EXHIBIT 10.4
CITIZENS FIRST BANCORP, INC.
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of
February 1, 2002, (the "Effective Time"), by and between Citizens First Bancorp,
Inc. (the "Holding Company"), a corporation organized under the laws of the
state of Delaware and the holding company of the Bank, and Xxxxxxxx X. Xxxxxxxx
("Executive"). Any reference to the "Bank" herein shall mean Citizens First
Savings Bank or any successor to Citizens First Savings Bank. This Agreement
will have the effect of creating dual employment. For that reason any reference
to "Company" shall mean Holding Company and Bank collectively.
WHEREAS, the Holding Company believes that the assurance of Executive's
employment by the Holding Company and by the Bank for the term of this Agreement
and the benefit of his business experience is of material importance to Holding
Company and Bank; and
WHEREAS, Executive desires to serve in the employ of the Holding
Company and the Bank on a full-time basis for the term of this Agreement;
WHEREAS, it is in the best interest of the Holding Company that
Executive be responsible primarily to the Holding Company's Board of Directors;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties to this Agreement hereby agree as follows:
1. POSITIONS AND RESPONSIBILITIES
(a) During the term of this Agreement Executive agrees to serve as President and
Chief Executive Officer of the Holding Company and of Bank. Executive shall
render administrative and management services to the Holding Company and to Bank
such as are customarily performed by persons in a similar executive capacity.
During the term of this agreement, Executive also agrees to serve, if elected,
as a director of the Bank and of the Holding Company, and in such capacity will
carry out such duties and responsibilities reasonably appropriate to that
office.
(b) Holding Company hires Executive to serve in the capacities described in (a)
above, and shall cause Bank to hire Executive to serve in the Bank capacities
described in (a) above, provided, however, that Executive shall be primarily
responsible to Holding Company Board of Directors.
(c) During the term of Executive's employment under this Agreement, except for
periods of absence occasioned by illness, vacation, and other reasonable leaves
of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties under
this Agreement, including activities and services related to the organization,
operation and management of the Company and subsidiaries, as well as
participation in community,
professional and civic organizations; provided, however, that, with the approval
of the Board of Directors of the Holding Company (the "Board of Directors"), as
evidenced by a resolution of the Board of Directors, from time to time,
Executive may serve, or continue to serve, on the boards of directors of, and
hold any other offices or positions in, companies or organizations, which, in
the judgment of the Board of Directors, will not present any conflict of
interest with the Company or subsidiaries or materially affect the performance
of Executive's duties pursuant to this Agreement.
2. TERM OF EMPLOYMENT
Executive's employment under this Agreement shall be deemed to have commenced as
of the Effective Time. Notwithstanding anything in this Agreement to the
contrary, the employment created hereunder is "at will" employment. Either
Executive or the Holding Company may terminate Executive's employment with the
Company at any time with or without cause, subject to the terms and conditions
of this Agreement.
3. COMPENSATION, BENEFITS AND REIMBURSEMENT
(a) Base Salary. The Company shall pay Executive an annual salary as determined,
not less frequently than annually, by the Board of Directors ("Base Salary").
Executive's Base Salary shall be payable in accordance with the normal payroll
practices of the Company. Whenever used in this Agreement, Base Salary shall
include any amounts of compensation deferred by Executive under any tax
qualified retirement or welfare benefit plan or any other deferred compensation
arrangement maintained by Company.
(b) Incentive Compensation. In addition to his Base Salary, Executive shall be
entitled to participate in any incentive compensation bonus programs sponsored
by the Company. Executive's incentive compensation shall be determined by the
Company's Board of Directors or a committee appointed by the Board of Directors.
(c) Supplemental Life Insurance. Company shall cause the $350,000 whole life
policy of insurance currently maintained on the life of Executive to be
continued during the term of his employment hereunder at no cost (except
indirect tax cost) to him.
