TierOne BANK AMENDED AND RESTATED THREE-YEAR CHANGE IN CONTROL AGREEMENT
Exhibit
10.6
TierOne
BANK
AMENDED
AND RESTATED THREE-YEAR CHANGE IN CONTROL AGREEMENT
THIS
AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (this “Agreement”) is effective
the 17th day of December 2008, among TierOne Bank, a federally-chartered savings
bank (the “Bank”), TierOne Corporation, a Wisconsin corporation and the holding
company of the Bank (the “Company”), and _______________(the
“Executive”). The Company and the Bank are collectively referred to
as the “Employers”.
INTRODUCTION
The Bank and the Executive previously
entered into a certain Three-Year Change in Control Agreement dated as of
________ __, 2002 and amended and restated as of July 27, 2006 (the “Prior
Agreement”). This Agreement amends and restates the Prior Agreement
in its entirety as hereinafter set forth in order to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), including the guidance issued to date by the Internal Revenue
Service (the “IRS”) and the final regulations issued by the IRS in April
2007.
WITNESSETH
WHEREAS,
the Executive is presently an officer of the Bank;
WHEREAS,
the Employers desire to be ensured of the Executive’s continued active
participation in the business of the Employers; and
WHEREAS,
in order to induce the Executive to remain in the employ of the Employers and in
consideration of the Executive’s agreeing to remain in the employ of the
Employers, the parties desire to specify the severance benefits which shall be
due the Executive in the event that his employment with the Employers is
terminated under specified circumstances;
NOW
THEREFORE, in consideration of the mutual agreements herein contained, and upon
the other terms and conditions hereinafter provided, the parties hereby agree as
follows:
1. Definitions. The
following words and terms shall have the meanings set forth below for the
purposes of this Agreement:
(a) Annual
Compensation. The Executive’s “Annual Compensation” for
purposes of this Agreement shall be deemed to mean the highest level of
aggregate base salary and cash incentive compensation paid to the Executive by
the Employers or any subsidiary thereof during the calendar year in which the
Date of Termination occurs (determined on an annualized basis) or either of the
two calendar years immediately preceding the calendar year in which the Date of
Termination occurs.
1
(b) Cause. Termination of the
Executive’s employment for “Cause” shall mean termination because of personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful violation
of any law, rule or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order. For purposes of this
paragraph, no act or failure to act on the Executive’s part shall be considered
“willful” unless done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that the Executive’s action or omission was in the
best interests of the Employers.
(c) Change in
Control. “Change in Control” shall mean a change in the
ownership of the Bank or the Company, a change in the effective control of the
Bank or the Company or a change in the ownership of a substantial portion of the
assets of the Bank or the Company, in each case as provided under Section 409A
of the Code and the regulations thereunder.
(d) Code. “Code” shall
mean the Internal Revenue Code of 1986, as amended.
(e) Date of
Termination. “Date of Termination” shall mean (i) if the
Executive’s employment is terminated for Cause, the date on which the Notice of
Termination is given, and (ii) if the Executive’s employment is terminated for
any other reason, the date specified in the Notice of Termination.
(f) Disability. “Disability”
shall mean the Executive (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (ii) is, by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a period of not less
than three months under an accident and health plan covering employees of the
Bank.
(g) Good
Reason. Termination by the Executive of the Executive’s
employment for “Good Reason” shall mean termination by the Executive following a
Change in Control based on the occurrence of any of the following
events:
(i) (A) a
material diminution in the Executive’s base compensation as in effect
immediately prior to the date of the Change in Control or as the same may be
increased from time to time thereafter, (B) a material diminution in the
Executive’s authority, duties or responsibilities as in effect immediately prior
to the Change in Control, or (C) a material diminution in the authority, duties
or responsibilities of the officer (as in effect immediately prior to the date
of the Change in Control) to whom the Executive is required to report
immediately prior to the Change in Control,
(ii) any
material breach of this Agreement by the Employers, or
2
(iii) any
material change in the geographic location at which the Executive must perform
his services under this Agreement immediately prior to the Change in
Control;
provided,
however, that prior to any termination of employment for Good Reason, the
Executive must first provide written notice to the Employers within ninety (90)
days of the initial existence of the condition, describing the existence of such
condition, and the Employers shall thereafter have the right to remedy the
condition within thirty (30) days of the date the Employers received the written
notice from the Executive. If the Employers remedy the condition
within such thirty (30) day cure period, then no Good Reason shall be deemed to
exist with respect to such condition. If the Employers do not remedy
the condition within such thirty (30) day cure period, then the Executive may
deliver a Notice of Termination for Good Reason at any time within sixty (60)
days following the expiration of such cure period.
(h) IRS. “IRS” shall
mean the Internal Revenue Service.
