Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s employment under this Agreement is terminated by the Company, without the Employee’s prior written consent and for a reason other than Just Cause, in connection with or within 12 months after any change in control of the Company, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “base amount” as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “Maximum Amount”), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change in control. Said sum shall be paid in one lump sum cash payment within [45] days of the date of the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death. (2) In the event that the Employee and the Company jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce the lump sum amount described in Section 11(a)(1) as required so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. (3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company which should not have been made (“Overpayment”) or that additional payments will not have been made by the Company which should have been made (“Underpayment”), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
Appears in 6 contracts
Samples: Employment Agreement (Flagstar Bancorp Inc), Employment Agreement (Flagstar Bancorp Inc), Employment Agreement (Flagstar Bancorp Inc)
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s employment under this Agreement is terminated by the Company, without the Employee’s prior written consent and for a reason other than Just Cause, in connection with or within 12 months after any change in control of the Company, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “base amount” as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “Maximum Amount”), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change in control. Said sum shall be paid in one lump sum cash payment within [45] days of six months from the date of the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 99 hereof; provided, however, that if the Employee dies prior to payment, the payment will be made to the Employee’s beneficiaries on the first of the month following the Employee’s death, if sooner. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce the lump sum amount described in Section 11(a)(1) as required so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company which should not have been made (“Overpayment”) or that additional payments will not have been made by the Company which should have been made (“Underpayment”), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
Appears in 3 contracts
Samples: Employment Agreement (Flagstar Bancorp Inc), Employment Agreement (Flagstar Bancorp Inc), Employment Agreement (Flagstar Bancorp Inc)
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s employment under this Agreement is terminated by the Company, without the Employee’s prior written consent and for a reason other than Just Cause, in connection with or within 12 months after any change in control of the Company, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “base amount” as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “Maximum Amount”), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change in control. Said sum shall be paid in one lump sum cash payment within [45] days of six months from the date of the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 99 hereof; provided, however, that if the Employee dies prior to payment, the payment will be made to the Employee’s beneficiaries on the first of the month following the Employee’s death, if sooner. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce the lump sum amount described in Section 11(a)(1Section
(a) (1) as required so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company which should not have been made (“Overpayment”) or that additional payments will not have been made by the Company which should have been made (“Underpayment”), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
Appears in 3 contracts
Samples: Employment Agreement (Flagstar Bancorp Inc), Employment Agreement (Flagstar Bancorp Inc), Employment Agreement (Flagstar Bancorp Inc)
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s 's employment under this Agreement is terminated by the CompanyBank, without the Employee’s 's prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change Change in control Control of the CompanyBank, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “his "base amount” " as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “"Maximum Amount”"), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change Change in controlControl. Said sum shall be paid in one lump sum cash payment within [45] ten (10) days of the date such termination. This paragraph would not apply to a termination of employment due to death, disability or voluntary termination by the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company Bank jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which he is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make his determination within ten business days after receiving a written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the earlier of the Bank's receipt of the Employee's determination pursuant to this paragraph or the Bank's determination in lieu of a determination by the Employee, the Bank shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company Bank which should not have been made (“"Overpayment”") or that additional payments will not have been made by the Company Bank which should have been made (“"Underpayment”"), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company Bank together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(4) A "Change in Control" shall be deemed to have occurred if:
(i) as a result of, or in connection with, any public offering, tender offer or exchange offer, merger or other business combination, sale of assets or contested election, any combination of the foregoing transactions, or any similar transaction, the persons who were non-employee directors of the Bank or a holding company controlling the Bank before such transaction cease to constitute a majority of the Board of Directors of the Bank or such holding company or any successor thereof;
(ii) the Bank or a holding company controlling the Bank transfers substantially all of its assets to another corporation which is not a wholly owned subsidiary of the Bank or such holding company;
(iii) the Bank or a holding company controlling the Bank sells substantially all of the assets of a subsidiary or affiliate which, at the time of such sale, is the principal employer of the Employee; or
(iv) the Bank or a holding company controlling the Bank is merged or consolidated with another corporation and, as a result of the merger or consolidation, less than fifty one percent (51%) of the outstanding voting securities of the surviving or resulting corporation is owned in the aggregate by the former stockholders of the Bank or of such holding company controlling the Bank. Notwithstanding the foregoing, but only to the extent required under federal banking law, the amount payable under Subsection(a) of this Section 11 shall be reduced to the extent that on the date of the Employee's termination of employment, the amount payable under Subsection(a) of this Section 11 exceeds the limitation on severance benefits that is set forth in Regulatory Bulletin 27a of the Office of Thrift Supervision, as in effect on the Effective Date.
Appears in 2 contracts
Samples: Employment Agreement (River Valley Bancorp), Employment Agreement (River Valley Bancorp)
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s employment under this Agreement is terminated by the CompanyBank, without the Employee’s prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change Change in control Control of the Bank or the Company, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s his “base amount” as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the “Code”) and regulations promulgated thereunder (the “Maximum Amount”), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change Change in controlControl. Said Subject to Section 11(a)(2) of this Agreement, said sum shall be paid in one lump sum cash payment within [45] ten (10) days of the date such termination. Subject to Section 11(b) of this Agreement, this paragraph would not apply to a termination of employment due to death, Disability or voluntary termination by the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company Bank jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which he is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make his determination within ten (10) business days after receiving a written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five (5) business days of the earlier of the Bank’s receipt of the Employee’s determination pursuant to this paragraph or the Bank’s determination in lieu of a determination by the Employee, the Bank shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company Bank which should not have been made (“Overpayment”) or that additional payments will not have been made by the Company Bank which should have been made (“Underpayment”), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company Bank together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
Appears in 1 contract
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s employment under this Agreement is terminated by the CompanyBank, without the Employee’s prior written consent and for a reason other than Just Cause, in connection with upon the occurrence of or within 12 twenty-four (24) months after any change Change in control Control of the Bank or the Company, the Employee shall, subject to paragraph (2) of this Section 11(a10(a), be paid an amount equal to three (3) times the difference between sum of (i) the product Employee’s Base Salary provided pursuant to Section 2 hereof, as in effect on the date of 2.99 such Change in Control, and (ii) the highest rate of bonus awarded to the Employee at any time during the prior five (5) years. In addition, the Employee shall be entitled to a lump sum payment in an amount equal to the present value (calculated using a discount rate of equal to 120% of the applicable Federal rate determined under Section 1274(d) of the Code, compounded semi-annually) of the Bank’s contributions that would have been made on Employee’s behalf under the Bank’s tax-qualified retirement plans (including the 401(k) Plan, the profit sharing plan and the employee stock ownership plan) if he had continued working for the Bank for a thirty-six (36) month period following his termination of employment earning the Base Salary that would have been achieved during the remaining unexpired term of this Agreement and making the maximum amount of employee contributions permitted, if any, under such plans. Upon such qualifying termination of employment following a Change in Control, the Employee will also immediately vest in any outstanding unvested stock options or shares of restricted stock of the Company that have been awarded to him and Employee shall be entitled to the continued health benefits set forth in Section 4(a) hereof. All amounts payable to the Employee in cash shall be paid in one lump sum within thirty (30) days following the Employee’s date of termination. Moreover, in the event of such qualifying termination of employment occurring on or after a Change in Control, the Bank shall transfer ownership to Employee of the automobile provided for Employee’s use in effect as of his date of termination, free and clear of all liens, at no cost to Employee within thirty (30) days following such termination.
