EXHIBIT 10.4
FIRST FEDERAL SAVINGS BANK OF FRANKFORT
Employment Agreement with
R. ▇▇▇▇ ▇▇▇▇▇▇▇
AGREEMENT entered into and effective this 30TH day of JUNE, 2004, by
and between First Federal Savings Bank of Frankfort (the "Bank") and R. ▇▇▇▇
▇▇▇▇▇▇▇ (the "Employee").
WHEREAS, the Employee has heretofore been employed by First Federal
Savings Bank of Frankfort as its VICE PRESIDENT and is experienced in all phases
of the business of the Bank; and
WHEREAS, the Board of Directors (the "Board") of the Bank believes it
is in the best interests of the Bank to enter into this Agreement with the
Employee in order to assure continuity of management of the Bank and to
reinforce and encourage the continued attention and dedication of the Employee
to his assigned duties; and
WHEREAS, the parties desire by this writing to set forth the continuing
employment relationship of the Bank and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Defined Terms
When used anywhere in this Agreement, the following terms shall have
the meaning set forth herein.
(a) "Change in Control" shall mean any one of the following
events: (1) the acquisition of ownership, holding or power to vote more than 25
% of the voting stock of Frankfort First Bancorp, Inc. (the "Company") or the
Bank, (2) the acquisition of the ability to control the election of a majority
of the Bank's or the Company's directors, (3) the acquisition of a controlling
influence over the management or policies of the Bank or the Company by any
person or by persons acting as a "group" (within the meaning of Section 13(d) of
the Securities Exchange Act of 1934), (4) the acquisition of control of the Bank
or the Company within the meaning of 12 C.F.R. Part 574 or its applicable
equivalent (except in the case of (1), (2), (3) and (4) hereof, ownership or
control of the Bank by the Company itself shall not constitute a "change in
control"), or (5) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors of the Company or
the Bank (the "Existing Board") (the "Continuing Directors") cease for any
reason to constitute at least a majority thereof, provided that any individual
whose election or nomination for election as a member of the Existing Board was
approved by a vote of at least a majority of the Continuing Directors then in
office shall be considered a Continuing Director. For purposes of this
subparagraph only, the term "person" refers to an individual or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of
entity not specifically listed herein.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and as interpreted through applicable rulings and
regulations in effect from time to time.
(c) "Code Section 280G Maximum" shall mean the product of 2.99
and the Employee's "base amount" as defined in Code Section 280G(b)(3).
(d) "Disability" shall mean a physical or mental infirmity
which impairs the Employee's ability to substantially perform his duties under
this Agreement and which results in the Employee becoming eligible for long-term
disability benefits under the Bank's long-term disability plan (or, if the Bank
has no such plan in effect, which impairs the Employee's ability to
substantially perform his duties under this Agreement for a period of 180
consecutive days).
(e) "Effective Date" shall mean the date referenced in the
opening paragraph of this Agreement.
(f) "Good Reason" shall mean any of the following events,
which has not been consented to in advance by the Employee in writing: (i) the
requirement that the Employee move his personal residence, or perform his
principal executive functions, more than 30 miles from his primary office as of
the later of the Effective Date and the most recent voluntary relocation by the
Employee; (ii) a material reduction in the Employee's base compensation under
this Agreement as the same may be increased from time to time; (iii) the failure
by the Bank or the Company to continue to provide the Employee with compensation
and benefits provided under this Agreement as the same may be increased from
time to time, or with benefits substantially similar to those provided to him
under any of the employee benefit plans in which the Employee now or hereafter
becomes a participant, or the taking of any action by the Bank or the Company
which would directly or indirectly reduce any of such benefits or deprive the
Employee of any material fringe benefit enjoyed by him under this Agreement;
(iv) the assignment to the Employee of duties and responsibilities materially
different from those normally associated with his position; (v) a failure to
re-elect the Employee to the Board of Directors of the Bank or the Company, if
the Employee has served on such Board at any time during the term of the
Agreement; or (vi) a material diminution or reduction in the Employee's
responsibilities or authority (including reporting responsibilities) in
connection with his employment with the Bank.
(g) "Just Cause" shall mean, in the good faith determination
of the Bank's Board of Directors, the Employee's 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 material breach of any provision of this
Agreement. The Employee shall have no right to receive compensation or other
benefits for any period after termination for Just Cause. No act, or failure to
act, on the Employee's part shall be considered "WILLFUL" unless he has acted,
or failed to act, with an absence of good faith and without a
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reasonable belief that his action or failure to act was in the best interest of
the Bank and the Company.
