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EMPLOYMENT AGREEMENT
This Agreement, made and dated as of January 19, 1999, by and between
MFB Financial (formerly Mishawaka Federal Savings), a federal savings bank
("Employer"), and Xxxxxxx X. Xxxxxx, a resident of St. Xxxxxx County, Indiana
("Employee").
W I T N E S S E T H
WHEREAS, Employee is hereby employed by Employer as its President and
chief executive officer and is expected to make valuable contributions to the
profitability and financial strength of Employer;
WHEREAS, Employer desires to encourage Employee to make valuable
contributions to Employer's business operations and not to seek or accept
employment elsewhere;
WHEREAS, Employee desires to be assured of a secure minimum
compensation from Employer for his services over a defined term;
WHEREAS, Employer desires to assure the continued services of Employee
on behalf of Employer on an objective and impartial basis and without
distraction or conflict of interest in the event of an attempt by any person to
obtain control of Employer or of MFB Corp., the Indiana corporation which owns
all of the issued and outstanding capital stock of Employer (the "Holding
Company");
WHEREAS, Employer recognizes that when faced with a proposal for a
change of control of Employer or the Holding Company, Employee will have a
significant role in helping the Boards of Directors assess the options and
advising the Boards of Directors on what is in the best interests of Employer,
the Holding Company, and its shareholders, and it is necessary for Employee to
be able to provide this advice and counsel without being influenced by the
uncertainties of his own situation;
WHEREAS, Employer desires to provide fair and reasonable benefits to
Employee on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, Employer desires reasonable protection of its confidential
business and customer information which it has developed over the years at
substantial expense and assurance that Employee will not compete with Employer
for a reasonable period of time after termination of his employment with
Employer, except as otherwise provided herein.
NOW, THEREFORE, in consideration of these premises, the mutual
covenants and undertakings herein contained and the continued employment of
Employee by Employer as its President and chief executive officer, Employer and
Employee, each intending to be legally bound, covenant and agree as follows:
1. Upon the terms and subject to the conditions set forth in this Agreement,
Employer employs Employee as Employer's President and chief executive officer,
and Employee accepts such employment.
2. Employee agrees to serve as Employer's President and chief executive officer
and to perform such duties in that office as may reasonably be assigned to him
by Employer's Board of Directors; provided, however that such duties shall be
performed in or from the offices of Employer currently located at Mishawaka,
Indiana, and shall be of the same character as those previously performed by
Employee's predecessor and generally associated with the office held by
Employee. Employee shall not be required to be absent from the location of the
principal executive offices of Employer on travel status or otherwise more than
45 days in any calendar year. Employer shall not, without the written consent of
Employee, relocate or transfer Employee to a location more than 30 miles from
his principal residence. Employee shall render services to Employer as President
and chief executive officer in substantially the same manner and to
substantially the same extent as Employee's predecessor rendered his services to
Employer before the date hereof. Although while employed by Employer, Employee
shall devote substantially all his business time and efforts to Employer's
business and shall not engage in any other related business, Employee may use
his discretion in fixing his hours and schedule of work consistent with the
proper discharge of his duties. Employer shall nominate the Employee to
successive terms as a member of Employer's Board of Directors and shall use its
best efforts to elect and re-elect Employee as a member of such Board.
3. The term of this Agreement shall begin April 1, 1997 (the "Effective Date")
and shall end on the date which is three years following such date; provided,
however, that such term shall be extended for an additional month on the first
day of each month succeeding April 1, 1997, so as to continue to maintain a
three-year term and shall continue to be so extended if Employer's Board of
Directors determines by resolution to extend this Agreement prior to each
anniversary of the Effective Date. If either party hereto gives written notice
to the other party not to extend this Agreement in any given month or if the
Board does not determine to extend the Agreement prior to each anniversary of
the Effective Date, no further extension shall occur and the term of this
Agreement shall end three years subsequent to the first day of the month in
which such notice not to extend is given or three years subsequent to the
anniversary as of which the Board does not elect to continue extending this
Agreement (such term, including any extension thereof shall herein be referred
to as the "Term"). Notwithstanding the foregoing, this Agreement shall
automatically terminate (and the Term of this Agreement shall thereupon end)
without notice when Employee attains 65 years of age.
