Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made this 25/th/ day of June, 2003, by
and among JEFFERSON BANCSHARES, INC. (the "Company"), JEFFERSON FEDERAL BANK
(the "Bank") and ANDERSON L. SMITH ("Executive").
W I T N E S S E T H
WHEREAS, the Bank has reorganized into the stock form of ownership with the
Company as its parent holding company;
WHEREAS, the Company and the Bank desire to retain the services of the
Executive as the President and Chief Executive Officer of the Company and the
Bank following such reorganization;
WHEREAS, Jefferson Bancshares, M.H.C. and the Bank had previously entered
into an employment agreement with the Executive;
WHEREAS, Executive and the respective Boards of Directors of the Bank and
the Company desire to enter into an updated and revised agreement setting forth
the terms and conditions of the continuing employment of Executive and the
related rights and obligations of each of the parties;
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. Employment. Executive is employed as the President and Chief Executive
Officer and of the Company and the Bank. Executive shall perform all duties and
shall have all powers which are commonly incident to the offices of President
and Chief Executive Officer and which, consistent with those offices, are
delegated to him by the Chairman of the Board of Directors of the Bank and the
Company.
2. Location and Facilities. Executive will be furnished with the working
facilities and staff customary for executive officers with the title and duties
set forth in Section 1 and as are necessary for him to perform his duties. The
location of such facilities and staff shall be at the principal administrative
offices of the Company and the Bank, or at such other site or sites customary
for such offices.
3. Term.
a. The term of this Agreement shall be (i) the initial term, consisting
of the period commencing on the date of this Agreement (the "Effective
Date") and ending on the third anniversary of the Effective Date, plus
(ii) any and all extensions of the initial term made pursuant to this
Section 3.
b. Commencing on the first year anniversary date of this Agreement, and
continuing on each anniversary thereafter, the disinterested members
of the boards of directors of the Bank and the Company may extend the
Agreement an additional year such that the remaining term of the
Agreement shall be thirty-six (36) months, unless Executive elects not
to extend the term of this Agreement by giving written notice in
accordance with Section 19 of this Agreement. The Board of Directors
of the Bank (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 of
Directors of the Bank shall give notice to Executive as soon as
possible after such review as to whether the Agreement is to be
extended.
4. Base Compensation.
a. The Company and the Bank agree to pay the Executive during the term of
this Agreement a base salary at the rate of $165,000 per year, payable
in accordance with customary payroll practices.
b. The Board shall review annually the rate of the Executive's base
salary based upon factors they deem relevant, and may maintain or
increase his salary, provided that no such action shall reduce the
rate of salary below the rate in effect on the Effective Date.
c. In the absence of action by the Board, the Executive shall continue to
receive salary at the annual rate specified on the Effective Date or,
if another rate has been established under the provisions of this
Section 4, the rate last properly established by action of the Board
under the provisions of this Section 4.
d. The Company and the Bank intend to allocate the compensation expenses
associated with Executive's performance of services under this
Agreement in accordance with the terms of the Expense Allocation
Agreement entered into between the Bank and the Company.
5. Bonuses. In lieu of any bonus normally provided to permanent full-time
employees of the Bank, the Bank agrees to provide a bonus program to the
Executive which will provide the Executive with the opportunity to earn up to
50% of the Executive's base salary, on an annual basis, the amount of which
shall be determined by specific performance standards and a formula agreed to by
Executive and the Bank annually. Performance standards shall be measured on a
calendar year, and no bonus shall be payable if Executive is not employed on
December 31 of the year in question; provided, however, in the event of death of
the Executive, the bonus for the calendar year of Executive's death shall be
prorated on a quarterly basis, using the information for the quarter(s)
completed prior to Executive's death.