(2) Notwithstanding the foregoing paragraph (a)(1), in the event that the Bank’s independent accountants or legal counsel determine that the total payments receivable under this Agreement hereof, when added to any other payments contingent on a Change in Control of the Bank or the Company, is equal to or greater than three (3) times the Employee’s “base amount” as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “Maximum Amount”), and (ii) the sum of any other then such payments payable under this Agreement shall be reduced to avoid an “excess parachute payments (payment,” as defined under in Section 280G(b)(2280G(b)(1) of the Code. Nothing in this Section 10(a)(2) that shall result in the Employee receives on account of the change in control. Said sum shall be paid in one lump sum cash payment within [45] days of the date of the Employee’s termination, and shall be paid in lieu of the payment reduction of any payments or benefits under to which Employee may be entitled upon termination of employment and/or a Change in Control other than as specified in this Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination10(a)(2), or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company jointly determine and agree that the total parachute payments receivable reduction in benefits payable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce the lump sum amount described in Section 11(a)(1) as required so that the total parachute payments to be received by the Employee do not exceed the Maximum Amountthis Agreement below zero.
(3) As The term “Change in Control” shall mean an event of a result of uncertainty nature that: (i) would be required to be reported in application of Section 280G response to Item 1(a) of the Code 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 1934 (the “Exchange Act”); or (ii) results in a Change in Control of the Bank or the Company within the meaning of the Home Owners’ Loan Act, as amended (“HOLA”), and applicable rules and regulations promulgated thereunder, as in effect at the time of payment hereunder, it is possible that the Change in Control; or (iii) without limitation such payments will have been made by the Company which should not have been made (“Overpayment”) or that additional payments will not have been made by the Company which should have been made (“Underpayment”), a Change in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan 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 Company representing 25% or more of the combined voting power of Company’s outstanding securities except for any securities purchased by the Bank’s employee stock ownership plan or trust; or (b) individuals who constitute the Company’s Board 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 of the directors comprising the Incumbent Board, or whose nomination for election by the 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 Company or similar transaction in which the Bank or Company is not the surviving institution occurs; or (d) a proxy statement soliciting proxies from stockholders of the Company, by someone other than the current management of the Company, seeking stockholder approval of a plan of reorganization, merger or consolidation of the Company 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 are to be exchanged for or converted into cash or property or securities not issued by the Company; or (e) a tender offer is made for 25% or more of the voting securities of the Company and the shareholders owning beneficially or of record 25% or more of the outstanding securities of the Company have tendered or offered to sell their shares pursuant to such tender offer and such tendered shares have been made and accepted by the tender offeror. Notwithstanding the foregoing, solely to the event necessary to comply with Code Section 409A, in no amount event shall the foregoing events shall be payable by the Employee to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under considered a “Change in Control” unless it constitutes a “change in control” as defined in accordance with Section 1 and Section 4999 409A of the Code or generate a refund of such taxes. In the event that the Employee and the Company determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Codefinal regulations promulgated thereunder.
Appears in 1 contract
Change in Control; Involuntary Termination. (1) Notwithstanding ------------------------------------------ any provision herein to the contrary, if the Employee’s 's employment under this Agreement is terminated by the Company, without the Employee’s 's prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change in control of the Bank or the Company, the Employee shall, subject to paragraph Paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “her "base amount” " as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “"Maximum Amount”"), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change in control. Said sum shall be paid in one lump sum cash payment within [45] ten (10) days of the date such termination. This paragraph would not apply to a termination of employment due to death, Disability or voluntary termination by the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which she is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make her determination within ten business days after receiving a written request from the Company, the Company may make such determination, and shall notify the Employee promptly thereof. Within five business days of the earlier of the Company's receipt of the Employee's determination pursuant to this paragraph or the Company's determination in lieu of a determination by the Employee, the Company shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company which should not have been made (“"Overpayment”") or that additional payments will not have been made by the Company which should have been made (“"Underpayment”"), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the -- ------ Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(4) The term "change in control" shall mean any one of the following events: (1) the acquisition of ownership, holding or power to vote more than 25% of the Bank's or the Company's voting stock, (2) the acquisition of the ability to control the election of a majority of the Bank's or the Company's directors, (3) the acquisition of a controlling influence over the management or policies of the Bank or the Company by any person or by persons acting as a "group" (within the meaning of Section 13(d) of the Securities Exchange Act of 1934), (4) the acquisition of control of the Bank or the Company within the meaning of 12 C.F.R. Part 574 or its applicable equivalent (except in the case of (1), (2), (3) and (4) hereof, ownership or control of the Bank by the Company itself shall not constitute a "change in control"), or (5) during any period of two consecutive years, individuals who at the beginning of such period (the "Continuing Directors") constitute the Board of Directors of the Company or the Bank (the "Existing Board") cease for any reason to constitute at least a majority thereof, provided that any individual whose election or nomination for election as a member of the Existing Board was approved by a vote of at least a majority of the Continuing Directors then in office shall be considered a Continuing Director. For purposes of this subparagraph only, the term "person" refers to an individual or a corporation, partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization or any other form of entity not specifically listed herein.