4. Employee shall receive an annual salary of $150,000 ("Base Compensation")
payable at regular intervals in accordance with Employer's normal payroll
practices now or hereafter in effect. Employer may consider and declare from
time to time increases in the salary it pays Employee and thereby increases in
his Base Compensation. Employer may also declare incentive bonuses from time to
time to be paid to Employee in addition to his annual salary. During the Term of
this Agreement, but only until such time as a Change of Control occurs, Employer
may also declare decreases in the salary it pays Employee if the operating
results of Employer are significantly less favorable than those for the fiscal
year ending September 30, 1995, and Employer makes similar decreases in the
salary it pays to other executive officers of Employer. After a Change in
Control, no such decreases in Base Compensation may be made, and Employer shall
consider and declare salary increases based upon the following standards:
Inflation;
Adjustments to the salaries of other senior management personnel; and
Past performance of Employee and the contribution which Employee makes
to the business and profits of Employer during the Term.
Any and all increases or decreases in Employee's salary pursuant to this section
shall cause the level of Base Compensation to be increased or decreased by the
amount of each such increase or decrease for purposes of this Agreement. The
increased or decreased level of Base Compensation as provided in this section
shall become the level of Base Compensation for the remainder of the Term of
this Agreement until there is a further increase or decrease in Base
Compensation as provided herein.
5. So long as Employee is employed by Employer pursuant to this
Agreement and subject to any waiting period requirements in
such plans, he shall be included as a participant in all
present and future employee benefit, retirement, and
compensation plans generally available to employees of
Employer (other than Employee's recognition and retention plan
and trust), consistent with his Base Compensation and his
position as President and chief executive officer of Employer,
including, without limitation, Employer's or the Holding
Company's pension plan, stock option plan, employee stock
ownership plan, and hospitalization, major medical,
disability, dental and group life insurance plans, each of
which Employer agrees to continue in effect on terms no less
favorable than those currently in effect as of the date hereof
(as permitted by law) during the Term of this Agreement unless
prior to a Change of Control the operating results of Employer
are significantly less favorable than those for the fiscal
year ending September 30, 1995, and unless (either before or
after a Change of Control) changes in the accounting or tax
treatment of such plans would adversely affect Employer's
operating results or financial condition in a material way,
and the Board of Directors of Employer or the Holding Company
concludes that modifications to such plans need to be made to
avoid such adverse effects.
6. So long as Employee is employed by Employer pursuant to this
Agreement, Employee shall receive reimbursement from Employer
for all reasonable business expenses incurred in the course of
his employment by Employer, upon submission to Employer of
written vouchers and statements for reimbursement. Employee
shall attend, at his discretion, those professional meetings,
conventions, and/or similar functions that he deems
appropriate and useful for purposes of keeping abreast of
current developments in the industry and/or promoting the
interests of Employer. So long as Employee is employed by
Employer pursuant to the terms of this Agreement, Employer
shall continue in effect vacation policies applicable to
Employee no less favorable from his point of view than those
written vacation policies in effect on the date hereof. So
long as Employee is employed by Employer pursuant to this
Agreement, Employee shall be entitled to office space and
working conditions no less favorable from his point of view
than were in effect for his predecessor immediately prior to
the date hereof. So long as Employee is employed by Employer
pursuant to this Agreement, Employee shall be entitled to the
use of a company car provided by the Employer.
