VWF Bancorp, Inc 8-K, filed Oct 3, 2022
VWF Bancorp, Inc. (VWFB)
8-K
2022-10-03
For: 2022-09-30
View Original
Added on
April 06, 2026
About this 8-K
VWF Bancorp, Inc filed this 8-K on October 3, 2022, reporting on events of September 30, 2022.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 30, 2022
(Exact Name of Registrant as Specified in its Charter)
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(State or Other Jurisdiction of Incorporation)
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(Commission File No.)
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(I.R.S. Employer Identification No.)
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(Address of Principal Executive Offices)
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(Zip Code)
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(419 ) 238-9662
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of Each Class
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Trading Symbol(s)
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Name of Each Exchange on Which Registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the
Securities Exchange Act of 1934.
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 8.01
Other Events.
As previously disclosed, VWF Bancorp, Inc. (the “Company”) and its wholly-owned subsidiary, Van Wert Federal Savings Bank (the “Bank”),
have been conducting a search for a qualified candidate to serve as the new President and Chief Executive Officer of the Company and the Bank. The Company and the Bank expect to appoint Michael D. Cahill to serve as their new President and Chief
Executive Officer. Mr. Cahill will initially serve as a consultant to the Bank, and the Company and the Bank expect to formally appoint him to serve as President and Chief Executive Officer of the Company and the Bank effective as of January 1,
2023. The Company and the Bank also expect to appoint him to the boards of directors of the Company and the Bank effective as of January 1, 2023.
Mr. Cahill, age 62 and a certified public accountant, has extensive experience in the financial services industry, and related industries,
including having served as past President and Chief Executive Officer of the former Tower Financial Corporation and its bank subsidiary, Tower Bank and Trust Company, Ft. Wayne, Indiana. He also served as a board member and Vice Chairman of Centier
Bank, Whiting, Indiana, and as a board member of the Indiana Bankers Association. He serves on the faculty of the Graduate School of Banking at Colorado.
On September 30, 2022, the Bank and Mr. Cahill entered into a consulting agreement with respect to his consulting services and an
employment agreement with respect to his expected appointment to serve as President and Chief Executive Officer.
Consulting Agreement
Pursuant to the terms of the consulting agreement, Mr. Cahill will provide certain consulting services to the Bank from October 1, 2022,
through December 31, 2022. He will receive $15,000 per month for his consulting services.
Employment Agreement
The employment agreement will become effective as of January 1, 2023, subject to the formal appointment of Mr. Cahill to serve as President
and Chief Executive Officer by the boards of directors of the Company and the Bank. The employment agreement will have an initial term of three years. Commencing as of the first anniversary of the effective date of the employment agreement and
continuing as of each subsequent anniversary of that date, the term of the employment agreement will extend for an additional year, so that the term again become three years. However, at least 30 days before the anniversary of the renewal date of
the employment agreement, the disinterested members of the board of directors must conduct a comprehensive performance evaluation of Mr. Cahill and affirmatively approve any extension of the employment agreement for an additional year or determine
not to extend the term of the employment agreement. If the board of directors determines not to extend the term, it must notify Mr. Cahill before the applicable anniversary date and the term of the employment agreement will expire at the end of the
then current term. If a change in control occurs during the term of the employment agreement, the term of the employment agreement will automatically renew for two years from the effective date of the change in control.
The employment agreement provides that Mr. Cahill will receive an annual salary of $185,000 for 2023, $200,000 for 2024 and $215,000 for
2025. Thereafter, the board of directors will review the base salary at least annually and it may be increased, but not decreased. In addition to receiving a base salary, Mr. Cahill will participate in any bonus programs and benefit plans made
available to senior management employees of the Bank. He will also be reimbursed for all reasonable business expenses incurred in performing his duties, as well for a county club membership. He will also be provided with a company-owned or leased
automobile.
If Mr. Cahill voluntarily terminates employment, he will be entitled to receive the sum of his (i) unpaid salary, (ii) unpaid expense
reimbursements, (iii) unused accrued paid time-off, and (iv) earned but unpaid incentive compensation (collectively, the “Accrued Obligations”).
In the event Mr. Cahill’s employment involuntary terminates for reasons other than cause, disability or death, or in the event of his
resignation for “good reason,” in either event other than in connection with a change in control, he will receive a severance payment, paid in a lump sum, equal to the
Accrued Obligations plus the base salary and bonuses (based on the highest annual bonus earned during the three most recent calendar years before the date of termination) he would have received during the remaining term of the employment
agreement. In addition, if he elects COBRA coverage, he will be reimbursed for his monthly COBRA premium payments for up to 18 months.
In the event Mr. Cahill’s employment involuntary terminates for reasons other than cause, disability or death, or in the event of his
resignation for “good reason,” in either event within 24 months following a change in control, he will receive a severance payment, paid in a single lump sum, equal to his Accrued Obligations plus three times the sum of (i) his base salary in effect as of the date of termination or immediately before the change in control, whichever is higher, and (ii) his highest annual cash bonus earned for the year in which the
change in control occurs or any of the three prior calendar years. In addition, if he elects COBRA coverage, he will be reimbursed for his monthly COBRA premium payments for up to 18 months.
For purposes of the employment agreement, “good reason” is defined as (i) a material reduction in Mr. Cahill’s authority, duties, or
responsibilities, (ii) a reduction in his salary or incentive compensation opportunities, (iii) a relocation of his principal place of employment by more than 35 miles from the Bank’s office location or his home office, or (iv) a material breach of
the employment agreement by the Bank.
Should Mr. Cahill become disabled during the term of the employment agreement, he will be entitled to the Accrued Obligations plus
disability benefits, if any, provided under a long-term disability plan sponsored by the Bank. If he dies while employed by the Bank, his beneficiaries will receive the Accrued Obligations plus any benefit payable under the life insurance program
sponsored by the Bank.
Upon a termination of employment (other than a termination in connection with a change in control), Mr. Cahill will be required to adhere
to one-year non-competition and non-solicitation restrictions set forth in the employment agreement.
Item 9.01
Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description
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Consulting Agreement with Michael D. Cahill
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Employment Agreement with Michael D. Cahill
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Cover Page Interactive Data File (Embedded within Inline XBRL document)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
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VWF BANCORP, INC.
