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EXHIBIT 10.6
ARGO BANCORP, INC.
EMPLOYMENT AGREEMENT
This AGREEMENT is made effective as of November 1, 1999, by and among
ARGO BANCORP, INC. (the "Holding Company"), a Delaware corporation and
registered Office of Thrift ("OTS") Holding Company, with its principal
administrative office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ARGO
FEDERAL SAVINGS BANK, FSB, the insured bank subsidiary of the Holding Company
(the "Bank"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Executive").
WHEREAS, the Holding Company wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Holding
Company on a permanent basis for said period.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of Executive's employment hereunder, Executive agrees to
serve as Executive Vice President of the Holding Company. Executive shall render
administrative and management services to the Holding Company such as are
customarily performed by persons situated in a similar executive capacity.
During said period, Executive also agrees to serve, if elected, as an officer
and director of the Bank or any subsidiary of the Bank, or to perform such
services for the Bank as the Holding Company may request.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the date first above written and shall continue
for a period of thirty-six (36) calendar months thereafter. Commencing on the
first anniversary date of this Agreement, and continuing on each anniversary
thereafter, the disinterested members of the board of directors of the Holding
Company ("Board") may extend the Agreement an additional year such that the
remaining term of the Agreement shall be three years, unless the Executive
elects not to extend the term of this Agreement by giving written notice in
accordance with Section 9 of this Agreement. The Board will review the Agreement
and Executive's performance annually for purposes of determining whether to
extend the Agreement and the rationale and results thereof shall be included in
the minutes of the Board's meeting. The Board shall give notice to the Executive
as soon as possible after such review as to whether the Agreement is to be
extended.
(b) During the period of Executive's employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence,
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Executive shall devote such amounts of her business time, attention, skill, and
efforts reasonably required for the faithful performance of her duties hereunder
including activities and services related to the organization, operation and
management of the Holding Company and participation in community and civic
organizations; provided, however, that, with the approval of the Board, as
evidenced by a resolution of such Board, from time to time, Executive may serve,
or continue to serve, on the boards of directors of, and hold any other offices
or positions in, companies or organizations, which, in such Board's judgment,
will not present any conflict of interest with the Holding Company, or
materially affect the performance of Executive's duties pursuant to this
Agreement.
(c) Notwithstanding anything herein to the contrary, Executive's
employment with the Holding Company may be terminated by the Holding Company or
the Executive during the term of this Agreement, subject to the terms and
conditions of this Agreement.
3. COMPENSATION AND REIMBURSEMENT
(a) The Holding Company shall pay Executive as compensation a salary of
not less than $130,000.00 per year ("Base Salary"). Base Salary shall include
any amounts of compensation deferred by Executive under any qualified or
non-qualified plan maintained by the Holding Company. Such Base Salary shall be
payable bi-weekly. During the period of this Agreement, Executive's Base Salary
shall be reviewed at least annually; the first such review will be made no later
than one year from the date of this Agreement. Such review shall be conducted by
the Board or by a Committee of the Board, delegated such responsibility by the
Board. The Committee or the Board may increase Executive's Base Salary. Any
increase in Base Salary shall become the "Base Salary" for purposes of this
Agreement. In addition to the Base Salary provided in this Section 3(a), the
Holding Company shall also provide Executive, at no cost to Executive, with all
such other benefits as are provided uniformly to permanent full-time employees
of the Holding Company.
