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EXHIBIT 10.3(a)
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into this 13th day of June, 1996, by and
between First Federal Savings and Loan Association (the "Association") and ▇▇▇▇
▇. ▇▇▇▇▇▇▇ (the "Employee"), effective on the date (the "Effective Date") this
agreement is executed.
WHEREAS, the Employee has heretofore been employed by the Association
as its President and is experienced in all phases of the business of the
Association; and
WHEREAS, the Board of Directors of the Association believes it is in
the best interests of the Association to enter into this Agreement with the
Employee in order to assure continuity of management of the Association and to
reinforce and encourage the continued attention and dedication of the Employee
to her assigned duties; and
WHEREAS, the parties desire by this writing to set forth the
continuing employment relationship of the Association 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) "Affiliate" shall mean any "parent corporation" or
"subsidiary corporation" of the Association, as the terms are defined in
Section 424(e) and (f), respectively, of the Code.
(b) When the Association is in the "mutual" form of
organization, a "Change in Control" shall be deemed to have occurred if:
(i) as a result of, or in connection with, any
exchange offer, merger or other business combination, sale of assets
or contested election, any combination of the foregoing transactions,
or any similar transaction, the persons who were non-employee
directors of the Association before such transaction cease to
constitute a majority of the Board of Directors of the Association or
any successor to the Association;
(ii) the Association transfers substantially all of
its assets to another corporation which is not an Affiliate of the
Association;
(iii) the Association sells substantially all of the
assets of an Affiliate which accounted for 50% or more of the
controlled group's assets immediately prior to such sale;
(iv) any "person" including a "group", exclusive of
the Board of Directors of the Association or any committee thereof, is
or becomes the "beneficial owner", directly
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or indirectly, of proxies of the Association representing twenty-five
percent (25%) or more of the combined voting power of the
Association's members; or
(v) the Association is merged or consolidated with
another corporation and, as a result of the merger or consolidation,
less than seventy percent (70%) of the outstanding proxies relating to
the surviving or resulting corporation are given, in the aggregate, by
the former members of the Association.
(c) If the Association is in the "stock" form of
organization, a "Change in Control" shall be deemed to have occurred if:
(i) as a result of, or in connection with, any
initial public offering, tender offer or exchange offer, merger or
other business combination, sale of assets or contested election, any
combination of the foregoing transactions, or any similar transaction,
the persons who were non-employee directors of the Association before
such transaction cease to constitute a majority of the Board of
Directors of the Association or any successor to the Association;
(ii) the Association transfers substantially all of
its assets to another corporation which is not an Affiliate of the
Association;
(iii) the Association sells substantially all of the
assets of a subsidiary or affiliate which accounted for 50% or more of
the controlled group's assets immediately prior to such sale;
(iv) any "person" including a "group" is or becomes
the "beneficial owner", directly or indirectly, of securities of the
Association representing twenty-five percent (25%) or more of the
combined voting power of the Association's outstanding securities
(with the terms in quotation marks having the meaning set forth under
the federal securities laws); or
(v) the Association is merged or consolidated with
another corporation and, as a result of the merger or consolidation,
less than seventy percent (70%) of the outstanding voting securities
of the surviving or resulting corporation is owned in the aggregate by
the former stockholders of the Association.
Notwithstanding the foregoing, a "Change in Control" shall not be
deemed to occur solely by reason of a transaction in which the Association
converts to the stock form of organization, or creates an independent holding
company in connection therewith.
(d) "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.
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(e) "Code Section 280G Maximum" shall mean product of
2.99 and her "base amount" as defined in Code Section 280G(b)(3).
(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 her personal residence, or perform her
principal executive functions, more than thirty (30) miles from her 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 Association 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 her 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
Association which would directly or indirectly reduce any of such benefits or
deprive the Employee of any material fringe benefit enjoyed by her under this
Agreement; (iv) the assignment to the Employee of duties and responsibilities
materially different from those normally associated with her position; (v) a
failure to reelect the Employee to the Board of Directors of the Association,
if the Employee has served on such Board at any time during the term of the
Agreement; (vi) a material diminution or reduction in the Employee's
responsibilities or authority (including reporting responsibilities) in
connection with her employment with the Association; or (vii) a material
reduction in the secretarial or other administrative support of the Employee.