(d) Other Employee Benefits. In addition to any other compensation or benefits
provided for under this Agreement, Executive shall be entitled to participate in
any employee benefit plans or programs offered by the Company to full time
employees or executive management, in accordance with their respective terms and
conditions, as they may be modified from time to time. Company may elect to
provide Executive with a benefit through a non-qualified plan, in lieu of a
qualified plan, when (in the opinion Company's board of directors) that is in
Company's best interest.
(e) Membership and Club Dues. The Company shall continue to provide to
Executive, without cost, social and business membership commensurate with his
position. He shall also be reimbursed for customary business and travel
expenses.
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(f) Automobile. The Company shall provide Executive with, and Executive shall
have the primary use of, an automobile owned or leased by the Company or the
Bank and the Company or the Bank shall pay (or reimburse Executive) for all
expenses of insurance, registration, operation and maintenance of the
automobile. Executive shall comply with reasonable reporting and expense
limitations on the use of such automobile, as the Board of Directors may
establish from time to time, and the Company or the Bank shall annually include
on Executive's Form W-2 any amount attributable to Executive's personal use of
such automobile.
(g) Vacation; Holidays; Sick Time. Executive shall be entitled to vacation in
accordance with the standard vacation policies of the Company or the Bank for
senior executive officers. Executive shall take vacation at a time mutually
agreed upon by the Company or the Bank and Executive. Executive shall receive
his Base Salary and other benefits during periods of vacation. Executive shall
also be entitled to paid legal holidays in accordance with the policies of the
Company. Executive shall also be entitled to sick leave in accordance with the
policies of the Company for senior executive officers.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) Upon the occurrence of an Event of Termination (as defined under this
Agreement), the provisions of this Section shall apply. As used in this
Agreement, an "Event of Termination" shall mean and include any one or more of
the following: (i) the termination of Executive's full-time employment under
this Agreement by the Holding Company on or before January 31, 2007 for any
reason other than a termination governed by Sections 6 and 10(b) of this
Agreement; or (ii) Executive's resignation from his employment with the Holding
Company on or before January 31, 2007 upon, any (A) failure to elect or re-elect
or to appoint or re-appoint Executive to his positions set forth in Section 1 of
this Agreement, unless Executive consents to such event, (B) material change in
Executive's functions, duties, or responsibilities with the Holding Company or
its subsidiaries, which change would cause Executive's position with the Holding
Company to become one of lesser responsibility, importance, or scope, unless
Executive consents to such event, (C) relocation of Executive's principal place
of employment by more than seventy-five (75) miles from its location at the
Effective Time, unless Executive consents to such event, (D) material reduction
in the benefits and perquisites provided to Executive from those being provided
as of the Effective Time of this Agreement, unless Executive consents to such
event, (E) liquidation or dissolution of the Holding Company or the Bank, or (F)
breach of this Agreement by the Holding Company. Upon the occurrence of any
event described in clauses (A), (B), (C), (D), (E) or (F), above, Executive
shall have the right to terminate his employment under this Agreement by
resignation upon not less than one hundred twenty (120) days prior written
notice given within six (6) full calendar months after the applicable event
giving rise to Executive's right to elect to terminate his employment.
(b) Upon Executive's termination from employment in accordance with paragraph
(a) of this Section, the Holding Company shall be obligated to pay Executive,
or, in the event of his death following the Date of Termination, his beneficiary
or beneficiaries, or his estate, as the case may be, Severance Pay. The
Severance Pay shall be determined and paid in accordance with Section 20 below.
