EXHIBIT 10.3
FIRST FEDERAL LINCOLN BANK
THREE-YEAR
EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") is made effective as of ____________, 1998 by
and among First Federal Lincoln Bank (the "Bank"), a federally-chartered savings
bank, with its principal administrative ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, First Federal Lincoln Bank - Iowa (the "Iowa Bank"), a
federally-chartered savings bank and wholly-owned subsidiary of the Bank, with
its principal administrative office at ▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
and First Lincoln Bancshares Inc. (the "Holding Company"), a corporation
organized under the laws of the State of Delaware and the holding company for
the Bank and the Iowa Bank, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (the "Executive").
WHEREAS, the Bank and the Iowa Bank wish to assure themselves of the
services of the Executive for the period provided in this Agreement; and
WHEREAS, the Executive is willing to serve in the employ of the Bank and
the Iowa Bank 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. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, the Executive shall serve as
Chief Executive Officer of the Iowa Bank with responsibility for, among other
things, the operation and management of the Bank's activities in Iowa. The
Executive shall render administrative and management services to the Iowa Bank
such as are customarily performed by persons situated in a similar executive
capacity. During said period, the Executive also agrees to serve as Chairman of
the Board of Directors of the Bank, an executive officer position, with
responsibility for, among other things, calling meetings of the board of
directors of the Bank, presiding at such meetings and exercising certain
oversight responsibilities through service on various management committees of
the Bank. During the term of this Agreement, (a) the Bank and the Holding
Company, respectively, agree to elect the Executive to the Boards of Directors
of the Bank and the Iowa Bank, respectively, and further, the Bank and the Iowa
Bank agree to elect the Executive as Chairman of the respective Boards of
Directors and the Executive agrees to serve in such capacities, and (b) the
Holding Company agrees to nominate the Executive for election to the Board of
Directors of the Holding Company and, if the Director is so elected, to elect
the Executive as Chairman of the Board of Directors of the Holding Company and
the Executive agrees to serve in such capacity. The Executive's principal place
of employment shall be ▇▇/▇▇/ ▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. TERMS AND DUTIES.
(a) The period of the Executive's employment under this Agreement shall
commence as of the date first above written and shall continue for a period of
thirty-six (36) full calendar months thereafter. Commencing on the first
anniversary date of this Agreement, and continuing on each anniversary
thereafter, the Board of Directors of the Bank ("Bank Board") may extend the
Agreement an additional year such that the remaining term of the Agreement shall
be three (3) years. The Executive shall abstain from any vote regarding an
extension of the term of this Agreement. The Bank Board will review the
Agreement and the 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 Bank Board shall give
notice to the Executive as soon as possible after such review as to whether it
intends to extend the Agreement.
(b) During the period of the Executive's employment hereunder, except for
periods of absence occasioned by illness, vacation periods, and leaves of
absence, the Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Bank and the Iowa Bank and participation in
community and civic organizations; provided, however, that, with the approval of
the Bank Board, as evidenced by a resolution adopted from time to time, the
Executive may serve, or continue to 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 Bank or the Iowa Bank, or
materially affect the performance of the Executive's duties pursuant to this
Agreement.
(c) Notwithstanding anything herein to the contrary, the Executive's
employment with the Bank and/or the Iowa Bank may be terminated by the Bank or
the Executive during the term of this Agreement, subject to the terms and
conditions of this Agreement.
3. COMPENSATION AND REIMBURSEMENT.
The Executive shall receive compensation and reimbursement under this
Agreement, as follows:
(a) The Bank shall pay the Executive a base salary of $110,000 per year
("Base Salary"), payable in accordance with the normal payroll practices of the
Bank. Base Salary shall include any amounts of compensation deferred by the
Executive under any tax-qualified retirement or welfare benefit plan or any
other deferred compensation arrangement maintained by the Bank. During the
period of this Agreement, the Executive's Base Salary shall be reviewed by the
Bank Board at least annually with the Bank Board making its first review no
later than one year from the date of this Agreement. The Bank Board may
increase the Executive's Base Salary at any time during the term of this
Agreement and the resulting annual salary attributable to such increase shall
become the "Base Salary" for all purposes of this Agreement from the date of
such increase.