In addition, "Good Reason" shall mean an impairment of the Employee's health to
an extent that it makes continued performance of her duties hereunder hazardous
to her physical or mental health.
(g) "Just Cause" shall mean, in the good faith
determination of the Association'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 she has acted, or failed to act, with an absence of good faith and
without a reasonable belief that her action or failure to act was in the best
interest of the Association.
(h) "Protected Period" shall mean the period that begins
on the date one year before the Change in Control and ends on the closing date
of the Change in Control.
(i) "Trust" shall mean a grantor trust that is designed
in accordance with Revenue Procedure 92-64 and has a trustee independent of the
Association.
2. Employment. The Employee is employed as the
President of the Association. The Employee shall render such administrative
and management services for the Association 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
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permitted by law, the business of the Association. The Employee's other duties
shall be such as the Board of Directors (the "Board") of the Association may
from time to time reasonably direct, including normal duties as an officer of
the Association.
3. Base Compensation. The Association agrees to pay the
Employee during the term of this Agreement a salary at the rate of $______ 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 her salary. Notwithstanding the
foregoing, following a Change in Control, the Board of Directors of the
Association shall continue to annually review the rate of the Employee's
salary, and shall increase said rate of salary by a percentage which is not
less than the average annual percentage increase in salary that the Employee
received over the three calendar years immediately preceding the year in which
the Change in Control occurs.
4. Discretionary Bonuses. The Employee shall
participate in an equitable manner with all other senior management employees
of the Association in discretionary bonuses that the Board may award from time
to time to the Association'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.
Notwithstanding the foregoing, following a Change in Control, the Employee
shall receive discretionary bonuses that are made no less frequently than, and
in annual amounts not less than, the average annual discretionary bonuses paid
to the Employee during each of the three calendar years immediately preceding
the year in which such Change in Control occurs.
5. (a) Participation in Retirement, Medical and
Other Plans. During the term of this Agreement, the Employee shall be eligible
to participate in the following benefit plans: 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 plans provided by the Association, generally which
benefits, taken as a whole, must be at least as favorable as those in effect on
the Effective Date.
(b) Employee Benefits; Expenses. The Employee
shall be eligible to participate in any fringe benefits which are or may become
available to the Association'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 she shall
incur in connection with her services under this Agreement upon substantiation
of such expenses in accordance with the policies of the Association.
6. Term. The Association hereby employs the Employee,
and the Employee hereby accepts such employment under this Agreement, for the
period commencing on the Effective Date and ending thirty-six months thereafter
(or such earlier date as is determined in accordance with Section 9).
Additionally, on each annual anniversary date from the Effective Date, the
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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 her employment
hereunder and except for illnesses, reasonable vacation periods, and reasonable
leaves of absence, the Employee shall devote all her full business time,
attention, skill, and efforts to the faithful performance of her duties
hereunder; provided, however, from time to time, 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
Association or any of its subsidiaries or affiliates, or unfavorably affect the
performance of 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 her employment under this
Agreement, the Employee shall not engage in any business or activity contrary
to the business affairs or interests of the Association, or be gainfully
employed in any other position or job other than as provided above.
(b) Permissible Investments. 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 Association, or, solely as a passive or minority investor, in any
business.
8. Standards. The Employee shall perform her duties
under this Agreement in accordance with such reasonable standards as the Board
may establish from time to time. The Association will provide Employee with
the working facilities and staff customary for similar executives and necessary
for her to perform her 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 herself voluntarily from the performance of her
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 Association.
(b) The Employee shall not receive any
additional compensation from the Association on account of her failure to take
a vacation or sick leave, and the Employee shall not
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accumulate unused vacation or sick leave from one fiscal year to the next,
except in either case to the extent authorized by the Board.
(c) In addition to the aforesaid paid
vacations, the Employee shall be entitled without loss of pay, to absent
herself voluntarily from the performance of her employment with the Association
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 her 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 her death occurred.
