Exhibit 10.11 Employment Agreement between C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and First
Federal Savings Bank of Iowa
FIRST FEDERAL SAVINGS BANK OF IOWA
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") made and entered into as of March
29, 2005 by and between FIRST FEDERAL SAVINGS BANK OF IOWA, a savings bank
organized and operating under the federal laws of the United States and having
an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Bank") and C. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, an individual residing at ▇▇▇▇ ▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ("▇▇.
▇▇▇▇▇▇▇▇▇").
W I T N E S S E T H :
WHEREAS, ▇▇. ▇▇▇▇▇▇▇▇▇ currently serves the Bank in the capacity of
President and Chief Operating Officer; and
WHEREAS, the Bank is a wholly owned subsidiary of North Central Bancshares,
Inc. ("Holding Company"); and
WHEREAS, the Bank desires to employ ▇▇. ▇▇▇▇▇▇▇▇▇ in the capacity of
President and Chief Operating Officer and desires to assure for itself the
services of ▇▇. ▇▇▇▇▇▇▇▇▇ for the period provided in this Agreement; and
WHEREAS, ▇▇. ▇▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇▇ hereby agree as
follows:
Section 1. Employment.
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The Bank agrees to continue to employ ▇▇. ▇▇▇▇▇▇▇▇▇, and ▇▇. ▇▇▇▇▇▇▇▇▇
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.
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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 ▇▇. ▇▇▇▇▇▇▇▇▇'▇ performance of services
hereunder and may, in the absence of objection from ▇▇. ▇▇▇▇▇▇▇▇▇, 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.
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.
Nothing in this Agreement shall be deemed to prohibit the Bank at any time
from terminating ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment during the Employment Period with or
without notice for any reason; provided, however, that the relative rights and
obligations of the Bank and ▇▇. ▇▇▇▇▇▇▇▇▇ in the event of any such termination
shall be determined under this Agreement.
Section 3. Duties.
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▇▇. ▇▇▇▇▇▇▇▇▇ shall serve as President and Chief Operating Officer 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. ▇▇. ▇▇▇▇▇▇▇▇▇ shall devote his full business time
and attention (other than during weekends, holidays, approved vacation periods,
and periods of illness or approved leaves 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.
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In consideration for the services to be rendered by ▇▇. ▇▇▇▇▇▇▇▇▇
hereunder, the Bank shall pay to him a salary no less than the rate in effect on
the date of this agreement, payable in approximately equal installments in
accordance with the Bank's customary payroll practices for senior officers. At
least annually during the Employment Period, the Board shall review ▇▇.
▇▇▇▇▇▇▇▇▇'▇ annual rate of salary and may, in its discretion, approve an
increase therein. In addition to salary, ▇▇. ▇▇▇▇▇▇▇▇▇ 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.
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During the Employment Period, ▇▇. ▇▇▇▇▇▇▇▇▇ 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 life, health (including
hospitalization, medical and major medical), dental, accident and long-term
disability insurance plans, 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.
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(a) During the Employment Period and until the expiration of time provided
by law for the commencement of any judicial or administrative proceeding on the
basis of such service, the Bank shall cause ▇▇. ▇▇▇▇▇▇▇▇▇ 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
▇▇. ▇▇▇▇▇▇▇▇▇ 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 until the expiration of the time provided by law for the
commencement of any judicial or administrative proceeding on the basis of such
service, the Bank shall indemnify, and shall cause its subsidiaries and
affiliates to indemnify ▇▇. ▇▇▇▇▇▇▇▇▇ 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 19 is applicable. [No
indemnification shall be paid that would violate 12 U.S.C. 1828(k) or any
regulations promulgated thereunder, or 12 C.F.R. 545.121.]
Section 7. Outside Activities.
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▇▇. ▇▇▇▇▇▇▇▇▇ 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. ▇▇. ▇▇▇▇▇▇▇▇▇ 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. ▇▇. ▇▇▇▇▇▇▇▇▇ may also serve as an officer or
director of the Holding Company on such terms and conditions as the Holding
Company and the Holding Company may mutually agree upon, and such service shall
not be deemed to materially interfere with ▇▇. ▇▇▇▇▇▇▇▇▇'▇ performance of his
duties hereunder or otherwise result in a material breach of this Agreement.
Section 8. Working Facilities and Expenses.
