EXHIBIT 10.3
CHANGE IN CONTROL SEVERANCE AGREEMENT
-------------------------------------
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT ("Agreement") entered into
this 11th day of February, 1997 ("Effective Date"), by and between Xxxxxxx
Savings, Inc. (the "Company") and Xxxxxxxx X.
Xxxxxx (the "Employee").
WHEREAS, the Employee is currently an officer and an employee of the
Company and its subsidiary, Xxxxxxx Federal Savings Bank ("Subsidiary") as Vice
President and is experienced in all phases of the business of the Company and
the Subsidiary; and
WHEREAS, the parties desire by this writing to set forth the rights and
responsibilities of the Company and Employee if the Company should undergo a
Change in Control (as defined hereinafter in the Agreement) after the Effective
Date.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is employed in the capacity as the Vice
President of the Company and the Subsidiary. The Employee shall render such
administrative and management services to the Company and the Subsidiary as are
currently rendered and as are customarily performed by persons situated in a
similar executive capacity. The Employee's other duties shall be such as the
Board of Directors for the Company (the "Board of Directors" or "Board") may
from time to time reasonably direct, including normal duties as an officer of
the Company and the Subsidiary.
2. Term of Agreement. The term of this Agreement shall be for the
period commencing on the Effective Date and ending thirty-six (36) months
thereafter. Additionally, on or before each annual anniversary date from the
Effective Date, the term of this Agreement may be extended for an additional one
year period beyond the then effective expiration date upon a determination and
resolution of the Board of Directors that the performance of the Employee has
met the requirements and standards of the Board, and that the term of such
Agreement shall be extended.
3. Termination of Employment in Connection with or
Subsequent to a Change in Control.
(a) Notwithstanding any provision herein to the contrary, in the event
of the involuntary termination of Employee's employment during the term of this
Agreement following any Change in Control of the Company or Subsidiary, absent
Just Cause, Employee shall be paid an amount equal to the product of 2.00 times
the Employee's cash compensation received during the twelve month period prior
to termination of employment in accordance with Section 3 of this Agreement.
Said sum shall be paid, at the option of Employee, either in one (1) lump sum
within thirty (30) days of such
1
termination discounted to the present value of such payment using as the
discount rate the "prime rate" as published in the Wall Street Journal Eastern
Edition as of the date of such payment, or in periodic payments over the next 24
months or the remaining term of this Agreement whichever is less, as if
Employee's employment had not been terminated, and such payments shall be in
lieu of any other future payments which the Employee would be otherwise entitled
to receive. Notwithstanding the forgoing, all sums payable hereunder shall be
reduced in such manner and to such extent as may be required so that no such
payments made hereunder when aggregated with all other payments to be made to
the Employee by the Company or the Subsidiary shall be deemed an "excess
parachute payment" in accordance with Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code") and regulations promulgated thereunder and be
subject to the excise tax provided at Section 4999(a) of the Code. Calculation
of the "base amount" shall include compensation paid by the Company and the
Subsidiary. The term "Change in Control" shall mean: (i) the execution of an
agreement for the sale of all, or a material portion, of the assets of the
Company; (ii) the execution of an agreement for a merger or recapitalization of
the Company or any merger or recapitalization whereby the Company is not the
surviving entity; (iii) a change of control of the Company, as otherwise defined
or determined by the Office of Thrift Supervision or regulations promulgated by
it; or (iv) the acquisition, directly or indirectly, of the beneficial ownership
(within the meaning of that term as it is used in Section 13(d) of the
Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder) of twenty-five percent (25%) or more of the outstanding voting
securities of the Company by any person, trust, entity or group. The term
"person" refers to an individual other than the Employee or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of entity not
specifically listed herein.
(b) Notwithstanding any other provision of this Agreement to the
contrary except as provided at Sections 4(b), 4(c), 4(d), 4(e) and 5, Employee
may voluntary terminate his employment under this Agreement within twelve (12)
months following a Change in Control, and Employee shall thereupon be entitled
to receive the payment described in Section 3(a) of this Agreement, upon the
occurrence, or within ninety (90) days thereafter, of any of the following
events, which have not been consented to in advance by the Employee in writing:
(i) if Employee would be required to move his personal residence or perform his
principal executive functions more than thirty-five (35) miles from the
Employee's primary office as of the signing of this Agreement; (ii) if in the
organizational structure of the Company or Subsidiary, Employee would be
required to report to a person or persons other than the President of the
Company or the Subsidiary; (iii) if the Company or Subsidiary should fail to
maintain existing employee benefits plans, including material fringe benefit,
stock option and retirement plans, except to the
2
extent that such reduction in benefit programs is part of an overall adjustment
in benefits for all employees of the Company or Subsidiary and does not
disproportionately adversely impact the Employee; (iv) if Employee would be
assigned duties and responsibilities other than those normally associated with
his or her position as referenced at Section 1, herein; or (v) if Employee's
responsibilities or authority have in any way been materially diminished or
reduced.