(i) Notice of
Termination. Any purported termination of the Executive’s
employment by the Employers for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, including
without limitation for Good Reason, shall be communicated by a written “Notice
of Termination” to the other party hereto. For purposes of this
Agreement, a “Notice of Termination” shall mean a dated notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive’s employment under the provision so
indicated, (iii) specifies a Date of Termination, which shall be not less than
thirty (30) nor more than ninety (90) days after such Notice of Termination is
given, except in the case of the Employers’ termination of the Executive’s
employment for Cause, which shall be effective immediately, and (iv) is given in
the manner specified in Section 11 hereof.
(j) Retirement. “Retirement”
shall mean voluntary termination by the Executive in accordance with the
Employers’ retirement policies, including early retirement, generally applicable
to their salaried employees.
2. Term of
Agreement. The term of this Agreement shall be for three
years, commencing as of October 1, 2008 (the “Start
Date”). Commencing on the first anniversary of the Start Date, the
term of this Agreement shall extend for an additional year on each annual
anniversary of the Start Date of this Agreement until such time as the Boards of
Directors of the Employers or the Executive give notice in accordance with the
terms of Section 11 hereof of their or his election, respectively, not to extend
the term of this Agreement. Such written notice of the election not
to extend must be given not less than thirty (30) days prior to any such
anniversary date. If any party gives timely notice that the term will
not be extended as of any annual anniversary date, then this Agreement shall
terminate at the conclusion of its remaining term. The Boards of
Directors of the Employers will review this Agreement and the Executive’s performance
annually for purposes of determining whether to extend this
Agreement. References herein to the term of this Agreement shall
refer both to the initial term and successive terms.
3
3. Benefits Upon
Termination. If the Executive’s employment by the
Employers shall be terminated subsequent to a Change in Control and during the
term of this Agreement by (i) the Employers for other than Cause,
Disability, Retirement or the Executive’s death or (ii) the Executive for Good
Reason, then the Employers shall:
(a) pay
to the Executive in a lump sum as of the Date of Termination a cash severance
amount equal to three (3) times the Executive’s Annual
Compensation;
(b) maintain
and provide for a period ending at the earlier of (i) the expiration of the
remaining term of this Agreement as of the Date of Termination or (ii) the date
of the Executive’s full-time employment by another employer (provided that the
Executive is entitled under the terms of such employment to benefits
substantially similar to those described in this subparagraph (b)), at no cost
to the Executive, the Executive’s continued participation in all group
insurance, life insurance, health and accident insurance and disability
insurance in which the Executive was participating immediately prior to the Date
of Termination; provided that any insurance premiums payable by the Employers or
any successors pursuant to this Section 3(b) shall be payable at such times and
in such amounts (except that the Employers shall also pay any employee portion
of the premiums) as if the Executive was still an employee of the Employers,
subject to any increases in such amounts imposed by the insurance company or
COBRA, and the amount of insurance premiums required to be paid by the Employers
in any taxable year shall not affect the amount of insurance premiums required
to be paid by the Employers in any other taxable year; and provided further that
if the Executive’s participation in any group insurance plan is barred, the
Employers shall either arrange to provide the Executive with insurance benefits
substantially similar to those which the Executive was entitled to receive under
such group insurance plan or, if such coverage cannot be obtained, pay a lump
sum cash equivalency amount within thirty (30) days following the Date of
Termination based on the annualized rate of premiums being paid by the Employers
as of the Date of Termination; and
(c) pay
to the Executive, in a lump sum as of the Date of Termination, a cash amount
equal to the projected cost to the Employers of providing benefits to the
Executive until the expiration of the remaining term of this Agreement as of the
Date of Termination pursuant to any other employee benefit plans, programs or
arrangements offered by the Employers in which the Executive was entitled to
participate immediately prior to the Date of Termination (excluding (x) the
Employers’ Employee Stock Ownership Plan, (y) stock option and restricted stock
plans of the Employers, and (z) cash incentive compensation included in Annual
Compensation), with the projected cost to the Employers to be based on the costs
incurred for the calendar year immediately preceding the year in which the Date
of Termination occurs and with any automobile-related costs to exclude any
depreciation on Bank-owned automobiles.