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(b) Discretionary Bonuses. The Executive shall be entitled to participate
in an equitable manner with all other executive officers of the Bank in
discretionary bonuses as authorized and declared by the Bank Board to executive
employees. No other compensation provided for in this Agreement shall be deemed
a substitute for the Executive's right to participate in such bonuses when and
as declared by the Bank Board.
(c) The Executive shall be entitled to receive fees for serving as a
director of the Holding Company and/or the Bank and for serving as Chairman of
the Board of the Holding Company and/or the Bank or as a member of any committee
as received by other members of the Boards of Directors of the Holding Company
and/or the Bank.
(d) The Executive shall be entitled to participate in any employee benefit
plans, arrangements and perquisites substantially equivalent to those in which
the Executive was participating or with respect to which the Executive was
deriving a benefit immediately prior to the beginning of the term of this
Agreement, and the Bank will not, without the Executive's prior written consent,
make any changes in such plans, arrangements or perquisites which would
adversely affect the Executive's rights or benefits thereunder, except to the
extent such changes are made applicable to all employees participating in such
plans, arrangements or perquisites on a non-discriminatory basis. Without
limiting the generality of the foregoing provisions of this Subsection (d),
during the term of the Agreement, the Executive shall be entitled to participate
in and receive benefits under all plans relating to stock options, restricted
stock awards, stock purchases, pension, thrift, profit-sharing, employee stock
ownership, supplemental retirement, group life insurance, medical and other
health and welfare benefit coverage, education, cash or stock bonuses, and other
retirement or employee benefits or combinations thereof, that are now or
hereafter maintained for the benefit of the Bank's executive employees or for
its employees generally. Further, with respect to any plan regarding stock
options, restricted stock awards, and stock purchases, the Executive shall be
entitled to receive benefits in an equitable manner with all other executive
officers taking into consideration the Executive's positions as Chairman of the
Board of the Bank, with executive responsibilities, Chief Executive Officer of
the Iowa Bank with responsibility for, among other things, the operation of the
Iowa Bank as its senior executive and executive management of the Bank's
activities in Iowa, and Chairman of the Board of the Holding Company. Nothing
paid to the Executive under any such plan or arrangement will be deemed to be in
lieu of other compensation to which the Executive is entitled under this
Agreement.
(e) The Bank shall pay or reimburse the Executive for all reasonable travel
and other expenses incurred in the performance of the Executive's obligations
under this Agreement.
4. PAYMENTS TO THE EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) The provisions of this Section shall apply upon the occurrence of an
"Event of Termination" (as hereinafter defined) during the term of this
Agreement. As used in this Agreement, subject to Section 24, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Iowa Bank or the Bank of the Executive's employment hereunder
for any reason other than a termination governed by Section 5(a) hereof, or
Termination
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for Cause, as defined in Section 7 hereof, (ii) the Executive's resignation from
the employ of the Iowa Bank or the Bank upon any (A) failure by the Bank, the
Iowa Bank or the Holding Company to elect, reelect, appoint, reappoint,
nominate, or renominate the Executive to any corporate office set forth in
Section 1 unless consented to by the Executive, (B) material change in the
Executive's functions, authorities, duties, or responsibilities, which change
would cause the Executive's position to become one of lesser responsibility,
importance, or scope than the position described in Section 1 unless consented
to by the Executive, (C) relocation of the Executive's principal place of
employment by more than 25 miles from its location at the effective date of this
Agreement, unless consented to by the Executive, (D) material reduction in the
benefits and perquisites to the Executive from those being provided as of the
effective date of this Agreement, unless consented to by the Executive, or (E) a
liquidation or dissolution of the Bank or Holding Company, or (F) breach of this
Agreement by the Bank or the Iowa Bank or the Holding Company. Upon the
occurrence of any Event of Termination, the Executive shall have the right to
elect to terminate his employment under this Agreement by resignation upon not
less than thirty (30) days prior written notice given within six full months
after the Event of Termination.