(b) Disability. (1) The Association may
terminate the Employee's employment after having established the Employee's
Disability. For purposes of this Agreement, "Disability" means a physical or
mental infirmity which impairs the Employee's ability to substantially perform
her duties under this Agreement and which results in the Employee becoming
eligible for long-term disability benefits under the Association's long-term
disability plan (or, if the Association has no such plan in effect, which
impairs the Employee's ability to substantially perform her duties under this
Agreement for a period of one hundred eighty (180) consecutive days). 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, or (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
Association's long term disability plan will continue as provided in such plan.
(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, she shall furnish such information, assistance and documents so
as to assist in the continued ongoing business of the Association and, if able,
shall make herself available to the Association to undertake reasonable
assignments consistent with her prior position and her physical and mental
health. The Association shall pay all reasonable expenses incident to the
performance of any assignment given to the Employee during the disability
period.
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(c) Just Cause. The Board may, by written
notice to the Employee, immediately terminate her 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.
(1) The Board may, by written notice to the Employee, immediately terminate her
employment at any time for a reason other than 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):
(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,
(ii) a put option meeting the requirements set forth in subsection 3
hereof, provided that the Employee shall not be entitled to such put
option if, on the date the Employee terminates employment, either the
Employee does not own any common stock of the Association or an
affiliated company, or such common stock is "readily tradeable" within
the meaning of Code Section 401(a)(28)(C); and
(iii) at the Employee's election either (A) 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 Association provided for
the Employee at the date of termination of employment or (B) continued
participation under such Association benefit plans through the
Expiration Date, but only to the extent the Employee continues to
qualify for participation therein. All amounts payable to the
Employee shall be paid, at the option of the Employee, either (I) in
periodic payments through the Expiration Date, or (II) in one lump sum
within ten (10) days of such termination.
(2) The Employee shall be entitled to receive the compensation and
benefits payable under subsection 10(d)(1) 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).
(3) A put option deliverable to the Employee pursuant to this Section
10(d) shall, at a minimum, obligate the Association and any successor to
purchase any shares of its common stock and the common stock of any affiliated
company that the Employee owns on the date of terminating employment. The
terms of such purchase shall be set forth in a written instrument prepared and
executed by the Association, and shall require that (i) the purchase price be
no less than the appraised value of such stock, determined in accordance with
Code Section 401(a)(28)(C) by
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an appraiser mutually agreed upon by the Employee and the Association, as of
the last day of the fiscal year in which the Employee's employment terminates,
and (ii) the Association make such payment as soon as practicable after the
Association receives said appraisal.
(e) Termination or Suspension Under Federal
Law. (1) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Association'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 Association under
this Agreement shall terminate, as of the effective date of the order, but
vested rights of the parties shall not be affected.
(1) If the Association 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.
(2) All obligations under this Agreement shall
terminate, except to the extent 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.
(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 Association's
affairs, the Association'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 Association 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) Any payments made to the Employee pursuant to
this Agreement, or otherwise, are subject to and conditioned upon their
compliance with 12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder.
(f) Voluntary Termination by Employee. Subject
to Section 12 hereof, the Employee may voluntarily terminate employment with
the Association during the term of this Agreement, upon at least ninety (90)
days' prior written notice to the Board of Directors, in which case the
Employee shall receive only her compensation, vested rights and employee
benefits up to the date of her termination (unless such termination occurs
pursuant to Section
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10(d)(2) 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 lieu of any benefits under Section 10 hereof in the event that (i) a Change
in Control occurs, or (ii) the Association or its successor(s) in interest
terminate the Employee's employment without her 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 Association shall:
(i) 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, and
(ii) pay for long-term disability and
provide such medical benefits as are available to the
Employee under the provisions of COBRA, for eighteen
(18) months (or such longer period, up to 24 months,
if COBRA is amended).
Said sum shall be paid in one lump sum within ten
(10) days of the later of the date of the Change in Control and the Employee's
last day of employment with the Association, provided that the Employee may
elect at any time on or before becoming entitled to collect benefits hereunder,
to have such benefits be paid in substantially equal installments over a period
of up to 10 years. In the event that the Employee and the Association 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 Association, on terms
and conditions mutually agreeable to the parties, together with interest at the
applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(c) Funding of Grantor Trust upon Change in
Control. Not later than ten business days after a Change in Control, the
Association shall (i) deposit in a Trust an amount equal to the Code Section
280G Maximum, unless the Employee has previously provided a written release of
any claims under this Agreement, and (ii) provide the trustee of the Trust with
a written direction to hold said amount and any investment return thereon in a
segregated account for the benefit of the Employee, and to follow the
procedures set forth in the next paragraph as
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to the payment of such amounts from the Trust. Upon the later of the Trust's
final payment of all amounts due under the following paragraph or the date
twelve months after the Change in Control, the trustee of the Trust shall pay
to the Association the entire balance remaining in the segregated account
maintained for the benefit of the Employee. The Employee shall thereafter have
no further interest in the Trust.
