TWO-YEAR EMPLOYMENT AGREEMENT (EQUITABLE FINANCIAL CORP./EQUITABLE BANK)
TWO-YEAR
EMPLOYMENT AGREEMENT
(EQUITABLE
FINANCIAL CORP./EQUITABLE BANK)
THIS
AGREEMENT
(the
“Agreement”), made this 30th
day of
January, 2006, by and among EQUITABLE
FINANCIAL CORP.,
a
federally chartered corporation (the
“Company”) EQUITABLE
BANK, a
federally-chartered savings bank (the
“Bank”), and
XXXXX X. XXXXXXX (“Executive”).
W
I T N E S S E T H
WHEREAS,
Executive serves in a position of substantial responsibility;
WHEREAS,
the
Company and the Bank wish to assure the services of Executive for the period
provided in this Agreement; and
WHEREAS,
Executive is willing to serve in the employ of the Bank on a full-time basis
for
said period.
NOW,
THEREFORE,
in
consideration of the mutual covenants herein contained, and upon the other
terms
and conditions hereinafter provided, the parties hereby agree as
follows:
1.
Employment.
Executive
is employed as the Senior Vice President and Chief Investment Officer of the
Company and the Bank. Executive shall perform all duties and shall have all
powers which are commonly incident to the office of Senior Vice President or
which, consistent with those offices, are delegated to him by the Board of
Directors of the Bank or the Company or the Executive’s immediate supervisor.
2.
Location
and Facilities.
The
Executive will be furnished with the working facilities and staff customary
for
executive officers with the title and duties set forth in Section 1 and as
are
necessary for him to perform his duties. The location of such facilities and
staff shall be at the principal administrative offices of the Company and the
Bank, or at such other site or sites customary for such offices.
3.
Term.
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a.
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The
term of this Agreement shall be (i) the initial term, consisting
of the
period commencing on the date of this Agreement (the “Effective Date”) and
ending on the second anniversary of the Effective Date, plus (ii)
any and
all extensions of the initial term made pursuant to this Section
3.
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b.
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Commencing
on the first year anniversary date of this Agreement, and continuing
on
each anniversary thereafter, the disinterested members of the boards
of
directors of the Bank and the Company may extend the Agreement an
additional year such that the remaining term of the Agreement shall
be
twenty-four (24) months, unless Executive elects not to extend the
term of
this Agreement by giving written notice in accordance with Section
19 of
this Agreement. The Board of Directors of the Bank and the Company
(the
“Boards”) will review the Agreement and Executive’s performance annually
for purposes of determining whether to extend the Agreement and the
rationale and results thereof shall be included in the minutes of
the
Board’s meeting. The Executive shall receive notice as soon as possible
after such review as to whether the Agreement is to be
extended.
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4.
Commissions.
The
Company, the Bank and Executive have agreed to the commission schedule attached
as Exhibit A to this Agreement.
5.
Bonuses.
The
Executive shall be entitled to participate in discretionary bonuses or other
incentive compensation programs that the Company and the Bank may award from
time to time to senior management employees pursuant to bonus plans or
otherwise.
6.
Benefit
Plans.
The
Executive shall be entitled to participate in such life insurance, medical,
dental, pension, profit sharing, retirement and stock-based compensation plans
and other programs and arrangements as may be approved from time to time by
the
Company and the Bank for the benefit of their employees.
7.
Vacation
and Leave.
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a.
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The
Executive shall be entitled to vacation and other leave in accordance
with
policy for senior executives, or otherwise as approved by the
Boards.
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b.
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In
addition to paid vacation and other leave, the Executive shall be
entitled, without loss of pay, to absent himself voluntarily from
the
performance of his employment for such additional periods of time
and for
such valid and legitimate reasons as the Boards may in their discretion
determine. Further, the Boards may grant to the Executive a leave
or
leaves of absence, with or without pay, at such time or times and
upon
such terms and conditions as the Boards in their discretion may
determine.
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8.
Expense
Payments and Reimbursements.
