EXHIBIT 10.3
CHANGE-IN-CONTROL AGREEMENT
THIS CHANGE-IN-CONTROL AGREEMENT is dated this ____ day of _____ 2002,
between Clay County Savings Bank, a federally-chartered savings bank with its
principal office in Liberty, Missouri (the "Bank"), and ________________ (the
"Executive") any reference to the Company herein shall refer to CCSB Financial
Corp.
WITNESSETH
WHEREAS, the Executive is presently an officer of the Bank;
WHEREAS, the Bank desires to be ensured of the Executive's continued
active participation in the business of the Bank; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Bank and to provide further incentive to achieve the financial and
performance objectives of the Bank and the Company, the parties desire to
specify the severance benefits which shall be due the Executive in the event
that his employment with the Bank 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) Cause. Termination of the Executive's employment for "Cause"
shall mean termination because of 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 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 Bank.
Executive's employment shall not be terminated for "Cause" in accordance with
this paragraph for any act or action or failure to act which is undertaken or
omitted in accordance with a resolution of the Bank's board of directors ("Board
of Directors") or upon advice of the Bank's counsel.
(b) Change in Control. "Change in Control" shall mean a change in
control of a nature that: (i) would be required to be reported in response to
Item 1(a) of the 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 0000 (xxx
"Xxxxxxxx Xxx"); 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 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.
(c) Code. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d) 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.
(e) Disability. Termination by the Bank of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits under
the applicable long-term disability plan maintained by the Bank or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(f) 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:
(i) Without the Executive's express written consent, the
assignment by the Bank to the Executive of any duties which are materially
inconsistent with the Executive's positions, duties, responsibilities and status
with the Bank immediately prior to a Change in Control, or a material change in
the Executive's reporting responsibilities, titles or offices as an officer and
employee and as in effect immediately prior to such a Change in Control, or any
removal of the Executive from or any failure to re-elect the Executive to any of
such responsibilities, titles or offices, except in connection with the
termination of the Executive's employment for Cause, Disability or Retirement or
as a result of the Executive's death or by the Executive other than for Good
Reason;
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(ii) Without the Executive's express written consent, a
reduction in the Executive's base salary 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 or a reduction in the package of fringe benefits provided to the
Executive as in effect immediately prior to the date of the Change in Control;
(iii) A change in the Executive's principal place of employment
by a distance in excess of 25 miles from its location immediately prior to the
Change in Control;
(iv) Any purported termination of the Executive's employment
for Disability or Retirement which is not effected pursuant to a Notice of
Termination satisfying the requirements of paragraph (i) below; or
(v) The failure by the Company to obtain the assumption of and
agreement to perform this Agreement by any successor as contemplated in Section
10 hereof.
(g) Highest Compensation. The Executive's "Highest Compensation" for
purposes of this Agreement shall be deemed to mean an amount equal to two times
the sum of (A) the highest annual rate of Base Salary paid to Executive at any
time under this Agreement, and (B) the greater of (x) the average annual cash
bonus paid to Executive with respect to the three completed fiscal years prior
to the termination, or (y) the cash bonus paid to Executive with respect to the
fiscal year ended prior to the termination.
(h) IRS. IRS shall mean the Internal Revenue Service.
(i) Notice of Termination. Any purported termination of the
Executive's employment by the Bank for any reason, including without limitation
for Cause, Disability or Retirement, or by the Executive for any reason,
including without limitation for Good Reason, shall be communicated by written
"Notice of Termination" to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a dated notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated, and (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 Bank' 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 termination of Executive's
employment at age 65 or in accordance with any retirement policy established by
the Bank. Upon termination of Executive upon Retirement, no amounts or benefits
shall be due Executive under this Agreement, and the Executive shall be entitled
to all benefits under any retirement plan of the Bank and other plans to which
Executive is a party.
2. Term of Agreement. The term of this Agreement shall be for
thirty-six (36) months, commencing on the date of this Agreement (the "Effective
Date"). Commencing on the first anniversary of the Effective Date, on each
annual anniversary thereafter, the term of this
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Agreement shall extend for an additional twelve (12) months, unless the Boards
of Directors of the Bank gives notice in accordance with Section 11 hereof of a
determination 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. References herein to the term
of this Agreement shall refer both to the initial term and successive terms.
3. Benefits Upon Termination. If the Executive's employment is terminated
subsequent to a Change in Control and during the term of this Agreement by (i)
the Bank for other than Cause, Disability, Retirement or the Executive's death
or (ii) the Executive for Good Reason, then the Company shall:
(a) pay to the Executive, in a lump sum as of the Date of Termination,
a cash severance amount equal to two (2) times the Executive's Highest
Compensation, and
(b) provide, for a period of twenty-four (24) months, at no cost to the
Executive, coverage of Executive (and family, if applicable) under all group
medical, life, dental insurance and other insurance programs or arrangements
offered by the Bank in which the Executive was entitled to participate
immediately prior to the Date of Termination (other than disability insurance);
provided that in the event that the Executive's participation in any insurance
plan, program or arrangement as to which Executive was participating prior to a
Date of Termination is prohibited, or during such period any such plan, program
or arrangement is discontinued or the benefits thereunder are materially
reduced, the Bank shall arrange to provide the Executive with benefits
substantially similar to those which the Executive was entitled to receive under
such plans, programs and arrangements immediately prior to the Date of
Termination. In the alternative, the Company shall pay to the Executive a cash
amount equal to the Executive's cost of obtaining such benefits on his own,
adjusted for any federal or state income taxes the Executive has to pay on the
cash amount.
