FAIRFIELD SAVINGS BANK, F.S.B.
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of December 19, 1996 by and between FAIRFIELD SAVINGS BANK, F.S.B., a
savings bank organized and operating under the federal laws of the United States
and having an xxxxxx xx 0000 XXX, Xxxx Xxxxx, Xxxxxxxx 00000-0000 ("Bank") and
XXXXXX X. XXXXXX, an individual residing at 0000 Xxxx Xxxx Xxxxx, Xxxxxxx Xxxx,
Xxxxxxxx 00000 ("Executive").
W I T N E S S E T H :
WHEREAS, Executive currently serves the Bank in the capacity
of President; and
WHEREAS, effective as of the date of this Agreement, the Bank
has converted from a federal savings bank to a federal stock savings bank and
has become the wholly-owned subsidiary of Big Foot Financial Corp., a
publicly-held Illinois corporation ("Holding Company"); and
WHEREAS, the Bank desires to assure for itself the continued
availability of the Executive's services and the ability of the Executive to
perform such services with a minimum of personal distraction in the event of a
pending or threatened Change of Control (as hereinafter defined); and
WHEREAS, the Executive is willing to continue to serve the
Bank on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and conditions hereinafter set forth, the Bank and the
Executive hereby agree as follows:
SECTION 1. EMPLOYMENT.
The Bank agrees to continue to employ the Executive, and the
Executive hereby agrees to such continued employment, during the period and upon
the terms and conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED
EMPLOYMENT PERIOD.
(a) The terms and conditions of this Agreement shall be and
remain in effect during the period of employment established under this section
2 ("Employment Period"). The Employment Period shall be for an initial term of
three years beginning on the date of this Agreement. Prior to the first
anniversary of the date of this Agreement and on each anniversary date
thereafter (each, an "Anniversary Date"), the Board of Directors of the Bank
("Board") shall review the terms of this Agreement and the Executive's
performance of services hereunder and
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may, in the absence of objection from the Executive, approve an extension of
the Employment Agreement. In such event, the Employment Agreement shall be
extended to the third anniversary of the relevant Anniversary Date.
(b) For all purposes of this Agreement, the term "Remaining
Unexpired Employment Period" as of any date shall mean the period beginning on
such date and ending on the Anniversary Date on which the Employment Period (as
extended pursuant to section 2(a) of this Agreement) is then scheduled to
expire.
(c) Nothing in this Agreement shall be deemed to prohibit the
Bank at any time from terminating the Executive's employment during the
Employment Period with or without notice for any reason; provided, however, that
the relative rights and obligations of the Bank and the Executive in the event
of any such termination shall be determined under this Agreement.
SECTION 3. DUTIES.
The Executive shall serve as President of the Bank, having
such power, authority and responsibility and performing such duties as are
prescribed by or under the By-Laws of the Bank and as are customarily associated
with such position, including, without limitation, the general direction of all
of the business and affairs of the Bank, the hiring and supervision of all
senior management personnel, and long-term strategic planning for the Bank,
including growth by merger and acquisition. The Executive shall devote his full
business time and attention (other than during holidays, approved vacation
periods, and periods of illness or approved leave of absence) to the business
and affairs of the Bank and shall use his best efforts to advance the interests
of the Bank.
SECTION 4. CASH COMPENSATION.
In consideration for the services to be rendered by the
Executive hereunder, the Bank shall pay to him a salary at an initial annual
rate of ONE HUNDRED FIFTY THOUSAND FOUR HUNDRED EIGHTY DOLLARS ($150,480.00),
payable in approximately equal installments in accordance with the Bank's
customary payroll practices for senior officers. The Board shall review the
Executive's annual rate of salary at such times as it deems appropriate, but not
less frequently than once every twelve months, and may, in its discretion,
approve an increase therein. In addition to salary, the Executive may receive
other cash compensation from the Bank for services hereunder at such times, in
such amounts and on such terms and conditions as the Board may determine from
time to time.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, the Executive shall be treated
as an employee of the Bank and shall be eligible to participate in and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings, profit-sharing or stock bonus plans, any and all group
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life, health (including hospitalization, medical and major medical), dental,
accident and long-term disability insurance plans, professional financial
planning services and tax preparation programs and any other employee benefit
and compensation plans (including, but not limited to, any incentive
compensation plans or programs, stock option and appreciation rights plans and
restricted stock plans) as may from time to time be maintained by, or cover
employees of, the Bank, in accordance with the terms and conditions of such
employee benefit plans and programs and compensation plans and programs and
consistent with the Bank's customary practices.