7. Subject to the respective continuing obligations of the
parties, including but not limited to those set forth in
subsections 9(A), 9(B), 9(C) and 9(D) hereof, Employee's
employment by Employer may be terminated prior to the
expiration of the Term of this Agreement as follows:
(A) Employer, by action of its Board of Directors and upon written
notice to Employee, may terminate Employee's employment with
Employer immediately for cause. For purposes of this
subsection 7(A), "cause" shall be defined as (i) personal
dishonesty, (ii) incompetence, (iii) willful misconduct, (iv)
breach of fiduciary duty involving personal profit, (v)
intentional failure to perform stated duties, (vi) willful
violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist
order, or (vii) any material breach of any term, condition or
covenant of this Agreement.
(B) Employer, by action of its Board of Directors, may terminate
Employee's employment with Employer without cause at any time;
provided, however, that the "date of termination" for purposes
of determining benefits payable to Employee under subsection
8(B) hereof shall be the date which is 60 days after Employee
receives written notice of such termination.
(C) Employee, by written notice to Employer, may terminate his employment
with Employer immediately for cause. For purposes of
this subsection 7(B), "cause" shall be defined as (i) any
action by Employer's Board of Directors to remove the
Employee as President and chief executive officer of Employer,
except where the Employer's Board of Directors
properly acts to remove Employee from such office for "cause"
as defined in subsection 7(A) hereof, (ii) any action
by Employer's Board of Directors which Employee reasonably
believes materially limits, increases, or modifies
Employee's duties and/or authority as President and chief
executive officer of Employer (including his authority,
subject to corporate controls no more restrictive than
those in effect on the date hereof, to hire and discharge
employees who are not bona fide officers of Employer), (iii)
any failure of Employer to obtain the assumption of the
obligation to perform this Agreement by any successor or the
reaffirmation of such obligation by Employer, as
contemplated in section 20 hereof; or (iv) any material
breach by Employer of a term, condition or covenant of this
Agreement.
(D) Employee, upon sixty (60) days written notice to Employer, may
terminate his employment with Employer without cause.
(E) Employee's employment with Employer shall terminate in the
event of Employee's death or disability. For purposes hereof,
"disability" shall be defined as Employee's inability by
reason of illness or other physical or mental incapacity to
perform the duties required by his employment for any
consecutive One Hundred Eighty (180) day period, provided that
notice of any termination by Employer because of Employee's
"disability" shall have been given to Employee prior to the
full resumption by him of the performance of such duties.
8. In the event of termination of Employee's employment with
Employer pursuant to section 7 hereof, compensation shall
continue to be paid by Employer to Employee as follows:
(A) In the event of termination pursuant to subsection 7(A) or 7(D),
compensation provided for herein (including Base
Compensation) shall continue to be paid, and Employee
shall continue to participate in the employee benefit,
incentive bonus, retirement, and compensation plans and
other perquisites as provided in sections 5 and 6 hereof,
through the date of termination specified in the notice of
termination. Any benefits payable under insurance,
health, retirement and bonus plans as a result of Employee's
participation in such plans through such date shall be
paid when due under those plans. The date of termination
specified in any notice of termination pursuant to
Subsection 7(A) shall be no later than the last business
day of the month in which such notice is provided to
Employee.
(B) In the event of termination pursuant to subsection 7(B) or 7(C),
compensation provided for herein (including Base
Compensation) shall continue to be paid, and Employee shall
continue to participate in the employee benefit,
incentive bonus, retirement, and compensation plans and
other perquisites as provided in sections 5 and 6 hereof,
through the date of termination specified in the notice of
termination. Any benefits payable under insurance,
health, retirement and bonus plans as a result of Employee's
participation in such plans through such date shall be
paid when due under those plans. In addition, Employee shall
be entitled to continue to receive from Employer his
Base Compensation at the rate in effect at the time of
termination, plus the incentive bonus he received for the tax
year preceding the date of termination (1)for three additional
12-month periods if the termination follows a Change
of Control or (2) for the remaining Term of the Agreement if
the termination does not follow a Change of Control.