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Date: October 3, 2022
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By:
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/s/ Mark K. Schumm
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Mark K. Schumm
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President and Chief Executive Officer
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Exhibit 10.1
CONSULTING AGREEMENT
This CONSULTING
AGREEMENT, effective as of October 1, 2022, (this “Agreement”), is hereby made by and between Van Wert Federal Savings Bank (the “Bank”), and Michael Cahill (the “Consultant”).
WHEREAS, the
Bank has determined that the Consultant has the experience to provide it with certain needed services.
NOW, THEREFORE,
in consideration of the foregoing and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.
1. Consulting Period. The Consultant shall perform the services hereunder for a period
commencing on October 1, 2022 (the “Start Date”), and ending on the earliest of (a) December 31, 2022 (“the Term”); (b) termination by the Bank in accordance with Section 4(a) (“Bank Termination”); or (c) termination by the Consultant in the
Consultant’s discretion in accordance with Section 4(b) (“Consultant Termination”). The period from the Start Date to the earliest of (a), (b) or (c) is referred to as the “Consulting Period.”
2. Services to be Provided.
(a) Nature of Services; Reporting. The Bank hereby agrees to engage the Consultant, and
the Consultant hereby agrees to serve the Bank, on the terms and subject to the conditions set forth in this Agreement. The Consultant shall perform services related to loan growth and credit, investments, accounting, finance and capital and
potential new markets and other services as mutually agreed to by the parties.
(b) Time Commitment; Scheduling. The
Consultant shall make himself available to perform the Services for up to 40 hours in each calendar week during the Consulting Period, as requested by the Bank. The Consultant may reasonably determine his working hours for the performance of the
Services; provided, however, that he will be present in the main office of the Bank at least two days each week.
(c) Location of Performance. The Consultant
may perform the Services from and at the main office of the Bank, from his home office, or at other locations as necessary, subject to any reasonable needs of the Bank for the Consultant’s physical presence from time to time.
3. Compensation.
(a) Fees and Expenses. The Bank shall provide the following compensation to the Consultant
for his performance of the Services.
(i) Fees. The Consultant will be paid a
consulting fee for his services during the Consulting Period in an amount equal to $15,000.00 per month. The fees shall be paid to the Consultant in a single lump sum within 10 days following the end of the Consulting Period.
(ii) Ineligibility for Employee Benefits. The Consultant
will not, pursuant to this Agreement or in connection with his Services hereunder, be eligible for or entitled to participate in any employee benefit plan, policy or arrangement of the Bank or receive any other benefits or conditions of employment
available to employees of the Bank.
(iii) Expenses. The Bank will reimburse Consultant for reasonable business expenses incurred by Consultant in connection with the performance of the Services.
4. Termination by the Bank or the Consultant.
(a) Termination by the Bank. The Bank may undertake a Bank Termination of the Consulting
Period upon ten (10) business days’ advance written notice to the Consultant.
(b) Termination by the Consultant. The Consultant may undertake a Consultant Termination
of the Consulting Period by providing ten (10) business days’ advance written notice to the President of the Bank.
(c) Effect of Termination. Upon termination of the Consulting Period, the Consultant will
be entitled to payment of any accrued but unpaid consulting fees payable under Section 3(a)(i) of this Agreement through the date of termination of the Consulting Period. The payment will be made within ten (10) days of the termination of the
Consulting Period. Notwithstanding an earlier termination of the Consulting Period, the provisions of Section 8 and 10 shall continue to apply.
5. Independent Contractor Status. During the Consulting Period, the Consultant shall be
an independent contractor with respect to the Bank and there shall not be implied any relationship between the Consultant on the one hand, and the Bank and its affiliates, on the other hand, of employer-employee, partnership, joint venture,
principal and agent or the like by this Agreement. Although the Bank may specify the results it desires the Consultant to achieve during the Consulting Period and may control and direct the Consultant in that regard, the Bank shall not exercise or
have the power to exercise such level of control over the Consultant as would indicate or establish that a relationship of employer and employee exists between the Consultant and the Bank. Subject to the terms of this Agreement, the Consultant
shall have full and complete control over the manner and method of rendering his services hereunder. Except on authority specifically so delegated in a prior writing from a duly authorized officer of the Bank, the Consultant shall not (i) have or
represent to have any authority to act as an agent of the Bank or its affiliates, and the Consultant shall not represent to the contrary to any person, (ii) have or represent to have power of decision hereunder in any activity on behalf of the
Bank, (iii) have the power or authority hereunder to obligate, bind or commit the Bank in any respect, (iv) make any management decisions on behalf of the Bank or (v) undertake to commit the Bank to any course of action in relation to third
persons.
6. Assignment; Binding Agreement. This Agreement is a personal contract, and the rights and interests of the Consultant hereunder may not be sold, transferred,
assigned, pledged, encumbered, or hypothecated by him, except as otherwise expressly permitted by the provisions of this Agreement. This Agreement shall inure to the benefit of and be enforceable by and against the Consultant and his personal or
legal representatives, executors, administrators, successors, heirs, distributees, devisees, and legatees. If the Consultant should die while any amount would still be payable to him hereunder relating to services performed through his date of
death, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to his devisee, legatee or other designee or, if there is no such designee, to his estate. Nothing in this Agreement shall
confer upon the Consultant the right to provide services to the Bank or any of its affiliates or interfere in any way with the right of the Bank or any such affiliates to terminate the Services of the Consultant at any time.
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7. Taxes.
(a) To the extent consistent with applicable law, the Bank shall not withhold or deduct from any amounts payable under this Consulting Agreement any amount or amounts in respect of
income taxes or other employment taxes of any other nature on behalf of the Consultant. The Consultant shall be solely responsible for the payment of any Federal, state, local or other income and/or self-employment taxes in respect of the amounts
payable to the Consultant under the Consulting Agreement and shall hold the Bank and its affiliates and their officers, directors and employees harmless from any liability arising from the Consultant’s failure to comply with the foregoing
provisions of this sentence.