The
Executive shall be reimbursed for all reasonable out-of-pocket business expenses
that he shall incur in connection with his services under this Agreement upon
substantiation of such expenses in accordance with applicable policies of the
Company and the Bank.
9.
Reserved
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10.
Loyalty
and Confidentiality.
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a.
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During
the term of this Agreement Executive: (i) shall devote all his time,
attention, skill, and efforts to the faithful performance of his
duties
hereunder; provided, however, that from time to time, Executive may
serve
on the boards of directors of, and hold any other offices or positions
in,
companies or organizations which will not present any conflict of
interest
with the Company and the Bank or any of their subsidiaries or affiliates,
unfavorably affect the performance of Executive’s duties pursuant to this
Agreement, or violate any applicable statute or regulation and (ii)
shall
not engage in any business or activity contrary to the business affairs
or
interests of the Company and the
Bank.
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b.
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Nothing
contained in this Agreement shall prevent or limit Executive’s right to
invest in the capital stock or other securities of any business dissimilar
from that of the Company and the Bank, or, solely as a passive, minority
investor, in any business.
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c.
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Executive
agrees to maintain the confidentiality of any and all information
concerning the operation or financial status of the Company and the
Bank;
the names or addresses of any of its borrowers, depositors and other
customers; any information concerning or obtained from such customers;
and
any other information concerning the Company and the Bank to which
he may
be exposed during the course of his employment. The Executive further
agrees that, unless required by law or specifically permitted by
the Board
in writing, he will not disclose to any person or entity, either
during or
subsequent to his employment, any of the above-mentioned information
which
is not generally known to the public, nor shall he employ such information
in any way other than for the benefit of the Company and the
Bank.
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11.
Termination
and Termination Pay.
Subject
to Section 12 of this Agreement, Executive’s employment under this Agreement may
be terminated in the following circumstances:
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a.
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Death.
Executive’s employment under this Agreement shall terminate upon his death
during the term of this Agreement, in which event Executive’s estate shall
be entitled to receive the compensation due to the Executive through
the
last day of the calendar month in which his death
occurred.
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b.
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Retirement.
This Agreement shall be terminated upon Executive’s retirement under the
retirement benefit plan or plans in which he participates pursuant
to
Section 6 of this Agreement or
otherwise.
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c.
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Disability.
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i.
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The
Board or Executive may terminate Executive’s employment after having
determined Executive has a Disability. For purposes of this Agreement,
“Disability” means a physical or mental infirmity that impairs Executive’s
ability to substantially perform his duties under this Agreement
and that
results in Executive becoming eligible for long-term disability benefits
under any long-term disability plans of the Company and the Bank
(or, if
there are no such plans in effect, that impairs Executive’s ability to
substantially perform his duties under this Agreement for a period
of one
hundred eighty (180) consecutive days). The Board shall determine
whether
or not Executive is and continues to be permanently disabled for
purposes
of this Agreement in good faith, based upon competent medical advice
and
other factors that they reasonably believe to be relevant. As a condition
to any benefits, the Board may require Executive to submit to such
physical or mental evaluations and tests as it deems reasonably
appropriate.
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ii.
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In
the event of such Disability, Executive’s obligation to perform services
under this Agreement will terminate. The Bank will pay Executive,
as
Disability pay, an amount equal to 70% of Executive’s bi-weekly rate of
base salary in effect as of the date of his termination of employment
due
to Disability. Disability payments will be made on a monthly basis
and
will commence on the first day of the month following the effective
date
of Executive’s termination of employment for Disability and end on the
earlier of: (A) the date he returns to full-time employment at the
Bank in
the same capacity as he was employed prior to his termination for
Disability; (B) his death; or (C) upon attainment of age 65. Such
payments
shall be reduced by the amount of any short- or long-term disability
benefits payable to the Executive under any other disability programs
sponsored by the Company and the Bank. In addition, during any period
of
Executive’s Disability, Executive and his dependents shall, to the
greatest extent possible, continue to be covered under all benefit
plans
(including, without limitation, retirement plans and medical, dental
and
life insurance plans) of the Company and the Bank, in which Executive
participated prior to his Disability on the same terms as if Executive
were actively employed by the Company and the
Bank.