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5. CHANGE IN CONTROL
(a) For purposes of this Agreement, a "Change in Control" shall mean an event of
a nature that: (i) would be required to be reported in response to Item 1(a) of
the current report on Form 8-K, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx");
or (ii) results in a Change in Control of the Bank or the Holding Company within
the meaning of the Bank Change in Control Act and the Rules and Regulations
promulgated by the Federal Deposit Insurance Corporation ("FDIC") at 12 C.F.R.
ss. 303.4(a) with respect to the Bank and the Rules and Regulations promulgated
by the Office of Thrift Supervision (OTS), with respect to the Holding Company,
as in effect on the date hereof; or (iii) results in a transaction requiring
prior FRB approval under the Bank Holding Company Act of 1956 and the
regulations promulgated thereunder by the FRB at 12 C.F.R. ss. 225.11, as in
effect on the date hereof except for the Holding Company's acquisition of the
Bank; or (iv) without limitation such a Change in Control shall be deemed to
have occurred at such time as (A) any "person" (as the term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Bank or the Holding Company representing 20% or more of the
Bank's or the Holding Company's outstanding securities except for any securities
of the Bank purchased by the Holding Company in connection with the conversion
of the Bank to the stock form and any securities purchased by any tax-qualified
employee benefit plan of the Bank; or (B) individuals who constitute the Board
of Directors on the date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election was approved by a vote of
at least three-quarters (3/4) of the directors comprising the Incumbent Board,
or whose nomination for election by the Holding Company's stockholders was
approved by the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (B), considered as though he were a member
of the Incumbent Board; or (C) a plan of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Bank or the Holding Company
or similar transaction occurs in which the Bank or Holding Company is not the
resulting entity; or (D) solicitations of shareholders of the Holding Company,
by someone other than the current management of the Holding Company, seeking
stockholder approval of a plan of reorganization, merger or consolidation of the
Holding Company or Bank or similar transaction with one or more corporations as
a result of which the outstanding shares of the class of securities then subject
to the plan or transaction are exchanged for or converted into cash or property
or securities not issued by the Bank or the Holding Company shall be
distributed; or (E) a tender offer is made for 20% or more of the voting
securities of the Bank or the Holding Company.
(b) If any of the events described in paragraph (a) of this Section 5
constituting a Change in Control have occurred, or the Board of Directors
determines that a Change in Control has occurred, then upon his termination of
employment at any time on or after the date the Change in Control occurs due to
(1) Executive's dismissal or (2) Executive's resignation following any demotion,
loss of title, office or significant authority or responsibility, reduction in
annual compensation or benefits or relocation of his principal place of
employment by more than seventy-five (75) miles from its location immediately
prior to the Change in Control, Executive shall be entitled to Severance Pay as
provided in Section 20. Provided that no such Severance Pay shall be paid if
such termination is because of his death, disability, or Termination for Cause.
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6. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination because of Executive's
personal dishonesty, willful misconduct, any breach of fiduciary duty involving
personal profit, failure to perform stated duties, violation of any law, rule,
regulation (other than traffic violations or similar offenses), final cease and
desist order or material breach of any provision of this Agreement, except to
the extent such violations shall have been made in good faith reliance on past
practice or reasonable mistake. Notwithstanding the foregoing, Executive shall
not be deemed to have been terminated for cause unless and until there shall
have been delivered to him a Notice of Termination which shall include a copy of
a resolution duly adopted by the affirmative vote of not less than a majority of
the members of the Board of Directors (excluding the Executive) at a meeting of
that Board of Directors called and held for that purpose (after reasonable
notice to Executive and an opportunity for him, together with counsel, to be
heard before the Board of Directors), finding that in the good faith opinion of
the Board of Directors, Executive was guilty of conduct justifying Termination
for Cause and specifying the particulars thereof in detail. Executive shall not
have the right to receive compensation or other benefits for any period after
Termination for Cause. During the period beginning on the date of the Notice of
Termination pursuant to Section 7 hereof through the Date of Termination, stock
options granted to Executive under any stock option plan shall not be
exercisable nor shall any unvested awards granted to Executive under any stock
benefit plan of the Bank, the Holding Company or any subsidiary or affiliate
thereof, vest. At the Date of Termination, such stock options and any such
unvested awards shall become null and void and shall not be exercisable by or
delivered to Executive at any time subsequent to such Termination for Cause.
7. NOTICE
(a) Any purported termination by the Holding Company or by Executive shall be
communicated by a Notice of Termination to the other party. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice which indicates
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination.