During the 12-consecutive month period after a Change in Control, the
Employee may provide the trustee of the Trust with a written notice requesting
that the trustee pay to the Employee an amount designated in the notice as
being payable pursuant to this Agreement. Within three business days after
receiving said notice, the trustee of the Trust shall send a copy of the notice
to the Association via overnight and registered mail return receipt requested.
On the tenth (10th) business day after mailing said notice to the Association,
the trustee of the Trust shall pay the Employee the amount designated therein
in immediately available funds, unless prior thereto the Association provides
the trustee with a written notice directing the trustee to withhold such
payment. In the latter event, the trustee shall submit the dispute to
non-appealable binding arbitration for a determination of the amount payable to
the Employee pursuant to this Agreement, and the costs of such arbitration
shall be paid by the Association. The trustee shall choose the arbitrator to
settle the dispute, and such arbitrator shall be bound by the rules of the
American Arbitration Association in making his determination. The parties and
the trustee shall be bound by the results of the arbitration and, within 3 days
of the determination by the arbitrator, the trustee shall pay from the Trust
the amounts required to be paid to the Employee and/or the Association, and in
no event shall the trustee be liable to either party for making the payments as
determined by the arbitrator.
13. Indemnification. The Association agrees that its
Bylaws shall continue to provide for indemnification of directors, officers,
employees and agents of the Association, 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
Association 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 Association, 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 judgement by a
court of competent jurisdiction substantially in her favor. Such reimbursement
shall be paid within ten (10) days of Employee's furnishing to the Association
written evidence, which may be in the form, among other things, of a cancelled
check or receipt, of any costs or expenses incurred by the Employee.
15. Federal Income Tax Withholding. The Association 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.
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16. Successors and Assigns.
(a) Association. This Agreement shall not be
assignable by the Association, provided that this Agreement shall inure to the
benefit of and be binding upon any corporate or other successor of the
Association which shall acquire, directly or indirectly, by merger,
consolidation, purchase or otherwise, all or substantially all of the assets of
the Association.
(b) Employee. Since the Association is
contracting for the unique and personal skills of the Employee, the Employee
shall be precluded from assigning or delegating her rights or duties hereunder
without first obtaining the written consent of the Association; provided,
however, that nothing in this paragraph shall preclude (i) the Employee from
designating a beneficiary to receive any benefit payable hereunder upon her
death, or (ii) the executors, administrators, or other legal representatives of
the Employee or her 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 State of Arkansas shall govern this Agreement in
all respects, whether as to its validity, construction, capacity, performance
or otherwise.
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first hereinabove written.
ATTEST: FIRST FEDERAL SAVINGS AND
LOAN ASSOCIATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------- ----------------------------------
Secretary Its Board Member
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WITNESS:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------- --------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into this 13th day of June, 1996, by and
between First Federal Savings and Loan Association (the "Association") and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Employee"), effective on the date (the "Effective
Date") this agreement is executed.
WHEREAS, the Employee has heretofore been employed by the Association
as its Executive Vice President and is experienced in all phases of the
business of the Association; and
WHEREAS, the Board of Directors of the Association believes it is in
the best interests of the Association to enter into this Agreement with the
Employee in order to assure continuity of management of the Association and to
reinforce and encourage the 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 Association 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) "Affiliate" shall mean any "parent corporation" or
"subsidiary corporation" of the Association, as the terms are defined in
Section 424(e) and (f), respectively, of the Code.