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d.
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Termination
for Cause.
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i.
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The
Board may, by written notice to the Executive in the form and manner
specified in this paragraph, terminate his employment at any time,
for
“Cause”. The Executive shall have no right to receive compensation or
other benefits for any period after termination for Cause. Termination
for
“Cause” shall mean termination because of, in the good faith determination
of the Board, Executive’s:
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(1)
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Personal
dishonesty;
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(2)
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Incompetence;
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(3)
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Willful
misconduct;
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(4)
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Breach
of fiduciary duty involving personal
profit;
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(5)
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Intentional
failure to perform stated duties;
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(6)
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Willful
violation of any law, rule or regulation (other than traffic violations
or
similar offenses) or a final cease-and-desist order;
or
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(7)
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Material
breach by Executive of any provision of this
Agreement.
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ii.
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Notwithstanding
the foregoing, Executive shall not be deemed to have been terminated
for
Cause by the Company and the Bank unless there shall have been delivered
to Executive a copy of a resolution duly adopted at a meeting of
such
Board where in the good faith opinion of the Board, Executive was
guilty
of the conduct described above and specifying the particulars
thereof.
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e.
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Voluntary
Termination by Executive.
In addition to his other rights to terminate under this Agreement,
Executive may voluntarily terminate employment during the term of
this
Agreement upon at least sixty (60) days prior written notice to the
Boards, in which case Executive shall receive only his compensation,
vested rights and employee benefits up to the date of his
termination.
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f.
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Without
Cause or With Good Reason.
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i.
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In
addition to termination pursuant to Sections 11(a) through 11(e)
the
Boards, may, by written notice to Executive, immediately terminate
his
employment at any time for a reason other than Cause (a termination
“Without Cause”) and Executive may, by written notice to the Boards,
immediately terminate this Agreement at any time within ninety (90)
days
following an event constituting “Good Reason” as defined below (a
termination “With Good Reason”).
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ii.
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Subject
to Section 12 of this Agreement, in the event of termination under
this
Section 11(f), Executive shall be entitled to receive his base salary
for
the remaining term of the Agreement paid in one lump sum within ten
(10)
calendar days of such termination. Also, in such event, Executive
shall,
for the remaining term of the Agreement, receive the benefits he
would
have received during the remaining term of the Agreement under any
retirement programs (whether tax-qualified or non-qualified) in which
Executive participated prior to his termination (with the amount
of the
benefits determined by reference to the benefits received by the
Executive
or accrued on his behalf under such programs during the twelve (12)
months
preceding his termination) and continue to participate in any benefit
plans of the Company or the Bank that provide health (including medical
and dental), or life insurance, or similar coverage upon terms no
less
favorable than the most favorable terms provided to senior executives
of
the Company and the Bank during such period. In the event that the
Company
and the Bank are unable to provide such coverage by reason of Executive
no
longer being an employee, the Company and the Bank shall provide
Executive
with comparable coverage on an individual policy
basis.
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iii.
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“Good
Reason” shall exist if, without Executive’s express written consent, the
Company and the Bank materially breach any of their respective obligations
under this Agreement. Without limitation, such a material breach
shall be
deemed to occur upon any of the
following:
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(1)
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A
material reduction in Executive’s responsibilities or authority in
connection with his employment with the Company or the
Bank;
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(2)
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Assignment
to Executive of duties of a non-executive nature or duties for which
he is
not reasonably equipped by his skills and
experience;
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(3)
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A
reduction in salary or benefits contrary to the terms of this Agreement,
or, following a Change in Control as defined in Section 12 of this
Agreement, any reduction in salary or material reduction in benefits
below
the amounts to which he was entitled prior to the Change in
Control;
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(4)
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Termination
of incentive and benefit plans, programs or arrangements, or reduction
of
Executive’s participation to such an extent as to materially reduce their
aggregate value below their aggregate value as of the Effective
Date;
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(5)
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A
requirement that Executive relocate his principal business office
or his
principal place of residence outside of the area consisting of a
fifty
(50) mile radius from the current main office and any branch of the
Bank,
or the assignment to Executive of duties that would reasonably require
such a relocation; or
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(6)
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Liquidation
or dissolution of the Company or the
Bank.