Appears in 1 contract
Samples: Employment Agreement (First Lancaster Bancshares Inc)
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s 's employment under this Agreement is terminated by the CompanyBank, without the Employee’s 's prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change in control of the Bank or Heartland Bancshares, Inc. (the "Company"), the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “his "base amount” " as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “"Maximum Amount”"), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change in control. Said sum shall be paid in one lump sum cash payment within [45] ten (10) days of the date such termination. This paragraph would not apply to a termination of employment due to death, Disability or voluntary termination by the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company Bank jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which he is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make his determination within ten business days after receiving a written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the earlier of the Bank's receipt of the Employee's determination pursuant to this paragraph or the Bank's determination in lieu of a determination by the Employee, the Bank shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company Bank which should not have been made (“"Overpayment”") or that additional payments will not have been made by the Company Bank which should have been made (“"Underpayment”"), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the -- ------ Employee shall repay to the Company Bank together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
Appears in 1 contract
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s 's employment under this Agreement is terminated by the CompanyBank, without the Employee’s 's prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change Change in control Control of the CompanyBank, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “his "base amount” " as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “"Maximum Amount”"), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change Change in controlControl. Said sum shall be paid in one lump sum cash payment within [45] ten (10) days of the date such termination. This paragraph would not apply to a termination of employment due to death, disability or voluntary termination by the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company Bank jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which he is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make his determination within ten business days after receiving a written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the earlier of the Bank's receipt of the Employee's determination pursuant to this paragraph or the Bank's determination in lieu of a determination by the Employee, the Bank shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company Bank which should not have been made (“"Overpayment”") or that additional payments will not have been made by the Company Bank which should have been made (“"Underpayment”"), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company Bank together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
Appears in 1 contract
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s employment under this Agreement is terminated by the CompanyBank, without the Employee’s prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change Change in control Control of the Bank or the Company, the Employee shall, subject to paragraph (2) of this Section 11(a10(a), be paid an amount equal to three (3) times the difference between sum of (i) the product Employee’s Base Salary provided pursuant to Section 2 hereof, as in effect on the date of 2.99 such Change in Control, and (ii) the highest rate of bonus awarded to the Employee at any time during the prior three years. In addition, the Employee shall be entitled to a lump sum payment in an amount equal to the present value of the Bank’s contributions that would have been made on Employee’s behalf under the Bank’s tax-qualified retirement plans (including the 401(k) Plan, the profit sharing plan and the employee stock ownership plan) if he had continued working for the Bank for a thirty-six (36) month period following his termination of employment earning the Base Salary that would have been achieved during the remaining unexpired term of this Agreement and making the maximum amount of employee contributions permitted, if any, under such plans. Upon termination of employment following a Change in Control, the Employee will immediately vest in any outstanding unvested stock options or shares of restricted stock of the Company that have been awarded to him. All amounts payable to the Employee in cash shall be paid in one lump sum (adjusted for the present value of such accelerated payment) within thirty (30) days following such termination, or if Employee is a Specified Employee and the following is required by Code Section 409A, on the first business day of the seventh month following Separation from Service. In the event of termination of employment following a Change in Control, Employee shall have continued use of an automobile provided by the Bank and shall also receive reimbursement for his membership fees and expenses associated with his use of the Midlothian Country Club for a period of twenty-four (24) months following termination of employment.
(2) Notwithstanding the foregoing paragraph (a)(1), in the event that the Bank’s independent accountants determine that the total payments receivable under Section 10(a)(1) hereof, when added to any other payments contingent on a Change in Control of the Bank or the Company, exceed 2.999 times the Employee’s “base amount” as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “Maximum Amount”), and (ii) the sum of any other then such payments shall be reduced to avoid an “excess parachute payments (payment”, as defined under in Section 280G(b)(2280G(b)(1) of the Code) that the . The Employee receives on account shall determine which and how much, if any, of the change in control. Said sum payments to which he is entitled shall be paid in one lump sum cash payment within [45] days of the date of the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, eliminated or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce the lump sum amount described in Section 11(a)(1) as required reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount.
(3) As . If the Employee does not make his determination within ten business days after receiving a result of uncertainty in application of Section 280G written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the Code at earlier of the time Bank’s receipt of payment hereunder, it is possible that such payments will have been made the Employee’s determination pursuant to this paragraph or the Bank’s determination in lieu of a determination by the Company which should not have been made (“Overpayment”) or that additional payments will not have been made by the Company which should have been made (“Underpayment”), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank shall pay to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company distribute to or for the benefit of the Employee together with interest at such amounts as are then due the applicable federal rate provided for Employee under this Agreement.
(3) The term “Change in Section 7872(f)(2)(BControl” shall mean an event of a nature that: (i) would be required to be reported in response to Item 1(a) of the Codecurrent 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 1934 (the “Exchange Act”); or (ii) results in a Change in Control of the Bank or the Company within the meaning of the Home Owners’ Loan Act, as amended (“HOLA”), and applicable rules and regulations promulgated thereunder, as in effect at the time of the Change in Control; or (iii) 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 Company representing 25% or more of the combined voting power of Company’s outstanding securities except for any securities purchased by the Bank’s employee stock ownership plan or trust; or (b) individuals who constitute the Company’s Board 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 of the directors comprising the Incumbent Board, or whose nomination for election by the 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 Company or similar transaction in which the Bank or Company is not the surviving institution occurs; or (d) a proxy statement soliciting proxies from stockholders of the Company, by someone other than the current management of the Company, seeking stockholder approval of a plan of reorganization, merger or consolidation of the Company 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 are to be exchanged for or converted into cash or property or securities not issued by the Company; or (e) a tender offer is made for 25% or more of the voting securities of the Company and the shareholders owning beneficially or of record 25% or more of the outstanding securities of the Company have tendered or offered to sell their shares pursuant to such tender offer and such tendered shares have been accepted by the tender offeror. Notwithstanding anything in this paragraph to the contrary, a change in control shall not be deemed to have occurred in the event of a conversion of the Company’s or the Bank’s mutual holding company to stock form, or in connection with any reorganization used to effect such a conversion.