SECTION 6. INDEMNIFICATION AND INSURANCE.
(a) During the Employment Period and for a period of six (6)
years thereafter, the Bank shall cause the Executive to be covered by and named
as an insured under any policy or contract of insurance obtained by it to insure
its directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Bank or service in
other capacities at the request of the Bank. The coverage provided to the
Executive pursuant to this section 6 shall be of the same scope and on the same
terms and conditions as the coverage (if any) provided to other officers or
directors of the Bank.
(b) To the maximum extent permitted under applicable law,
during the Employment Period and for a period of six (6) years thereafter, the
Bank shall indemnify, and shall cause its subsidiaries and affiliates to
indemnify the Executive against and hold him harmless from any costs,
liabilities, losses and exposures to the fullest extent and on the most
favorable terms and conditions that similar indemnification is offered to any
director or officer of the Bank or any subsidiary or affiliate thereof. This
section 6(b) shall not be applicable where section 18 is applicable.
SECTION 7. OUTSIDE ACTIVITIES.
The Executive may serve as a member of the boards of directors
of such business, community and charitable organizations as he may disclose to
and as may be approved by the Board (which approval shall not be unreasonably
withheld); provided, however, that such service shall not materially interfere
with the performance of his duties under this Agreement. The Executive may also
engage in personal business and investment activities which do not materially
interfere with the performance of his duties hereunder; provided, however, that
such activities are not prohibited under any code of conduct or investment or
securities trading policy established by the Bank and generally applicable to
all similarly situated executives. The Executive may also serve as an officer or
director of the Holding Company on terms and conditions as the Bank and the
Holding Company may mutually agree upon, and such service shall not be deemed to
materially interfere with the Executive's performance of his duties hereunder or
otherwise to result in a material breach of this Agreement.
SECTION 8. WORKING FACILITIES AND EXPENSES.
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The Executive's principal place of employment shall be at the
Bank's executive offices at the address first above written, or at such other
location within a 25-mile radius thereof at which the Bank shall maintain its
principal executive offices, or at such other location as the Bank and the
Executive may mutually agree upon. The Bank shall provide the Executive at his
principal place of employment with a private office, secretarial services and
other support services and facilities suitable to his position with the Bank and
necessary or appropriate in connection with the performance of his assigned
duties under this Agreement and shall furnish to the Executive for his business
use outside the office a personal computer, fax machine and other equipment
appropriate to permit the Executive to carry on his assigned duties while away
from the office. The Bank shall provide to the Executive for his exclusive use
an automobile owned or leased by the Bank and appropriate to his position, to be
used in the performance of his duties hereunder, including commuting to and from
his personal residence. The Bank shall reimburse the Executive for his ordinary
and necessary business expenses, including, without limitation, all expenses
associated with his business use of the aforementioned automobile, fees for
memberships in such clubs and organizations as the Executive and the Bank shall
mutually agree are necessary and appropriate for business purposes, and his
travel and entertainment expenses incurred in connection with the performance of
his duties under this Agreement, in each case upon presentation to the Bank of
an itemized account of such expenses in such form as the Bank may reasonably
require.
SECTION 9. TERMINATION OF EMPLOYMENT WITH SEVERANCE BENEFITS.