(h) "Protected Period" shall mean the period that begins on
the date six months before a Change in Control and ends on the later of the
second annual anniversary of the Change in Control or the expiration date of
this Agreement.
(i) "Trust" shall mean a grantor trust that is designed in
accordance with Revenue Procedure 92-64 and has a trustee independent of the
Bank and the Company.
2. Employment. The Employee is employed as the VICE PRESIDENT OF THE
BANK. The Employee shall render such administrative and management services for
the Bank as are currently rendered and as are customarily performed by persons
situated in a similar executive capacity. The Employee shall also promote, by
entertainment or otherwise, as and to the extent permitted by law, the business
of the Bank. The Employee's other duties shall be such as the Board may from
time to time reasonably direct, including normal duties as an officer of the
Bank.
3. Base Compensation. The Bank agrees to pay the Employee during the
term of this Agreement a salary at the rate of $72,885 per annum, payable in
cash not less frequently than monthly. The Board shall review, not less often
than annually, the rate of the Employee's salary, and in its sole discretion may
decide to increase his salary.
4. Discretionary Bonus. The Employee shall participate in an equitable
manner with all other senior management employees of the Bank in discretionary
bonuses that the Board may award from time to time to the Bank's senior
management employees. No other compensation provided for in this Agreement shall
be deemed a substitute for the Employee's right to participate in such
discretionary bonuses.
5. Participation in Retirement, Medical and Other Plans.
(a) The Employee shall be eligible to participate in any of
the following plans or programs that the Bank may now or in the future maintain:
group hospitalization, disability, health, dental, sick leave, life insurance,
travel and/or accident insurance, auto allowance/auto lease, retirement,
pension, and/or other present or future qualified or nonqualified plans provided
by the Bank, generally which benefits, taken as a whole, must be at least as
favorable as those in effect on the Effective Date.
(b) The Employee shall also be eligible to participate in any
fringe benefits which are or may become available to the Bank's senior
management employees, including for example: any stock option or incentive
compensation plans, and any other benefits which are commensurate with the
responsibilities and functions to be performed by the Employee under this
Agreement. The Employee shall be reimbursed for all reasonable out-of-pocket
business expenses which he shall incur in connection with his services under
this Agreement upon substantiation of such expenses in accordance with the
policies of the Bank.
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6. Term. The Bank hereby employs the Employee, and the Employee hereby
accepts such employment under this Agreement, for the period commencing on the
Effective Date and ending 36 months thereafter (or such earlier date as is
determined in accordance with Section 10 or 12 hereof). Additionally, on each
annual anniversary date from the Effective Date, the Employee's term of
employment shall be extended for an additional one-year period beyond the then
effective expiration date, provided the Board determines in a duly adopted
resolution that the performance of the Employee has met the Board's requirements
and standards, and that this Agreement shall be extended. Only those members of
the Board of Directors who have no personal interest in this Employment
Agreement shall discuss and vote on the approval and subsequent review of this
Agreement,
7. Loyalty; Noncompetition.
(a) During the period of his employment hereunder and except for
illnesses, reasonable vacation periods, and reasonable leaves of absence, the
Employee shall devote all his full business time, attention, skill, and efforts
to the faithful performance of his duties hereunder; provided, however, from
time to time, the Employee may serve on the boards of directors of, and hold any
other offices or positions in, companies or organizations, which will not
present any conflict of interest with the Bank or any of its subsidiaries or
affiliates, or unfavorably affect the performance of the Employee's duties
pursuant to this Agreement, or will not violate any applicable statute or
regulation. "Full business time" is hereby defined as that amount of time
usually devoted to like companies by similarly situated executive officers.
During the term of his employment under this Agreement, the Employee shall not
engage in any business or activity contrary to the business affairs or interests
of the Bank.
(b) Nothing contained in this Section shall be deemed to prevent or
limit the Employee's right to invest in the capital stock or other securities of
any business dissimilar from that of the Bank, or, solely as a passive or
minority investor, in any business.
8. Standards. The Employee shall perform his duties under this
Agreement in accordance with such reasonable standards as the Board may
establish from time to time. The Bank will provide the Employee with the working
facilities and staff customary for similar executives and necessary for him to
perform his duties.