(b) It is intended that the provisions of this Agreement comply with Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), to any extent applicable, and all
provisions of this Agreement shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes and penalties under Section 409A.
8. Confidential Information. The Consultant will keep in strict confidence, and will
not, directly or indirectly, at any time during or after the Consultant’s association with the Bank or its affiliates, disclose, furnish, disseminate, make available or, except for the sole purpose of performing the Consultant’s duties in
association with the Bank, use any trade secrets or confidential information of the Bank or its customers or vendors, without limitation as to when or how the Consultant may have acquired such information (“Confidential Information”). The
Consultant specifically acknowledges that all such Confidential Information, whether reduced to writing, maintained on any form of electronic media or maintained in the mind or memory of the Consultant and whether compiled by the Bank and/or the
Consultant, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Bank to maintain the
secrecy of such information, that such information is the sole property of the Bank and that any retention and use of such information by the Consultant during his association with the Bank or its affiliates or after the termination of such
association shall constitute a misappropriation of the Bank’s trade secrets. Information and/or materials (a) disclosed or authorized in writing to be disclosed by the Bank to the public domain or (b) widely disseminated in the public domain and
disclosed through no fault or omission of the Consultant, will not be considered Confidential Information for purposes of this Section 8.
9. Entire Agreement. This Agreement contains all the understandings between the
parties hereto pertaining to the Consultant’s provision of Services during the Consulting Period, and, except as otherwise set forth herein, supersedes any and all previous contracts, understandings, agreements, commitments, promise or similar
communications or arrangements, whether written or oral, with respect to such subject matters between the Bank, its affiliates, their respective directors, officers, employees and agents and the Consultant.
10. Representations. By executing this Agreement, the Consultant represents and warrants
to the Bank that, to the best of the Consultant’s knowledge: (i) he is not restricted by contract, agreement or otherwise from providing consulting services to the Bank; (ii) he is not party to any agreement or contract that would prevent or
restrict him, or that seeks to prevent or restrict him, from engaging in activities competitive with any activities of any past employer or service recipient; and (iii) he has complied with any and all covenants, agreements or contracts entered
into with any past employer or service recipient that may pertain to the Services for the Bank.
11. Amendment or Modification, Waiver. No provision of this Agreement may be amended or
waived, unless such amendment or waiver is agreed to in writing, signed by the Consultant and by a duly authorized officer of the Bank. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be
considered a waiver of such party’s rights or deprive such party of the right thereafter to insist on strict adherence to that term or any other term of this Agreement. No waiver by any party hereto of any breach by another party hereto of any
condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar condition or provision at the same time, any prior time, or any subsequent time.
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12. Notices. Any notice to be given hereunder shall be in writing and shall be deemed
given when delivered personally, sent by courier or facsimile or registered or certified mail, postage prepaid, return receipt requested, addressed to the party concerned at the address indicated below or to such other address as such party may
subsequently give notice hereunder in writing:
If to the Consultant: At the most recent address on file for the Consultant.
If to the Bank, to:
Van Wert Federal Savings Bank
976 South Shannon Street
Van Wert, Ohio 45891
Attention: President
Any notice delivered personally, by courier,
or by registered or certified mail, postage prepaid, return receipt requested, under this Section 12 shall be deemed given on the date delivered, and any notice sent by facsimile shall be deemed given on the date transmitted by facsimile, with
satisfactory transmission acknowledged.
13. Severability. If any provision of this Agreement or the application of any such
provision to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances
other than those to which it is so determined to be invalid and unenforceable shall not be affected thereby, and each provision hereof shall be validated and shall be enforced to the fullest extent permitted by law. Upon a determination that any
term or other provision is invalid and unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that
the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
14. Survivorship. The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement to the extent necessary to the intended preservation of such rights and obligations.
15. Governing Law; Consent to Jurisdiction; No Jury Trial. This Agreement will be governed
by and construed in accordance with the laws of the State of Ohio, without regard to the principles of conflicts of law thereof. Any action to enforce any provision of this Agreement shall be commenced in and proceed exclusively in the state or
federal courts for the State of Ohio. Each party consents to personal jurisdiction in the State of Ohio with respect to any such dispute. Both
the Consultant and the Bank waive any rights to jury trial regarding the resolution of any dispute arising under or related to this Agreement.
16. Headings. All descriptive headings of sections and paragraphs in this Agreement are
intended solely for convenience, and no provision of this Agreement is to be construed by reference to the heading of any section or paragraph.
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17. Counterparts. 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 instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission or electronic means (including by “pdf”)
shall be effective as delivery of a manually executed counterpart of this Agreement.
18. Construction. For purposes of this Agreement, the words “include” and “including”,
and variations thereof, shall not be deemed to be terms of limitation but rather shall be deemed to be followed by the words “without limitation”. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”.
19. Independent Review and Advice. The Consultant represents and warrants that the
Consultant: (a) has carefully read this Agreement; (b) executes this Agreement with full knowledge of the contents of this Agreement, the legal consequences thereof and any and all rights that each party may have with respect to one another; (c)
has had the opportunity to receive independent legal advice with respect to the matters set forth in this Agreement and with respect to the rights and asserted rights arising out of such matters; and (d) is entering into this Agreement of his own
free will.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of October 1, 2022.
VAN WERT FEDERAL SAVINGS BANK
By: /s/ Mark K. Schumm
Name: Mark K. Schumm
Title: President
Date: September 30, 2022
CONSULTANT
/s/ Michael Cahill
Michael Cahill
Date: September 30, 2022
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Exhibit 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the “Agreement”)
is made and entered into as of the 30th day of September 2022, to be effective as of January 1, 2023 (the “Effective Date”), by and between Van Wert
Federal Savings Bank (the “Bank”) and Michael D. Cahill (the “Executive”),
subject to the appointment of the Executive by the Bank to the “Executive Position” set forth in Section 1(a). For the avoidance of doubt, this Agreement shall not take effect and shall become null and void if the Executive is not appointed to the
Executive Position prior to the Effective Date. Any reference to the “Company” shall mean VWF Bancorp, Inc., the holding company of the Bank.
RECITALS
WHEREAS, the
Bank desires to employ the Executive in an executive capacity in the conduct of its businesses, and the Executive desires to be so employed on the terms contained in this Agreement;
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.