(a) The Executive shall be entitled to the severance benefits
described herein in the event that his employment with the Bank terminates
during the Employment Period under any of the following circumstances:
(i) The Executive's voluntary resignation from employment with
the Bank within ninety (90) days following:
(A) the failure of the Board to appoint or re-appoint
or elect or re-elect the Executive to the office described in
section 3 of this Agreement (or a more senior office) of the
Bank;
(B) if the Executive is a member of the Board as of
the date of this agreement, the failure of the stockholders of
the Bank to elect or re-elect the Executive or the failure of
the Board (or the nominating committee thereof) to nominate
the Executive for such election or re-election;
(C) the expiration of a thirty (30) day period
following the date on which the Executive gives written notice
to the Bank of its material failure, whether by amendment of
the Bank's Organization Certificate or By-laws, action of the
Board or the Bank's stockholders or otherwise, to vest in the
Executive the functions, duties, or responsibilities
prescribed in section 3 of this Agreement, unless, during such
thirty (30) day period, the Bank fully cures such failure;
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(D) the expiration of a thirty (30) day period
following the date on which the Executive gives written notice
to the Bank of its material breach of any term, condition or
covenant contained in this Agreement (including, without
limitation, any reduction of the Executive's rate of base
salary in effect from time to time and any change in the terms
and conditions of any compensation or benefit program in which
the Executive participates which, alone or together with other
changes, has a material adverse effect on the aggregate value
of his total compensation package), unless, during such thirty
(30) day period, the Bank fully cures such failure; or
(ii) the termination of the Executive's employment with the
Bank for any other reason not described in section 10(a);
then, subject to section 25, the Bank shall provide the benefits and pay to the
Executive the amounts described in section 9(b).
(b) Upon the termination of the Executive's employment with
the Bank under circumstances described in section 9(a) of this Agreement, the
Bank shall pay and provide to the Executive (or, in the event of his death, to
his estate):
(i) his earned but unpaid compensation (including, without
limitation, all items which constitute wages under applicable law and
the payment of which is not otherwise provided for under this section
9(b)) as of the date of the termination of his employment with the
Bank, such payment to be made at the time and in the manner prescribed
by law applicable to the payment of wages but in no event later than
thirty (30) days after termination of employment;
(ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs and compensation
plans and programs maintained for the benefit of the Bank's officers
and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long-term disability
insurance benefits, in addition to that provided pursuant to section
9(b)(ii), and after taking into account the coverage provided by any
subsequent employer, if and to the extent necessary to provide for the
Executive, for the Remaining Unexpired Employment Period, coverage
equivalent to the coverage to which he would have been entitled under
such plans (as in effect on the date of his termination of employment,
or, if his termination of employment occurs after a Change of Control,
on the date of such Change of Control, whichever benefits are greater)
if he had continued working for the Bank during the Remaining Unexpired
Employment Period at the highest annual rate of compensation achieved
during that portion of the Employment Period which is prior to the
Executive's termination of employment with the Bank and if, upon the
expiration of such coverage, the Executive has received or is eligible
to receive pension benefits under a pension plan of the Holding Company
or the Bank, a further continuation of such coverage for the remaining
lifetimes of the Executive and his spouse;
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(iv) within thirty (30) days following his termination of
employment with the Bank, a lump sum payment, in an amount equal to the
present value of the salary that the Executive would have earned if he
had continued working for the Bank during the Remaining Unexpired
Employment Period at the highest annual rate of salary achieved during
that portion of the Employment Period which is prior to the Executive's
termination of employment with the Bank, where such present value is to
be determined using a discount rate equal to the applicable short-term
federal rate prescribed under section 1274(d) of the Internal Revenue
Code of 1986 ("Code"), compounded using the compounding period
corresponding to the Bank's regular payroll periods for its officers,
such lump sum to be paid in lieu of all other payments of salary
provided for under this Agreement in respect of the period following
any such termination;
(v) within thirty (30) days following his termination of
employment with the Bank, a lump sum payment in an amount equal to the
excess, if any, of:
(A) the present value of the aggregate benefits to
which he would be entitled under any and all qualified and
non-qualified defined benefit pension plans maintained by, or
covering employees of, the Bank, if he were 100% vested
thereunder and had continued working for the Bank during the
Remaining Unexpired Employment Period, such benefits to be
determined as of the date of termination of employment by
adding to the service actually recognized under such plans an
additional period equal to the Remaining Unexpired Employment
Period and by adding to the compensation recognized under such
plans for the year in which termination of employment occurs
all amounts payable under sections 9(b)(i), (iv) and (vii);
over
(B) the present value of the benefits to which he is
actually entitled under such defined benefit pension plans as
of the date of his termination;
where such present values are to be determined using the mortality
tables prescribed under section 415(b)(2)(E)(v) of the Code and a
discount rate, compounded monthly, equal to the annualized rate of
