EXHIBIT 10.25
EMPLOYMENT
AGREEMENT
THIS AGREEMENT
(“Agreement”) is entered into as of the 29
th
day of November, 2004,
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”) – collectively referred to herein as the
“Employer” – and FREDERICK R. KULIKOWSKI
(“Kulikowski”).
R E C I T A L S:
A. The Corporation and the Bank wish
to employ Kulikowski as President and Chief Operating Officer of
the Corporation and of the Bank on the terms set forth below, and
Kulikowski desires to accept such employment.
NOW, THEREFORE, the Corporation, the
Bank, and Kulikowski hereby agree to the following terms of
employment:
1. Employment and Term of
Agreement . The Employer agrees to employ Kulikowski,
and Kulikowski agrees to be employed by the Employer, in the
capacity of President and Chief Operating Officer of the
Corporation and of the Bank for a period of three (3) years
beginning on the date of this Agreement and on the terms stated in
this Agreement. In such position, Kulikowski shall be subject to
the direction of the Chairman and Chief Executive Officer and of
the respective Boards of Directors of the Corporation and of the
Bank.
2. Time and Effort
. To the best of his abilities, Kulikowski shall diligently
and conscientiously devote his full working time and energies and
best efforts to the faithful discharge of his employment duties
under this Agreement.
3. Compensation
.
a. During the term of this
Agreement, the Employer shall pay to Kulikowski a semi-monthly base
salary at a rate that is not less than Kulikowski’s starting
semi-monthly base salary. The base salary may be increased from
time to time as the Compensation Committee of the Board of
Directors of the Corporation may approve.
b. Kulikowski shall be entitled to
participate in all benefits that are made available to executive
officers of the Employer as of the date of this Agreement, and as
may be made available to such executive officers from time to time
in the future by the respective Boards of Directors of the
Corporation and of the Bank, 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, and paid
time off (PTO)]; and (iii) any perquisite program.
Kulikowski’s participation in and rights and obligations
under any such plan or program shall be subject to each of the
terms and conditions of the pertinent plan or program, including
the eligibility terms and conditions of the pertinent plan or
program.
4. Termination of
Employment and Payment of Severance .
a. The Employer may terminate
Kulikowski’s employment at any time. However, if the Employer
terminates Kulikowski’s employment at any time during the
term of this Agreement for any reason other than cause, as defined
below, the Employer will pay or provide to Kulikowski all
compensation and benefits as described in Section 3 that have
become due through the effective date of termination and, subject
to the provisions of Section 7, the Employer will also pay a
severance payment to Kulikowski by continuing Kulikowski’s
base salary, less applicable withholdings, for any unexpired
portion of the three-year term of this Agreement.
b. Kulikowski shall have no right to
receive any severance payment under this Agreement if his
employment is terminated for cause. Termination “for
cause” shall mean termination because of (1) any act of
personal dishonesty, (2) incompetence, (3) willful misconduct, (4)
breach of fiduciary or other duty
involving personal profit, (5)
intentional failure to perform assigned duties, (6) willful
violation of any law, rule or regulation (other than traffic
violations), (7) willful violation of any final cease-and-desist
order, (8) any circumstance described in subsection 5.b. or 5.c or
5.d. below, (9) excessive use of alcohol or use of illegal drugs,
interfering with Kulikowski’s satisfactory performance under
this Agreement, continuing after warning; (10) indictment, filing
of an information, an arraignment or a conviction of a felony or of
any crime involving moral turpitude, fraud or misrepresentation,
(11) commission by Kulikowski of any willful or intentional act
that injures or could reasonably be expected to injure the
reputation, business or business relationships of the Employer, or
12) any material breach of any provision of this
Agreement.
5. Regulatory
Provisions .
a. If Kulikowski 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) and (g)(1)] or pursuant to other regulatory authority,
the Employer’s obligations under this Agreement shall be
suspended as of the date of receipt of the notice unless stayed by
appropriate proceedings. If the charges in the notice are
dismissed, the Employer may in its discretion (i) pay Kulikowski
all or part of the compensation withheld while the Employer’s
contract obligations were suspended; and (ii) reinstate (in whole
or in part) any of the Employer’s obligations which were
suspended.
b. If Kulikowski 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)] or pursuant to other regulatory authority,
all obligations of the Employer 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,
12 U.S.C. § 1813(x)(1)], all obligations of the Employer
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. Except to the extent the Employer
determines that continuation of this Agreement is necessary for the
continued operation of the Bank, all obligations of the Employer
under this Agreement shall be terminated:
i. At any time that the Federal
Deposit Insurance Corpora