9. Vacation and Sick Leave. At such reasonable times as the Board shall
in its discretion permit, the Employee shall be entitled, without loss of pay,
to absent himself voluntarily from the performance of his employment under this
Agreement, all such voluntary absences to count as vacation time, provided that:
(a) The Employee shall be entitled to an annual vacation in
accordance with the policies that the Board periodically establishes for senior
management employees of the Bank.
(b) The Employee shall accumulate any unused vacation and/or
sick leave from one fiscal year to the next, in either case to the extent
authorized by the Board, provided that the Board shall not reduce previously
accumulated vacation or sick leave.
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(c) In addition to the aforesaid paid vacations, the Employee
shall be entitled without loss of pay, to absent himself voluntarily from the
performance of his employment with the Bank for such additional periods of time
and for such valid and legitimate reasons as the Board may in its discretion
determine. Further, the Board may grant to the Employee a leave or leaves of
absence, with or without pay, at such time or times and upon such terms and
conditions as such Board in its discretion may determine.
(d) In addition, the Employee shall be entitled to an annual
sick leave benefit as established by the Board.
10. Termination and Termination Pay. Subject to Section 12 hereof, the
Employee's employment hereunder may be terminated under the following
circumstances:
(a) Death. The Employee's employment under this Agreement
shall terminate upon his death during the term of this Agreement, in which event
the Employee's estate shall be entitled to receive the compensation due the
Employee through the last day of the calendar month in which his death occurred.
(b) Disability. (1) The Bank may terminate the Employee's
employment after having established the Employee's Disability, in which event
the Employee shall be entitled to the compensation and benefits provided for
under this Agreement for (i) any period during the term of this Agreement and
prior to the establishment of the Employee's Disability during which the
Employee is unable to work due to the physical or mental infirmity, and (ii) any
period of Disability which is prior to the Employee's termination of employment
pursuant to this Section 10(b); provided that any benefits paid pursuant to the
Bank's long term disability plan will continue as provided in such plan without
reduction for payments made pursuant to this Agreement. (2) During any period
that the Employee shall receive disability benefits and to the extent that the
Employee shall be physically and mentally able to do so, he shall furnish such
information, assistance and documents so as to assist in the continued ongoing
business of the Bank and, if able, shall make himself available to the Bank to
undertake reasonable assignments consistent with his prior position and his
physical and mental health. The Bank shall pay all reasonable expenses incident
to the performance of any assignment given to the Employee during the disability
period.
(c) Just Cause. The Board may, by written notice to the
Employee, immediately terminate his employment at any time, for Just Cause. The
Employee shall have no right to receive compensation or other benefits for any
period after termination for Just Cause.
(d) Without Just Cause - Constructive Discharge. The Board
may, by written notice to the Employee, immediately terminate his employment at
any time for a reason other than his Disability or Just Cause, in which event
the Employee shall be entitled to receive the following compensation and
benefits (unless such termination occurs during the Protected Period, in which
event the benefits and compensation provided for in Section 12 shall apply):
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(i) the salary provided pursuant to Section 3 hereof, up to
the expiration date of this Agreement, including any renewal term (the
"Expiration Date"), plus said salary for an additional 12-month period,
and
(ii) cash in an amount equal to the cost to the Employee of
obtaining all health, life, disability and other benefits which the
Employee would have been eligible to participate in through the
Expiration Date based upon the benefit levels substantially equal to
those that the Bank provided for the Employee at the date of
termination of employment.
All amounts payable to the Employee shall be paid, at the option of the
Employee, in one lump sum within ten days of such termination.
(e) Good Reason. The Employee shall be entitled to receive the
compensation and benefits payable under subsection 10(d) hereof in the event
that the Employee voluntarily terminates employment within 90 days of an event
that constitutes Good Reason, (unless such voluntary termination occurs during
the Protected Period, in which event the benefits and compensation provided for
in Section 12 shall apply).
(f) Termination or Suspension Under Federal Law. (1) If the
Employee is removed and/or permanently prohibited from participating in the
conduct of the Bank's affairs by an order issued under Sections 8(e)(4) or
8(g)(1) of the Federal Deposit Insurance Act ("FDIA") (12 U.S.C. 1818(e)(4) and
(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 parties shall not be
affected. (2) If the Bank is in default (as defined in Section 3(x)(1) of FDIA),
all obligations under this Agreement shall terminate as of the date of default;
however, this Paragraph shall not affect the vested rights of the parties. (3)
If a notice served under Section 8(e)(3) or (g)(1) of the FDIA (12 U.S.C.
