EXHIBIT 10.5
EMPLOYMENT AGREEMENT
AGREEMENT, dated this 21st day of July 2003, between CFS
Bancorp, Inc. (the "Corporation"), a Delaware corporation, and James W. Prisby
(the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of the
Corporation and Citizens Financial Services, FSB (the "Bank") (together, the
"Employers");
WHEREAS, the Employers desire to be ensured of the Executive's
continued active participation in the business of the Employers;
WHEREAS, the Corporation and the Bank desire to enter into
separate agreements with the Executive with respect to his employment by each of
the Employers; and
WHEREAS, in order to induce the Executive to remain in the
employ of the Employers and in consideration of the Executive's agreeing to
remain in the employ of the Employers, the parties desire to specify the
severance benefits which shall be due the Executive by the Corporation in the
event that his employment with the Corporation 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) Average Annual Compensation. The Executive's "Average Annual
Compensation" for purposes of this Agreement shall be deemed
to mean the average level of compensation paid to the
Executive by the Employers or any subsidiary thereof during
the most recent five taxable years preceding the Date of
Termination and which was either (i) included in the
Executive's gross income for tax purposes, including but not
limited to Base Salary, bonuses and amounts taxable to the
Executive under any qualified or non-qualified employee
benefit plans of the Employers, or (ii) deferred at the
election of the Executive.
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 1(a) of Form 8-K or Item 6(e)
of Schedule 14A of Regulation 14A pursuant to the Securities
and Exchange Act of 1934 Act, as amended (1934 Act), or any
successor thereto, whether or not any class of securities of
the Corporation 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 Corporation representing 20% or more of the
combined voting power of the Corporation's then outstanding
securities; or (iii) during any period of thirty-six
consecutive months, individuals who at the beginning of such
period constitute the Board of Directors of the Corporation
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 Corporation, and the
outstanding shares of common stock of the
Corporation, 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) 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.
g) Disability. Termination by the Corporation 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 Employers or any
subsidiary or, if no such plan applies, which would qualify
the Executive for disability benefits under the Federal Social
Security System.
h) 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 Corporation based on:
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(i) Without the Executive's express written consent, the
failure to elect or to re-elect or to appoint or to
re-appoint the Executive to the offices of Vice
Chairman, President and Chief Operating Officer of
the Employers or a material adverse change made by
the Employers in the Executive's functions, duties or
responsibilities as Vice Chairman, President and
Chief Operating Officer of the Employers;
(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 principal executive office of either of the
Employers is relocated outside of the Munster,
Indiana area or, without the Executive's express
written consent, either of the Employers require the
Executive to be based anywhere other than an area in
which the Employers' principal executive office is
located, except for required travel on business of
the Employers to an extent substantially consistent
with the Executive's present business travel
obligations;
(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 (j) below;
or
(v) The failure by the Corporation to obtain the
assumption of and agreement to perform this Agreement
by any successor.
i) IRS. "IRS" shall mean the Internal Revenue Service.
j) Notice of Termination. Any purported termination of the
Executive's employment by the Corporation 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 the 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 Corporation's
termination of the Executive's employment for Cause, which
shall be effective immediately; and (iv) is given in the
manner specified in Section 11 hereof.
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k) Retirement. "Retirement" shall mean voluntary termination by
the Executive after the Executive attains the age fifty-five
(55), with at least five years of active service.
2) TERM OF EMPLOYMENT.
a) The Corporation hereby employs the Executive as Vice Chairman,
President and Chief Operating Officer, and the Executive
hereby accepts said employment and agrees to render such
services to the Corporation on the terms and conditions set
forth in this Agreement. The term of this Agreement shall be a
period of three years commencing as of the date hereof (the
"Commencement Date"), subject to earlier termination as
provided herein. Beginning on the day following the
Commencement Date, and on each day thereafter, the term of
this Agreement shall be extended for a period of one day in
addition to the then-remaining term, provided that the
Corporation has not given notice to the Executive in writing
at least 60 days prior to such day that the term of this
Agreement shall not be extended further. Reference herein to
the term of this Agreement shall refer to both such initial
term and such extended terms. The Board of Directors of the
Corporation shall review on a periodic basis (and no less
frequently than annually) whether to permit further extensions
of the term of this Agreement. As part of such review, the
Board of Directors shall consider all relevant factors,
including the Executive's performance hereunder, and shall
either expressly approve further extensions of the time of
this Agreement or decide to provide notice to the contrary.
b) During the term of this Agreement, the Executive shall perform
such executive services for the Corporation as may be
consistent with his titles and from time to time assigned to
him by the Corporation's Board of Directors. The Executive
further agrees to serve without additional compensation as an
officer and director of any of the Corporation'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 Corporation may assign the Executive to one
of its subsidiaries for payroll purposes.