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iv.
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Notwithstanding
the foregoing, a reduction or elimination of the Executive’s benefits
under one or more benefit plans maintained by the Company or the
Bank as
part of a good faith, overall reduction or elimination of such plans
or
plans or benefits thereunder applicably to all participants in a
manner
that does not discriminate against Executive (except as such
discrimination may be necessary to comply with law) shall not constitute
an event of Good Reason or a material breach of this Agreement, provided
that benefits of the type or to the general extent as those offered
under
such plans prior to such reduction or elimination are not available
to
other officers of the Company and the Bank or any company that controls
either of them under a plan or plans in or under which Executive
is not
entitled to participate.
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g.
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Continuing
Covenant Not to Compete or Interfere with Relationships.
Regardless of anything herein to the contrary, following a termination
by
the Company and the Bank or Executive pursuant to Section
11(f):
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i.
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Executive’s
obligations under Section 10(c) of this Agreement will continue in
effect;
and
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ii.
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During
the period ending on the first anniversary of such termination, the
Executive shall not serve as an officer, director or employee of
any bank
holding company, bank, savings bank, savings and loan holding company,
or
mortgage company (any of which, a “Financial Institution”) which Financial
Institution offers products or services competing with those offered
by
the Bank from any office within fifty (50) miles from the main office
or
any branch of the Bank and shall not interfere with the relationship
of
the Company and the Bank and any of its employees, agents, or
representatives.
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12.
Termination
in Connection with a Change in Control.
For
purposes of this Agreement, a Change in Control means any of the following
events:
(i) Merger:
The
Company merges into or consolidates with another corporation, or merges another
corporation into the Company, and as a result less than a majority of the
combined voting power of the resulting corporation immediately after the merger
or consolidation is held by persons who were stockholders of the Company
immediately before the merger or consolidation.
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(ii) Acquisition
of Significant Share Ownership:
There
is filed or required to be filed a report on Schedule 13D or another form or
schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of
the
Securities Exchange Act of 1934, if the schedule discloses that the filing
person or persons acting in concert has or have become the beneficial owner
of
25% or more of a class of the Company’s voting securities, but this clause (b)
shall not apply to beneficial ownership of Company voting shares held in a
fiduciary capacity by an entity of which the Company directly or indirectly
beneficially owns 50% or more of its outstanding voting securities.
(iii) Change
in Board Composition:
During
any period of two consecutive years, individuals who constitute the Company’s
Board of Directors at the beginning of the two-year period cease for any reason
to constitute at least a majority of the Company’s Board of Directors; provided,
however, that for purposes of this clause (iii), each director who is first
elected by the board (or first nominated by the board for election by the
stockholders) by a vote of at least two-thirds (2/3) of the directors who were
directors at the beginning of the two-year period shall be deemed to have also
been a director at the beginning of such period; or
(iv) Sale
of Assets:
The
Company sells to a third party all or substantially all of its assets.
Notwithstanding
anything in this Agreement to the contrary, in no event shall reorganization
of
the Bank from the mutual holding company form or organization to the full stock
holding company form of organization (including the elimination of the mutual
holding company) constitute a “Change in Control” for purposes of this
Agreement.
a.
Termination.
