Exhibit 10.16
EMPLOYMENT AGREEMENT
AGREEMENT, dated this 3rd day of December 2004, between CFS
Bancorp, Inc., a Delaware Corporation (the "Company"), a federally
chartered savings bank, and Xxxxx Xxxxxxxxx (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of Citizens
Financial Services, FSB ("Bank") a wholly owned subsidiary of the
Company; and
WHEREAS, the Company and the desires to be ensured of the
Executive's continued active participation in the business of the
Bank and the Company; and
WHEREAS, the Company desires to enter into an agreement with
the Executive with respect to his employment therewith; and
WHEREAS, in order to induce the Executive to remain in the
employ of the Company and in consideration of the Executive's
agreeing to remain in the employ of the Company, the parties
desire to specify the severance benefits which shall be due the
Executive by the Company in the event that his employment with
the Company is terminated under specified circumstances;
NOW THEREFORE, in consideration of the mutual agreements
herein contained, and upon the other terms and conditions
hereinafter provided, the parties hereby agree as follows:
1. Definitions. The following words and terms shall have
the meanings set forth below for the purposes of this Agreement:
a) Agreement Date. The "Agreement Date" shall be the date
first set forth above.
b) Base Salary. "Base Salary" shall have the meaning set forth
in Section 4(a) hereof.
c) Cause. Termination of the Executive's employment for "Cause"
shall mean termination because of personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) or final cease-and-
desist order or material breach of any provision of this
Agreement.
d) Change in Control. "Change in Control" means the
occurrence of any of the following: (i) an event that would be
required to be reported in response to Item 501 of Form 8-K or
Item 6(e) of Schedule 14A of Regulation 14A pursuant to the 1934
Act, or any successor thereto, whether or not any class of
securities of the Company (as defined below) is registered under
the 1934 Act; (ii) any "person" is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the 1934 Act), directly or
indirectly, of securities of the Company representing 20%
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or more of the combined voting power of the Company's then
outstanding securities except for any securities purchased by the
Company; or (iii) during any period of thirty-six consecutive months
during the term of an Option, individuals who at the beginning of
such period constitute the Board of Directors of the Company cease
for any reason to constitute at least a majority thereof unless the
election, or the nomination for election by stockholders, of each
new director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the
beginning of the period.
i) For purposes of the definition of "Change in Control," a
Person or group of Persons does not include the CFS Bancorp, Inc.
Employee Stock Ownership Plan Trust which forms a part of the CFS
Bancorp, Inc. Employee Stock Ownership Plan (the "ESOP"), or any
other employee benefit plan, subsidiary or affiliate of the
Company, and the outstanding shares of common stock of the
Company, on a fully diluted basis, include all shares owned by
the ESOP, whether allocated or unallocated to the accounts of
participants, thereunder.
ii) For purposes of the definition of "Change in Control," the
term "Person" means any natural person, proprietorship,
partnership, corporation, limited liability company,
organization, firm, business, joint venture, association, trust
or other entity and any government agency, body or authority.
e) Code. "Code" shall mean the Internal Revenue Code of
1986, as amended.
f) Company. "Company" means CFS Bancorp, Inc. a Delaware
Corporation, its subsidiaries, successors and assigns for
purposes of this Agreement.
g) Definitive Agreement. A "Definitive Agreement" is an
agreement entered into by the Company which is intended to result
in a Change of Control of the Company and which has been publicly
announced on a Form 8-K filed by the Company.
h) Date of Termination. "Date of Termination" shall mean (i)
if the Executive's employment is terminated for Cause or for
Disability, the date specified in the Notice of Termination, and
(ii) if the Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given or as
specified in such Notice.
i) Disability. Termination by the Company of the Executive's
employment based on "Disability" shall mean termination because
of any physical or mental impairment which qualifies the
Executive for disability benefits under the applicable long-term
disability plan maintained by the Company or the Company or, if
no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
j) Good Reason. Termination by the Executive of the
Executive's employment for "Good Reason" shall mean termination
by the Executive within twenty-four (24) months following a
Change in Control of the Company based on:
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i) Without the Executive's express written consent, the
failure to elect or to re-elect or to appoint or to re-
appoint the Executive to the office of Senior Vice
President of the Bank or a material adverse change made
by the Company in the Executive's functions, duties or
responsibilities as Senior Vice President of the Company;
ii) Without the Executive's express written consent, a
reduction by either of the Employers in the Executive's
Base Salary as the same may be increased from time to
time or, except to the extent permitted by Section 3(b)
hereof, a reduction in the package of fringe benefits
provided to the Executive, taken as a whole;
iii)The principal executive office of either of the
Employers is relocated more than twenty miles from Dyer,
Indiana;
iv) Any purported termination of the Executive's employment for
Disability or Retirement which is not effected pursuant to a
Notice of Termination satisfying the requirements of paragraph
(l) below;
v) The failure by the Company to obtain the assumption of
and agreement to perform this Agreement by any successor;
or
vi) Notification to the Executive pursuant to Section
2(b) hereof that his term of employment will not be
extended.
