EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
this 30th day of June, 1993, by and between MIDLAND FEDERAL SAVINGS AND LOAN
ASSOCIATION, a federally chartered savings and loan association (which, together
with any successor thereto which executes and delivers the assumption agreement
provided for in Section 11(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 "Association"), and Xxxxxxx Xxxxx (the "Employee") whose
residence address is 00 Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000.
WHEREAS, the Employee is currently serving as a Director, and the Chief
Operations Officer of the Association; and
WHEREAS, the Association has adopted a plan of conversion whereby the
Association will convert to capital stock form; 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 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 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
1
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 Association, 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 is employed as the Chief Operations
Officer, of the Association with supervision and control of, under the direction
of the Chief Executive Officer of the Association, and with such other powers
and duties as may from time to time be prescribed by the Board, provided that
such duties are consistent with the Employee's position as Chief Operations
Officer. The Employee shall continue to devote his best efforts to the business
and affairs of the Association and its subsidiaries and affiliated companies.
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 be equal to the Employee's
2
salary as in effect immediately prior to such date. The Employee's salary shall
be payable not less frequently than bi-weekly and not later than the seventh day
following the expiration of the bi- weekly payment period in question. The
amount of the Employee's salary shall be reviewed by the Board of Directors not
less often than annually, beginning not later than the date one year after the
Commencement Date (as defined in Section 4 hereof). Any adjustments in salary or
other compensation shall in no way limit or reduce any other obligation of the
Association hereunder. The Employee's salary in effect hereunder from time to
time shall not thereafter be reduced.
(b) Discretionary Bonuses. The Employee shall be entitled to
participate in an equitable manner with all other executive officers of the
Association in discretionary bonuses as authorized and declared by the Board of
Directors of the Association to its executive employees. No other compensation
provided for in this Agreement shall be deemed a substitute for the Employee's
right to participate in such bonuses when and as declared by the Board of
Directors.
(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,
3
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 relating to pension, thrift, profit-sharing,
group life insurance, medical coverage, education, cash bonuses, and other
retirement or employee benefits or combinations thereof, that are maintained for
the benefit of the Association's executive employees or for its employees
generally which benefits, taken as a whole, must be at least as favorable as
those in effect at the time of conversion (including those adopted in
conversion). In addition, the Employee shall be entitled to be considered for
benefits under all of the stock and stock option related plans adopted for the
benefit of the Association's executive or other employees.
(b) Fringe Benefits. The Employee shall be eligible while
employed 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 one year commencing on the date of completion of the Conversion (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
4
term of employment under this Agreement shall be extended for a period of one
year in addition to the then-remaining term of employment under this Agreement,
unless either the Association or the Employee gives contrary written notice to
the other not less than 120 days in advance of the date on which the term of
employment under this Agreement would otherwise be extended.
Notwithstanding any other statement or provision in this Agreement to
the contrary, this Agreement will not be automatically extended unless, prior
thereto, the Board of Directors of the Association reviews a formal performance
evaluation (which evaluation shall take place at least 120 days prior to each
anniversary date of the contract) 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; Sick Leave. 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 or
sick leave, as appropriate, provided that:
(a) During the term of employment under this Agreement, the
Employee shall be entitled to paid vacation and sick leave in accordance with
the plans, policies, programs or practices of the Association and its affiliated
companies as in effect for the Employee at any time during the six-month period
immediately
5
preceding the Commencement Date or, if such plans, policies, programs or
practices are modified in the future so as to be more favorable to the Employee,
as in effect at such future time with respect to other senior executives of the
Association and its affiliated companies; and
(b) The timing of vacations shall be scheduled in a reasonable
manner by the Employee.
6. Termination of Employment; Death.
(a) The Association's 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 this Agreement. If the
employment of the Employee is involuntarily terminated, other than for "cause"
as provided in this Section 6(a) or by reason of death or disability as provided
in Sections 6(c) or 7, the Association shall pay the Employee his salary and
provide to the Employee the same insurance benefits as he was receiving before
the date of termination through the remaining term of this Agreement plus
accrued vacation time.