If
within the period ending two (2) years after a Change in Control, (i) the
Company and the Bank shall terminate the Executive’s employment Without Cause,
or (ii) Executive voluntarily terminates his employment With Good Reason,
the
Company and the Bank shall, within ten calendar days of the termination
of
Executive’s employment, make a lump-sum cash payment to him equal to 2.00 times
the Executive’s average Annual Compensation over the five (5) most recently
completed calendar years ending with the year immediately preceding the
effective date of the Change in Control. In determining Executive’s average
Annual Compensation, Annual Compensation shall include base salary and
any other
taxable income, including but not limited to amounts related to the granting,
vesting or exercise of restricted stock or stock option awards, commissions,
bonuses (whether paid or accrued for the applicable period), as well as,
retirement benefits, director or committee fees and fringe benefits paid
or to
be paid to Executive or paid for Executive’s benefit during any such year,
profit sharing, employee stock ownership plan and other retirement contributions
or benefits, including to any tax-qualified plan or arrangement (whether
or not
taxable) made or accrued on behalf of Executive of such year. The cash
payment
made under this Section 12(a) shall be made in lieu of any payment also
required
under Section 11(f) of this Agreement because of a termination in such
period.
Executive’s rights under Section 11(f) are not otherwise affected by this
Section 12. Also, in such event, the Executive shall, for a twenty-four
(24) month period following his termination of employment, receive the
benefits
he would have received over such period under any retirement programs (whether
tax-qualified or nonqualified) in which the Executive participated prior
to his
termination (with the amount of the benefits determined by reference to
the
benefits received by the Executive or accrued on his behalf under such
programs
during the twelve (12) months preceding the Change in Control) and continue
to
participate in any benefit plans of the Company and the Bank that provide
health
(including medical and dental), or life insurance, or similar coverage
upon
terms no less favorable than the most favorable terms provided to senior
executives of the Bank during such period. In the event that the Company
and the
Bank are unable to provide such coverage by reason of the Executive no
longer
being an employee, the Company and the Bank shall provide the Executive
with
comparable coverage on an individual policy.
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b. The
provisions of Section 12 and Sections 14 through 25, including the defined
terms
used is such sections, shall continue in effect until the later of the
expiration of this Agreement or two (2) years following a Change in
Control.
13.
Indemnification
and Liability Insurance.
Subject
to and limited by Section 26(f) of this Agreement, the Bank and the Company
shall provide the following:
a. Indemnification.
The
Company and the Bank agree to indemnify the Executive (and his heirs, executors,
and administrators), and to advance expenses related thereto, to the fullest
extent permitted under applicable law and regulations against any and all
expenses and liabilities reasonably incurred by him in connection with
or
arising out of any action, suit, or proceeding in which he may be involved
by
reason of his having been a director or Executive of the Company, the Bank
or
any of their subsidiaries (whether or not he continues to be a director
or
Executive at the time of incurring any such expenses or liabilities) such
expenses and liabilities to include, but not be limited to, judgments,
court
costs, and attorney’s fees and the cost of reasonable settlements, such
settlements to be approved by the Board, if such action is brought against
the
Executive in his capacity as an Executive or director of the Company and
the
Bank or any of their subsidiaries. Indemnification for expense shall not
extend
to matters for which the Executive has been terminated for Cause. Nothing
contained herein shall be deemed to provide indemnification prohibited
by
applicable law or regulation. Notwithstanding anything herein to the contrary,
the obligations of this Section 13 shall survive the term of this Agreement
by a
period of six (6) years.
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b. Insurance.
During
the period in which indemnification of the Executive is required under
this
Section, the Company and the Bank shall provide the Executive (and his
heirs, executors, and administrators) with coverage under a directors’ and
Executives’ liability policy at the expense of the Company and the Bank, at
least equivalent to such coverage provided to directors and senior
Executives of the Company and the Bank.
14. Reimbursement
of Executive’s Expenses to Enforce this Agreement.
The
Company and the Bank shall reimburse the Executive for all reasonable
out-of-pocket expenses, including, without limitation, reasonable attorney’s
fees, incurred by the Executive in connection with successful enforcement by
the
Executive of the obligations of the Company and the Bank to the Executive under
this Agreement. Successful enforcement shall mean the grant of an award of
money
or the requirement that the Company and the Bank take some action specified
by
this Agreement: (i) as a result of court order; or (ii) otherwise by the Company
and the Bank following an initial failure of the Company and the Bank to pay
such money or take such action promptly after written demand therefor from
the
Executive stating the reason that such money or action was due under this
Agreement at or prior to the time of such demand.
