EXHIBIT 10.4
FORM OF TWO-YEAR
BANKLIBERTY CHANGE IN CONTROL AGREEMENT
This AGREEMENT ("Agreement") is hereby entered into as of ______________,
200_, by and between BANKLIBERTY (the "Bank"), a federally chartered financial
institution, with its principal offices at 00 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, _________________ ("Executive") and LIBERTY BANCORP, INC. (the
"Company"), a Missouri-chartered corporation and the holding company of the
Bank, as guarantor.
WHEREAS, the Bank recognizes the importance of Executive to the Bank's
operations and wishes to protect his position with the Bank in the event of a
change in control of the Bank or the Company for the period provided for in this
Agreement; and
WHEREAS, Executive and the Board of Directors of the Bank desire to enter
into an agreement setting forth the terms and conditions of payments due to
Executive in the event of a change in control and the related rights and
obligations of each of the parties.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is hereby agreed as follows:
1. TERM OF AGREEMENT.
(a) The term of this Agreement shall be (i) the initial term, consisting
of the period commencing on the date of this Agreement (the
"Effective Date") and ending on the second anniversary of the
Effective Date, plus (ii) any and all extensions of the initial term
made pursuant to this Section 1.
(b) Commencing on the first anniversary of the Effective Date and
continuing each anniversary date thereafter, the Board of Directors
of the Bank (the "Board of Directors") may extend the term of this
Agreement for an additional one (1) year period beyond the then
effective expiration date, provided that Executive shall not have
given at least sixty (60) days' written notice of his desire that
the term not be extended.
(c) Notwithstanding anything in this Section to the contrary, this
Agreement shall terminate if Executive or the Bank terminates
Executive's employment prior to a Change in Control.
2. CHANGE IN CONTROL.
Upon the occurrence of a Change in Control of the Company followed at any
time during the term of this Agreement by the termination of Executive's
employment in accordance with the terms of this Agreement, other than for Cause,
as defined in Section 2(c) of this Agreement, the provisions of Section 3 of
this Agreement shall apply. Upon the occurrence of a Change in
Control, Executive shall have the right to elect to voluntarily terminate his
employment at any time during the term of this Agreement following an event
constituting "Good Reason."
"Good Reason" means, unless Executive has consented in writing thereto,
the occurrence following a Change in Control, of any of the following:
(i) the assignment to Executive of any duties materially
inconsistent with Executive's position, including any material
change in status, title, authority, duties or responsibilities
or any other action that results in a material diminution in
such status, title, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and that is remedied
by the Bank or Executive's employer reasonably promptly after
receipt of notice thereof given by the Executive;
(ii) a reduction by the Bank or Executive's employer of the
Executive's base salary in effect immediately prior to the
Change in Control;
(iii) the relocation of the Executive's office to a location more
than fifty (50) miles from its location as of the date of this
Agreement;
(iv) the taking of any action by the Bank or any of its affiliates
or successors that would materially adversely affect the
Executive's overall compensation and benefits package, unless
such changes to the compensation and benefits package are made
on a non-discriminatory basis to all employees; or
(v) the failure of the Bank or the affiliate of the Bank by which
Executive is employed, or any affiliate that directly or
indirectly owns or controls any affiliate by which Executive
is employed, to obtain the assumption in writing of the Bank's
obligation to perform this Agreement by any successor to all
or substantially all of the assets of the Bank or such
affiliate within thirty (30) days after a reorganization,
merger, consolidation, sale or other disposition of assets of
the Bank or such affiliate.
(b) For purposes of this Agreement, a "Change in Control" shall be deemed
to occur on the earliest of:
(i) Merger: The Company merges into or consolidates with another
corporation, or merges another corporation into the Company,
and as a result less than a majority of the combined voting
power of the resulting corporation immediately after the
merger or consolidation is held by
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persons who were stockholders of the Company immediately
before the merger or consolidation.
(ii) Acquisition of Significant Share Ownership: There is filed or
required to be filed a report on Schedule 13D or another form
or schedule (other than Schedule 13G) required under Sections
13(d) or 14(d) of the Securities Exchange Act of 1934, if the
schedule discloses that the filing person or persons acting in
concert has or have become the beneficial owner of 25% or more
of a class of the Company's voting securities, but this clause
(ii) shall not apply to beneficial ownership of Company voting
shares held in a fiduciary capacity by an entity of which the
Company directly or indirectly beneficially owns 50% or more
of its outstanding voting securities.