(b) When the Association is in the "mutual" form of
organization, a "Change in Control" shall be deemed to have occurred if:
(i) as a result of, or in connection with, any
exchange offer, merger or other business combination, sale of assets
or contested election, any combination of the foregoing transactions,
or any similar transaction, the persons who were non-employee
directors of the Association before such transaction cease to
constitute a majority of the Board of Directors of the Association or
any successor to the Association;
(ii) the Association transfers substantially all of
its assets to another corporation which is not an Affiliate of the
Association;
(iii) the Association sells substantially all of the
assets of an Affiliate which accounted for 50% or more of the
controlled group's assets immediately prior to such sale;
(iv) any "person" including a "group", exclusive of
the Board of Directors of the Association or any committee thereof, is
or becomes the "beneficial owner", directly
14
or indirectly, of proxies of the Association representing twenty-five
percent (25%) or more of the combined voting power of the
Association's members; or
(v) the Association is merged or consolidated with
another corporation and, as a result of the merger or consolidation,
less than seventy percent (70%) of the outstanding proxies relating to
the surviving or resulting corporation are given, in the aggregate, by
the former members of the Association.
(c) If the Association is in the "stock" form of
organization, a "Change in Control" shall be deemed to have occurred if:
(i) as a result of, or in connection with, any
initial public offering, tender offer or exchange offer, merger or
other business combination, sale of assets or contested election, any
combination of the foregoing transactions, or any similar transaction,
the persons who were non-employee directors of the Association before
such transaction cease to constitute a majority of the Board of
Directors of the Association or any successor to the Association;
(ii) the Association transfers substantially all of
its assets to another corporation which is not an Affiliate of the
Association;
(iii) the Association sells substantially all of the
assets of an Affiliate which accounted for 50% or more of the
controlled group's assets immediately prior to such sale;
(iv) any "person" including a "group" is or becomes
the "beneficial owner", directly or indirectly, of securities of the
Association representing twenty-five percent (25%) or more of the
combined voting power of the Association's outstanding securities
(with the terms in quotation marks having the meaning set forth under
the federal securities laws); or
(v) the Association is merged or consolidated with
another corporation and, as a result of the merger or consolidation,
less than seventy percent (70%) of the outstanding voting securities
of the surviving or resulting corporation is owned in the aggregate by
the former stockholders of the Association.
Notwithstanding the foregoing, a "Change in Control" shall not be
deemed to occur solely by reason of a transaction in which the Association
converts to the stock form of organization, or creates an independent holding
company in connection therewith.
(d) "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.
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(e) "Code Section 280G Maximum" shall mean product of
2.99 and his "base amount" as defined in Code Section 280G(b)(3).
(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 thirty (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 Association 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
Association 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 reelect the Employee to the Board of Directors of the Association,
if the Employee has served on such Board at any time during the term of the
Agreement; (vi) a material diminution or reduction in the Employee's
responsibilities or authority (including reporting responsibilities) in
connection with his employment with the Association; or (vii) a material
reduction in the secretarial or other administrative support of the Employee.
In addition, "Good Reason" shall mean an impairment of the Employee's health to
an extent that it makes continued performance of his duties hereunder hazardous
to his physical or mental health.
(g) "Just Cause" shall mean, in the good faith
determination of the Association'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 reasonable belief that his action or failure to act was in the best
interest of the Association.
(h) "Protected Period" shall mean the period that begins
on the date one year before the Change in Control and ends on the closing date
of the Change in Control.
(i) "Trust" shall mean a grantor trust that is designed
in accordance with Revenue Procedure 92-64 and has a trustee independent of the
Association.
2. Employment. The Employee is employed as the
Executive Vice President of the Association. The Employee shall render such
administrative and management services for the Association 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
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and to the extent permitted by law, the business of the Association. The
Employee's other duties shall be such as the Board of Directors (the "Board")
of the Association may from time to time reasonably direct, including normal
duties as an officer of the Association.
3. Base Compensation. The Association agrees to pay the
Employee during the term of this Agreement a salary at the rate of $______ 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. Notwithstanding the
foregoing, following a Change in Control, the Board of Directors of the
Association shall continue to annually review the rate of the Employee's
salary, and shall increase said rate of salary by a percentage which is not
less than the average annual percentage increase in salary that the Employee
received over the three calendar years immediately preceding the year in which
the Change in Control occurs.