3) LOYALTY, CONFIDENTIALITY AND NON-COMPETITION
a) The Executive shall devote his or her full time and best
efforts to the performance of his employment under this
Agreement. During the term of this Agreement, 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 Corporation 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 a period of one year from the date of voluntary
termination, or termination for Cause, 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 Corporation
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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.
c) For purposes of this Agreement, directly or indirectly
engaging in any business activity in competition with the
business or affairs of the Corporation 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 Executive 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
Executive from investing or limit Executive's right to invest
his surplus funds in real estate.
d) All information relating to business of the Employers
including, but not limited to, that business obtained or
serviced by Executive 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
Employers. 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
Employers, and Executive shall return all material containing
such information to the Employers upon their request or upon
termination of employment. Executive also agrees that he or
she will not utilize the confidential information or trade
secrets of the Employers, either directly or indirectly, for
any purposes except performance of the Executive's
responsibilities and in furtherance of the Employers'
business, unless otherwise expressly authorized by the
Employers in writing in advance.
e) Executive agrees that, during his employment, and for a period
of three (3) years 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 Employers' past or
current customers or clients for the benefit of
anyone other than the Employers or their affiliates;
ii) will not divulge the names of any of the Employers'
past or then current customers to any other person,
corporation or entity;
iii) will not divulge to anyone, except the Employers or
their representatives, any information regarding
their management strategies, marketing information or
goals, policies and/or other information regarding
the affairs of the Employer, all of which Executive
is hereby obligated to keep secret, however and
whenever such information comes to his or her
attention; and
iv) will not, either directly or indirectly, induce or
solicit any person to leave the employ of the
Employers.
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4) COMPENSATION AND BENEFITS.
a) The Employers shall compensate and pay the Executive for his
services during the term of this Agreement at a minimum base
salary of $304,460 per year ("Base Salary"), which may be
increased from time to time in such amounts as may be
determined by the Boards of Directors of the Employers 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 Boards of Directors
of the Employers.
b) During the term of this Agreement, 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 Employers, to the extent commensurate with his then duties
and responsibilities, as fixed by the Boards of Directors of
the Employers. The Corporation 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 Corporation 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 Corporation. 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 the term of this Agreement, the Executive shall be
entitled to paid annual vacation in accordance with the
policies as established from time to time by the Boards of
Directors of the Employers. 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
Boards of Directors of the Employers.
d) In the event the Executive's employment is terminated due to
Disability or Retirement, the Employers shall provide
continued life, medical, dental and disability coverage
substantially identical to the coverage maintained by the
Employers for the Executive immediately prior to his
termination. Such coverage such spouse attains shall cease
upon the expiration of the remaining term of this Agreement.
e) In the event of the Executive's death during the term of this
Agreement, the Employers shall provide to the Executive's
spouse continued medical and dental coverage substantially
identical to the coverage maintained by the Employers for the
Executive immediately prior to his death until such spouse
attains the age of 65.
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f) The Executive's compensation, benefits and expenses shall be
paid by the Corporation and the Bank in the same proportion as
the time and services actually expended by the Executive on
behalf of each respective Employer.
g) During the term of the Agreement, the Employers 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.
h) During the term of this Agreement, the Employers shall provide
to the Executive, at the Employer's cost, all perquisites
which other senior executives of the Company are generally
entitled to receive, including the payment of his or her
annual dues at the Briar Ridge Country Club.
5) EXPENSES. The Employers 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
Employers, 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 Boards of Directors of the
Employers. If such expenses are paid in the first instance by the
Executive, the Employers shall reimburse the Executive therefor.
6) TERMINATION.
a) The Corporation 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
by the Corporation for Cause or (ii) the Executive terminates
his employment hereunder other than for Disability,
Retirement, death or Good Reason, the Executive shall have no
right pursuant to this Agreement to compensation or other
benefits for any period after the applicable Date of
Termination.
c) In the event that the Executive's employment is terminated as
a result of Disability, Retirement or the Executive's death
during the term of this Agreement, the Executive shall have no
right pursuant to this Agreement to compensation or other
benefits for any period after the applicable Date of
Termination, except as provided for in Sections 4(d) and 4(e)
hereof.