Appears in 1 contract
Change in Control; Involuntary Termination. (1) Notwithstanding ------------------------------------------ any provision herein to the contrary, if the Employee’s 's employment under this Agreement is terminated by the CompanyBank, without the Employee’s 's prior written consent and for a reason other than Just Cause, in connection with or within 12 thirty-six (36) months after any change in control of the Bank or the Company, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “his "base amount” " as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “"Maximum Amount”"), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change in control. Said sum shall be paid in one lump sum cash payment within [45] ten (10) days of the date of the Employee’s such termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company Bank jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which he is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make his determination within ten business days after receiving a written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the earlier of the Bank's receipt of the Employee's determination pursuant to this paragraph or the Bank's determination in lieu of a determination by the Employee, the Bank shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company Bank which should not have been made (“"Overpayment”") or that additional payments will not have been made by the Company Bank which should have been made (“"Underpayment”"), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company Bank -- ------ together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(a) The term "change in control" shall mean any one of the following events: (1) the acquisition of ownership, holding or power to vote more than 25% of the Bank's or the Company's voting stock, (2) the acquisition of the ability to control the election of a majority of the Bank's or the Company's directors, (3) the acquisition of a controlling influence over the management or policies of the Bank or the Company by any person or by persons acting as a "group" (within the meaning of Section 13(d) of the Securities Exchange Act of 1934), (4) the acquisition of control of the Bank or the Company within the meaning of 12 C.F.R. Part 574 or its applicable equivalent (except in the case of (1), (2), (3) and (4) hereof, ownership or control of the Bank by the Company itself shall not constitute a "change in control"), or (5) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company or the Bank (the "Existing Board") (the "Continuing Directors") cease for any reason to constitute at least a majority thereof, provided that any individual whose election or nomination for election as a member of the Existing Board was approved by a vote of at least a majority of the Continuing Directors than in office shall be considered a Continuing Director. For purposes of this subparagraph only, the term "person" refers to an individual or a corporation, partnership, trust, association, joint venture, pool, syndicate, sole propriatorship, unincorporated organization or any other form of entity not specifically listed herein. Notwithstanding the foregoing, but only to the extent required under federal banking law, the amount payable under Subsection (a) of this Section 11 shall be reduced to the extent that on the date of this Employee's termination of employment, the amount payable under Subsection (a) of this Section 11 exceeds the limitation on severance benefits that is set forth is Regulatory Bulletin 27a of the Office of Thrift Supervision, as in effect on the Effective Date. -8-
Appears in 1 contract
Samples: Employment Agreement (Illinois Community Bancorp Inc)
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s employment under this Agreement is terminated by the CompanyBank, without the Employee’s prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change Change in control Control of the Bank or the Company, the Employee shall, subject to paragraph (2) of this Section 11(a10(a), be paid an amount equal to three (3) times the difference between sum of (i) the product Employee’s Base Salary provided pursuant to Section 2 hereof, as in effect on the date of 2.99 such Change in Control, and (ii) the highest rate of bonus awarded to the Employee at any time during the prior three years. In addition, the Bank shall cause to be continued life insurance, non-taxable medical and dental coverage, and disability coverage substantially identical to the coverage maintained by the Bank for the Employee prior to her termination, for a period of thirty-six months from the date of termination. The Employee shall also be entitled to a lump-sum payment in an amount equal to the present value of the Bank’s contributions that would have been made on the Employee’s behalf under the Bank’s tax-qualified retirement plans (including the 401(k) Plan, the profit sharing plan and the employee stock ownership plan) if she had continued working for the Bank for a thirty-six (36) month period following her termination of employment, earning the Base Salary that would have been achieved during the remaining unexpired term of this Agreement and making the maximum amount of employee contributions permitted, if any, under such plans.Upon termination of employment following a Change in Control, the Employee will immediately vest in any outstanding unvested stock options or shares of restricted stock of the Company that have been awarded to her. All amounts payable to the Employee in cash shall be paid in one lump sum (adjusted for the present value of such accelerated payment) within thirty (30) days of such termination or if the Employee is a Specified Employee (within the meaning of Treasury Regulations §1.409A-1(i)) on the first day of the seventh month following the Employee’s termination of employment. Exhibit 99
(2) Notwithstanding the foregoing paragraph (a)(1), in the event that the Bank’s independent accountants determine that the total payments receivable under Section 10(a)(1) hereof, when added to any other payments contingent on a Change in Control of theBank or the Company, exceed 2.999 times the Employee’s “base amount” as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “Maximum Amount”), and (ii) the sum of any other then such payments shall be reduced to avoid an “excess parachute payments (payment”, as defined under in Section 280G(b)(2280G(b)(1) of the Code) that the . The Employee receives on account shall determine which and how much, if any, of the change in control. Said sum payments to which she is entitled shall be paid in one lump sum cash payment within [45] days of the date of the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, eliminated or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce the lump sum amount described in Section 11(a)(1) as required reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount.
(3) As . If the Employee does not make her determination within ten business days after receiving a result of uncertainty in application of Section 280G written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the Code at earlier of the time Bank’s receipt of payment hereunder, it is possible that such payments will have been made the Employee’s determination pursuant to this paragraph or the Bank’s determination in lieu of a determination by the Company which should not have been made (“Overpayment”) or that additional payments will not have been made by the Company which should have been made (“Underpayment”), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank shall pay to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company distribute to or for the benefit of the Employee together with interest at such amounts as are then due the applicable federal rate provided for Employee under this Agreement. In the event that the Employee’s or Bank’s determination to reduce total the payments is in violation of Code Section 7872(f)(2)(B409A, such reduction shall be made pro-rata.
(3) The term “Change in Control” shall mean an event of a nature that: (i) would be required to be reported in response to Item 5.01 of the current report on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the CodeSecurities Exchange Act of 1934 (the “Exchange Act”); or (ii) results in a Change in Control of the Bank or the Company within the meaning of the Home Owners’ Loan Act, as amended (“HOLA”), and applicable rules and regulations promulgated thereunder, as in effect at the time of the Change in Control; or (iii) 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 Company representing 25% or more of the combined voting power of Company’s outstanding securities except for any securities purchased by the Bank’s employee stock ownership plan or trust; or (b) individuals who constitute the Company’s Board 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 of the directors comprising the Incumbent Board, or whose nomination for election by the 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 Company or similar transaction in which the Bank or Company is not the surviving institution occurs; or (d) a proxy statement soliciting proxies from stockholders of the Company, by someone other than the current management of the Company, seeking stockholder approval of a plan of reorganization, merger or consolidation of the Company 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 are to be exchanged for or converted into cash or property or securities not issued by the Company; or (e) a tender offer is made for 25% or more of the voting securities of the Company and the shareholders owning beneficially or of record 25% or more of the outstanding securities of the Company have tendered or offered to sell their shares pursuant to Exhibit 99 such tender offer and such tendered shares have been accepted by the tender offer or. Notwithstanding anything in this paragraph to the contrary, a change in control shall not be deemed to have occurred in the event of a conversion of the Company's or the Bank's mutual holding company to stock form, or in connection with any reorganization used to effect such a conversion.