The terms "termination" or "involuntarily terminated" in this Agreement
shall refer to the termination of the employment of Employee without his express
written consent.
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. For purposes of
6
this Agreement, termination for "cause" shall include termination for 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, or material breach of any
provision of this Agreement. 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 majority of the entire membership of the
Board of Directors of the Association at a meeting of the Board called and held
for such purpose (after reasonable notice to the Employee and an opportunity for
the Employee, together with the Employee's counsel, to be heard before the
Board), stating that in the good faith opinion of the Board the Employee was
guilty of conduct constituting "cause" as set forth above and specifying the
particulars thereof in detail.
(b) The Employee's employment may be voluntarily terminated by
the Employee at any time upon 90 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, except
as provided in Section 8 below, the Association shall be obligated to continue
to pay the Employee his salary and benefits only through the date of termination
plus accrued vacation time, at the time
7
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 for a 30 day period after the date of death.
(d) If the Employee is suspended 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) and (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 its obligations which were
suspended.
(e) If the Employee is removed 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) or
(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 contracting
parties shall not be affected.
8
(f) If the Association is in default (as defined in Section
3(x)(1) of the FDIA, all obligations under this Agreement shall terminate as of
the date of default, but this provision shall not affect any vested rights of
the contracting 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 (the "Director") or his or her designee, at the
time the Federal Deposit Insurance Corporation ("FDIC") or the Resolution Trust
Corporation ("RTC") 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; 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 Association or when the Association 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.
(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 18 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
9
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 the Employee shall become disabled as defined in the
Association's then current disability plan or if the Employee shall be otherwise
physically unable to serve as Chief Operations Officer, the Employee shall be
entitled to receive group and other disability income benefits of the type then
provided by the Association for other executive employees, including without
limitation supplementary disability income benefits relating to the difference
in monthly benefits provided under its disability plan and the Employee's salary
at the time of such disability. In the event of such disability, this Agreement
shall not be suspended. However, the Association shall be obligated to pay the
Employee compensation pursuant to Sections 2(a) and (b) hereof only to the
extent the Employee's salary would exceed the disability income benefits
received pursuant to this paragraph. In addition, the Association shall have the
right, upon resolution of its Board, to discontinue paying cash compensation
pursuant to Sections 2(a) and (b) beginning six months following a determination
that Employee qualifies for the foregoing disability income benefits.
8. Change in Control.
(a) Termination. If the Employee's employment is involuntarily
terminated (other than for cause or pursuant to any
10
of Sections 6(c) through 6(g) or Section 7 of this Agreement) in connection with
or within 12 months after a change in control which occurs at any time during
the term of employment under this Agreement, the Employee shall be entitled to
the benefits provided below:
(i) The Association shall pay the Employee his salary in
accordance with Section 2 for the remaining term of employment under
this Agreement; plus
(ii) 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 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");
plus
(iii) The Association shall continue to provide the Employee
with health benefits in accordance with Section 6 for the remaining
term of employment under this Agreement.
Notwithstanding any other provision or statement herein to the contrary, the
amounts payable to the Employee pursuant to subsec tions (i) and (ii) above,
shall be limited, if necessary, such that these amounts will not exceed three
times the Employee's annual compensation or be nondeductible by the Association
for Federal income tax purposes pursuant to Section 280G of the Code.
(b) Definitions. For purposes of Section 8, 9 and 12 of this
Agreement, "Date of Termination" means the earlier of (i) the date upon which
the Association gives notice to the Employee of the
11
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 as any acquisition of control (other than pursuant to the
Conversion or by a trustee or other fiduciary holding securities under an
employee benefit plan of the Association or a subsidiary of the Association or
any company created by the Association to be its holding company), as defined in
12 C.F.R. ss. 574.4, or any successor regulation, of the Association or 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.