(a) Employment. Except as provided for in this Section 1(a), during
the Term (as defined in Section 2(a)) of this Agreement, the Executive agrees to serve as President and Chief Executive Officer of the Bank and the Company or any successor executive position(s) with the Bank and the Company that is consented to,
in writing, by the Executive (the “Executive Position”), and will perform the duties of and have all powers associated with the Executive Position as are
appropriate for a person in the position of the Executive Position, as well as those as shall be assigned by the boards of directors of the Bank and the Company. As the President and Chief Executive Officer, the Executive will report directly to
the boards of directors. Concurrent with the Executive’s appointment to the Executive Position, the Executive will also be appointed to the boards of directors of the Bank and the Company as of the Effective Date. During the period provided for
in this Agreement, the Executive also agrees to serve, if elected, as an officer, director or trustee of any subsidiary or affiliate of the Bank and in such capacity to carry out the duties and responsibilities reasonably appropriate to any such
position.
(b) Responsibilities. During the Executive’s employment hereunder, the Executive will be employed on a full-time basis and the Executive will devote his full business time and best efforts, business judgment, skill and
knowledge to the performance of the Executive’s duties and responsibilities related to the Executive Position. Except as otherwise provided in Section 1(c), or as may be approved by the Board of Directors of the Bank (the “Board of Directors”),
the Executive will not engage in any other business activity during the term of this Agreement.
(c) Service on Other Boards and Committees. The Bank encourages
participation by the Executive on community boards and committees and in activities generally considered to be in the public interest, but the Board of Directors shall have the right to approve or disapprove, in its sole discretion, the Executive’s
participation on those boards and committees.
2. TERM.
(a) Term and Annual Renewal. The initial term of this Agreement will begin as of the Effective Date (i.e., January 1, 2023) and continue for a period of three years (the “Term”). Commencing on the first anniversary date of the Effective Date (the “Renewal Date”), and continuing on
each anniversary of the Renewal Date thereafter, the term of this Agreement shall renew for an additional year such that the remaining term of this Agreement is three (3) years; provided, however, that in order for this Agreement to renew, the
disinterested members of the Board of Directors must take the following actions within the following time frames prior to each Renewal Date: (i) at least thirty (30) days prior to the Renewal Date, conduct or review a comprehensive performance
evaluation of the Executive for purposes of determining whether to extend the Term; and (ii) affirmatively approve the renewal or non-renewal of the Term, which decision will be included in the minutes of the meeting of the Board of Directors. If
the decision of the disinterested members of the Board of Directors is not to renew the Term, then the Board of Directors will provide the Executive with a written notice of non-renewal (“Non-Renewal Notice”) prior to the applicable Renewal Date and the Agreement will expire at the end of the current Term.
(b) Change in Control. Notwithstanding the foregoing, in the event the
Bank or the Company has entered into an agreement to effect a transaction that would be considered a Change in Control, as defined in Section 5, the Term of this Agreement will automatically extend so that it expires no less than two (2) years
beyond the effective date of the Change in Control, subject to extensions as set forth in Section 2(a).
(c) Continued Employment Following Expiration of Term. Nothing in this
Agreement shall mandate or prohibit a continuation of the Executive’s employment following the expiration of the Term.
(d) Location. The Bank shall provide the Executive, at his principal
place of employment, with a private office, secretarial services and other support services and facilities suitable to the Executive’s employment with the Bank and necessary or appropriate in connection with the performance of the Executive’s
duties under this Agreement. The Bank shall also provide the Executive with items reasonably necessary for the Executive to perform the Executive’s duties under this Agreement at a home office. Except during periods of approved leave, the
Executive will spend at least two days physically present in the main office of the Bank and may work remotely the other three days of the week.
3. COMPENSATION, BENEFITS AND REIMBURSEMENT.
(a) Base Salary. In consideration of the Executive’s performance of
the responsibilities and duties set forth in this Agreement, the Executive will receive an annual base salary of $185,000 per year (“Base Salary”) for the calendar year 2023, a Base Salary of $200,000 for the calendar year 2024 and a Base Salary of $215,000 for the calendar year 2025. The Bank will pay the Base Salary in accordance with its customary payroll practices. Beginning for the calendar year 2025, the Board of Directors (or the Compensation Committee of the Board of Directors (the “Compensation
Committee”)) may increase, but not decrease, the Executive’s Base Salary. Any increase in Base Salary will become the new “Base Salary” for purposes of this Agreement.
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(b) Bonus and Incentive Compensation. The Executive (i) is eligible to
participate in any bonus plan or arrangement of the Bank in which senior management is eligible to participate, pursuant to which a bonus may be paid to the Executive in accordance with the plan or arrangement; and/or (ii) may receive a bonus, if
any, on a discretionary basis, as determined by the Board of Directors or the Compensation Committee.
(c) Benefit Plans. The Executive will be entitled to participate in
all employee benefit plans, arrangements and perquisites offered to senior management of the Bank, on terms and conditions no less favorable than the plans, arrangements and perquisites are available to other members of senior management of the
Bank. Without limiting the generality of the foregoing, the Executive also will be entitled to participate in any employee benefit plans including but not limited to retirement plans, profit-sharing plans, health-and-accident plans, or any other
employee benefit plan or arrangement made available by the Bank in the future to senior management or employees generally of the Bank, subject to and on a basis consistent with the terms, conditions and overall administration of those plans and
arrangements.
(d) Leave and Paid Time Off. The Executive will be entitled to paid
time off each year during the term of this Agreement measured on a calendar year basis, in accordance with the Bank’s customary practices and in accordance with the Bank’s policies and procedures for officers, provided, however, that the Executive
will be entitled to a minimum of 23 days of paid time off each year, in addition to all holidays observed by the Bank. Any unused paid time off during an annual period will be treated in accordance with the Bank’s personnel policies as in effect
from time to time.
(e) Automobile and Club Membership.