4. Discretionary Bonuses. The Employee shall
participate in an equitable manner with all other senior management employees
of the Association in discretionary bonuses that the Board may award from time
to time to the Association'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.
Notwithstanding the foregoing, following a Change in Control, the Employee
shall receive discretionary bonuses that are made no less frequently than, and
in annual amounts not less than, the average annual discretionary bonuses paid
to the Employee during each of the three calendar years immediately preceding
the year in which such Change in Control occurs.
5. (a) Participation in Retirement, Medical and
Other Plans. During the term of this Agreement, the Employee shall be eligible
to participate in the following benefit plans: 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 plans provided by the Association, generally which
benefits, taken as a whole, must be at least as favorable as those in effect on
the Effective Date.
(b) Employee Benefits; Expenses. The Employee
shall be eligible to participate in any fringe benefits which are or may become
available to the Association'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 Association.
6. Term. The Association hereby employs the Employee,
and the Employee hereby accepts such employment under this Agreement, for the
period commencing on the Effective Date and ending thirty-six months thereafter
(or such earlier date as is determined in accordance with Section 9).
Additionally, on each annual anniversary date from the Effective Date, the
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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, 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
Association or any of its subsidiaries or affiliates, or unfavorably affect the
performance of 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 Association, or be gainfully
employed in any other position or job other than as provided above.
(b) Permissible Investments. 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 Association, 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 Association will provide 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 Association.
(b) The Employee shall not receive any
additional compensation from the Association on account of his failure to take
a vacation or sick leave, and the Employee shall not
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accumulate unused vacation or sick leave from one fiscal year to the next,
except in either case to the extent authorized by the Board.
(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 Association
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 Association may
terminate the Employee's employment after having established the Employee's
Disability. For purposes of this Agreement, "Disability" means 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 Association's long-term
disability plan (or, if the Association has no such plan in effect, which
impairs the Employee's ability to substantially perform his duties under this
Agreement for a period of one hundred eighty (180) consecutive days). 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, or (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
Association's long term disability plan will continue as provided in such plan.
(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 Association and, if able,
shall make himself available to the Association to undertake reasonable
assignments consistent with his prior position and his physical and mental
health. The Association shall pay all reasonable expenses incident to the
performance of any assignment given to the Employee during the disability
period.
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(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.
(1) The Board may, by written notice to the Employee, immediately terminate his
employment at any time for a reason other than 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):
(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,
(ii) a put option meeting the requirements set forth in subsection 3
hereof, provided that the Employee shall not be entitled to such put
option if on the date the Employee terminates employment, either the
Employee does not own any common stock of the Association or an
affiliated company, or such common stock is "readily tradeable" within
the meaning of Cod Section 401(a)(28)(C); and
(iii) at the Employee's election either (A) 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 Association provided for
the Employee at the date of termination of employment or (B) continued
participation under such Association benefit plans through the
Expiration Date, but only to the extent the Employee continues to
qualify for participation therein. All amounts payable to the
Employee shall be paid, at the option of the Employee, either (I) in
periodic payments through the Expiration Date, or (II) in one lump sum
within ten (10) days of such termination.
(2) The Employee shall be entitled to receive the compensation and
benefits payable under subsection 10(d)(1) 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).
(3) A put option deliverable to the Employee pursuant to this
Section 10(d) shall, at a minimum, obligate the Association and any successor
to purchase any shares of its common stock are the common stock of any
affiliated company that the Employee owns on the date of terminating
employment. The terms of such purchase shall be set forth in a written
instrument prepared and executed by the Association, and shall require that (i)
the purchase price be no less than the appraised value of such stock,
determined in accordance with Code Section 401(a)(28)(C), by an appraiser
mutually agreed upon by the Employee and the Association, as of the last day of
the
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fiscal year in which the Employee's employment terminates, and (ii) the
Association make such payment as soon as practicable after the Association
receives said appraisal.
(e) Termination or Suspension Under Federal
Law. (1) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Association'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 Association under
this Agreement shall terminate, as of the effective date of the order, but
vested rights of the parties shall not be affected.
(1) If the Association 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.
(2) All obligations under this Agreement shall
terminate, except to the extent 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.
(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 Association's
affairs, the Association'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 Association 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) Any payments made to the Employee pursuant to
this Agreement, or otherwise, are subject to and conditioned upon their
compliance with 12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder.