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d) In the event that (i) the Executive's employment is terminated
by the Corporation 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 Corporation, 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 Corporation shall:
i) pay to the Executive, in either thirty-six (36) 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 three (3)
times that portion of the Executive's Average Annual
Compensation paid by the Corporation, and
ii) 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 Corporation in which the
Executive was entitled to participate immediately
prior to the Date of Termination (excluding (x) stock
option and restricted stock plans of the Employers,
(y) bonuses and other items of cash compensation
included in Average Annual Compensation, and (z)
other benefits, or portions thereof, included in
Average Annual Compensation), provided that in the
event that the Executive's participation in any plan,
program or arrangement as provided in this
subparagraph (B) is barred, or during such period any
such plan, program or arrangement is discontinued or
the benefits thereunder are materially reduced, the
Corporation 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.
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7) PAYMENT OF ADDITIONAL BENEFITS UNDER CERTAIN CIRCUMSTANCES.
a) If the payments and benefits pursuant to Section 4 hereof,
either alone or together with other payments and benefits
which the Executive has the right to receive from the
Employers (including, without limitation, the payments and
benefits which the Executive would have the right to receive
from the Bank pursuant to Section 4 of the Agreement between
the Bank and the Executive dated this even date ("Bank
Agreement"), before giving effect to any reduction in such
amounts pursuant to Section 7 of the Bank Agreement), would
constitute a "parachute payment" as defined in Section
280G(b)(2) of the Code (the "Initial Parachute Payment," which
includes the amounts paid pursuant to clause (A) below), then
the Corporation shall pay to the Executive, in thirty-six (36)
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 amount equal to the sum
of the following:
i) the amount by which the payments and benefits that
would have otherwise been paid by the Bank to the
Executive pursuant to Section 4 of the Bank Agreement
are reduced by the provisions of Section 7 of the
Bank Agreement;
ii) twenty (20) percent (or such other percentage equal
to the tax rate imposed by Section 4999 of the Code)
of the amount by which the Initial Parachute Payment
exceeds the Executive's "base amount" from the
Employers, as defined in Section 280G(b)(3) of the
Code, with the difference between the Initial
Parachute Payment and the Executive's base amount
being hereinafter referred to as the "Initial Excess
Parachute Payment";
iii) such additional amount (tax allowance) as may be
necessary to compensate the Executive for the payment
by the Executive of state and federal income and
excise taxes on the payment provided under clause (B)
above and on any payments under this clause (C). In
computing such tax allowance, the payment to be made
under clause (B) above shall be multiplied by the
"gross up percentage" ("GUP"). The GUP shall be
determined as follows:
GUP = Tax Rate / 1 - Tax Rate
iv) Tax Rate
The Tax Rate for purposes of computing the GUP shall
be the highest marginal federal and state income and
employment-related tax rate, including any applicable
excise tax rate, applicable to the Executive in the
year in which the payment under clause (B) above is
made.
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v) Notwithstanding the foregoing, if it shall
subsequently be determined in a final judicial
determination or a final administrative settlement to
which the Executive is a party that the actual excess
parachute payment as defined in Section 280G(b)(1) of
the Code is different from the Initial Excess
Parachute Payment (such different amount being
hereafter referred to as the "Determinative Excess
Parachute Payment"), then the Corporation's
independent tax counsel or accountants shall
determine the amount (the "Adjustment Amount") which
either the Executive must pay to the Corporation or
the Corporation must pay to the Executive in order to
put the Executive (or the Corporation, as the case
may be) in the same position the Executive (or the
Corporation, as the case may be) would have been if
the Initial Excess Parachute Payment had been equal
to the Determinative Excess Parachute Payment. In
determining the Adjustment Amount, the independent
tax counsel or accountants shall take into account
any and all taxes (including any penalties and
interest) paid by or for the Executive or refunded to
the Executive or for the Executive's benefit. As soon
as practicable after the Adjustment Amount has been
so determined, the Corporation shall pay the
Adjustment Amount to the Executive or the Executive
shall repay the Adjustment Amount to the Corporation,
as the case may be.