1818(e)(3) or (g)(1)) suspends and/or temporarily prohibits the Employee from
participating in the conduct of the Bank's affairs, the Bank's obligations under
this Agreement shall be suspended as of the date of such service, unless stayed
by appropriate proceedings. If the charges in the notice are dismissed, the Bank
may in its discretion (i) pay the Employee all or part of the compensation
withheld while its contract obligations were suspended, and (ii) reinstate (in
whole or in part) any of its obligations which were suspended. (4) All
obligations under this Agreement shall terminate, except to the extent
determined that continuation of this Agreement is necessary for the continued
operation of the Association: (i) by the Director of the Office of Thrift
Supervision ("Director of OTS"), or his or her designee, at the time that the
Federal Deposit Insurance Corporation ("FDIC") or the Resolution Trust
Corporation enters into an agreement to provide assistance to or on behalf of
the Association under the authority contained in Section 13(c) of FDIA; or (ii)
by the Director of the OTS, or his or her designee, at the time that the
Director of the OTS, or his or her designee, approves a supervisory merger to
resolve problems related to operation of the Association or when the Association
is determined by the Director of the OTS to be in an unsafe or unsound
condition. Such action shall not affect any vested rights of the parties. (5)
Any payments made to the Employee pursuant to this Agreement, or otherwise, are
subject to and conditioned upon their compliance with both 12 U.S.C. Section
1828(k) and any regulations promulgated thereunder, and Regulatory Bulletin
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27A, but only to the extent required thereunder on the date any payment is
required pursuant to this Agreement.
(g) Voluntary Termination by Employee. Subject to Section 12
hereof, the Employee may voluntarily terminate employment with the Bank during
the term of this Agreement, upon at least 90 days' prior written notice to the
Board of Directors, in which case the Employee shall receive only his
compensation, vested rights and employee benefits up to the date of his
termination (unless such termination occurs pursuant to Section 10(d) hereof or
within the Protected Period, in Section 12(a) hereof, in which event the
benefits and compensation provided for in Sections 10(d) or 12, as applicable,
shall apply).
11. No Mitigation. The Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to the Employee in any subsequent employment.
12. Change in Control.
(a) Trigger Events. The Employee shall be entitled to collect
the severance benefits set forth in Subsection (b) hereof in the event that
either (i) the Employee voluntarily terminates employment for any reason within
the 30-day period beginning on the date of a Change in Control, (ii) the
Employee voluntarily terminates employment within 90 days of an event that both
occurs during the Protected Period and constitutes Good Reason, or (iii) the
Bank or the Company or their successor(s) in interest terminate the Employee's
employment without his written consent and for any reason other than Just Cause
during the Protected Period.
(b) Amount of Severance Benefit. If the Employee becomes
entitled to collect severance benefits pursuant to Section 12(a) hereof, the
Bank shall pay the Employee a severance benefit equal to the difference between
the Code Section 280G Maximum and the sum of any other "parachute payments" as
defined under Code Section 280G(b)(2) that the Employee receives on account of
the Change in Control.
The amount payable under this Section 12(b) shall be paid in one lump
sum within ten days of the later of the date of the Change in Control and the
Employee's last day of employment with the Bank or the Company.
In the event that the Employee, the Bank, and the Company jointly agree
that the Employee has collected an amount exceeding the Code Section 280G
Maximum, the parties may agree in writing that such excess shall be treated as a
loan ab initio, which the Employee shall repay to the Bank, on terms and
conditions mutually agreeable to the parties, together with interest at 120% of
the applicable federal rate compounded semiannually provided for in Section
7872(f)(2)(B) of the Code.
13. Indemnification. The Bank and the Company agree that their
respective Bylaws shall continue to provide for indemnification of directors,
officers, employees and agents of the
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Bank and the Company, including the Employee during the full term of this
Agreement, and to at all times provide adequate insurance for such purposes.
14. Reimbursement of Employee for Enforcement Proceedings. In the event
that any dispute arises between the Employee and the Bank as to the terms or
interpretation of this Agreement, whether instituted by formal legal proceedings
or otherwise, including any action that the Employee takes to defend against any
action taken by the Bank or the Company, the Employee shall be reimbursed for
all costs and expenses, including reasonable attorneys' fees, arising from such
dispute, proceedings or actions, provided that the Employee obtains either a
written settlement or a final judgment by a court of competent jurisdiction
substantially in his favor. Such reimbursement shall be paid within ten days of
the Employee's furnishing to the Bank written evidence, which may be in the
form, among other things, of a canceled check or receipt, of any costs or
expenses incurred by the Employee.