Appears in 1 contract
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s 's employment under this Agreement is terminated by the CompanyBank, without the Employee’s 's prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change Change in control Control of the CompanyBank, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between between
(i) the product of 2.99 times Employee’s “his "base amount” " as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “"Maximum Amount”"), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change Change in controlControl. Said sum shall be paid in one lump sum cash payment within [45] ten (10) days of the date such termination. This paragraph would not apply to a termination of employment due to death, disability or voluntary termination by the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company Bank jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which he is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make his determination within ten business days after receiving a written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the earlier of the Bank's receipt of the Employee's determination pursuant to this paragraph or the Bank's determination in lieu of a determination by the Employee, the Bank shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company Bank which should not have been made (“"Overpayment”") or that additional payments will not have been made by the Company Bank which should have been made (“"Underpayment”"), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company Bank together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(4) The term "Change in Control" shall mean any one of the following events: If the Bank is in the "mutual" form of organization, a "Change of Control" shall be deemed to have occurred if:
Appears in 1 contract
Change in Control; Involuntary Termination. (1) Notwithstanding ------------------------------------------ any provision herein to the contrary, if the Employee’s 's employment under this Agreement is terminated by the CompanyBank, without the Employee’s 's prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change in control of the Bank or the Company, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “her "base amount” " as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “"Maximum Amount”"), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change in control. Said sum shall be paid in one lump sum cash payment within [45] ten (10) days of the date such termination. This paragraph would not apply to a termination of employment due to death, Disability or voluntary termination by the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company Bank jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which she is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make her determination within ten business days after receiving a written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the earlier of the Bank's receipt of the Employee's determination pursuant to this paragraph or the Bank's determination in lieu of a determination by the Employee, the Bank shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company Bank which should not have been made (“"Overpayment”") or that additional payments will not have been made by the Company Bank which should have been made (“"Underpayment”"), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company Bank -- ------ together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(4) The term "change in control" shall mean any one of the following events: (1) the acquisition of ownership, holding or power to vote more than 25% of the Bank's or the Company's voting stock, (2) the acquisition of the ability to control the election of a majority of the Bank's or the Company's directors, (3) the acquisition of a controlling influence over the management or policies of the Bank or the Company by any person or by persons acting as a "group" (within the meaning of Section 13(d) of the Securities Exchange Act of 1934), (4) the acquisition of control of the Bank or the Company within the meaning of 12 C.F.R. Part 574 or its applicable equivalent (except in the case of (1), (2), (3) and (4) hereof, ownership or control of the Bank by the Company itself shall not constitute a "change in control"), or (5) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company or the Bank (the "Existing Board") (the "Continuing Directors") cease for any reason to constitute at least a majority thereof, provided that any individual whose election or nomination for election as a member of the Existing Board was approved by a vote of at least a majority of the Continuing Directors then in office shall be considered a Continuing Director. For purposes of this subparagraph only, the term "person" refers to an individual or a corporation, partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization or any other form of entity not specifically listed herein. Notwithstanding the foregoing, but only to the extent required under federal banking law, the amount payable under Subsection (a) of this Section 11 shall be reduced to the extent that on the date of the Employee's termination of employment, the amount payable under Subsection (a) of this Section 11 exceeds the limitation on severance benefits that is set forth in Regulatory Bulletin 27a of the Office of Thrift Supervision, as in effect on the Effective Date.
Appears in 1 contract
Samples: Employment Agreement (First Lancaster Bancshares Inc)
Change in Control; Involuntary Termination. (1) Notwithstanding any ------------------------------------------ provision herein to the contrary, if the Employee’s 's employment under this Agreement is terminated by the CompanyBank, without the Employee’s 's prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change in control of the Bank or the Company, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “his "base amount” " as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “"Maximum Amount”"), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change in control. Said sum shall be paid in one lump sum cash payment within [45] ten (10) days of the date such termination. This paragraph would not apply to a termination of employment due to death, Disability or voluntary termination by the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company Bank jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which he is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make his determination within ten business days after receiving a written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the earlier of the Bank's receipt of the Employee's determination pursuant to this paragraph or the Bank's determination in lieu of a determination by the Employee, the Bank shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company Bank which should not have been made (“"Overpayment”") or that additional payments will not have been made by the Company Bank which should have been made (“"Underpayment”"), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company Bank together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(4) The term "change in control" shall mean any one of the following events: (1) the acquisition of ownership, holding or power to vote more than 25% of the Bank's or the Company's voting stock, (2) the acquisition of the ability to control the election of a majority of the Bank's or the Company's directors, (3) the acquisition of a controlling influence over the management or policies of the Bank or the Company by any person or by persons acting as a "group" (within the meaning of Section 13(d) of the Securities Exchange Act of 1934), (4) the acquisition of control of the Bank or the Company within the meaning of 12 C.F.R. Part 574 or its applicable equivalent (except in the case of (1), (2), (3) and (4) hereof, ownership or control of the Bank by the Company itself shall not constitute a "change in control"), or (5) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company or the Bank (the "Existing Board") (the "Continuing Directors") cease for any reason to constitute at least a majority thereof, provided that any individual whose election or nomination for election as a member of the Existing Board was approved by a vote of at least a majority of the Continuing Directors then in office shall be considered a Continuing Director. For purposes of this subparagraph only, the term "person" refers to an individual or a corporation, partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization or any other form of entity not specifically listed herein. Notwithstanding the foregoing, but only to the extent required under federal banking law, the amount payable under Subsection (a) of this Section 11 shall be reduced to the extent that on the date of the Employee's termination of employment, the amount payable under Subsection (a) of this Section 11 exceeds the limitation on severance benefits that is set forth in Regulatory Bulletin 27a of the Office of Thrift Supervision, as in effect on the Effective Date.
