Contract
Exhibit 10.16
/s/ Xxxxxx X. Xxxxxx
AMENDMENT
NO. 1
TO
This AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (the “Amendment”) is made and
entered into as of this 23rd day of December, 2009 by and between CITIZENS
FINANCIAL BANK (the “Bank”), a federally chartered savings bank, and
XXXXXX X. XXXXXX (the “Executive”), the Chairman and Chief Executive
Officer of the Bank,
WITNESSETH:
WHEREAS, the Bank and the Executive are parties to an employment agreement dated
May 1, 2008 (the “Employment Agreement”); and
WHEREAS, the Bank and the Executive mutually desire to amend certain provisions
of the Employment Agreement as provided in this Amendment; and
WHEREAS, the Employment Agreement shall remain
in full force and effect in accordance with its provisions, except as expressly
set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing premises, the respective
covenants, agreements and waivers contained herein, the continued employment of
the Executive by the Bank pursuant to the Employment Agreement, as amended
hereby, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Bank and the Executive hereby agree as
follows:
Section
1. Amendment
to Section 7 of the Employment Agreement. Section 7 of
the Employment Agreement is hereby amended and is superseded and replaced in its
entirety with the following:
7. Reduction of
Payments Under Certain Circumstances. Notwithstanding any
other provision of this Agreement, in the event any payment or amount of money
or other benefit received or to be received by the Executive in connection with
a Change in Control or the termination of the Executive’s employment (all such
payments and benefits, including any severance payments and benefits, being
hereinafter called “Total Payments”) would not be deductible for federal income
tax purposes (in whole or part) by the Bank, a subsidiary or affiliate of the
Bank or a person making such payment or providing such benefit, due to the
application of Code Section 280G, then the Total Payments shall be reduced to
the highest amount that avoids the application of Code Section 280G; provided,
however, that such reduction shall only be imposed if the Executive would
receive, on an after-tax basis, a greater amount of Total Payments than he would
have received had the reduction not been imposed. In calculating the
Total Payments to be received by the Executive, all applicable federal, state
and local employment taxes, income taxes and the excise tax imposed by Code
Section 4999 (all computed at the highest applicable marginal tax rates) shall
be taken into account. Any reduction in the
Total Payments required by this Section 7 shall first
come from any cash severance payments (if necessary, by reducing such payments
to zero), and all other forms of severance benefits shall thereafter be reduced
(if necessary, to zero); provided, however, that the Executive may elect to have
any noncash severance payments reduced (or eliminated) prior to any reduction in
cash severance payments.
Section
2. No
Changes; Limited Waiver.
(a) No
Changes Except as Provided Herein. The Employment Agreement is
not amended, modified or changed in any respect except as provided in this
Amendment. All covenants, agreements, restrictions, provisions and
obligations set forth in the Employment Agreement shall remain and continue in
full force and effect, and binding upon the parties, as provided in the
Employment Agreement, except as amended pursuant to this Amendment.
(b) Limited
Waiver. Each of the Bank and the Executive hereby waives any
and all breaches by the other of the Employment Agreement that may have
occurred, and any and all rights to terminate the Employment Agreement that may
have arisen, on or prior to the date of this Amendment. Neither the
Bank nor the Executive waives any breaches or rights to terminate the Employment
Agreement that may occur or arise subsequent to the date of this
Amendment.
Section
4. Miscellaneous.
(a) Binding
Effect; Assignment. This Amendment shall be binding upon and
inure to the benefit of the Bank and the Executive and their respective heirs,
executors, representatives, successors and assigns; provided, however that the
Executive may not assign this Amendment, and his rights and obligations
hereunder, without the prior written consent of the Bank. The Bank
may, without the consent of the Executive, assign this Amendment, and its rights
and obligations hereunder, to (i) CFS Bancorp, Inc. or any of the Bank’s
subsidiaries or affiliates, or (ii) any successor of the Bank or any other third
party in connection with any recapitalization, reorganization or Change in
Control (as defined in the Employment Agreement). In the event of any
such permitted assignment of this Amendment, all references to the “Bank” shall
thereafter mean and refer to the assignee of the Bank.
(b) Amendment. This
Amendment may be further amended or modified only by a written agreement
executed by both parties hereto.
(c) Headings. The
headings in this Amendment have been inserted solely for ease of reference and
shall not be considered in the interpretation or construction of this
Amendment.
(d) Severability. In
case any one or more of the provisions (or any portion thereof) contained herein
shall, for any reason, be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provision of this Amendment, but this Amendment shall be construed as if
such invalid, illegal, or unenforceable provision or provisions (or portion
thereof) had never been contained herein.
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(e) Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute one and the same
agreement.
(f) Voluntary
Execution; Construction. The Executive agrees that he has
executed this Amendment voluntarily and not as a condition to continued
employment with the Bank. This Amendment shall be deemed to have been
drafted by both of the parties hereto. This Amendment shall be
construed in accordance with the fair meaning of its provisions and its language
shall not be strictly construed against, nor shall ambiguities be resolved
against, either party. THE EXECUTIVE
HEREBY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT HE HAS NOT RECEIVED ANY ADVICE,
COUNSEL OR RECOMMENDATION WITH RESPECT TO THIS AMENDMENT FROM THE BANK, ANY
DIRECTOR, OFFICER OR EMPLOYEE OF THE BANK OR ANY ATTORNEY, ACCOUNTANT OR ADVISOR
FOR THE BANK.
(g) Entire
Agreement. This Amendment constitutes the entire understanding
and agreement between the parties hereto relating to the subject matter
hereof.
(h) Governing
Law; Venue; Waiver of Jury Trial. This Amendment shall be
governed by and construed in accordance with the laws of the State of Indiana,
without reference to any choice of law provisions, principles, or rules thereof
(whether of the State of Indiana or any other jurisdiction) that would cause the
application of any laws of any jurisdiction other than the State of
Indiana. Any claim, demand, or action relating to this Amendment
shall be brought only in a federal or state court of competent jurisdiction in
Xxxxxx County, Indiana. In connection with the foregoing, the parties
hereto irrevocably consent to the jurisdiction and venue of such court and
expressly waive any claims or defenses of lack of jurisdiction of or proper
venue by such court. THE BANK AND THE
EXECUTIVE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TO THE MAXIMUM EXTENT
PERMITTED BY LAW ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY DEMAND, CLAIM,
ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR OTHERWISE RELATING TO
THIS AMENDMENT.
(i) Recitals. The
recitals or “Whereas” clauses contained on page 1 of this Amendment are
expressly incorporated into and made a part of this Amendment.
(j) Restatement
of Employment Agreement. The Bank may restate the Employment
Agreement such that it shall contain in a single document all of the provisions
of the Employment Agreement, as amended pursuant to this Amendment; provided
that any such amended and restated Employment Agreement shall be signed by the
Bank and the Executive before it shall be effective.
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IN WITNESS
WHEREOF, the Bank and the Executive have made, entered into, executed and
delivered this Amendment as of the day and year first above
written.
/s/ Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx
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CITIZENS
FINANCIAL BANK
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By: /s/ Xxxxxx X.
Xxxxxxxx
Printed: Xxxxxx X.
Xxxxxxxx
Its: Corporate
Secretary
KD_2404432_2.DOC
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