interest prescribed by the Pension Benefits Guaranty Corporation for
the valuation of immediate annuities payable under terminating
single-employer defined benefit plans for the month in which the
Executive's termination of employment occurs ("Applicable PBGC Rate");
(vi) within thirty (30) days following his termination of
employment with the Bank, a lump sum payment in an amount equal to the
present value of the additional employer contributions (or if greater
in the case of a leveraged employee stock ownership plan or similar
arrangement, the additional assets allocable to him through debt
service, based on the fair market value of such assets at termination
of employment) to which he would have been entitled under any and all
qualified and non-qualified defined contribution plans maintained by,
or covering employees
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of, the Bank, if he were 100% vested thereunder and had continued
working for the Bank during the Remaining Unexpired Employment Period
at the highest annual rate of compensation achieved during that
portion of the Employment Period which is prior to the Executive's
termination of employment with the Bank, and making the maximum amount
of employee contributions, if any, required under such plan or plans,
such present value to be determined on the basis of a discount rate,
compounded using the compounding period that corresponds to the
frequency with which employer contributions are made to the relevant
plan, equal to the Applicable PBGC Rate; and
(vii) the payments that would have been made to the Executive
under any cash bonus or long-term or short-term cash incentive
compensation plan maintained by, or covering employees of, the Bank if
he had continued working for the Bank during the Remaining Unexpired
Employment Period and had earned in each calendar year that ends during
the Remaining Unexpired Employment Period a bonus in an amount equal to
the highest annual bonus or incentive award actually paid to him in any
calendar year ending during the three-year period ending on the date of
termination of employment.
The Bank and the Executive hereby stipulate that the damages which may be
incurred by the Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 9(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to the Executive's efforts, if any, to
mitigate damages. The Bank and the Executive further agree that the Bank may
condition the payments and benefits (if any) due under sections 9(b)(iii), (iv),
(v), (vi) and (vii) on the receipt of the Executive's resignation from any and
all positions which he holds as an officer, director or committee member with
respect to the Bank, the Holding Company or any subsidiary or affiliate of
either of them.
SECTION 10. TERMINATION WITHOUT ADDITIONAL BANK LIABILITY.
In the event that the Executive's employment with the Bank
shall terminate during the Employment Period on account of:
(a) the discharge of the Executive for "cause," which, for
purposes of this Agreement shall mean personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations
or similar offenses) or final cease and desist order, or any material
breach of this Agreement, in each case as measured against standards
generally prevailing at the relevant time in the savings and community
banking industry; PROVIDED, HOWEVER, that the Executive shall not be
deemed to have been discharged for cause unless and until the following
procedures shall have been followed:
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(i) the Board shall adopt a resolution duly approved
by affirmative vote of a majority of the entire Board at a
meeting called and held for such purpose calling for the
Executive's termination for cause and setting forth the
purported grounds for such termination ("Proposed Termination
Resolution");
(ii) as soon as practicable, and in any event within
five (5) days, after adoption of such resolution, the Board
shall furnish to the Executive a written notice of termination
which shall be accompanied by a certified copy of the Proposed
Termination Resolution ("Notice of Proposed Termination");
(iii) the Executive shall be afforded a reasonable
opportunity to make oral and written presentations to the
members of the Board, on his own behalf, or through a
representative, who may be his legal counsel, to refute the
grounds set forth in the Proposed Termination Resolution at
one or more meetings of the Board to be held no sooner than
fifteen (15) days and no later than thirty (30) days after the
Executive's receipt of the Proposed Termination Notice
("Termination Hearings"); and
(iv) within ten (10) days following the end of the
Termination Hearings, the Board shall adopt a resolution duly
approved by affirmative vote of a majority of the entire Board
at a meeting called and held for such purpose (A) finding that
in the good faith opinion of the Board the grounds for
termination set forth in the Proposed Termination Resolution
exist and (B) terminating the Executive's employment
("Termination Resolution"); and
(v) as promptly as practicable, and in any event
within one (1) business day after adoption of the Termination
Resolution, the Board shall furnish to the Executive written
notice of termination, which notice shall include a copy of
the Termination Resolution and specify an effective date of
termination that is not later than the date on which such
notice is given;
(b) The Executive's voluntary resignation from employment
with the Bank for reasons other than those specified in
section 9(a)(i);
(c) The Executive's death; or
(d) a determination that the Executive is eligible for
long-term disability benefits under the Bank's long-term disability
insurance program or, if there is no such program, under the federal
Social Security Act;
then the Bank shall have no further obligations under this Agreement, other than
the payment to the Executive (or, in the event of his death, to his estate) of
his earned but unpaid salary as of the date of the termination of his
employment, and the provision of such other benefits, if any, to
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which he is entitled as a former employee under the employee benefit plans and
programs and compensation plans and programs maintained by, or covering
employees of, the Bank.