(b) Upon the occurrence of an Event of Termination, on the "Date of
Termination", as defined in Section 8, the Bank shall pay or provide to the
Executive, or, in the event of his death subsequent to the Event of Termination,
his beneficiary or beneficiaries, or his estate, as the case may be, the
following:
(i) the Base Salary and bonuses in accordance with Sections 3(a) and
3(b), respectively, that would have been paid to the Executive for the
remaining term of this Agreement had the Event of Termination not occurred,
plus the value, as calculated by a recognized firm customarily performing
such valuation, of any stock options or related rights which as of the Date
of Termination have been granted to the Executive but are not exercisable
by the Executive and the value of any restricted stock or related rights
which have been granted to the Executive, but in which the executive does
not have a non-forfeitable or fully-vested interest as of the Date of
Termination; and (ii) all benefits, including health insurance, in
accordance with Section 3(d), that would have been provided to the
Executive for the remaining term of this Agreement had the Event of
Termination not occurred; provided, however, that any payments pursuant to
this subsection and subsection 4(c) below, shall not, in the aggregate,
exceed three times the Executive's "average annual compensation" (as
defined in Section 5(c) below) for the five most recent taxable years that
the Executive has been employed by the Bank or such lesser number of years
in the event that the Executive shall have been employed by the Bank for
less than five years. In the event the Bank is not in compliance with its
minimum capital requirements or if such payments pursuant to this
subsection (b) would cause the Bank's capital to be reduced below its
minimum regulatory capital requirements, such payments shall be deferred
until such time as the Bank or successor thereto is in capital compliance.
At the election of the Executive, which election is to be made
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prior to an Event of Termination, such payments shall be made in a lump sum
as of the Executive's Date of Termination. In the event that no election is
made, payment to the Executive will be made on a monthly basis in
approximately equal installments during the remaining term of the
Agreement.
(c) Upon the occurrence of an Event of Termination, the Bank will cause to
be continued life, medical, dental and disability coverage substantially
identical to the coverage maintained by the Bank or the Holding Company for the
Executive prior to his termination at no premium cost to the Executive, except
to the extent such coverage may be changed in its application to all Bank or
Holding Company employees. Such coverage shall cease upon the third anniversary
of the Event of Termination, unless otherwise provided for in a separate
agreement entered into by the Executive and the Bank or the Holding Company.
5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "Change in Control" of the Bank or
Holding Company shall mean an event of a nature that: (i) would be required to
be reported in response to Item 1 of the current report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); or (ii) results in a
Change in Control of the Bank or the Holding Company within the meaning of the
Home Owners' Loan Act of 1933, as amended, the Federal Deposit Insurance Act or
the Rules and Regulations promulgated by the Office of Thrift Supervision
("OTS") (or its predecessor agency), as in effect on the date hereof (provided,
that in applying the definition of change in control as set forth under the
rules and regulations of the OTS, the Board shall substitute its judgment for
that of the OTS); or (iii) without limitation such a Change in Control shall be
deemed to have occurred at such time as (A) any "person" (as the term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of voting securities of the Bank or the Holding Company representing
25% or more of the Bank's or the Holding Company's outstanding voting securities
or right to acquire such securities except for any voting securities of the Bank
purchased by the Holding Company and any voting securities purchased by any
employee benefit plan of the Bank or the Holding Company, or (B) individuals who
constitute the Board on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election was approved by
a vote of at least three-quarters of the directors comprising the Incumbent
Board, or whose nomination for election by the Holding Company's stockholders
was approved by the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (B), considered as though he were a member
of the Incumbent Board, or (C) a plan of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Bank or the Holding Company
or similar transaction occurs in which the Bank or Holding Company is not the
resulting entity; provided, however, that such an event listed above will be
deemed to have occurred or to have been effectuated upon the receipt of all
required regulatory approvals not including the lapse of any statutory waiting
periods.