The Executive will be entitled to the use of a Bank purchased or leased automobile of the make and model as may be mutually agreed upon by the Board of Directors and the
Executive. The automobile will be available for the Executive’s personal use. The Executive will also be entitled to reimbursement for all operating expenses of the automobile upon substantiation of the expenses in accordance with applicable
policies and procedures of the Bank. The Executive will maintain records of business and personal use to ensure compliance with IRS regulations and the Bank will report personal use for income tax purposes. Any income attributable to the
personal use of the automobile will not be considered in determining any incentive compensation or any benefit based on the compensation of the Executive. The
Bank shall also pay the cost of the Executive’s annual dues (exclusive of any special assessments) at Fort Wayne Country Club.
(f) Expense Reimbursements. The Bank will reimburse the Executive for
all reasonable travel, entertainment and other expenses incurred by the Executive in performing the Executive’s obligations under this Agreement, including, without limitation, fees for memberships in organizations that the Executive and the Board
of Directors or the Compensation Committee mutually agree are necessary and appropriate in connection with the performance of the Executive’s duties under this Agreement. All reimbursements will be made as soon as practicable upon substantiation
of the expenses by the Executive in accordance with the applicable policies and procedures of the Bank and, in any event, not later than the last day of the calendar year immediately following the calendar year in which the Executive incurred the
expense.
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4. TERMINATION AND TERMINATION PAY.
Subject to Section 5, which governs the occurrence of a Change in Control, the Executive’s employment under this
Agreement will terminate under the circumstances set forth in this Section 4.
(a) Definition of Accrued Obligations. For purposes of this Agreement, the
term “Accrued Obligations” means the sum of: (i) any Base Salary earned but unpaid through the Executive’s Date of Termination, (ii) unpaid expense
reimbursements (subject to, and in accordance with, Section 3(f)), (iii) unused paid time off accrued through the Date of Termination (subject to an in accordance with Section 3(d)), (iv) any earned but unpaid short-term and long-term incentive
compensation for the year immediately preceding the year of termination and (v) any vested benefits the Executive may have under any employee benefit plan of the Bank through the Date of Termination, which vested benefits will be paid and/or
provided in accordance with the terms of the employee benefit plans. Unless otherwise provided by the applicable employee benefit plan, the Accrued Obligations, if any, will be paid to the Executive (or the Executive’s estate or beneficiary in the
event of the Executive’s death) within thirty (30) days following the Executive’s Date of Termination.
(b) Death. This Agreement and the Executive’s employment with the Bank
will terminate upon the Executive’s death, in which event the Bank’s sole obligation will be to pay or provide the Executive’s estate or beneficiary with any Accrued Obligations.
(c) Disability. The Bank may terminate the Executive’s employment and
this Agreement due to the Executive’s Disability. If the Bank terminates the Executive’s employment due to the Executive’s Disability, the Bank’s sole obligation under this Agreement shall be to pay or provide the Executive with any Accrued
Obligations. For these purposes, the term “Disability” means the Executive is deemed disabled for purposes of the Bank’s long-term disability plan or policy
that covers the Executive or is determined to be disabled by the Social Security Administration.
(d) Termination
for Cause. The Bank may terminate the Executive’s employment for “Cause” at any time. The Executive shall have no right to receive compensation or other benefits, other than the Accrued Obligations, for any period after a
termination for “Cause.” For purposes of Agreement, “Cause” shall be deemed to exist if the Executive: (i) has engaged in any willful act or
omission that, in the judgment of the Board of Directors has caused or will likely cause substantial economic damage to the Bank or the Company or substantial injury to the business reputation of the Bank or the Company; or (ii) has engaged
in an act or acts of dishonesty or fraud intended to result in enrichment or advantage to the Executive or a third party at the expense of the Bank or through the use of the Bank’s assets (including proprietary or confidential information); or
(iii) has engaged in the willful failure (other than due to substantiated physical or mental incapacity) to carry out the Executive’s duties and responsibilities to the Bank, including any reasonable directions from the Board or Directors, within
the standards of performance which could reasonably be expected of an executive working for a banking institution or bank holding company in a similar position, if the willful
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failure continues for ninety (90) days or more after written notice of the failure is provided to the Executive by the
Bank; or (iv) has willfully failed or refused (A) to comply with any material term or provision of this Agreement, (B) to adhere to the material terms of any employment-related policies or procedures as have been or may be established by the Bank,
or (C) to execute and comply with the material terms of any instruments as may reasonably be requested by the Bank consistent with the foregoing clauses (A) and (B), including, without limitation, the Bank’s rules and policies with respect to
conduct and ethics; or (v) has been convicted or enters a plea of guilty or nolo contendere or enters into a pretrial diversion program or similar program relating to a felony or any crime involving moral turpitude; or (vi) is subject to an order
of a federal or state regulatory agency or a court of competent jurisdiction requiring the termination of the Executive's employment with the Bank, unless the Executive has appealed that order and the appeal is pending; or (vii) abuses alcohol or
any controlled substance in a manner that materially negatively affects the Executive’s performance or abilities at the Bank, whether or not such activity constitutes a crime; or (viii) is prohibited from employment with an FDIC-insured institution
under applicable federal law or by order of any bank-regulatory agency. Notwithstanding the foregoing, Cause shall not be deemed to exist unless there shall have been delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of the Board of Directors at a meeting of the Board of Directors called and held for the purpose (after reasonable notice to the Executive and an opportunity for the Executive to
be heard before the Board of Directors), finding that in the good faith opinion of the Board of Directors the Executive was guilty of conduct described above and specifying the particulars thereof. Prior to holding a meeting at which the Board of
Directors is to make a final determination whether Cause exists, if the Board of Directors determines in good faith at a meeting of the Board of Directors, by not less than a majority of its entire membership, that there is probable cause for it to
find that the Executive was guilty of conduct constituting Cause as described above, the Board of Directors may suspend (with pay) the Executive from his duties hereunder for a reasonable period of time not to exceed twenty-one (21) days pending a
further meeting at which the Executive shall be given the opportunity to be heard before the Board of Directors. For purposes of this subparagraph, no act or failure to act on the Executive’s part shall be considered “willful” unless done, or
omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Bank.