6. Benefit Plans. The Executive shall be entitled to participate in such
life insurance, medical, dental, pension, profit-sharing, retirement and
stock-based compensation plans and other programs and arrangements as may be
approved from time to time by the Company and the Bank for the benefit of their
employees. In addition, during the term of this Agreement, the Bank shall
provide the Executive with a supplemental life insurance policy with a death
benefit of not less than $350,000. Notwithstanding the termination of this
Agreement for any reason, other than upon the Executive's termination for Cause,
the Bank further agrees that the Executive shall receive a supplemental
retirement benefit of $15,083 per year, beginning during the calendar year in
which the Executive attains age 65 and continuing for a total of fifteen (15)
years.
7. Vacation and Leave.
a. The Executive shall be entitled to vacations and other leave in
accordance with policy for senior executives, or otherwise as approved
by the Board, but, in any event, not less than four (4) weeks vacation
annually.
b. In addition to paid vacations and other leave, the Executive shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment 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 Executive a
leave or leaves of absence, with or without pay, at such time or times
and upon such terms and conditions as the Board in its discretion may
determine.
8. Expense Payments and Reimbursements. The Executive shall be reimbursed
for all reasonable out-of-pocket business expenses that he shall incur in
connection with his services under this Agreement upon substantiation of such
expenses in accordance with applicable policies of the Company and the Bank. In
addition, Executive shall receive an allowance of $2,400 per year for dues in
professional, social and civic organizations, and the sum of $1,200 per year for
miscellaneous expenses.
9. Automobile Allowance. During the term of this Agreement, the Executive
shall be entitled to an annual automobile allowance of $12,000, payable in equal
monthly installments. Executive shall comply with reasonable reporting and
expense limitations on the use of such automobile as may be established by the
Company or the Bank from time to time, and the Company or the Bank shall
annually include on Executive's Form W-2 any amount of income attributable to
Executive's personal use of such automobile.
10. Loyalty and Confidentiality; Noncompetition.
a. During the term of this Agreement, Executive: (i) shall devote all his
time, attention, skill, and efforts to the faithful performance of his
duties hereunder; provided, however, that from time to time, Executive
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 Company and the Bank or any of their
subsidiaries or affiliates, unfavorably affect the performance of
Executive's duties pursuant to this Agreement, or violate any
applicable statute or regulation and (ii) shall not engage in any
business or activity contrary to the business affairs or interests of
the Company and the Bank.
b. Nothing contained in this Agreement shall prevent or limit Executive's
right to invest in the capital stock or other securities of any
business dissimilar from that of the Company and the Bank, or, solely
as a passive, minority investor, in any business.
c. Executive agrees to maintain the confidentiality of any and all
information concerning the operation or financial status of the
Company and the Bank; the names or addresses of any of its borrowers,
depositors and other customers; any information concerning or obtained
from such customers; and any other information concerning the Company
and the Bank to which he may be exposed during the course of his
employment. The Executive further agrees that, unless required by law
or specifically permitted by the Board in writing, he will not
disclose to any person or entity, either during or subsequent to his
employment, any of the above-mentioned information which is not
generally known to the public, nor shall he employ such information in
any way other than for the benefit of the Company and the Bank.
d. Upon the termination of Executive's employment hereunder for any
reason, Executive
agrees not to compete with the Bank for a period of two (2) years
following such termination in any city, town or county in which the
Executive's normal business office is located and the Bank has an
office or has filed an application for regulatory approval to
establish an office (or within a 60-mile radius of each of such
offices), determined as of the effective date of such termination,
except as agreed to pursuant to a resolution duly adopted by the
Board. Executive agrees that during such period and within said
cities, towns and counties, Executive shall not work for or advise,
consult or otherwise serve with, directly or indirectly, any entity
whose business materially competes with the depository, lending or
other business activities of the Bank. The parties hereto, recognizing
that irreparable injury will result to the Bank, its business and
property in the event of Executive's breach of his obligations under
this paragraph and agree that in the event of any such breach by
Executive, the Bank, will be entitled, in addition to any other
remedies and damages available, to an injunction to restrain the
violation hereof by Executive, Executive's partners, agents, servants,
employees and all persons acting for or under the direction of
Executive. Nothing herein will be construed as prohibiting the Bank
from pursuing any other remedies available to the Bank for such breach
or threatened breach, including the recovery of damages from
Executive.