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▇▇. ▇▇▇▇▇▇▇▇▇'▇ principal place of employment shall be at the Bank's
executive offices at the address first above written, or at such other location
within ▇▇▇▇▇▇▇ County, Iowa at which the Bank shall maintain its principal
executive offices, or at such other location as the Bank and ▇▇. ▇▇▇▇▇▇▇▇▇ may
mutually agree upon. The Bank shall provide ▇▇. ▇▇▇▇▇▇▇▇▇ 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. The Bank shall provide to ▇▇. ▇▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇▇ 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.
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(a) ▇▇. ▇▇▇▇▇▇▇▇▇ 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) ▇▇. ▇▇▇▇▇▇▇▇▇'▇ 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 ▇▇. ▇▇▇▇▇▇▇▇▇ to the office of President and Chief Operating
Officer (or a more senior office) of the Bank;
(B) the failure of the stockholders of the Bank to elect or
re-elect ▇▇. ▇▇▇▇▇▇▇▇▇ or the failure of the Board (or the nominating
committee thereof) to nominate ▇▇. ▇▇▇▇▇▇▇▇▇ for such election or
re-election;
(C) the expiration of a thirty (30) day period following the date
on which ▇▇. ▇▇▇▇▇▇▇▇▇ gives written notice to the Bank of its
material failure, whether by amendment of the Bank's Charter or
By-laws, action of the Board or the Bank's stockholders or otherwise,
to vest in ▇▇. ▇▇▇▇▇▇▇▇▇ 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 in a manner
determined by ▇▇. ▇▇▇▇▇▇▇▇▇, in his discretion, to be satisfactory; or
(D) the expiration of a thirty (30) day period following the date
on which ▇▇. ▇▇▇▇▇▇▇▇▇ 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 ▇▇.
▇▇▇▇▇▇▇▇▇'▇ 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 ▇▇. ▇▇▇▇▇▇▇▇▇ participates which, either individually
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 ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment with the Bank for
any other reason not described in section 10(a).
In such event, then, the Bank shall provide the benefits and pay to ▇▇.
▇▇▇▇▇▇▇▇▇ the amounts described in section 9(b).
(b) Upon the termination of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment with the Bank under
circumstances described in section 9(a) of this Agreement, the Bank shall pay
and provide to ▇▇. ▇▇▇▇▇▇▇▇▇ (or, in the event of his death, to his estate):
(i) his earned but unpaid compensation 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 ▇▇.
▇▇▇▇▇▇▇▇▇, for the Remaining Unexpired Employment Period, coverage
equivalent to the coverage to which be 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 ▇▇. ▇▇▇▇▇▇▇▇▇'▇
termination of employment with the Bank;
(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 ▇▇. ▇▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇▇'▇ 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 product of (A)
the Bank's "normal cost" for its tax-qualified defined benefit plan for the
most recently completed fiscal year of the plan (expressed as a percentage
of the compensation recognized in the plan's benefit formula and determined
by, or on the basis of information furnished by, the plan's actuary
multiplied by (B) the amount payable under section 9(b)(iv);
(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 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 ▇▇. ▇▇▇▇▇▇▇▇▇'▇ 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;
(vii) the payments that would have been made to ▇▇. ▇▇▇▇▇▇▇▇▇ 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 the maximum bonus or incentive award in each calendar year that
ends during the Remaining Unexpired Employment Period, each annual payment
to be equal to the product of:
(A) the maximum percentage rate at which an award was ever
available to ▇▇. ▇▇▇▇▇▇▇▇▇ under such incentive compensation plan;
multiplied by
(B) the salary that would have been paid to ▇▇. ▇▇▇▇▇▇▇▇▇ during
each such calendar year at the highest annual rate of salary achieved
during that portion of the Employment Period which is prior to ▇▇.
▇▇▇▇▇▇▇▇▇'▇ termination of employment with the Bank;
where such payments are to be made (without discounting for early
payment) within thirty (30) days following ▇▇. ▇▇▇▇▇▇▇▇▇'▇ termination
of employment;
(viii) at the election of the Bank made within thirty (30) days
following his termination of employment with the Bank, upon the surrender
of options or appreciation rights issued to ▇▇. ▇▇▇▇▇▇▇▇▇ under any stock
option and appreciation rights plan or program maintained by, or covering
employees of, the Bank, a lump sum payment in an amount equal to the
product of:
(A) the excess of (I) the fair market value of a share of stock
of the same class as the stock subject to the option or appreciation
right, determined as of the date of termination of employment, over
(II) the exercise price per share for such option or appreciation
right, as specified in or under the relevant plan, or program;
multiplied by
(B) the number of shares with respect to which options or
appreciation rights are being surrendered.