Appears in 1 contract
Samples: Employment Agreement (First Lancaster Bancshares Inc)
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s employment under this Agreement is terminated by the CompanyBank, without the Employee’s prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change Change in control Control of the Bank or the Company, the Employee shall, subject to paragraph (2) of this Section 11(a10(a), be paid an amount equal to three (3) times the difference between sum of (i) the product Employee’s Base Salary provided pursuant to Section 2 hereof, as in effect on the date of 2.99 such Change in Control, and (ii) the highest rate of bonus awarded to the Employee at any time during the prior three years. In addition, the Employee shall be entitled to a lump sum payment in an amount equal to the present value of the Bank’s contributions that would have been made on Employee’s behalf under the Bank’s tax-qualified retirement plans (including the 401(k) Plan, the profit sharing plan and the employee stock ownership plan) if he had continued working for the Bank for a thirty-six (36) month period following his termination of employment earning the Base Salary that would have been achieved during the remaining unexpired term of this Agreement and making the maximum amount of employee contributions permitted, if any, under such plans. Upon termination of employment following a Change in Control, the Employee will immediately vest in any outstanding unvested stock options or shares of restricted stock of the Company that have been awarded to him. All amounts payable to the Employee in cash shall be paid in one lump sum (adjusted for the present value of such accelerated payment) within thirty (30) days following such termination, or if Employee is a Specified Employee and the following is required by Code Section 409A, on the first business day of the seventh month following Separation from Service. In the event of termination of employment following a Change in Control, Employee shall have continued use of the automobile provided by the Bank with such automobile allowance as was provided during the most recently completed 12 month period ending on the last day of the month prior to termination of employment and shall continue to receive payment for his Midlothian Country Club for a period of thirty-six (36) months following termination of employment, provided, however that if required by Code Section 409A, no reimbursement for Country Club expenses nor payment of any automobile allowance shall occur during the first six months following Employee’s Separation from Service. All reimbursements withheld during such period shall be paid to Employee on the first day of the seventh month following his Separation from Service. Employee’s use of the automobile can continue during such first six month period, provided that the aggregate value of such use does not exceed Five Thousand Dollars ($5,000.00). Following said thirty-six (36) month period, the Employee shall be permitted to purchase the automobile for its then fair market value.
(2) Notwithstanding the foregoing paragraph (a)(1), in the event that the Bank’s independent accountants determine that the total payments receivable under Section 10(a)(1) hereof, when added to any other payments contingent on a Change in Control of the Bank or the Company, exceed 2.999 times the Employee’s “base amount” as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “Maximum Amount”), and (ii) the sum of any other then such payments shall be reduced to avoid an “excess parachute payments (payment”, as defined under in Section 280G(b)(2280G(b)(1) of the Code) that the . The Employee receives on account shall determine which and how much, if any, of the change in control. Said sum payments to which he is entitled shall be paid in one lump sum cash payment within [45] days of the date of the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, eliminated or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce the lump sum amount described in Section 11(a)(1) as required reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount.
(3) As . If the Employee does not make his determination within ten business days after receiving a result of uncertainty in application of Section 280G written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the Code at earlier of the time Bank’s receipt of payment hereunder, it is possible that such payments will have been made the Employee’s determination pursuant to this paragraph or the Bank’s determination in lieu of a determination by the Company which should not have been made (“Overpayment”) or that additional payments will not have been made by the Company which should have been made (“Underpayment”), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank shall pay to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company distribute to or for the benefit of the Employee together with interest at such amounts as are then due the applicable federal rate provided for Employee under this Agreement.
(3) The term “Change in Section 7872(f)(2)(BControl” shall mean an event of a nature that: (i) would be required to be reported in response to Item 1(a) of the Code.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 1934 (the “Exchange Act”); or (ii) results in a Change in Control of the Bank or the Company within the meaning of the Home Owners’ Loan Act, as amended (“HOLA”), and applicable rules and regulations promulgated thereunder, as in effect at the time of the Change in Control; or (iii) 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 Company representing 25% or more of the combined voting power of Company's outstanding securities except for any securities purchased by the Bank's employee stock ownership plan or trust; or (b) individuals who constitute the Company’s Board 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 of the directors comprising the Incumbent Board, or whose nomination for election by the Company's stockholders was approved by the same nominating committee serving under an Incumbent Board, shall be, for purposes of this clause
Appears in 1 contract
Change in Control; Involuntary Termination. (1) Notwithstanding ------------------------------------------ any provision herein to the contrary, if in the event that (1) the Employee’s 's employment under this Agreement is terminated by the CompanyBank, without the Employee’s 's prior written consent and for a reason other than Just Cause, in connection with or within 12 months after any change in control control, or (2) the Employee voluntarily terminates employment for any reason within the 30-day period beginning on the date of the Companyany change in control, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “his "base amount” " as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “"Maximum Amount”"), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change in control. Said sum shall be paid in one lump sum cash payment within [45] 10 days of the date of the Employee’s such termination, and shall be paid in lieu of the payment of any benefits under Section 99 hereof. The Company Bank shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, insurance for six months after termination of the Employee’s termination's employment, or if the Employee dies within such six months, the Company Bank shall maintain health insurance for the Employee’s immediate family's spouse, at if living, for the same level remainder of Company contribution as prior the six month period. At the election of the Employee, which election is to be made within 30 days of Employee's termination, such payments shall be made in a lump sum or paid monthly during the remaining term of this Agreement following the Employee's termination, and shall be payable, in the event of the Employee's death before full payment is made, to the Employee’s death's surviving spouse, for if any, and otherwise to his estate. In the event that no election is made, payment to the Employee will be made on a six-month period beginning on monthly basis during the Employee’s deathremaining term of this Agreement.