In addition, during such period, Employer will maintain
in full force and effect for the continued benefit of
Employee each employee welfare benefit plan and each employee
pension benefit plan (as such terms are defined in the
Employee Retirement Income Security Act of 1974, as
amended) in which Employee was entitled to participate
immediately prior to the date of his termination, unless an
essentially equivalent and no less favorable benefit is
provided by a subsequent employer of Employee. If the
terms of any employee welfare benefit plan or employee
pension benefit plan of Employer or applicable laws do not
permit continued participation by Employee, Employer will
arrange to provide to Employee a benefit substantially
similar to, and no less favorable than, the benefit he was
entitled to receive under such plan at the end of the period
of coverage. For purposes of this Agreement, a "Change
of Control" shall mean an acquisition of "control" of the
Holding Company or of Employer within the meaning of 12
X.X.X.xx. 574.4(a) (other than a change of control resulting
from a trustee or other fiduciary holding shares of
Common Stock under an employee benefit plan of the Holding
Company or any of its subsidiaries).
(C) In the event of termination pursuant to subsection 7(E),
compensation provided for herein (including Base Compensation)
shall continue to be paid, and Employee shall continue to
participate in the employee benefit, incentive bonus,
retirement, and compensation plans and other perquisites as
provided in sections 5 and 6 hereof, (i) in the event of
Employee's death, through the date of death, or (ii) in the
event of Employee's disability, through the date of proper
notice of disability as required by subsection 7(D). Any
benefits payable under insurance, health, retirement and bonus
plans as a result of Employer's participation in such plans
through such date shall be paid when due under those plans.
(D) Employer will permit Employee or his personal representative(s)
or heirs, during a period of three months following
Employee's termination of employment by Employer for the
reasons set forth in subsections 7(B) or 7(C), if such
termination follows a Change of Control, to require Employer,
upon written request, to purchase all outstanding
stock options previously granted to Employee under any Holding
Company stock option plan then in effect whether or
not such options are then exercisable or have terminated at
a cash purchase price equal to the amount by which the
aggregate "fair market value" of the shares subject to such
options exceeds the aggregate option price for such
shares. For purposes of this Agreement, the term "fair
market value" shall mean the higher of (1) the average of
the highest asked prices for Holding Company shares in the
over-the-counter market as reported on the NASDAQ system
if the shares are traded on such system for the 30 business
days preceding such termination, or (2) the average per
share price actually paid for the most highly priced 1% of
the Holding Company shares acquired in connection with
the Change of Control of the Holding Company by any person or
group acquiring such control.
9. In order to induce Employer to enter into this Agreement,
Employee hereby agrees as follows:
(A) While Employee is employed by Employer and for a period of three
years after termination of such employment for reasons
other than those set forth in subsections 7(B) or 7(C) of
this Agreement, Employee shall not divulge or furnish any
trade secrets (as defined in IND. CODEss.24-2-3-2) of Employer
or any confidential information acquired by him while
employed by Employer concerning the policies, plans,
procedures or customers of Employer to any person, firm or
corporation, other than Employer or upon its written
request, or use any such trade secret or confidential
information directly or indirectly for Employee's own benefit
or for the benefit of any person, firm or corporation
other than Employer, since such trade secrets and confidential
information are confidential and shall at all times
remain the property of Employer.
(B) For a period of three years after termination of Employee's employment
by Employer for reasons other than those set forth in
subsections 7(B) or 7(C) of this Agreement, Employee
shall not directly or indirectly provide banking or
bank-related services to or solicit the banking or
bank-related business of any customer of Employer at the time
of such provision of services or solicitation which Employee
served either alone or with others while employed by
Employer in any city, town, borough, township, village or
other place in which Employee performed services for
Employer during the last three years (or such shorter
period) he was employed by it, or assist any actual or
potential competitor of Employer to provide banking or
bank-related services to or solicit any such customer's
banking or bank-related business in any such place.