k) IRS. "IRS" shall mean the Internal Revenue Service.
l) Notice of Termination. Any purported termination of the
Executive's employment by the Company for any reason, including
without limitation for Cause, Disability or Retirement, or by the
Executive for any reason, including without limitation for Good
Reason, shall be communicated by written "Notice of Termination"
to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i)
indicates the specific termination provision in this Agreement
relied upon, (ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than
thirty (30) nor more than ninety (90) days after such Notice of
Termination is given, except in the case of the Company's
termination of Executive's employment for Cause, which shall be
effective immediately; and (iv) is given in the manner specified
in Section 9 hereof.
m) Retirement. "Retirement" shall mean voluntary termination
by the Executive after the Executive attains the age sixty-five
(65).
n) Trigger Event. A "Trigger Event" shall be the execution of
a Definitive Agreement.
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2. Term of Employment.
a) As of the Agreement Date, the Company will employ the
Executive to perform such executive and managerial duties at such
times and in such manner as the company may from time to time
direct. Unless otherwise provided herein, the Executive
acknowledges and agrees that the Executive serves at the will of
the Company, and that this Agreement shall not be construed as a
contract for employment for a specific term.
b) Following a Trigger Event, as defined in Section (n), the
employment term of the Executive shall be a period of one year
commencing as of the date thereof (the "Trigger Date"), subject
to earlier termination as provided herein. Beginning on a
Trigger Date, and on each day thereafter, the term of this
Agreement shall be extended for a period of one day in addition
to the then-remaining term, provided that the Company has not
given notice to the Executive in writing at least 60 days prior
to such day that the term of the Agreement shall not be extended
further. Reference herein to the term of this Agreement shall
refer to both such initial term and such extended terms.
c) During his employment with the Company, the Executive shall
perform such executive services for the Company as may be
consistent with his titles and from time to time assigned to him
by the Company's Board of Directors. The Executive further agrees
to serve without additional compensation as an officer and
director of any of the Company's subsidiaries and agrees that any
amounts received from such corporation may be offset against the
amounts due hereunder. In addition, it is agreed that the Company
may assign the Executive to one of its subsidiaries for payroll
purposes.
3. Loyalty, Confidentiality and Non-Competition
a) The Executive shall devote his full time and best efforts to
the performance of his duties while employed with the Company.
During such time, the Executive shall not, at any time or place,
either directly or indirectly engage in any business or activity
in competition with the business affairs or interests of the
Company or be a director, officer or consultant to any bank,
savings and loan association, credit union, thrift, savings bank,
or similar institution in the Chicago CMSA.
b) For purposes of this Agreement, directly or indirectly
engaging in any business activity in competition with the
business or affairs of the Company includes, but is not limited
to, serving or acting as an owner, partner, agent, beneficiary,
or employee of any person, firm or corporate entity so engaged;
except that nothing herein contained shall be deemed to prevent
or limit the right of employee to invest any of his surplus funds
in the capital stock or other securities of any corporation whose
stock or securities are publicly owned or are regularly traded on
any public exchange, nor shall anything herein contained be
deemed to prevent employee from investing or limit employee's
right to invest his surplus funds in real estate.
c) All information relating to business of the Company
including, but not limited to, that business obtained or serviced
by the Company and all customer listings, contact lists,
expiration
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cards, asset reports, instruments, documents, papers and other
material used in connection with such business, shall be the exclusive
property of the Company. The Executive shall keep all such information
and material confidential; none of it will be copied, reproduced or
duplicated without the express written permission of the Company, and
Executive shall return all material containing such information to the
Company upon its request or upon termination of employment. Executive
also agrees that he will not utilize the confidential information or
trade secrets of the Company, either directly or indirectly, for any
purposes except performance of his responsibilities and in
furtherance of the Company's business, unless otherwise expressly
authorized by the Company in writing in advance.
d) Executive agrees that, during his employment, and for a
period of one (1) year following the date of his involuntary
termination of employment for Cause, or his voluntary termination
without Good Reason, the Executive:
i) will not solicit any of the Company's past or current
customers or clients for the benefit of anyone other than Company
or its affiliates;
ii) will not divulge the names of any of the Company's past or
then current customers to any other person, corporation or
entity; and
iii) will not, either directly or indirectly, induce or solicit
any person to leave the employ of the Company.