(iii) Change in Board Composition: During any period of two
consecutive years, individuals who constitute the Company's
Board of Directors at the beginning of the two-year period
cease for any reason to constitute at least a majority of the
Company's Board of Directors; provided, however, that for
purposes of this clause (iii), each director who is first
elected by the board (or first nominated by the board for
election by the stockholders) by a vote of at least two-thirds
(2/3) of the directors who were directors at the beginning of
the two-year period shall be deemed to have also been a
director at the beginning of such period; or
(iv) Sale of Assets: The Company sells to a third party all or
substantially all of its assets.
(c) Executive shall not have the right to receive termination benefits
pursuant to Section 3 hereof upon termination for Cause. The term "Cause" shall
mean termination because of Executive's personal dishonesty, incompetence,
willful misconduct, any breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law,
rule, regulation (other than traffic violations or similar offenses), final
cease and desist order, or any material breach of any provision of this
Agreement. Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
him a copy of a resolution duly adopted by the affirmative vote of a majority of
the entire membership of the Board of Directors at a meeting of the Board of
Directors called and held for that purpose (after reasonable notice to Executive
and an opportunity for him, together with counsel, to be heard before the Board
of Directors), finding that in the good faith opinion of the Board of Directors,
Executive was guilty of conduct justifying termination for Cause and specifying
the particulars thereof in detail. Executive shall not have the right to receive
compensation or other benefits for any period after termination for Cause.
During the period beginning on the date of the Notice of Termination for Cause
pursuant to Section 4 hereof through the Date of Termination, stock options
granted to Executive under any stock option plan shall not be exercisable nor
shall any unvested stock awards granted to
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Executive under any stock benefit plan of the Bank, the Company or any
subsidiary or affiliate thereof, vest. At the Date of Termination, such stock
options and any such unvested stock awards shall become null and void and shall
not be exercisable by or delivered to Executive at any time subsequent to such
termination for Cause.
3. TERMINATION BENEFITS.
(a) If Executive's employment is voluntarily (in accordance with Section
2(a) of this Agreement) or involuntarily terminated within two (2) years of a
Change in Control, Executive shall receive:
(i) a lump sum cash payment equal to two times the Executive's
"base amount," within the meaning of Section 280G(b)(3) of the
Internal Revenue Code of 1986, as amended (the "Code"). Such
payment shall be made not later than five (5) days following
Executive's termination of employment under this Section 3.
(ii) Continued benefit coverage under all Association health and
welfare plans which Executive participated in as of the date
of the Change in Control (collectively, the "Employee Benefit
Plans") for a period of 24 months following Executive's
termination of employment. Said coverage shall be provided
under the same terms and conditions in effect on the date of
Executive's termination of employment. Solely for purposes of
benefits continuation under the Employee Benefit Plans,
Executive shall be deemed to be an active employee. To the
extent that benefits required under this Section 3(b) cannot
be provided under the terms of any Employee Benefit Plan, the
Bank shall enter into alternative arrangements that will
provide Executive with comparable benefits.
(b) Notwithstanding the preceding provisions of this Section 3, in no
event shall the aggregate payments or benefits to be made or afforded to
Executive under said paragraphs or otherwise (the "Termination Benefits")
constitute an "excess parachute payment" under Section 280G of the Code or any
successor thereto, and to avoid such a result, Termination Benefits will be
reduced, if necessary, to an amount (the "Non-Triggering Amount"), the value of
which is one dollar ($1.00) less than an amount equal to three (3) times
Executive's "base amount," as determined in accordance with said Section 280G.
The allocation of the reduction required hereby among the Termination Benefits
provided by this Section 3 shall be determined by Executive.
4. NOTICE OF TERMINATION.
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision
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in this Agreement relied upon and shall set forth in detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination (which, in the case of a termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
5. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however, unconditionally
guarantees payment and provision of all amounts and benefits due hereunder to
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.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior agreement between the Bank and Executive, except
that this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to Executive of a kind elsewhere provided. No provision of
this Agreement shall be interpreted to mean that Executive is subject to
receiving fewer benefits than those available to him without reference to this
Agreement. Nothing in this Agreement shall confer upon Executive the right to
continue in the employ of the Bank or shall impose on the Bank any obligation to
employ or retain Executive in its employ for any period.