(c) If, within thirty (30) days after a Notice of Termination for cause is
given, Executive notifies the Holding Company that a dispute exists concerning
the termination, the Date of Termination shall be determined, either by mutual
written agreement of the parties or by Dispute Resolution pursuant to Section 17
of this Agreement.
8. POST-TERMINATION OBLIGATIONS
All payments and benefits to Executive under this Agreement shall be subject to
Executive's compliance with this Section and Section 9 for three years after the
termination of Executive's employment with the Company. Executive shall, upon
reasonable notice, furnish such information and assistance to the Company as may
reasonably be required by the Company in connection with any litigation in which
it or any subsidiaries or affiliates is, or may become, a party.
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9. NON-COMPETITION AND NON-DISCLOSURE
(a) Upon any termination of Executive's employment hereunder, Executive agrees
not to compete with the Company or subsidiaries for a period of three years
following such termination in any city, town or county in which Executive's
normal business office is located and the Company or any of its subsidiaries has
an office or has filed an application for regulatory approval to establish an
office, determined as of the effective date of such termination, except as
agreed to pursuant to a resolution duly adopted by the Board of Directors.
Executive agrees that during such period and within said cities, towns and
counties, Executive shall not work for or advise, consult or otherwise serve
with, directly or indirectly, any entity whose business materially competes with
the depository, lending or other business activities of the Company or
subsidiaries. The parties hereto, recognizing that irreparable injury will
result to the Company or subsidiaries, their business and property in the event
of Executive's breach of this Subsection agree that in the event of any such
breach, or threatened breach by Executive, the Company or its subsidiaries will
be entitled, in addition to any other remedies and damages available, including
but not limited to those available pursuant to MCLA 445.1901 et. seq., an
injunction to restrain the violation hereof by Executive, Executive's partners,
agents, servants, employees and all persons acting for or under the direction of
Executive. Executive represents and admits that in the event of the termination
of his employment pursuant to Section 4 of this Agreement, Executive's
experience and capabilities are such that Executive can obtain employment in a
business engaged in other lines and/or of a different nature than the Company or
subsidiaries, and that the enforcement of a remedy by way of injunction will not
prevent Executive from earning a livelihood. Nothing herein will be construed as
prohibiting the Company or its subsidiaries from pursuing any other remedies
available to the Company or subsidiaries for such breach or threatened breach,
including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business
activities and plans for business activities of the Company and subsidiaries as
may exist from time to time, is a valuable, special and unique asset of the
business of the Company and subsidiaries. Executive will not, during or after
the term of his employment, disclose any knowledge of the past, present, planned
or considered business activities of the Company and subsidiaries thereof to any
person, firm, corporation, or other entity for any reason or purpose whatsoever
unless expressly authorized by the Board of Directors or required by law.
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Company. In
the event of a breach or threatened breach by Executive of the provisions of
this Section or Section 8, the Company will be entitled to an injunction
restraining Executive from disclosing, in whole or in part the knowledge of the
past, present, planned or considered business activities of the Company or
subsidiaries or from rendering any services to any person, firm, corporation,
other entity to whom such knowledge, in whole or in part has been disclosed or
is threatened to be disclosed. Nothing herein will be construed as prohibiting
the Company from pursuing any other remedies available to the Company for such
breach or threatened breach, including the recovery of damages from Executive or
such remedies or damages as may be available pursuant to MCLA 445.1901 et. seq.
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10. DEATH AND DISABILITY
(a) Death. In addition to the other provision of this Agreement, in the event of
Executive's death during the term of this Agreement, the Company shall
immediately pay his estate any Base Salary accrued but unpaid as of the date of
his death.
(b) Disability
(i) Disability. If during the term of Executive's employment Executive
receives disability benefits under any long-term disability insurance policy
maintained by the Bank (the "Disability Policy"), then the Company's obligation
to pay Executive his Base Salary shall, as of the date such benefits first
become payable under the Disability Policy on account of Executive's disability,
be reduced to equal the difference between Executive's Base Salary and amounts
received under all long-term disability policies, to the extent that such salary
payments do not result in a reduction in disability payments.