(f) Voluntary Termination by Employee. Subject
to Section 12 hereof, the Employee may voluntarily terminate employment with
the Association during the term of this Agreement, upon at least ninety (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)(2) 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).
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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 lieu of any benefits under Section 10 hereof in the event that (i) a Change
in Control occurs, or (ii) the Association or its 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 Association shall:
(i) 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, and
(ii) pay for long-term disability and
provide such medical benefits as are available to the
Employee under the provisions of COBRA, for eighteen
(18) months (or such longer period, up to 24 months,
if COBRA is amended).
Said sum shall be paid in one lump sum within ten
(10) days of the later of the date of the Change in Control and the Employee's
last day of employment with the Association, provided that the Employee may
elect at any time on or before becoming entitled to collect benefits hereunder,
to have such benefits be paid in substantially equal installments over a period
of up to 10 years. In the event that the Employee and the Association 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 Association, on terms
and conditions mutually agreeable to the parties, together with interest at the
applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(c) Funding of Grantor Trust upon Change in
Control. Not later than ten business days after a Change in Control, the
Association shall (i) deposit in a Trust an amount equal to the Code Section
280G Maximum, unless the Employee has previously provided a written release of
any claims under this Agreement, and (ii) provide the trustee of the Trust with
a written direction to hold said amount and any investment return thereon in a
segregated account for the benefit of the Employee, and to follow the
procedures set forth in the next paragraph as to the payment of such amounts
from the Trust. Upon the later of the Trust's final payment of all amounts due
under the following paragraph or the date twelve months after the Change in
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Control, the trustee of the Trust shall pay to the Association the entire
balance remaining in the segregated account maintained for the benefit of the
Employee. The Employee shall thereafter have no further interest in the Trust.
During the 12-consecutive month period after a Change in Control, the
Employee may provide the trustee of the Trust with a written notice requesting
that the trustee pay to the Employee an amount designated in the notice as
being payable pursuant to this Agreement. Within three business days after
receiving said notice, the trustee of the Trust shall send a copy of the notice
to the Association via overnight and registered mail return receipt requested.
On the tenth (10th) business day after mailing said notice to the Association,
the trustee of the Trust shall pay the Employee the amount designated therein
in immediately available funds, unless prior thereto the Association provides
the trustee with a written notice directing the trustee to withhold such
payment. In the latter event, the trustee shall submit the dispute to
non-appealable binding arbitration for a determination of the amount payable to
the Employee pursuant to this Agreement, and the costs of such arbitration
shall be paid by the Association. The trustee shall choose the arbitrator to
settle the dispute, and such arbitrator shall be bound by the rules of the
American Arbitration Association in making his determination. The parties and
the trustee shall be bound by the results of the arbitration and, within 3 days
of the determination by the arbitrator, the trustee shall pay from the Trust
the amounts required to be paid to the Employee and/or the Association, and in
no event shall the trustee be liable to either party for making the payments as
determined by the arbitrator.
13. Indemnification. The Association agrees that its
Bylaws shall continue to provide for indemnification of directors, officers,
employees and agents of the Association, 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
Association 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 Association, 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 judgement by a
court of competent jurisdiction substantially in his favor. Such reimbursement
shall be paid within ten (10) days of Employee's furnishing to the Association
written evidence, which may be in the form, among other things, of a cancelled
check or receipt, of any costs or expenses incurred by the Employee.
15. Federal Income Tax Withholding. The Association 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.
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16. Successors and Assigns.
(a) Association. This Agreement shall not be
assignable by the Association, provided that this Agreement shall inure to the
benefit of and be binding upon any corporate or other successor of the
Association which shall acquire, directly or indirectly, by merger,
consolidation, purchase or otherwise, all or substantially all of the assets of
the Association.
(b) Employee. Since the Association 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 Association; 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 State of Arkansas shall govern this Agreement in
all respects, whether as to its validity, construction, capacity, performance
or otherwise.
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first hereinabove written.
ATTEST: FIRST FEDERAL SAVINGS AND
LOAN ASSOCIATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- -----------------------------
Secretary Its Chairman of the Board
WITNESS:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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