7. 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 affect any such action shall be null, void
and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive, the Bank and their respective successors and assigns.
8. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except
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by written instrument of the party charged with such waiver or estoppel. No such
written waiver shall be deemed a continuing waiver unless specifically stated
therein, and each such waiver shall operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or condition for
the future or as to any act other than that specifically waived.
9. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
10. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement. In addition, references herein to the
masculine shall apply to both the masculine and the feminine.
11. GOVERNING LAW.
Except to the extent preempted by federal law, the validity,
interpretation, performance, and enforcement of this Agreement shall be governed
by the laws of the State of Missouri, without regard to principles of conflicts
of law of that State.
12. 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 Executive within fifty
(50) miles from the location of the Bank, 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
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.
13. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank, only if Executive is successful pursuant to a legal
judgment, arbitration or settlement.
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14. INDEMNIFICATION.
The Company or the Bank shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense and shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under applicable law against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Company or the Bank (whether or not he continues to be a
director or officer at the time of incurring such expenses or liabilities), such
expenses and liabilities to include, but not be limited to, judgments, court
costs, attorneys' fees and the cost of reasonable settlements.
15. SUCCESSORS TO THE BANK AND THE COMPANY.
The Bank and the Company shall require any successor or assignee, whether
direct or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business or assets of the Bank or the Company,
expressly and unconditionally to assume and agree to perform the Bank's and the
Company's obligations under this Agreement, in the same manner and to the same
extent that the Bank and the Company would be required to perform if no such
succession or assignment had taken place.
16. REQUIRED PROVISIONS. In the event any of the foregoing provisions of this
Section 16 are in conflict with the terms of this Agreement, this Section 16
shall prevail.
(a) The Bank's board of directors may terminate Executive's employment at
any time, but any termination by the Bank, other than Termination for Cause,
shall not prejudice Executive's right to compensation or other benefits under
this Agreement. Executive shall not have the right to receive compensation or
other benefits for any period after Termination for Cause as defined in Section
4(b) hereinabove.
(b) If 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.
Section 1818(e)(3) or (g)(1); the Bank's obligations under this contract shall
be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may in its
discretion: (i) pay 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.
(c) If 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.
Section 1818(e)(4) or (g)(1), all obligations of the Bank under this contract
shall terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
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(d) If the Bank is in default as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. Section 1813(x)(1) all obligations of the Bank
under this contract 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 contract shall be terminated, except to the
extent determined that continuation of the contract is necessary for the
continued operation of the Bank: (i) by the Director of the OTS (or his
designee), at the time the FDIC 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, 12 U.S.C.Section 1823(c); or (ii) by the
Director of the OTS (or his designee) at the time the Director (or his designee)
approves a supervisory merger to resolve problems related to the operations 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) Any payments made to employees pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 U.S.C.
Section 1828(k) and FDIC regulation 12 C.F.R. Part 359, Golden Parachute and
Indemnification Payments.
(g) Notwithstanding anything in this Agreement to the contrary, if the
Company or the Bank in good faith determines that amounts that, as of the
effective date of the Executive's termination of employment are or may become
payable to the Executive upon termination of his employment hereunder are
required to be suspended or delayed for six (6) months in order to satisfy the
requirements of Section 409A of the Internal Revenue Code, then the Company or
the Bank will so advise the Executive, and any such payments shall be suspended
and accrued for six months, whereupon they shall be paid to the Executive in a
lump sum (together with interest thereon at the then-prevailing prime rate).
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SIGNATURES
IN WITNESS WHEREOF, BankLiberty and Liberty Bancorp, Inc. have caused this
Agreement to be executed and their seals to be affixed hereunto by their duly
authorized officers, and Executive has signed this Agreement, on the ____ day of
_________________, 200__.
ATTEST: BANKLIBERTY
By:
-------------------------- ---------------------------------
Corporate Secretary For the Entire Board of Directors
ATTEST: LIBERTY BANCORP, INC.
(GUARANTOR)
By:
-------------------------- ---------------------------------
Corporate Secretary For the Entire Board of Directors
[SEAL]
WITNESS: EXECUTIVE
-------------------------- -------------------------------------
Corporate Secretary
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