For purposes of this section 9(b)(viii) and for purposes of determining ▇▇.
▇▇▇▇▇▇▇▇▇'▇ right following his termination of employment with the Bank to
exercise any options or appreciation rights not surrendered pursuant
hereto, ▇▇. ▇▇▇▇▇▇▇▇▇ shall be deemed fully vested in all options and
appreciation rights under any stock option or appreciation rights plan or
program maintained by, or covering employees of, the Bank, even if he is
not vested under such plan or program;
(ix) at the election of the Bank made within thirty (30) days
following ▇▇. ▇▇▇▇▇▇▇▇▇'▇ termination of employment with the Bank, upon the
surrender of any shares awarded to ▇▇. ▇▇▇▇▇▇▇▇▇ under any restricted stock
plan maintained by, or covering employees of, the Bank, a lump sum payment
in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class
of stock granted under such plan, determined as of the date of ▇▇.
▇▇▇▇▇▇▇▇▇'▇ termination of employment; multiplied by
(B) the number of shares which are being surrendered.
For purposes of this section 9(b)(ix) and for purposes of determining ▇▇.
▇▇▇▇▇▇▇▇▇'▇ right following his termination of employment with the Bank to
any stock not surrendered pursuant hereto, ▇▇. ▇▇▇▇▇▇▇▇▇ shall be deemed
fully vested in all shares awarded under any restricted stock plan
maintained by, or covering employees of, the Bank, even if he is not vested
under such plan.
The Bank and ▇▇. ▇▇▇▇▇▇▇▇▇ hereby stipulate that the damages which may be
incurred by ▇▇. ▇▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇▇'▇ efforts, if any, to
mitigate damages. The Bank and ▇▇. ▇▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇▇'▇ 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.
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(a) In the event that ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment with the Bank shall
terminate during the Employment Period on account of:
(i) the discharge of ▇▇. ▇▇▇▇▇▇▇▇▇ 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
▇▇. ▇▇▇▇▇▇▇▇▇ shall not be deemed to have been discharged for cause unless
and until he shall have received a written notice of termination from the
Board, accompanied by a resolution duly adopted by affirmative vote of a
majority of the entire Board at a meeting called and held for such purpose
(after reasonable notice to ▇▇. ▇▇▇▇▇▇▇▇▇ and a reasonable opportunity for
▇▇. ▇▇▇▇▇▇▇▇▇ 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 for the proposed determination) finding that
in the good faith opinion of the Board grounds exist for discharging ▇▇.
▇▇▇▇▇▇▇▇▇ for cause; or
(ii) ▇▇. ▇▇▇▇▇▇▇▇▇'▇ voluntary resignation from employment with the
Bank for reasons other than those specified in section 9(a)(i);
(iii) ▇▇. ▇▇▇▇▇▇▇▇▇'▇ death; or
(iv) a determination that ▇▇. ▇▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇▇ (or, in the event of his death, to his
estate) of his unearned but unpaid compensation as of the date of the
termination of his employment, and the provision of such other 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
by, or covering employees of, the Bank.
Section 11. Termination Upon or Following a Change of Control.
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(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
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 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 l3d-3 promulgated
under the Exchange Act) of 20% 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 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 the Bank on the
date of this Agreement; or
(B) individuals who first became members of the Board of the Bank
after the date of this Agreement either:
(I) upon election to serve as a member of the Board of the
Bank by affirmative vote of three- quarters 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 Bank to serve
as a member of the Board of the Bank, but only if nominated for
election by affirmative vote of three-
quarters of the members of the Board 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 the Bank; or
(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 Bank, the Holding
Company, or any affiliate or subsidiary of either of them, by the Bank, the
Holding Company, or any affiliate or subsidiary of either of them, or by any
employee benefit plan maintained by any of them. For purposes of this section
11(a), 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, ▇▇. ▇▇▇▇▇▇▇▇▇ shall be entitled to
the payments and benefits contemplated by section 9(b) in the event of his
termination employment with the Bank 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 ▇▇. ▇▇▇▇▇▇▇▇▇ 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 reduction in any element of his package of compensation
and benefits;
(ii) resignation, voluntary or otherwise, by ▇▇. ▇▇▇▇▇▇▇▇▇ at any time
during the Employment Period and within ninety (90) days following any
relocation of his principal place of employment or any change in working
conditions at such principal place of employment which is embarrassing,
derogatory or otherwise adverse;
(iii) resignation, voluntary or otherwise, by ▇▇. ▇▇▇▇▇▇▇▇▇ at any
time during the Employment Period following the failure of any successor to
the Bank in the Change of Control to include ▇▇. ▇▇▇▇▇▇▇▇▇ in any
compensation or benefit program maintained by it or covering any of its
executive officers, unless ▇▇. ▇▇▇▇▇▇▇▇▇ is already covered by a
substantially similar plan of the Bank which is at least as favorable to
him; or
(iv) resignation, voluntary or otherwise, for any reason whatsoever
following the expiration of a transition period of thirty days beginning on
the effective date of the Change of Control (or such longer period, not to
exceed ninety (90) days beginning on the effective date of the Change in
Control, as the Bank or its successor may reasonably request) to facilitate
a transfer of management responsibilities.