(C) While Employee is employed by Employer and for a period of one
year after termination of Employee's employment by Employer
for reasons other than those set forth in subsections 7(B) or
7(C) of this Agreement, Employee shall not, directly or
indirectly, as principal, agent, or trustee, or through the
agency of any corporation, partnership, trade association,
agent or agency, engage in any banking or bank-related
business or venture which competes with the business of
Employer as conducted during Employee's employment by Employer
within St. Xxxxxx County or within a radius of 25 miles of any
other office of Employer where Employee was employed for more
than six months in the three years next preceding termination.
(D) If Employee's employment by Employer is terminated for any
reason, Employee will turn over immediately thereafter to
Employer all business correspondence, letters, papers,
reports, customers' lists, financial statements, credit
reports or other confidential information or documents of
Employer or its affiliates in the possession or control of
Employee, all of which writings are and will continue to be
the sole and exclusive property of Employer or its affiliates.
If Employee's employment by Employer is terminated during the Term of this
Agreement for reasons set forth in subsections 7(B) or 7(C) of this Agreement,
Employee shall have no obligations to Employer with respect to noncompetition
under sections 9(A) through (C) hereof.
10. Any termination of Employee's employment with Employer as contemplated by
section 7 hereof, except in the circumstances of Employee's death, shall be
communicated by written "Notice of Termination" by the terminating party to the
other party hereto. Any "Notice of Termination" pursuant to subsections 7(A),
7(C) or 7(E) shall indicate the specific provisions of this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for such termination.
11. If Employee is suspended and/or temporarily prohibited from participating in
the conduct of Employer's affairs by a notice served under section 8(e)(3) or
(g)(1) of the Federal Deposit Insurance Act (12 U.S.C. ss. 1818(e)(3) and
(g)(1)), Employer'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, Employer shall (i) pay Employee all or part of the
compensation withheld while its obligations under this Agreement were suspended
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
12. If Employee is removed and/or permanently prohibited from participating in
the conduct of Employer's affairs by an order issued under section 8(e)(4) or
(g)(1) of the Federal Deposit Insurance Act (12 U.S.C. ss. 1818(e)(4) or
(g)(1)), all obligations of Employer under this Agreement shall terminate as of
the effective date of the order, but vested rights of the parties to the
Agreement shall not be affected.
13. If Employer is in default (as defined in section 3(x)(1) of the Federal
Deposit Insurance Act), all obligations under this Agreement shall terminate as
of the date of default, but this provision shall not affect any vested rights of
Employer or Employee.
14. All obligations under this Agreement may be terminated except to the extent
determined that the continuation of the Agreement is necessary for the continued
operation of Employer: (i) by the Director of the Office of Thrift Supervision,
or his or her designee (the "Director"), at the time the Federal Deposit
Insurance Corporation or Resolution Trust Corporation enters into an agreement
to provide assistance to or on behalf of Employer under the authority contained
in Section 13(c) of the Federal Deposit Insurance Act; or (ii) by the Director
at the time the Director approves a supervisory merger to resolve problems
related to operation of Employer or when Employer is determined by the Director
to be in an unsafe and unsound condition. Any rights of the parties that have
already vested, however, shall not be affected by such action.
15. Anything in this Agreement to the contrary notwithstanding, in the event
that the Employer's independent public accountants determine that any payment by
the Employer to or for the benefit of the Employee, whether paid or payable
pursuant to the terms of this Agreement, would be non-deductible by the Employer
for federal income tax purposes because of Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), then the amount payable to or for the
benefit of the Employee pursuant to this Agreement shall be reduced (but not
below zero) to the Reduced Amount. For purposes of this section 15, the "Reduced
Amount" shall be the amount which maximizes the amount payable without causing
the payment to be non-deductible by the Employer because of Section 280G of the
Code. Any payments made to Employee pursuant to this Agreement, or otherwise,
are subject to and conditional upon their compliance with 12 U.S.C. ss. 1828(k)
and any regulations promulgated thereunder, to the extent applicable to such
payments.