11. Termination and Termination Pay. Subject to Section 12 of this
Agreement, Executive's employment under this Agreement may be terminated in the
following circumstances:
a. Death. Executive's employment under this Agreement shall terminate
upon his death during the term of this Agreement, in which event
Executive's estate shall be entitled to receive the compensation due
to the Executive through the last day of the calendar month in which
his death occurred.
b. Retirement. This Agreement shall be terminated upon Executive's
retirement under the retirement benefit plan or plans in which he
participates pursuant to Section 6 of this Agreement or otherwise.
c. Disability.
i. The Board or Executive may terminate Executive's employment after
having determined Executive has a Disability. For purposes of
this Agreement, "Disability" means a physical or mental infirmity
that impairs Executive's ability to substantially perform his
duties under this Agreement and that results in Executive
becoming eligible for long-term disability benefits under any
long-term disability plans of the Company and the Bank (or, if
there are no such plans in effect, that impairs Executive's
ability to substantially perform his duties under this Agreement
for a period of one hundred eighty (180) consecutive days). The
Board shall determine whether or not Executive is and continues
to be permanently disabled for purposes of this Agreement in good
faith, based upon competent medical advice and other factors that
they reasonably believe to be relevant. As a condition to any
benefits, the Board may require Executive to submit to such
physical or mental evaluations and tests as it deems reasonably
appropriate.
ii. In the event of such Disability, Executive's obligation to
perform services under this Agreement will terminate. The Bank
will pay Executive, as Disability pay,
an amount equal to seventy-five (75) percent of Executive's
weekly rate of base salary in effect as of the date of his
termination of employment due to Disability. Disability payments
will be made on a monthly basis and will commence on the first
day of the month following the effective date of Executive's
termination of employment for Disability and end on the earlier
of: (A) the date he returns to full-time employment at the Bank
in the same capacity as he was employed prior to his termination
for Disability; (B) his death; or (C) the remaining term of the
Agreement (if the Agreement had not been earlier terminated by
the Executive's Disability). Such payments shall be reduced by
the amount of any short- or long-term disability benefits payable
to the Executive under any other disability programs sponsored by
the Company and the Bank. In addition, during any period of
Executive's Disability, Executive and his dependents shall, to
the greatest extent possible, continue to be covered under all
benefit plans (including, without limitation, retirement plans
and medical, dental and life insurance plans) of the Company and
the Bank, in which Executive participated prior to his Disability
on the same terms as if Executive were actively employed by the
Company and the Bank.
d. Termination for Cause.
i. The Board may, by written notice to the Executive in the form and
manner specified in this paragraph, immediately terminate his
employment at any time, for "Cause". The Executive shall have no
right to receive compensation or other benefits for any period
after termination for Cause except for vested benefits.
Termination for "Cause" shall mean termination because of, in the
good faith determination of the Board, Executive's:
(1) Personal dishonesty;
(2) Incompetence;
(3) Willful misconduct;
(4) Breach of fiduciary duty involving personal profit;
(5) Intentional failure to perform duties under this Agreement;
(6) Willful violation of any law, rule or regulation (other than
traffic violations or similar offenses), any felony
conviction, any violation of law involving moral turpitude,
or any violation of a final cease-and-desist order; or
(7) Material breach by Executive of any provision of this
Agreement.
ii. Notwithstanding the foregoing, Executive shall not be deemed to
have been terminated for Cause by the Company and the Bank unless
there shall have been delivered to Executive a copy of a
resolution duly adopted by the affirmative vote of a majority of
the entire membership of the Board at a meeting of such Board
called and held for the purpose (after reasonable notice to
Executive), of
finding that in the good faith opinion of the Board, Executive
was guilty of the conduct described above and specifying the
particulars thereof.
