EXHIBIT 10.10
Employment Agreement with
James A. Laphen dated
June 1, 1997
EMPLOYMENT AGREEMENT
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THIS AGREEMENT ("Agreement") is entered into as of the 1st day of June,
1997, by and between COMMERCIAL FEDERAL CORPORATION, a Nebraska corporation (the
"Corporation"), and its wholly-owned subsidiary, COMMERCIAL FEDERAL BANK, A
FEDERAL SAVINGS BANK (the "Bank"), referred to herein sometimes collectively as
the "Employer," and JAMES A. LAPHEN ("Laphen").
R E C I T A L S:
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A. Laphen is a key member of the senior management of both the
Corporation and the Bank and has devoted long service and substantial skill to
the affairs of the Corporation and the Bank, and the Boards of Directors of both
(the "Boards") wish to recognize the significant contribution that Laphen has
made to the Corporation and its shareholders and the Bank.
B. It is in the best interest of the Corporation, its shareholders, and
the Bank to provide an inducement to Laphen to remain in the service of the
Corporation and the Bank.
NOW, THEREFORE, the Corporation, the Bank, and Laphen hereby agree to the
following terms of employment:
1. Employment. The Employer agrees to employ Laphen and Laphen agrees to
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be employed in the capacity as President and Chief Operating Officer of the
Corporation and the Bank for a period of three (3) years beginning the date of
this Agreement. The Boards will review this Agreement annually to consider an
additional one (1) year extension.
2. Time and Effort. Laphen shall diligently and conscientiously devote
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his full time and best efforts to the discharge of his duties.
3. Compensation.
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a. The Employer shall pay to Laphen a base salary at a rate no less
than the rate in effect on the date of this Agreement. The base salary may
be increased from time to time as the Boards may approve.
b. Laphen shall be entitled to participate in all benefits available
to executive officers of the Employer in effect as of this date, and as may
be amended from time to time by the Boards, including, but not limited to
(i) all short-term and long-term incentive plans (both cash and stock) and
all deferred compensation plans; (ii) all benefit plans (such as, but not
limited to, medical, life insurance, retirement, vacation); and (iii) any
perquisite program.
4. Termination of Employment.
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a. The Employer may terminate Laphen's employment at any time upon
thirty (30) days notice. However, if the Employer terminates Laphen's
employment at any time during the term of this Agreement for any reason
other than cause, as defined herein, Laphen will receive all compensation
and benefits detailed in Section 3 through the effective date of
termination, together with a severance payment equal to thirty six (36)
months base salary. Such amount shall be payable monthly beginning on the
first day of the month following the month is which such termination
occurs.
b. Laphen shall have no right to receive such severance payment if
his employment is terminated for cause. With respect to the Corporation,
termination for cause shall mean and be limited to any act of personal
dishonesty, willful misconduct, or willful violation of law, which act
results in substantial loss to the Employer or its reputation. With
respect to the Bank, termination for cause shall mean termination because
of Laphen's 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.
5. Regulatory Provisions Applicable Only to the Bank.
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a. If Laphen is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818(e)(3) or (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 Laphen all or part of the compensation withheld
while its contract obligations were suspended; and (ii) reinstate (in whole
or in part) any of its obligations which were suspended.
b. If Laphen is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818(e)(4) or (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 contracting parties shall not be affected.
c. If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), all obligations of the Bank under this
Agreement shall terminate as of the date of default, but this paragraph
shall not affect any vested rights of the contracting parties.
d. All obligations of the Bank under this Agreement shall be
terminated, except to the extent determined that continuation of this
Agreement is necessary for the continued operation of the Bank:
i. At any time the Federal Deposit Insurance Corporation
("FDIC") or the Resolution Trust Corporation ("RTC") enters into an
agreement to provide assistance to or on behalf of the Bank under the
authority contained in Section 13(c) of the Federal Deposit Insurance
Act; or
ii. At any time the FDIC or RTC approves a supervisory merger to
resolve problems related to operation of the Bank or when the Bank is
determined by the Director 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.
6. Disability, Death, Retirement. If Laphen should become disabled while
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this Agreement is in effect, the compensation, benefits, and severance payment
specified in Section 4 of this Agreement shall be payable, as in the case of a
termination for reasons other than cause, to Laphen. If Laphen should die while
this Agreement is in effect, a severance payment equal to twelve (12) months
base salary shall be paid to his heirs at law, payable monthly beginning on the
first day of the month following the month in which such death occurs. If Laphen
retires, this Agreement shall terminate and no severance payments shall be due
hereunder. The benefits provided pursuant to this Agreement shall be in addition
to any other benefits provided by the Employer.
"Disability" shall mean Laphen's absence from his duties with the Employer
on a full-time basis for one hundred eighty (180) consecutive business days, as
a result of Laphen's incapacity due to physical or mental illness, unless within
thirty (30) days thereafter Laphen shall have returned to the full-time
performance of his duties.
7. Severability. In the event that any portion of this Agreement is held
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to be invalid or unenforceable for any reason, it is hereby agreed that
invalidity or unenforceabilty shall not affect the other portions of this
Agreement and that the remaining convenants, terms, and conditions, or portions
thereof shall remain in full force and effect, and any court of competent
jurisdiction may so modify the objectionable provisions as to make it valid and
enforceable.
8. Successors and Assigns. This Agreement shall be binding upon and inure
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to the benefit of the Employer, its successors, and assigns, including any
corporation which may merge or consolidate with Employer, or acquire all, or
substantially all of the assets and business of the Employer.
9. Joint and Several Liability. It is the intent of the parties hereto
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that the liability portion of the Corporation and the Bank hereunder be joint
and several. If either party shall be prohibited for any reason from fulfilling
the terms hereof, the other such party shall nevertheless be and remain fully
liable.
10. Change of Control. The parties hereto have, in addition to this
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Agreement, entered into a Change of Control Agreement. To the extent that
Laphen receives a severance payment under this Agreement, such amount shall
reduce the amount to which Laphen would otherwise be entitled under such Change
of Control Agreement.
11. Federal Deposit Insurance Act. Notwithstanding anything in this
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Agreement to the contrary, no payment shall be made under this Agreement
contrary to the requirements or prohibitions of Section 18(k) of the Federal
Deposit Insurance Act (12 U.S.C. 1828(k)) or regulations or orders issued
thereunder and applicable to and binding upon the Bank or Corporation.
12. Governing Law. This Agreement shall be construed and enforced in
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accordance with the laws of the State of Nebraska.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMMERCIAL FEDERAL CORPORATION
By /s/ William A. Fitzgerald
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William A. Fitzgerald, Chairman of the Board
COMMERCIAL FEDERAL BANK, A FEDERAL SAVINGS BANK
By /s/ William A. Fitzgerald
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William A. Fitzgerald, Chairman of the Board
/s/ James A. Laphen
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JAMES A. LAPHEN