(2) In the event that the Employee and the Company Bank jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which he is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make his determination within 10 business days after receiving a written request from the Bank, the Bank may make such determination and shall notify the Employee promptly thereof. Within five business days of the earlier of the Bank's receipt of the Employee's determination pursuant to this paragraph or the Bank's determination in lieu of a determination by the Employee, the Bank shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company Bank which should not have been made (“"Overpayment”") or that additional payments will not have been made by the Company Bank which should have been made (“"Underpayment”"), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company Bank together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(4) The term "change in control" shall mean any one of the following events: (i) the acquisition of ownership, holding or power to vote more than 25% of the Bank's or the Company's voting stock, (ii) the acquisition of the ability to control the election of a majority of the Bank's or the Company's directors, (iii) the acquisition of a controlling influence over the management or policies of the Bank or the Company by any person or by persons acting as a "group" (within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended), (iv) the acquisition of control of the Bank or the Company within the meaning of 12 C.F.R. Part 574 or its applicable equivalent (except in the case of (i), (ii), (iii) and (iv) hereof, ownership or control of the Bank by the Company itself shall not constitute a "change in control"), or (v) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company or the Bank (the "Existing Board") (the "Continuing Directors") cease for any reason to constitute at least a majority thereof, provided that any individual whose election or nomination for election as a member of the Existing Board was approved by a vote of at least a majority of the Continuing Directors then in office shall be considered a Continuing Director. For purposes of this subparagraph only, the term "person" refers to an individual or a corporation, partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization or any other form of entity not specifically listed herein. Notwithstanding the foregoing, but only to the extent required under federal banking law, the amount payable under Subsection (a) of this Section 11 shall be reduced to the extent that on the date of the Employee's termination of employment, the amount payable under Subsection (a) of this Section 11 exceeds the limitation on severance benefits that is set forth in Regulatory Bulletin 27a of the OTS, as in effect on the Effective Date.
Appears in 1 contract
Change in Control; Involuntary Termination. (1i) Notwithstanding any provision herein to the contrary, if the Employee’s 's employment under this Agreement is terminated by the CompanyBank, without the Employee’s 's prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change Change in control Control of the CompanyBank, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s “his "base amount” " as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “"Maximum Amount”"), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change Change in controlControl. Said sum shall be paid in one lump sum cash payment within [45] ten (10) days of the date such termination. This paragraph would not apply to a termination of employment due to death, disability or voluntary termination by the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2ii) In the event that the Employee and the Company Bank jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which he is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make his determination within ten business days after receiving a written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the earlier of the Bank's receipt of the Employee's determination pursuant to this paragraph or the Bank's determination in lieu of a determination by the Employee, the Bank shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3iii) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company Bank which should not have been made (“"Overpayment”") or that additional payments will not have been made by the Company Bank which should have been made (“"Underpayment”"), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company Bank together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(iv) A "Change in Control" shall be deemed to have occurred if:
1) as a result of, or in connection with, any public offering, tender offer or exchange offer, merger or other business combination, sale of assets or contested election, any combination of the foregoing transactions, or any similar transaction, the persons who were non-employee directors of the Bank or a holding company controlling the Bank before such transaction (the "Continuing Directors") cease to constitute a majority of the Board of Directors of the Bank or such holding company or any successor thereof;
2) the Bank or a holding company controlling the Bank transfers substantially all of its assets to another corporation which is not a wholly owned subsidiary of the Bank or such holding company;
3) the Bank or a holding company controlling the Bank sells substantially all of the assets of a subsidiary or affiliate which, at the time of such sale, is the principal employer of the Employee; or
4) the Bank or a holding company controlling the Bank is merged or consolidated with another corporation and, as a result of the merger or consolidation, less than fifty one percent (51%) of the outstanding voting securities of the surviving or resulting corporation is owned in the aggregate by the former stockholders of the Bank or of such holding company controlling the Bank. Notwithstanding the foregoing, but only to the extent required under federal banking law, the amount payable under Subsection(a) of this Section 11 shall be reduced to the extent that on the date of the Employee's termination of employment, the amount payable under Subsection(a) of this Section 11 exceeds the limitation on severance benefits that is set forth in Regulatory Bulletin 27a of the Office of Thrift Supervision, as in effect on the Effective Date.
Appears in 1 contract
Change in Control; Involuntary Termination. (1) Notwithstanding any provision herein to the contrary, if the Employee’s employment under this Agreement is terminated by the CompanyBank, without the Employee’s prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change Change in control Control of the Bank or the Company, the Employee shall, subject to paragraph (2) of this Section 11(a10(a), be paid an amount equal to three (3) times the difference between sum of (i) the product Employee’s Base Salary provided pursuant to Section 2 hereof, as in effect on the date of 2.99 such Change in Control, and (ii) the highest rate of bonus awarded to the Employee at any time during the prior three years. In addition, the Bank shall cause to be continued life insurance, non-taxable medical and dental coverage, and disability coverage substantially identical to the coverage maintained by the Bank for the Employee prior to her termination, for a period of thirty-six months from the date of termination. The Employee shall also be entitled to a lump-sum payment in an amount equal to the present value of the Bank’s contributions that would have been made on the Employee’s behalf under the Bank’s tax-qualified retirement plans (including the 401(k) Plan, the profit sharing plan and the employee stock ownership plan) if she had continued working for the Bank for a thirty-six (36) month period following her termination of employment, earning the Base Salary that would have been achieved during the remaining unexpired term of this Agreement and making the maximum amount of employee contributions permitted, if any, under such plans.Upon termination of employment following a Change in Control, the Employee will immediately vest in any outstanding unvested stock options or shares of restricted stock of the Company that have been awarded to her. All amounts payable to the Employee in cash shall be paid in one lump sum (adjusted for the present value of such accelerated payment) within thirty (30) days of such termination or if the Employee is a Specified Employee (within the meaning of Treasury Regulations §1.409A-1(i)) on the first day of the seventh month following the Employee’s termination of employment.
(2) Notwithstanding the foregoing paragraph (a)(1), in the event that the Bank’s independent accountants determine that the total payments receivable under Section 10(a)(1) hereof, when added to any other payments contingent on a Change in Control of the Bank or the Company, exceed 2.999 times the Employee’s “base amount” as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “Maximum Amount”), and (ii) the sum of any other then such payments shall be reduced to avoid an “excess parachute payments (payment”, as defined under in Section 280G(b)(2280G(b)(1) of the Code) that the . The Employee receives on account shall determine which and how much, if any, of the change in control. Said sum payments to which she is entitled shall be paid in one lump sum cash payment within [45] days of the date of the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, eliminated or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2) In the event that the Employee and the Company jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce the lump sum amount described in Section 11(a)(1) as required reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount.