e. Voluntary Termination by Executive. In addition to his other rights to
terminate under this Agreement, Executive may voluntarily terminate
employment during the term of this Agreement upon at least sixty (60)
days prior written notice to the Board, in which case Executive shall
receive only his compensation, vested rights and employee benefits up
to the date of his termination.
f. Without Cause or With Good Reason.
i. In addition to termination pursuant to Sections 11(a) through
11(e) the Board, may, by written notice to Executive, immediately
terminate his employment at any time for a reason other than
Cause (a termination "Without Cause") and Executive may, by
written notice to the Board, immediately terminate this Agreement
at any time within ninety (90) days following an event
constituting "Good Reason" as defined below (a termination "With
Good Reason").
ii. Subject to Section 12 of this Agreement, in the event of
termination under this Section 11(f), Executive shall be entitled
to receive a payment equal to the base salary (determined by
reference to the Executive's base salary on the termination date)
and bonuses (determined by reference to the Executive's average
bonus over the three (3) years preceding his termination date or
such lesser period as he was employed by the Bank) that would
otherwise have been payable over the remaining term of the
Agreement. Such amount shall be paid in one lump sum within ten
(10) calendar days of such termination. Also, in such event,
Executive shall, for the remaining term of the Agreement, receive
the benefits he would have received during the remaining term of
the Agreement under any retirement programs (whether
tax-qualified or non-qualified) in which Executive participated
prior to his termination (with the amount of the benefits
determined by reference to the benefits received by the Executive
or accrued on his behalf under such programs during the twelve
(12) months preceding his termination) and continue to
participate in any benefit plans of the Company and the Bank that
provide health (including medical and dental), life, or similar
coverage upon terms no less favorable than the most favorable
terms provided to senior executives of the Company and the Bank
during such period. In the event that the Company and the Bank
are unable to provide such coverage by reason of Executive no
longer being an employee, the Company and the Bank shall provide
Executive with comparable coverage on an individual policy basis.
iii. "Good Reason" shall exist if, without Executive's express written
consent, the Company and the Bank materially breach any of their
respective obligations under this Agreement. Without limitation,
such a material breach shall be deemed to occur upon any of the
following:
(1) A material reduction in Executive's responsibilities or
authority in connection with his employment with the Company
or the Bank;
(2) Assignment to Executive of duties of a non-executive nature
or duties for
which he is not reasonably equipped by his skills and
experience;
(3) A reduction in salary or benefits contrary to the terms of
this Agreement, or, following a Change in Control as defined
in Section 12 of this Agreement, any reduction in salary or
material reduction in benefits below the amounts to which he
was entitled prior to the Change in Control;
(4) Termination of incentive and benefit plans, programs or
arrangements, or reduction of Executive's participation to
such an extent as to materially reduce their aggregate value
below their aggregate value as of the Effective Date; or
(5) A requirement that Executive relocate his principal business
office or his principal place of residence outside of the
area consisting of a twenty-five (25) mile radius from the
current main office and any branch of the Bank, or the
assignment to Executive of duties that would reasonably
require such a relocation; or
iv. Notwithstanding the foregoing, a reduction or elimination of
Executive's benefits less than one or more benefit plans
maintained by the Company and the Bank as part of a good faith,
overall reduction or elimination of such plans or benefits
thereunder applicably to all participants in a manner that does
not discriminate against Executive (except as such discrimination
may be necessary to comply with law) shall not constitute an
event of Good Reason or a material breach of this Agreement,
provided that benefits of the type or to the general extent as
those offered under such plans prior to such reduction or
elimination are not available to other officers of the Company
and the Bank or any company that controls either of them under a
plan or plans in or under which Executive is not entitled to
participate.