(e) For purposes of section 10(a), no act or failure to act,
on the part of the Executive, shall be considered "willful" unless it
is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive's action or omission was
in the best interests of the Company. Any act, or failure to act, based
upon authority given pursuant to a resolution duly adopted by the Board
or based upon the written advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. The
cessation of employment of the Executive shall not be deemed to be for
"cause" within the meaning of section 10(a) unless and until there
shall have been delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of three-fourths of the non-employee
members of the Board at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard
before the Board), finding that, in the good faith opinion of the
Board, the Executive is guilty of the conduct described in section
10(a) above, and specifying the particulars thereof in detail.
SECTION 11. TERMINATION UPON OR FOLLOWING A CHANGE OF CONTROL.
(a) A Change of Control of the Bank ("Change of Control") shall be
deemed to have occurred upon the happening of any of the following events:
(i) approval by the stockholders of the Bank of a transaction
that would result in the reorganization, merger or consolidation of the
Bank, respectively, with one or more other persons, other than a
transaction following which:
(A) at least 51% of the equity ownership interests of
the entity resulting from such transaction are beneficially
owned (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended ("Exchange Act"))
in substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) at least 51% of the outstanding equity ownership
interests in the Bank; and
(B) at least 51% of the securities entitled to vote
generally in the election of directors of the entity resulting
from such transaction are beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) at least 51% of the securities entitled to vote
generally in the election of directors of the Bank;
(ii) the acquisition of all or substantially all of the assets
of the Bank or beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of
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25% or more of the outstanding securities of the Bank entitled to vote
generally in the election of directors by any person or by any persons
acting in concert, or approval by the stockholders of the Bank of any
transaction which would result in such an acquisition; or
(iii) a complete liquidation or dissolution of the Bank, or
approval by the stockholders of the Bank of a plan for such liquidation
or dissolution; or
(iv) the occurrence of any event if, immediately following
such event, at least fifty percent (50%) of the members of the board of
directors of the Bank do not belong to any of the following groups:
(A) individuals who were members of the board of
directors of the Bank on the date of this Agreement; or
(B) individuals who first became members of the board
of directors of the Bank after the date of this Agreement
either:
(I) upon election to serve as a member of
the Board of directors of the Bank by affirmative
vote of three-quarters (3/4) of the members of such
board, or of a nominating committee thereof, in
office at the time of such first election; or
(II) upon election by the stockholders of
the Board to serve as a member of the board of
directors of the Bank, but only if nominated for
election by affirmative vote of three-quarters (3/4)
of the members of the board of directors of the Bank,
or of a nominating committee thereof, in office at
the time of such first nomination;
PROVIDED, HOWEVER, that such individual's election or nomination did
not result from an actual or threatened election contest (within the
meaning of Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents
(within the meaning of Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) other than by or on behalf of the board of directors
of the Bank;
(v) any event which would be described in section 11(a)(i),
(ii), (iii) or (iv) if the term "Holding Company" were substituted for
the term "Bank" therein.