(e) Resignation by Executive without Good Reason. The Executive may
resign from employment during the term of this Agreement without Good Reason upon at least thirty (30) days prior written notice to the Board of Directors, provided, however, that the Bank may accelerate the Date of Termination upon receipt of
written notice of the Executive’s resignation. In the event the Executive resigns without Good Reason, the Bank’s sole obligation under this Agreement will be to pay or provide any Accrued Obligations to the Executive.
(f) Termination Without Cause or With Good Reason.
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(i)
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The Board of Directors may immediately terminate the Executive’s employment at any time for a reason other than Cause (a
termination “Without Cause”), and the Executive may, by written notice to the Board of Directors, terminate his employment at any time within ninety
(90) days following an event constituting “Good Reason” (a termination “With Good Reason”); provided, however, that the Bank will have thirty (30)
days to cure the “Good Reason” condition, but the Bank may waive its right to cure. In the event of a termination employment described under this Section 4(f)(i) during the Term and subject to the requirements of Section 4(f)(iii), the
Bank will pay or provide the Executive the following:
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(A)
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any Accrued Obligations;
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(B)
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a gross cash payment equal to the remaining Base Salary and bonus opportunity (based on the highest target bonus
opportunity during the three most recently completed performance periods prior to the Executive’s Date of Termination) that would have been paid to the Executive during the remaining Term; payable in a lump sum within sixty (60) days of the
Executive’s Date of Termination; and
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(C)
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provided that the Executive has elected continued health care coverage in accordance with the Consolidated Omnibus
Budget Reconciliation Act (“COBRA”), reimbursement of COBRA health care costs by the Bank for up to eighteen (18) consecutive months, or if less, for
the period for which the Executive has elected COBRA coverage (commencing with the first month following the Executive's Date of Termination and continuing until the eighteenth month following the Executive's Date of Termination).
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| (ii) |
“Good
Reason” exists if, without the Executive’s express written consent, any of the following occur:
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(A)
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a reduction in the Executive’s Base Salary and/or aggregate incentive compensation opportunities under the Bank’s annual and
long-term incentive plans or programs, as applicable;
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(B)
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a material reduction in the Executive’s authority, duties or responsibilities from the position and attributes associated
with the Executive Position;
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(C)
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a relocation of the Executive’s principal place of employment by more than thirty-five (35) miles from both the Bank’s main
office and the Executive’s principal residence in Fort Wayne, Indiana; or
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(D)
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a material breach of this Agreement by the Bank.
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| (iii) |
Notwithstanding anything to the contrary in Section 4(f)(i), the Executive will not receive any payments or benefits under Sections 4(f)(i)(B) or 4(f)(i)(C) unless and
until the Executive executes a release of claims (the “Release”) against the Bank and any affiliate, and their officers, directors, successors and
assigns, releasing said persons from any and all claims, rights, demands, causes of action, suits, arbitrations or grievances relating to the employment relationship, including claims under the Age Discrimination in Employment Act, but not
including claims for benefits under tax-qualified plans or other benefit plans in which the Executive is vested, claims for benefits required by applicable law or claims with respect to obligations set forth in this Agreement that survive the
termination of this Agreement. The Release must be executed and become irrevocable by the 60th day following the Date of Termination, provided that if the 60-day period spans two (2) calendar years, then, to the extent necessary
to comply with Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), the payments and benefits described in this Section 4(f) will be
paid, or commence, in the second calendar year.
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(g) Effect on Status as a Director. In the event of the Executive’s
termination of employment under this Agreement for any reason, unless otherwise agreed to by the mutual consent of the Executive and the Board of Directors, the termination will also constitute the Executive’s resignation as a director of the Bank
and the Company, as well as a director of any subsidiary or affiliate thereof, to the extent the Executive is acting as a director of any of the aforementioned entities.
(h) Notice;
Effective Date of Termination. Any Notice of Termination of employment under this Agreement must be communicated by or to the Executive or the Bank, as applicable, in accordance with Section 16. For purposes of this Agreement, the
term “Date of Termination” means the Executive’s termination of employment pursuant to this Agreement, which will be effective on the earliest of: (i)
immediately after the Bank gives notice to the Executive of the Executive’s termination Without Cause, unless the parties agree to a later date, in which case, termination will be effective as of such later date; (ii) immediately upon approval by
the Board of Directors of termination of the Executive’s employment for Cause; (iii) immediately upon the Executive’s death or Disability; (iv) thirty (30) days after the Executive gives written notice to the Bank of the Executive’s resignation
from employment (including With Good Reason), provided that the Bank may set an earlier termination date at any time prior to the date of termination of employment, in which case the Executive’s resignation shall be effective as of that date; or
(v) in the event of the Executive’s termination With Good Reason due to a material reduction in Base Salary, the date on which the Executive provides Notice of Termination in accordance with Section 4(f)(i).
5. CHANGE IN CONTROL.
(a) Change in Control Defined. For purposes of this Agreement, the
term “Change in Control” means: (i) a change in the ownership of the Corporation; (ii) a change in the effective control of the Corporation; or (iii) a
change in the ownership of a substantial portion of the assets of the Corporation as defined in accordance with Code Section 409A. For purposes of this Section 5(a), the term “Corporation” means the Bank, the Company or any of their successors, as applicable.
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(i)
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A change in the ownership of a Corporation occurs on the date that any one person, or more than one person acting as a group
(as defined in Treasury Regulation 1.409A-3(i)(5)(v)(B)), acquires ownership of stock of the Corporation that, together with stock held by such person or group, constitutes more than fifty (50) percent of the total fair market value or
total voting power of the stock of the Corporation.
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(ii)
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A change in the effective control of the Corporation occurs on the date that either (A) any one person, or more than one
person acting as a group (as defined in Treasury Regulation 1.409A-3(i)(5)(vi)(D)) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the
Corporation possessing thirty (30) percent or more of the total voting power of the stock of the Corporation, or (B) a majority of the members of the board of directors is replaced during any twelve (12) month period by directors whose
appointment or election is not endorsed by a majority of the members of the board of directors prior to the date of the appointment or election, provided that this subsection “(B)” is inapplicable where a majority stockholder of the
Corporation is another corporation.