15. Limitation
of Benefits under Certain Circumstances.
If
the
payments and benefits pursuant to Section 12 of this Agreement, either alone
or
together with other payments and benefits which the Executive has the right
to
receive from the Company and the Bank, would constitute a “parachute payment”
under Section 280G of the Code, the payments and benefits pursuant to Section
12
shall be reduced or revised, in the manner determined by the Executive, by
the
amount, if any, which is the minimum necessary to result in no portion of the
payments and benefits under Section 12 being non-deductible to the Company
and
the Bank pursuant to Section 280G of the Code and subject to the excise tax
imposed under Section 4999 of the Code. The determination of any reduction
in
the payments and benefits to be made pursuant to Section 12 shall be based
upon the opinion of the Company and the Bank’s independent public accountants
and paid for by the Company and the Bank. In the event that the Company, the
Bank and/or the Executive do not agree with the opinion of such counsel, (i)
the
Company and the Bank shall pay to the Executive the maximum amount of payments
and benefits pursuant to Section 12, as selected by the Executive, which such
opinion indicates there is a high probability of such payments and benefits
being deductible to the Company and the Bank and not subject to the imposition
of the excise tax imposed under Section 4999 of the Code and (ii) the Company
and the Bank may request, and the Executive shall have the right to demand
that
they request, a ruling from the IRS as to whether the disputed payments and
benefits pursuant to Section 12 have such consequences. Any such request for
a
ruling from the IRS shall be promptly prepared and filed by the Company and
the
Bank, but in no event later than thirty (30) days from the date of the opinion
of counsel referred to above, and shall be subject to the Executive’s approval
prior to filing, which shall not be unreasonably withheld. The Company, the
Bank
and the Executive agree to be bound by any ruling received from the IRS and
to
make appropriate payments to each other to reflect any such rulings, together
with interest at the applicable federal rate provided for in Section 7872(f)(2)
of the Code.
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16. Injunctive
Relief.
If
there
is a breach or threatened breach of Section 11(g) of this Agreement or the
prohibitions upon disclosure contained in Section 10(c) of this Agreement,
the
parties agree that there is no adequate remedy at law for such breach, and
that
the Company and the Bank shall be entitled to injunctive relief restraining
the
Executive from such breach or threatened breach, but such relief shall not
be
the exclusive remedy hereunder for such breach. The parties hereto likewise
agree that the Executive, without limitation, shall be entitled to injunctive
relief to enforce the obligations of the Company and the Bank under this
Agreement.
17. Successors
and Assigns.
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This
Agreement shall inure to the benefit of and be binding upon any corporate
or other successor of the Company and the Bank which shall acquire,
directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the
Company
and the Bank.
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Since
the Company and the Bank are contracting for the unique and personal
skills of Executive, Executive shall be precluded from assigning
or
delegating his rights or duties hereunder without first obtaining
the
written consent of the Company and the
Bank.
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18. No
Mitigation.
Executive
shall not be required to mitigate the amount of any payment provided for in
this
Agreement by seeking other employment or otherwise and no such payment shall
be
offset or reduced by the amount of any compensation or benefits provided to
Executive in any subsequent employment.
19. Notices.
All
notices, requests, demands and other communications in connection with this
Agreement shall be made in writing and shall be deemed to have been given when
delivered by hand or 48 hours after mailing at any general or branch United
States Post Office, by registered or certified mail, postage prepaid, addressed
to the Company and/or the Bank at their principal business offices and to
Executive at his home address as maintained in the records of the Company and
the Bank.
20. No
Plan Created by this Agreement.
Executive,
the Company and the Bank expressly declare and agree that this Agreement
was
negotiated among them and that no provision or provisions of this Agreement
are
intended to, or shall be deemed to, create any plan for purposes of the Employee
Retirement Income Security Act or any other law or regulation, and each party
expressly waives any right to assert the contrary. Any assertion in any judicial
or administrative filing, hearing, or process that such a plan was so created
by
this Agreement shall be deemed a material breach of this Agreement by the
party
making such an assertion.