(b) The Executive shall be entitled to participate in any employee
benefit plans ("Benefit Plans"), arrangements and perquisites substantially
equivalent to those in which Executive was participating or otherwise deriving
benefit from immediately prior to the beginning of the term of this Agreement,
and the Holding Company will not, without Executive's prior written consent,
make any changes in such plans, arrangements or perquisites which would
materially adversely affect Executive's rights or benefits thereunder; provided,
however, that the Bank may make such changes to such plans, arrangements or
perquisites generally provided to all Holding Company employees on a
non-discriminatory basis. The Bank may acquire "Key Man" insurance on Executive
upon such terms and conditions as may be determined from time to time by the
Bank. Without limiting the generality of the foregoing provisions of this
Subsection (b), Executive shall be entitled to participate in or receive
benefits under any Benefit Plans including but not limited to, stock grants,
restricted stock, stock options (and other option derived benefits), Employee
Stock Ownership Plans ("ESOP"), or any other stock-based benefit plan,
retirement plans, supplemental
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retirement plans, pension plans, profit-sharing plans, health-and-accident
plans, medical coverage or any other employee benefit plan or arrangement made
available by the Holding Company in the future to its senior executives and key
management employees with awards, grants, levels and benefits for Executive
equal at least to levels customary in the industry for persons of like title,
authority and responsibility as Executive and with levels of Executive's past
participation in the Benefit Plans of the Holding Company, subject to and on a
basis consistent with the terms, conditions and overall administration of such
plans and arrangements. Executive shall be entitled to incentive compensation
and bonuses as provided in any plan of the Holding Company in which Executive is
eligible to participate. Nothing paid to the Executive under any such plan or
arrangement will be deemed to be in lieu of other compensation to which the
Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3 and other compensation provided for by paragraph (b) of this
Section 3, the Holding Company shall pay or reimburse Executive for all travel,
entertainment and other reasonable expenses incurred in the performance of
Executive's obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Holding Company of Executive's full-time employment hereunder
for any reason other than a termination governed by Section 5(a), for
Disability, as defined in Section 7 hereof, or Termination for Cause, as defined
in Section 8 hereof; (ii) Executive's resignation from the Holding Company's
employ upon any (A) failure to elect or reelect or to appoint or reappoint
Executive as a senior management officer, (B) a material change in Executive's
function, duties, or responsibilities, which change would cause Executive's
position to become one of lesser responsibility, importance, or scope from the
position and attributes thereof described in Section 1, above, unless consented
to by Executive, (C) a relocation of Executive's principal place of employment
by more than sixty (60) miles from its location at the effective date of this
Agreement, unless consented to by the Executive, (D) a material reduction in the
benefits and perquisites to the Executive from those being provided as of the
effective date of this Agreement, unless consented to by the Executive, or (E) a
liquidation or dissolution of the Holding Company or Bank, or (F) breach of this
Agreement by the Holding Company. Upon the occurrence of any event described in
clauses (A), (B), (C), (D), (E) or (F), above, Executive shall have the right to
elect to terminate her employment under this Agreement by resignation upon not
less than thirty (30) days prior written notice given within a reasonable period
of time not to exceed, except in the case of a continuing breach, four (4)
calendar months after the event giving rise to said right to elect.
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(b) Upon the occurrence of an Event of Termination, the Holding Company
shall be obligated to pay Executive, or, in the event of her subsequent death,
her beneficiary or beneficiaries, or her estate, as the case may be, the
following payments and benefits:
(i) Base Salary for the remaining term of the Agreement which
shall be the highest annual Base Salary paid prior to Executive's
termination of employment with the Holding Company or Bank, and which
shall be increased annually during the remaining term of the Agreement
at a rate of 4% per year ("Adjusted Base Salary").
(ii) Bonuses and other incentive payments for the remaining
term of the Agreement which shall be calculated as the highest percentage of
Base Salary, such bonuses and incentive payments represented prior to
Executive's termination of employment with the Holding Company or Bank
multiplied by the Adjusted Base Salary each year during the remaining term of
the Agreement ("Adjusted Bonus").
(iii) Continuation for the remaining term of the Agreement of
Executive's and Executive's dependents' participation in any life,
medical, health, disability, dental insurance or any other "welfare
plan" (as such is defined in Section 3 (1) of the Employee Retirement
Security Act of 1974 as amended from time to time ("ERISA") in which
Executive participates in on the day prior to the effective date of
this Agreement (each being a "Welfare Plan"), subject to the same
premium contributions on the part of Executive as were required
immediately prior to the Event of Termination.
(iv) A benefit equal to the product of (i) the highest annual
allocation of ESOP shares Executive had previously received under the
ESOP and (ii) the lesser of (x) the remaining number of years remaining
in the term of the Agreement or (y) the number of annual allocations
scheduled to be made under the ESOP immediately prior to the Event of
Termination.