4. Compensation and Benefits.
a) The Company shall compensate and pay the Executive for his
services during the term of this Agreement at a minimum base
salary of $139,000 per year ("Base Salary"), which may be
increased from time to time in such amounts as may be determined
by the Board of Directors of the Company and may not be decreased
without the Executive's express written consent. In addition to
his Base Salary, the Executive shall be entitled to receive
during the term of this Agreement such bonus payments as may be
determined by the Board of Directors of the Employers.
b) During his employment with the Company, the Executive shall
be entitled to participate in and receive the benefits of any
pension or other retirement benefit plan, profit sharing, stock
option, employee stock ownership, or other plans, benefits and
privileges given to employees and executives of the Company, to
the extent commensurate with his then duties and
responsibilities, as fixed by the Board of Directors. The
Company shall not make any changes in such plans, benefits or
privileges which would adversely affect the Executive's rights or
benefits thereunder, unless such change occurs pursuant to a
program applicable to all executive officers of the Company and
does not result in a proportionately greater adverse change in
the rights of or benefits to the Executive as compared with any
other executive officer of the Company. Nothing paid to the
Executive under any plan or arrangement presently in effect or
made available in the future shall be deemed to be in lieu of the
salary payable to the Executive pursuant to Section 4(a) hereof.
c) During his employment with the Company, the Executive shall
be entitled to paid annual vacation in accordance with the
policies as established from time to time by the Board of
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Directors. The Executive shall not be entitled to receive any
additional compensation from the Employers for failure to take a
vacation, nor shall the Executive be able to accumulate unused
vacation time from one year to the next, except to the extent
authorized by the Board of Directors.
d) During the Executive's employment with the Company, the
Company will provide suitable office space, desk, chairs, filing
cabinets, telephones and other usual and customary office
furniture, fixtures and equipment adequate for the efficient
performance of the duties assigned to the Executive.
e) During the Executive's employment with the Company, the
Company will provide to the Executive, at the Employer's cost,
all perquisites which other Senior Vice Presidents of the Company
are generally entitled to receive, including the payment of his
annual dues at a health club.
f) During the term of this Agreement, the Company will provide
to Executive the use of an automobile of the Company's choice and
will replace the automobile with a new one at no less often than
once every four years. The Company will pay all automobile
operating expenses incurred by Executive in the performance of an
Executive's company duties. The Company will procure and maintain
in force an automobile liability policy for the automobile with
coverage, including Executive, in the minimum amount of
$1,000,000 combined single limit on bodily injury and property
damage.
5. Expenses. The Company shall reimburse the Executive or
otherwise provide for or pay for all reasonable expenses incurred
by the Executive in furtherance of or in connection with the
business of the Company, including, but not by way of limitation,
automobile expenses and other traveling expenses, and all
reasonable entertainment expenses (whether incurred at the
Executive's residence, while traveling or otherwise), subject to
such reasonable documentation and other limitations as may be
established by the Board of Directors of the Company. If such
expenses are paid in the first instance by the Executive, the
Company shall reimburse the Executive therefor.
6. Termination.
a) The Company shall have the right, at any time upon prior
Notice of Termination, to terminate the Executive's employment
hereunder for any reason, including without limitation
termination for Cause, Disability or Retirement, and the
Executive shall have the right, upon prior Notice of Termination,
to terminate his employment hereunder for any reason.