12. Termination in Connection with a Change in Control.
a. For purposes of this Agreement, a "Change in Control" shall be deemed
to occur on the earliest of:
(i) Merger: The Company merges into or consolidates with another
corporation, or merges another corporation into the Company, and
as a result less than a majority of the combined voting power of
the resulting corporation immediately after the merger or
consolidation is held by persons who were stockholders of the
Company immediately before the merger or consolidation;
(ii) Acquisition of Significant Share Ownership: a report on Schedule
13D or another form or schedule (other than Schedule 13G) is
filed or is required to be filed under Sections 13(d) or 14(d) of
the Securities Exchange Act of 1934, if the schedule discloses
that the filing person or persons acting in concert has or have
become the beneficial owner of 25% or more of a class of the
Company's voting securities, but this clause (ii) shall not apply
to beneficial ownership of Company voting shares held in a
fiduciary capacity by an entity of which the Company
directly or indirectly beneficially owns 50% or more of its
outstanding voting securities;
(iii) Change in Board Composition: during any period of two
consecutive years, individuals who constitute the Company's
Board of Directors at the beginning of the two-year period cease
for any reason to constitute at least a majority of the
Company's Board of Directors; provided, however, that for
purposes of this clause (iii) each director who is first elected
by the board (or first nominated by the board for election by
stockholders) by a vote of at least two-thirds of the directors
who were directors at the beginning of the period shall be
deemed to have been a director at the beginning of the two-year
period; or
(iv) Sale of Assets: Company sells to a third party all or
substantially all of the Company's assets.
b. Termination. If within the period ending two years after a Change in
Control, (i) the Company and the Bank shall terminate the Executive's
employment Without Cause, or (ii) Executive voluntarily terminates his
employment With Good Reason, the Company and the Bank shall, within
ten calendar days of the termination of Executive's employment, make a
lump-sum cash payment to him equal to 2.99 times the Executive's
average Annual Compensation over the five (5) most recently completed
calendar years ending with the year immediately preceding the
effective date of the Change in Control (or such lesser number of
completed calendar years as the Executive has been employed by the
Company and the Bank). In determining Executive's average Annual
Compensation, Annual Compensation shall include base salary and any
other taxable income, including but not limited to amounts related to
the granting, vesting or exercise of restricted stock or stock option
awards, commissions, bonuses (whether paid or accrued for the
applicable period), as well as, retirement benefits, director or
committee fees and fringe benefits paid or to be paid to Executive or
paid for Executive's benefit during any such year, profit sharing,
employee stock ownership plan and other retirement contributions or
benefits, including to any tax-qualified plan or arrangement (whether
or not taxable) made or accrued on behalf of Executive of such year.
The cash payment made under this Section 12(b) shall be made in lieu
of any payment also required under Section 11(f) of this Agreement
because of a termination in such period. Executive's rights under
Section 11(f) are not otherwise affected by this Section 12. Also, in
such event, the Executive shall, for a thirty-six (36) month period
following his termination of employment, receive the benefits he would
have received over such period under any retirement programs (whether
tax-qualified or nonqualified) in which the Executive participated
prior to his termination (with the amount of the benefits determined
by reference to the benefits received by the Executive or accrued on
his behalf under such programs during the twelve (12) months preceding
the Change in Control) and continue to participate in any benefit
plans of the Company and the Bank that provide health (including
medical and dental), life, or similar coverage upon terms no less
favorable than the most favorable terms provided to senior executives
during such period. In the event that the Company and the Bank are
unable to provide such coverage by reason of the Executive no longer
being an employee, the Company and the Bank shall provide the
Executive with comparable coverage on an individual policy.
c. The provisions of Sections 12 and Sections 14 through 25, including
the defined terms used is such sections, shall continue in effect
until the later of the expiration of this Agreement or two years
following a Change in Control.