(ii) Incapacity. If, as a result of Disability, Executive is determined
by a physician chosen by the Company and reasonably acceptable to Executive or
Executive's personal representatives, to be incapable of fulfilling Executive's
responsibilities under this Agreement ("Incapacity Determination"), (1)
Executive shall continue to be covered by the Bank's medical insurance (if he is
then covered) until the first anniversary of the Incapacity Determination, and
(2) the Company's obligation to provide Executive with other employment related
fringe benefits hereunder shall cease as of the date of such Incapacity
Determination ("Incapacity Determination Date"). Prior to the Incapacity
Determination Date, the Company shall continue to pay Executive his Base Salary
in usual installments and Executive shall continue to receive all other
employment-related fringe benefits due to Executive.
(iii) Termination of Employment by Reason of Incapacity. At any time
from and after the Incapacity Determination Date, the Company, in its
discretion, may elect to terminate Executive's employment by reason of such
incapacity. Any termination as a result of incapacity shall not be considered to
be an Event of Termination under Section 4 of this Agreement.
11. SOURCE OF PAYMENTS
(a) All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Holding Company or subject to Section 11(b).
(b) Holding Company may agree with Bank and subsidiaries to allocate among them
the costs of employing Executive hereunder.
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(c) Notwithstanding any provision in this Agreement to the contrary, to the
extent that payments and benefits, as provided by this Agreement, are paid to or
received by Executive through the Bank, such payments and benefits paid by the
Bank will be subtracted from any amount due to Executive under similar
provisions of this Agreement.
12. EFFECT ON OTHER AGREEMENTS
This Agreement contains the entire understanding between the parties.
13. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an instrument in
writing signed by Executive and Holding Company.
(b) No term or condition of this Agreement shall be deemed to have been waived,
nor shall there be any estoppel against the enforcement of any provision of this
Agreement, except by written installment of the party charged with such waiver
or estoppel. No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only as to the
specific term or condition waived and shall not constitute a waiver of such term
or condition for the future as to any act other than that specifically waived.
14. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall, to the full extent consistent with
law, continue in full force and effect.
15. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
16. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Michigan, without
regard to principles of conflicts of law of that state.
17. DISPUTE RESOLUTION
Any dispute or controversy arising under or in connection with this Agreement
shall be resolved exclusively in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then
in effect. Judgment may be entered on the award in any court having
jurisdiction.
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American Arbitration Association rules notwithstanding the parties agree that
any award shall be limited to compensation otherwise payable under the terms of
this Agreement.
18. PAYMENT OF COSTS AND LEGAL FEES
All costs, fees and/or expenses, pursuant to any dispute or question of
interpretation relating to this Agreement, shall be paid in accordance with any
award pursuant to the National Rules for the Resolution of Employment Disputes.
19. INDEMNIFICATION
(a) The Company shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy.
(b) Any payments made to Executive pursuant to this Section are subject to and
conditioned upon compliance with 12 U.S.C. Section 1828(k) and 12 C.F.R. Part
359 and any rules or regulations promulgated thereunder.
20. SEVERANCE PAY
(a) As used herein, the term Severance Pay means the sum of the following:
(i) Three times Executive's average annual compensation from the
Holding Company, the Bank or their affiliates for the three
preceding taxable years or such lesser number of years in the
event that Executive shall have actually been employed by the
Holding Company or the Bank for less than three years. In
determining Executive's average annual compensation, annual
compensation shall include Base Salary and any other taxable
income, including but not limited to amounts related to the
granting, vesting or exercise of restricted stock or stock
option awards, commissions, bonuses (whether paid or accrued
for the applicable period), as well as, severance payments,
retirement benefits, director or committee fees and fringe
benefits paid or to be paid to Executive or paid for
Executive's benefit during any such year, profit sharing,
employee stock ownership plan and other retirement
contributions or benefits, including any tax-qualified plan or
arrangement (whether or not taxable) made or accrued on behalf
of Executive for such year;
(ii) The value, as calculated by a recognized firm customarily
performing such valuation, of any stock options which as of
the Date of Termination or Change in Control, have been
granted to Executive but are not exercisable by Executive and
the value of any restricted stock awards which have been
granted to Executive, but in which Executive does not have a
non-forfeitable or fully-vested interest as of the Date of
Termination.