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(iii)
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A change in a substantial portion of the Corporation’s assets occurs on the date that any one person or more than one person
acting as a group (as defined in Treasury Regulation 1.409A-3(i)(5)(vii)(C)) acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons) assets from the
Corporation that have a total gross fair market value equal to or more than forty (40) percent of the total gross fair market value of (A) all of the assets of the Corporation, or (B) the value of the assets being disposed of, either of
which is determined without regard to any liabilities associated with such assets.
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For all purposes hereunder, the definition of Change in Control shall be construed to be consistent with the
requirements of Treasury Regulation 1.409A-3(i)(5), except to the extent that such regulations are superseded by subsequent guidance.
(b) Change in Control Benefits. Upon the termination of the
Executive’s employment by the Bank (or any successor) Without Cause or by the Executive With Good Reason during the Term on or within two years after the effective time of a Change in Control, the Bank (or any successor) will pay or provide the
Executive, or the Executive’s estate in the event of the Executive’s death, with the following:
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(i)
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any Accrued Obligations;
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(ii)
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a gross payment (the “Change in Control
Severance”) equal to three (3) times the sum of the Executive’s: (A) Base Salary at the Date of Termination (or the Executive’s Base Salary in effect during any of the prior three years, if higher); and (B) the highest
target bonus earned or paid for any of the three (3) most recently completed annual performance periods prior to the Change Control; payable in a lump sum within sixty (60) days of the Executive’s Date of Termination; and
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(iii)
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provided that the Executive has elected continued health care coverage in accordance with COBRA, reimbursement of the COBRA
health care costs by the Bank for up to 18 consecutive months, or if less, for the period for which the Executive has elected COBRA coverage (commencing with the first month following the Executive's Date of Termination and continuing until
the eighteenth month following the Executive's Date of Termination).
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Notwithstanding the foregoing, the payments and benefits provided in this Section 5(b) will be payable to the
Executive in lieu of any payments or benefits that are payable under Section 4(f).
6. COVENANTS OF EXECUTIVE.
(a) Non-Solicitation/Non-Compete. The Executive hereby covenants and
agrees that during the “Restricted Period,” the Executive will not, without the written consent of the Bank, either directly or indirectly:
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(i)
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solicit, offer employment to, or take any other action intended (or that a reasonable person acting in like circumstances
would expect) to have the effect of causing any officer or employee of the Bank, or any of its respective subsidiaries or affiliates, to terminate his or her employment with the Bank and/or accept employment with another employer; or
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(ii)
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become an officer, employee, consultant, director, trustee, independent contractor, agent, joint venturer, partner or trustee of any savings bank, savings and loan association, savings and loan holding company, credit union, bank or bank holding company, insurance company or
agency, any mortgage or loan broker or any other entity that competes with the business of the Bank or any of their direct or indirect subsidiaries or affiliates that: (A) has a headquarters within thirty-five (35) miles of the Bank’s
headquarters (the “Restricted Territory”), or (B) has one or more offices, but is not headquartered, within the Restricted Territory, but in the
latter case, only if the Executive would be employed, conduct business or have other responsibilities or duties within the Restricted Territory; or
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(iii)
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solicit, provide any information, advice or recommendation or take any other action intended (or that a reasonable person
acting in like circumstances would expect) to have the effect of causing any customer of the Bank to terminate an existing business or commercial relationship with the Bank.
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The restrictions contained in this Section 6(a) shall not apply in the event of the Executive’s termination of
employment on or after the effective time of a Change in Control.
For purposes of this Section 6(a), the “Restricted Period” will be: (i) at all times during Executive’s period of employment with the Bank; and (ii) except as provided above, during the period beginning on Executive’s Date of Termination and ending on the one-year
anniversary of the Date of Termination.
(b) Confidentiality. The Executive recognizes and acknowledges that the
Executive has been and will be the recipient of confidential and proprietary business information concerning the Bank, including without limitation, past, present, planned or considered business activities of the Bank, and the Executive
acknowledges and agrees that the Executive will not, during or after the term of the Executive’s employment, disclose such confidential and proprietary information for any purposes whatsoever, except as may be expressly permitted in writing signed
by the Bank, or as may be required by regulatory inquiry, law or court order.
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(c) Information/Cooperation. The Executive will, upon reasonable notice,
furnish any information and assistance to the Bank as may be reasonably required by the Bank, in connection with any litigation in which it or any of its subsidiaries or affiliates is, or may become, a party; provided, however, that the Executive
shall not be required to provide information or assistance with respect to any litigation between the Executive and the Bank or any other subsidiaries or affiliates.
(d) Reliance. Except as otherwise provided, all payments and benefits to
the Executive under this Agreement will be subject to the Executive’s compliance with this Section 6, to the extent applicable. The parties hereto, recognizing that irreparable injury will result to the Bank, its business and property in the event
of the Executive’s breach of this Section 6, agree that, in the event of any such breach by the Executive, the Bank will be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation hereof by the
Executive and all persons acting for or with the Executive. The Executive represents and admits that the Executive’s experience and capabilities are such that the Executive can obtain employment in a business engaged in other lines of business
than the Bank, and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank from pursuing any other remedies available to them for such
breach or threatened breach, including the recovery of damages from the Executive.
7. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid by check or direct deposit from the general funds of
the Bank (or any successor of the Bank).
8. EFFECT ON PRIOR AGREEMENTS; SURVIVAL; OTHER AGREEMENTS.
(a) This Agreement constitutes the entire agreement between the Executive and the Bank concerning the subject matter hereof, and supersedes all prior negotiations, undertakings,
agreements and arrangements with respect thereto, whether written or oral effective as of the Effective Date of this Agreement. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then
the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other provision of this Agreement and all other provisions shall remain in full force and effect. The various covenants and provisions of
this Agreement are intended to be severable and to constitute independent and distinct binding obligations. Without limiting the generality of the foregoing, if the scope of any covenant contained in this Agreement is too broad to permit
enforcement to its full extent, such covenant shall be enforced to the maximum extent permitted by law, and Executive hereby agrees that such scope may be judicially modified accordingly.
(b) The Executive represents and warrants to the Bank that there are no restrictions, agreements or understandings whatsoever to which he is party (or by which he is otherwise bound)
that would prevent or make unlawful his execution of this Agreement or employment by the Bank, or that would in any way prohibit, limit or impair (or purport to prohibit, limit or impair) his provision of services to the Bank.