13. Indemnification and Liability Insurance.
a. Indemnification. The Company and the Bank agree to indemnify Executive
(and his heirs, executors, and administrators), and to advance
expenses related thereto, to the fullest extent permitted under
applicable law and regulations against any and all expenses and
liabilities reasonably incurred by him in connection with or arising
out of any action, suit, or proceeding in which he may be involved by
reason of his having been a director or executive of the Company, the
Bank or any of their subsidiaries (whether or not he continues to be a
director or executive at the time of incurring any 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, such settlements to be approved by the
Board, if such action is brought against Executive in his capacity as
an executive or director of the Company and the Bank or any of their
subsidiaries. Indemnification for expense shall not extend to matters
for which the Executive has been terminated for Cause. Nothing
contained herein shall be deemed to provide indemnification prohibited
by applicable law or regulation. Notwithstanding anything herein to
the contrary, the obligations of this Section 13 shall survive the
term of this Agreement by a period of six (6) years.
b. Insurance. During the period in which indemnification of Executive is
required under this Section, the Company and the Bank shall provide
the Executive (and his heirs, executors, and administrators) with
coverage under a directors' and Executives' liability policy at the
expense of the Company and the Bank, at least equivalent to such
coverage provided to directors and senior Executives of the Company
and the Bank.
14. Reimbursement of Executive's Expenses to Enforce this Agreement. The
Company and the Bank shall reimburse the Executive for all out-of-pocket
expenses, including, without limitation, reasonable attorneys' fees, incurred by
the Executive in connection with successful enforcement by the Executive of the
obligations of the Company and the Bank to the Executive under this Agreement.
Successful enforcement shall mean the grant of an award of money or the
requirement that the Company and the Bank take some action specified by this
Agreement (i) as a result of court order; or (ii) otherwise by the Company and
the Bank following an initial failure of the Company and the Bank to pay such
money or take such action promptly after written demand therefor from the
Executive stating the reason that such money or action was due under this
Agreement at or prior to the time of such demand.
15. Limitation of Benefits under Certain Circumstances. If the payments
and benefits pursuant to Section 12 of this Agreement, either alone or together
with other payments and benefits which the Executive has the right to receive
from the Company and the Bank, would constitute a "parachute payment" under
Section 280G of the Code, the payments and benefits pursuant to Section 12 shall
be reduced or revised, in the manner determined by the Executive, by the amount,
if any, which is the minimum necessary to result in no portion of the payments
and benefits under Section 12 being non-deductible to the Company and the Bank
pursuant to Section 280G of the Code and subject to the excise tax imposed under
Section 4999 of the Code. The determination of any reduction in the payments and
benefits to be made pursuant to Section 12 shall be based upon the opinion of
the Company and the Bank's independent public accountants and paid for by the
Company and the Bank. In the event that the
Company, the Bank and/or the Executive do not agree with the opinion of such
counsel, (i) the Company and the Bank shall pay to the Executive the maximum
amount of payments and benefits pursuant to Section 12, as selected by the
Executive, which opinion indicates there is a high probability of such payments
and benefits being non-deductible to the Company and the Bank and subject to the
imposition of the excise tax imposed under Section 4999 of the Code and (ii) the
Company and the Bank may request, and the Executive shall have the right to
demand that they request, a ruling from the IRS as to whether the disputed
payments and benefits pursuant to Section 12 have such consequences. Any such
request for a ruling from the IRS shall be promptly prepared and filed by the
Company and the Bank, but in no event later than thirty (30) days from the date
of the opinion of counsel referred to above, and shall be subject to the
Executive's approval prior to filing, which shall not be unreasonably withheld.
The Company, the Bank and the Executive agree to be bound by any ruling received
from the IRS and to make appropriate payments to each other to reflect any such
rulings, together with interest at the applicable federal rate provided for in
Section 7872(f)(2) of the Code. Nothing contained herein shall result in a
reduction of any payments or benefits to which the Executive may be entitled
upon termination of employment other than pursuant to Section 12 hereof, or a
reduction in the payments and benefits specified in Section 12 below zero.
16. Injunctive Relief. If there is a breach or threatened breach of
Section 10 of this Agreement, the parties agree that there is no adequate remedy
at law for such breach, and that the Company and the Bank shall be entitled to
injunctive relief restraining the Executive from such breach or threatened
breach, but such relief shall not be the exclusive remedy hereunder for such
breach. The parties hereto likewise agree that the Executive, without
limitation, shall be entitled to injunctive relief to enforce the obligations of
the Company and the Bank under this Agreement.