(iii) To the extent not paid or payable to him under any other
provision of this Agreement or otherwise, an amount equal to
benefits due him under or contributed by the Bank or the
Holding Company on his behalf pursuant to any retirement,
incentive, profit sharing or other retirement, bonus,
performance, disability or other employee benefit plan
maintained
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by the Holding Company or the Bank on Executive's behalf. For
purposes of determining his vested benefit, accrued or
otherwise, Executive shall be credited either under any plan
maintained by the Bank or, if not permitted under such plan,
under a separate arrangement, with the additional "years of
service" that he would have earned for vesting and benefit
accrual purposes for the remaining term of the Agreement had
his employment not terminated prior to February 28, 2007.
(iv) To the extent that the Company is providing any life, medical,
health, disability or dental insurance plan or arrangement in
which Executive participates on the "Date of Termination"(each
being a "Welfare Plan"), Executive and his covered dependents
shall continue participating in such Welfare Plans, subject to
the same premium contributions on the part of Executive as
were required immediately prior to the Change in Control or
Event of Termination until the earlier of (i) his death (ii)
his employment by another employer other than one of which he
is the majority owner or (iii) the fourth anniversary of the
Date of Termination or Change in Control, whichever is
applicable. In the event Executive's participation in any such
plan or program is barred, the Holding Company shall arrange
to provide Executive and his dependents with benefits
substantially similar to those of which Executive and his
dependents would otherwise have been entitled to receive under
such plans and programs from which their continued
participation is barred or provide their economic equivalent.
(v) The use or provision of any membership, license, automobile
use, or other perquisites shall be continued for four years
after, and on the same financial terms and obligations as were
in place immediately prior, to the Change in Control or Date
of Termination, whichever is applicable. To the extent that
any item referred to in this paragraph will, at the end of the
term of this Agreement, no longer be available to Executive,
Executive will have the option to purchase all rights then
held by the Holding Company or the Bank to such item for a
price equal to the then fair market value of the item.
(b) The Severance Pay amounts set forth in (i), (ii), and (iii) shall be paid in
equal monthly installments during the thirty-six months following Executive's
termination.
(c) Notwithstanding Section 5, for any taxable year in which Executive shall be
liable, as determined for the payment of an excise tax under Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") (or any successor
provision thereto), with respect to any payment in the nature of the
compensation made by the Holding Company or the Bank to (or for the benefit of)
Executive pursuant to this Agreement or otherwise, the Holding Company shall pay
to Executive an amount determined under the following formula:
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An amount equal to: (E x P) + X
WHERE:
X = E x P
-----------------------------------------------
1 - [(FI x (1 - SLI)) + SLI + E [+M + PO]]
E = the rate at which the excise tax is assessed under Section
4999 of the Code;
P = the amount with respect to which such excise tax is
assessed, determined without regard to this Section;
FI = the highest marginal rate of federal income, employment, and
other taxes (other than taxes imposed under Section 4999 of
the Code) applicable to Executive for the taxable year in
question; and
SLI = the sum of the highest marginal rates of income and
payroll tax applicable to Executive under applicable state
and local laws for the taxable year in question; and
M = highest marginal rate of Medicare tax; and
PO = adjustment for phase out of or loss of deduction, personal
exemption or similar items
With respect to any payment in the nature of compensation that is made to (or
for the benefit of) Executive under the terms of this Section or otherwise and
on which an excise tax under Section 4999 of the Code will be assessed, the
payment determined under Section 5 shall be made to Executive on the earliest of
(i) the date the Holding Company is required to withhold such tax, (ii) the date
the tax is required to be paid by Executive, or (iii) at the time of the Change
in Control. It is the intention of the parties that the Holding Company provide
Executive with a full tax gross-up under the provisions of this Section, so that
on a net after-tax basis, the result to Executive shall be the same as if the
excise tax under Section 4999 (or any successor provisions) of the Code had not
been imposed. The tax gross-up may be adjusted if alternative minimum tax rules
are applicable to Executive.