(3) As . If the Employee does not make her determination within ten business days after receiving a result of uncertainty in application of Section 280G written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the Code at earlier of the time Bank’s receipt of payment hereunder, it is possible that such payments will have been made the Employee’s determination pursuant to this paragraph or the Bank’s determination in lieu of a determination by the Company which should not have been made (“Overpayment”) or that additional payments will not have been made by the Company which should have been made (“Underpayment”), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank shall pay to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company distribute to or for the benefit of the Employee together with interest at such amounts as are then due the applicable federal rate provided for Employee under this Agreement. In the event that the Employee’s or Bank’s determination to reduce total the payments is in violation of Code Section 7872(f)(2)(B409A, such reduction shall be made pro-rata.
(3) The term “Change in Control” shall mean an event of a nature that: (i) would be required to be reported in response to Item 5.01 of the current report on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the CodeSecurities Exchange Act of 1934 (the “Exchange Act”); or (ii) results in a Change in Control of the Bank or the Company within the meaning of the Home Owners’ Loan Act, as amended (“HOLA”), and applicable rules and regulations promulgated thereunder, as in effect at the time of the Change in Control; or (iii) 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 Company representing 25% or more of the combined voting power of Company’s outstanding securities except for any securities purchased by the Bank’s employee stock ownership plan or trust; or (b) individuals who constitute the Company’s Board 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 of the directors comprising the Incumbent Board, or whose nomination for election by the 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 Company or similar transaction in which the Bank or Company is not the surviving institution occurs; or (d) a proxy statement soliciting proxies from stockholders of the Company, by someone other than the current management of the Company, seeking stockholder approval of a plan of reorganization, merger or consolidation of the Company 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 are to be exchanged for or converted into cash or property or securities not issued by the Company; or (e) a tender offer is made for 25% or more of the voting securities of the Company and the shareholders owning beneficially or of record 25% or more of the outstanding securities of the Company have tendered or offered to sell their shares pursuant to such tender offer and such tendered shares have been accepted by the tender offeror. Notwithstanding anything in this paragraph to the contrary, a change in control shall not be deemed to have occurred in the event of a conversion of the Company's or the Bank's mutual holding company to stock form, or in connection with any reorganization used to effect such a conversion.
Appears in 1 contract
Change in Control; Involuntary Termination. (1i) Notwithstanding any provision herein to the contrary, if the Employee’s employment under this Agreement is terminated by the CompanyBank, without the Employee’s prior written consent and for a reason other than Just Cause, in connection with or within 12 twelve (12) months after any change Change in control Control of the CompanyBank, the Employee shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal to the difference between (i) the product of 2.99 times Employee’s his “base amount” as defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder (the “Maximum Amount”), and (ii) the sum of any other parachute payments (as defined under Section 280G(b)(2) of the Code) that the Employee receives on account of the change Change in controlControl. Said sum shall be paid in one lump sum cash payment within [45] ten (10) days of the date such termination. This paragraph would not apply to a termination of employment due to death, disability or voluntary termination by the Employee’s termination, and shall be paid in lieu of the payment of any benefits under Section 9. The Company shall also maintain existing health insurance, at the same level of Company contribution as prior to the Employee’s termination, for six months after the Employee’s termination, or if the Employee dies within such six months, the Company shall maintain health insurance for the Employee’s immediate family, at the same level of Company contribution as prior to the Employee’s death, for a six-month period beginning on the Employee’s death.
(2ii) In the event that the Employee and the Company Bank jointly determine and agree that the total parachute payments receivable under clauses (i) and (ii) of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure set forth in Section 11(a)(1) hereof, the Company will reduce Employee shall determine which and how much, if any, of the lump sum amount described in Section 11(a)(1) as required parachute payments to which he is entitled shall be eliminated or reduced so that the total parachute payments to be received by the Employee do not exceed the Maximum Amount. If the Employee does not make his determination within ten business days after receiving a written request from the Bank, the Bank may make such determination, and shall notify the Employee promptly thereof. Within five business days of the earlier of the Bank’s receipt of the Employee’s determination pursuant to this paragraph or the Bank’s determination in lieu of a determination by the Employee, the Bank shall pay to or distribute to or for the benefit of the Employee such amounts as are then due the Employee under this Agreement.
(3iii) As a result of uncertainty in application of Section 280G of the Code at the time of payment hereunder, it is possible that such payments will have been made by the Company Bank which should not have been made (“Overpayment”) or that additional payments will not have been made by the Company Bank which should have been made (“Underpayment”), in each case, consistent with the calculations required to be made under Section 11(a)(1) hereof. In the event that the Employee, based upon the assertion by the Internal Revenue Service against the Employee of a deficiency which the Employee believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company Bank to or for the benefit of Employee shall be treated for all purposes as a loan ab initio which the Employee shall repay to the Company Bank together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company Bank if and to the extent such deemed loan and payment would not either reduce the amount on which the Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Employee and the Company Bank determine, based upon controlling precedent or other substantial authority, that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of the Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(iv) A “Change in Control” shall be deemed to have occurred if:
1) as a result of, or in connection with, any public offering, tender offer or exchange offer, merger or other business combination, sale of assets or contested election, any combination of the foregoing transactions, or any similar transaction, the persons who were non-employee directors of the Bank or a holding company controlling the Bank before such transaction (the “Continuing Directors”) cease to constitute a majority of the Board of Directors of the Bank or such holding company or any successor thereof;
2) the Bank or a holding company controlling the Bank transfers substantially all of its assets to another corporation which is not a wholly owned subsidiary of the Bank or such holding company;
3) the Bank or a holding company controlling the Bank sells substantially all of the assets of a subsidiary or affiliate which, at the time of such sale, is the principal employer of the Employee; or
4) the Bank or a holding company controlling the Bank is merged or consolidated with another corporation and, as a result of the merger or consolidation, less than fifty one percent (51%) of the outstanding voting securities of the surviving or resulting corporation is owned in the aggregate by the former stockholders of the Bank or of such holding company controlling the Bank. Notwithstanding the foregoing, but only to the extent required under federal banking law, the amount payable under Subsection(a) of this Section 11 shall be reduced to the extent that on the date of the Employee’s termination of employment, the amount payable under Subsection(a) of this Section 11 exceeds the limitation on severance benefits that is set forth in Regulatory Bulletin 27a of the Office of Thrift Supervision, as in effect on the Effective Date.
Appears in 1 contract