In no event, however, shall a Change of Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Holding Company, the
Bank, or a subsidiary of either of them, by the Holding Company, the Bank, or a
subsidiary of either of them, or by any employee benefit plan maintained by any
of them. For purposes of this section 11, the term "person" shall have the
meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) In the event of a Change of Control, the Executive shall be
entitled to the payments and benefits contemplated by section 9(b) in the event
of his termination employment with the Bank
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under any of the circumstances described in section 9(a) of this Agreement or
under any of the following circumstances:
(i) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period and within ninety (90) days
following his demotion, loss of title, office or significant authority
or responsibility, or following any material reduction in any element
of his package of compensation and benefits;
(ii) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period and within ninety (90) days
following (A) any relocation of his principal place of employment
outside of a 25-mile radius of the principal place of employment
immediately prior to the Change of Control that would require a
relocation of his residence in order to be able to commute to such new
place of employment within a commuting time not in excess of the
greater of 60 minutes or the Executive's commuting time prior to the
Change of Control or (B) any material adverse change in working
conditions at such principal place of employment; or
(iii) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period following the failure of any
successor to the Bank in the Change of Control to include the Executive
in any compensation or benefit program maintained by it or covering any
of its executive officers, unless the Executive is already covered by a
substantially similar plan of the Bank which is at least as favorable
to him.
SECTION 12. COVENANT NOT TO COMPETE.
In the event of his termination of employment with the Bank
prior to the expiration of the Employment Period, for a period of one (1) year
following the date of his termination of employment with the Bank (or, if less,
for the Remaining Unexpired Employment Period), the Executive shall not, without
the written consent of the Bank, become an officer, employee, consultant,
director or trustee of any competitor (as herein defined) if in this capacity he
would be working within one hundred (100) miles of the place where the
headquarters of the Bank are located on the date of the Executive's termination
of employment. For this purpose, a "competitor" is any savings bank, savings and
loan association, savings and loan holding company, bank or bank holding
company, or any direct or indirect subsidiary or affiliate of any such entity.
This section 12 shall not apply if the Executive's employment is terminated
without cause or due to death or voluntary resignation as described in section
9(a). If the Executive's employment shall be terminated on account of disability
as provided in section 10(d) of this Agreement, this section 12 shall not apply
if (a) the Executive first offers, by written notice, to accept a similar
position with, or perform similar services for, the Bank on substantially the
same terms and conditions proposed by the competitor and (b) the Bank declines
to accept such offer within ten (10) days after such notice is given.
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SECTION 13. CONFIDENTIALITY.
Unless he obtains the prior written consent of the Bank, the
Executive shall keep confidential and shall refrain from using for the benefit
of himself, or any person or entity other than the Bank or any entity which is a
subsidiary of the Bank or of which the Bank is a subsidiary, any material
document or information obtained from the Bank, or from its parent or
subsidiaries, in the course of his employment with any of them concerning their
properties, operations or business (unless such document or information is
readily ascertainable from public or published information or trade sources or
has otherwise been made available to the public through no fault of his own)
until the same ceases to be material (or becomes so ascertainable or available);
provided, however, that nothing in this section 13 shall prevent the Executive,
with or without the Bank's consent, from participating in or disclosing
documents or information in connection with any judicial or administrative
investigation, inquiry or proceeding to the extent that such participation or
disclosure is required under applicable law.
SECTION 14. SOLICITATION.
The Executive hereby covenants and agrees that, for a period
of one (1) year following his termination of employment with the Bank, he shall
not, without the written consent of the Bank, either directly or indirectly:
(a) solicit, offer employment to, or take any other action
intended, or that a reasonable person acting in like circumstances
would expect, to have the effect of causing any officer or employee of
the Bank, the Holding Company or any affiliate, as of the date of this
Agreement, of either of them to terminate his employment and accept
employment or become affiliated with, or provide services for
compensation in any capacity whatsoever to, any savings bank, savings
and loan association, bank, bank holding company, savings and loan
holding company, or other institution engaged in the business of
accepting deposits and making loans, doing business within one hundred
(100) miles of the headquarters of the Bank, the Holding Company or any
affiliate, as of the date of this Agreement, of either of them;
(b) provide any information, advice or recommendation with
respect to any such officer or employee of any savings bank, savings
and loan association, bank, bank holding company, savings and loan
holding company, or other institution engaged in the business of
accepting deposits and making loans, doing business within one hundred
(100) miles of the headquarters of the Bank, the Holding Company or any
affiliate, as of the date of this Agreement, of either of them that is
intended, or that a reasonable person acting in like circumstances
would expect, to have the effect of causing any officer or employee of
the Bank, the Holding Company or any affiliate, as of the date of this
Agreement, of either of them to terminate his employment and accept
employment or become affiliated
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with, or provide services for compensation in any capacity whatsoever
to, any savings bank, savings and loan association, bank, bank holding
company, savings and loan holding company, or other institution
engaged in the business of accepting deposits and making loans, doing
business within one hundred (100) miles of the headquarters of the
Bank, the Holding Company, or any affiliate, as of the date of this
Agreement, of either of them;
(c) solicit, provide any information, advice or recommendation
or take any other action intended, or that a reasonable person acting
in like circumstances would expect, to have the effect of causing any
customer of the Bank to terminate an existing business or commercial
relationship with the Bank.