4. Other Changes in Employment Status.
(a) Except as provided for at Section 3, herein, the Board of Directors
may terminate the Employee's employment at any time, but any termination by the
Board of Directors other than termination for Just Cause, shall not prejudice
the Employee's right to compensation or other benefits under the Agreement. The
Employee shall have no right to receive compensation or other benefits for any
period after termination for Just Cause. Termination for "Just Cause" shall
include termination because of the Employee's 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, or material breach of any provision of the Agreement.
(b) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Subsidiary's affairs by an order issued
under Sections 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act ("FDIA")
(12 U.S.C. 1818(e)(4) and (g)(1)), all obligations of the Company under this
Agreement shall terminate, as of the effective date of the order, but the vested
rights of the parties shall not be affected.
(c) If the Subsidiary is in default (as defined in Section 3(x)(1) of
FDIA) all obligations under this Agreement may in its discretion terminate as of
the date of default, but this paragraph shall not affect any vested rights of
the contracting parties.
(d) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for the
continued operation of the Subsidiary: (i) by the Director of the Office of
Thrift Supervision ("Director of OTS"), or his or her designee, at the time that
the Federal Deposit Insurance Corporation ("FDIC") or the Resolution Trust
Corporation enters into an agreement to provide assistance to or on behalf of
the Subsidiary under the authority contained in Section 13(c) of FDIA; or (ii)
by the Director of the OTS, or his or her designee, at the time that the
Director of the OTS, or his or her designee approves a supervisory merger to
resolve problems related to operation of the Subsidiary or when the Subsidiary
is determined by the Director of the OTS to be in an unsafe or unsound
condition.
3
Any rights of the parties that have already vested, however, shall not be
affected by such action.
(e) Notwithstanding anything herein to the contrary, any payments made
to the Employee pursuant to the Agreement, or otherwise, shall be subject to and
conditioned upon compliance with 12 USC ss.1828(k) and any regulations
promulgated thereunder.
5. Suspension of Employment . If the Employee is suspended and/or
temporarily prohibited from participating in the conduct of the Subsidiary's
affairs by a notice served under Section 8(e)(3) or (g)(1) of the FDIA (12
U.S.C. 1818(e)(3) and (g)(1)), the Company's obligations under the Agreement
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Company may in its
discretion, (i) pay the Employee all or part of the compensation withheld while
its contract obligations were suspended and (ii) reinstate any of its
obligations which were suspended.
6. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of the Company which shall acquire, directly or
indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets or stock of the Company.
(b) The Employee shall be precluded from assigning or delegating his
rights or duties hereunder without first obtaining the written consent of the
Company.
7. Amendments. No amendments or additions to this Agreement shall be
binding upon the parties hereto unless made in writing and signed by both
parties, except as herein otherwise specifically provided.
8. Applicable Law. This agreement shall be governed by all respects
whether as to validity, construction, capacity, performance or otherwise, by the
laws of the State of Oklahoma, except to the extent that Federal law shall be
deemed to apply.
9. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
10. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the rules then in effect of the district office of the American
Arbitration Association ("AAA") nearest to the home office of the Company, and
judgment upon the award rendered may be entered in any court having jurisdiction
4
thereof, except to the extend that the parties may otherwise reach a mutual
settlement of such issue. The Company shall reimburse Employee for all
reasonable costs and expenses, including reasonable attorneys' fees, arising
from such dispute, proceedings or actions, following the delivery of the
decision of the arbitrator finding in favor of the Employee. Further, a
settlement of the matter approved by the Board of the Company may include a
provision for the reimbursement by the Company to the Employee for all
reasonable costs and expenses, including reasonable attorneys' fees, arising
from such dispute, proceedings or actions, or the Board of the Company may
authorize such reimbursement of such reasonable costs and expenses by separate
action upon a written action and determination of the Board. Such reimbursement
shall be paid within ten (10) days of Employee furnishing to the Company
evidence, which may be in the form, among other things, of a canceled check or
receipt, of such costs or expenses incurred by Employee.
11. Entire Agreement. This Agreement together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement between the parties hereto.
5
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and first hereinabove written.
XXXXXXX SAVINGS, INC.
ATTEST: By:/s/Xxxxx Xxxxxxx
/s/Xxxxxxx X. Xxxxxxx
Secretary
WITNESS:
/s/Xxxxxxx Xxxxxxx /s/Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx, Employee
