EXHIBIT 10.1
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT entered into this 15th day of February, 1990, by and between
Citizens Federal Savings Bank (hereinafter referred to as the "Savings Bank")
and Xxxxx Xxxxxx, Xx. (hereafter referred to as the "Employee").
WHEREAS, the Employee has heretofore been employed by the Savings Bank as
Executive Vice President, the employee is experienced in all phases of the
business of the Savings Bank, and the Board of Directors has determined to
appoint the Employee as President and Chief Executive Officer of the Savings
Bank; and
WHEREAS, the parties desire by this writing to set forth the continuing
employment relationship of the Savings Bank and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is employed as the President and Chief
----------
Executive Officer of the Savings Bank. The Employee shall render administrative
and management services to the Savings Bank such as are customarily performed by
persons situated in a similar executive capacity. The Employee shall also
promote, by entertainment or otherwise, as and to the extent permitted by law,
the business of the Savings Bank. The Employee's other duties shall be such as
the Board of Directors of the Savings Bank (the "Board of Directors") may from
time to time reasonably direct, including normal duties as an officer of the
Savings Bank.
2. Base Compensation. The Savings Bank agrees to pay the Employee during
-----------------
the term of this Agreement a salary at the rate of $59,000 per annum, payable in
cash not less frequently than monthly; provided, that the rate of such salary
shall be reviewed by the Board of Directors not less often than annually, and
Employee shall be entitled to receive annually an increase at such percentage or
in such an amount as the Board of Directors in its sole discretion may decide.
3. Discretionary Bonuses. The Employee shall be entitled to participate
---------------------
in an equitable manner with all other senior management employees of the Savings
Bank in discretionary bonuses that may be authorized and declared by the Board
of Directors to its senior management employees from time to time. No other
compensation provided for in this Agreement shall be deemed a substitute for the
Employee's right to participate in such discretionary bonuses when and as
declared by the Board of Directors.
4. (a) Participation in Retirement and Medical Plans. The Employee
---------------------------------------------
shall be entitled to participate in any Plan of the Savings Bank relating to
pension, profit-sharing, or other retirement benefits and medical coverage or
reimbursement plans that the Savings Bank may adopt for the benefit of its
employees.
(b) Employee Benefits; Expenses. The Employees shall be eligible to
---------------------------
participate in any fringe benefits which may be or may become applicable to the
Savings Bank's executive employees, including by example, participation in any
stock option or incentive plans adopted by the Board of Directors, club
memberships, a reasonable expense account, and any other benefits which are
commensurate with the responsibilities and functions to be performed by the
Employee under this Agreement. The Savings Bank shall reimburse Employee for
all reasonable out-of-pocket expenses which Employee shall incur in connection
with his services for the Savings Bank.
5. Term. The Bank hereby employs the Employee, and the Employee hereby
----
accepts such employment under this Agreement, for the period commencing on April
1, 1993 (the "Effective Date"), and ending thirty-six months thereafter on March
31, 1996 (or such earlier date as is determined in accordance with Section 9
hereof). Additionally, on each annual anniversary date from teh Effective Date,
the Employee's term of employment shall be extended for an additional one-year
period beyond the then effective expiration date provided the Board of Directors
of the Bank determines in a duly adopted resolution that the performance of the
Employee has met the board's requirements and standards, and that this Agreement
shall be extended.
6. Loyalty; Noncompetition.
-----------------------
(a) The Employee shall devote his full time and attention to the
performance of his employment under this Agreement. During the term of
Employee's employment under this Agreement, the Employee shall not engage in any
business or activity contrary to the business affairs or interests of the
Savings Bank.
(b) Nothing contained in this Paragraph 6 shall be deemed to prevent
or limit the right of Employee to invest in the capital stock or other
securities of any business dissimilar from that of the Savings Bank, or, solely
as a passive or minority investor, in any business.
