EXHIBIT 10.3
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
This Amendment No. 1 (the "Amendment") to the Employment Agreement,
dated as of September 21, 2004 (the "Original Agreement"), by and among
Community First, Inc. (the "Company"), Community First Bank & Trust (the "Bank")
and Xxxx X. Xxxxxx (the "Executive"), is made as of August 16, 2005. All terms
used herein that are defined in the Original Agreement shall have the same
meanings when used herein, unless otherwise defined herein.
WHEREAS, each of the parties hereto is party to the Original Agreement;
and
WHEREAS, the parties hereto desire to amend the Original Agreement in
accordance with Section 14 of the Original Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Section 5(f) of the Original Agreement is hereby deleted and
replaced with the following:
(f) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Bank to or for the benefit of Executive (whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise, but determined without regard to any additional payments required
under this Section 5(f)) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code") or any interest or penalties are incurred by Executive with respect to
such excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by Executive of all taxes (including any interest
or penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, and taking account of any
withholding obligation on the part of the Bank, Executive retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(i) All determinations required to be made under this Section
5(f), including whether and when a Gross-Up Payment is required and the
amount of such Gross-Up Payment and the assumptions to be used in
arriving at such determination, shall be made by the Bank's regular
certified public accounting firm (the "Accounting Firm") which shall
provide detailed supporting calculations both to the Bank and Executive
within 15 business days of the receipt of notice from Executive that
there has been a Payment, or such earlier time as is requested by the
Bank. In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the change in
control, the Bank shall appoint another nationally recognized
accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm
hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Bank.
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(ii) As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by
the Accounting Firm hereunder, it is possible that Gross-Up Payments
which will not have been made by the Bank should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event of an Underpayment, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Bank to or for the benefit
of Executive.
2. Except as expressly modified in this Amendment, the terms and
conditions of the Original Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, this Amendment is executed effective as of the date
first set forth above.
COMMUNITY FIRST, INC.
By: /s/ Xxxxxx Xxxxxx, MD
---------------------------------
Name: Xxxxxx Xxxxxx, MD
Title: Chairman
COMMUNITY FIRST BANK & TRUST
By: /s/ Xxxxxx Xxxxxx, MD
---------------------------------
Name: Xxxxxx Xxxxxx, MD
Title: Chairman
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