Section 12. Maximum Limitations on Severance Benefits.
-----------------------------------------
Notwithstanding anything in this Agreement to the contrary, in the event
that the payments provided to ▇▇. ▇▇▇▇▇▇▇▇▇ (or in the event of his death, to
his estate) under this Agreement constitutes an "excess parachute payment" under
section 280G of the Code, such payments shall be limited to the lesser of the
following:
(a) 2.99 times his average compensation (including salary, bonuses,
amounts contributed on behalf of ▇▇. ▇▇▇▇▇▇▇▇▇ to any employee benefit
plans and programs and compensation plans and programs maintained for the
benefit of the Bank's officers and employees and any other cash or non-cash
compensation paid to ▇▇. ▇▇▇▇▇▇▇▇▇) for the period of five taxable years
ending immediately prior to his termination of employment; or
(b) whichever of the following amounts yields the larger net payment
to ▇▇. ▇▇▇▇▇▇▇▇▇, after provision for the tax (if any) imposed under
section 4999 of the Code;
(i) the amount determined under section 12(a); or
(ii) the maximum amount (if any) which may be paid to ▇▇.
▇▇▇▇▇▇▇▇▇ hereunder without giving rise to any tax under section 4999
of the Code;
as determined by ▇▇. ▇▇▇▇▇▇▇▇▇ in his sole discretion.
Section 13. Covenant Not to Compete.
-----------------------
▇▇. ▇▇▇▇▇▇▇▇▇ hereby covenants and agrees that, 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), he shall not, without the written consent of the
Bank, become an officer, employee, consultant, director or trustee of 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, that entails working in any city, town or county in which
the Bank or the Holding Company has an office or has filed an application for
regulatory approval to establish an office, determined as of the effective date
of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ termination of employment; provided, however, that this
section 13 shall not apply if ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment is terminated for the
reasons set forth in section 9(a); and provided, further, that if ▇▇.
▇▇▇▇▇▇▇▇▇'▇ employment shall be terminated on account of disability as provided
in section 10(d) of this Agreement, this section 13 shall not prevent ▇▇.
▇▇▇▇▇▇▇▇▇ from accepting any position or performing any services if (a) he 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 and (b)
the Bank declines to accept such offer within ten (10) days after such notice is
given. If ▇▇. ▇▇▇▇▇▇▇▇▇ resigns voluntarily with advance written notice, any
period of employment with the Bank after giving notice and before the effective
date of his termination of employment shall count as a part of the non-compete
period.
Section 14. Confidentiality.
---------------
Unless he obtains the prior written consent of the Bank, ▇▇. ▇▇▇▇▇▇▇▇▇
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 14 shall prevent ▇▇. ▇▇▇▇▇▇▇▇▇,
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 15. Solicitation.
------------
▇▇. ▇▇▇▇▇▇▇▇▇ 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 or her 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 in any city, town or county in which the Bank or the Holding
Company has an office or has filed an application for regulatory approval
to establish an office, determined as of the date of this Agreement;
(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 in any city, town or country in which the Bank
or the Holding Company has an office or has filed an application for
regulatory approval to establish an office, determined as of the date of
this Agreement, 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 or her
employment
and accept employment or become affiliated with, or provide services for
compensation in any capacity whatsoever to, such 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; or
(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.
If ▇▇. ▇▇▇▇▇▇▇▇▇ resigns voluntarily with advance written notice, any period of
employment with the Bank after giving notice and before the effective date of
his termination of employment shall count as part of the non-solicitation
period.
Section 16. No Effect on Employee Benefit Plans or Programs.