4. Limitation of Benefits under Certain
Circumstances. If the payments and benefits pursuant to
Section 3 hereof, either alone or together with other payments and benefits
which the Executive has the right to receive from the Employers, would
constitute a “parachute payment” under Section 280G of the Code, then the
payments and benefits payable by the Employers pursuant to Section 3 hereof
shall be reduced by the minimum amount necessary to result in no portion of the
payments and benefits payable by the Employers under Section 3 being
non-deductible to the
4
Employers
pursuant to Section 280G of the Code and subject to the excise tax imposed under
Section 4999 of the Code. If the payments and benefits under Section
3 are required to be reduced, the cash severance shall be reduced first,
followed by a reduction in the fringe benefits. The determination of any
reduction in the payments and benefits to be made pursuant to Section 3 shall be
based upon the opinion of independent counsel selected by the Employers and paid
by the Employers. Such counsel shall promptly prepare the foregoing
opinion, but in no event later than thirty (30) days from the Date of
Termination, and may use such actuaries as such counsel deems necessary or
advisable for the purpose. Nothing contained in this Section 4 shall
result in a reduction of any payments or benefits to which the Executive may be
entitled upon termination of employment under any circumstances other
than as specified in this Section 4, or a reduction in the payments and benefits
specified in Section 3 below zero.
5. Mitigation;
Exclusivity of Benefits.
(a) The
Executive shall not be required to mitigate the amount of any benefits hereunder
by seeking other employment or otherwise. The amount of severance to
be provided pursuant to Section 3(a) hereof shall not be reduced by any
compensation earned by the Executive as a result of employment by another
employer after the Date of Termination or otherwise, but the amount of benefits
to be provided pursuant to Section 3(b) hereof is subject to reduction as set
forth therein.
(b) The
specific arrangements referred to herein are not intended to exclude any other
benefits which may be available to the Executive upon a termination of
employment with the Employers pursuant to employee benefit plans of the
Employers or otherwise.
6. Withholding. All
payments required to be made by the Employers hereunder to the Executive shall
be subject to the withholding of such amounts, if any, relating to tax and other
payroll deductions as the Employers may reasonably determine should be withheld
pursuant to any applicable law or regulation.
7. Nature
of Employment and Obligations.
(a) Nothing
contained herein shall be deemed to create other than a terminable at will
employment relationship between the Employers and the Executive, and the
Employers may terminate the Executive’s employment at any time, subject to
providing any payments specified herein in accordance with the terms
hereof.
(b) Nothing
contained herein shall create or require the Employers to create a trust of any
kind to fund any benefits which may be payable hereunder, and to the extent that
the Executive acquires a right to receive benefits from the Employers hereunder,
such right shall be no greater than the right of any unsecured general creditor
of the Employers.
8. Source of
Payments. It is intended by the parties hereto that all
payments provided in this Agreement shall be paid in cash or check from the
general funds of the Bank. Further, the Company guarantees such
payment and provision of all amounts and benefits due hereunder to the
5
Executive
and, if such amounts and benefits due from the Bank are not timely paid or
provided by the Bank, such amounts and benefits shall be paid or provided by the
Company.
9. No Attachment.
(a) Except
as required by law, no right to receive payments under this Agreement shall be
subject to anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge, or hypothecation, or to execution, attachment, levy, or similar
process or assignment by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void, and of no
effect.
(b) This
Agreement shall be binding upon, and inure to the benefit of, the Executive, the
Bank, the Company and their respective successors and assigns.
10. Assignability. The
Employers may assign this Agreement and their rights and obligations hereunder
in whole, but not in part, to any corporation, bank or other entity with or into
which either of the Employers may hereafter merge or consolidate or to which
either of the Employers may transfer all or substantially all of its respective
assets, if in any such case said corporation, bank or other entity shall by
operation of law or expressly in writing assume all obligations of the Employers
hereunder as fully as if it had been originally made a party hereto, but may not
otherwise assign this Agreement or their rights and obligations
hereunder. The Executive may not assign or transfer this Agreement or
any rights or obligations hereunder.
11. Notice. For the
purposes of this Agreement, notices and all other communications provided for in
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered or mailed by certified or registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth
below:
|
|
To
the Company:
|
Secretary
|
TierOne Corporation
0000 X Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
|
|
To
the Bank:
|
Secretary
|
TierOne Bank
0000 X Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
To the
Executive: ________________________
At
the address last appearing
on
the records of the Employers
12. Amendment;
Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the
6
Executive
and such officer or officers as may be specifically designated by the Boards of
Directors of the Employers to sign on their behalf, except as set forth
below. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. In addition, notwithstanding anything in this
Agreement to the contrary, the Employers may amend in good faith any terms of
this Agreement, including retroactively, in order to comply with Section 409A of
the Code.
13. Governing Law. The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the United States where applicable and otherwise by
the substantive laws of the State of Nebraska.
14. Headings. The
section headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement.
15. Validity. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement,
which shall remain in full force and effect.
16. Changes in Statutes or Regulations.
If any statutory or regulatory provision referenced herein is
subsequently changed or re-numbered, or is replaced by a separate provision,
then the references in this Agreement to such statutory or regulatory provision
shall be deemed to be a reference to such section as amended, re-numbered or
replaced.
17. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.
18. Regulatory
Provisions.
(a) The
Employers may terminate the Executive’s employment at
any time, but any termination by the Employers, other than termination for
Cause, shall not prejudice the Executive’s right to compensation or other
benefits under this Agreement. The Executive shall not have the right
to receive compensation or other benefits for any period after termination for
Cause as defined in Section 1(b) hereof.
(b) If
the Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the Bank’s affairs by a notice served under
Section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act (12 U.S.C. §
1818(e)(3) or (g)(1)), the Employers’ obligations under this Agreement shall be
suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the
Employers may in their discretion (i) pay the Executive all or part of the
compensation withheld while their contract obligations were suspended and (ii)
reinstate (in whole or in part) any of the obligations which were
suspended.
7
(c) If
the Executive is removed and/or permanently prohibited from participating in the
conduct of the Bank’s affairs by an order issued under Section 8(e)(4) or
8(g)(1) of the Federal Deposit Insurance Act (12 U.S.C. § 1818(e)(4) or (g)(1)),
all obligations of the Employers under this Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall
not be affected.
(d) If
the Bank is in default as defined in Section 3(x)(1) of the Federal Deposit
Insurance Act, all obligations of the Employers under this Agreement shall
terminate as of the date of default, but this paragraph shall not affect any
vested rights of the contracting parties.
(e) All
obligations under this Agreement shall be terminated, except to the extent
determined that continuation of the Agreement is necessary for the continued
operation of the institution: (i) by the Director of the Office of Thrift
Supervision (or his or her designee) at the time the Federal Deposit Insurance
Corporation enters into an agreement to provide assistance to or on behalf of
the Bank under the authority contained in Section 13(c) of the Federal Deposit
Insurance Act; or (ii) by the Director of the Office of Thrift Supervision (or
his or her designee) at the time the Director (or his or her designee) approves
a supervisory merger to resolve problems related to operation of the Bank or
when the Bank is determined by the Director to be in an unsafe or unsound
condition. Any rights of the parties that have already vested,
however, shall not be affected by such action.
(f) Notwithstanding
any other provision of this Agreement to the contrary, any payments made to the
Executive pursuant to this Agreement, or otherwise, are subject to and
conditioned upon their compliance with Section 18(k) of the Federal Deposit
Insurance Act (12 U.S.C. § 1828(k)) and the regulations promulgated thereunder,
including 12 C.F.R. Part 359.
19. Reinstatement of Benefits Under
Section 18(b). In the event the Executive is suspended and/or
temporarily prohibited from participating in the conduct of the Bank’s affairs
by a notice described in Section 18(b) hereof (the “Notice”) during the term
of this Agreement and a Change in Control, as defined herein, occurs, the
Employers will assume their obligation to pay and the Executive will be entitled
to receive all of the termination benefits provided for under Section 2 of this
Agreement upon the Bank’s receipt of a dismissal of charges in the
Notice.
20. Arbitration. Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration, conducted before a panel of three
arbitrators sitting in a location selected by the Bank within fifty (50) miles
from the location of the Bank’s main office, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be
entered on the arbitrator’s award in any court having jurisdiction; provided,
however, that the Executive shall be entitled to seek specific performance of
his right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement, other
than in the case of a termination for Cause.
8
21. Payment of Costs and Legal
Fees. All reasonable costs and legal fees paid or incurred by
the Executive pursuant to any dispute or question of interpretation relating to
this Agreement shall be paid or reimbursed by the Bank (which payments are
guaranteed by the Company pursuant to Section 8 hereof) if the Executive is
successful on the merits pursuant to a legal judgment, arbitration or
settlement.
22. Entire
Agreement. This Agreement embodies the entire agreement
between the Employers and the Executive with respect to the matters agreed to
herein. All prior agreements between the Employers and the Executive
with respect to the matters agreed to herein, including the Prior Agreement, are
hereby superseded and shall have no force or effect, except that this Agreement
shall not affect or operate to reduce any benefit or compensation inuring to the
Executive of a kind elsewhere provided. No provision of this
Agreement shall be interpreted to mean that the Executive is subject to
receiving fewer benefits than those available to him without reference to this
Agreement.
9
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first written
above.
THIS
CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE
PARTIES.
Attest: TierOne
BANK
_____________________________ By:
___________________________
Xxxxxxx
X. Xxxxxxxxx, Chairman and
Chief
Executive Officer
Attest: TierOne
CORPORATION
(as
guarantor)
_____________________________ By:
___________________________
Xxxxxxx
X. Xxxxxxxxx, Chairman and
Chief
Executive Officer
Attest: EXECUTIVE
_____________________________ By:
___________________________
10
