Exhibit 10.15
AGREEMENT
AGREEMENT, dated this 3rd day of December 2004, between
Citizens Financial Services, FSB (the "Bank"), a federally
chartered savings bank, and Xxxxx Xxxxxxxxx (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of the Bank;
and
WHEREAS, the Bank desires to be ensured of the Executive's
continued active participation in the business of the Bank; and
WHEREAS, the Bank 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 Bank and in consideration of the Executive's
agreeing to remain in the employ of the Bank, the parties desire
to specify the severance benefits which shall be due the
Executive by the Bank in the event that his employment with the
Bank 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% or more
of the combined voting power of the Company's then outstanding
securities except for any securities purchased by the Company or
the Bank; or (iii) during any period of thirty-six
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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 successors and assigns.
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 Bank 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 Bank 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:
i) Without the Executive's express written consent, the
failure to elect or to re-elect or to
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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 Bank in the Executive's functions,
duties or responsibilities as Senior Vice President of
the Bank;
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 4(b)
hereof, a reduction in the package of fringe benefits
provided to the Executive, taken as a whole;
iii)The Executive's office is relocated more than twenty
miles from Dyer, Indiana, unless said relocation is
approved in advance by the Executive.
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; or
v) The failure by the Bank to obtain the assumption of and
agreement to perform this Agreement by any successor.
vi) The notification to the Executive pursuant to
Section 2(b) that his term of Employment will not be
renewed following a Trigger Event.
k) IRS. "IRS" shall mean the Internal Revenue Service.
l) Notice of Termination. Any purported termination of the
Executive's employment by the Bank 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 Bank'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 Bank 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 Bank, and
that this Agreement shall not be construed as a contract for
employment for a specific term.
b) Following a Trigger Event, the employment term of the
Executive shall be a term of one year subject to annual review
and extension by the Bank, provided any notice not to renew or
extend the term of his employment following a Trigger Event must
be provided no less than sixty (60) days prior to the end of the
existing term.
c) During his employment with the Bank, the Executive shall
perform such executive services for the Bank as may be consistent
with his titles and from time to time assigned to him by the
Bank's Board of Directors. The Executive further agrees to serve
without additional compensation as an officer and director of any
of the Bank'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 Bank 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 Bank.
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 Bank 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 Bank including,
but not limited to, that business obtained or serviced by the
Bank and all customer listings, contact lists, expiration cards,
asset reports, instruments, documents, papers and other material
used in connection with such business, shall be the exclusive
property of the Bank. 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 Bank, and Executive shall return all material
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containing such information to the Bank upon its request or upon
termination of employment. Executive also agrees that he will not
utilize the confidential information or trade secrets of the Bank,
either directly or indirectly, for any purposes except performance
of his responsibilities and in furtherance of the Bank's business,
unless otherwise expressly authorized by the Bank 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 Bank's past or current customers
or clients for the benefit of anyone other than Bank or its
affiliates;
ii) will not divulge the names of any of the Bank'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 Bank.
4. Compensation and Benefits.
a) The Bank 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 Bank 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 Bank, 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 Bank, to the
extent commensurate with his then duties and responsibilities, as
fixed by the Board of Directors. The Bank 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 Bank 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 Bank. 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 Bank, the Executive shall be
entitled to paid annual vacation in accordance with the policies
as established from time to time by the Board of 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.
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d) During the Executive's employment with the Bank, the Bank
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 Bank, the Bank
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 Bank will provide to
Executive the use of an automobile of the Bank's choice and will
replace the automobile with a new one at no less often than once
every four years. The Bank will pay all automobile operating
expenses incurred by Executive in the performance of an
Executive's company duties. The Bank 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 Bank 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 Bank, 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 Bank. If such
expenses are paid in the first instance by the Executive, the
Bank shall reimburse the Executive therefor.
6. Termination.
a) The Bank 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 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 Bank, 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 Bank 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 100% of 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
Bank 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 Bank 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 Bank
hereunder to the Executive shall be subject to the withholding of
such amounts, if any, relating to tax and other payroll
deductions as the Bank may reasonably determine should be
withheld pursuant to any applicable law or regulation.
8. Assignability. The Bank 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 Bank
may hereafter merge or consolidate or to which the Bank 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 Bank
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 Bank: 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 Bank 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 Bank 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
Bank hereunder, such right shall be no greater than the right of
any unsecured general creditor of the Bank.
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 Actions. The following provisions shall be
applicable to the parties to the extent that they are required to
be included in employment agreements between a savings
association and its employees pursuant to Section 563.39(b) of
the Regulations Applicable to All Savings Associations, 12 C.F.R.
563.39(b), or any successor thereto, and shall be controlling in
the event of a conflict with any other provision of this
Agreement, including without limitation Section 5 hereof.
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a) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's
affairs pursuant to notice served under Section 8(e)(3) or
Section 8(g)(1) of the Federal Deposit Insurance Act ("FDIA") (12
U.S.C. 1818(e)(3) and 1818(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
the Executive all or part of the compensation withheld while its
obligations under this Agreement were suspended, and (ii)
reinstate (in whole or in part) any of its obligations which were
suspended.
b) If the Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Bank's
affairs by an order issued under Section 8(e)(4) or Section
8(g)(1) of the FDIA (12 U.S.C. 1818(e)(4) and (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
Executive and the Bank as of the date of termination shall not be
affected.
c) If the Bank is in default, as defined in Section 3(x)(1) of
the FDIA (12 U.S.C. 1813(x)(1)), all obligations under this
Agreement shall terminate as of the date of default, but vested
rights of the Executive and the Bank as of the date of
termination shall not be affected.
d) All obligations under this Agreement shall be terminated
pursuant to 12 C.F.R. 563.39(b)(5) (except to the extent that it
is determined that continuation of the Agreement for the
continued operation of the Bank is necessary): (i) by the
Director of the Office of Thrift Supervision ("OTS"), or his/her
designee, at the time the Federal Deposit Insurance Corporation
("FDIC") enters into an agreement to provide assistance to or on
behalf of the Bank under the authority contained in Section 13(c)
of the FDIA (12 U.S.C. 1823(c)); or (ii) by the Director of the
OTS, or his/her designee, at the time the Director or his/her
designee approves a supervisory merger to resolve problems
related to operation of the Bank or when the Bank is determined
by the Director of the OTS to be in an unsafe or unsound
condition, but vested rights of the Executive and the Bank as of
the date of termination shall not be affected.
17. Regulatory Prohibition. The terms and conditions of this
Agreement are subject to OTS approval. Notwithstanding any other
provision of this Agreement to the contrary, any payments made to
the Executive pursuant to this Agreement, or otherwise, are
subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act (12 U.S.C. 1828(k))
and the regulations promulgated thereunder, including 12 C.F.R.
Part 359. In the event of the Executive's termination of
employment with the Bank for Cause, all employment relationships
and managerial duties with the Bank shall immediately cease.
Furthermore, following such termination for Cause, the Executive
will not, directly or indirectly, influence or participate in the
affairs or the operations of the Bank.
18. 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.
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19. Entire Agreement. This Agreement embodies the entire
agreement between the Bank and the Executive with respect to the
matters agreed to herein. All prior agreements between the Bank
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: CITIZENS FINANCIAL SERVICES, FSB
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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EXECUTIVE
/s/ Xxxxx Xxxxxxxxx
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