(v) A benefit equal to the (i) additional employer
contributions and (ii) net return on all contributions, to which Executive would
have been entitled during the remaining term of the Agreement under any other
qualified or non-qualified defined contribution plan offered by the Holding
Company or the Bank assuming that Executive was 100% vested, Executive made the
maximum allowable contributions or deferrals under such plans, Executive's
compensation reflected Adjusted Base Salary and Adjusted Bonus and assuming the
crediting of interest on contributions being equal to the return provided during
the five (5) year period immediately preceding the Event of Termination.
(vi) A benefit equal to the difference between (i) the
benefits under any qualified or non-qualified pension plan (as defined in
Section 3 (2)(A) of ERISA) which she would have earned or accrued during the
remaining term of the Agreement assuming such benefit was vested and is
calculated using Adjusted Base Salary and Adjusted Bonus as appropriate in the
formula for Accrued Benefit under the plans and assuming such benefit was
calculated without making any reduction in the Accrued Benefit due to the
benefit being provided prior to the normal retirement age as set out in the
pension plan and (ii) the accrued benefit Executive is vested in at the time of
the Event of Termination.
(vii) A benefit under any non-qualified Supplemental Executive
Retirement Plan ("SERP") maintained by the Holding Company or the Bank
which Executive would have earned each year within the remaining term
of the Agreement, using compensation values which take into account
Adjusted Base Salary and Adjusted Bonus and further assuming that the
qualified plans to which the SERP refers provide the benefits generally
provided to Executive under their terms during the five year period
immediately prior to the Event of Termination, the limitations on
compensation and
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benefits under the Code remained fixed at their levels as of the time
of the Event of Termination, and the ESOP continued to allocate
unallocated shares according to its loan amortization schedule in place
on the last day of the ESOP Plan Year immediately prior to the Event of
Termination up to the point at which the ESOP would be fully allocated.
(viii) The benefit (net of deferrals) which would have been
earned each year of the remaining term of the Agreement under any other
non-qualified deferred compensation arrangements offered by the Holding
Company or the Bank calculated using compensation values which take
into account Adjusted Base Salary and Adjusted Bonus and which assume a
percentage of deferred compensation equal to the highest percentage of
compensation actually deferred during the five (5) year period
immediately preceding the Event of Termination and assuming the
crediting of interest on deferred monies equal to the return provided
during the five (5) year period immediately preceding the Event of
Termination.
(ix) A benefit consisting of the award, allocation or grant of
stock, restricted stock, stock options or any other stock or
stock-related benefit which would have been made to Executive under any
and all stock based qualified or non-qualified compensation plans or
arrangements offered by Holding Company or the Bank immediately prior
to or during the term of the Agreement at either (A) the highest level
of award possible for Executive under the terms of plans which provide
awards based upon levels of individual or group or institutional
performance goals, or (B) if awards are made at the discretion of the
Holding Company or Bank, then at a level consistent with awards made in
the industry for persons of similar title, authority and responsibility
and Executive's past level of benefit under such plans. Such award,
allocation or grant as provided herein shall be deemed 100% vested
immediately.
(x) Any award of stock options (or option derived benefits) to
Executive which have been made under a stock option plan or the stock
option feature of a broader compensation plan which have not already
vested shall be made fully vested and further, at the election of
Executive, any stock options shall be subsequently cancelled by
Executive in consideration for a payment from the Holding Company in an
amount equal to the product of (i) the number of stock options
cancelled and (ii) the difference between (x) the fair market value (at
the time of cancellation) of the stock upon which the option was issued
and (y) the exercise price of the stock option.
(xi) Any award of restricted stock or a stock grant (or award
and grant derived benefits) to Executive which have been made under a
stock grant plan or feature of a broader compensation plan which have
not already vested shall be made fully vested and further, at the
election of Executive, any stock awarded under such a plan shall at the
election of Executive be subject to a put option entitling Executive to
sell all or some portion of such stock to the Holding Company at the
then fair market value.