b) In the event that (i) the Executive's employment is
terminated by the Company following the occurrence of a Trigger
Event for other than Cause, Disability, Retirement or the
Executive's death or (ii) such employment is terminated by the
Executive (a) due to a material breach of this Agreement by the
Company, which breach has not been cured within fifteen (15) days
after a written notice of non-compliance has been given by the
Executive to the Employers, or (b) for Good Reason, then the
Company shall, subject to the provisions of Section 7 hereof, if
applicable:
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A) pay to the Executive, in either twelve (12) equal monthly
installments beginning with the first business day of the month
following the Date of Termination or in a lump sum within five
business days of the Date of Termination (at the Executive's
election), a cash severance amount equal to the Executive's Base
Salary plus cash incentive bonuses earned during the previous
year, regardless of when paid, and
B) maintain and provide for a period ending at the earlier of
(i) the expiration of the remaining term of employment pursuant
hereto prior to the Notice of Termination or (ii) the date of the
Executive's full-time employment by another employer (provided
that the Executive is entitled under the terms of such employment
to benefits substantially similar to those described in this
subparagraph (B)), at no cost to the Executive, the Executive's
continued participation in all group insurance, life insurance,
health and accident insurance, disability insurance and other
employee benefit plans, programs and arrangements offered by the
Company in which the Executive was entitled to participate
immediately prior to the Date of Termination excluding stock
plans and bonuses, provided, however, that in the event that the
Executive's participation in any plan, program or arrangement as
provided in this subparagraph is barred, or during such period
any such plan, program or arrangement is discontinued or the
benefits thereunder are materially reduced, the Company shall
arrange to provide the Executive with benefits substantially
similar to those which the Executive was entitled to receive
under such plans, programs and arrangements immediately prior to
the Date of Termination.
7. Withholding. All payments required to be made by the
Company hereunder to the Executive shall be subject to the
withholding of such amounts, if any, relating to tax and other
payroll deductions as the Company may reasonably determine should
be withheld pursuant to any applicable law or regulation.
8. Assignability. The Company may assign this Agreement and
its rights and obligations hereunder in whole, but not in part,
to any corporation, bank or other entity with or into which the
Company may hereafter merge or consolidate or to which the
Company may transfer all or substantially all of its assets, if
in any such case said corporation, bank or other entity shall by
operation of law or expressly in writing assume all obligations
of the Company hereunder as fully as if it had been originally
made a party hereto, but may not otherwise assign this Agreement
or its rights and obligations hereunder. The Executive may not
assign or transfer this Agreement or any rights or obligations
hereunder.
9. 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:
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a) To the Company: Corporate Secretary
Citizens Financial Services, FSB
000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
b) To the Executive: Xxxxx Xxxxxxxxx
0000 Xxxx Xxxxx
Xxxx, XX 00000
10. Amendment; Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing and signed by the Executive
and such officer or officers as may be specifically designated by
the Board of Directors of the Company to sign on its behalf. No
waiver by any party hereto at any time of any breach by any other
party hereto of, or compliance with, any condition or provision
of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
11. Governing Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws
of the United States where applicable and otherwise by the
substantive laws of the State of Indiana.
12. Nature of Obligations. Nothing contained herein shall
create or require the Company to create a trust of any kind to
fund any benefits which may be payable hereunder, and to the
extent that the Executive acquires a right to receive benefits
from the Company hereunder, such right shall be no greater than
the right of any unsecured general creditor of the Company.
13. Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
14. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which
shall remain in full force and effect.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same
instrument.
16. Regulatory Prohibition. Notwithstanding any other provision
of this Agreement to the contrary, the Executive's employment and
the terms of this Agreement is subject to continued approval by
the Company's regulators. In the event of the Executive's
termination of employment with the Company for Cause or by virtue
of order by a count or regulatory body, all employment
relationships and managerial duties with the Bank or the Company
shall immediately cease. Furthermore, following such
termination, the Executive will not, directly or indirectly,
influence or participate in the affairs or the operations of the
Company.
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17. Payment of Costs and Legal Fees. In the event any dispute
or controversy arising under or in connection with this Agreement
is resolved in favor of any party, whether by judgment,
arbitration or settlement, the party shall be entitled to the
payment of all legal fees incurred by the prevailing party in
resolving such dispute or controversy.
18. Entire Agreement. This Agreement embodies the entire
agreement between the Company and the Executive with respect to
the matters agreed to herein. All prior agreements between the
Company and the Executive with respect to the matters agreed to
herein are hereby superseded and shall have no force or effect.
IN WITNESS WHEREOF, this Agreement has been executed as of
the date first above written.
Attest: CFS BANCORP, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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EXECUTIVE
/s/ Xxxxx Xxxxxxxxx
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