SECTION 15. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of the Executive's employment during the term
of this Agreement or thereafter, whether by the Bank or by the Executive, shall
have no effect on the rights and obligations of the parties hereto under the
Bank's qualified or non-qualified retirement, pension, savings, thrift,
profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long-term
disability insurance plans or such other employee benefit plans or programs, or
compensation plans or programs, as may be maintained by, or cover employees of,
the Bank from time to time.
SECTION 16. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding
upon the Executive, his legal representatives and testate or intestate
distributees, and the Bank and its successors and assigns, including any
successor by merger or consolidation or any other person or firm or corporation
to which all or substantially all of the assets and business of the Bank may be
sold or otherwise transferred. Failure of the Bank to obtain from any successor
its express written assumption of the Bank's obligations hereunder at least
sixty (60) days in advance of the scheduled effective date of any such
succession shall be deemed a material breach of this Agreement unless cured
within ten (10) days after notice thereof by the Executive to the Bank.
SECTION 17. NOTICES.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
Page 13 of 18
If to the Executive:
Xxxxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxx 00000
If to the Bank:
Fairfield Savings Bank, F.S.B.
0000 XXX
Xxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: BOARD OF DIRECTOR - NON-EMPLOYEE DIRECTORS
with a copy to:
Xxxxxxx Xxxxxxxx & Xxxx
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxx, Esq.
SECTION 18. INDEMNIFICATION FOR ATTORNEYS' FEES.
The Bank shall indemnify, hold harmless and defend the
Executive against reasonable costs, including legal fees, incurred by him in
connection with or arising out of any action, suit or proceeding in which he may
be involved, as a result of his efforts, in good faith, to defend or enforce the
terms of this Agreement; provided, however, that the Executive shall have
substantially prevailed on the merits pursuant to a judgment, decree or order of
a court of competent jurisdiction or of an arbitrator in an arbitration
proceeding, or in a settlement. For purposes of this Agreement, any settlement
agreement which provides for payment of any amounts in settlement of the Bank's
obligations hereunder shall be conclusive evidence of the Executive's
entitlement to indemnification hereunder, and any such indemnification payments
shall be in addition to amounts payable pursuant to such settlement agreement,
unless such settlement agreement expressly provides otherwise. This provision
shall be inoperative if and to the extent that, but only if and to the extent
that, it shall be determined that compliance herewith would violate any
applicable law or regulation.
SECTION 19. SEVERABILITY.
A determination that any provision of this Agreement is
invalid or unenforceable shall not affect the validity or enforceability of any
other provision hereof.
Page 14 of 18
SECTION 20. WAIVER.
Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 21. COUNTERPARTS.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
SECTION 22. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced
in accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of
Illinois applicable to contracts entered into and to be performed entirely
within the State of Illinois.
SECTION 23. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience
of reference only and are not intended to qualify the meaning of any section.
Any reference to a section number shall refer to a section of this Agreement,
unless otherwise stated.
SECTION 24. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes in its entirety any and
all prior agreements, understandings or representations relating to the subject
matter hereof. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
SECTION 25. REQUIRED REGULATORY PROVISIONS.