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
Bank, would constitute a "parachute payment" under Section 280G of the Code, the
payments and benefits payable by the Bank pursuant to Section 3 hereof shall be
reduced, in the manner determined by the Executive, by the amount, if any, which
is the minimum necessary to result in no portion of the payments and benefits
payable by the Bank under Section 3 being non-deductible to the Bank pursuant to
Section 280G of the Code and subject to the excise tax imposed under Section
4999 of the Code. 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 Bank' independent public accountants and
paid by the Bank. Such counsel shall be reasonably acceptable to the Bank and
the Executive; 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 herein 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.
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5. No 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.
(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 Bank pursuant to employee benefit plans of
the Bank or otherwise.
6. Withholding. All payments required to be made by the Bank hereunder to
the Executive shall be subject to the withholding of such amounts, if any,
relating to tax and other payroll deductions as the Bank 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 Bank and the Executive,
and the Bank 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 Bank 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 Bank
hereunder, such right shall be no greater than the right of any unsecured
general creditor of the Bank.
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.
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 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,
the Executive, the Bank and their respective successors and assigns.
10. Assignability. The Bank may assign this Agreement and its rights and
obligations hereunder in whole, but not in part, to any corporation, bank or
other entity with or into which the Bank may hereafter merge or consolidate or
to which the Bank may transfer all or substantially all of its respective
assets, if in any such case said corporation, bank or other entity shall
expressly in writing assume all obligations of the Bank hereunder as fully as if
it had been
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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 Bank: Clay County Savings Bank
0000 Xxxx 000 Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxx, President and Chief
Executive Officer
To the Executive: _____________________________________
_____________________________________
_____________________________________
_____________________________________
12. Amendment; Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Bank to sign on their
behalf. No waiver by any party hereto at any time of any breach by any other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
13. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Missouri.
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. 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.
17. Required Provisions.
(a) The Association may terminate the Executive's employment at any time.
Executive shall not have the right to receive compensation or other benefits for
any period after
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Termination for Cause as defined in Section 8 hereinabove.
(b) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Association's affairs by a
notice served under Section 8(e)(3) (12 USC (S)1818(e)(3)) or 8(g)(1) (12 USC
(S)1818(g)(1)) of the Federal Deposit Insurance Act, the Association'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 Association may in its discretion (i) pay the Executive all or
part of the compensation withheld while its contract obligations were suspended
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Association's affairs by an order issued
under Section 8(e)(4) (12 USC (S)1818(e)(4)) or 8(g)(1) (12 USC (S)1818(g)(1))
of the Federal Deposit Insurance Act, all obligations of the Association under
this contract shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
(d) If the Association is in default as defined in Section 3(x)(1) (12
USC (S)1813(x)(1)) of the Federal Deposit Insurance Act, all obligations of the
Association 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 of the Association under this contract shall be
terminated, except to the extent determined that continuation of the contract is
necessary for the continued operation of the Association, (i) by the Director of
the Federal Deposit Insurance Corporation (the "FDIC") or his or her designee,
at the time the FDIC enters into an agreement to provide assistance to or on
behalf of the Association under the authority contained in Section 13(c) (12 USC
(S)1823(c)) of the Federal Deposit Insurance Act; or (ii) by the Director 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 Association
or when the Association 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 anything herein contained to the contrary, any
payments to the Executive by the Company, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the
regulations promulgated thereunder in 12 C.F.R. Part 359.
18. Reinstatement of Benefits Under Section 17(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 17(b) hereof (the
"Notice") during the term of this Agreement and a Change in Control, as defined
herein, occurs, the Bank 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.
19. 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
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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.
20. 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.
21. Confidentiality. Executive recognizes and acknowledges that the
knowledge of the business activities and plans for business activities of the
Bank and affiliates thereof, as it may exist from time to time, is a valuable,
special and unique asset of the business of the Bank. Executive will not, during
or after the term of his employment, disclose any knowledge of the past,
present, planned or considered business activities of the Bank or affiliates
thereof to any person, firm, corporation, or other entity for any reason or
purpose whatsoever (except for such disclosure as may be required to be provided
to the Office of Thrift Supervision, the Federal Deposit Insurance Corporation,
or other bank regulatory agency with jurisdiction over the Bank or Executive).
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Bank, and
Executive may disclose any information regarding the Bank or the Bank which is
otherwise publicly available or which exercise is otherwise legally required to
disclose. In the event of a breach or threatened breach by the Executive of the
provisions of this Section 21, the Bank will be entitled to an injunction
restraining Executive from disclosing, in whole or in part, the knowledge of the
past, present, planned or considered business activities of the Bank or
affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom such knowledge, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein will be construed as
prohibiting the Bank from pursuing any other remedies available to the Bank for
such breach or threatened breach, including the recovery of damages from
Executive.
22. Entire Agreement. This Agreement embodies the entire agreement
between the Bank and the Executive with respect to the matters agreed to herein.
All prior agreements between the Bank and the Executive with respect to the
matters agreed to herein 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 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.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Attest: CLAY COUNTY SAVINGS BANK
___________________________________ By:______________________________
Attest: EXECUTIVE
___________________________________ By:______________________________
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