15. Federal Income Tax Withholding. The Bank may withhold all federal
and state income or other taxes from any benefit payable under this Agreement as
shall be required pursuant to any law or government regulation or ruling.
16. Successors and Assigns.
(a) Bank. This Agreement shall not be assignable by the Bank,
provided that this Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of the Bank which shall acquire, directly or
indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets or stock of the Bank.
(b) Employee. Since the Bank is contracting for the unique and
personal skills of the Employee, the Employee shall be precluded from assigning
or delegating his rights or duties hereunder without first obtaining the written
consent of the Bank; provided, however, that nothing in this paragraph shall
preclude (i) the Employee from designating a beneficiary to receive any benefit
payable hereunder upon his death, or (ii) the executors, administrators, or
other legal representatives of the Employee or his estate from assigning any
rights hereunder to the person or persons entitled thereunto.
(c) Attachment. 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 exclusion, attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect.
17. Amendments. No amendments or additions to this Agreement shall be
binding unless made in writing and signed by all of the parties, except as
herein otherwise specifically provided.
18. Applicable Law. Except to the extent preempted by Federal law, the
laws of the Commonwealth of Kentucky shall govern this Agreement in all
respects, whether as to its validity, construction, capacity, performance or
otherwise.
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19. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
20. Entire Agreement. This Agreement, together with any understanding
or modifications thereof as agreed to in writing by the parties, shall
constitute the entire agreement between the parties hereto and shall supersede
any prior agreement between the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
ATTEST: FIRST FEDERAL SAVINGS BANK OF FRANKFORT
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- ----------------------------------------
Secretary Its Chairman of the Board
WITNESS:
/s/ ▇▇▇▇▇▇ ▇▇▇▇ /s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------- --------------------------------------------
R. ▇▇▇▇ ▇▇▇▇▇▇▇
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FIRST FEDERAL SAVINGS BANK OF FRANKFORT
AMENDMENT TO
EMPLOYMENT AGREEMENT
WITH R. ▇▇▇▇ ▇▇▇▇▇▇▇
WHEREAS, R. ▇▇▇▇ ▇▇▇▇▇▇▇ (the "Employee") originally entered into an
employment agreement with First Federal Savings Bank of Frankfort (the "Bank"),
dated as of June 30th, 2004 (the "Agreement"); and
WHEREAS, the Bank and the Employee desire to amend the Agreement to
provide that neither the execution of a merger agreement nor the completion of a
merger with First Federal Savings and Loan Association of Hazard, Kentucky,
and/or any affiliate thereof formed in connection with said merger, will
constitute a "Change in Control" or "Good Reason" for termination for purposes
of any severance benefit obligations provided for under Sections 10 and 12 of
the Agreement; and
WHEREAS, Section 17 of the Agreement provides that the Agreement may be
amended by means of a written instrument signed by the parties.
NOW, THEREFORE, the Bank and the Employee hereby agree to amend the
Agreement, effective as of the date hereof, as follows:
FIRST CHANGE
Section 1(a) is hereby amended to add the following sentence
at the end thereof:
Notwithstanding anything herein to the contrary, neither the
execution of a merger agreement nor the completion of a merger
with First Federal Savings and Loan Association of Hazard,
Kentucky, and/or any affiliate thereof formed in connection
with said merger, shall constitute a Change in Control for
purposes of this Section 1(a) and, further, said merger shall
not constitute an event that would entitle the Employee to a
severance benefit pursuant to Section 12 of this Agreement.
SECOND CHANGE
Section 1(f) is hereby amended to add the following sentence
at the end thereof:
Notwithstanding anything herein to the contrary, neither the
execution of a merger agreement nor the completion of a merger
with First Federal Savings and Loan Association of Hazard,
Kentucky, and/or any affiliate thereof formed in connection
with said merger, shall constitute Good Reason for purposes of
clause (iv) or clause (vi) hereof.
IN WITNESS WHEREOF, the Bank has caused this Amendment to the Agreement
to be executed by its duly authorized officer, and the Employee has signed this
Amendment, on this 15th day of July, 2004.
ATTEST: FIRST FEDERAL SAVINGS BANK OF FRANKFORT
/s/ ▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Chairman of the Board
WITNESS:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇
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R. ▇▇▇▇ ▇▇▇▇▇▇▇