(xii) For the purpose of calculating benefits to be provided
during the remaining term of the Agreement, benefits shall be provided
in the form and calculated as described above. In the event that a
benefit otherwise payable in a stock form cannot be provided in stock,
such benefit will be provided in the form of cash using the greater of
the fair market value of the stock at the time of the distribution of
the benefit or the closing price of the stock on the day prior to the
time of distribution or the last day of trading prior to the time of
distribution.
(c) At the election of the Executive, which election is to be made
prior to an Event of Termination, such payments shall be made in a lump sum. In
the event that no election is made, payment to Executive will be made on a
bi-weekly basis in approximately equal installments during the remaining term of
the Agreement. Such payments shall not be reduced in the event the Executive
obtains other employment following termination of employment.
(d) No payments pursuant to this subsection shall, in the aggregate,
exceed three times
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Executive's average annual compensation for the five most recent taxable years
that Executive has been employed by the Holding Company or such lesser number of
years in the event that Executive shall have been employed by the Holding
Company for less than five years. For purposes of this subsection 4(b), "average
annual compensation" shall be the average annual compensation as defined in
Section 5(c) of this Agreement. In the event the Holding Company or the Bank is
not in compliance with its minimum capital requirements or if such payments
pursuant to this subsection (b) would cause the Holding Company's or the Bank's
capital to be reduced below its minimum regulatory capital requirements, such
payments shall be deferred until such time as the Holding Company or Bank or
successor thereto is in capital compliance.
5. CHANGE IN CONTROL
(a) For purposes of this Agreement, a "Change in Control" of the
Holding Company or Bank shall mean an event of a nature that: (i) would be
required to be reported in response to Item 1 of the current report on Form 8-K,
as in effect on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); or (ii)
results in a Change in Control of the Holding Company or the Bank within the
meaning of the Home Owners' Loan Act of 1933, as amended, the Federal Deposit
Insurance Act and the Rules and Regulations promulgated by the OTS (or its
predecessor agency), as in effect on the date hereof (provided, that in applying
the definition of change in control as set forth under the rules and regulations
of the OTS, the Board shall substitute its judgment for that of the OTS); or
(iii) without limitation such a Change in Control shall be deemed to have
occurred at such time as (A) any "person" (as the term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of voting
securities of the Holding Company or the Bank representing 20% or more of the
Holding Company's or the Bank's outstanding voting securities or right to
acquire such securities except for any voting securities of the Bank purchased
by the Holding Company and any voting securities purchased by any Benefit Plan
of the Holding Company or the Bank, or (B) individuals who constitute the Board
on the date hereof (the "Incumbent Board") cease for any reason to constitute at
least a majority thereof, provided that any person becoming a director
subsequent to the date hereof whose election was approved by a vote of at least
three-quarters of the directors comprising the Incumbent Board, or whose
nomination for election by the Holding Company's stockholders was approved by
the same Nominating Committee serving under an Incumbent Board, shall be, for
purposes of this clause (B), considered as though he were a member of the
Incumbent Board, or (C) a plan of reorganization, merger, consolidation, sale of
all or substantially all the assets of the Holding Company or the Bank or
similar transaction occurs in which the Holding Company or Bank is not the
resulting entity; provided, however, that such an event listed above will be
deemed to have occurred or to have been effectuated upon the receipt of all
required regulatory approvals not including the lapse of any statutory waiting
periods.
(b) If a Change in Control has occurred pursuant to Section 5(a) or the
Board has determined that a Change in Control has occurred, Executive shall be
entitled to the benefits
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provided in paragraphs (c), and (d) of this Section 5 upon her subsequent
termination of employment at any time during the term of this Agreement due to:
(1) Executive's dismissal or (2) Executive's voluntary resignation following any
demotion, loss of title, office or significant authority or responsibility,
reduction in annual compensation or material reduction in benefits or relocation
of her principal place of employment by more than thirty (30) miles from its
location immediately prior to the Change in Control, unless such termination is
because of her death or Termination for Cause, provided, however, that such
payments shall be reduced by any payment made under Section 4 of this Agreement.