17. Successors and Assigns.
a. This Agreement shall inure to the benefit of and be binding upon any
corporate or other successor of the Company and the Bank which shall
acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the
Company and the Bank.
b. Since the Company and the Bank are contracting for the unique and
personal skills of Executive, Executive shall be precluded from
assigning or delegating his rights or duties hereunder without first
obtaining the written consent of the Company and the Bank.
18. No Mitigation. Executive 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 Executive in any subsequent employment.
19. Notices. All notices, requests, demands and other communications in
connection with this Agreement shall be made in writing and shall be deemed to
have been given when delivered by hand or 48 hours after mailing at any general
or branch United States Post Office, by registered or certified mail, postage
prepaid, addressed to the Company and/or the Bank at their principal business
offices and to Executive at his home address as maintained in the records of the
Company and the Bank.
20. No Plan Created by this Agreement. Executive, the Company and the Bank
expressly declare and agree that this Agreement was negotiated among them and
that no provision or provisions of this Agreement are intended to, or shall be
deemed to, create any plan for purposes of the Employee
Retirement Income Security Act or any other law or regulation, and each party
expressly waives any right to assert the contrary. Any assertion in any judicial
or administrative filing, hearing, or process that such a plan was so created by
this Agreement shall be deemed a material breach of this Agreement by the party
making such an assertion.
21. 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.
22. Applicable Law. Except to the extent preempted by Federal law, the
laws of the State of Tennessee shall govern this Agreement in all respects,
whether as to its validity, construction, capacity, performance or otherwise.
23. 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.
24. Headings. Headings contained herein are for convenience of reference
only.
25. Entire Agreement. This Agreement, together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof, other than written agreements with respect to specific plans, programs
or arrangements described in Sections 5 and 6. The parties agree that this
Agreement supercedes and replaces in its entirety the Agreement between the
Executive, the Bank and the Company dated January 1, 2003.
26. Required Provisions. In the event any of the provisions of this
Section 26 are in conflict with the terms of this Agreement, this Section 26
shall prevail.
a. The Bank may terminate Executive's employment at any time, but any
termination by the Bank, 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 7 hereinabove.
b. If Executive is suspended from office and/or temporarily prohibited
from participating
in the conduct of the Bank's affairs by a notice served under Section
8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
(S)1818(e)(3) or (g)(1); the Bank's obligations under this contract
shall be suspended as of the date of service, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed,
the Bank may in its discretion: (i) pay Executive all or part of the
compensation withheld while their contract obligations 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 Bank'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. (S)1818(e)(4) or (g)(1), all obligations of the Bank under
this contract shall terminate as of the effective date of the order,
but vested rights of the contracting parties shall not be affected.
d. If the Bank is in default as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. (S)1813(x)(1) all obligations of the
Bank under this contract 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 Bank under this contract shall be terminated,
except to the extent determined that continuation of the contract is
necessary for the continued operation of the institution: (i) by the
Director of the OTS (or his designee), the FDIC or the Resolution
Trust Corporation, at the time the FDIC enters into an agreement to
provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) of the Federal Deposit Insurance Act, 12
U.S.C. (S)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 Bank or when the Bank 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. (S)1828(k) and 12 C.F.R. Section 545.121 and any rules and
regulations promulgated thereunder.
Exhibit 10.1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
Attest: JEFFERSON BANCSHARES, INC.
/s/ Susan A. Greene By: /s/ John F. McCrary, Jr.
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Attest: JEFFERSON FEDERAL BANK
/s/ Susan A. Greene By: /s/ John F. McCrary, Jr.
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Chairman of the Board of Directors
Witness: EXECUTIVE
/s/ William T. Hale /s/ Anderson L. Smith
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Anderson L. Smith