b) In each calendar year that the Executive receives payments of
benefits under this Section 7, the Executive shall report on
his state and federal income tax returns such information as
is consistent with the determination made by the independent
tax counsel or accountants of the Corporation as described
above. The Corporation shall indemnify and hold the Executive
harmless from any and all losses, costs and expenses
(including without limitation, reasonable attorneys' fees,
interest, fines and penalties) which the Executive incurs as a
result of so reporting such information. The Executive shall
promptly notify the Company in writing whenever the Executive
receives notice of the institution 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 Section 7 is being reviewed
or is in dispute. The Corporation 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 the Executive to resolve any such proceeding
with respect to any matter unrelated to amounts paid or
payable pursuant to this Section) and the Executive shall
cooperate fully with the Corporation in any such proceeding.
The Executive shall not enter into any compromise or
settlement or otherwise prejudice any rights the Corporation
may have in connection therewith without the prior consent of
the Corporation.
8) MITIGATION; EXCLUSIVITY OF BENEFITS.
a) The Executive shall not be required to mitigate the amount of
any benefits hereunder by seeking other employment or
otherwise, nor shall the amount of any such benefits be
reduced by any compensation earned by the Executive as a
result of employment by another employer after the Date of
Termination or otherwise.
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b) The specific arrangements referred to herein are not intended
to exclude any other benefits which may be available to the
Executive upon a termination of employment with the Employers
pursuant to employee benefit plans of the Employers or
otherwise.
9) WITHHOLDING. All payments required to be made by the Corporation
hereunder to the Executive shall be subject to the withholding of such
amounts, if any, relating to tax and other payroll deductions as the
Corporation may reasonably determine should be withheld pursuant to any
applicable law or regulation.
10) ASSIGNABILITY. The Corporation 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 Corporation
may hereafter merge or consolidate or to which the Corporation 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 Corporation
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.
11) 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:
a) To the Corporation: Secretary
CFS Bancorp, Inc.
707 Ridge Road Munster, Indiana 46321
b) To the Bank: Secretary
Citizens Financial Services, FSB
707 Ridge Road
Munster, Indiana 46321
c) To the Executive: James W. Prisby
1211 Royal Dublin Lane
Dyer, Indiana 46311
12) 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 Corporation 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
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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.
13) 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.
14) NATURE OF OBLIGATIONS. Nothing contained herein shall create or require
the Corporation 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 Corporation hereunder,
such right shall be no greater than the right of any unsecured general
creditor of the Corporation.
15) 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.
16) 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.
17) 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.
18) REGULATORY PROHIBITION. 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. Section 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 regardless of whether the Executive remains in the
employ of the Corporation following such termination. 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.
19) PAYMENT OF COSTS AND LEGAL FEES AND REINSTATEMENT OF BENEFITS. In the
event any dispute or controversy arising under or in connection with
the Executive's termination is resolved in favor of the Executive,
whether by judgment, arbitration or settlement, the Executive shall be
entitled to the payment of (a) all legal fees incurred by the Executive
in resolving such dispute or controversy, and (2) any back-pay,
including Base Salary, bonuses and any other cash compensation, fringe
benefits and any compensation and benefits due to the Executive under
this Agreement.
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20) INDEMNIFICATION. The Corporation shall provide the Executive (including
his heirs, executors and administrators) with coverage under a standard
directors' and officers' liability insurance policy at its expense, or
in lieu thereof, shall indemnify the Executive (and his heirs,
executors and administrators) to the fullest extent permitted under
Delaware law against all expenses and liabilities reasonably incurred
by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a
director or officer of the Corporation (whether or not he continues to
be a director or officer at the time of incurring such expenses or
liabilities). Such expenses and liabilities shall include, but shall
not be limited to, judgments, court costs and attorneys' fees and the
cost of reasonable settlements.
21) ENTIRE AGREEMENT. This Agreement embodies the entire agreement between
the Corporation and the Executive with respect to the matters agreed to
herein. All prior agreements between the Corporation and the Executive
with respect to the matters agreed to herein are hereby superseded and
shall have no force or effect. Notwithstanding the foregoing, nothing
contained in this Agreement shall affect the agreement of even date
being entered into between the Bank and the Executive.
IN WITNESS WHEREOF, this Agreement has been executed as of the
date first above written.
Attest: CFS BANCORP, INC.
/s/ Monica F. Sullivan By: /s/ John T. Stephens
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EXECUTIVE
/s/ James W. Prisby
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James W. Prisby
13