Exhibit 10.6
AMENDED AND RESTATED
CHANGE OF CONTROL
AGREEMENT
THIS AMENDED AND RESTATED CHANGE OF
CONTROL AGREEMENT (this
“Agreement”) is entered into effective as of the 9
th day of December, 2008, by and between First Federal
Community Bank, a federal savings bank (the “Bank”),
and Trent B. Troyer an individual (the
“Employee”).
WITNESSETH:
WHEREAS , this Agreement was originally entered into as of
the 12 th day of June, 2003; and
WHEREAS , the Agreement must be amended to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986,
as amended (“Code”); and
WHEREAS , the Bank and Employee desire to amend the Agreement
as provided herein for the purpose of complying with Section 409A
of the Code; and
WHEREAS , Paragraph 7 of the Agreement permits the parties to
amend the agreement in a writing signed by each;
AGREEMENT:
NOW, THEREFORE , in consideration of the mutual promises and
covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, the Bank and the Employee hereby amend and
restate the Agreement as follows:
1.
Term . The term of this Agreement shall commence on
December 31, 2008, and shall end December 31, 2009, subject to
extension and to earlier termination as provided herein (the
“Term”). Prior to each anniversary of the date of this
Agreement, the Board of Directors of the Bank shall review the
performance of the Employee. In connection with such annual review,
the Term of this Agreement shall be extended for a one-year period
beyond the then-effective expiration date, provided the Board of
Directors of the Bank, in its sole discretion, determines in a duly
adopted resolution that this Agreement should be
extended.
2.
Termination of Employment
.
(a)
Termination by the Bank in Connection
with a Change of Control . In
the event that the employment of the Employee is terminated by the
Bank, or its successors or assigns, at any time during the Term for
any reason other than Just Cause within six months prior to a
Change of Control (hereinafter defined) or within one year after a
Change of Control, then the following shall occur:
(i)
the Bank shall promptly pay, but no later
than sixty (60) days after the Change of Control or
Employee’s termination, to the Employee or to his
beneficiaries, dependents or estate an amount equal to two times
the amount of the Employee’s annual base salary most recently
set prior to the occurrence of the Change of Control;
(ii)
The Bank shall pay the premiums required
to maintain coverage for the Employee and his eligible dependents
under the health insurance plan of the Employer in which the
Employee is a participant immediately prior to the Change of
Control of the Bank in accordance with the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended, until the earliest
of (A) the first anniversary of the termination of the
Employee’s employment or (B) the date on which the Employee
is included in another employer’s health insurance plan as a
full-time employee; and
(iii)
The Employee shall not be required to
mitigate the amount of any payment provided for in this Agreement
by seeking other employment or otherwise, nor shall any amounts
received from other employment or otherwise by the Employee offset
in any manner the obligations of the Bank hereunder, except as
specifically stated in subparagraph (b).
For purposes of this Agreement, the term
“Just Cause” means the Employee’s personal
dishonesty, incompetence, willful misconduct, breach of fiduciary
duty involving personal profit, intentional failure or refusal to
perform the duties and responsibilities assigned to the Employee,
willful violation of any law, rule, regulation (other than traffic
violations or similar offenses) or final cease-and-desist order, or
conviction of a felony or for fraud or embezzlement.
(b)
Termination by the Employee in
Connection with a Change of Control . The Employee may voluntarily terminate the
Employee’s employment pursuant to this Agreement within
twelve months following a Change of Control and shall be entitled
to compensation as set forth in Section 2(a) of this Agreement in
the event that any of the following conditions constituting
“Good Reason” occurs:
(i)
a material diminution in the
Employee’s base compensation;
(ii)
a material diminution in the
Employee’s authority, duties or responsibilities;
(iii)
a material diminution in the authority,
duties, or responsibilities of the
supervisor to whom the Employee is
required to report, including a requirement that the Employee
report to a corporate officer or employee instead of reporting
directly to the Board of Directors;
(iv)
a material diminution in the budget over
which the Employee retains authority;
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(v)
a material change in the geographic
location at which the Employee must perform the services;
or
(vi)
any other action or inaction that
constitutes a material breach by the Bank of this
Agreement.
As a condition to receiving benefits
pursuant to this Paragraph 2(b), the Employee must first provide
notice to the Bank of the existence of the Good Reason condition no
later than ninety (90) days following the initial existence of the
Good Reason condition and provide the Bank with a period of at
least thirty (30) days during which it may remedy the Good Reason
condition.
(c)
Death of the Employee
. This Agreement shall automatically
terminate upon the death of the Employee.
(d)
“Golden Parachute”
Provisions . Any payments made
to the Employee pursuant to this Agreement or otherwise are subject
to and conditioned upon compliance with 12 U.S.C. §1828(k) and
any regulations promulgated thereunder.
In the event that payments pursuant to
this Agreement, or any other payments are made by the Bank to the
Employee which would constitute a “parachute payment”
within the meaning of Section 280G(b)(3) of the Code, or would
result in the imposition of a penalty tax pursuant to Section 280G,
such payments shall be reduced to the maximum amount which may be
paid under Section 280G of the Code without exceeding such limits.
In the event a reduction in payments is necessary in order to
comply with
