Exhibit 10.17
Employment Agreement with Xxxxxxx X. Xxxxx
dated February 10, 1999
EMPLOYMENT AGREEMENT
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THIS AGREEMENT ("Agreement") is entered into as of the 10th day of
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February, 1999, by and between COMMERCIAL FEDERAL BANK, A FEDERAL SAVINGS BANK
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(the "Bank"), referred to herein sometimes as the "Employer," and XXXXXXX X.
XXXXX ("Xxxxx").
R E C I T A L S:
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X. Xxxxx has agreed to become a key member of the senior management of
the Bank and to devote substantial skill to the affairs of the Bank, and the
Board of Directors of the Bank (the "Board") wishes to retain his services under
the terms of this Agreement.
B. It is in the best interest of the Bank to provide an inducement to
Xxxxx to accept employment under the terms of this Agreement.
NOW, THEREFORE, the Bank and Xxxxx hereby agree to the following terms of
employment:
1. Employment. The Employer agrees to employ Xxxxx and Xxxxx agrees to be
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employed in the capacity as Executive Vice President of the Bank for a period of
one (1) year beginning the date of this Agreement. The Board will review this
Agreement annually to consider additional one (1) year extensions.
2. Time and Effort. Xxxxx shall diligently and conscientiously devote his
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full time and best efforts to the discharge of his duties.
3. Compensation.
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a. The Employer shall pay to Xxxxx a base salary at a rate no less
than Two Hundred Fifty-Two Thousand Three Hundred Sixty Dollars ($252,360.00)
per year. The base salary may be increased from time to time as the Board may
approve.
x. Xxxxx shall be entitled to participate in all benefits available to
executive officers of the Employer in effect as of this date, and as may be
amended from time to time by the Board, including, but not limited to (i) all
short-term and long-term incentive plans (both cash and stock) and all deferred
compensation plans; (ii) all benefit plans (such as, but not limited to,
medical, life insurance, retirement, vacation); and (iii) any perquisite
program.
4. Termination of Employment.
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a. The Employer may terminate Xxxxx'x employment at any time upon thirty
(30) days notice. However, if the Employer terminates Xxxxx'x employment at any
time during the term of this Agreement for any reason other than cause, as
defined herein, Xxxxx will receive all compensation and benefits detailed in
Section 3 through the effective date of termination, together with a severance
payment equal to twelve (12) months base salary. Such amount shall be payable
monthly beginning on the first day of the month following the month in which
such termination occurs.
x. Xxxxx shall have no right to receive such severance payment if his
employment is terminated for cause. Termination for cause shall mean termination
because of Xxxxx'x 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.
5. Regulatory Provisions.
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a. If Xxxxx is suspended and/or temporarily prohibited from participating
in the conduct of the Bank's affairs by a notice served under Section 8(e)(3) or
(g)(1) of the Federal Deposit Insurance Act (12 U.S.C. ss. 1818(e)(3) and
(g)(1)), the Bank's obligations under this Agreement shall be suspended as of
the date of service unless stayed by appropriate proceedings. If the charges in
the notice are dismissed, the Bank may in its discretion (i) pay Xxxxx all or
part of the compensation withheld while its contract obligations were suspended;
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
b. If Xxxxx is removed and/or permanently prohibited from participating
in the conduct of the Bank's affairs by an order issued under Section 8(e)(4) or
(g)(1) of the Federal Deposit Insurance Act (12 U.S.C. ss. 1818(e)(4) or
(g)(1)), all obligations of the Bank under this Agreement shall terminate as of
the effective date of the order, but vested rights of the contracting parties
shall not be affected.
c. If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), all obligations of the Bank under this Agreement
shall terminate as of the date of default, but this paragraph shall not affect
any vested rights of the contracting parties.
d. All obligations of the Bank under this Agreement shall be terminated,
except to the extent determined that continuation of this Agreement is necessary
for the continued operation of the Bank:
i. At any time the Federal Deposit Insurance Corporation ("FDIC") or
the Resolution Trust Corporation ("RTC") enters into an agreement to
provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) of the Federal Deposit Insurance Act; or
ii. At any time the FDIC or RTC approves a supervisory merger to
resolve problems related to operation of the Bank or when the Bank is
determined by the Director to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, however, shall not be
affected by such action.