(c) Upon Executive's entitlement to benefits pursuant to Section 5(b),
the Holding Company shall pay Executive, or in the event of her subsequent
death, her beneficiary or beneficiaries, or her estate, as the case may be, a
sum equal to the greater of: (1) the payments due for the remaining term of the
Agreement; or 2) three (3) times Executive's average annual compensation for the
five (5) most recent taxable years that Executive has been employed by the
Holding Company or such lesser number of years in the event that Executive shall
have been employed by the Holding Company for less than five (5) years; provided
however, that no payments pursuant to this subsection shall exceed three (3)
times the Executive's average annual compensation for the five (5) most recent
taxable years that the Executive has been employed by the Holding Company or
such lesser number of years in the event the Executive shall have been employed
by the Holding Company for less than five (5) years. For purposes of this
Agreement, such average annual compensation shall include Base Salary,
commissions, bonuses, contributions on Executive's behalf to any pension and/or
profit sharing plan, severance payments, retirement payments, directors or
committee fees, fringe benefits, and payment of expense items without
accountability or business purpose or that do not meet the IRS requirements for
deductibility by the Holding Company. In the event the Holding Company is not in
compliance with its minimum capital requirements or if such payments would cause
the Holding Company's capital to be reduced below its minimum regulatory capital
requirements, such payments shall be deferred until such time as the Holding
Company or successor thereto is in capital compliance. At the election of the
Executive, which election is to be made prior to a Change in Control, such
payment may be made in a lump sum. In the event that no election is made,
payment to the Executive will be made on a bi-weekly basis in approximately
equal installments over a period of thirty-six (36) months following the
Executive's termination. Such payments shall not be reduced in the event
Executive obtains other employment following termination of employment.
(d) Upon the Executive's entitlement to benefits pursuant to Section
5(b), the Holding Company will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Holding Company for Executive and her dependents prior to her severance at no
premium cost to the Executive, except to the extent that such coverage may, be
changed in its application for all Holding Company employees on a
non-discriminatory basis. Such coverage and payments shall cease upon the
expiration of thirty-six (36) months following the Date of Termination.
(e) In the event that the Executive is receiving bi-weekly payments
pursuant to Section
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5(c) hereof, on an annual basis, thereafter, between the dates of January 1 and
January 31 of each year, Executive shall elect whether the balance of the amount
payable under the Agreement at that time shall be paid in a lump sum or on a pro
rata basis pursuant to such section. Such election shall be irrevocable for the
year for which such election is made.
6. CHANGE OF CONTROL RELATED PROVISIONS
Notwithstanding the paragraphs of Section 5, in no event shall the
aggregate payments or benefits to be made or afforded to Executive under said
paragraphs (the "Termination Benefits") constitute an "excess parachute payment"
under Section 28OG of the Code or any successor thereto, and in order to avoid
such a result, Termination Benefits will be reduced, if necessary, to an amount
(the "Non-Triggering Amount"), the value of which is one dollar ($1.00) less
than an amount equal to three (3) times Executive's "base amount", as determined
in accordance with said Section 280G. The allocation of the reduction required
hereby among the Termination Benefits provided by Section 5 shall be determined
by Executive.
7. TERMINATION FOR DISABILITY; DEATH OF EXECUTIVE
(a) If, as a result of Executive's incapacity due to physical or mental
illness, such incapacity being determined by a doctor selected by the Holding
Company, she shall have been absent from her duties with the Bank on a full-time
basis for six (6) consecutive months, and within thirty (30) days after written
notice of potential termination is given she shall not have returned to the
full-time performance of her duties, the Holding Company may terminate
Executive's employment for Disability.
(b) The Holding Company will cause to be continued life, medical,
dental and disability coverage substantially identical to the coverage
maintained by the Holding Company for Executive and her dependents prior to her
termination for Disability. This coverage and payments shall cease upon the
earlier of (i) the date Executive returns to the full-time employment of the
Holding Company, in the same capacity as she, was employed prior to her
termination for Disability and pursuant to an employment agreement between
Executive and the Holding Company; (ii) Executive's full-time employment by
another employer; (iii) Executive's attaining the normal age of retirement or
receiving benefits under any Defined Benefit Plan of the Holding Company; (iv)
the Executive's death; or (v) the expiration of the term of this Agreement.