7. Standards. The Employee shall perform his duties under this Agreement
---------
in accordance with such reasonable standards expected of employees with
comparable positions in comparable organizations and as may be established from
time to time by the Board of Directors. The Savings Bank will provide Employee
with the working facilities and staff customary for similar executives and
necessary for him to perform his duties.
8. Vacation and Sick Leave. At such reasonable times as the Board of
-----------------------
Directors shall in its discretion permit, the Employee shall be entitled,
without loss of pay, to absent himself voluntarily from the performance of his
employment under this Agreement; all such voluntary absences to count as
vacation time; provided that:
(a) The Employee shall be entitled to an annual vacation in accordance
with the policies as are periodically established by the Board of Directors for
senior management employees of the Savings Bank.
(b) The Employee shall not be entitled to receive any additional
compensation from the Savings Bank on account of his failure to take a vacation
and Employee shall not be entitled
to accumulate unused vacation from one fiscal year to the next, except in either
case to the extent authorized by the Board of Directors for senior management
employees of the Savings Bank.
(c) In addition to the aforesaid paid vacations, the Employee shall be
entitled without loss of pay, to absent himself voluntarily from the performance
of his employment with the Savings Bank for such additional periods of time and
for such valid and legitimate reasons as the Board of Directors in its
discretion may determine. Further, the Board of Directors shall be entitled to
grant to the Employee a leave or leaves of absence with or without pay at such
time or times and upon such terms and conditions as the Board of Directors in
its discretion may determine.
(d) In addition, the Employee shall be entitled to an annual sick
leave benefit as established by the Board of Directors for senior management
employees of the Savings Bank. In the event any sick leave benefit shall not
have been used during any year, such leave shall accrue to subsequent years only
to the extent authorized by the Board of Directors.
9. Termination and Termination Pay.
-------------------------------
The Employee's employment under this Agreement shall be terminated
upon the following occurrences:
(a) The death of the Employee during the term of this Agreement, in
which event the Employee's estate shall be entitled to receive the compensation
due the Employee through the last day of the calendar month in which his death
shall have occurred, and any vested rights and benefits of the Employee.
(b) Employee's employment under this Agreement may be terminated at
any time by a decision of the Board of Directors for conduct not constituting
termination for Just Cause. Except as provided pursuant to Section 12 herein, in
the event Employee's employment under this Agreement is terminated by the Board
of Directors without Just Cause, the Savings Bank shall be obligated to continue
to pay the Employee his salary, up to the date of termination of the term
(including any renewal term) of this Agreement and the cost of Employee
obtaining all health, life, disability and other benefits which the Employee
would have been eligible to participate in through such date based upon the
benefit levels substantially equal to those being provided Employee at the date
of termination of employment; provided that the total compensation paid to the
Employee hereunder shall not exceed three times his average annual compensation
for his five most recent taxable years.
(c) The Savings Bank reserves the right to terminate this Agreement at
any time for Just Cause. Termination for "Just Cause" shall mean termination
for personal dishonesty, incompetence, willful misconduct, breach of a fiduciary
duty involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule, regulation (other than a law, rule or
regulation relating to a traffic violation or similar offense), final cease-and-
desist order, termination under the provisions of Subparagraphs (d), (e) or (f)
below, or material breach of any provision of this Agreement. Subject to the
provisions of Section 12 hereof, in the event this Agreement is terminated for
Just Cause, the Savings Bank shall only be obligated to continue to pay
the Employee his salary up to the date of termination, and the vested rights of
the parties shall not be affected.
(d) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Savings Bank's affairs by an order issued
under Sections 8 (e)(4) or 8 (g)(1) of the Federal Deposit Insurance Act
("FDIA") (12 U.S.C. 1818 (e)(4) and (g)(1)), all obligations of the Savings Bank
under this Agreement shall terminate, as of the effective date of the order, but
the vested rights of the parties shall not be affected.
(e) If the Savings Bank is in default (as defined in Section 3 (x)(1)
of FDIA), all obligations under this Agreement shall terminate as of the date of
default, but this Paragraph shall not affect any vested rights of the parties.