-----------------------------------------------
The termination of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment during the term of this
Agreement or thereafter, whether by the Bank or by ▇▇. ▇▇▇▇▇▇▇▇▇, shall have no
effect on the rights and obligations of the parties herein 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 17. Successors and Assigns.
----------------------
This Agreement will inure to the benefit of and be binding upon ▇▇.
▇▇▇▇▇▇▇▇▇, 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 ▇▇. ▇▇▇▇▇▇▇▇▇ to the Bank.
Section 18. 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:
If to ▇▇. ▇▇▇▇▇▇▇▇▇:
Mr. C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to the Bank:
First Federal Savings Bank of Iowa
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
-------------------
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP
Two World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
---------------------
Section 19. Indemnification for Attorneys' Fees.
-----------------------------------
From and after the earliest date on which a Change of Control occurs, the
Bank shall indemnify, hold harmless and defend ▇▇. ▇▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇▇'▇ 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.
Section 20. 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.
Section 21. 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 22. 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 23. 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 Iowa
applicable to contracts entered into and to be performed entirely within the
State of Iowa.
Section 24. 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 25. 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 26. Survival.
--------
The provisions of sections 6, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 27
and 28 shall survive the expiration of the Employment Period or termination of
this Agreement.
Section 27. Equitable Remedies.
------------------
The Holding Company and ▇▇. ▇▇▇▇▇▇▇▇▇ hereby stipulate that money damages
are an inadequate remedy for violations of sections 6(a), 13, 14 or 15 of this
Agreement and agree that equitable remedies, including, without limitations, the
remedies of specific performance and injunctive relief, shall be available with
respect to the enforcement of such provisions.
Section 28. 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 ▇▇. ▇▇▇▇▇▇▇▇▇
under section 9(b) hereof (exclusive of amounts described in section
9(b)(i), (viii) and (ix)) exceed the value of three times ▇▇. ▇▇▇▇▇▇▇▇▇'▇
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).
(b) Notwithstanding anything herein contained to the contrary, any
payments to ▇▇. ▇▇▇▇▇▇▇▇▇ 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 Federal Deposit Insurance Corporation regulation 12 C.F.R.
Part 359, Golden Parachute and Indemnification Payments.
(c) Notwithstanding anything herein contained to the contrary, if ▇▇.
▇▇▇▇▇▇▇▇▇ is suspended 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 ▇▇. ▇▇▇▇▇▇▇▇▇ 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 ▇▇.
▇▇▇▇▇▇▇▇▇ 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
obligations of the Bank under this Agreement shall terminate as of the
effective date of the order, but vested rights of the Bank and ▇▇.
▇▇▇▇▇▇▇▇▇ shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, if the
Bank is in default (as defined in section 3(x)(1) of the FDI Act, all
obligations under this Agreement shall terminate as of the date of default,
but vested rights of the Bank and ▇▇. ▇▇▇▇▇▇▇▇▇ shall not be affected.
(f) Notwithstanding anything herein contained to the contrary, all
obligations under this Agreement shall be terminated, except to the extent
determined that continuation of this Agreement is necessary of the
continued operation of the Bank: (i) by the Director of the Office of
Thrift Supervision ("OTS") or his designee at the time the Federal Deposit
Insurance Corporation 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; (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 of the
parties shall not be affected by such action.
If and to the extent that any of the foregoing provisions is not, or shall cease
to be, required by applicable law, rule or regulation, the same shall became
inoperative in the case of the Bank as though eliminated by formal amendment of
this Agreement.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed and
▇▇. ▇▇▇▇▇▇▇▇▇ has hereunto set his hand, all as of the day and year first above
written.
/s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
ATTEST: FIRST FEDERAL SAVINGS BANK OF IOWA
By: /s/ ▇▇▇▇ ▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------- --------------------
Secretary Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman of the Board
[Seal]
STATE OF IOWA )
: ss.:
COUNTY OF ▇▇▇▇▇▇▇ )
On this 5th day of April, 2005, before me personally came C. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, 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.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Notary Public
STATE OF IOWA )
: ss.:
COUNTY OF ▇▇▇▇▇▇▇ )
On this 5th day of April, 2005, before me personally came ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
to me known, who, being by me duly sworn, did depose and say that he resides at
▇▇▇▇ ▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, that he is the Chairman of the Board of
Directors of FIRST FEDERAL SAVINGS BANK OF IOWA, 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.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Notary Public