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6. Disability, Death, Retirement. If Xxxxx should become disabled while
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this Agreement is in effect, the compensation, benefits, and severance payment
specified in Section 4 of this Agreement shall be payable, as in the case of a
termination for reasons other than cause, to Xxxxx. If Xxxxx should die while
this Agreement is in effect, a severance payment equal to twelve (12) months
base salary shall be paid to his heirs at law, payable monthly beginning on the
first day of the month following the month in which such death occurs. If Xxxxx
retires, this Agreement shall terminate and no severance payments shall be due
hereunder. The benefits provided pursuant to this Agreement shall be in addition
to any other benefits provided by the Employer.
"Disability" shall mean Xxxxx'x absence from his duties with the Employer
on a full-time basis for one hundred eighty (180) consecutive business days, as
a result of Xxxxx'x incapacity due to physical or mental illness, unless within
thirty (30) days thereafter Xxxxx shall have returned to the full-time
performance of his duties.
7. Agreement Not to Compete. Should Xxxxx'x employment be terminated
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hereunder for any reason, either voluntarily or involuntarily, Xxxxx agrees that
he will not, for a period of one (1) year from the date of such termination, in
any capacity, whether as an employee, employer, stockholder, officer, director,
partner, associate, consultant, advisor, proprietor, or in any other manner,
engage in or have any interest in, direct or indirect, any business in direct
competition with the Bank within any service area served by the Bank as of the
date of such termination. Xxxxx further agrees during such period that he will
not in any manner solicit or interfere with the business, goodwill, or customers
of the Bank. Xxxxx further acknowledges that all information pertaining to the
business or the customers of the Bank are the property of the Bank, and Xxxxx
agrees that he will not, at any time after termination of employment, divulge or
communicate any such information to any person or business organization without
the express authorization of the Bank. Should Xxxxx violate the terms of this
Paragraph 7, the parties agree that in addition to any other remedy available at
law and equity, the Bank may cease the payment of any severance payments
otherwise due under Paragraph 4 hereof as of the date of such breach.
8. Severability. In the event that any portion of this Agreement is held
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to be invalid or unenforceable for any reason, it is hereby agreed
that invalidity or unenforce-ability shall not affect the other
portions of this Agreement and that the remaining covenants, terms,
and conditions, or portions thereof shall remain in full force and
effect, and any court of competent jurisdiction may so modify the
objectionable provisions as to make it valid and enforceable.
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9. Successors and Assigns. This Agreement shall be binding upon and inure
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to the benefit of the Employer, its successors, and assigns, including any
corporation which may merge or consolidate with Employer, or acquire all, or
substantially all of the assets and business of the Employer.
10. Change of Control. The parties hereto have, in addition to this
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Agreement, entered into a Change of Control Agreement. To the extent that Xxxxx
receives a severance payment under this Agreement, such amount shall reduce the
amount to which Xxxxx would otherwise be entitled under such Change of Control
Agreement.
11. Federal Deposit Insurance Act. Notwithstanding anything in this
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Agreement to the contrary, no payment shall be made under this Agreement
contrary to the requirements or prohibitions of Section 18(k) of the Federal
Deposit Insurance Act (12 U.S.C. ss. 1828(k) or regulations or orders issued
thereunder and applicable to and binding upon the Bank.
12. Prior Agreements. The parties acknowledge that this Agreement
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supersedes all prior agreements with respect to the subject matter hereof,
including specifically that certain agreement between Liberty Financial
Corporation and Xxxxx dated January 1, 1997. The parties acknowledge that Xxxxx
will be given the company automobile provided for in Paragraph 6A of such
agreement. Xxxxx will be reimbursed for business use of his automobile under the
Bank's policies. The parties further acknowledge that Xxxxx will have received
from Liberty Financial Corporation the amounts due as a golden parachute payment
under Paragraph 9 of such agreement, in cash or other good funds. The parties
further acknowledge that the Employer may elect to relocate Xxxxx, in which case
the Employer will pay moving expenses as provided to executive officers under
its policies in effect as of the date of such transfer.
13. Governing Law. This Agreement shall be construed and enforced in
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accordance with the laws of the State of Nebraska.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMMERCIAL FEDERAL BANK,
A FEDERAL SAVINGS BANK
By /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
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