(f) All obligations under this Agreement may be terminated: (i) by
the Director of the Office of Thrift Supervision ("Director of OTS"), or his or
her designee, at the time that the Federal Deposit Insurance Corporation
("FDIC") or the Resolution Trust Corporation enters into an agreement to provide
assistance to or on behalf of the Savings Bank under the authority contained in
Section 13 (c) of FDIA; and (ii) by the Director of the OTS, or his or her
designee, at the time that the Director of the OTS, or his or her designee
approves a supervisory merger to resolve problems related to operation of the
Savings Bank or when the Savings Bank is determined by the Director of the OTS
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.
(g) The voluntary termination by the Employee during the term of this
Agreement with the delivery of no less than 60 days written notice to the Board
of Directors, other than pursuant to Section 12 (b), in which case the Employee
shall be entitled to receive only his compensation, vested rights, and all
employee benefits up to the date of his termination.
10. Suspension of Employment.
------------------------
(a) The suspension of the Employee from office and/or temporary
prohibition from participation in the conduct of the affairs of the Savings Bank
pursuant to notice served by the under Sections 8(e)(3) or 8(g)(1) of FDIA
unless stayed by appropriate proceedings, shall suspend, as of the date of such
service, all obligations of the Savings Bank under the terms of this Agreement,
except for the vested rights of the parties.
(b) In the event the charges specified in such notice served as
provided in Subparagraph (a) of this Paragraph 10 shall be dismissed, the
Savings Bank shall (i) pay the Employee the compensation withheld from such
Employee pursuant to the suspension of the Savings Bank's obligations as
required in Subparagraph (a) of this Paragraph and (ii) reinstate the
obligations suspended as required in Subparagraph (a) of this Paragraph.
11. Disability. If the Employee shall become disabled or incapacitated to
----------
the extent that he is unable to perform his duties hereunder, by reason of a
medically determinable physical or mental impairment, as determined by a doctor
engaged by the Board of Directors, Employee shall
nevertheless continue to receive the following percentages of his compensation,
inclusive of any benefits which may be payable to Employee under the provisions
of disability insurance coverage in effect for Savings Bank employees, under
Section 2 of this Agreement for the following period of his disability: 50% for
the remaining term of this Agreement. Upon returning to active full-time
employment, the Employee's full compensation as set forth in this Agreement
shall be reinstated. In the event that said Employee returns to active
employment on other than a full-time basis, then his compensation (as set forth
in Paragraph 2 of this Agreement) shall be reduced in proportion to the time
spent in said employment, or as shall otherwise be agreed to by the parties.
12. Change in Control.
-----------------
(a) Notwithstanding any provision herein to the contrary, in the event
of involuntary termination of Employee's employment under this Agreement in
connection with , or within six (6) months after, any change in control of the
Savings Bank which has not been approved in advance by a two-thirds (2/3) vote
of the full Board of Directors, or in the event of voluntary termination by the
Employee in connection with, or within six (6) months after, any change in
control of the Savings Bank which has not been approved in advance by a two-
thirds (2/3) vote of the full Board of Directors, Employee shall be paid an
amount equal to the product of 2.99 times the Employee's "base amount"as defined
in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the
"Code"). Said sum shall be paid, at the option of Employee, either in one (1)
lump sum within thirty (30) days of such termination, or in periodic payments
over the remaining term of this Agreement as if Employee's employment had not
been terminated, and such payments shall be in lieu of any other future payments
which the Employee would be otherwise entitled to receive under Section 9 of
this Agreement. The term "control" shall refer to the ownership, holding or
power to vote more than 25% of the Savings Bank's voting stock, the control of
the election of a majority of the Savings Bank's directors, or the exercise of a
controlling influence over the management or policies of the Savings Bank by any
person or by persons acting as a group within the meaning of Section 13(d) of
the Securities Exchange Act of 1934. This limitation shall not apply to a
transaction in which the Savings Bank forms a holding company without change in
the respective beneficial ownership interests of its stockholders other than
pursuant to the exercise of any dissenter and appraisal rights, the purchase of
shares by underwriters in connection with a public offering, or the purchase of
shares of up to 25% of any class of securities by a tax-qualified employee stock
benefit plan which is exempt from the approval requirements, set forth under 12
C.F.R.(S)574.3(c)(1)(vi) as now in effect or as may hereafter be amended. The
term "person" means an individual other than the Employee, or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of entity not
specifically listed herein.