Notwithstanding the foregoing, if it shall subsequently be determined in a final
judicial determination or a final administrative settlement to which Executive
is party that the excess parachute payment as defined in Section 4999 of the
Code, reduced as described above, is more than the amount determined as "P,"
above (such greater amount being hereafter referred to as the "Determinative
Excess Parachute Payment") then the Holding Company's independent accountants
shall determine the amount (the "Adjustment Amount") the Holding Company must
pay to Executive, in order to put Executive (or the Holding Company, as the case
may be) in the same position as Executive (or the Holding Company, as the case
may be) would have been if the amount determined as "P" above had been equal to
the Determinative Excess Parachute Payment. In determining the Adjustment
Amount, the independent accountants shall take into account any and all taxes
(including any penalties and
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interest) paid by or for Executive or refunded to Executive or for Executive's
benefit. As soon as practicable after the Adjustment Amount has been so
determined, the Holding Company shall pay the Adjustment Amount to Executive.
In each calendar year that Executive receives payments or benefits under this
Agreement, Executive shall report on his state and federal income tax returns
such information as is consistent with the determination made by the independent
accountants of the Holding Company as described above. The Holding Company shall
indemnify and hold Executive harmless from any and all losses, costs and
expenses (including without limitation, reasonable attorney's fees, interest,
fines and penalties) which Executive incurs as a result of reporting such
information. Executive shall promptly notify the Holding Company in writing
whenever Executive receives notice of a judicial or administrative proceeding,
formal or informal, in which the federal tax treatment under Section 4999 of the
Code of any amount paid or payable under this Agreement is being reviewed or is
in dispute. The Holding Company shall assume control at its expense over all
legal and accounting matters pertaining to such federal tax treatment (except to
the extent necessary or appropriate for Executive to resolve any such proceeding
with respect to any matter unrelated to amounts paid or payable pursuant to this
contract) and Executive shall cooperate fully with the Holding Company in any
such proceeding. Executive shall not enter into any compromise or settlement or
otherwise prejudice any rights the Holding Company may have in connection
therewith without prior consent of the Holding Company.
(d) Except for compensation and benefits received by Executive from financial
institution entities within the thirty-six month period following his
termination Severance Pay shall not be reduced in the event Executive obtains
other employment.
21. SUCCESSOR TO THE HOLDING COMPANY
The Holding Company shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Holding Company, to
expressly and unconditionally assume and agree to perform the Holding Company's
obligations under this Agreement, in the same manner and to the same extent that
the Holding Company would be required to perform such obligations if no such
succession or assignment had taken place.
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SIGNATURES
IN WITNESS WHEREOF, Citizens First Bancorp, Inc. has caused this
Agreement to be executed and its seal to be affixed hereunto by its duly
authorized officer and Executive has signed this Agreement, on the 25th day of
February, 2002.
ATTEST: CITIZENS FIRST BANCORP, INC.
/s/ Xxxxx X. Xxxxxxxxx
----------------------------
By: /S/ Xxxxxxx X. Xxxxx
-------------------------------
Sr. Vice-President
[SEAL]
WITNESS: EXECUTIVE
/s/ Xxxxx X. Xxxxxxxxx By: /S/ Xxxxxxxx X. Xxxxxxxx
----------------------------------- -------------------------------
Xxxxxxxx X. Xxxxxxxx
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