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(b) If a Change in Control has occurred pursuant to Section 5(a) or the
Board has determined that a Change in Control has occurred, the Executive shall
be entitled to the benefits provided in paragraphs (c), and (d) of this Section
5 upon his subsequent termination of employment at any time during the term of
this Agreement due to: (1) the Executive's dismissal or (2) the Executive's
voluntary resignation following any demotion, loss of office or significant
authority or responsibility, material reduction in annual compensation or
benefits or relocation of his principal place of employment by more than 25
miles from its location immediately prior to the Change in Control, unless such
termination is because of his death or termination for Cause.
(c) Upon the Executive's entitlement to benefits pursuant to Section 5(b),
the Bank shall pay or provide to the Executive, or in the event of his
subsequent death, his beneficiary or beneficiaries, or his estate, as the case
may be, the greater of: (i) the Base Salary and bonuses in accordance with
Sections 3(a) and 3(b), respectively, that would have been paid to the Executive
for the remaining term of this Agreement had the event described in subsection
(b) of this Section 5 not occurred, plus the value, as calculated by a
recognized firm customarily performing such valuation, of any stock options or
related rights which as of the Date of Termination have been granted to the
Executive, but are not exercisable by the Executive and the value of any
restricted stock or related rights which have been granted to the Executive, but
in which the executive does not have a non-forfeitable or fully-vested interest
as of the Date of Termination, and all benefits, including health insurance, in
accordance with Section 3(d) that would have been provided to the Executive for
the remaining term of this Agreement had the event described in subsection (b)
of this Section (5) not occurred; or (ii) three (3) times the Executive's
Average Annual Compensation (as herein defined) for the five (5) most recent
taxable years that the Executive has been employed by the Bank or such lesser
number of years in the event that the Executive shall have been employed by the
Bank for less than five (5) years. Such Average Annual Compensation shall
include all taxable income paid by the Bank, the Iowa Bank or the holding
company, including but not limited to, Base Salary, commissions and bonuses, as
well as contributions on the Executive's behalf to any pension and/or profit
sharing plan, severance payments, retirement payments, directors or committee
fees, fringe benefits paid or to be paid to the Executive in any such year, and
payment of expense items without accountability or business purpose or that do
not meet the IRS requirements for deductibility by the Institution; provided
however, that any payment under this provision and subsection 5(d) below shall
not exceed three (3) times the Executive's average annual compensation. In the
event the Bank is not in compliance with its minimum capital requirements or if
such payments would cause the Bank's capital to be reduced below its minimum
regulatory capital requirements, such payments shall be deferred until such time
as the Bank or successor thereto is in capital compliance. At the election of
the Executive, which election is to be made prior to a Change in Control, such
payment shall be made in a lump sum as of the Executive's Date of Termination.
In the event that no election is made, payment to the Executive will be made in
approximately equal installments on a monthly basis over a period of thirty-six
(36) months following the Executive's termination. Such payments shall not be
reduced in the event the Executive obtains other employment following
termination of employment.
(d) Upon the Executive's entitlement to benefits pursuant to Section 5(b),
the Bank will cause to be continued life, medical, dental and disability
coverage substantially identical to the
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coverage maintained by the Bank for the Executive prior to his severance at no
premium cost to the Executive, except to the extent that such coverage may be
changed in its application for all Bank employees on a non-discriminatory basis.
Such coverage and payments shall cease upon the expiration of thirty-six (36)
months following the Date of Termination.
6. CHANGE OF CONTROL RELATED PROVISIONS.
Notwithstanding the provisions of Section 5, in no event shall the
aggregate payments or benefits to be made or afforded to the Executive under
said paragraphs (the "Termination Benefits") constitute an "excess parachute
payment" under Section 280G of the Code or any successor thereto, and in order
to avoid such a result, Termination Benefits will be reduced, if necessary, to
an amount (the "Non-Triggering Amount"), the value of which is one dollar
($1.00) less than an amount equal to three (3) times the Executive's "base
amount", as determined in accordance with said Section 280G. The allocation of
the reduction required hereby among the Termination Benefits provided by Section
5 shall be determined by the Executive.