(b) Notwithstanding any other provision of this Agreement to the
contrary, Employee may voluntarily terminate his employment under this Agreement
following a change in control of the Savings Bank, whether approved in advance
by the Board of Directors or otherwise (as defined in Section 12(a) of this
Agreement), and shall thereupon be entitled to receive the payment described in
Section 12(a) of this Agreement, upon the occurrence, or within sixty (60) days
thereafter, of any of the following events, which have not been consented to in
advance by the Employee in writing: (i) if Employee would be required to move
his personal residence or perform his principal executive functions more than
thirty-five (35) miles from the Employee's primary
office as of the signing of the Agreement; (ii) if in the organizational
structure of the Savings Bank Employee would be required to report to a person
or persons other than the Board of Directors of the Savings Bank; (iii) if the
Savings Bank should fail to maintain existing employee benefits plans, including
material fringe benefit, stock option and retirement plans; (iv) if Employee
would be assigned duties and responsibilities other than those normally
associated with his position as President and Chief Executive Officer or (v) if
Employee's responsibilities or authority have in any way been materially
diminished or reduced.
(c) In the event any dispute shall arise between the Employee and the
Savings Bank as to the terms or interpretation of this Agreement, including this
Section 12, whether instituted by formal legal proceeding or otherwise,
including any action taken by Employee to enforce the terms of this Section 12
or in defending against any action taken by the Savings Bank, the Savings Bank
shall reimburse Employee for all costs and expenses, including reasonable
attorneys' fees, arising from such dispute, proceedings or actions,
notwithstanding in the ultimate outcome thereof; provided, however, that the
Savings Bank shall not be obligated to so reimburse the Employee if a court
having jurisdiction over the matter shall specifically find that the Employee's
position or arguments in the dispute have been clearly unreasonable. Such
reimbursement shall be paid within ten (10) days of Employee furnishing to the
Savings Bank written evidence, which may be in the form, among other things, of
a cancelled check or receipt, of any costs or expenses incurred by Employee.
Any such request for reimbursement by Employee shall be made no more frequently
than at sixty (60) day intervals.
13. Successors and Assigns.
----------------------
(a) This Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of the Savings Bank which shall acquire,
directly or indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets of the Savings Bank.
(b) Since the Savings Bank is contracting for the unique and personal
skills of the Employee, the Employee shall be precluded from assigning or
delegating his rights or duties hereunder without first obtaining the written
consent of the Savings Bank.
14. Amendments. No amendments or additions to this Agreement shall be
----------
binding unless made in writing and signed by both parties, except as herein
otherwise specifically provided.
15. Applicable Law. This Agreement shall be governed by all respects
--------------
whether as to validity, construction, capacity, performance or otherwise, by the
laws of Alabama, except to the extent that Federal law shall be deemed to apply.
16. Severability. The provisions of this Agreement shall be deemed
------------
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
17. Entire Agreement. This Agreement together with any understanding or
----------------
modifications thereof as approved to in writing by the parties, shall constitute
the entire agreement between the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year hereinabove written.
CITIZENS FEDERAL SAVINGS BANK
By: /s/ X.X. Xxxxxx
-------------------------
ATTEST:
/s/ Xxxxx X. Fort
------------------------
Xxxxx X. Fort, Secretary
WITNESS:
/s/ X. X. Xxxxxxx /s/ Xxxxx Xxxxxx, Xx.
------------------------ -----------------------------
Xxxxx Xxxxxx, Xx., Employee