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21. Amendments.
No
amendments or additions to this Agreement shall be binding unless made in
writing and signed by all of the parties, except as herein otherwise
specifically provided.
22. Applicable
Law.
Except
to the extent preempted by Federal law, the laws of the State of Nebraska shall
govern this Agreement in all respects, whether as to its validity, construction,
capacity, performance or otherwise.
23. 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.
24. Headings. Headings contained herein are for convenience of reference only.
25. Entire
Agreement.
This
Agreement, together with any understanding or modifications thereof as agreed
to
in writing by the parties, shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof, other than written
agreements with respect to specific plans, programs or arrangements described
in
Sections 5 and 6.
26. Required
Provisions.
In the
event any of the foregoing provisions of this Section 26 are in conflict with
the terms of this Agreement, this Section 26 shall prevail.
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a.
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The
Bank’s board of directors may terminate Executive’s employment at any
time, but any termination by the Bank, other than Termination for
Cause,
shall not prejudice Executive’s right to compensation or other benefits
under this Agreement. Executive shall not have the right to receive
compensation or other benefits for any period after Termination for
Cause
as defined in Section 11(d)
hereinabove.
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b.
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If
Executive is suspended from office and/or temporarily prohibited
from
participating in the conduct of the Bank’s affairs by a notice served
under Section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance
Act, 12
U.S.C. §1818(e)(3) or (g)(1); the Bank’s obligations under this contract
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank
may in
its discretion: (i) pay Executive all or part of the compensation
withheld
while their contract obligations were suspended; and (ii) reinstate
(in
whole or in part) any of the obligations which were
suspended.
|
|
c.
|
If
Executive is removed and/or permanently prohibited from participating
in
the conduct of the Bank’s affairs by an order issued under Section 8(e)(4)
or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. §1818(e)(4) or
(g)(1), all obligations of the Bank under this contract shall terminate
as
of the effective date of the order, but vested rights of the contracting
parties shall not be affected.
|
12
|
d.
|
If
the Bank is in default as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. §1813(x)(1) all obligations of the Bank
under this contract shall terminate as of the date of default, but
this
paragraph shall not affect any vested rights of the contracting
parties.
|
|
e.
|
All
obligations under this contract shall be terminated, except to the
extent
determined that continuation of the contract is necessary for the
continued operation of the Bank: (i) by the Director of the OTS (or
his
designee), at the time the FDIC enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained
in
Section 13(c) of the Federal Deposit Insurance Act, 12 U.S.C. §1823(c); or
(ii) by the Director of the OTS (or his designee) at the time the
Director
(or his designee) approves a supervisory merger to resolve problems
related to the operations of the Bank or when the Bank is determined
by
the Director to be in an unsafe or unsound condition. Any rights
of the
parties that have already vested, however, shall not be affected
by such
action.
|
|
f.
|
Any
payments made to employees pursuant to this Agreement, or otherwise,
are
subject to and conditioned upon their compliance with 12 U.S.C.
§1828(k) and FDIC regulation 12 C.F.R. Part 359, Golden Parachute
and
Indemnification Payments.
|
13
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement on the date first set forth
above.
|
Attest:
|
EQUITABLE FINANCIAL
CORP.
|
||
| /s/ Xxxxxx Xxxxx Xxxxxx |
By:
|
/s/ H. Xxxxxxxx Xxxxxx | |
|
|
H. Xxxxxxxx Xxxxxx |
||
| on behalf of the Board of Directors | |||
|
Attest:
|
EQUITABLE
BANK
|
||
| /s/ Xxxxxx Xxxxx Xxxxxx |
By:
|
/s/ H. Xxxxxxxx Xxxxxx | |
|
|
H. Xxxxxxxx Xxxxxx |
||
| on behalf of the Board of Directors | |||
|
Witness:
|
EXECUTIVE
|
||
| /s/ Xxxxxx Xxxxxxx |
|
/s/ Xxxxx X. Xxxxxxx | |
|
|
Xxxxx X. Xxxxxxx |
||
14