16. If a dispute arises regarding the termination of Employee pursuant to
section 7 hereof or as to the interpretation or enforcement of this Agreement
said dispute shall be resolved by binding arbitration determined in accordance
with the rules of the American Arbitration Association and if Employee obtains a
final award in his favor or his claim is settled by Employer prior to the
rendering of an award by such arbitration, all reasonable legal fees and
expenses incurred by Employee in contesting or disputing any such termination or
seeking to obtain or enforce any right or benefit provided for in this Agreement
or otherwise pursuing his claim shall be paid by Employer, to the extent
permitted by law.
17. Should Employee die after termination of his employment with Employer while
any amounts are payable to him hereunder, this Agreement shall inure to the
benefit of and be enforceable by Employee's executors, administrators, heirs,
distributees, devisees and legatees and all amounts payable hereunder shall be
paid in accordance with the terms of this Agreement to Employee's devisee,
legatee or other designee or, if there is no such designee, to his estate.
18. For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been given
when delivered or mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to Employee: Xxxxxxx X. Xxxxxx
00000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
If to Employer: Mishawaka Federal Savings
000 Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxx 00000
or to such address as either party hereto may have furnished to the other party
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
19. This Agreement supersedes and replaces any pre-existing employment agreement
between the Employer and the Employee. The validity, interpretation, and
performance of this Agreement shall be governed by the laws of the State of
Indiana, exist as otherwise required by mandatory operation of federal law.
20. Employer shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of Employer, by agreement in form and substance satisfactory
to Employee to expressly assume and agree to perform this Agreement in the same
manner and same extent that Employer would be required to perform it if no such
succession had taken place. Failure of Employer to obtain such agreement prior
to the effectiveness of any such succession shall be a material intentional
breach of this Agreement and shall entitle Employee to terminate his employment
with Employer pursuant to subsection 7(C) hereof. As used in this Agreement,
"Employer" shall mean Employer as hereinbefore defined and any successor to its
business or assets as aforesaid.
21. No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing signed by
Employee and Employer. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of dissimilar provisions or conditions at the same or any prior
subsequent time. No agreements or representation, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement.
22. The invalidity or unenforceability of any provisions of this Agreement shall
not affect the validity or enforceability of any other provisions of this
Agreement which shall remain in full force and effect.
23. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same agreement.
24. This Agreement is personal in nature and neither party hereto shall, without
consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder except as provided in section 17 and section 20 above.
Without limiting the foregoing, Employee's right to receive compensation
hereunder shall not be assignable or transferable, whether by pledge, creation
of a security interest or otherwise, other than a transfer by his will or by the
laws of descent or distribution as set forth in section 17 hereof, and in the
event of any attempted assignment or transfer contrary to this paragraph,
Employer shall have no liability to pay any amounts so attempted to be assigned
or transferred.
25. If any of the provisions in this Agreement shall conflict with 12 C.F.R. ss.
563.39(b), as it may be amended from time to time, the requirements of such
regulation shall supersede any contrary provisions herein and shall prevail.
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed and delivered as of the day and year first above set forth.
MFB FINANCIAL
By: /s/ Xxxxxxx X Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President and Controller
-----------------------------------------------
"Employer"
Xxxxxxx X. Xxxxxx
"Employee"
The undersigned, MFB Corp., sole shareholder of Employer, agrees that
if it shall be determined for any reason that any obligation on the part of
Employer to continue to make any payments due under this Agreement to Employee
is unenforceable for any reason, MFB Corp. agrees to honor the terms of this
Agreement and continue to make any such payments due hereunder to Employee
pursuant to the terms of this Agreement.
MFB CORP.
By:/s/ Xxxxxxx X Xxxxxx
Name: Xxxxxxx X Xxxxxx
Title: Officer
INDS01 CVS 625196v1