The following provisions are included for the purposes of
complying with various laws, rules and regulations applicable to the Bank:
(a) Notwithstanding anything herein contained to the contrary,
in no event shall the aggregate amount of compensation payable to the
Executive under
Page 15 of 18
section 9(b) hereof (exclusive of amounts described in section
9(b)(i)) exceed the lesser of (i) three times the Executive's average
annual total compensation for the last five consecutive calendar years
to end prior to his termination of employment with the Bank (or for
his entire period of employment with the Bank if less than five
calendar years) and (ii) the maximum amount that may be paid without
producing an "excess parachute payment" (as such term is defined in
section 280G of the Code), the applicability of such provision to the
Executive and any such maximum amount to be determined in good faith
by the firm of independent certified public accountants regularly
retained to audit the Bank's books and records.
(b) Notwithstanding anything herein contained to the contrary,
any payments to the Executive by the Bank, whether pursuant to this
Agreement or otherwise, are subject to and conditioned upon their
compliance with section 18(k) of the Federal Deposit Insurance Act
("FDI Act"), 12 U.S.C. ss.1828(k), and any regulations promulgated
thereunder.
(c) Notwithstanding anything herein contained to the contrary,
if the Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the affairs of the Bank pursuant
to a notice served under section 8(e)(3) or 8(g)(1) of the FDI Act, 12
U.S.C. ss.1818(e)(3) or 1818(g)(1), the Bank's obligations under this
Agreement shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in such notice
are dismissed, the Bank, in its discretion, may (i) pay to the
Executive all or part of the compensation withheld while the Bank's
obligations hereunder were suspended and (ii) reinstate, in whole or in
part, any of the obligations which were suspended.
(d) Notwithstanding anything herein contained to the contrary,
if the 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 FDI Act, 12 U.S.C.
ss.1818(e)(4) or (g)(1), all prospective obligations of the Bank under
this Agreement shall terminate as of the effective date of the order,
but vested rights and obligations of the Bank and the Executive shall
not be affected.
(e) Notwithstanding anything herein contained to the contrary,
if the Bank is in default (within the meaning of section 3(x)(1) of the
FDI Act, 12 U.S.C. ss.1813(x)(1), all prospective obligations of the
Bank under this Agreement shall terminate as of the date of default,
but vested rights and obligations of the Bank and the Executive shall
not be affected.
(f) Notwithstanding anything herein contained to the contrary,
all prospective obligations of the Bank hereunder shall be terminated,
except to the extent that a continuation of this Agreement is necessary
for the continued operation of the Bank: (i) by the Director of the
Office of Thrift Supervision ("OTS") or his designee or the Federal
Deposit Insurance Corporation ("FDIC"),
Page 16 of 18
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 FDI Act, 12 U.S.C. ss.1823(c); (ii) by the Director of
the OTS or his designee at the time such Director or designee approves
a supervisory merger to resolve problems related to the operation of
the Bank or when the Bank is determined by such Director to be in an
unsafe or unsound condition. The vested rights and obligations of the
parties shall not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be
executed and the Executive has hereunto set his hand, all as of the day and year
first above written.
------------------------------------
XXXXXX X. XXXXXX
ATTEST: FAIRFIELD SAVINGS BANK, F.S.B.
By
--------------------------
Secretary By
----------------------------------
NAME:
TITLE:
[Seal]
Page 00 xx 00
XXXXX XX XXXXXXXX )
: ss.:
COUNTY OF )
On this ________ day of ____________________, 1997, before me
personally came Xxxxxx X. Xxxxxx, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me duly sworn,
did depose and say that he resides at the address set forth in said instrument,
and that he signed his name to the foregoing instrument.
----------------------------------
Notary Public
STATE OF ILLINOIS )
: ss.:
COUNTY OF )
On this ________ day of ____________________, 1997, before me
personally came ___________, to me known, who, being by me duly sworn, did
depose and say that he resides at
______________________________________________, that he is a member of the Board
of Directors of FAIRFIELD SAVINGS BANK, F.S.B., the savings bank described in
and which executed the foregoing instrument; that he knows the seal of said
savings bank; that the seal affixed to said instrument is such seal; that it was
so affixed by order of the Board of Directors of said savings bank; and that he
signed his name thereto by like order.
----------------------------------
Notary Public
