x) of the FDIA, 12 U.S.C. ss. 1813(x)(1), all obligations under this
Agreement shall terminate as of the date of default, but this provision shall
not affect any vested rights of the parties.
(g) All obligations under this Agreement shall be terminated,
except to the extent determined that continuation of this Agreement is necessary
for the continued operation of the Association: (i) by the Director of the
Office of Thrift Supervision ("OTS") 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 Association under the authority contained in
Section 13(c) of the FDIA, 12 U.S.C. ss. 1823(c); or (ii) by the Director of the
OTS or his or her designee at the time the Director of the OTS or his or her
designee approves a supervisory merger to resolve problems related to operation
of the Association or when the Association is determined by the Director of the
OTS 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.
(h) In the event the Association purports to terminate the
Employee for cause, but it
is determined by a court of competent jurisdiction or by an arbitrator pursuant
to Section 17 that cause did not exist for such termination, or if in any event
it is determined by any such court or arbitrator that the Association has failed
to, make timely payment of any amounts owed to the Employee under this
Agreement, the Employee shall be entitled to reimbursement for all reasonable
costs, including attorneys' fees, incurred in challenging such termination or
collecting such amounts. Such reimbursement shall be in addition to all rights
to which the Employee is otherwise entitled under this Agreement.
7. Disability. If during the term of employment hereunder the Employee
shall become disabled or incapacitated to the extent that he is unable to
perform the duties of the Chairman of the Board, he shall be entitled to receive
disability benefits of the type provided for other executive employees of the
Association.
8. Change in Control.
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(a) Involuntary Termination. If the Employee's employment is
involuntarily terminated (other than for cause or pursuant to any of Sections
6(c) through 6(g) of Section 7 of this Agreement) in connection with or within
12 months after a change in control (as hereinafter defined) which occurs at any
time during the term of employment under this Agreement, in addition to any
payments under Section 6 (a) of the Agreement, the Association shall pay to the
Employee in a lump sum in cash within 25 business days after the Date of
Termination (as hereinafter defined) of employment an amount equal to 3 times
the sum of (1) the Employee's then applicable annual salary, as described in
Section 2(a) of the Agreement, and (2) the most recent bonus paid to the
Employee under Section 2(b) of the Agreement.
(b) Voluntary Termination. If the Employee voluntarily
terminates his employment hereunder within a 60-day period beginning 3 months
after the consummation of the change in control described in Section 8(a) of the
Agreement, the Employee shall be entitled to receive the payment set forth in
Section 8(a) of the Agreement.
(c) Definitions. For purposes of Section 8, 9 and 11 of this
Agreement, "Date of Termination" means the earlier of (i) the date upon which
the Association gives notice to the Employee of the termination of his
employment with the Association, or (ii) the date upon which the Employee ceases
to serve as an Employee of the Association; and "change in control", is defined
solely as any acquisition of control (other than by a trustee or other fiduciary
holding securities under An employee benefit plan of the Holding Company or a
subsidiary of the Holding Company), as defined in 12 C.F.R. ss. 574.4, or any
successor regulation, of the Association or Holding Company which would require
the filing of an application for acquisition of control or notice of change in
control in a manner as set forth in 12 C.F.R. ss. 574.3, or any successor
regulation.
9. Certain Reduction of Payments by the Association. (a) Anything in
this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the Association 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 Association 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
Association because of Section 280G of the Code. For purposes of this Section 9,
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
9 shall be made by the Association'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, or at such
earlier time as is requested by the Association, provide to both the Association
and the Employee an opinion (and detailed supporting calculations) that the
Association 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 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
Association 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 9, 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 Association shall elect which and how much, if
any, of the Agreement Payments shall be eliminated or reduced consistent with
the requirements of this Section 9 and shall notify the Employee promptly of
such election. Within five business days of the earlier of (i) the Association's
receipt of, the Employee's determination pursuant to the immediately preceding
sentence of this Agreement or (ii) the Association's election in lieu of such
determination, the Association 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 Association 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 9.
(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
Association which should not have been made ("Overpayment") or that additional
Agreement Payments will not have been made by the Association 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 Association 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 Association 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 Association 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 preceding or other substantial
authority, determines that an Underpayment has occurred, any such Underpayment
shall be promptly paid by the Association 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.
(d) The total of payments to the Employee in the event of
involuntary termination of employment under Section 6 (a) and Section 8 (a)
shall not exceed three times his average annual compensation from the
Association over the five most recent taxable years (or, if employed by the
Association for a shorter period, over the period of his employment by the
Association).
(e) Any payments made to the Employee pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with 12 U.S.C. 1828(k) and any regulations promulgated thereunder.
10. Non-competition.
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(a) Upon the expiration of the term of the Employee's
employment hereunder or in the event the Employee's employment hereunder
terminates prior thereto for any reason whatsoever, the Employee shall not, for
a period of two year( s) after the occurrence of such event, for himself, or as
the agent of, on behalf of, or in conjunction with, any person or entity,
solicit or attempt to solicit, whether directly or indirectly: (i) any employee
of the Association to terminate such employee's employment relationship with the
Association; or (ii) any savings and loan, banking or similar business from any
person or entity that is or was a client, employee, or customer of the
Association and had dealt with the Employee or any other employee of the
Association under the supervision of the Employee.
(b) In the event Employee voluntarily resigns pursuant to
Section 6(b) of this Agreement, or in the event the Employee's employment
hereunder is terminated for cause, the Employee shall not, for a period of one
year from the date of termination, directly or indirectly, own, manage, operate
or control, or participate in the ownership, management, operation or control
of, or be employed by or connected in any manner with, any FDIC insured
financial institution having an office located within fifty miles of any office
of the Association as of the date of termination, provided that, nothing in this
paragraph 10 shall prevent Employee from engaging solely as an independent
contractor in a consulting capacity with any FDIC insured financial institution
so long as he is not also involved in the ownership, management, ongoing daily
operations, or control of such institution.
(c) The provisions of subsections (a) and (b) hereof shall not
prevent the Employee from purchasing, solely for investment, not more than five
percent (5%) of any financial institution's stock or other securities which are
traded on any national or regional securities exchange or are actively traded in
the over-the-counter market and registered under Section 12(g) of the Securities
Exchange Act of 1934.
(d) The provisions of this Section shall survive the
termination of the Employee's employment hereunder whether by expiration of the
term thereof or otherwise.
(e) In the event of a violation of (a) or (b) above, the
Employee acknowledges that the Association would suffer irreparable harm from
such violations and that the Association is entitled to equitable relief, in
addition to any remedies that may otherwise be available. Further, the
Association is entitled to reasonable attorneys' fees and costs in connection
with any action in which its rights under (a) or (b) above are enforced in any
court of competent jurisdiction.
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 Association 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
Association, 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 Association would be required to
perform it if no such succession or assignment had taken place. Failure of the
Association 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 Association in the same amount and
on the same terms as the compensation pursuant to Section 8(a) 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 Association shall be directed to the attention of the Board of
Directors of the Association with a copy to the Secretary of the Association),
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 part 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
Iowa.
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. Entire Agreement. This Employment Agreement represents the entire
agreement of the parties and supercedes any other oral agreements or
understandings. The Employee has not relied on any promises or inducements other
than those expressly contained in this Employment Agreement in connection with
the execution of this Employment Agreement.
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.
EMPLOYEE STATE FEDERAL SAVINGS AND LOAN
ASSOCIATION OF DES MOINES
/s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxx Its: State Federal Savings and Loan
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Association of Des Moines Director
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