7. TERMINATION FOR CAUSE OR IN THE EVENT OF DEATH OR DISABILITY
(a) The term "Termination for Cause" shall mean termination because of the
Executive's personal dishonesty, incompetence, willful misconduct, any 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 material
breach of any provision of this Agreement. Notwithstanding the foregoing, the
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to him a Notice of Termination which shall
include a copy of a resolution duly adopted by the affirmative vote of not less
than a majority of the members of the Board at a meeting of the Board called and
held for that purpose (after reasonable notice to the Executive and an
opportunity for him, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, the Executive's conduct
justified a finding of Termination for Cause and specifying the particulars
thereof in detail. The Executive shall not have the right to receive
compensation or other benefits for any period after Termination for Cause.
During the period beginning on the date of the Notice of Termination for Cause
pursuant to Section 8 hereof through the Date of Termination for Cause, stock
options and related limited rights granted to the Executive under any stock
option plan shall not be exercisable, nor shall any unvested awards granted to
the Executive under any stock benefit plan of the Bank, the Holding Company or
any subsidiary or affiliate thereof, vest. At the Date of Termination for
Cause, such stock options and related limited rights and such unvested awards
shall become null and void and shall not be exercisable by or delivered to the
Executive at any time subsequent to such Termination for Cause.
(b) The Executive's employment shall terminate automatically upon the
Executive's death during the term of this Agreement. If the Bank determines in
good faith that the "Disability" (as defined below) of the Executive has
occurred, it may give to the Executive written notice in accordance with Section
8 of its intention to terminate this Agreement. In such event, the Executive's
employment with the Bank shall terminate effective on the 30th day after
receipt of the
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notice by the Executive, provided that, within 30 days after such receipt, the
Executive shall not have returned to full-time performance of the Executive's
duties. For purposes of this Agreement, "Disability" means a condition,
resulting from bodily injury or disease or mental impairment that renders, and
for a six consecutive month period has rendered, the Executive unable to perform
his duties under this Agreement. Disability shall be determined by a physician
or group of physicians selected by the Bank or its insurance carriers and
acceptable to the Executive or the Executive's legal representative. If the
employment of the Executive under this Agreement shall terminate because of
death or Disability, the Bank shall pay to the Executive or the Executive's
estate or representative, as the case may be, the Base Salary and discretionary
bonus for the fiscal year in which the termination occurs, prorated for the
number of weeks during which the Executive was employed by the Bank during such
fiscal year. In addition, the Executive or his designated beneficiary, as the
case may be, shall receive such amounts as are provided for in the disability
policy or life insurance policy provided by the Bank for the benefit of the
Executive; provided, further, that the Executive shall be provided with coverage
under a disability policy that will provide him with payments that would have at
least equaled those made under this Agreement for the term of the Agreement had
the Executive not incurred a Disability.
8. NOTICE.
(a) Any purported termination by the Bank or by the Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination (which, in the case of a Termination for Cause, shall not be less
than thirty days from the date such Notice of Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, the Date of Termination shall be the
date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, in the event the Executive is
terminated for reasons other than Termination for Cause the Bank will continue
to pay the Executive his Base Salary in effect when the notice giving rise to
the dispute was given until the earlier of: (1) the resolution of the dispute in
accordance with this Agreement; or (2) the expiration of the remaining term of
this Agreement as determined as of the Date of Termination. Amounts paid under
this Section are in addition to all other amounts due
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under this Agreement and shall not be offset against or reduce any other amounts
due under this Agreement.
9. POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to the Executive under this Agreement shall
be subject to the Executive's compliance with this Section 9 for one (1) full
year after the earlier of the expiration of this Agreement or termination of the
Executive's employment with the Bank. The Executive shall, upon reasonable
notice, furnish such information and assistance to the Bank as may reasonably be
required by the Bank in connection with any litigation in which it or any of its
subsidiaries or affiliates is, or may become, a party.
(b) The Executive 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
Executive as the result of employment by another employer, by retirement
benefits after the date of termination or otherwise.
10. NON-COMPETITION AND NON-DISCLOSURE.
(a) Upon any termination of the Executive's employment hereunder pursuant
to Section 4 hereof, the Executive agrees not to compete with the Bank for a
period of one (1) year following such termination in any city, town or county in
which the Executive's normal business office is located and the Bank has an
office or has filed an application for regulatory approval to establish an
office, determined as of the effective date of such termination, except as
agreed to pursuant to a resolution duly adopted by the Board. The Executive
agrees that during such period and within said cities, towns and counties, the
Executive shall not work for or advise, consult or otherwise serve with,
directly or indirectly, any entity whose business materially competes with the
depository, lending or other business activities of the Bank. The parties
hereto, recognizing that irreparable injury will result to the Bank, its
business and property in the event of the Executive's breach of this Subsection
10(a) agree that in the event of any such breach by the Executive, the Bank will
be entitled, in addition to any other remedies and damages available, to an
injunction to restrain the violation hereof by the Executive, the Executive's
partners, agents, servants, employees and all persons acting for or under the
direction of the Executive. Nothing herein will be construed as prohibiting the
Bank from pursuing any other remedies available to the Bank for such breach or
threatened breach, including the recovery of damages from the Executive.
(b) The Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. The Executive will not, during or after the
term of his employment, disclose any knowledge of the past, present, planned or
considered business activities of the Bank or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever.
Notwithstanding the foregoing, the Executive may disclose any knowledge of
banking, financial and/or economic principles, concepts or ideas
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which are not solely and exclusively derived from the business plans and
activities of the Bank. Further, the Executive may disclose information
regarding the business activities of the Bank to the OTS and the Federal Deposit
Insurance Corporation ("FDIC") pursuant to a formal regulatory request. In the
event of a breach or threatened breach by the Executive of the provisions of
this Section, the Bank will be entitled to an injunction restraining the
Executive from disclosing, in whole or in part, the knowledge of the past,
present, planned or considered business activities of the Bank or affiliates
thereof, or from rendering any services to any person, firm, corporation, other
entity to whom such knowledge, in whole or in part, has been disclosed or is
threatened to be disclosed. Nothing herein will be construed as prohibiting the
Bank from pursuing any other remedies available to the Bank for such breach or
threatened breach, including the recovery of damages from the Executive.
11. SOURCE OF PAYMENTS.
(a) All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Holding Company, however,
unconditionally guarantees payment and provision of all amounts and benefits due
hereunder to the Executive and, if such amounts and benefits due from the Bank
are not timely paid or provided by the Bank, such amounts and benefits shall be
paid or provided by the Holding Company.
(b) Notwithstanding any provision herein to the contrary, to the extent
that payments and benefits, as provided by this Agreement, are paid to or
received by the Executive under the Employment Agreement dated _____________,
1998, between the Executive and the Holding Company, such compensation payments
and benefits paid by the Holding Company will be subtracted from any amounts due
simultaneously to the Executive under similar provisions of this Agreement.
Payments pursuant to this Agreement and the Holding Company Agreement shall be
allocated in proportion to the services rendered and time expended on such
activities by the Executive as determined by the Holding Company and the Bank on
a quarterly basis.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and the Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to the Executive
of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that the Executive is subject to receiving fewer benefits
than those available to him without reference to this Agreement.
13. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation
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of law, and any attempt, voluntary or involuntary, to affect any such action
shall be null, void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of, the
Executive and the Bank and their respective successors and assigns.
14. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
15. REQUIRED PROVISIONS.
(a) The Bank may terminate the Executive's employment at any time, but any
termination by the Bank, other than Termination for Cause, shall not prejudice
the Executive's right to compensation or other benefits under this Agreement.