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9. NO ATTACHMENT; BINDING ON SUCCESSORS.
(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) The Bank 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 Bank, expressly and unconditionally to assume and agree to perform the Bank’s obligations under this Agreement, in the same manner and to the same extent that the Bank would be required to perform if no such succession or assignment
had taken place. A successor’s failure to assent to this Agreement following a Change in Control shall be deemed to be a material breach of this Agreement under Section 4(f).
10. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument in writing signed by the parties hereto.
(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 waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of the term or condition for the future as to any act other than that specifically waived.
11. CERTAIN APPLICABLE LAW.
Notwithstanding anything herein contained to the contrary, the following provisions shall apply:
(a) The Bank may terminate the Executive’s employment at any time, but any termination by the Bank other than termination for Cause shall not prejudice the Executive’s right to
compensation or other benefits under this Agreement. The Executive shall have no right to receive compensation or other benefits under this Agreement for any period after the Executive’s termination for Cause, other than the Accrued Obligations.
(b) In no event shall the Bank (nor any affiliate) be obligated to make any payment pursuant to this Agreement that is prohibited by Section 18(k) of the Federal Deposit Insurance
Act (codified at 12 U.S.C. sec. 1828(k)), 12 C.F.R. Part 359, or any other applicable law.
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(c) Notwithstanding anything in this Agreement to the contrary, to the extent that a payment or benefit described in this Agreement constitutes “non-qualified deferred compensation”
under Section 409A of the Code, and to the extent that the payment or benefit is payable upon the Executive’s termination of employment, then the payments or benefits will be payable only upon the Executive’s “Separation from Service.” For
purposes of this Agreement, a “Separation from Service” will have occurred if the Bank and the Executive reasonably anticipate that either no further
services will be performed by the Executive after the Date of Termination (whether as an employee or as an independent contractor) or the level of further services performed is less than fifty (50) percent of the average level of bona fide services
in the thirty-six (36) months immediately preceding the termination. For all purposes hereunder, the definition of Separation from Service shall be interpreted consistent with Treasury Regulation Section 1.409A-1(h)(ii).
(d) Notwithstanding the foregoing, if the Executive is a “Specified Employee” (i.e., a
“key employee” of a publicly traded company within the meaning of Section 409A of the Code and the regulations issued thereunder) and any payment under this Agreement is triggered due to the Executive’s Separation from Service, then solely to the
extent necessary to avoid penalties under Section 409A of the Code, no payment will be made during the first six (6) months following the Executive’s Separation from Service. Rather, any payment which would otherwise be paid to the Executive
during such period shall be accumulated and paid to the Executive in a lump sum on the first day of the seventh month following the Separation from Service. All subsequent payments shall be paid in the manner specified in this Agreement.
(e) To the extent not specifically provided in this Agreement, any compensation or reimbursements payable to Executive shall be paid or provided no later than two and one-half (2.5)
months after the calendar year in which such compensation is no longer subject to a substantial risk of forfeiture within the meaning of Treasury Regulation Section 1.409A-1(d).
(f) Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes Treasury Regulation Section 1.409A-2(b)(2).
(g) Notwithstanding anything in this Agreement to the contrary, the Executive understands that
nothing contained in this Agreement limits the Executive’s ability to file a charge or complaint with the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”) about a possible securities law violation without approval of the Bank (or any affiliate). The Executive further understands that this Agreement does not limit
the Executive’s ability to communicate with any Government Agency or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the
Bank (or any affiliate) related to the possible securities law violation. This Agreement does not limit the Executive’s right to receive any resulting monetary award for information provided to any Government Agency. In addition, pursuant to the
Defend Trade Secrets Act of 2016, the Executive understands that an individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a
federal, state or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document that is filed
under seal in a lawsuit or other proceeding. Further, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the employer's trade secrets to the attorney and use the trade secret
information in the court proceeding if the individual (y) files any document containing the trade secret under seal; and (z) does not disclose the trade secret, except pursuant to court order.
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12. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Ohio, but only to the extent not superseded by federal
law.
13. ARBITRATION.
Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by
arbitration, conducted by a single arbitrator selected by the Bank (or in the case of arbitration following a Change in Control, selected by the Executive) within fifty (50) miles of Van Wert, Ohio, in accordance with the Commercial Rules of the
American Arbitration Association then in effect. Judgment may be entered on the arbitrators’ award in any court having jurisdiction. The above notwithstanding, the Bank may seek injunctive relief in a court of competent jurisdiction in Ohio to
restrain any breach or threatened breach of any provision of this Agreement, without prejudice to any other rights or remedies that may otherwise be available to the Bank.
14. INDEMNIFICATION.
The Bank will provide the Executive (including the Executive’s heirs, executors and administrators) with coverage under a standard
directors’ and officers’ liability insurance policy at its expense, and will indemnify the Executive (and the Executive’s heirs, executors and administrators) in accordance with the charter and bylaws of the Bank and to the fullest extent permitted
under applicable law against all expenses and liabilities reasonably incurred by the Executive in connection with or arising out of any action, suit or proceeding in which the Executive may be involved by reason of having been a trustee, director or
officer of the Bank or any subsidiary or affiliate of the Bank.
15. TAX WITHHOLDING.
The Bank may withhold from any amounts payable to the Executive hereunder all federal, state, local or other taxes that the Bank may
reasonably determine are required to be withheld pursuant to any applicable law or regulation (it being understood that Executive is responsible for payment of all taxes in respect of the payments and benefits provided herein).
16. NOTICE.
For the purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below or if sent by facsimile or email, on the date it is actually
received.
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To the Bank:
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Van Wert Federal Savings Bank
976 S. Shannon Street
Van Wert, Ohio 45891
Attention: Corporate Secretary
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To Executive:
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Most recent address on file with the Bank
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[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first written above.
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VAN WERT FEDERAL SAVINGS BANK
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By: /s/ Gary L. Clay
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Name: Gary L. Clay
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Title: Chairman of the Board
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EXECUTIVE
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/s/ Michael D. Cahill
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Michael D. Cahill
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