(c) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period which Executive is
incapable of performing her duties hereunder by reason of temporary disability.
(d) Notwithstanding anything to the contrary contained herein, upon the
death of the
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Executive during the term hereof, the Estate of the Executive shall be paid her
Base Compensation for a period of twelve (12) months following the death of the
Executive, unless the remaining term of the Agreement is less than twelve (12)
months then the Estate of the Executive shall be paid the Base Compensation
through the remaining term of the Agreement.
8. TERMINATION FOR CAUSE
(a) The term "Termination for Cause" shall mean termination because of
Executive's personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order or material
breach of any provision of this Agreement. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to her a Notice of Termination which shall
include a copy of a resolution duly adopted by the affirmative vote of not less
than a majority of the members of the Board at a meeting of the Board called and
held for that purpose (after reasonable notice to Executive and an opportunity
for her, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail. Except
as provided in Section 8(b) hereof, Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause except for compensation and benefits already vested. During the period
beginning on the date of the Notice of Termination for Cause pursuant to Section
9 hereof through the Date of Termination, stock options and related limited
rights granted to Executive under any stock option plan shall not be exercisable
nor shall any unvested awards granted to Executive under any stock benefit plan
of the Holding Company, the Bank or any subsidiary or affiliate thereof vest. At
the Date of Termination, such stock options and related limited rights and such
unvested awards shall become null and void and shall not be exercisable by or
delivered to Executive at any time subsequent to such Date of Termination for
Cause.
(b) If, within thirty (30) days after Notice of Termination for Cause
is received by Executive, the Executive notifies the Holding Company that a
dispute exists concerning the termination ("Notice of Dispute"), the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been perfected)
and provided further that the Date of Termination shall be extended by a Notice
of Dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
9. NOTICE
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(a) Any purported termination by the Holding Company or by Executive
shall be communicated by Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be less
than thirty days from the date such Notice of Termination is given.).
(c) The Holding Company may terminate the Executive's employment at any
time, but any termination by the Holding Company, other than Termination for
Cause, shall not prejudice Executive's right to compensation or other benefits
under this Agreement or under any other benefit or compensation plans or
programs maintained by the Holding Company from time to time. Executive shall
not have the right to receive compensation or other benefits for any period
after Termination for Cause as defined in Section 8 hereinabove.
10. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall
be subject to Executive's compliance with paragraph (b) of this Section 10
during the term of this Agreement and for one (1) full year after the expiration
or termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information
and assistance to the Holding Company as may reasonably be required by the
Holding Company in connection with any litigation in which it or any of its
subsidiaries or affiliates is, or may become, a party. The Bank will reimburse
the Executive for reasonable costs incurred by the Executive in connection with
furnishing such information and assistance to the Bank.
11. CONFIDENTIALITY
Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Holding Company and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the Holding Company. Executive will not,
during or after the term of her employment, disclose any knowledge of the past,
present, planned or considered business activities of the Holding Company or
affiliates thereof to any person, firm, corporation, or other entity for any
reason or purpose whatsoever, unless expressly authorized by the Board of
Directors or required by law. Notwithstanding the foregoing, Executive may
disclose any knowledge of legal, banking, financial and/or economic principles,
concepts or ideas which are not solely and exclusively derived from the business
plans and activities
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of the Holding Company. In the event of a breach or threatened breach by
Executive of the provisions of this Section, the Holding Company will be
entitled to an injunction restraining Executive from disclosing, in whole or in
part, the knowledge of the past, present, planned or considered business
activities of the Holding Company or affiliates thereof, or from rendering any
services to any person, firm, corporation, other entity to whom such knowledge,
in whole or in part, has been disclosed or is threatened to be disclosed.
Nothing herein will be construed as prohibiting the Holding Company from
pursuing any other remedies available to the Holding Company for such breach or
threatened breach, including the recovery of damages from Executive.
12. SOURCE OF PAYMENTS
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Holding Company.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Holding Company or any
predecessor of the Holding Company and Executive, except that this Agreement
shall not affect or operate to reduce any benefit or compensation inuring to
Executive of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer benefits than
those available to her without reference to this Agreement.
14. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Holding Company and their respective successors and assigns.
15. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
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(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
16. REQUIRED PROVISIONS
(a) The Holding Company may terminate Executive's employment at any
time, but any termination by the Holding Company, other than Termination for
Cause, shall not prejudice Executive's right to compensation or other benefits
under this Agreement. Executive shall not have the right to receive compensation
or other benefits for any period after Termination for Cause as defined in
Section 8 hereinabove.
(b) If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Holding Company's affairs by a notice
served under Section g(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. ss.1818(e)(3) or (g)(1); the Holding Company's obligations under this
Agreement shall be suspended as of the date of service, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the Holding
Company may in its discretion (i) pay Executive all or part of the compensation
withheld while the respective obligations under this Agreement were suspended
and (ii) reinstate (in whole or in part) any of the obligations which were
suspended.
(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Holding Company's affairs by an order issued
under Section 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
ss.1818(e)(4) or (g)(1), all obligations of the Holding Company under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the parties hereto shall not be affected.
(d) If the Holding Company is in default as defined in Section 3(x)(1)
of the Federal Deposit Insurance Act, 12 U.S.C. ss.1813(x)(1) all obligations of
the Holding Company under this Agreement shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of the
contracting parties.
(e) All obligations of the Holding Company under this Agreement shall
be terminated, except to the extent determined that continuation of the
Agreement is necessary for the continued operation of the Holding Company, (i)
by the Director of the OTS (or his designee) or the FDIC, at the time the FDIC
enters into an agreement to provide assistance to or on behalf of the Holding
Company under the authority contained in Section 13(c) of the Federal Deposit
Insurance Act, 12 U.S.C. ss.1823(c); or (ii) by the Director of the OTS (or his
designee) at the time the Director (or his designee) approves a supervisory
merger to resolve problems related to the operations of the
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Holding Company or when the Holding Company is determined by the Director to be
in an unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
(f) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12
U.S.C.ss.1828(k) and 12 C.F.R.ss.545.121 and any rules and regulations
promulgated thereunder.
17. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
19. GOVERNING LAW
The validity, interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of Illinois, but only to the extent
not superseded by federal law.
20. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by Executive within fifty
(50) miles from the location of the Holding Company, in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction; provided,
however, that Executive shall be entitled to seek specific performance of her
right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of Executive, whether by judgment,
arbitration or settlement, Executive shall be entitled to the payment of all
back-pay, including salary, bonuses and all other cash compensation, fringe
benefits including those accruing under any Benefit and any
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compensation and benefits due Executive under this Agreement.
21. PAYMENT OF COSTS AND LEGAL FEES
All reasonable costs and legal fees paid or incurred by the prevailing
party pursuant to any dispute or question of interpretation relating to this
Agreement shall be paid or reimbursed by the other party.
22. INDEMNIFICATION
(a) The Holding Company shall provide Executive (including her heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense and shall indemnify
Executive (and the Executive's heirs, executors and administrators) to the
fullest extent permitted under federal law against all expenses and liabilities
reasonably incurred by her in connection with or arising out of any action, suit
or proceeding in which she may be involved by reason of her having been a
director or officer of the Holding Company (whether or not she continues to be a
director or officer at the time of incurring such expenses or liabilities), such
expenses and liabilities to include, but not be limited to, judgments, court
costs and attorneys' fees and the cost of reasonable settlements.
(b) Any payments made to Executive pursuant to this Section are subject
to and conditioned upon compliance with 12 C. F. R.ss.545.121 and any rules or
regulations promulgated thereunder.
23. SUCCESSOR TO THE HOLDING COMPANY
The Holding Company shall require any successor or assignee, whether
direct or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Holding Company or the Bank,
expressly and unconditionally to assume and agree to perform the Holding
Company's obligations under this Agreement, in the same manner and to the same
extent that the Holding Company would be required to perform if no such
succession or assignment had taken place.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed effective this 1st day of November, 1999.
ARGO BANCORP, INC.
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By:
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President and Chief Executive Officer
ARGO FEDERAL SAVINGS BANK, FSB
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
EXECUTIVE:
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