(c) Medical, Health, Disability and Life Insurance Benefits.
Notwithstanding any other provision in this agreement, in the event that the
employment of the Employee is terminated after a change in control (unless the
Employee is terminated for cause), beginning as of the last day on which the
Employee is afforded medical, dental, health, disability and life insurance
benefits under Section 3 and/or 8 of this agreement, the Employee shall be
entitled to purchase from the Association, on a monthly basis for a period of up
to five years, medical, health and/or life insurance benefits of the same type
then available to the Association's executive employees at an annualized price
equal to the product of (i) a fraction of the numerator of which is one and the
denominator of which is the number of the Association's employees at the end of
the year and (ii) the Association's total annual cost for all employees for such
benefits.
12
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
13
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
14
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 precedent or other substantial
authority, determines that an Underpayment has occurred, any such Underpayment
15
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.
10. Confidential Information; Loyalty; Noncompetition (a) During the
term of the Employee's employment hereunder and thereafter, the Employee shall
not, except as may be required to perform his duties hereunder or as required by
law, disclose to others or use, whether directly or indirectly, any Confidential
Information. "Confidential Information" means information about the Association
and the Association's clients and customers which is not available to the
general public and was or shall be learned by the Employee in the course of his
employment by the Association, including without limitation any data, formulae,
information, proprietary knowledge, trade secrets, credit reports and analyses
owned, developed and used in the course of the business of the Association,
including client and customer lists and information related thereto; and all
papers, records and other documents (and all copies thereof) containing such
Confidential Information. The Employee acknowledges that such Confidential
Information is specialized, unique in nature and of great value to the
Association. The Employee agrees that upon the expiration of the Employee's term
of employment hereunder or in the event the Employee's employment hereunder is
terminated prior thereto for any reason whatsoever, the Employee will promptly
deliver to the Association all documents (and all copies thereof) containing any
Confidential Information.
16
(b) The Employee shall use his best efforts in the performance
of his employment under this Agreement; provided, however, that the Employee may
serve, without compensation, as a director of charitable, community and industry
organizations and, with compensation, as a director of the business corporations
to the extent such directorships do not inhibit the performance of his duties
thereunder or conflict with the business of the Association. During the term of
the Employee's employment hereunder, the Employee shall not engage in any
business or activity contrary to the business affairs or interests of the
Association.
(c) 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 one year 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.
(d) In the event Employee voluntarily resigns pursuant to
Section 6(b) of this Agreement, the Employee shall not for a period of one year
from the effective date of such resignation, or
17
in the event the Employee's employment hereunder is terminated, the Employee
shall not, for a period equal to the lesser of one year from the date of
termination or the period during which the Association is obligated to continue
to pay the Employee his salary, 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 financial institution
having an office located within three miles of any office of the Association as
of the date of termination.
(e) The provisions of this Section 10 shall not prevent the
Employee from purchasing, solely for investment, not more than 5 percent of any
financial institution's stock or other securities which are traded on any
national or regional securities.
(f) The provisions of this Section shall survive the
termination of the Employee's employment hereunder whether by expiration of the
term thereof or otherwise.
11. No Mitigation. The Employee shall not be required to mitigate the
amount of any salary or other payment or benefit provided for in this Agreement
by seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for in this Agreement 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; provided however, that the
amount of salary payments made to the Employee pursuant to Section 2(a) of this
contract shall be reduced
18
by the salary payments paid to the Employee during the term of this contract
from any other full time employer.
12. 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
19
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.
13. 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.
14. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
15. 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.
16. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any
20
provision shall not affect the validity or enforceability of the other
provisions hereof.
17. 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
Illinois.
18. 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.
21
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.
MIDLAND FEDERAL SAVINGS AND LOAN
ASSOCIATION
By: ________________
EMPLOYEE
/s/Xxxxxxx Xxxxx
----------------
XXXXXXX XXXXX