The Executive shall not have the right to receive compensation or other benefits
for any period after Termination for Cause as defined in Section 7 hereinabove.
(b) If the 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.
(S)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 the 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 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 Federal Deposit Insurance Act, 12 U.S.C.
(S)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.
(d) If the Bank is in default as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. (S)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.
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(e) All obligations of the Bank under this contract shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the institution: (i) by the Director of the OTS
(or his designee), the FDIC or the Resolution Trust Corporation, 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. (S)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 the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
(S)1828(k) and 12 C.F.R. (S)545.121 and any rules and regulations promulgated
thereunder.
16. REINSTATEMENT OF BENEFITS UNDER SECTION 15(b).
In the event the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice described in
Section 15(b) hereof (the "Notice") during the term of this Agreement and a
Change in Control, as defined herein, occurs, the Bank will assume its
obligation to pay and the Executive will be entitled to receive all of the
termination benefits provided for under Section 5 of this Agreement upon the
Bank's receipt of a dismissal of charges in the Notice.
17. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
19. GOVERNING LAW.
The validity, interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of Nebraska, but only to the extent
not superseded by federal law.
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20. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by the Executive within
fifty (50) miles from the location of the Bank, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Executive shall be entitled to seek
specific performance of his right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement, other than in the case of a Termination for Cause.
In the event any dispute or controversy arising under or in connection with
the Executive's termination is resolved in favor of the Executive, whether by
judgment, arbitration or settlement, the Executive shall be entitled to the
payment of all back-pay, including salary, bonuses and any other cash
compensation, fringe benefits and any compensation and benefits due the
Executive under this Agreement.
21. PAYMENT OF COSTS AND LEGAL FEES.
All reasonable costs and legal fees paid or incurred by the Executive
pursuant to any dispute or question of interpretation relating to this Agreement
shall be paid or reimbursed by the Bank if the Executive is successful on the
merits pursuant to a legal judgment, arbitration or settlement.
22. INDEMNIFICATION.
(a) The Bank shall provide the Executive (including his heirs, executors
and administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, and shall indemnify the Executive
(and his heirs, executors and administrators) to the fullest extent permitted
under Nebraska law against 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 officer of the
Bank (whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys' fees and
the cost of reasonable settlements.
23. SUCCESSOR TO THE BANK.
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Holding Company,
expressly and unconditionally to assume and agree to perform the Bank's
obligations under this Agreement, in the same manner and to the same extent that
the Bank would be required to perform if no such succession or assignment had
taken place.
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24. SALE, TRANSFER OR MERGER OF THE IOWA BANK.
Notwithstanding the provisions of Section 4 or any other provision of
this Agreement, any action with respect to the Executive's position as Chief
Executive Officer of the Iowa Bank in connection with or resulting from a sale,
merger, transfer or similar reorganization of the Iowa Bank shall not be deemed
an Event of Termination if, following such action, the Executive succeeds to an
executive officer position of the Bank.
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SIGNATURES
IN WITNESS WHEREOF, First Federal Lincoln Bank, First Federal Lincoln Bank
- Iowa and First Lincoln Bancshares Inc. have caused this Agreement to be
executed and their seals to be affixed hereunto by their duly authorized
officers and directors, and the Executive has signed this Agreement, on the
_____ day of _________, 1998.
ATTEST: FIRST FEDERAL LINCOLN BANK
By:
----------------------------- -----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Director
Secretary For the Entire Board of Directors
[SEAL]
ATTEST: FIRST FEDERAL LINCOLN BANK - IOWA
By:
----------------------------- -----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ President
Secretary
[SEAL]
ATTEST: FIRST LINCOLN BANCSHARES INC.
(Guarantor)
By:
----------------------------- -----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Director
Secretary For the Entire Board of Directors
[SEAL]
WITNESS:
----------------------------- -----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Executive
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